Chula Vista claims Monsanto chemical contaminated its stormwater infrastructure, San Diego Bay

The city of Chula Vista has filed a complaint in federal court against Monsanto Company, Solutia Inc. and Pharmacia Corporation, alleging the companies long knew they were contaminating its stormwater system and San Diego Bay with chemicals.

The 42-page complaint, filed earlier this week, states polychlorinated biphenyls, also known as PCBs, have contaminated Chula Vista's stormwater system, captured stormwater, tidelands or submerged lands and other public trust lands.

As a result of the alleged presence of Monsanto's PCB contamination, the city claims it cannot operate many of its stormwater and dry weather runoff systems as designed because costly infrastructure upgrades and retrofits are required to accommodate the PCBs.

The city attorney's office for Chula Vista referred media questions to John P. Fiske, shareholder at Baron & Budd P.C. Fiske is one of seven attorneys, including two Texas attorneys, who will appear as pro hac vice, listed in the complaint for the plaintiff. City of Chula Vista v. Monsanto Company, 18-CV01924 (S.D. Cal., filed Aug. 21, 2018).

Fiske said this is the 14th public entity to bring this PCB case against Monsanto.

"Three state attorneys general, nine city attorneys, and two port attorneys all agree Monsanto is liable," Fiske said. "Monsanto's legal strategy and tactics are failing, as seen recently in the $289 million Roundup verdict. It's time that Monsanto and or Bayer consider real solutions for their massive PCB liability."

The complaint alleges Monsanto has repeatedly held itself out as the sole manufacturer of PCBs in the United States between 1935 and 1979 and trademarked the name "Aroclor" for certain PCB compounds.

"Although Monsanto knew for decades that PCBs were toxic, knew that they could not be contained and as a result were widely contaminating all natural resources and living organisms, and knew that there was no safe way to dispose of PCBs, Monsanto concealed these facts and continued producing PCBs until Congress enacted the Toxic Substances Control Act, which banned the manufacturer and most uses of PCBs as of January 1, 1979," the complaint states.

A 1937 memorandum stated Monsanto advised that "experimental work in animals shows that prolonged exposure to Aroclor vapors evolved at high temperatures or by repeated oral ingestion will lead to toxic effects," according to the complaint.

Chula Vista is seeking compensatory damages according to its submitted findings, along with punitive damages and litigation costs. The complaint lists 16 first causes of action against Monsanto, alleging a continued public nuisance.

"Monsanto manufactured, distributed, marketed and promoted PCBs in a manner that created or participated in creating a continuing public nuisance that is harmful to health and obstructs the free use of the bay," the complaint states. "Monsanto also directed its customers and the public to dispose of PCB-containing materials improperly, resulting in PCBs leaching from landfills and entering the bay."

Charla Lord, media spokesperson for Bayer U.S. Crop Science, sent a statement on behalf of Monsanto, saying the former Monsanto company listed in the complaint voluntarily stopped producing PCBs more than 40 years ago and "didn't use or dispose of any PCBs in the San Diego Bay."

"Monsanto sold PCBs to many industrial and manufacturing customers, as well as the U.S. government, which put them to various uses and disposed of them in different ways," according to the Monsanto statement. "The factual, policy and legal questions at issue are complex. We are still reviewing this lawsuit, and we will defend ourselves aggressively."

Lord did not provide the name of the counsel retained by Monsanto as of press time Wednesday.

On Aug. 17, the state Supreme Court rejected a challenge by Monsanto to review the state's decision to list glyphosate, the main chemical in its weed killers Roundup and Ranger Pro, as a carcinogen. People v. Office of Environmental Health Hazard Assessment, S249056 (Cal., filed Aug. 15, 2018).

A San Francisco Superior Court jury earlier this month found glyphosate to be the cause of a dying man's cancer.