A California federal judge has ruled that Monsanto Co. can’t escape separate public nuisance suits filed by San Jose, Oakland and Berkeley seeking cleanup costs for allegedly contaminating the San Francisco Bay with polychlorinated biphenyls (PCBs). U.S. District Judge Edward J. Davila ruled that the cities have a legitimate property interest in captured stormwater under the state’s water code.
The judge previously had granted Monsanto’s motion to dismiss because the cities couldn’t show they owned stormwater that flows through municipal pipes to the bay, a requirement of a public entity to bring a non-representative nuisance action for damages. However, since then, new rules under California’s water code that give cities a right to capture stormwater and put it to use have cleared a path for San Jose, Oakland and Berkeley to make their nuisance claims against the agrochemical company.
While Judge Davila noted that public entities generally can’t bring nuisance claims against manufacturers, he said an exception exists if the Defendants “create or assist in creating a system that causes hazardous wastes to be disposed of improperly or … instruct users to dispose of wastes improperly.” Judge Davila also rejected Monsanto’s argument that a statute of limitations bars any claims against them since they stopped manufacturing PCBs in 1979, finding the cities’ allegations of a causal connection between Monsanto’s distribution of PCBs, contamination of the bay and the alleged public nuisance were sufficient. The cities pled facts showing that Monsanto instructed users to improperly dispose of PCB waste, the judge added.
This was the latest in a series of legal battles playing out across the West Coast between the agricultural biotechnology giant and local governments over its use of PCBs from 1930 through 1977. Congress had banned the toxin in 1977. The suits allege that local governments have to pay to reduce the level of PCB discharge into San Francisco Bay waters, which occurs from stormwater runoff collected by their municipal stormwater systems. Berkeley, Oakland and San Jose brought the instant suits against Monsanto and units of Pfizer Inc. and Eastman Chemical Co., which used to be part of Monsanto, over the past two years.
Judge Davila dismissed them with leave to amend in August, finding that the cities did not adequately show they have a property interest affected by the PCBs. The cities simultaneously filed amended complaints in September that alleged a single cause of action, seeking compensatory and punitive damages for an alleged public nuisance in the San Francisco Bay.
The U.S. Environmental Protection Agency (EPA) has classified PCBs as probable human carcinogens, and PCBs may also cause noncarcinogenic effects, including reproductive effects and developmental effects, primarily to the nervous system. The chemical tends to accumulate in the human body in the liver, fatty tissue, skin and breast milk.
San Jose is represented by J. Richard Doyle and Nora Valerie Frimann of the Office of the City Attorney of San Jose. Oakland is represented by Maria Bee, Barbara J. Parker and Otis McGee Jr. of the Oakland City Attorney’s Office. Berkeley is represented by Lynne Sarah Bourgault and Zachary Cowan of the Berkeley City Attorney’s Office. All three cities are also represented by Carla Michelle Burke, Celeste A. Evangelisti, Paul Scott Summy and Brett Land of Baron & Budd PC and John Paul Fiske and John H. Gomez of Gomez Trial Attorneys. The cases are City of Berkeley v. Monsanto Co. et al. (case number 5:16-cv-00071); City of Oakland v. Monsanto Co. et al. (case number 5:15-cv-05152) and City of San Jose v. Monsanto et al. (case number 5:15-cv-03178) all in the U.S. District Court for the Northern District of California.
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