Seattle can pursue Monsanto on river contamination

(CN) — Biotech giant Monsanto can’t evade a public nuisance claim over PCB contamination of Seattle’s Duwamish River, a federal judge ruled Thursday.

U.S. District Judge Richard A. Jones denied Monsanto summary judgment in a case stemming from the company’s alleged release of polychlorinated biphenyls, manmade industrial and commercial chemicals associated with cancer and other serious health issues. When allowed to cycle through the ecosystem through waterways, soil, the air and animals, toxic chemicals of this nature ultimately bioaccumulating in food crop or small organisms and fish.

Although use and production of PCBs have been banned since 1979, ill effects still linger, often due to poorly managed waste systems and landfills where the chemicals leach off products that use them and persist in the environment. Humans can be exposed to PCBs through ingestion, inhalation and even just direct contact.

Seattle brought a lawsuit in 2016, saying that Monsanto knew for decades of the potential dangers of PCBs but concealed this. When PCBs leached into Seattle's stormwater and wastewater, they became the most widespread contaminant discharged into the Duwamish, which runs straight through the city.

The city says cleaning up the river will require a multimillion-dollar wastewater treatment plant.

Monsanto — its name now defunct after the 2018 acquisition by Bayer — has faced similar contamination suits, including one from the state of Washington that resulted in a $95 million settlement in 2020.

Jones agreed with recommendations that U.S. Magistrate Judge Michelle Peterson made in April that the state’s settlement did not release Monsanto from public nuisance claims by Seattle, and that the state suit did not bar Seattle’s claim.

Peterson highlighted ambiguities in the state’s settlement agreement with Monsanto regarding the release of state agencies. Though Monsanto argued that this language included King County and Seattle, the city reasoned that state and county agencies are separate entities.

“There is no concurrence of identity of the parties,” she wrote. "As noted above, the ambiguity of the term ‘agencies’ in the State Settlement Agreement and the extrinsic evidence provided by the city demonstrate the city was not intended to be included in the State Settlement Agreement.

“Defendants similarly fail to demonstrate that there was clear privity between the City and State with respect to the State Settlement Agreement, such that the City and State could be regarded as the same person or party with respect to the public nuisance claim. The city was not in control, nor substantially participated, in the State’s action.”

Jones, agreeing with Peterson, also found that the claim is not barred by res judicata.

Monsanto maintains that it is not liable for the damages alleged by Seattle.

“The City cannot prove that Monsanto’s conduct constituted a nuisance as the sale and lawful manufacture of PCBs was expressly authorized by federal statutes, and Washington law expressly exempts it from being deemed a nuisance,” a representative for Monsanto said a statement.

“In addition, the City cannot establish that Monsanto’s conduct was the cause of the alleged impairments of the Lower Duwamish Waterway because the Company did not retain post-sale control of a product it manufactured 45 years ago, and the EPA has identified 43 other chemicals as responsible for the impairments of the Lower Duwamish Waterway. The undisputed evidence shows that PCB-containing materials, manufactured by other companies and not Monsanto, ended up in the Lower Duwamish Waterway through dozens of intervening third-party actors over whom Monsanto had no control, including the City, its stormwater and wastewater conveyance system, and other private and governmental entities.”

In their statement, the company also attributed the Duwamish’s pollution to Seattle’s own history of using the river as an industrial dumping ground.

Ruling on summary judgment remains pending on several other claims, including future damages.  

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