If you have had a chance to read “Monsanto v. GE — Round One” and “Monsanto v. GE – Round Two,” you have hopefully gained a greater understanding of the history of Monsanto, America’s sole producer of polychlorinated biphenyls (PCBs), and the large companies that made fortunes using those PCBs in electrical transformers, capacitors, plasticizers, and adhesives.
As the world slowly woke up to the reality that those so very profitable PCBs were killing our fish and birds, poisoning those who worked with them, and contaminating waterways everywhere, Monsanto tried their best to find replacements while continuing to sell PCBs to some of its largest customers. Ultimately, their legal team developed a strategy to protect the company as best as possible from the cascade of legal actions beginning to swamp them and costing them billions.
I guess you can say that, by the 1970s, General Electric was a PCB junkie; they were making so much money adding Monsanto’s Aroclor PCBs to their proprietary Pyranol, a critical insulating ingredient needed for the electric equipment they sold everywhere. Despite the growing scientific evidence and concern of our regulatory agencies, they needed to keep the supply coming until an alternative emerged. While first refusing Monsanto’s request for what I am guessing Monsanto regarded as an iron-clad contract of indemnification, GE ultimately relented and then signed Monsanto’s “Special Undertaking by Purchasers of Polychlorinated Biphenyls”:
Not surprisingly, Monsanto now seems absolutely furious that the very companies that signed—then continued to make fortunes using their PCBs—have over the past few years found reasons to refuse to honor this contract. And as they make the case in court for shared responsibility and shared liability, that anger has provoked Monsanto to fight back by spilling their mutual secrets.
I want to acknowledge that, in the process of telling this complex story, I sometimes get lost in the legal strategies and the fascinating revelations that are at play here and lose the overwhelming reality of how their mutual extensive irresponsibility has so deeply affected the lives of so many and has delivered an almost lethal blow to our environment.
Monsanto calls them “The Food Chain Cases,” “The Water Cases,” “The School Cases,” and “The Occupational Cases,” and they have, of course, multiple named and unnamed victims. While working on my documentary, “Good Things To Life,” I met countless numbers of people who worked at GE, as they called it, up to their elbows in PCB oil, breathing in toxic fumes, and bringing their oil-soaked clothing home to be washed in the family’s GE washer. More on that later.
Back to court. GE’s legal response was to strategically move Monsanto’s lawsuit from the Missouri state court to the federal court, the United States District Court for the Eastern District of the Missouri Eastern Division, where GE attorneys imagined they would have more influence.
GE writes:
… in the early 1970s, the scientific community, electric industry, and Federal Government began scrutinizing PCBs in response to reports of their bio-persistence and potential resulting health effects … By the early- to mid-1970s, most industrial uses of PCBs ceased. However, PCBs continued to be used, and were even federally mandated, in certain electrical applications, such as transformers and capacitors, until the Environmental Protection Agency (‘EPA’) ultimately banned their use and manufacture in 1979.
GE lists the charges Monsanto has made against it:
Plaintiffs bring five claims for relief against GE, alleging: (1) breach of contract for refusal to defend, (2) breach of contract for refusal to indemnify, (3) declaratory judgment regarding a duty to defend, (4) declaratory judgment regarding a duty to indemnify, and (5) negligence.
GE calls the attention of the court to Exhibit 8 of Plaintiffs’ First Amended Petition which “lists the PCB claims for which Plaintiffs allege they are owed damages due to GE’s breaches and/or negligence.” The first page of this list offers a look at just some of the states, cities, and counties who have sued Monsanto because of the damage caused by PCB contamination: New Hampshire, New Mexico, Pennsylvania, California, Los Angeles, Portland, and the District of Columbia.
GE argues that having filed within 30 days of receiving Monsanto’s First Amended Petition on January 31, 2023, its notice of removal is timely. GE then argues that removal is proper under 28 U.S.C. § 1442(a)(1), which “Allows a Company Acting Under Direction of a Federal Officer to Remove Actions to Federal Court.” GE contends:
[The statute allows the] United States or any agency thereof or any officer (or any person acting under that officer) of the United States’ to remove a case to federal court … Private entities, such as government contractors, ‘fall within the terms of the federal officer removal statute … when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision.’ (Emphasis added.)
Recent filings by Donald Trump in the Mar-a-Lago documents case and the election interference cases in Georgia and Washington, D.C. that argue that ex-presidents can’t face criminal prosecution once he leaves office for his “official acts” have taught me that there is no claim too presumptuous to make to the courts.
