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THE OTHER SIDE: Lee and the PCB conspiracy

The townspeople of Lee, with the help of attorney Cristobal Bonifaz, have prepared a ground-breaking lawsuit alleging a civil and criminal conspiracy by General Electric (GE) and Monsanto to harm humans and the environment.

Lately, I have been focusing on conspiracies. Let’s do this geographically and start in Florida with the classified-documents case that Judge Aileen Cannon seems determined to delay forever. Jack Smith’s June 8, 2023 indictment in United States v. Donald J. Trump and Waltine Nauta outlines some of the important elements:

United States v. Donald J. Trump and Waltine Nauta. Highlighting added.

Then, there is the Georgia election-interference case against former President Donald J. Trump and 14 of his allies. Here are just some of the conspiracy charges Donald Trump is facing there:

Excerpt from the State of Georgia v. Donald John Trump, et al. Highlighting added.

Up to Washington, D.C. where Jack Smith’s indictment, United States of America v. Donald Trump, is on hold until the Supreme Court resolves Donald Trump’s claim of presidential immunity:

United States of America v. Donald Trump. Highlighting added.

And, of course, in New York City, the jury charged Donald Trump and David Pecker guilty for engaging in a conspiracy to influence the presidential election of 2016.

Even closer to home, the townspeople of Lee, with the help of attorney Cristobal Bonifaz, have prepared a ground-breaking lawsuit alleging a civil and criminal conspiracy by General Electric (GE) and Monsanto to harm humans and the environment. What follows are excerpts from Plaintiff’s First Amended Complaint lodged in Berkshire County Superior Court in Pittsfield:

FIRST CAUSE OF ACTION
CIVIL CONSPIRACY BETWEEN GE AND MONSANTO
TO HARM HUMANS AND THE ENVIRONMENT

The Town of Lee incorporates by reference as if fully stated each allegation contained above. Defendants Monsanto and General Electric entered into a fully documented civil conspiracy on January 31, 1972 to continue selling the PCBs manufactured by Monsanto and purchased by GE in spite of the fact that Defendants agreed in writing that these sales and purchases harm humans and the environment.

The civil conspiracy contract between Monsanto and GE meets the common law standard in Massachusetts of civil conspiracy law:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he a) does a tortious act in concert with the other or pursuant to common design with him, or b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.

There is no question that GE and Monsanto had a common design in entering into the 1971 agreement, and both knew unequivocally that their actions constituted a breach of duty to all impacted third parties, such as the Town of Lee acting as parens patriae for the residents of Lee.

For these reasons, the Town of Lee is seeking an award of compensatory and punitive damages at trial.

SECOND CAUSE OF ACTION
CRIMINAL CONSPIRACY BETWEEN GE AND MONSANTO
TO HARM HUMANS AND THE ENVIROMENT

The Town of Lee incorporates by reference as if fully stated each allegation contained above.

Defendants Monsanto and General Electric entered into a fully documented criminal conspiracy on January 31, 1972 to continue selling the PCBs manufactured by Monsanto and purchased by GE in spite of the fact that Defendants agreed in writing that these sales and purchases harm humans and the environment.

The criminal conspiracy between Monsanto and GE meets the common law standard in Massachusetts for criminal conspiracy in Massachusetts in that ‘(1) a conspiracy existed, (2) the defendant had knowledge of the conspiracy, and (3) the defendant knowingly and voluntarily participated in the conspiracy.’

For these reasons The Town of Lee is seeking an award of compensatory and punitive damages from both defendants at trial. (Emphasis added.)

I say groundbreaking because up to now most lawsuits brought against GE and Monsanto have been brought by employees and/or their families who have suffered adverse health effects or died from their exposure to PCBs, and/or brought by communities whose natural resources have been damaged. They were not focused on what Lee claims is a clear conspiracy between Monsanto, the producer, and GE, the user, to knowingly allow a product they knew to be toxic to harm people and the environment.

Towns like Lee have been severely limited in their efforts to oppose cleanup decisions made by the United States Environmental Protection Agency (EPA) by prevailing opinions of the courts. Because, for example, the PCB cleanup of the Housatonic River is being conducted under the terms of federal Superfund law—the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980—courts have ruled that all attempts at local actions taken by zoning boards, health boards, etc. would circumvent the EPA’s judgment and authority. Communities have been told that federal law preempts their local attempts to regulate hazardous waste on a community-wide basis, told that their local actions are superseded by the primacy of the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Lee has been prompted to take this action because of their great concern with what they perceive to be the significant limitations of the recent 2020 EPA cleanup plan: the decision to leave substantial amounts of PCB contamination in the river, and, of course, the EPA’s decision to allow GE to construct the mountain-like PCB dump, the Upland Disposal Facility (UDF), on geologically suspect land within their borders.

