The 2020s have proven eventful for chemical companies as state after state has filed suit alleging, amongst other things, corruption of natural resources and negligence. The going has been particularly rough for Monsanto Company, a recently acquired subsidiary of the German pharmaceuticals company Bayer AG and once prominent producer of polychlorinated biphenyls (PCBs) products.
Oregon sued Monsanto in 2018, Pennsylvania in 2020, Delaware in 2021, and New Jersey in 2022. Denying liability and wrongdoing all the while, Monsanto Company settled with Oregon for a not-so-innocent $700 million and, in recent days, concluded the Pennsylvania PCB lawsuit with a $100 million settlement payout. Given the affinity of PCBs with per- and polyfluoroalkyl substances (PFAS), the September 2023 outcome may prove consequential for the next frontier in America’s efforts to prohibit toxic substances, preserve the environment, and safeguard human health.
Pennsylvania Rounds Up “Old Monsanto” Gang in Commonwealth Court
The state of Pennsylvania listed as co-defendants in its PCBs lawsuit not only Monsanto, which produced and distributed the majority of America’s polychlorinated biphenyls from 1929 to 1977, but also Solutia Incorporated and Pharmacia LLC. Although the companies, which are now owned by Eastman Chemical Co. and Pfizer respectively, were never subsidiaries of Monsanto, they served a critical role in the business operations of the chief defendant and offender.
Court filings refer to them collectively as “Old Monsanto”, which further alludes to the 2018 acquisition of Monsanto by Bayer AG, a German pharmaceutical company, which evaded any liability and was not listed as a co-defendant. Nonetheless, Bayer AG has assiduously defended its new subsidiary against the charges, stating clearly and repeatedly that Monsanto is not only free of liability but also guiltless of polluting Pennsylvania’s waterways and streams.
State Court Reduces PCB Lawsuit Charges While Dismissing Monsanto’s Complaints
There were two significant procedural and substantive concerns that the Commonwealth Court had to confront prior to the initiation of legal proceedings. The first dealt with the ability of Pennsylvania to file suit against “Old Monsanto” and the second addressed the legitimacy of the extensive charges the state proposed.
Monsanto had filed several preliminary objections asking the Court to dismiss the PCB lawsuit on the grounds that Pennsylvania lacked any standing and was pursuing “legally insufficient” claims. In December 2021, the Commonwealth Court of Pennsylvania responded to the early filings and affirmed Pennsylvania’s standing under the “parens patriae” doctrine, which dealt a considerable blow to Monsanto’s efforts to derail the potentially devastating litigation. In her opinion, Judge Anne E. Covey also rejected two charges that Pennsylvania had listed in its complaint, asserting that the state had failed to satisfy the minimum standards they require.
Nonetheless, Pennsylvania’s PCB lawsuit still maintained viability, alleging public nuisance, defective design, negligence, and failure to warn.
Polychlorinated Biphenyls Pervasive in Pennsylvania Waterways
Tim Schaeffer, the executive director of the Pennsylvania Fish and Boat Commission, one of several state departments and agencies to join the PCB lawsuit, said in an official statement that “PCB pollution has contaminated fish in our waterways, disrupted recreational opportunities, and impaired a valuable food source for millions of Pennsylvanians”.
His comments parallel comparable complaints from Pennsylvania’s current administration, which has spent tens of millions of dollars in decontamination campaigns to purify thousands of square acres of lakes and 1,300 miles of rivers. With the exception of $8 million already dedicated to community-specific projects, the remainder of the settlement payout will reimburse the state for its efforts and, potentially, subsidize future projects.
Secretary of the Pennsylvania Department of Environmental Protection issued his own statement celebrating the conclusion of the PCB litigation while obliquely rejecting Monsanto’s claims that it never deposited polychlorinated biphenyls in Pennsylvania’s waterways. “[The DEP] is making sure that Monsanto is paying for the work the Commonwealth has done to keep its water clean”, he remarked. Given the extent to which PCB can accumulate in ecosystems over time, the work is likely far from over.
The 1979 EPA PCB Ban and PFAS Parallels
Although Monsanto knew as early as 1937 that its blockbuster chemicals had toxic components, it took the EPA until 1979 to unveil a series of regulations that prohibited their production and distribution. Enshrined in the operative Toxic Substances Control Act, the restrictions further confirmed the resolution of Congress and federal agencies in the last quarter of the 20th century to rid America of highly dangerous chemicals and compounds.
