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Lee takes action following no response by General Electric in critical lawsuit juncture; company now agrees to comply

The federal 2020 settlement doesn’t preclude a municipality from filing for damages, according to Lee Town Counsel Cristobal Bonifaz.

Lee — Following General Electric Company’s (GE) alleged failure to timely respond to actions filed by Lee Town Counsel Cristobal Bonifaz, the court had considered action that would possibly give the municipality a leg up in its federal case focused on the conglomerate and Monsanto entities. After procedural jockeying, however, the company agreed to respond to Lee’s allegations amid Bonifaz’s filing.

History

On March 13, Lee filed a civil lawsuit in Massachusetts state court naming GE, Monsanto, and its spin-offs, Solutia and Pharmacia, as defendants, alleging an illegal relationship, a conspiracy, existed between the companies whereby GE consented to indemnify, or not hold Monsanto liable for, any fallout from the sale of its now-banned polychlorinated biphenyls (PCBs) to GE as officials knew of the dangers the chemicals posed to humans and the environment. GE was found to have deposited PCBs into the Housatonic River after it used the chemicals in its Pittsfield electrical transformer manufacturing plant.

A 2020 settlement agreement between then-representatives of five Berkshire towns—Great Barrington, Lee, Lenox, Sheffield, and Stockbridge—as well as GE and the Environmental Protection Agency (EPA) provided that those communities would receive a total of $62 million from GE in exchange for not appealing the terms of the order. Out of that settlement, Lee received $25 million, with an Upland Disposal Facility, or toxic-waste repository, to be constructed in its borders housing the less toxic materials dredged from the waterway. However, Bonifaz maintains the 2020 document, long opposed by residents and local government, doesn’t prevent Lee officials from seeking a monetary award from GE and Monsanto for the damages to the town and its residents that include eliminating the use of the river that flows through the town and the negative effects from having a toxic-waste disposal facility within their purview.

Regarding the Lee filing, a Monsanto official responded to The Berkshire Edge at the time that the action “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.” Additionally, the spokesperson stated the agreement that formed the basis of the lawsuit was only between GE and Monsanto.

After the lawsuit was filed and at GE’s request, the case was moved to federal court in April, to the U.S. District Court for the Western District of Massachusetts.

Lee asks court for ruling on GE, Monsanto liability

On May 10, the town asked the court for a Partial Summary Judgment, a ruling on some claims in the case, that Monsanto and GE are liable for the damage done to residents and the environment. This ruling would limit the questions for trial. Bonifaz stated GE never responded to this filing in the time required, by June 8, and is now asking the court for a default by GE on the issue of liability; that is, a clear ruling in favor of Lee on the Summary Judgment. That document can be found here.

“This continues to show GE’s arrogance and disdain for not only the public but also the courts,” Lee Select Board member Bob Jones said in a statement. “They clearly have no interest in what is best for Lee and the river corridor. If this is reflective of how they will follow through on the EPA’s requirements, how can we trust them to implement the cleanup plan properly?”

In its July 1 opposition to the default, GE countered that the move to federal court was made before the company was even served, or formally notified of the lawsuit, and therefore, GE couldn’t be considered a party in the case until it had been served on June 17. At that time, its attorney James Campbell agreed to waive such service. By doing so, statutorily, a defendant is given more time to respond to the lawsuit which, in this case, allegedly gives GE until August 12.

Additionally, GE alleges its service of the Summary Judgment didn’t begin until June 17 when it waived service of the lawsuit, the Complaint summons, so the company isn’t yet in default on its response.

“Fundamentally, what GE did was something that I have never, in my career, ever heard of anybody doing what they did,” Bonifaz said. “They were never served. I was waiting to prepare my Motion for Summary Judgment in the [state] court. Before I served anybody, GE comes running around in a panic and moves the case to federal court which is fine. Once they filed in federal court in April, they accepted the jurisdiction of the federal court. Once they accepted the jurisdiction of the federal court on May 10, I filed a Motion for Summary Judgment, and they have to respond to that.”

Campbell cited Bonifaz for not trying to work things out regarding the Summary Judgment response, with Bonifaz filing a request for a default on the issue anyway.

However, Bonifaz said he discussed with GE’s attorney the schedule and agreed to give the company additional time to respond, to August 6. He said he was later notified that GE would not ever respond to the Summary Judgment request but would file other pleadings instead. Bonifaz said he then filed a default judgment request on the issue on June 20. Defending his filing in an accompanying memorandum, he stated that GE must still respond to the Summary Judgment motion within the 28-day requirement, independent of when GE was served with the Complaint.

GE’s counsel informed the court on July 5 that a Summary Judgment response would be forthcoming by July 8, and Bonifaz agreed.

A GE spokesperson responded to The Berkshire Edge that the company is declining comment due to ongoing litigation.

Monsanto seeks dismissal of all claims made by Lee

In the meantime, on July 3, the Monsanto defendants, through their attorney, Stephen Hanson, opposed the Summary Judgment action and asked the court to dismiss all of Lee’s claims. Hanson clarified the Lee lawsuit as “a case of apparent buyer’s remorse,” with the town now seeking damages from GE and Monsanto Company to compensate it for the disposal facility that is to be created in its midst. Although the town signed onto the 2020 settlement agreement mandating a toxic disposal facility in Lee, as well as the dredging and carrying out of PCB-laden materials through its streets, Lee officials and residents have long decried that agreement as having been made behind closed doors and without their knowledge or approval.

First, Hanson argued the lawsuit could have only been brought within three years of the alleged action which, in this case, was the sale of PCBs to GE and others that occurred before 1977—the lawsuit is simply filed too late. Second, although the Lee lawsuit states the town learned about the agreement between GE and Monsanto in December, he alleged that the allocation of liability agreement, or indemnity, between those parties has nothing to do with the damage Lee incurred. Third, Hanson alleged the town’s remedy has already been negotiated in the 2020 settlement agreement that provided $25 million, with that federal remedy preempting any additional state action. Finally, according to Hanson, Monsanto was not involved in that settlement agreement and can’t be blamed for its terms.

“Normally, this [type of] case would be preempted by CERCLA [Comprehensive Environmental Response, Compensation and Liability Act pertaining to a Federal Superfund cleanup site],” Bonifaz said. “In this case, CERCLA allows the town of Lee to file for damages.”

Although the federal 2020 agreement can’t be changed, the municipality can file for damages due to the potential harm to human life and ecology, he said referring to the lawsuit Complaint.

“I came to win this case,” Bonifaz said. “Between 1972 and 1977, [GE and Monsanto] entered into a criminal conspiracy to damage humans and the environment.”

According to Bonifaz, Monsanto sold 400 million pounds of PCBs to GE. “That’s contamination everywhere, it’s in the Hudson River, it’s in Washington State,” he said of the PCBs.

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