GE and the EPA’s rendering of the planned Upland Disposal Facility in Lee.

Lee’s Corrective Memorandum of May 9, 2024 addresses the issues of federal control:

Other federal courts have held that CERCLA preempts municipal ordinances that ban the management of hazardous waste in a manner that conflicts with a selected CERCLA remedy, similar to a potential ban of the Upland Disposal Facility (UDF). In City & County of Denver, the Tenth Circuit ruled that CERCLA preempted a municipal zoning ordinance that prohibited the maintenance of hazardous waste in industrially zoned areas. (100 F.3d at 1512) (‘A zoning ordinance which bars the maintenance of hazardous waste dramatically restricts the range of options available to the EPA … [and] would prevent a permanent on-site remedy.’)

Accordingly, CERCLA preempts any action that the Town of Lee might wish to take to impede in any way construction of the dump or the partial cleanup of the River as specified in CERCLA ORDER 2020. Federal preemption, however, does not apply for any action including the one delineated in this complaint in which the Town of Lee is seeking damages for harms to humans and the environment caused by a criminal and/or civil conspiracy of Defendants. In N.J. Dept. of Envtl. Prot. v. MN Mining & Manufacturing Co. 3007 U.S. Dist LEXIS 49613 the court offers a lengthy analysts [sic] as to why a Plaintiff’s claim for damages filed under state or common law against a Defendant currently remediating a polluted site under CERCLA is not preempted from having her claims adjudicated by state or federal courts. Quoting directly from District Court Judge Noel L. Hillman. U.S.D.J.

As was discussed by Judge Brown in Occidental, Congress did not intend for state claims arising out of a contaminated site operating under a CERCLA remediation plan to be completely preempted by CERLCA. Occidental, 2006 U.S. Dist. LEXIS 71245, 2006 WL 2806231, at *8; see also New Jersey Dep’t of Environmental Protection v. Exxon Mobil Corp., 393 N.J. Super. 388, 923 A.2d 345, 359 (N.J. Super. Ct. App. Div. 2007) (finding a clear legislative recognition of the NJDEP’s ‘authority to seek compensation not just for physical [*17] injury to natural resources, but also for the loss of the benefits they provide’). ‘If Congress intends a preemption instruction completely to displace ordinarily applicable state law, and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear.’ Empire, 126 S. Ct. at 2135. … Plaintiffs are appropriately seeking damages pursuant to state law as contemplated by Congress when it enacted CERCLA. Plaintiffs have not directly challenged the CERCLA remediation, and the interpretation of CERCLA is not essential to Plaintiffs’ claims. As such, Plaintiffs’ Complaint does not raise a substantial federal question on its face, and Defendants have not demonstrated that CERCLA completely preempts Plaintiffs’ state law claims. Based on these findings, and in consideration that section 1441 is to be strictly construed against removal, it is apparent that this Court lacks subject matter jurisdiction over Plaintiffs’ Complaint, and it must therefore be remanded to state court. An appropriate Order will be entered. 2007 U.S. Dist. LEXIS 49613, *19

Let me repeat Lee’s central claim:

Federal preemption, however, does not apply for any action including the one delineated in this complaint in which the Town of Lee is seeking damages for harms to humans and the environment caused by a criminal and/or civil conspiracy of Defendants. (Emphasis added.)

To make a point about the real-world ramifications of the Monsanto/GE conspiracy, Lee reminds the court that the EPA and DEP and other agencies invoked the provisions of CERCLA (42 U.S.C. § 9607(f)(2)) to exact a monetary award from GE for damages to the natural resources contaminated by PCBs:

CERCLA empowers public trustees to recover damages exceeding those traditionally recovered at common law. Barry Breen 14 Envlt. L. Rep (Envlt. L. Inst.) 10, 304, 10, 307(1984; Woodward and Hope, Harvy. Env. L. Rev. 189, 190 (1990) quoting Senator Baucus ‘… Trustees must value the option to use those market and premarket methods of evaluation that in the trustee’s judgment most accurately evaluate injury to natural resources and compensate the public for its losses’. CERCLA contains a limitation of fifty million dollars for natural resource damages. This limitation does not apply when (a) the release resulted from willful misconduct or willful negligence within the privity of knowledge of the responsible party. (42 U.S.C. § 9601(c)(2)).