So, here is GE’s bold attempt to claim an immunity of sorts in this case:
As a private entity, GE must establish four elements to remove under § 1442(a)(1): ‘(1) [it] has acted under the direction of a federal officer, (2) there was a causal connection between [its] actions and the official authority, (3) [it] has a colorable federal defense to the plaintiff’s claims, and (4) [it] is a ‘person’, within the meaning of the statute.’
GE contends:
In manufacturing the PCB-containing products at issue in this case, GE acted under the ongoing direction, control, and supervision of the Federal Government … As a federal defense contractor, GE sold large quantities of PCB-containing products to numerous agencies of the Federal Government … GE sold PCB-containing transformers and/or capacitors directly to the Department of Defense … Indeed, United States military installations included ‘thousands of electrical transformers and other electric equipment that either contain or are suspected to contain PCBs,’ many of which GE manufactured … In 1970 alone, the General Services Administration, Department of the Interior, United States Army, United States Navy, and other branches of the Federal Government purchased at least 6,750 pounds of Pyranol … (Emphasis added.)
Let me offer some perspective here. GE is trying so hard to ignore the greatest reality of its business. This excerpt from GE’s internal report of its “1972 Task Force on Continuation of PCB Use” reveals how corporate profits dominated its concerns and directed its strategy, not some exaggerated commitment to public service:
And the small quantity of PCBs GE sold to agencies in our government was infinitesimal compared with the extraordinary quantity Monsanto reveals that it sold GE over the years. Here is what Monsanto noted in its opposition to GE’s removal:
On the next page, Monsanto tells us that of the 200 million pounds Monsanto sold GE between 1956 and 1977, “GE purchased 59.9 million pounds of PCBs between 1972 and 1977.” That is 59.9 million pounds versus the 6,750 pounds GE referenced.
GE, however, is clearly committed to arguing that the government was unlike its other customers:
The Federal Government was not just a passive purchaser of PCBs. During the relevant time period of this case, the Federal Government worked hand-in-hand with GE by supervising and controlling GE’s production of PCB-containing products — and for a period of time, required that manufacturers like GE continue to use PCBs in certain applications. (Emphasis added.)
GE explains:
In May 1972, multiple federal agencies, including the Department of Commerce and the Environmental Protection Agency, issued an interdepartmental task force report on PCBs. That report found the continued use of PCBs in the products GE manufactured was ‘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.’
But I would be remiss if I didn’t remind you that GE is cherry-picking their analysis. A close reading of the Task Force’s report includes their important reminder of “a special responsibility for monitoring and controlling their waste.” The Task Force continues:
In this connection, the Environmental Protection Agency will restrict industrial liquid discharges of PCBs from PCB users. To keep levels in fish as low as possible, and in any case below FDA’s interim action level of 5 parts per million, concentrations in rivers or lakes from all sources should not exceed 0.01 parts per billion.
PCBs should be restricted to essential or non-replaceable uses which involve minimal direct human exposure since they can have adverse effects on human health. There currently are no toxicological or ecological data available to indicate that the levels of PCBs currently known to be in the environment constitute a threat to human health, but additional experiments are underway to evaluate the impact of low level, long-term exposure to PCBs.
PCBs have been used so widely over such a long period that they are ubiquitous. Even a total cessation of manufacturing and use of PCBs would not result in the rapid disappearance of the material, and ultimate disappearance from the environment will take many years. The elimination of non-essential uses and prohibition of discharges from essential uses will result in gradual elimination from the environment. (Emphasis added.)
Perhaps overly optimistic, the Task Force credits Monsanto and their customers, along with governmental agencies, for “taking appropriate steps to cut off further introduction of PCBs into the food supply and to reduce the current levels of PCBs as food and environmental contaminants.”
So, yes, it is accurate for GE to claim that, with all those accompanying concerns, the Task Force has nonetheless acknowledged “[t]heir 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.”
But, in reality, those powerful industry voices, including Monsanto and GE, had convinced the Task Force of their sincere desire to solve the increasing PCB exposure problem:
Also, continued use of PCBs in transformers and capacitors presents a minimal risk of environmental contamination. The Monsanto Company, the sole domestic producer, has reported voluntarily eliminating its distribution of PCBs to all except manufacturers of electrical transformers and capacitors.
For its part, GE continued to lie about its track record regarding PCBs. In its summary of the 1972 document, “The Role of Polychlorinated Biphenyls in the Electrical Industry,” GE acted as if it had always been taking great care in its handling of PCBs:
When it came to controlling PCB waste, the Task Force acknowledged their reliance on the good faith efforts of Monsanto and its customers. Conceding that until the Toxic Substances Control Act becomes law, “the Federal Government does not have the legal authority to impose restrictions … [That] although some Federal enforcement authority is available, the Federal Government does not have the authority to control PCBs at their source.’”
