Monsanto Can’t Dodge SoCal Port’s Pollution Case

Frolicking gull at sunset, San Diego, California. (Chris Marshall / CNS)

SAN DIEGO (CN) – A Southern California federal judge found agrochemical giant Monsanto can’t dodge the Port of San Diego’s public nuisance case over the company’s alleged pollution of the San Diego Bay and its fish.

U.S. District Judge William Hayes denied Monsanto’s pre-trial motion for summary judgment on a pollution case brought against the company in 2015 for improperly instructing users of its polychlorinated biphenyls, PCBs, to dispose of the coolant and lubricant chemicals in local landfills.

PCBs eventually made their way into the San Diego Bay, where efforts to clean up the chemical pollution have been underway since 1986.

Hayes’ order paves the way for a bench trial, where a judge, rather than a jury will decide the merits of the case and whether Monsanto should be on the hook to pay for abatement costs to clean up PCBs in the San Diego Bay.

“In this case, the purported injury to the public exists today. Monsanto’s asserted role in creating the injury is ready for adjudication,” Hayes wrote in the 32-page order Thursday.

The Port of San Diego said in a statement to Courthouse News it “is pleased with the ruling as it relates to the Port’s public nuisance claims and allows our case against Monsanto to proceed to trial.”

In his order, Hayes’ walked through the timeline of efforts to clean up the San Diego Bay.

Over the years, multiple clean up orders have been issued by the San Diego Regional Water Quality Control Board to aeronautical and ship industry companies which discharged PCBs in the bay as “a direct result” of their activities.

In 2006, the Regional Board listed the bay as “impaired” for PCBs under the Clean Water Act.

A 2012 report found the San Diego Bay has one of the “most severe PCB contamination” levels on the California coast and that PCBs have “reached concentrations in fish tissue that pose potential health concerns,” according to Hayes’ summary.

In 2013, a Fish Consumption Advisory by the Office of Environmental Health Hazard Assessment warned that women under 45 years old and children should not eat seven species of bay fish. It also restricted the amount of servings of bay fish consumers should eat per week.

The advisory was amended in 2018 to add an additional fish to the “do not eat” guidelines: Pacific Chub mackerel.

The amended advisory also found PCBs are “a potential concern for people who eat fish because of their toxicity and their ability to accumulate in fish tissue.”

Hayes cited those facts when denying Monsanto’s motion for summary judgment on the Port’s public nuisance claim.

“The court finds that the Port District has presented evidence of specific facts that could support the conclusion by a reasonable trier of fact that PCBs have polluted the Bay and caused substantial harm to either human health or the use and enjoyment of the Bay,” Hayes wrote.

He also denied summary judgment on the Port’s abatement claim which seeks to establish a fund to cover clean up costs.

But Hayes did grant summary judgment to Monsanto on the Port’s purpresture claim challenging the alleged encroachment or obstruction of public land.

“The Port District has not presented evidence that PCBs prevent physical access to any water, sediment, or fish in the Bay,” Hayes wrote.

In a separate order, Hayes granted summary judgment in favor of Monsanto against the city of San Diego.

He found the city had failed to produce evidence showing the presence of PCBs in its municipal stormwater system directly resulted in investigation and clean-up costs it incurred when the Regional Board issued a clean up and abatement order for shipyard contamination.

Monsanto parent company Bayer said in a statement it was “pleased with the court’s decision to grant our motion for summary judgment against the city of San Diego, and narrow the claims by the Port District.”

“We continue to believe the lawsuit has no merit as none of the defendants used, stored or discharged PCBs in the San Diego Bay environment,” the company said.

A trial date in the case has not been set. A final pre-trial conference hearing is scheduled for Oct. 15.

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