The United States Federal Court approved in 2000 a Consent Decree (‘CD’) allowing EPA to seek from GE Response Costs to remove PCBs from the Housatonic River. (DJ-26, MFs-2, 3, and 4). The CD contains an appointment for a trustee to recover natural resource damages. The Trustee negotiated with GE to receive 15 million dollars for natural resource damages for all the impacted cities and towns in Western Massachusetts and Connecticut. (DJ-26 pgs. 257-278).

But as Lee importantly explains:

The Court, the Trustee, EPA, The Commonwealth of Massachusetts and the State of Connecticut were never made aware by Monsanto and GE that given the forever chemical character of PCBs (MFs-43 to 63), it will become impossible to remove all PCBs from the River (MFs-81 to 87). Monsanto learned in 1968 that PCBs dumped into Rivers do not flow with water currents but became imbedded in the sediment of Rivers. Monsanto and GE failed to communicate this knowledge to all CD signatories of the 2000 CR. … GE never made the CD signatories of the CD in 2000 aware that GE dumped PCBs into the River between 1972 and 1977 under a criminal and/or civil conspiracy entered into between GE and Monsanto in 1972 …

And clearly, as they negotiated with GE, the agencies were never fully cognizant of this critical reality: the “willful misconduct or willful negligence within the privity of knowledge of the responsible party.” (Emphasis added.)

Lee’s argument here is critical. I have previously addressed some of these issues in “Monsanto v. General Electric — Round One,” “Monsanto v. General Electric — Round Two,” “Monsanto v. General Electric — Round Three,” and “Little Lee v. General Electric and Monsanto — Round Four.” In addition, Leslee Bassman provides some important information about Lee’s efforts to learn more about what happened during the secret negotiations that resulted in the decision to site the UDF in Lee rather than other river communities. Bassman includes this link to the email exchange between Patrick White and Thomas Matuszko. It is clear that the Rest of River Municipal Committee had/has no interest in transparency or accountability.

Lee emphasizes that critical information—not known prior to the EPA’s major cleanup decisions—only emerged recently in a flurry of lawsuits between Monsanto and some of its major customers. Corporations like Monsanto and GE were constantly burying information about the increasingly obvious public-health dangers of the chemicals they were relying on. For the most part, they were, at best, able to hide and, at worst, minimize the dangers posed by exposure to PCBs from contact and inhalation. But over the years, especially beginning in the 1960s, scientists and independent researchers like Rachel Carson in the U.S. and Sören Jenson in Sweden were observing and writing about the severe effects of these chemicals on wildlife. And it was becoming more and more impossible to explain away their findings and hide the truth about PCBs.

Monsanto experienced this reality first hand when it learned that even a minor PCB spill from its factory spread from the Escambia River through the bay, contaminating sediment, then disastrously making its way through the food chain. Scientists at the Bureau of Commercial Fisheries Center for Estuarine and Menhaden Research at Gulf Breeze, Florida reported:

Toxicity and distribution of Aroclor 1254 in the pink shrimp Penaeus duorarum. Highlighting added.

This report highlighted two important developments: first, acknowledging the variety of species negatively affected, and second, acknowledging the new-found reality that Monsanto’s PCBs, rather than being swept out of the Escambia River, had instead attached themselves to sediments and contaminated nearby wildlife. The report explains:

We first detected residues of Aroclor 1254 in oysters in April 1969 at a newly established pesticide monitoring station in Escambia Bay. Subsequent sampling in this area showed residues of the chemical in water, sediment, fish, blue crabs, and shrimp … The Aroclor reportedly entered the plant’s effluent through acci¬dental leakage of a heat-exchange fluid.

Evidently, Aroclor 1254 moved from the water of Escambia River to biota and sediment in the Bay and contiguous waters … Oysters are excellent indicators of the presence of the Aroclor in the environment and reflect, in general, the amount of the chemical in the water … Fish, shrimp, and crabs contained higher concentrations of the chemical than oysters but because of their mobility they are not as useful as monitors for a particular area … Continued presence of the chemical in river water presumably is a result of leaching from sediments. Aroclor residues in sediment samples taken near the outfall reached 486 ppm in August but have decreased since that time.

Importantly, Monsanto could no longer claim deniability. There was now clear evidence of the significant damage to wildlife caused by even minor leakage. You can imagine the implications for Monsanto’s customers like GE, who since the 1930s allowed its PCBs to spill from factory floors, without any collection system, down the drains of its Pittsfield and Hudson Falls, N.Y. factories into the bordering Silver Lake, the Housatonic River, and the Hudson River.

