Commonwealth v. Monsanto Co.

Citation269 A.3d 623
Decision Date30 December 2021
Docket Number668 M.D. 2020
Parties COMMONWEALTH of Pennsylvania, acting by the Commonwealth of Pennsylvania Department of Environmental Protection and the Commonwealth of Pennsylvania Department of Conservation and Natural Resources, and the Pennsylvania Fish and Boat Commission, and the Pennsylvania Game Commission, Plaintiffs v. MONSANTO CO., Solutia Inc., and Pharmacia LLC, Defendants
CourtPennsylvania Commonwealth Court

Kyle J. McGee and Viola Vetter, Wilmington, DE, for Plaintiff Department of Environmental Protection.

Kim Kocher, Philadelphia, for Defendants.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE COVEY

Before this Court are Monsanto Co.’s (Monsanto), Solutia Inc.’s (Solutia), and Pharmacia LLC's (Pharmacia) (collectively, Defendants) Preliminary Objections (POs) to the First Amended Complaint (Complaint) filed by the Commonwealth of Pennsylvania (Commonwealth), acting by and through the Commonwealth's Department of Environmental Protection (DEP), Department of Conservation and Natural Resources (DCNR), Fish and Boat Commission (FBC), and Game Commission (GC) (collectively, Plaintiffs), filed in this Court's original jurisdiction. After review, this Court sustains the POs in part and overrules them in part.

Background1

Solutia and Pharmacia have succeeded to the liabilities of predecessor Monsanto2 which, from 1929 to 1977, manufactured, marketed, sold, and distributed approximately 99% of the polychlorinated biphenyls (PCBs) used in the United States (U.S.) - often under the trade names Aroclor, Pydraul, and Turbinol.3 See Complaint ¶¶ 1, 3-4, 47, Complaint Exs. 14-15. "PCBs are either oily liquids or solids, and are colorless to light yellow[, and t]hey have no known smell or taste." Complaint ¶ 44. PCBs "are toxic and dangerous synthetic[4 ] organic chemical compounds" harmful to human and animal health, and the environment. Complaint ¶¶ 1, 3; see also Complaint ¶ 42, Complaint Exs. 1-13, 16-19. "PCBs do not burn easily, are hydrophobic (i.e., they do not dissolve in water but rather cluster together), and bio-accumulate and bio-magnify in living tissue." Complaint ¶ 48.

Monsanto "acknowledged as early as 1937 that PCBs produce systemic toxic effects upon prolonged exposure." Complaint ¶ 3; see also Complaint Exs. 1-13, 16-19. In the 1950s, Monsanto's medical director declared: "[W]e know Aroclors are toxic[,]" and advised workers not to eat lunch in Monsanto's PCB department. Complaint Ex. 4; see also Complaint ¶ 3, Complaint Ex. 5. Due to PCBs’ proven toxicity and environmental persistence, "production and, with limited exceptions, use of PCBs was prohibited in the [U.S.] in 1979, when the U.S. Environmental Protection Agency ([ ]EPA[ ]) promulgated final regulations banning PCBs under the Toxic Substances Control Act [of 1976] ([ ]TSCA[ ]), enacted by the U.S. Congress in 1976."5 Complaint ¶ 2.

Despite that Monsanto knew early on of dangers associated with PCBs, and/or knew or should have known that PCBs "substantially persist in the natural environment rather than break down over time[,]" Complaint ¶ 7; that they "would inevitably volatilize and leach, leak, and escape their intended applications, contaminating runoff during naturally occurring storm and rain events and entering groundwater, waterways, waterbodies, and other waters, sediment, soils, and plants, as well as fish and other wildlife[,]" Complaint ¶ 6; and "that PCBs bio-accumulate and bio-magnify in animal tissue, including in fish tissue and human tissue[, and] ... pose[ ] an increasingly hazardous threat to the health of the Commonwealth's residents[,]" Complaint ¶ 8; see also Complaint ¶ 48, Monsanto nevertheless continued to market and sell its products containing PCBs. See Complaint ¶¶ 9-10, 91-115. In September 1969, Monsanto formed an Aroclor Ad Hoc Committee, the minutes of which reflect: "[W]hile ‘there is no practical course of action that can so effectively police the uses of these products as to prevent environmental contamination ... [t]here are ... a number of actions which must be undertaken to prolong the manufacture, sale and use of these particular Aroclors as well as to protect the continued use of other members of the Aroclor series.’ " Complaint ¶ 117 (quoting Complaint Ex. 10); see also Complaint ¶¶ 112-130. Monsanto also issued talking points for employees to address customer questions and concerns about PCBs in light of the research, and to encourage the customers to use rather than return their existing Aroclor stock because Monsanto did not want to take it back. See Complaint ¶ 130, Complaint Ex. 16.

