1 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF MULTNOMAH 6 7 STATE OF OREGON by and through Ellen F. Rosenblum, Attorney General for the STATE OF OREGON, 8 Plaintiff, 9 10 v. Case No. ______________________________ COMPLAINT (Public Nuisance; Purpresture; Trespass; Equitable Indemnity; Unjust Enrichment) NOT SUBJECT TO MANDATORY ARBITRATION 11 MONSANTO COMPANY; SOLUTIA, INC.; PHARMACIA LLC; and DOES 1 10, 12 Defendants. ORS 20.140 (State fees deferred at filing) JURY TRIAL DEMANDED 13 Plaintiff State of Oregon (“the State”), by and through its Attorney General, 14 15 Ellen F. Rosenblum, files this Complaint against Defendants Monsanto Company, Solutia, Inc., 16 Pharmacia LLC, and Does 1 to 10, inclusive (collectively, “Defendants” or “Monsanto”), and 17 alleges as follows: 18 INTRODUCTION 19 1. 20 21 The State of Oregon brings this action to protect the health, safety, and welfare of its people and its natural environment. 22 2. 23 Oregon is a special place, home to a rich natural landscape and an abundance of natural 24 resources. Forests blanket nearly half of the state, providing critical habitat to wildlife such as 25 the bald eagle, black bear, elk, wolf, and beaver. A total of 110,994 miles of river flow within 26 the State’s borders, almost 2,000 of which are designated as Wild & Scenic under the Page 1 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 National Wild & Scenic Rivers System. Oregon’s rivers and streams are home to a wide 2 diversity of fish, including salmon, steelhead, trout, sturgeon, and dozens of other native species. 3 Along Oregon’s coast are vibrant marine waters and estuaries that teem with life; seals, otters, 4 and whales use these waters alongside sharks, halibut, and tuna. Dungeness crab, oysters, and 5 other shellfish thrive on the seafloor. These ecosystems are vital to the history, identity, and 6 sustainability of the State, including its tribal communities, and they serve critical roles in the 7 State’s economy. Many Oregon jobs depend on fishing, sustainable timber production, and the 8 production of wholesome agriculture products. Oregonians, from the high desert to the ocean 9 shores, have a right to use and enjoy these resources for commerce, sustenance, recreation, 10 tourism, aesthetic enjoyment, and quiet solitude. Oregon would not be Oregon without this 11 remarkable natural environment. 12 3. Unfortunately, many of Oregon’s natural resources and environments are contaminated 13 14 with polychlorinated biphenyls, highly toxic chemicals known more commonly as “PCBs.” 15 PCBs do not occur naturally, yet today they persist throughout Oregon’s waterways, upland 16 areas, soils, sediments, aquatic life, marine mammals, and birds. PCBs cause a wide range of 17 systemic toxic effects in humans and animals and can seriously impair the endocrine, neurologic, 18 and reproductive systems. PCBs have caused harm to eagles, osprey, and other birds, as well as 19 various fish species across Oregon. 20 4. 21 This PCB contamination throughout Oregon is a result of the actions of one company: 22 Monsanto. Between 1929 and 1977, Monsanto was the only company in the United States to 23 manufacture PCBs for widespread commercial use. Monsanto distributed PCBs widely, 24 including throughout Oregon, for use in a broad array of products ranging from electrical 25 equipment to lighting ballasts, from paint to caulking. 26 Page 2 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 5. 2 Despite knowing as early as 1937 that PCBs were toxic to humans and animals and that 3 PCBs could escape into and contaminate the environment, Monsanto manufactured and sold 4 PCBs until they were finally banned under federal law.1 Even when Monsanto had 5 overwhelming evidence of the hazards that PCBs create, Monsanto continued to flood the 6 country with these toxic materials. Monsanto’s own internal documents show that it was not 7 interested in protecting people or the environment; rather, its only concern was in protecting its 8 balance sheet. 9 6. 10 As public concerns about PCBs began to grow in the 1960s, Monsanto did not alert its 11 customers or the public of its knowledge of the dangers of PCBs. Instead, Monsanto assembled 12 an internal team and tasked it with deflecting criticism of both PCBs and the company itself. 