Mayor & City Council of Balt. v. Monsanto Co.
| Decision Date | 31 March 2020 |
| Docket Number | Civil Action No. RDB-19-0483 |
| Parties | MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff, v. MONSANTO COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
The Mayor and City Council of Baltimore ("the City") have filed a five-count Complaint against Monsanto Company ("Monsanto"), Solutia Inc., now operating Monsanto's chemical products business, and Pharmacia Corporation, now operating Monsanto's pharmaceuticals business. The City alleges contamination of its streets, drainage systems, storm water and water bodies with Polychlorinated Biphenyls ("PCBs"), chemical compounds used in industrial and commercial applications. The five Counts of the Complaint allege common law tort claims: public nuisance (Count I); strict product liability based on defective design and manufacture (Count II); strict product liability based on failure to warn (Count III); trespass (Count IV); and negligence (Count V). Presently pending is the Defendants' Motion to Dismiss the Complaint for lack of standing, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim, under Rule 12(b)(6). (ECF No. 29.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, the Motion to Dismiss (ECF No. 29) shall be DENIED.
In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). The Court may consider only such sources outside the complaint that are, in effect, deemed to be part of the complaint, for example, documents incorporated into the complaint by reference and matters of which a court may take judicial notice. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
PCBs are man-made chemical compounds that have been found to contaminate bays, oceans, rivers, streams, soil, and air. (Compl. ¶ 1, ECF No. 1.) As a result, PCBs have been detected in the tissues of all living beings, including marine life, animals and birds, plants and trees, and humans. (Id.) Exposure to PCBs can lead to various adverse health effects, including cancer, effects on the immune system, reproductive system, nervous system, endocrine system, and more. (Id. ¶ 2.)
The City alleges that Monsanto was the sole manufacturer of PCBs in the United States from 1935 to 1977 and trademarked the name "Aroclor" for its PCB compounds. (Id. ¶¶ 3, 25, 34.) In its original form, Monsanto operated an agricultural products business, a pharmaceutical and nutrition business, and a chemical products business. (Id. ¶ 25.) Beginningin approximately 1997, Monsanto's business reorganized to form three separate corporations: Monsanto, which still operates the agricultural products business; Solutia, which now operates Monsanto's chemical products business; and Pharmacia, which now operates Monsanto's pharmaceuticals business. (Id. ¶ 26.)
Monsanto used PCBs in industrial and commercial applications, including electrical equipment such as transformers, motor start capacitors, and lighting ballasts, and other products such as caulks, paints, and sealants. (Id. ¶ 35.) PCBs regularly leach, leak, off-gas, and escape their intended applications, contaminating runoff during storms and other rain events, and resulting in the contamination of streets, drainage systems, stormwater, and water bodies. (Id. ¶¶ 4, 5, 37.) Humans are exposed to PCBs through ingestion, inhalation, and dermal contact. (Id. ¶ 39.) The Environmental Protection Agency ("EPA") has determined that PCBs are probable human carcinogens and that PCBs are associated with serious non-cancer health effects on the immune system, reproductive system, nervous system, and endocrine system. (Id. ¶¶ 40-42.) For example, human and animal studies have shown that PCB exposure leads to decreased birth weight, decrease in gestational age, reduced sperm counts, deficits in neurological development affecting visual recognition, short-term memory, and learning, and decreased thyroid hormone levels resulting in developmental deficits such as hearing. (Id. ¶¶ 43-48.) PCBs are also toxic to aquatic species and wildlife, with exposure resulting in death, compromised immune system function, adverse effects on reproduction, development, and endocrine functions. (Id. ¶ 49.) The presence of PCBs can also cause changes in community and ecosystem structure and function. (Id.)
The City alleges that Monsanto has known for decades that PCBs are toxic and that their regular and intended uses would result in widespread contamination of the environment. (Id. ¶¶ 50-76.) The City attaches as exhibits to its Complaint several internal Monsanto documents which are now public that reflect Monsanto's knowledge of the harmful effects of PCBs. (See Compl. Exhibits 1-22, ECF Nos. 1-2 through 1-23.) An October 11, 1937 Monsanto Memorandum notes that "[e]xperimental work in animals shows that prolonged exposure to Aroclor vapors...will lead to systemic toxic effects." (Exhibit 1 at MONS 061332, ECF No. 1-2.) Another 1955 memorandum from Monsanto's Medical Director states, "[w]e know Aroclors are toxic, but the actual limit has not been precisely defined." (Exhibit 2 at MONS 095196, ECF No. 1-3.) In 1966, Monsanto's Medical Director reviewed a medical presentation that reported the detection of PCBs in the tissues of fish and wildlife in Sweden and indicated that the likely source was from industrial uses of PCBs.
