The Vermont Attorney General is suing Monsanto over PCB contamination in the environment and schools across the state.
Democrat Charity Clark filed suit against the chemical company Monsanto claiming natural resources and schools in the state were contaminated and injured by polychlorinated biphenyls or PCBs. The lawsuit says Monsanto “knew with substantial certainty that its PCBs were highly toxic...” Clark said the goal of the suit is to restore and clean up natural resources and schools affected by PCB contamination.
“We have sued Monsanto for creating, marketing, selling and distributing the highly toxic chemical substance known as PCBs," said Clark. "This is a first in the nation case in that I'm using the authority of the Office of Attorney General to recover for harms done to schools that are traceable to PCBs. So of course we know that Vermont's natural resources, including surface waters and aquatic wildlife, are contaminated with PCBs and Lake Champlain is severely contaminated with PCBs. There are of course fish advisories for lake trout, small mouth bass and yellow perch in Lake Champlain. I definitely want folks to know that this could be a long fight, and there are certainly no guarantees in litigation but we are in this for the long haul.”
In a lengthy statement Monsanto says it will “respond to the complaint in detail in court, but it has no merit. Monsanto never manufactured, used or disposed of PCBs in Vermont and has not manufactured these products for more than 45 years. The PCB-containing products that are alleged to be the source of any impairment claims were produced by third party companies, not Monsanto. There is no basis in law to impose liability...”
The state is suing not only for environmental reparations but to recoup costs for PCB clean up in schools. Vermont Attorney General Environmental and Public Protection Division Chief Justin Kolber explained the school provisions make the lawsuit the first of its kind in the nation.
“We're seeking statewide relief for all schools so that's what makes our case unique as a first in the nation," noted Kolber. "A handful of other states have either sued or settled with Monsanto for environmental contamination. No state has yet sued on behalf of their own schools. So that's what makes Vermont unique. And of course, the other part that makes Vermont unique is Act 74. The Vermont Legislature passed Act 74 in 2021 which created a comprehensivestatewide testing program. And that's where we're using to recover relief for all of those schools in the testing program. So that's what makes the Vermont case unique and I assume challenging and I assume Monsanto will want to defend against that. However, we're open to all options to proceed as long as we get clear and strong relief for Vermont schools.”
Monsanto’s statement says the state’s claim regarding PCB’s in schools fails “...because the school districts and their contractors – not Monsanto – authorized the use of PCB-containing products in their schools decades ago.” It adds: “We believe the evidence in this case will show that the school districts’ inaction combined with the state’s unprecedented and scientifically unsupported PCB screening levels has cost the state and its taxpayers millions of dollars that they are now trying to recoup by shifting blame to Monsanto....The bottom line is that the state has underfunded its public schools and significantly deferred recommended best maintenance practices.”
Testing of schools has been occurring for about a year and will continue until mid-2025. Attorney General Clark says while the full cost and extent of the contamination is not known, a clear picture of the scope of the problem has emerged.
“It doesn't change what we're asking for," asserted Clark. "We don't normally ask for a specific number. What we're asking is for compensatory damages. So when that number can be either accurately estimated or known we want that amount of money to come to the state. We also are asking for things like attorney’s fees and costs. Justin hop in.”
“Potential cleanup costs," added Kolber. "If the Department of Environmental Conservation determines that there's actual remediation that needs to be done, whether that's removal of soil or something else, we would ask for cleanup costs.”
“Punitive damages,” Clark noted.
“The cost of our testing program and if we need more testing, more analysis," Kolber continued, "we would ask for Monsanto to pay those costs as well.”
Kolber notes there are 321 schools in the statewide testing program contends Monsanto’s liability is clear.
“The liability story is very clear," stated Kolber. "Our complaint cites to a lot of really powerful internal documents from Monsanto, really documenting the level of their knowledge and intentionality around putting out these harmful chemicals. So we think that's an important and clear point.”
Clark filed the suit in Vermont Superior Court on Friday.
Monsanto's full statement:
June 19, 2023 – Monsanto released today the following statement in response to a complaint filed by the Vermont Attorney General involving claims of alleged PCB impairments to the states’ lands, waters, and schools.