13 The team was told that Monsanto “can’t afford to lose one dollar of business” from its PCB 14 sales. Despite knowing that millions of pounds of highly toxic PCBs were being released into 15 the environment every year, Monsanto worked to hide the dangerous and persistent effects of the 16 hazardous chemicals because “selfishly too much Monsanto profit” would be lost if the company 17 told the truth. Monsanto concealed from consumers, the State of Oregon, the U.S. Government, 18 and the public its knowledge of the remarkably harmful effects of PCBs and Monsanto’s role in 19 introducing these toxins to the surrounding environment, deciding instead that its financial 20 bottom line—and, later, its corporate reputation—were more important than the health and well- 21 being of humans and the environment. 22 23 24 25 26 1 Toxic Substances Control Act, 15 U.S.C. § 2605(e)(3)(A) (eff. Jan. 1, 1977) (“[N]o person may manufacture any polychlorinated biphenyl after two years after the effective date of this Act.”). Page 3 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 7. Today, Oregon bears the burden of Monsanto’s decision to place profit above all else. 2 3 The toxic legacy that Monsanto left Oregonians lives on, as PCBs persist in Oregon’s lands, 4 rivers, and waterways, in its sediments, soils, and in the bodies of animals and humans. It has 5 caused harm to aquatic, marine, and avian species, and poses ongoing risks to the health of the 6 people of the State of Oregon. 7 8. The State has incurred significant cleanup costs associated with the investigation and 8 9 remediation of sites contaminated with PCBs, and it will continue to incur such costs long into 10 the future. The presence of Monsanto’s PCBs in Oregon’s waterways and sediments, on 11 Oregon’s land, and throughout Oregon’s natural environment has had significant adverse impacts 12 on the availability of Oregon’s natural resources for recreational, commercial, cultural, and 13 aesthetic uses, and their presence will continue to have such adverse impacts as long as they 14 persist in Oregon’s natural environment. 9. 15 16 The State brings this action in its sovereign capacity as trustee for all natural resources 17 within its borders, which it holds and protects for the benefit of all Oregonians. Those natural 18 resources include the beds and banks of every river within the State; all waters within the State 19 from all sources of water supply;2 and all fish, wildlife, and fish and wildlife habitat areas 20 throughout the State. The State also brings this action in its capacity as owner of certain lands 21 within its borders that have been contaminated by PCBs and for reimbursement of the costs it has 22 incurred, and likely will incur in the future, to investigate and clean up PCB contamination 23 throughout the State. Through this action, the State seeks to recover damages from Monsanto for 24 25 26 2 ORS 537.110 (“All water within the state from all sources of water supply belongs to the public.”); Schnitzer Inv. Corp. v. Certain Underwriters at Lloyd’s of London, 341 Or 128, 132, 137 P3d 1282 (2006) (recognizing state ownership of water). Page 4 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 the costs that the State has incurred, and will continue to incur, to remediate the widespread 2 damage caused by the presence of Monsanto’s PCBs on Oregon’s lands, in Oregon’s waters, and 3 throughout Oregon’s natural environment. 4 PARTIES 5 10. 6 The State holds in trust for the public the bed and banks, and waters between the bed and 7 banks, of all waterways within the State. By virtue of its public trust responsibilities, all such 8 lands are to be preserved for public use in navigation, fishing, and recreation. The State is also 9 the trustee of all natural resources—including land, water, wildlife, and habitat areas—within its 10 borders. As trustee, the State holds these natural resources in trust for all Oregonians— 11 preserving, protecting, and making them available to all Oregonians to use and enjoy for 12 recreational, commercial, cultural, and aesthetic purposes. 13 11. 14 The State brings this action by and through its Attorney General, Ellen F. Rosenblum, 15 who is authorized under Oregon law, including pursuant to ORS 180.060(1)(d), to bring the 16 claims asserted herein on her own behalf, on behalf of the affected State agencies and entities, 17 and for the benefit of the people of Oregon. 18 12. Defendant Monsanto Company (“Monsanto”) is a Delaware corporation with its principal 19 20 place of business in St. Louis, Missouri. 21 13. Defendant Solutia Inc. (“Solutia”) is a Delaware corporation with its headquarters and 22 23 principal place of business in St. Louis, Missouri. Solutia, Inc. is a wholly owned subsidiary of 24 Eastman Chemical Company. 