The City of Seattle’s suit against three “Monsanto” corporations to make them pay to remove cancer-causing chemical compounds known as PCBs (polychlorinated biphenyls) from the City’s drainage system and the Duwamish River has survived a key test in federal court.
On Wednesday U.S. District Judge Robert Lasnik partially denied Monsanto’s motion to dismiss the action that the City filed in January 2016.
Although the judge dismissed some City claims, he decided that none of the remaining claims are barred by the statutes of limitations because, he said, “Seattle’s efforts to rid its waterways of pollution is an act ‘for the common good’” that “fulfills the city’s delegated responsibility to act as steward of the land and waters within its boundaries for the benefit of the public at large.”
Monsanto was the sole producer of PCBs in the United States from 1935 to 1979.
The most important legal claim that survived is public nuisance, which addresses a condition that is impairing community rights. In the Seattle case the condition is the widespread contamination by PCBs that makes bottom fish and shellfish from the Duwamish too contaminated to eat, that exposes the public to a chemical that is injurious to health and that impairs the public’s use of City parks along the waterway.
Judge Lasnik ruled that the City has alleged facts indicating a public nuisance exists and that Monsanto caused it by promoting the use of PCBs in a wide range of products, including paint and caulk, even though Monsanto knew that PCBs would leach and vaporize out of those products and would contaminate the environment. Monsanto, further, knew that PCBs were toxic to people and wildlife, it is alleged.
PCBs — found globally in bays, oceans, rivers, streams, oil and air – are an equal opportunity toxic that destroys populations of fish, birds and other animal life as well as harming human immune, reproductive, nervous and endocrine systems.
In Seattle the PCB contamination affects 20,000 acres that drain to the Lower Duwamish, a federal Superfund site, and in areas that drain to the East Waterway adjacent to Harbor Island, a separate federal Superfund site. PCBs were detected in “82 percent of samples of sediment in drainage pipes” and in “73 percent of samples collected from catch basins in street right-of-ways” in Lower Duwamish drainage basins.
The concentrations of PCBs are low compared with historic releases by industries along the waterway, but any PCBs are a risk to health.
Under a consent decree issued by the U.S. Environmental Protection Agency and the Washington Department of Ecology, the City will build a storm water treatment plant adjacent to the Lower Duwamish that is designed to remove PCBs from storm water – at an estimated cost of nearly $27 million.