In fact, one of Monsanto’s central arguments in their lawsuit is that Magnetek, GE, and others did not successfully monitor and control their PCB waste. Monsanto explains its need for reimbursement and desire to enforce its SUAs precisely because “[m]ultiple lawsuits have been filed against Plaintiffs seeking damages allegedly caused by the release of PCBs into the environment and other exposures to PCBs.”
GE’s negligence when it came to handling and disposing PCBs was frightening. Ed Bates began working at GE Power Transformer in 1952 and worked his way up to manager of tests. His friend Charles Fessenden was supervisor of calculations. They explained to me in 1990 and 1992 how often PCBs were spilled:
[Monsanto’s PCBs] came into the back of Building 12Y, which was one of the Test buildings, and it shipped in 7,000 gallon tank cars rather than 10,000 because of the heavier weight. Pyranol weighs 12.5 pounds a gallon and oil 7.45 pounds per gallon. The 7,000 gallon raw Pyranol as we called it would then be unloaded into holding tanks and there were 50 to 70 foot distances from the bottom of the tank car to the holding tanks [so] that we would use a unloading apparatus for, pipe and so forth, and the remainder would spill on the ground, whatever was left in there.
After it was unloaded it would then be combined with a substance called tintetrylphenol … to prevent arcing, electrical arcing within the Pyranol. And at that stage of the game, it would be combined and then tested and combined and tested until it met the required electrical strength, and at that point it would generally contain about 6 lbs of PCBs in the Pyranol … where it was used to do two things: one, it was used to fill the transformers for test, and then it was also used to fill up and put units on pressure, which would invariably leak and have to be welded and so forth and we’d have it dripping on the floor and, and things like that. If a unit did not pass test, the Pyranol was uh returned into tank cars and uh these were small 500 gallon cars that were mobile, that moved around, but a lot of times you would have a flood or one of the seams would leak or a valve would let go and you would have a spill of maybe a 1,000 or 1,200 gallons of Pyranol, and this would eventually go down to the sump and go out to the river. Well, that doesn’t sound like much but a 1,000 gallons of uh Pyranol was … 6,000 pounds of PCBs, so we were on a daily basis discharging PCBs in the river … this was a continuous process that uh we would in some cases use 35-40,000 gallons of Pyranol a week, other weeks we’d use 10 depending on the types of units … the transformer would have anywhere from 15 to 20,000 pounds of PCBs in it. And if anything happened to it, if there was a failure, we’d have to drain this, all this Pyranol back which would result in spillage and loss …
Bates and Fessenden told me about attending a meeting of MassDEQE in 1990 where the agency told them they had been trying since 1981 to arrive at a consent agreement with GE to clean the Housatonic River. During that time, Bates estimated that “about a million and a half pounds of PCBs have been plowed into that river,” adding, “I imagine a good 30 [percent] is left.”
A few years later, the internal warnings that GE engineer R. Kelly Niederjohn wrote in 1979 and 1981 to top GE officials came to light. Niederjohn wrote:
In the sixties and early seventies General Electric purchased one to two million gallons of 10c Transformer Oil per year which was filtered and dried with dried Filter Press Paper … They also bought and mixed three to four hundred thousand gallons of Pyranol per year. It was purified and dried by filtration through dried Fullers Earth.
Niederjohn reminded them about all their leaks and spills and several of their dumping grounds where they used to bury their barrels filled with this contaminated material.
Niederjohn wrote: “A real thorough study should be made to at least identify where spent Fullers Earth and discarded Pyranol were dumped. If we do not do that now our children and grandchildren will get bit by our neglect.”
Instead, Pittsfield’s children played and still play atop PCB-contaminated material on land that ultimately became the Dorothy Amos Children’s Park, the Allendale Elementary School schoolyard, and the softball complex, and families move unaware through the Stop & Shop complex and Downing Industrial Park. Add the often-flooded Lakewood neighborhood, where many of the GE workers lived. Many of whom were grateful for what GE assured them was clean fill to fill in their front and back yards. And many a porch was built with PCB-oil-soaked wood from the factory floors.
And so I will never forget the meeting held by the Housatonic River Initiative at the Italian-American Club on Newell Street when, one after another, those attendees who had cancer in their households took red pins to stick on the street map of the Lakewood section of Pittsfield.
