Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 1 of 22 Page ID #:1
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`OFFICE OF THE CITY ATTORNEY
`City of Long Beach
`Charles Parkin, City Attorney (SBN 159162)
`Charles.Parkin@longbeach.gov
`Amy Webber, Deputy City Attorney (SBN 132174)
`Amy.Webber@longbeach.gov
`Dawn McIntosh, Deputy City Attorney (SBN 162173)
`Dawn.McIntosh@longbeach.gov
`333 W. Ocean Blvd, 11th Floor
`Long Beach, CA 90802
`Telephone: (562) 570-2200
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`GOMEZ TRIAL ATTORNEYS
`John H. Gomez (SBN 171485)
`john@gomeztrialattorneys.com
`John P. Fiske (SBN 249256)
`fiske@gomeztrialattorneys.com
`655 W. Broadway, #1700
`San Diego, CA 92101
`Telephone: (619) 237-3490
`
`BARON & BUDD, P.C.
`Scott Summy (pending Pro Hac Vice, Texas Bar No. 19507500)
`SSummy@baronbudd.com
`Carla Burke (pending Pro Hac Vice, Texas Bar No. 24012490)
`cburkepickrel@baronbudd.com
`Celeste Evangelisti (SBN 225232)
`cevangelisti@baronbudd.com
`3102 Oak Lawn Ave, #1100
`Dallas, TX 75219
`Telephone: (214) 521-3605
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
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`CITY OF LONG BEACH, a municipal
`corporation;
` Plaintiff,
`v.
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`MONSANTO COMPANY,
`SOLUTIA INC., and
`PHARMACIA CORPORATION, and
`DOES 1 through 100,
` Defendants.
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`CASE NO. ___________________
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`PLAINTIFFS’ ORIGINAL
`COMPLAINT
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`GOMEZ
`TRIAL ATTORNEYS
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`

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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 2 of 22 Page ID #:2
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`I.
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`1.
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`INTRODUCTION
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`Polychlorinated biphenyls (or “PCBs”) are man-made chemical compounds
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`that have become notorious as global environmental contaminants — found in bays,
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`oceans, rivers, streams, soil, and air. As a result, PCBs have been detected in the tissues
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`of all living beings on earth including all forms of marine life, various animals and
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`birds, plants and trees, and humans.
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`2.
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`The extent of PCB contamination is troubling because PCBs cause a
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`variety of adverse health effects. In humans, PCB exposure is associated with cancer as
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`well as serious non-cancer health effects, including effects on the immune system,
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`reproductive system, nervous system, endocrine system and other health effects. In
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`addition, PCBs destroy populations of fish, birds, and other animal life.
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`3. Monsanto Company was the sole manufacturer of PCBs in the United
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`States from 1935 to 1979, and trademarked the name “Aroclor” for certain PCB
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`compounds. Although Monsanto knew for decades that PCBs were toxic and knew that
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`they were widely contaminating all natural resources and living organisms, Monsanto
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`concealed these facts and continued producing PCBs until Congress enacted the Toxic
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`Substances Control Act (“TSCA”), which banned the manufacture and most uses of
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`PCBs as of January 1, 1979.
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`4.
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`U.S. EPA (2000b) has classified PCBs as ‘probable human carcinogens.’
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`Studies have suggested that PCBs may play a role in inducing breast cancer. Studies
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`have also linked PCBs to increased risk for several other cancers including liver, biliary
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`tract, gall bladder, gastrointestinal tract, pancreas, melanoma, and non-Hodgkin’s
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`lymphoma. PCBs may also cause non-carcinogenic effects, including reproductive
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`effects and developmental effects (primarily to the nervous system). PCBs tend to
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`accumulate in the human body in the liver, adipose tissue (fat), skin, and breast milk.
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`PCBs have also been found in human plasma, follicular fluid, and sperm fluid. Fetuses
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`may be exposed to PCBs in utero, and babies may be exposed to PCBs during
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`GOMEZ
`TRIAL ATTORNEYS
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`breastfeeding. According to U.S. EPA (2000b), ‘[s]ome human studies have also
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 3 of 22 Page ID #:3
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`suggested that PCB exposure may cause adverse effects in children and developing
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`fetuses while other studies have not shown effects. Reported effects include lower IQ
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`scores, low birth weight, and lower behavior assessment scores.
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`5.