25 26 Page 5 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 14. Defendant Pharmacia LLC (“Pharmacia”), formerly known as “Pharmacia Corporation” 2 3 and successor to the Monsanto Chemicals Company, is a Delaware limited liability company 4 with its principal place of business in Peapack, New Jersey. Pharmacia LLC is a wholly owned 5 subsidiary of Pfizer, Inc. 6 15. During the period between 1929 and 1977, the original Monsanto Company (“Original 7 8 Monsanto”) owned and operated an agricultural products business, a pharmaceutical and 9 nutrition business, and a chemical products business. As part of its chemical products business, 10 Original Monsanto began manufacturing PCBs in the 1930s. It continued manufacturing PCBs 11 until 1977, shortly before the manufacture and sale of PCBs in the United States was prohibited 12 by federal law. 13 16. 14 Beginning in approximately 1977, Original Monsanto underwent a series of corporate 15 transactions that caused its businesses to spin off into three separate entities. The corporation 16 now known as Monsanto operates Original Monsanto’s agricultural products business. 17 17. 18 Defendant Solutia now operates Original Monsanto’s chemical products business. 19 Solutia was organized for the purpose of owning and operating the chemical products business, 20 and therefore has assumed all operations, assets, and liabilities of that business. 21 18. 22 Defendant Pharmacia now operates Original Monsanto’s pharmaceutical business. 23 19. 24 All Defendants have entered into agreements to share or apportion liabilities, and/or to 25 indemnify one or more other entities, for claims arising from Original Monsanto’s chemical 26 products business, including claims arising from Original Monsanto’s manufacture and sale of Page 6 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 PCBs. Monsanto, Solutia, and Pharmacia are otherwise jointly and severally liable to third 2 parties such as Oregon for the liabilities resulting from the acts and omissions of Original 3 Monsanto as a matter of law. 4 20. 5 6 Throughout this Complaint, and for the purposes of this litigation, Monsanto, Solutia, and Pharmacia collectively will be referred to as “Defendants” or “Monsanto.” 7 JURISDICTION AND VENUE 8 21. 9 This Court has personal jurisdiction over the parties in this action pursuant to Oregon 10 Rules of Civil Procedure 4C, 4D, and 4F. The claims arise out of acts and omissions attributable 11 to Defendants that occurred in and outside Oregon. The properties that are the subject of the 12 State’s claims for relief are located in Oregon. The State’s claims for relief arise out of its 13 ownership, use, or possession of those properties. The State’s claims for relief also arise out of 14 its role as trustee of public trust resources, including fish and wildlife. 22. 15 16 17 Venue is proper in this Court pursuant to ORS 14.040. Some of the properties that are the subject of the State’s claims are situated in Multnomah County. 18 23. 19 20 The State has standing to bring this action as an owner and trustee of land and water and as trustee of certain natural resources described above and throughout this Complaint. 21 24. 22 The State also brings this action in its parens patriae capacity and thereby acts on behalf 23 of all Oregonians affected by the presence of PCBs in Oregon’s environment. The State has a 24 quasi-sovereign interest in the well-being, health, and comfort of all Oregonians who have been 25 injured and continue to be threatened by the persistence of Monsanto’s PCBs throughout the 26 State’s lands and natural environment. Such injuries include harm to Oregon businesses, Page 7 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 increased risk of harm to human health, increased risk of harm to the vitality of Oregon’s fish 2 and wildlife species, and decreased availability of Oregon’s natural resources for commercial, 3 recreational, tourist, cultural, and aesthetic purposes. 4 25. 5 The State also has a proprietary interest in the land and resources it owns, controls, or 6 holds in trust. The persistence of Monsanto’s PCBs in and on lands owned, controlled, or held in 7 trust by the State has caused injury to, and has threatened, the State’s proprietary interests. The 8 State has suffered injuries to those interests including, but not limited to, monetary damages that 9 it has incurred as trustee of land in the Portland Harbor, costs that it has incurred remediating 10 buildings and other property contaminated with PCBs, and diminished property value of its 11 buildings and land as a result of PCB contamination. In addition, the State has incurred cleanup 12 and remediation costs at other properties in the State. The State anticipates that it will incur 13 significant additional costs to clean up and remediate additional lands that it owns, controls, or 14 holds in trust that are contaminated by Monsanto’s PCBs. 26. 