Not surprisingly, courtesy of the National Institute for Occupational Safety and Health (NIOSH), both Monsanto and GE knew about the link between occupational exposure to PCBs and human cancer. So, while all might be fair as the corporate giants do battle, as always it is the innocent who are the real casualties of war:
Now, all these years later, the community faces the dislocation of massive amounts of contaminated soil and sediments from the Housatonic River and the transportation of this material through local streets onto a gigantic landfill in Lee. Unfortunately, there has never been a proper comprehensive health study of the toll PCBs have taken in Pittsfield or of the people living alongside the Housatonic River. A reputable accounting of the often-unacknowledged damage to human health, the cancers and non-cancers, and the still not completely appreciated deficits due to endocrine disruption and the toll PCBs have taken on learning and mental capacity.
GE conveniently connects specific Monsanto claims to nearby sales to government entities:
Monsanto seeks indemnification for at least three lawsuits related to allegedly contaminated water and other natural resources in the Los Angeles area … In 1970 alone, the Federal Government purchased over 2,000 pounds of GE’s PCB-containing Pyranol for use in the Los Angeles area … In 1971, the United States Marine Corps purchased over 1,000 pounds of Pyranol for use in the Los Angeles area …
Similarly, Monsanto seeks indemnification for City of Oakland v. Monsanto Company, which involved claims that PCBs contaminated the water in Oakland, California and the San Francisco Bay … In 1971 and 1972, the United States Navy purchased thousands of pounds of GE’s PCB-containing Pyranol each year for use in Oakland and San Francisco …
Then, more broadly:
Further, Plaintiffs allege GE negligently allowed ‘PCBs purchased from Old Monsanto . . . to be released into the environment through products manufactured by [GE].’ … In other words, Plaintiffs claim that GE negligently manufactured products containing PCBs, which products then were eventually placed in landfills, releasing PCBs into the environment … Because Plaintiffs’ claims relate to GE’s manufacturing and sale of PCB containing products, a causal connection exists between GE’s actions taken under federal authority and Plaintiffs’ claims …
GE has at least two federal defenses. First, GE has a government contractor defense to Plaintiffs’ negligence claim. GE was acting as a government contractor when it engaged in the actions complained of in this case. Indeed, the Federal Government purchased many of the PCBs at issue in the underlying lawsuits for which Plaintiffs seek indemnity …
Second, federal law preempts Plaintiffs’ negligence claim. As explained above, federal law mandated that GE use PCBs in products it manufactured, and the Federal Government set requirements for GE’s use of PCBs … Because GE could not have complied with these federal requirements and its purported state law tort duty not to manufacture PCB-containing products that Plaintiffs’ claim negligently caused their release into the environment, federal law preempts Plaintiffs’ state-law negligence claim … ([S]tate and federal law conflict where it is ‘impossible for a private party to comply with both state and federal requirements.’ (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) …
Because GE has federal defenses to at least one of Plaintiffs’ claims, GE can remove this entire action. Ruppel v. CBS Corp., 701 F.3d 1176, 1182 (7th Cir. 2012) (‘If [the defendant] has a colorable defense as to either claim, then the entire case is removable.’); Sawyer, 860 F.3d at 257 (‘[R]emoval need not be justified as to all claims asserted in the plaintiffs’ complaint.’)
I have read more legal briefs and court decisions over the past few years than I had in previous decades, and it seems to me that, more than anything, legal briefs are mostly about storytelling. Of course, this most recent Supreme Court wants us to believe that they are faithfully bringing to bear the intentions and desires of the Founders and applying the wisdom of previous courts. But in service of their own beliefs, many of the most recent justices have, in fact, taken great liberties with the language of Constitution to expand the definition of a “militia” to make it easier for ordinary citizens to possess and carry lethal weapons of war, while at the same time they so easily dismiss the precedent of Roe by declaring that the decision-making of previous justices must have been inferior. In the process, they reveal how “originalism” is mostly play dough, and how easy it is for ideologically driven Supreme Court justices to re-interpret the language of the Constitution to justify pretty much anything they believe in.
So, too, GE in its efforts to move the case to federal court creates a history that ignores all that they have done with PCBs prior to the early 1970s, the millions of pounds since 1932 they irresponsibly allowed to leave their factories and contaminate our rivers, to volatilize and spread thousands of miles. They focused their case on the very thin contention that the PCBs at the center of all those lawsuits that cost Monsanto billions, and for which Monsanto seeks reimbursement must have involved PCBs manufactured during the few years when EPA acknowledged the need to continue including them in transformers. Somehow back-dating all the PCBs they had irresponsibly allowed to contaminate the environment with their newly minted EPA stamp of approval.