In 1969, Monsanto formed an Ad Hoc Committee on Aroclor, with the objective of continuing sales and profits of Aroclor in light of the fact that PCBs "may be a global contaminant." (Exhibit 10 at MONS 030483, ECF No. 1-11.) In meeting minutes, the Committee noted that "[t]hrough abrasion and leaching we can assume that nearly all of this Aroclor winds up in the environment." (Id. at MONS 030485.) Despite the growing evidence of widespread contamination, it is alleged that Monsanto refused to stop production of Aroclor: "there is too much customer/market need and selfishly too much Monsanto profitto go out." (Exhibit 12 at MONS 058730-37, ECF No. 1-13.) In 1970, PCB production in the United States peaked at 85 million pounds. (Compl. ¶ 69, ECF No. 1.)
The United States government conducted an investigation of PCBs in the early 1970s, resulting in a 1972 report that concluded that PCBs were highly persistent, could bioaccumulate to relatively high levels, and could have serious adverse health effects in humans. (Id. ¶ 70.) In 1976, after conducting a study to assess PCB levels in the environment on a national basis, the EPA revealed that PCBs were "a more serious and continuing environmental threat than had been originally realized." (Id. ¶ 71.)
The City alleges that Monsanto actively concealed the toxic nature of PCBs from governmental entities and the public, misrepresenting that the compounds were not toxic and that Monsanto did not expect to find PCBs in the environment in a widespread manner. (Id. ¶¶ 77-84.) In a 1969 letter to the Los Angeles County Air Pollution Control District, Monsanto explained that PCBs "are not particularly toxic by oral ingestion or skin absorption." (Exhibit 17 at NCR-FOX-0575881, ECF No. 1-18.) Also in 1969, a Monsanto employee spoke with a representative from the National Air Pollution Control Administration who promised to relay the message to Congress that Monsanto "cannot conceive how the PCBs can be getting into the environment in a widespread fashion." It is further alleged that similar messages were conveyed to the Regional Water Quality Control Board, the New Jersey Department of Conservation, as well as to inquiring customers. (Compl. ¶¶ 78, 80, 83.)
Many major municipalities across the nation have filed lawsuits against Monsanto in the wake of the environmental and health concerns over PCBs. See, e.g., San Diego Unified Port District and City of San Diego v. Monsanto Co., No. 15-cv-578 (S.D. Cal.); City of San Jose v. Monsanto Co., No. 5:15-cv-3178 (N.D. Cal.); City of Oakland v. Monsanto Co., No. 5:15-cv-5152 (N.D. Cal.); City of Spokane v. Monsanto Co., No. 2:15-cv-201 (E.D. Wash.); City of Berkeley v. Monsanto Co., No. 5:16-cv-71 (N.D. Cal.); City of Seattle v. Monsanto Co., No. 16-cv-107 (W.D. Wash.); City of Long Beach v. Monsanto Co., No. 16-cv-3493 (C.D. Cal.); City of Portland v. Monsanto Co., No. 3:16-cv-1418 (D. Or.); Port of Portland v. Monsanto Co., No. 3:17-cv-15 (D. Or.); City of Chula Vista v. Monsanto Co., No. 18-cv-1942 (S.D. Cal.). In addition, several state attorneys general have asserted claims for injuries to natural resources as a result of Monsanto's conduct. See State of Washington v. Monsanto Co., No. 16-2-29591-6 (Wash. Super.); State of Oregon v. Monsanto Co., No. 18CV00540 (Or. Super.); State of Ohio v. Monsanto Co., No. A1801237 (Ohio Com. Pl.). Some of those actions remain pending, and Monsanto's efforts to have them be initially dismissed on motions has been unsuccessful.
Baltimore City alleges that such PCB contamination has also occurred within the boundaries of Baltimore. (Compl. ¶¶ 5, 85-89, ECF No 1.) The City, in its governmental capacity, owns and operates a municipal separate stormwater system ("MS4") that captures precipitation that falls on impervious surfaces such as streets, sidewalks, and roofs. (Id. ¶ 6.) The stormwater system includes gutters, inlets, pipes,...
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