Bay Area Cities Cite Just-Passed Bills in PCB Lawsuits Against Monsanto

Two recently passed bills -- one of which Gov. Jerry Brown has not yet signed -- could play a big role in a trio of Bay Area water pollution lawsuits against agricultural chemical giant Monsanto.

San Jose, Berkeley and Oakland have each sued the company in federal court to recover costs associated with cleaning up stormwater containing polychlorinated biphenyls, or PCBs, that the company manufactured from the 1930s through the time they were banned in the late 1970s.

The toxic chemicals were widely used to insulate electrical transformers and in a variety of other applications, including paint, caulking, ink and lubricants.

U.S. District Court Judge Edward J. Davila ruled last month the cities did not have ownership over the stormwater that's at issue in the case and thus lacked legal standing to sue Monsanto for creating a public nuisance. But Davila did allow the cities to amend their complaints and refile them.

The amended complaints, filed earlier this week, rely in part on two laws just passed by the Legislature. One of them, AB 2594, allows cities to capture and reuse storm runoff and thus gives them a property interest in stormwater. Gov. Brown has not yet signed the legislation.

Earlier this week, Brown did sign a second bill, SB 859, which gives local governments new power -- and responsibility -- to sue to stop public nuisances on property that has been granted in trust by the state. In the Bay Area, some of those public trust lands are actually offshore and include tidelands and submerged property.

“So if I’m a city and I have public trust lands in my trust, then I need to do what I need to do, including file lawsuits, to protect those lands," said John Fiske, an attorney for the cities suing Monsanto.

Berkeley's lawsuit against Monsanto says the city holds more than 4,300 acres of offshore property polluted by the company's PCBs. Oakland's tidelands and submerged lands total 5,000 acres, its lawsuit says. The refiled San Jose lawsuit does not cite SB 859.

"Both of these (measures) confirm the arguments that the cities have had, which is that the people of the state of California want cities to protect natural resources such as water and tidelands," Fiske said.

Scott Partridge, Monsanto vice president for global strategy, blasted the amended complaints as "defective."

“The cities continue to invent new theories of owning abandoned stormwater and urban runoff that will only make the cities more liable -- and in more cases -- for impacts to San Francisco Bay," Partridge said. "... No court in the country has imposed the costs associated with city discharge permits onto others. The product manufacturer did not place any PCBs into the bay, and the new complaints do not change that basic fact.”

The cities in the case are among several in the country that want Monsanto to contribute to the cost of cleaning up PCB contamination.