Updated on Friday, Jan. 5, 7:30 p.m. with documents
Lee — Documents in the possession of the Lee Select Board show an alleged agreement between General Electric Company and Monsanto Company whereby Monsanto wouldn’t be held liable from any fallout to the health and safety of humans, animals, and environment from the sale of its products laden with the now-banned polychlorinated biphenyls (PCBs). The documents further show Monsanto allegedly created this relationship knowing that PCBs were harmful and also conveyed this warning to GE as a buyer accepting Monsanto’s products.
“We’ve been looking for something, a smoking gun so to speak, for some time now,” Board Chair Robert “Bob” Jones said of the information.
The documents released follow a January 2 meeting of the Select Board during which all three members signed a letter to state and national representatives decrying the alleged illegal interaction between the two companies and stated that the town intends to file a lawsuit against Monsanto later this month based on Massachusetts Civil Conspiracy Law. According to Jones, that letter was sent out January 4.
The now-banned PCBs were used by GE in the production of its electrical equipment for decades, with the toxic chemicals deposited into the Housatonic River. A 2020 remediation plan involving representatives of the affected towns of Great Barrington, Lee, Lenox, Sheffield, and Stockbridge, as well as GE and the Environmental Protection Agency, was drafted to clean up the waterway. That plan includes the development of an Upland Disposal Facility (UDF) in Lee to accept the lower-level contaminated sediment while the more toxic materials are sent out of the area. Lee officials and residents have long objected to the plan and the presence of a UDF within the town’s borders, with the permit having been executed by former Select Board members engaged in private negotiations.
On March 30, Lee filed a lawsuit against Monsanto in Federal District Court for its production of PCBs, later dropping that litigation but preserving the ability to refile at another time.
“This is what we discovered, and this is how we’re moving forward,” Jones said, adding that the town’s pro bono attorney is speaking with other major law firms around the country seeking to join the effort.
In support of the letter, Lee produced a January 21, 1972 document on Monsanto letterhead regarding GE’s desire to buy its PCB-laden products for their flame resistant and insulator properties. The document states that GE was aware PCBs “tend to persist in the environment” and special care is required for their handling.
“[GE] shall defend, indemnify and hold harmless Monsanto…from and against any and all liabilities, claims, damages, penalties, actions, suits … arising out of … the purchase … of such PCBs … including any contamination of or adverse effect on humans, marine and wildlife … or the environment by reason of such PCBs,” the 1972 document states. It also contains an alleged provision further indemnifying Monsanto from liability pertaining to any of its then-current contracts with GE. That document was executed by the vice presidents of both GE and Monsanto.
About three months later, a document also produced by Lee shows that Monsanto had warned buyers of a product used in transformer production, Pyranol, that PCBs within the substance were “not readily biodegradable,” “contaminants” to the environment, “may adversely affect some species of animal and marine life,” and that those buyers should take precautions to not spill or leak the material into the environment.
Although Pyranol sales were discontinued by Monsanto in early 1972, the alleged document states an exception was made for buyers “who have entered into special agreement to indemnify Monsanto,” including GE.
According to Jones, the documents were obtained through the town’s pro bono attorney, Cristóbal Bonifaz, and used as exhibits in a case involving Monsanto that was litigated elsewhere in the U.S. Although the papers weren’t particularly useful in that litigation, they may be a game changer for Lee moving forward. Jones said the team sifted through about 40,000 pages to find helpful information. “This was sort of a gift that fell out of the sky to us,” he said. “We had a much better understanding of the relationship between GE and Monsanto and how, in fact, they acted in concert to keep using [PCBs] and didn’t really tell anyone about it.”
Upon request for comment by The Berkshire Edge, however, a Monsanto spokesperson replied that “the Monsanto-GE agreement was a routine commercial agreement between two sophisticated companies that were doing business together.” The statement denied that the agreement “was improper in any way.”
“The agreement is only between GE and Monsanto, it did not (and could not) release any party from liability to third parties,” the statement provided. “The agreement had (and has) no impact on any legal liability adjudged by courts or assigned through administrative agencies like the EPA.”