According to the Complaint, "[t]he ordinary and intended application of Monsanto's commercial and household PCB products ... has resulted in the release of PCBs into the Commonwealth's air, waters, and soils, due principally to the chemical compound's well-known tendency to volatilize or redistribute itself across different environmental media." Complaint ¶ 84. PCBs entered the air, waters, sediments, and soils during their ordinary and prescribed uses. See Complaint ¶¶ 49, 84-88. Specifically, PCBs gradually escaped and dispersed from their intended applications (e.g., in road paint or caulking, into the natural environment due to the chemical compounds’ inherent tendency to volatilize (i.e., emit vapors), particularly when exposed to heat - such as when road paint or building materials are exposed to the sun over time). See Complaint ¶¶ 49, 84. PCB vapors traveled through the air, eventually settling in nearby soil, sediment, or waterbodies; they were released by the grinding, scraping, and removal of caulking and other construction materials that include PCBs. See Complaint ¶¶ 49-50, 84-88. PCBs also entered the environment from spills or leaks during chemical transport or fires in transformers, capacitors, or other products containing PCBs, and from waste burning in municipal or industrial incinerators. See Complaint ¶¶ 51, 86, 88. PCB-contaminated wastes were disposed of in the ordinary course in landfills, from where they easily escaped, leached, and leaked into the surrounding environment. See Complaint ¶¶ 52, 88.

Plaintiffs allege in the Complaint that, once in the environment, PCBs do not break down readily and may remain for decades absent remediation. See Complaint ¶ 53. In water, PCBs travel along currents and attach to bottom sediment or particles and evaporate into air or settle into sediment, water, and groundwater. See Complaint ¶ 54. In soil, PCBs combine with soil organic matter and remain for many years, and negatively affect plants and microorganisms; they also harm the whole soil biosphere, which leads to human exposure through incidental ingestion, inhalation, or dermal contact. See Complaint ¶ 55. As a gas, PCBs can accumulate in the leaves and above-ground parts of plants and food crops. See Complaint ¶ 56. PCBs are absorbed by small organisms, fish, marine animals in water, by animals that eat them, and eventually by humans. See Complaint ¶ 57. "Human health effects associated with PCB exposure include, without limitation, liver, thyroid, dermal, and ocular changes, immunological alterations, neuro-developmental and neurobehavioral changes, reduced birth weight, reproductive toxicity, and [(liver, biliary tract, intestinal, and skin (melanoma

))] cancer." Complaint ¶ 61; see also Complaint ¶¶ 62-74. PCBs are also highly toxic to fish and wildlife. See Complaint ¶¶ 75-83.

In the Complaint, Plaintiffs assert that Defendants knew PCBs were dangerous contaminants when they manufactured, marketed, sold, and distributed their PCB products, but failed to warn and actively deceived regulators and the public concerning their hazards. See Complaint ¶¶ 90-146. Plaintiffs allege that the ordinary and intended use of Defendants’ PCB mixtures has resulted in widespread PCB contamination in the Commonwealth. See Complaint ¶¶ 84-89. "Between 1929 and 1977, Defendants sold a large volume of commercial PCBs and PCB-containing products to various customers, including retail and secondary manufacturers, within and near the Commonwealth." Complaint ¶ 148. "Monsanto's PCB mixtures and PCB-containing products were used in countless applications within the Commonwealth and leached, leaked, off-gassed, and escaped their ordinary and intended applications to contaminate the Commonwealth's waters, sediments, soils, air, and fish and wildlife." Complaint ¶ 151. "Because Monsanto's PCBs are environmentally persistent, they continue to circulate in the Commonwealth's natural resources to this day." Id . "The Commonwealth has already taken significant (and costly) steps to address PCB contamination of surface water bodies and other natural resources, but widespread contamination continues to extensively damage the Commonwealth's natural resources and poses current and future threats to human health and the well-being of the Commonwealth's environment and economy." Complaint ¶ 152. "Like other states, [the Commonwealth] prepares water quality monitoring and assessment reports every other year to satisfy its listing and reporting obligations under [Sections 303(d) and 305(b) of] the Clean Water Act [(CWA).]"6 Complaint ¶ 153. "The 2020 Draft Pennsylvania Integrated Water Quality Monitoring and Assessment Report ("2020 Integrated Report") identifies more than 1,300 miles of [Commonwealth] streams and more than 3,600 of [Commonwealth] lake acres as PCB-impaired - that is, impaired for one or more beneficial uses due to excessive PCB contamination." Id . "Like [Commonwealth] waters, [Commonwealth] soils, sediments, and air also suffer PCB contamination." Complaint ¶ 158.

In the Complaint, Plaintiffs specifically argue:

11. Monsanto's
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