15 Only this Court has subject matter jurisdiction over Plaintiff’s claims. To the extent that 16 17 Defendants allegedly acted or failed to act at the direction of the United States or any agency 18 thereof, or any officer (or any person acting under that officer) of the United States or any 19 agency thereof, in an official or individual capacity, for or relating to any act under color of such 20 office, Plaintiff does not seek relief for damages caused by such actions or failures to act. To the 21 extent that Defendants allegedly acted or failed to act pursuant to any federal regulation or 22 specification, Plaintiff likewise does not seek relief for any damages caused by such actions or 23 failures to act. Plaintiff does not seek relief for damages caused by actions or failures to act in 24 connection with any government contract deemed necessary for the national defense, and 25 Plaintiff does not seek relief for damages to any federal enclave. Plaintiff does not, by this 26 Page 8 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 Complaint, pursue any form of relief that arises under federal law or otherwise serves as a basis 2 for federal jurisdiction. 3 GENERAL ALLEGATIONS 4 A. PCBs Are Toxic Chemicals That Persist in the Natural Environment. 5 27. Polychlorinated biphenyls (“PCBs”) are a group of human-made organic compounds 6 7 formed by the addition of between 1 and 10 chlorine atoms to the aromatic hydrocarbon 8 “biphenyl.” In each molecule of PCB, the number and location of chlorine atoms determines the 9 compound’s physical and chemical properties. Currently, 209 unique chemical configurations of 10 PCBs have been identified; these configurations are known as “congeners.” 11 28. 12 Based on their chemical composition, PCBs fall within the family of chemical 13 compounds known generally as “chlorinated hydrocarbons.” Other chlorinated hydrocarbons 14 include dioxins (for example, Agent Orange), DDT, Chlordane, Aldrin, and similar pesticides. 29. 15 16 17 PCBs are not naturally occurring substances. There are no known natural sources of PCBs in the environment. 18 30. The physical properties of each PCB congener vary depending on the congener’s degree 19 20 of chlorination. Most congeners are colorless or slightly yellow, odorless, crystalline 21 compounds.3 Others, however, may be liquid mixtures with varying degrees of viscosity.4 22 23 24 25 26 3 International Agency for Research on Cancer (IARC), Polychlorinated Biphenyls and Polybrominated Biphenyls, in IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 107, 51 (2016) (hereinafter IARC Monograph). 4 Id. Page 9 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 Commercially, PCBs generally were manufactured and produced as complex mixtures of PCB 2 congeners, not as single PCB compounds.5 3 31. 4 Commercial manufacture and production of PCBs began in the late 1920s. Since the 5 onset of their commercial production in the United States by Original Monsanto, PCBs were 6 used extensively for industrial and commercial purposes, as well as in consumer products.6 7 PCBs are fire resistant because of their high flash points, minimally water soluble, chemically 8 stable, and possess excellent dielectric properties. Because PCBs are chemically inert, they do 9 not easily degrade; neither do they react to acids, alkalis, or oxidants. The half-life associated 10 with PCBs can be decades-long;7 thus, they will persist in the natural environment for centuries 11 if they are not remediated. 12 32. 13 PCBs are also lipophilic, which causes them to accumulate in lipid-rich tissues and 14 substances, such as the fatty tissues of wildlife, birds, fish, and other animal life.8 33. 15 16 PCBs are highly toxic chemicals that adversely impact human health and the 17 environment. For humans, PCB exposure can cause serious liver damage, depressed immune 18 system function, skin conditions such as acne and rashes, significant irritation of and harm to the 19 nose and lungs, gastrointestinal discomfort, changes in the blood and liver, depression, fatigue, 20 and learning capacity impairment.9 The Environmental Protection Agency (“EPA”) has also 21 22 5 Id. at 53. 6 23 24 25 26 Id. at 71. 7 Agency for Toxic Substances & Disease Registry (“ATSDR”), U.S. Dep’t of Health & Human Servs., Toxicology Profile for Polychlorinated Biphenyls 326–28 (Nov. 2000) (hereinafter ATSDR Toxicology Profile). 