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Monsanto files motion to dismiss PCB lawsuit

Lawyers for the companies that acquired Monsanto have asked the federal court in Portland to dismiss a lawsuit attempting to hold them liable for local pollution created by PCBs manufactured by the original firm.

The motion to dismiss filed with the US District Court in Oregon says the lawsuit is legally flawed and asserts that “Old Monsanto” never manufactured polychlorinated biphenyls in Portland or discharged them into the environmental. The filing includes a list of 33 other public nuisance cases that have been dismissed over the years for such products as PCBs, asbestos-containing materials, automobiles, flushable wipes, fossil fuels, guns, lead-based paint, pharmaceutical drugs, tobacco, and trans-fat foods, including pizza and popcorn.

The filing also says the suit will interfere with the U.S. Environmental Protection Agency-ordered cleanup of the Portland Harbor Superfund site, which PCBs have been found.

“The City has needlessly resorted to litigation against a former product manufacturer that neither owned nor operated a PCB-manufacturing facility anywhere near the relevant water bodies and never deposited PCBs into the affected water bodies at any time — all in an effort to expand liability by circumventing traditional cleanup laws and regulatory tools, which rightfully focus on the actual dischargers. The City’s action will compel the product manufacturer that has discharged nothing into the water bodies to involve the actual PCB dischargers, including the

City itself, in more litigation, which will upend the allocation process that has been ongoing for the past seven years. And because the City will contend its novel theories are not subject to any statute of limitations, the timing of this test case is particularly suspect. It could have been filed next year or thereafter under the City’s own rationale,” the filing says.

The suit filed in Portland is one of eight filed in West Coast cities with the assistance of the same two private law firms, Gomez Trial Lawyers and Baron & Budd. It was authorized by the City Council on March 16. All of the suits claim Monsanto, the exclusive domestic manufacturer of polychlorinated biphenyls from 1935 to 1979, knew the product was hazardous and hid the risks from the public.

John Fiske, a lawyer with the private firms that helped file the suit, “The city will respond to Monsanto’s motion to dismiss and, of course, we disagree with Monsanto’s characterization of the city’s claims and intentions.”

PCBs were widely used in electrical and other industrial processes, and have been shown to be highly persistent in the environment and a likely cause of cancer in humans and animals. They have been found in Portland waterways, including the harbor Superfund site that the EPA believes was polluted by city sewers, among other sources.

“Although Monsanto knew for decades that PCBs were toxic and knew that they were widely contaminating all natural resources and living organisms, Monsanto concealed these facts and continued producing PCBs until Congress enacted the Toxic Substances Control Act (“TSCA”), which banned the manufacture and most uses of PCBs as of January 1, 1979,” says the suit, which seeks unspecified compensatory damages, punitive damages, litigation costs and attorney’s fees.

The Monsanto suit also involves pollution outside the Portland Harbor, says Sonia Schmanski, chief of staff to Commissioner Nick Fish, who oversee the Bureau of Environmental Services.

"I'm told the Monsanto case is broader than Superfund, including costs the city has and might in the future incur for investigating, monitoring, remediating, and mitigating PCBs not just in the Superfund site but also in the Columbia Slough, other parts of the Willamette, and tributaries like Johnson Creek," says Schmanski.

You can read the motion to dismiss here.

You can read the lost of product liability suits that have been dismissed here.

You can read an earlier Portland Tribune story on the suit and find it at tinyurl.com/hu4r23w.