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`PCBs have traveled into many Long Beach Waters by a variety of ways.
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`PCBs were used in many industrial and commercial applications such as paint, caulking,
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`transformers, capacitors, coolants, hydraulic fluids, plasticizers, sealants, inks,
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`lubricants, and other uses. PCBs regularly leach, leak, off-gas, and escape their
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`intended applications, causing runoff during naturally occurring storm and rain events,
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`after being released into the environment. The runoff originates from multiple sources
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`and industries and enters Long Beach Waters with stormwater and other runoff.
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`6.
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`The natural fate and transport of PCBs result in the gathering and collection
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`in stormwater through no fault of the City of Long Beach, which lawfully discharges
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`water into many bodies of water through an NPDES permit.
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`7. Many watersheds, lakes, rivers, streams, creeks, bays, ports, harbors, and
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`other bodies of water are contaminated with PCBs, which have been detected in water,
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`sediment, fish, and wildlife. These water bodies include but are not limited to the
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`following (“Long Beach Waters”):
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`a. The Port of Long Beach
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`b. Colorado Lagoon
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`c. Dominguez Watershed
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`8.
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`The U.S. Environmental Protection Agency (“U.S. EPA”) has approved
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`several PCB Total Maximum Daily Load (“TMDL”) for Long Beach Waters.
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`A Total Maximum Daily Load, or TMDL, is a calculation of the maximum
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`amount of pollutant that an impaired body of water can receive and still safely meet
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`water quality standards.1
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` United States Environmental Protection Agency,
`www.water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/
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`TRIAL ATTORNEYS
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 4 of 22 Page ID #:4
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`Long Beach Waters are impaired due to the presence of PCBs.
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`TMDLs are intended to achieve protection of the commercial sport fishing
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`beneficial use and to the extent that other beneficial uses are affected by PCBs, the
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`TMDLs are also intended to ensure protection of other beneficial uses, specifically,
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`preservation of wildlife, rare and endangered species, and habitat.2
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`Long Beach Waters TMDLs are expressed as water column targets,
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`sediment targets, fish tissue targets, and/or stormwater wasteload allocations.
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`Plaintiff CITY OF LONG BEACH hereby alleges, upon information and belief,
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`as follows:
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`II.
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`PARTIES
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`13.
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`The CITY OF LONG BEACH (“Long Beach”) is a California Charter City
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`and municipal corporation, duly organized and existing by virtue of the laws of the State
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`of California.
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`14.
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`15.
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`“Plaintiff” shall refer to the CITY OF LONG BEACH.
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`Plaintiff brings this suit pursuant to California Code of Civil Procedure
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`731, and California Civil Code sections 3479, 3480, 3491, 3493, and 3494 and any other
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`applicable codes or forms of relief available for monetary damages and removal of the
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`public nuisance caused by PCBs in Long Beach Waters.
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`16.
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`Plaintiff manages and operates municipal storm water systems, which
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`collect and transport stormwater to be discharged into Long Beach Waters. In order to
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`discharge stormwater into Long Beach Waters, Plaintiff is required to receive a
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`Municipal Regional Stormwater Permit from the California Regional Water Quality
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`Control Board- Los Angeles Region, pursuant to the National Pollutant Discharge
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`Elimination System under the Clean Water Act.
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`17.
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`Plaintiff is a permittee under a Municipal Regional Stormwater Permit,
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`which includes TMDLs for PCBs, as Long Beach Waters are impaired due to PCBs.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`GOMEZ
`TRIAL ATTORNEYS
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 5 of 22 Page ID #:5
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`18.
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`Plaintiff is subject to PCB TMDLs under respective Municipal Regional
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`Stormwater Permits. The PCB TMDLs require Plaintiff to limit its storm water
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`discharge of PCBs and engage in many water, sediment, and tissue quality objective
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`efforts.
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`Thus, Plaintiff has spent money in efforts to remediate, reduce, and monitor
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`PCBs toward these state-mandated TMDL goals. Plaintiff will spend more money in
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`the future, including possibly additional remediation efforts.
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`20.
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`Defendant Monsanto Company (“Monsanto”) is a Delaware corporation
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`with its principal place of business in St. Louis, Missouri.
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`21.
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`Defendant Solutia Inc. (“Solutia”) is a Delaware corporation with its
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`headquarters and principal place of business in St. Louis, Missouri.