8 IARC Monograph at 431. 9 See generally ATSDR Toxicology Profile at 90–283. Page 10 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 concluded that PCBs are probable human carcinogens. Children are particularly susceptible to 2 harm by PCB exposure, and they can be exposed to PCBs both prenatally and through breast 3 milk. Because of their physiology and behavior, children may also be particularly vulnerable to 4 altered development due to PCBs.10 5 34. 6 In 1996, EPA reassessed PCB carcinogenicity based on data related to Aroclors 1016, 7 1242, 1254, and 1260.11 EPA’s reassessment was peer-reviewed by 15 experts, all of whom 8 agreed that PCBs are probable human carcinogens. EPA also confirmed in its reassessment what 9 scientists had established years earlier—that PCBs are associated with serious non-cancer health 10 effects, including harm to the human and animal immune, reproductive, nervous, and endocrine 11 systems. 12 12 35. 13 PCBs are toxic to a number of species, including fish, mammals, pinnipeds (e.g., seals 14 and sea lions), and birds. Because PCB transport patterns show a gradual redistribution toward 15 the marine environment, fish-eating marine mammals are potentially the most sensitive wildlife 16 receptors to PCB exposure. Studies show that PCB accumulation impairs fish and wildlife 17 reproduction because of increased embryotoxicity and decreased egg viability and hatchability, 18 19 20 21 22 23 24 25 26 10 Id. at 381 (“Younger children may be particularly vulnerable to PCBs because, compared to adults, they are growing more rapidly and generally have lower and distinct profiles of biotransformation enzymes, as well as much smaller fat depots for sequestering the lipophilic PCBs.”); id. at 7 (“Children . . . may accidentally eat some PCBs through hand-to-mouth behavior, such as by putting dirty hands or other soil/dirt covered objects in their mouths, or eating without washing their hands. Some children also eat dirt on purpose; this behavior is called pica. Children could also be exposed by playing with old appliances or electrical devices that contain PCBs.”) 11 “Aroclor” is the trade name associated with PCBs manufactured and distributed by Monsanto. As described in further paragraphs of this Complaint, Monsanto assigned each Aroclor congener mixture a numerical identifier (e.g., 1016, 1242, 1254, or 1260), which generally was assigned based on the mixture’s chlorine content. 12 See Environmental Protection Agency, PCBs: Cancer Dose-Response Assessment and Application to Environmental Mixtures (Sept. 1996). Page 11 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 due, in part, to thinning egg shell thickness. PCBs also can cause neurological impairment in 2 wildlife, including disruptions to the nervous system and changes in behavior, as well as 3 endocrine-related impairments and dermal/ocular effects. Moreover, studies of minks and 4 certain bird species have shown that PCB contamination correlates to population decline and 5 reproductive impairment, particularly in fish-eating species.13 6 B. 7 Monsanto Caused Hundreds of Millions of Pounds of PCBs to Enter and Contaminate the Natural Environment. 36. 8 9 Commercial production of PCBs in the United States began in 1929 by Swann Research, 10 Inc., in Anniston, Alabama, the corporate predecessor to Original Monsanto. Swann Research 11 manufactured and distributed PCBs under the trade name “Aroclor,” which Original Monsanto 12 later trademarked. 13 37. 14 15 PCB manufacturers in other countries used different trade names for PCBs that they produced. 16 38. 17 Monsanto assigned each Aroclor congener mixture a unique number (e.g., Aroclor 1221, 18 Aroclor 1232, Aroclor 1242), the last two digits of which generally referred to the amount of 19 chlorine in the mixture. 20 39. 21 Original Monsanto purchased Swann Research in 1935, in part because of the high profits 22 that Swann Research was generating through the manufacture, sale, and distribution of PCBs and 23 PCB-containing materials. 24 25 26 13 See, e.g., ATSDR Toxicology Profile at 285–95. Page 12 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 40. 2 Original Monsanto—and its corporate predecessor Swann Research—was the only 3 manufacturer in the United States that intentionally produced and distributed PCBs for 4 widespread commercial use between 1930 and 1979. 