“We will respond to the complaint in detail in court, but it has no merit. Monsanto never manufactured, used or disposed of PCBs in Vermont and has not manufactured these products for more than 45 years. The PCB-containing products that are alleged to be the source of any impairment claims were produced by third party companies, not Monsanto. There is no basis in law to impose liability for trespass, nuisance or failure to warn claims on a company that legally manufactured a product, last put them into the stream of commerce over 45 years ago, and had no control over these components once they were sold to sophisticated, industrial manufacturers for use in their finished products. The State faces a significant burden in proving its claims for many reasons including that it has not issued any orders limiting the discharge of PCBs in waterways (referred to as Total Maximum Daily Load), an action typically taken when there is concern about PCB levels in waters.
Additional Comments on Allegations Related to Schools
“The State’s trespass claim fails because the school districts and their contractors – not Monsanto – authorized the use of PCB-containing products in their schools decades ago. To the extent PCB-containing fluorescent light ballasts are still present in schools today, then those school districts likely have ignored decades of best practice maintenance guidance provided by the Environmental Protection Agency (EPA) and state health officials that called for the safe removal of these PCB-containing materials in schools built before 1980.
“Finally, we believe the evidence in this case will show that the school districts’ inaction combined with the state’s unprecedented and scientifically unsupported PCB screening levels has cost the state and its taxpayers millions of dollars that they are now trying to recoup by shifting blame to Monsanto. Originally set at near-background levels in 2013, the state has since increased its PCB screening levels twice, but they remain orders of magnitude lower than the science-based evaluation levels set by EPA and other states, and thousands of times lower than federal regulatory levels set by OSHA. As a result, the Burlington School District closed its high school and moved students to a converted Macy’s department store even though only a few classrooms in a single building on its campus had PCB air readings that met or exceeded EPA’s screening levels. Not surprisingly, other schools built before 1980 that also appear not to have followed EPA-recommended best building maintenance practices, are now finding that their inspection results exceed the state’s outlying PCB screening levels.
“The bottom line is that the state has underfunded its public schools and significantly deferred recommended best maintenance practices. Burlington High School illustrates some of the potential consequences of this mismanagement with the discovery of hazardous materials like lead and asbestos. The state cannot recover damages from Monsanto for problems caused by its own neglect and delays.”
Background
The State of Vermont Set PCB Screening Rates at Outrageously Low Levels, Not Backed by Science
The state set PCB screening levels in 2013 at exceptionally low, near-background rates -- a screening value of 15 ng/m3 for all ages.
Notably, these levels were orders of magnitude lower than those set by EPA and followed by other states for the same age groups which are 500 ng/m3 for ages 12-15 and 600 ng/m3 for ages 15-19.
When the state subsequently raised its screening levels in November 2021 to 30 ng/m3 for pre-kindergarten, 50 ng/m3 for kindergarten to grade 6, and 100 ng/m3 for grade 7 to adult, VDOH acknowledged that its prior screening level “is close to the background PCB concentrations in air… and the testing of several hundred schools in Vermont may result in frequent exceedances due to the prevalence of low levels of PCBs in the indoor environment.”
The September 2020 inspections of Burlington High School were done while the state’s near-background rate levels were in force, and not surprisingly as the state predicted, a large number of exceedances were found which set up an unfortunate chain of events that resulted in the perfect storm noted above.
Open BHS, a group formed by parents of BHS’ students, raised concerns at the time that standards used for the inspections were extremely low background rates and that the actions being contemplated would not be necessary under EPA’s standards. The group’s website calls the closure of the school “an extreme action not warranted by the facts of the case,” notes Vermont’s PCB thresholds are “at least 10 times more conservative than those recommended by all other professionals and regulatory agencies,” and characterized the closure decision as having “almost no precedent anywhere in America.”
In February 2022, VDOH again revised their PCB exposure screening levels upwards, creating “immediate action levels”; these were set at 90 ng/m3 for pre-kindergarten, 180 ng/m3 for kindergarten to 6th grade, and 300 ng ng/ m3 for grade 7 to adult. These were still well below EPA’s levels.
If one applies the current state exposure rates for high school-aged students to the findings of the September 2020 inspection, only a small number of classrooms at BHS hit or exceed the screening levels. Of these, almost all of them are concentrated in one building, which should have made it possible to isolate these classrooms, renovate the school and avoid the more significant cost and dislocation of temporarily moving the entire school and building a new one.
Widely recognized as nonflammable safety fluids, PCBs were once required by many electrical and building codes as well as insurance companies to protect against serious fire risk. Monsanto voluntarily ceased all PCB production in 1977, two years before the EPA banned the production of PCBs.