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`22.
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`Defendant Pharmacia LLC (formerly known as “Pharmacia Corporation”
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`and successor to the original Monsanto Company) is a Delaware LLC with its principal
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`place of business in Peapack, New Jersey. Pharmacia is now a wholly-owned
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`subsidiary of Pfizer, Inc.
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`23.
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`The original Monsanto Company (“Old Monsanto”) operated an
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`agricultural products business, a pharmaceutical and nutrition business, and a chemical
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`products business. Old Monsanto began manufacturing PCBs in the 1930s and
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`continued to manufacture commercial PCBs until the late 1970s.
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`24.
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`Through a series of transactions beginning in approximately 1997, Old
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`Monsanto’s businesses were spun off to form three separate corporations. The
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`corporation now known as Monsanto operates Old Monsanto’s agricultural products
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`business. Old Monsanto’s chemical products business is now operated by Solutia. Old
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`Monsanto’s pharmaceuticals business is now operated by Pharmacia.
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`25.
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`Solutia was organized by Old Monsanto to own and operate its chemical
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`manufacturing business. Solutia assumed the operations, assets, and liabilities of Old
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`GOMEZ
`TRIAL ATTORNEYS
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 6 of 22 Page ID #:6
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`Monsanto’s chemicals business.3
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`Although Solutia assumed and agreed to indemnify Pharmacia (then known
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`as Monsanto Company) for certain liabilities related to the chemicals business,
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`Defendants have entered into agreements to share or apportion liabilities, and/or to
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`indemnify one or more entity, for claims arising from Old Monsanto’s chemical
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`business --- including the manufacture and sale of PCBs.4
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`In 2003, Solutia filed a voluntary petition for reorganization under Chapter
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`11 of the U.S. Bankruptcy Code. Solutia’s reorganization was completed in 2008. In
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`connection with Solutia’s Plan of Reorganization, Solutia, Pharmacia and New
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`Monsanto entered into several agreements under which Monsanto continues to manage
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`and assume financial responsibility for certain tort litigation and environmental
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`remediation related to the Chemicals Business.5
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`28. Monsanto, Solutia, and Pharmacia are collectively referred to in this
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`Complaint as “Defendants.”
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`III.
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`JURISDICTION AND VENUE
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`29.
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`This Court has jurisdiction pursuant to 28 U.S.C. §1332 because complete
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`diversity exists between Plaintiff and Defendants. The Plaintiff is located in California,
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`but no Defendant is a citizen of California. Monsanto is a Delaware corporation with its
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`principal place of business in St. Louis, Missouri. Solutia is a Delaware corporation
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`with its principal place of business in St. Louis, Missouri. Pharmacia is a Delaware
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`limited liability company with its principal place of business in Peapack, New Jersey.
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` See MONSANTO COMPANY’S ANSWER TO THE COMPLAINT AND JURY DEMAND, Town of Lexington v.
`Pharmacia Corp., Solutia, Inc., and Monsanto Company, C.A. No. 12-CV-11645, D. Mass. (October
`8, 2013); see also Relationships Among Monsanto Company, Pharmacia Corporation, Pfizer Inc., and
`Solutia Inc., http://www.monsanto.com/whoweare/pages/monsanto-relationships-pfizer-solutia.aspx
`(last accessed February 20, 2014).
`4 See id.
`5 See Monsanto’s Form 8-K (March 24, 2008), and Form 10-Q (June 27, 2008), available at
`http://www.monsanto.com/investors/pages/sec-filings.aspx (last accessed February 20, 2014).
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 7 of 22 Page ID #:7
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`30.
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`Venue is appropriate in this judicial district pursuant to 28 U.S.C. section
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`1391(a) because a substantial part of the property that is the subject of the action is
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`situated in this judicial district.
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`IV. FACTUAL ALLEGATIONS
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`PCBs are Toxic Chemicals that Cause Environmental
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`Contamination.
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`31.
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`Polychlorinated biphenyl, or “PCB,” is a molecule comprised of chlorine
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`atoms attached to a double carbon-hydrogen ring (a “biphenyl” ring). A “PCB
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`congener” is any single, unique chemical compound in the PCB category. Over two
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`hundred congeners have been identified.6
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`32.