However, in recent years, the next set of chemicals to face more federal scrutiny than action is per- and polyfluoroalkyl substances. The man-made, fluorine-based PFAS are not only suspected of possessing carcinogenic properties, but are far more internally diverse than polychlorinated biphenyls.
Investigation of PFAS Pollution and Harm
The Environmental Protection Agency is currently working in conjunction with the Department of Health and Human Services subsidiary, the Agency for Toxic Substances and Disease Registry (ATSDR), to conduct a nationwide investigation to determine the scope of PFAS pollution in the environment and human beings. Frequently updating their findings, the EPA and ATSDR have also stated that there is potential connection between PFAS exposure and a variety of developmental and lethal medical conditions.
As for Pennsylvania, the U.S. Geological Survey recently concluded that roughly 76% of 161 tested rivers in the state contained one or more congeners of PFAS. The civilian mapping agency revealed that rivers in areas of high population density contain alarmingly high and, perhaps, corollary levels of PFAS, including:
- Valley Creek,
- Neshaminy Creek
- Schuylkill River
- Wissahickon Creek
- Brandywine Creek
In the aftermath of the successful Monsanto PCB litigation, the Pennsylvania Department of Environmental Protection may have to prepare for yet another round of clean-ups and lawsuits against errant manufacturers and producers of PFAS.
Similarities Between PCBs and PFAS
In much the same way that per- and polyfluoroalkyl substances can remain in the environment and biological specimens for extended periods of time, so, too, can polychlorinated biphenyls accumulate and endure over the course of generations. At the center of a slew of state-initiated PCBs lawsuits is the allegation that, despite the 1979 ban of the toxic chemicals, they still endanger citizens and pollute the environment. Water suppliers have since made similar claims in court against PFAS manufacturers.
Polychlorinated biphenyls are composed of hydrogen and chlorine atoms and belong to a group of chemicals known as “chlorinated hydrocarbons”. A variety of companies, including Monsanto, produced them in the late 1920s and later utilized them for innumerable consumer products, including electrical equipment, coolants, dyes, inks, and caulks.
Aqueous Film-Forming Foam and PFAS
PFAS became widespread at around the same point as PCBs. Nevertheless, they not only constitute a class containing thousands of related compounds, dwarfing the 200-strong PCBs group, but also remain effectively unregulated. They are particularly prominent at military bases, oil refineries, and fire stations in the form of aqueous film-forming foam (AFFF).
This fuel fire extinguisher was once praised as a great breakthrough for one of the most difficult of fire types to suppress. In the aftermath of a disastrous fire aboard the USS Forrestal in 1966, the U.S. Naval Research Laboratory partnered with 3M Company to produce AFFF, which contained dangerously high levels of PFAS.
Long-term AFFF occupational use resulted in pervasive water contamination and topsoil pollution. Those who have been exposed to AFFF have since developed a variety of serious medical conditions, including a multitude of PFAS-related cancers.
The Legal and Legislative Battle Over PFAS Contamination
There is currently an extensive multidistrict litigation (MDL) in the U.S. District Court for the District of South Carolina consolidating over 5,000 AFFF lawsuits. Earlier this summer, DuPont, Chemours Company, and 3M Co. reached settlement agreements in related but unconnected AFFF litigation brought by municipalities and water suppliers.
The personal injury AFFF litigation has yet to be resolved, but Judge Richard M. Gergel, who is currently presiding over the complex AFFF MDL, is set to schedule a series of bellwether trials in the near future.
Qualified PFAS Lawyers Can Help
Massive companies have for too long evaded accountability for their knowingly irresponsible use of toxic chemicals.
Although scientific studies and press scrutiny can expose their behavior, legal and legislative action put it to a stop. Experienced AFFF lawyers can provide the assistance you need in order to see these companies held accountable for the damage done by AFFF and PFAS.
In a free consultation, a personal injury attorney will assess the merits of your case, provide an estimate of the compensation to which you may be entitled, and explain to you the intricate legal landscape which you hope to traverse. Filing a PFAS lawsuit against a large chemical manufacturer may seem daunting, but the recent string of state victories over Monsanto Company and the progress in the AFFF personal injury MDL confirm that even giants are not above the law.