The Monsanto statement continued:
Incidentally, the agreement came at a time when the federal Interdepartmental Task Force was completing its report on PCBs and concluded that PCBs should not be banned entirely as ‘their continued use for transformers and capacitors in the near future is considered necessary because of the significantly increased risk of fire and explosion and the disruption of electrical service which would result from a ban on PCB use.’ Regarding human health risk, this report stated, ‘at the levels in which they are found, PCBs do not appear to present an imminent hazard’ to the human population.
In their letter, Lee officials refer to the affidavit of environmental medicine and PCB exposure expert Dr. David Carpenter to the Lee Board of Health at its adjudicatory hearing held November 19, 2022. Stating that he reviewed the 2020 agreement, Carpenter said the location and size of the UDF, the risks associated with a 13-year plan to transport the dredged toxins from the Housatonic River to the UDF, and the nearness of Lee citizens to the UDF will cause the townspeople “an array of serious and long-lasting adverse health effects.”
The letter also sources a three-part series investigated and written by Mickey Friedman for The Berkshire Edge (See: Part One, Part Two, and Part Three), detailing Monsanto’s role in the Housatonic River contamination. [Disclaimer: Mickey Friedman is a contributing columnist to The Berkshire Edge.] Friedman told The Berkshire Edge that he supports Lee’s recent actions involving GE and Monsanto, powerful corporations that “sold and misused PCBs for many decades and made billions of dollars all the while knowing as early as the mid-1930s that they were toxic.”
“Lee, especially, has been unfairly victimized,” Friedman wrote in a statement. “I sincerely hope the citizens of Berkshire County, now that they are learning thousands of truckloads of contaminated river sediment will be rolling through their streets, will pressure the Massachusetts Attorney-General to join forces with Lee to get justice from GE and Monsanto.”
On January 5, about 20 residents of Lenox and Stockbridge met with State Sen. Paul Mark at Lee Town Hall, with Mark being one of the recipients of the Lee Select Board letter, Jones said. The meeting was requested by citizens of towns other than Lee, and the discussion partially included the new documents produced by Lee, he said.
Towards the end of last year, GE released its transportation plan for the dredged soil and sediment, with that plan focusing primarily on trucking. Following its release, residents and officials of southern Berkshire County towns decried the route that will traverse local streets for more than a decade, stating that the result could endanger citizens and the environment while detrimentally affecting local tourism and property values. Citizens, a local Board of Health, and town governments have since banded together to push for rail as the transportation method for the PCB-laden materials, asserting that trains are safer and and do not produce as negative an effect on the area’s lifestyle. But the method would involve the costly construction of some rail infrastructure, expenses GE hasn’t appeared to be on board with yet. The transportation proposal is now being evaluated by the EPA, with the project’s comment period ending February 1.
Jones said a possible monetary award from the lawsuit could help the town’s position in the Housatonic River’s remediation plan. “Ultimately what we’re hoping for is to come up with some funds for damages that would change the entire plan of how we’re going to do the river cleanup, to do away with the [UDF], to solidify a plan using trains, not trucks, and to prevent another toxic waste dump in Berkshire County and a more comprehensive cleanup of the river,” he said.
The 2020 remediation plan has been touted as removing only about a maximum of 30 percent of the PCB toxins contained in the Housatonic River.
“As far as Monsanto is concerned, they are bullet proof because GE signed an indemnity agreement and Monsanto insisted, they do that if they were going to continue to sell this stuff to GE,” Jones said. “And GE said, ‘Absolutely fine.’ This was 50 years ago. So, Monsanto’s been bulletproof, but they’re not bulletproof as far as the town of Lee goes. We are suing where GE can’t sue them in order to get funds for a much better agreement, to do away with the idea of just moving this stuff around Berkshire County. There’s got to be a far better way to do this cleanup.”
The pertinent documents can be found on the Lee website.
Attempts to contact GE representatives were not returned by press time.
Town of Lee letter to state and national representatives sent on January 2, 2024. (PDF file)
A “cancer index” as cited by the town of Lee in its case. (PDF file)
