The lawsuit filed by the State for school and environmental contamination is first in the nation
Vermont Business Magazine Attorney General Charity Clark has filed a lawsuit against Monsanto to protect and restore Vermont’s natural resources and schools affected by PCB contamination. The lawsuit, which seeks recovery for PCB contamination in schools on a statewide basis, is the first of its kind in the nation. The lawsuit alleges that, for decades, Monsanto knew its commercial PCB formulations were highly toxic and would inevitably produce the contamination and human health risks that have occurred.
In response, a company spokesperson said the complaint filed by the Vermont AG "has no merit." See Monsanto statement below.
“Monsanto manufactured, marketed, sold, and distributed PCBs while knowing that its products would cause significant, long-term damage in Vermont,” said Attorney General Clark. “This lawsuit seeks to hold Monsanto accountable for knowingly misleading the public about the harmful impacts of its products. The cost of cleaning up after Monsanto’s deception will be considerable and should be borne by the multibillion-dollar company that profited from the misconduct, not by Vermont taxpayers.”
The Attorney General’s complaint alleges that PCBs – polychlorinated biphenyls – are toxic and dangerous chemical compounds that were manufactured, marketed, sold, and distributed by Monsanto in the United States from approximately 1929 to 1977. During that period, Monsanto was responsible for the manufacture of 99 percent or more of all PCBs used or sold within the United States.
When it manufactured and sold PCBs, Monsanto knew with substantial certainty that PCBs were highly toxic, harmful to human health and the environment, and that they would leach and escape into the environment and indoor air.
Nonetheless, Monsanto sold its PCB products for use in paints, caulks, inks, dyes, paper products, lubricants, sealants, plasticizers, coolants, hydraulic fluids, fireproofing, and industrial electrical equipment such as capacitors and transformers, among other applications.
Although PCBs were banned in the late 1970s, they are highly persistent and continue to circulate in the State’s waters and other natural resources, especially Lake Champlain. In 2021, the Vermont Legislature passed Act 74 requiring all schools built or renovated before 1980 to test their indoor air for PCBs.
Testing in schools began in spring 2022 and it is expected that the testing will be completed by July 2025 by the Agency of Natural Resources’ Department of Environmental Conservation.
“In our role as stewards of Vermont’s natural environment, we are committed to the remediation of toxic and dangerous PCBs distributed by Monsanto in Vermont, and to the protection of our natural resources,” said Department of Environmental Conservation Commissioner John Beling. “Through the work of the Attorney General’s Office, we hope to secure the necessary resources for comprehensive cleanup and prevention efforts that will benefit both present and future generations as well as compensation for damages to Vermont’s precious natural resources.”
A copy of the complaint is available here.
Monsanto Reactive Statement on Filing of a Lawsuit by the State of Vermont
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.
A company spokesperson issued this statement: “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 Monsanto 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 provided by Monsanto
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."
Source: 6.19.2023. BURLINGTON, Vt. – Attorney General. Monsanto
