Lee — In furtherance of its March 13 lawsuit, the town of Lee, through its attorney Cristobal Bonifaz, asked the court for a ruling that defendants Monsanto and General Electric corporations, together with their iterations, are liable for damage to the town, fast-tracking the matter. Last month, GE requested the case be moved to federal court from the Berkshire Superior Court.
“This is another step towards righting a wrong that has been long overdue,” stated Lee Select Board Chair Robert “Bob” Jones in a May 7 email about the 13-page filing made the day before in the U.S. District Court for the District of Massachusetts.
That filing, a Partial Motion for Summary Judgment, aims to persuade the judge that the liability of GE and Monsanto for harm to the town of Lee can’t possibly be disputed under the facts of the case. If granted, a partial judgment will be entered in the civil action solely on the issue of Monsanto and GE’s liability, leaving a requested jury to determine how much in damages to award the town of Lee.
The Partial Motion for Summary Judgment can be found here.
The litigation followed a December announcement by Lee officials of documents found linking GE and Monsanto to an alleged January 31, 1972 improper agreement whereby GE would indemnify, or not hold liable, Monsanto for the fallout from the sale of its toxic polychlorinated biphenyls (PCBs) to GE after those chemicals were banned. The allegations include that both GE and Monsanto knew, at the time, of their potential harm to people and the environment.
GE was found to have deposited PCB substances into the Housatonic River, having used those chemicals having in its manufacture of electrical transformers. Monsanto sold PCBs it manufactured to GE and other customers. A 2020 agreement involving GE, the Environmental Protection Agency (EPA), and five Berkshire County towns, including Lee, resulted in a remediation plan, a permit, to take away from the area the dredged materials from the waterway containing the highest density of PCBs while the lesser contaminated substances would be put in an Upland Disposal Facility (UDF) in Lee. Lee officials and residents have long opposed this measure.
What law applies?
According to Bonifaz, federal law governs when local, state, or federal regulations in a case conflict with each other. That law even applies to Superfund sites such as Lee, with the town prevented from impeding the construction of the UDF or the cleanup of the Housatonic River since those actions are in accordance with the federal permit covering the waterway’s remediation, he states in the filing.
However, in his memorandum, Bonifaz states that federal priority over local and state laws doesn’t apply to the facts of Lee’s case against Monsanto and GE because the town isn’t challenging the 2020 federal permit, or the remediation action articulated in that agreement. Rather, its action stems from the companies’ harming the municipality’s “natural resources”: the Housatonic River and banks, along with those who live there, he states.
Bonifaz alleges that further case law shows that local governments such as the town of Lee are allowed to recover for damages done to natural resources under local control.
Although the memorandum provides that a lawsuit focused on a Superfund action is limited to an award of $50 million for natural resource damages, Bonifaz alleges that limitation doesn’t apply in instances of “willful misconduct or willful negligence” when the responsible party knows the action isn’t legal.
He points out that, pursuant to an earlier 2020 agreement, GE was obligated to provide $15 million to western Massachusetts and Connecticut cities and towns as compensation for the damage it had done to the natural resources there. But, at the time, neither the court nor any of the parties to the agreement, including the Commonwealth of Massachusetts or the State of Connecticut, knew PCBs were “forever chemical[s]” that wouldn’t dissipate and couldn’t be completely removed from the Housatonic River despite GE and Monsanto becoming aware of this fact in 1968, the memorandum alleges.
Conspiracy allegations
The document alleges that the parties to the 2000 agreement weren’t made aware of the 1972 indemnity agreement between GE and Monsanto, and that agreement constituted a criminal and/or civil conspiracy between GE and Monsanto as company representatives had known of the harmful nature of PCBs at that time. (A conspiracy is an agreement between at least two people to do an illegal act.)
Bonifaz states that, although Monsanto stopped manufacturing PCBs in 1970 and notified its customers of this change and of the tendency for PCBs to “leak from electrical devices,” GE urged Monsanto to continue to make and sell the company its PCBs. A year later, in 1971, a national task force acknowledged the potential harm caused by PCBs and was tasked with helping the government protect its citizens from that harm. Its report showed the existence of an alternative to replace the PCBs used in transformers and stated that vast numbers of PCBs were in landfills, with those materials “considered a threat to become widely dispersed over a period of time.”
In 1977, Monsanto halted its sales of PCBs. By then, it had sold GE 60 million pounds of PCBs between 1972 and 1977, or 10 million pounds per year, and 200 million pounds of PCBs between 1956 and 1977, or 10 million pounds per year, the filing states.
Even though the agreement that forms the basis for GE and Monsanto’s alleged conspiracy was made more than 52 years ago, Massachusetts law doesn’t impose a statute of limitations on the action; that is, despite the agreement being old, it can still create an actionable lawsuit, Bonifaz contends. He reasoned that the time for bringing the lawsuit begins when the individual or entity suing first learns of the action or cause for their injury, which, in this case, is the indemnity agreement.
“The statute of limitations for the harm to humans and the environment begins to run for the Town of Lee and its residents when it was learned that Monsanto and GE entered into a secret civil and criminal conspiracy in 1972,” the filing states. “The Monsanto-GE contract clearly specified in writing that PCBs sold after January 31, 1972, will harm humans and the environment. The Town learned about the conspiracy agreement on December 15, 2023, the day counsel learned of the existence of the secret contract between GE and Monsanto.”
Monsanto responds
In a May 8 email to The Berkshire Edge, a Monsanto spokesperson provided the company’s response to Lee’s Motion for Summary Judgment:
Monsanto continues to believe this lawsuit lacks merit as it reflects an attempt by the town of Lee to impose environmental liability on a manufacturer that did not dispose of PCBs in or near the town and is not a party to a settlement under which the town agreed to create a PCB disposal site. In addition, the filing of this motion at this early stage of the litigation is highly unusual, and the [Monsanto] will respond in due course. Lastly, the allegations regarding the relationship between Monsanto and GE are completely baseless; the agreement in question was a routine commercial arrangement between two sophisticated companies that were doing business together, and we strongly deny that it was improper in any way.
A spokesperson for GE replied that the company is “declining comment on this pending legal matter.“