Monsanto immediately scrambled to address the increased scrutiny of the scientific community, the public, and many of its customers. In December 6, 1971, Monsanto conducted a legal review of its vulnerabilities:

Monsanto’s PCB Legal Review, December 6, 1971, Confidential Legal Opinion. Highlighting added.

Monsanto now had to acknowledge the grave danger the company faced as the reality of how very toxic the PCBs they had manufactured became undeniably apparent. And the company was more and more concerned that those who were damaged would take to the courts to sue them.

Lee, in its Corrected Memorandum, provides the following timeline that resulted from this realization:

Monsanto ceased manufacturing PCBs for many of its applications in 1970 and notified all its plasticizer customers …

On or about February 18, 1970, Monsanto notified all its electrical customers that PCBs tended to leak from electrical devises …

In March of 1970, GE conducted an internal review and strongly urged Monsanto to continue to manufacture PCBs …

In September of 1971, the US Government convened a task force to ‘strengthen the government ability to protect the public from potential hazards of PCBs’ …

Let me add some details to this summary. In January 1970, Monsanto discussed the need to revise its PCB strategy, speculating on what its largest customer GE might do:

Monsanto January 21–22, 1970 “Meeting to Discuss PCB Problem.” Highlighting added.

Monsanto quickly shifted to guarantee that its customers would share their legal and financial burden. Monsanto understood that some of its largest customers, like GE, were dependent on an uninterrupted supply of PCBs to ensure continued production of its remarkably profitable electrical equipment. And so Monsanto developed its “Special Undertaking By Purchasers of Polychlorinated Biphenyls” (SUA). And the company was fairly confident that GE and other customers would likely sign their SUA contract:

Monsanto’s January 21, 1972 Special Undertaking By Purchasers of Polychlorinated Biphenyls. Highlighting added.

This contract forced Monsanto’s customers to acknowledge that “PCBs tend to persist in the environment” and that, therefore, “care is required in their handling, possession, use and disposition.” Customers, in exchange for additional Monsanto PCB product, had to agree “to such undertakings with respect to sales and/or deliveries of PCBs by Monsanto to Buyer.” Then, as a result, “Buyer shall defend, indemnify and hold harmless Monsanto … from and against any and all liabilities, claims, damages, penalties, actions, suits, losses, costs and expenses arising out of or in connection with the receipt, purchase, possession, handling, use, sale or disposition of such PCBs …”

And while GE initially balked on acknowledging this responsibility, it didn’t take long for GE to recognize that without a viable alternative to Monsanto’s Aroclors in the short run, it made most sense to sign the SUA. From the moment GE signed this contract, they joined Monsanto as mutually liable.

Monsanto First Amended Petition against Magnetek Inc., General Electric Co. Highlighting added.

This history and the willingness of Monsanto to continue to manufacture PCBs, coupled with GE’s willingness to continue to use PCBs in the face of the now irrefutable evidence of the great harm they cause, is at the center of Lee’s claim:

Finally on January 31, 1972, Monsanto fully aware that PCBs were harmful to humans and the environment … entered into a criminal and or civil conspiracy with GE to continue selling PCBs to GE provided GE indemnify Monsanto for any damages to humans and the environment caused by the PCBs it purchased from Monsanto after January 31, 1972 … (Emphasis added.)

Lee notes that, finally, “Monsanto halted all sales of PCBs in 1977 for all uses shortly after EPA Report DJ-38 was published by the United States in 1976 …”

But, unfortunately for the Housatonic River and the people of Berkshire County, even after Monsanto and GE knew for certain their PCBs were irredeemably toxic: “Monsanto sold GE 60 million pounds of PCBs in the six years between 1972 and 1977 or 10 million pounds per year …”

Monsanto First Amended Petition against Magnetek Inc., General Electric Co. Highlighting added.

And you can add this toxic burden to the reality that “Monsanto sold GE 200 million pounds of PCBs in the twenty years between 1956 and 1977 or 10 million pounds per year …”

One more indication that both parties were aware of the consequences of their actions:

Monsanto First Amended Petition against Magnetek Inc., General Electric Co. Highlighting added.