After GE had acted to “remove” the case from state court to federal court, Monsanto acted to “remand” the case back to state court. In its March 21, 2023 Motion to Remand, Monsanto leveled a one-two punch. First, Monsanto called for dismissal on the basis that GE failed the timeliness test. Then, because it failed that test, suggesting the court need not rule on the question of federal preemption:
Having argued that GE’s removal didn’t actually take place within the necessary 30 days. They then argued that Monsanto had, in the past in three different PCB cases before three different judges, made the same argument for removal as GE, providing us all with just one more extraordinary irony. As Monsanto tells GE: If we can’t pull one over on the court, well then neither can you.
Monsanto reminds the court of these previous judgments. Monsanto argues:
In Bailey, the court found that Monsanto’s evidence satisfied the ‘acting under’ requirement ‘with respect to the PCBs that Old Monsanto sold directly to the government, or to others at the direction of the government,’ but did not meet the ‘causal connection requirement’ because the amount of PCBs Monsanto sold to the government ‘is simply too small to satisfy the requirement that there be a causal connection between the conduct that was taken under federal authority and Plaintiff’s claims … The court also found that Monsanto had ‘not maintained that the [PCB] manufacturing process itself was in any way supervised or controlled by the government.’
Monsanto continues:
The Court should apply the same standard for federal officer removal to GE that it did to Monsanto in Bailey, Kelly, and Burford. For example, like Monsanto, GE relies on the Interdepartmental Task Force Report … various codes, standards, and regulations (e.g., the National Electric Code) that required or encouraged use of PCBs and PCB-containing equipment in many applications … and generic government procurement specifications concerning the purchase of PCBs and materials containing PCBs (id., ¶ 32) to try to satisfy the ‘acted under’ element. The court in Burford found such evidence fails to demonstrate ‘that the government supervised or controlled the [PCB] manufacturing process,’ ‘that Pharmacia [Old Monsanto] produced the PCBs to the government’s detailed specifications,’ or ‘that the government compelled Pharmacia [Old Monsanto] to produce PCBs under threat of criminal sanction.’ …
If the evidence cited by GE is insufficient for this Court to find sufficient government control over the manufacture and sale of PCBs by Monsanto, it should not be deemed sufficient to establish that GE ‘acted under’ a federal officer when it sold PCBs manufactured by Monsanto or PCB-containing equipment (especially when GE has failed to provide any proof of direct government sales … The Kelly, Bailey, and Burford decisions hold that Monsanto’s sales to the federal government were de minimis and therefore ‘simply too small to satisfy the requirement that there be a causal connection between the conduct that was taken under federal authority and Plaintiffs’ claims.’
There is nothing like being shopped to the authorities by your former supplier, who failed using the same excuses on which you are now relying. Monsanto offers one last salvo:
GE relies on less evidence than Monsanto did to meet the ‘acted under’ and ‘causal connection’ elements for federal officer removal. Accordingly, to the extent the Court finds GE’s removal timely (it is not), the Court should apply the same reasoning and analysis used in Kelly, Bailey, and Burford and remand this case back to the Circuit Court of St. Louis County … For the foregoing reasons, Plaintiffs Monsanto Company, Pharmacia, LLC, and Solutia, Inc. respectfully request that the Court grant their Motion to Remand and remand this case back to the Circuit Court of St. Louis County, Missouri.
On February 6, 2024, Federal Judge Henry Edward Autrey issued his Opinion, Memorandum and Order in response to GE’s motion.
While GE and Monsanto had engaged in extended arguments about timeliness and argued about the amount of time they had spent in discussion about when exactly GE might respond to Monsanto’s pleading, Judge Autrey was hardly interested in what they might have said to each other but was concerned only about the actual delivery date and GE’s legal responsibility:
Regardless of the parties’ interpretation as to what was intended, January 31, 2023 is not the salient date for removal purposes. Defendants have not provided any authority supporting their assertion that compliance with the 30-day deadlines in § 1446(b)(1) is discretionary and subject to agreement among the parties. (Highlighting added.)
In his conclusion, Judge Autrey wrote:
Based on the foregoing analysis, the Court concludes Defendant’s removal was untimely under 28 U.S.,C. § 1446(b)(1). Plaintiffs’ Motion to Remand must therefore be granted.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand [Doc. No. 52] is GRANTED. IT IS FURTHER ORDERED that this motion is remanded to the Circuit Court for the County of St. Louis, Missouri. Dated this 6th day of February, 2024.
And so it is that Monsanto and GE will have to argue the merits of this case in the state court in Missouri. Does GE have a legal obligation to indemnify and reimburse Monsanto for what it has spent and may well have to spend in the future to settle its PCB cases?
Somehow, all wars expand beyond the initial parties, and sooner or later engulf the others. Next time, a look at some of the collateral damage.
