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Judge hears arguments over PCB contamination in Washington state river

Monsanto — which is already fighting another lawsuit over PCB contamination in Washington state waterways — has argued that Seattle shouldn't be able to bring a claim of its own.

(CN) — Attorneys for the city of Seattle and agritech giant Monsanto faced off before a federal judge on Thursday for a hearing in what has become a lengthy lawsuit over PCB contamination in Washington’s Duwamish River.

Polychlorinated biphenyls or “PCBs” are human-made chemical compounds associated with various poor health outcomes, including cancer, according to the Environmental Protection Agency. They were also once a useful industrial product, Monsanto has argued in court filings.

PCBs bioaccumulate, meaning they build up inside organisms via food or the environment. They can infilitrate ecosystems through oceans, waterways, soil, air, plants and animals (including humans), often due to poorly managed waste systems and landfills.

In January 2016, Seattle sued Monsanto for damages allegedly stemming from the company's manufacture and distribution of PCBs between 1935 and the late 1970s.

The city claimed the company knew for decades that PCBs were toxic and were contaminating natural resources and living organisms. They argued Monsanto concealed these facts and continued producing PCBs until Congress enacted the Toxic Substances Control Act of 1979, which banned the manufacture of PCBs.

The result, Seattle says, was contamination of the Duwamish River — a river that runs straight through the city. Seattle anticipates spendings hundreds of millions of dollars to clean up PCB contamination within four main sites of the river, the city argued.

The lawsuit is similar to expensive suits Monsanto recently settled involving Washington state and the city of Spokane, the latter of which sued Monsanto in a class action after finding PCBs in the Spokane River. Monsanto settled with Washington in June 2020, agreeing to pay $95 million.

On Thursday, Monsanto attorney Kim Kocher argued that claims brought by Seattle had already been resolved as part of that settlement.

When Washington agreed to a settlement with the company, it extinguished Seattle’s claims as well, she argued.

“There’s no claim left that the state hasn’t released with respect to PCB-related alleged harm to the environment,” Kocher said.

Seattle attorney Adele Daniel disputed this, arguing the state did not intend to release the city’s claim.

Had Washington meant to do so, she argued, it would have included a lot more money in its settlement agreement to handle PCB contamination throughout its municipalities.

Daniel argued Monsanto “could not point to any facts” to dispute an assertion by Washington’s attorney general that the prior agreement did not release the city's claim.

Any decision in Monsanto’s favor would be a “novel interpretation of Washington law” that would upset principles of sovereign authority for Washington’s municipalities, she argued.

In response, Kocher argued the doctrine of "res judicata" — a principle that prevents parties from bringing multiple lawsuits over the same claims — barred Seattle’s public nuisance claim for the Lower Duwamish River, as that was already part of Washington’s settled lawsuit.

“The doctrine of res judicata bars the city’s public nuisance claim as a matter of law,” Monsanto argued in a court filing. The court did not need to do any additional discovery on this issue, the company argued.

At the hearing, though, a lack of legal precedent led to questions about whether Washington really did waive Seattle’s claims.

U.S. Magistrate Judge Michelle Peterson expressed surprise that there were no other cases she could find with similar circumstances, particularly where a city and state simultaneously brought similar suits “covering the same issue for the public good.”

Regardless, Daniel remained adamant that Washington did not waive Seattle’s claims. While both suits cover the same geographic area, she argued, the state specifically excluded Seattle’s claims from its lawsuit.

Besides, she argued, there’s a lot of work still to be done in the Lower Duwamish River.

Judge Peterson said she would try to have her report and recommendations ready within the next ten days.

The situation was "as clear as mud," she joked at the end of the hearing.

After her report, Peterson said, it’s up to U.S. District Judge Richard Jones to decide how he wants to handle the trial schedule.

Representatives of Monsanto, owned by multinational pharmaceutical company Bayer, declined to comment for this story.

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Categories / Environment, Health, Science

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