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`PCBs were generally manufactured as mixtures of congeners. From
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`approximately 1935 to 1979, Monsanto Company was the only manufacturer in the
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`United States that intentionally produced PCBs for commercial use.7 The most common
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`trade name for PCBs in the United States was “Aroclor,” which was trademarked by
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`Old Monsanto.
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`33. Monsanto’s commercially-produced PCBs were used in a wide range of
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`industrial applications in the United States including electrical equipment such as
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`transformers, motor start capacitors, and lighting ballasts. In addition, PCBs were
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`incorporated into a variety of products such as caulks, paints, and sealants.
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`34.
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`As used in this Complaint, the terms “PCB,” “PCBs,” “PCB-containing
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`products,” and “PCB products” refer to products containing polychlorinated biphenyl
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`congener(s) manufactured for placement into trade or commerce, including any product
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`that forms a component part of or that is subsequently incorporated into another
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` Table of PCB Congeners, available at
`http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/congeners.htm (last accessed February 20, 2014).
`7 See 116 Cong. Record 11695, 91st Congress, (April 14, 1970) (“Insofar as the Monsanto Co., the sole
`manufacturer of PCB’s is concerned . . . .”); 121 Cong. Record 33879, 94th Congress, (October 23,
`1975) (“The sole U.S. producer, Monsanto Co. . . . .”). See also MONS 058730-058752 at 058733
`(identifying other producers as “all ex-USA.”), attached as Exhibit A.
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 8 of 22 Page ID #:8
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`product.
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`PCBs easily migrate out of their original source material or enclosure and
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`contaminate nearby surfaces, air, water, soil, and other materials. For example, PCB
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`compounds volatilize out of building materials (such as caulk) into surrounding
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`materials such as masonry, wood, drywall, and soil, thereby causing damage to those
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`surrounding materials. PCBs can also escape from totally-enclosed materials (such as
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`light ballasts) and similarly contaminate and damage surrounding materials.
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`36.
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`PCBs present serious risks to the health of humans, wildlife, and the
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`environment.
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`37.
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`Humans may be exposed to PCBs through ingestion, inhalation, and dermal
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`contact. Individuals may inhale PCBs that are emitted into the air. They may also
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`ingest PCBs that are emitted into air and settle onto surfaces that come into contact with
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`food or drinks. And they may absorb PCBs from physical contact with PCBs or PCB-
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`containing materials.
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`38.
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`The EPA has determined that Monsanto’s PCBs are probable human
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`carcinogens. In 1996, EPA reassessed PCB carcinogenicity, based on data related to
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`Aroclors 1016, 1242, 1254, and 1260. 8 The EPA’s cancer reassessment was peer
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`reviewed by 15 experts on PCBs, including scientists from government, academia and
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`industry, all of whom agreed that PCBs are probable human carcinogens.
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`39.
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`In addition, the EPA concluded that PCBs are associated with serious non-
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`cancer health effects. From extensive studies of animals and primates using
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`environmentally relevant doses, EPA has found evidence that PCBs exert significant
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`toxic effects, including effects on the immune system, the reproductive system, the
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`nervous system, and the endocrine system.
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`40.
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`PCBs affect the immune system by causing a significant decrease in the
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` EPA, PCBs: Cancer Dose-Response Assessment and Application to Environmental Mixtures,
`EPA/600/P-96/001F (September 1996), available at
`http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/pcb.pdf (last accessed May 5, 2014).
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 9 of 22 Page ID #:9
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`size of the thymus gland, lowered immune response, and decreased resistance to viruses
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`and other infections. The animal studies were not able to identify a level of PCB
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`exposure that did not affect the immune system. Human studies confirmed immune
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`system suppression.
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`Studies of reproductive effects in human populations exposed to PCBs
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`show decreased birth weight and a significant decrease in gestational age with
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`increasing exposures to PCBs. Animal studies have shown that PCB exposures reduce
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`birth weight, conception rates, live birth rates, and reduced sperm counts.
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`42.
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`Human and animal studies confirm that PCB exposure causes persistent
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`and significant deficits in neurological development, affecting visual recognition, short-
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`term memory, and learning. Some of these studies were conducted using the types of
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`PCBs most commonly found in human breast milk.
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`43.
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`PCBs may also disrupt the normal function of the endocrine system. PCBs
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`have been shown to affect thyroid hormone levels in both animals and humans. In
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`animals, decreased thyroid hormone levels have resulted in developmental deficits,
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`including deficits in hearing. PCB exposures have also been associated with changes in
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`thyroid hormone levels in infants in studies conducted in the Netherlands and Japan.