Donald Trump has just learned as he watched his former attorney, Michael Cohen; his former assistant, Hope Hicks; and friend and helpmate extraordinaire David Pecker, former owner of the National Enquirer, testify under oath as to the actual doings of the effort to influence the 2016 election, even conspiracies break apart under pressure. They, it turned out, were responsible for his conviction on all felony counts of falsifying business records.

Once GE and other customers of Monsanto failed to honor their SUA agreements, and Monsanto’s legal losses approached the billions, all bets were off. Monsanto quickly implicated GE and claimed that GE knowingly contaminated the environment.

Consider the great irony that, in its March 21, 2023 First Amended Petition, Monsanto succinctly makes the case that GE knowingly contaminated the environment:

Monsanto First Amended Petition against Magnetek Inc., General Electric Co. Highlighting added.

Monsanto wrote:

General Electric and its products have been a major source of environmental PCB contamination and have released PCBs purchased both before and after January 1972 into the environment … General Electric also caused significant PCB contamination of the Hudson River, now one of the largest Superfund sites in the United States. According to the EPA, ‘[d]uring an approximate 30-year period ending in 1977, manufacturing processes at two GE facilities, one in Fort Edwards, New York, and the other in Hudson Falls, New York, used [PCBs] in the manufacture of electrical capacitors. PCBs from both facilities were discharged into the Hudson River.’ … The EPA estimates that General Electric discharged approximately 1.3 million pounds of PCBs into the Hudson River from two General Electric capacitor manufacturing plants located in the towns of Fort Edwards and Hudson Falls, New York …

From 1932 to 1977, General Electric manufactured and serviced electrical transformers containing PCBs at its Pittsfield, Massachusetts facility. The EPA has determined that years of General Electric’s use and disposal of PCBs at this facility caused extensive contamination around Pittsfield, Massachusetts as well as down the entire length of the Housatonic River.

It is important to remember that GE’s Fort Edwards and Hudson Falls facilities were only established after GE transferred some of its capacitor business from Pittsfield.

Which brings us back to this:

Plaintiff’s Corrected Amendment, May 9, 2024. Highlighting added.

Clearly, Lee believes that the joint agreement to sign the SUA offers evidence that both parties were aware of the harm posed by PCBs, yet nevertheless joined together in criminal conduct that was clearly a breach of their duty to customers, to people, and the environment.

Plaintiff’s Corrected Amendment, May 9, 2024. Highlighting added.

As always, the question is: What does all this mean for us? I will let Lee speak for itself in its Plaintiff’s Complaint for Intentional Infliction of Harm to Humans and the Environment, Compensatory, and Punitive damages:

The tort of intentional infliction of harm encapsulates a basic moral principle – that if you injure someone intentionally and without just cause or excuse, then you should be liable for the commission of a tort—in addition to any crime you might commit.

Defendant Monsanto … manufactured or marketed a toxic product (polychlorinated biphenyls or PCBs) from the 1930s to the late 1970s.The toxic product was sold to defendant General Electric “GE” for use in transformers.

Defendant GE profited from this product and discarded hundreds of thousands of pounds of no longer usable product into the Housatonic River in full expectation that the waste product will be carried by the River to the Atlantic.

In 1968 Monsanto discovered that the product would never be carried by rivers to the Atlantic but instead will become permanently imbedded in the sediments of rivers harming humans and the environment.

The toxicity of the product to humans and the environment became known word-wide by the 1960s and Monsanto decided to remove from the market the portion of the product sold as plasticizer.

Monsanto continued marketing the most profitable use of the product to GE with a critical caveat.

Monsanto told GE unequivocally that the product will harm humans and the environment and that GE could continue buying the toxic product only if it agreed to reimburse Monsanto for any claims filed against Monsanto:

‘… without implied limitation, any contamination of or adverse effects on humans, marine and wildlife, food, animal feed or the environment by reason of such PCBs.’

GE continued buying the product from Monsanto after execution of the agreement and continued to dump waste product into the flowing waters of the Housatonic River.

The actions of Monsanto in not removing the product from the marked (sic) when it became a certainty the product will harm humans and the environment, and the actions of GE in continuing to profit from use [of] the product even [if] it caused harm to humans and the environment was an intentional act that could not be justified in any society. Intentional harm to humans is a crime whether or not prosecutors decide to prosecute or not to prosecute the actors of the intentional harm.

Earning money is not a justification for harming humans and the environment whether a governmental agency approves or disapproves of the action that causes the damages.

GE continuing use of the toxic product created a catastrophe to the Town of Lee and its residents for which both GE and Monsanto are responsible.

Lee is doing everything it can to counter this catastrophe.

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