Lee — With procedural efforts to derail a March 13 lawsuit brought by Lee rising, the federal court that is home to the case has been inundated by a flurry of paperwork filed by defendants seeking a quick end to the matter and the town’s allegations of an improper relationship between two multinational corporations as damaging its environment and residents’ health and quality of life.
Monsanto statement in support of dismissing the lawsuit
In response to The Berkshire Edge’s July 5 article covering a request by defendant Monsanto Company—and its later corporate spin-offs Solutia Inc. and Pharmacia LLC (Monsanto)—to dismiss a lawsuit filed by the town of Lee alleging an illegal agreement existed between those entities and General Electric Company (GE) that caused harm to the municipality, Monsanto provided a statement explaining its position.
“The case should be dismissed in its entirety for several reasons, including that there is no legal basis for imposing civil liability on Monsanto for the conduct of General Electric and other parties in connection with the disposal facility [which] those parties—not Monsanto—agreed to create,” a Monsanto spokesperson stated in a July 8 email. “Moreover, claims against Monsanto are time-barred and preempted by federal law, and the foundational claim in the case, ‘intentional infliction of harm,’ is not recognized under the state’s civil law.”
The statement offers that Monsanto stopped producing polychlorinated biphenyls (PCBs) about 50 years ago, “conducted hundreds of studies on PCB safety, and provided appropriate warnings to its customers based on the state-of-the-art science at the time.”
The action stems from GE depositing the now-banned chemicals made by Monsanto into the Housatonic River for decades following its use in the manufacture of transformers at the company’s Pittsfield plant. A 2020 consent decree—or federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) permit—provided that GE would make payments tallying $62 million to five towns affected by its actions, including Lee, and created a remediation plan so the most toxic of the dredged PCB materials from the waterway would be sent out of the area, with the least toxic sediment deposited in a to-be-constructed Upland Disposal Facility (UDF), or landfill, in Lee. Lee residents and officials have long decried this process as being made without their consent and behind closed doors.
In March, Lee attorney Cristobal Bonifaz filed a lawsuit in state court naming GE, Monsanto, and the latter’s corporate iterations as defendants. The filing alleged the illegal existence of a 1972 contract between the parties in which GE consented to indemnify, or not hold Monsanto liable for, any fallout from the sale of its PCBs to GE even though its officials knew of the dangers the chemicals posed to humans and the environment. That case has since been removed to the U.S. District Court in Springfield.
“We fully expected that Monsanto and the two other companies would immediately ask for a dismissal,” Lee Select Board member Robert “Bob” Jones said in an email statement. “While they argue that ‘intentional infliction of harm’ is not recognized under state law, they don’t argue that, in fact, there was ‘intentional infliction of harm.’ This is the kind of challenge we are facing. In addition, this lawsuit is completely separate from the CERCLA permit that includes a toxic waste dump in the town of Lee.”
Bonifaz maintains the 2020 CERCLA document 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.
GE responds to Lee request for Summary Judgment (ruling on certain facts of case)
Following the town of Lee’s May 10 request that the court grant a ruling on some claims in the case regarding the alleged clear liability of Monsanto and GE (Partial Summary Judgment), GE didn’t respond to the request in the time allotted by federal court, with Bonifaz then seeking a default on the judgment. On July 8, GE filed its delayed response, asking for a schedule of hearings on the procedural motions regarding the lawsuit and summary judgment request.
GE’s response can be seen here.
The company also stated it would, as Monsanto did, ask for a dismissal of the lawsuit and requested that dismissal be ruled on first so that if the dismissal is granted, the other requests, including the summary judgment, are moot. As an alternative to that schedule, GE asked that Lee’s summary judgment request be stricken due to an alleged lack of evidence and procedural errors made by the town in the filing: not entering the proper court information; authenticating its supporting documents, proving that the exhibits are genuine; using legally inadmissible evidence; and not referencing specific pages within an exhibit to support its statements.
GE’s memorandum of law can be found here.
Finally, GE clarified that its correct nomenclature isn’t General Electric Corporation as styled in the pleadings but GE Aerospace, the name under which it is currently operating.