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`44.
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`PCBs have been associated with other health effects including elevated
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`blood pressure, serum triglyceride, and serum cholesterol in humans; dermal and ocular
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`effects in monkeys and humans; and liver toxicity in rodents.
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`45.
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`Children may be affected to a greater extent than adults. The Agency for
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`Toxic Substances and Disease Registry explained: “Younger children may be
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`particularly vulnerable to PCBs because, compared to adults, they are growing more
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`rapidly and generally have lower and distinct profiles of biotransformation enzymes, as
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`25
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`well as much smaller fat deposits for sequestering the lipophilic PCBs.”9
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`26
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`
`
` 9
`
` Agency for Toxic Substances and Disease Registry, Toxicological Profile for Polychlorinated
`Biphenyls (PCBs), (November 2000), at 405, available at www.atsdr.cdc.gov (last accessed May 1,
`2014).
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`TRIAL ATTORNEYS
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 10 of 22 Page ID #:10
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`46.
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`PCBs are known to be toxic to a number of aquatic species and wildlife
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`2
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`including fish, marine mammals, reptiles, amphibians, and birds. Exposure is
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`3
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`associated with death, compromised immune system function, adverse effects on
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`4
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`reproduction, development, and endocrine function. PCB exposure affects liver
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`5
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`function, the digestive system, and nervous systems and can promote cancer in a
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`6
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`number of animal species. The presence of PCBs can cause changes in community and
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`7
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`8
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`9
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`ecosystem structure and function.10
`
` Monsanto Has Long Known of PCBs’ Toxicity.
`
`47. Monsanto was well aware of scientific literature published in the 1930s that
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`10
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`established that inhalation in industrial settings resulted in toxic systemic effects. 11
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`11
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`48.
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`An October 11, 1937, Monsanto memorandum advises that “Experimental
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`12
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`work in animals shows that prolonged exposure to Aroclor vapors evolved at high
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`13
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`temperatures or by repeated oral ingestion will lead to systemic toxic effects. Repeated
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`14
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`bodily contact with the liquid Aroclors may lead to an acne-form skin eruption.”12
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`15
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`49.
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`A September 20, 1955, memo from Emmet Kelly set out Monsanto’s
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`16
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`position with respect to PCB toxicity: “We know Aroclors are toxic but the actual limit
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`17
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`has not been precisely defined. It does not make too much difference, it seems to me,
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`18
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`because our main worry is what will happen if an individual develops [sic] any type of
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`19
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`liver disease and gives a history of Aroclor exposure. I am sure the juries would not pay
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`20
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`a great deal of attention to [maximum allowable concentrates].”13
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`21
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`50.
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`On November 14, 1955, Monsanto’s Medical Department provided an
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`22
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`opinion that workers should not be allowed to eat lunch in the Aroclor department:
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`23
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`24
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`25
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`26
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`27
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`28
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`
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`
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`10 See EPA, Understanding PCB Risks, available at
`http://www.epa.gov/housatonic/understandingpcbrisks.html#WildlifeEcologicalRiskAssessment (last
`accessed March 5, 2015).
`11 See Exhibits B, C, F
`12 MONS 061332, attached as Exhibit B.
`13 MONS 095196-7, attached as Exhibit C.
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`GOMEZ
`TRIAL ATTORNEYS
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 11 of 22 Page ID #:11
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`It has long been the opinion of the Medical Department that eating
`in process departments is a potentially hazardous procedure that
`could lead to serious difficulties. While the Aroclors are not
`particularly hazardous from our own experience, this is a difficult
`problem to define because early literature work claimed that
`chlorinated biphenyls were quite toxic materials by ingestion or
`inhalation.14
`
`
`51.
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`On January 21, 1957, Emmet Kelly reported that after conducting its own
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`6
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`tests, the U.S. Navy decided against using Monsanto’s Aroclors: “No matter how we
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`7
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`discussed the situation, it was impossible to change their thinking that Pydraul 150 is
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`8
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`9
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`just too toxic for use in a submarine.”15
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`52.
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`In 1966, Kelly reviewed a presentation by Swedish researcher Soren
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`10
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`Jensen, who stated that PCBs “appeared to be the most injurious chlorinated compounds
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`11
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`of all tested.”16 Jensen refers to a 1939 study associating PCBs with the deaths of three
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`12
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`young workers and concluding that “pregnant women and persons who have at any time
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`13
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`had any liver disease are particularly susceptible.”17 Kelly does not dispute any of
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`14
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`Jensen’s remarks, noting only, “As far as the section on toxicology is concerned, it is
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`15
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`true that chloracne and liver trouble can result from large doses.”18
`
`16
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` Monsanto Has Long Known that PCBs Were “Global Contaminants”
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`17
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`Causing Harm to Animals and Fish.
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`18
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`53.
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`At the same time, Monsanto became aware that PCBs were causing
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`19
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`widespread contamination of the environment, far beyond the areas of its use.19
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`20
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`54. Monsanto’s Medical Director reviewed an article by Swedish researcher
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`21
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`Soren Jensen, who reported the detection of PCBs in the tissues of fish and wildlife in
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`22
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`Sweden.20 The report noted that PCBs were also detected in the air over London and
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`23
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`24
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`25
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`26
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`GOMEZ
`TRIAL ATTORNEYS
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`14 Monsanto Chemical Company, Memorandum to H.B. Patrick, November 14, 1955 (no Bates
`number), attached as Exhibit D.
`15 MONS 095640, attached as Exhibit E.
`16 See JDGFOX00000037-63, attached as Exhibit F.
`17 Id. at JDGFOX00000039.
`18 Id. at JDGFOX00000037.
`19 See Exhibits G, H, L,
`20 New Scientist (December 15, 1986), MONSFOX00003427, attached as Exhibit G.
`11
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 12 of 22 Page ID #:12
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`Hamburg and found in seals caught off the coast of Scotland. Jensen concluded that
`
`PCBs can “be presumed to be widespread throughout the world.”21
`
`55.
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`A December 1968 article by Richard Risebrough identified chlorinated
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`4
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`hydrocarbons (which include PCBs) as “the most abundant synthetic pollutants present
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`5
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`in the global environment.”22 The article reported finding significant concentrations of
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`6
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`PCBs in the bodies and eggs of peregrine falcons and 34 other bird species. The report
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`7
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`linked PCBs to the rapid decline in peregrine falcon populations in the United States.
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`8
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`56.
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`Despite growing evidence of PCBs’ infiltration of every level of the global
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`9
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`ecology, Monsanto remained steadfast in its production of Aroclors and other PCBs.
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`10
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`57.
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`On March 6, 1969, Monsanto employee W. M. Richard wrote a
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`11
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`memorandum discussing Risebrough’s article that criticized PCBs as a “toxic
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`12
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`substance”, “widely spread by air-water; therefore, an uncontrollable pollutant . . .
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`13
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`causing extinction of peregrine falcon … [and] endangering man himself.”23 Richard
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`14
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`explained that Monsanto could take steps to reduce PCB releases from its own plants
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`15
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`but cautioned, “It will be still more difficult to control other end uses such as cutting
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`16
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`oils, adhesives, plastics, and NCR paper. In this applications exposure to consumers is
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`17
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`greater and the disposal problem becomes complex.”24
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`18
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`58.
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`On September 9, 1969, Monsanto employee W.R. Richard wrote an
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`19
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`interoffice memo titled “Defense of Aroclor.”25 He acknowledged the role of Aroclor in
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`20
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`water pollution: “Aroclor product is refractive, will settle out on solids – sewerage
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`21
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`sludge – river bottoms, and apparently has a long life.” He noted that Aroclors 1254
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`22
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`and 1260 had been found along the Gulf Coast of Florida causing a problem with
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`23
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`shrimp; in San Francisco Bay, where it was reported to thin egg shells in birds; and in
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`24
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`25
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`26
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`27
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`28
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`21 Id.
`22 R.W. Risebrough, Polychlorinated Biphenls in the Global Ecosystem, Nature, Vol. 220 (December
`14, 1968), attached as Exhibit H.
`23 MONS 096509-096511, attached as Exhibit I.
`24 Id.
`25 DSW 014256-014263, attached as Exhibit J.
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`GOMEZ
`TRIAL ATTORNEYS
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 13 of 22 Page ID #:13
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`the Great Lakes. Richard advised that the company could not defend itself against all
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`criticism: “We can’t defend vs. everything. Some animals or fish or insects will be
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`harmed. Aroclor degradation rate will be slow. Tough to defend against. Higher
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`4
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`chlorination compounds will be worse [than] lower chlorine compounds. Therefore we
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`5
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`6
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`will have to restrict uses and clean-up as much as we can, starting immediately.”26
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`59.
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`On January 29, 1970, Elmer Wheeler of the Medical Department circulated
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`7
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`laboratory reports discussing results of animal studies. He noted: “Our interpretation is
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`8
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`that the PCB’s are exhibiting a greater degree of toxicity in this chronic study than we
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`9
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`had anticipated. Secondly, although there are variations depending on species of
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`10
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`animals, the PCB’s are about the same as DDT in mammals.”27
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`11
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`60. Monsanto expressed a desire to keep profiting from PCBs despite the
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`12
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`environmental havoc in a PCB Presentation to Corporate Development Committee. The
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`13
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`report suggests possible reactions to the contamination issue. It considered that doing
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`14
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`nothing was “unacceptable from a legal, moral, and customer public relations and
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`15
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`company policy viewpoint.” But the option of going out of the Aroclor business was
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`16
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`also considered unacceptable: “there is too much customer/market need and selfishly
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`17
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`too much Monsanto profit to go out.”28
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`18
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`61.
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`The Aroclor Ad Hoc Committee at Monsanto held its first meeting on
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`19
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`September 5, 1969. The committee’s objectives were to continue sales and profits of
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`20
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`Aroclors in light of the fact that PCB “may be a global contaminant.”29 The meeting
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`21
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`minutes acknowledge that PCB has been found in fish, oysters, shrimp, birds, along
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`22
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`coastlines of industrialized areas such as Great Britain, Sweden, Rhine River, low
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`23
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`countries, Lake Michigan, Pensacola Bay, and in Western wildlife. Moreover, the
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`24
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`committee implicated the normal use of PCB-containing products as the cause of the
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`25
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`26
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`27
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`28
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`
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`26 Id.
`27 MONS 098480, attached as Exhibit K.
`28 Ex. A at 058737.
`29 MONS 030483-030486, attached as Exhibit L.
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`GOMEZ
`TRIAL ATTORNEYS
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`Case 2:16-cv-03493-FMO-AS Document 1 Filed 05/19/16 Page 14 of 22 Page ID #:14
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`problem: “In one application alone (highway paints), one million lbs/year are used.
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`2
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`Through abrasion and leaching we can assume that nearly all of this Aroclor winds up in
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`3
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`4
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`the environment.”30
`
`62.
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`A month later, on October 2, 1969, the Committee reported extensive
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`5
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`environmental contamination. The U.S. Department of Interior, Fish and Wildlife found
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`6
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`PCB residues in dead eagles and marine birds. Similarly, the Bureau of Commercial
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`7
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`Fisheries reported finding PCBs in the river below Monsanto’s Pensacola plant. The
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`8
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`U.S. Food and Drug Administration had discovered PCBs in milk supplies. The
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`9
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`Committee advised that Monsanto could not protect the environment from Aroclors as
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`10
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`“global” contaminants but could protect the continued manufacture and sale of
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`11
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`Aroclors:
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`13
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`14
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`16
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`17
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`18
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`19
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`20
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`26
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`27
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`There is little probability that any action that can be taken will
`prevent the growing incrimination of specific polychlorinated
`biphenyls (the higher chlorinated – e.g. Aroclors 1254 and 1260) as
`nearly global environmental contaminants leading to contamination
`of human food (particularly fish), the killing of some marine species
`(shrimp), and the possible extinction of several species of fish eating
`birds.
`Secondly, the committee believes that there is no practical course of
`action that can so effectively police the uses of these products as to
`prevent environmental contamination. There are, however a number
`of actions which must be undertaken to prolong the manufacture,
`sale and use of these particular Aroclors as well as to protect the
`continued use of other members of the Aroclor series.31
`
`
`63. Monsanto’s desire to protect Aroclor sales rather than the environment is
`
`reflected in the Committee’s stated objectives:
`
`
`1. Protect continues sales and profits of Aroclors;
`2. Permit continued development of new uses and sales, and
`3. Protect the image of the Organic Division and the Corporation as members
`
`of the
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`business community recognizing their responsibilities to prevent