5 6 41. Original Monsanto distributed PCBs to its customers on a widespread basis. Its annual 7 production peaked in 1970, when Monsanto produced a total volume of 39,000 metric tons of 8 PCBs. Between 1957 and 1971, Monsanto produced 12 different types of Aroclor, each with a 9 different chlorine content ranging from 21 to 68 percent. Between 1930 and 1977, Monsanto 10 produced a total of 641,246 metric tons of PCBs in the United States. Monsanto produced PCBs 11 at two plant locations: Anniston, Alabama, and Sauget, Illinois. 12 13 42. Monsanto developed, produced, and marketed PCBs for use in a wide range of 14 commercial and industrial applications. PCBs were advertised and predominantly used as 15 components of dielectric fluids—materials used for electrical insulation—in capacitors, 16 transformers, and other electrical systems. Indeed, during the 1960s, dielectric fluid in 17 capacitors and transformers accounted for 50 to 60 percent of the sales of PCBs in the 18 United States. Other uses included, to name only a few, hydraulic systems, heat transfer and 19 cooling systems, sealants and flame-retardant coatings, inks, adhesives, rubber products, 20 plasticizers, carbonless copy paper, and paints. 21 22 43. PCBs enter the natural environment in a variety of ways. Many applications in which 23 they were used—e.g., coolants, flame retardants, plasticizers, paint—are known as “open 24 applications” and allow the chemicals to enter the natural environment simply through use of the 25 PCB-containing material. Even where PCBs were used in “closed applications,” for example in 26 capacitors and transformers, PCBs nevertheless escaped from these systems through leaks, Page 13 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 maintenance, or by volatilizing into the air. And, because Monsanto did not tell the public of the 2 dangers of PCBs, PCB-containing materials routinely were disposed of without regard to where 3 the PCBs ultimately would end up. For example, companies often left old transformers filled 4 with PCB-containing oils on the ground outside or in junk yards, allowing PCB-containing oil to 5 drain onto the ground. As a result, hundreds of millions of pounds of PCBs have entered the 6 natural environment, causing widespread contamination. 7 C. 8 Monsanto’s PCBs Persist in Humans and in Wildlife and Throughout the Natural Environment. 9 44. 10 PCBs are now found worldwide at measurable levels throughout the environment, 11 including in soils and sediments, water, fish, and wildlife.14 12 45. 13 Once released into the environment, PCBs can migrate significant distances, transported 14 by water or through the air. Because they are water insoluble, PCBs tend to fall through the 15 water column when they reach a waterway, ultimately binding to sediments or other particulates. 16 There, they either persist for centuries or are transported downstream with sediment. PCBs also 17 migrate through the air, either in the vapor phase or bound to particulates. 18 46. 19 PCBs enter the food chain when plants or animals ingest them. The impact of PCBs on 20 animals is magnified through a process known as “bioaccumulation.” Because PCBs are 21 lipophilic, they tend to accumulate in animals’ fatty tissues rather than be excreted by the 22 animals’ bodies. Bioaccumulation starts when a small animal—perhaps an insect—ingests 23 materials containing PCBs. When a fish eats thousands of such insects over its lifetime, the 24 PCBs in the insects accumulate in the fish’s fatty tissues. Over the life of the fish, the 25 26 14 IARC Monograph at 74. Page 14 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 concentration of PCBs in its tissues can reach significant levels. And, when a predator—e.g., an 2 eagle, whale, or human—eats PCB-contaminated fish, the concentration of PCBs will increase 3 yet again. Seals, whales, and eagles may eat thousands of fish over their lifetimes, and all the 4 PCBs in those fish will remain in the predators’ fatty tissues. So intense are the effects of this 5 bioaccumulation process that the remains of some orca whales have been treated as hazardous 6 waste when they wash up on shore. 7 47. 8 After they enter the natural environment, PCBs also undergo a process known as 9 “weathering.” During the weathering process, a PCB compound goes through physical or 10 chemical changes due to natural processes such as bacterial action, accumulative and metabolic 11 processes in higher biological organisms, or exposure to ultraviolet radiation. As a result of 12 those changes, PCB congener patterns found in humans and in wildlife often are different from, 13 and sometimes more harmful or concentrated than, a congener pattern found in commercially 14 produced PCB-containing materials. 48. 15 16 Human beings are exposed to PCBs through ingestion, inhalation, or direct contact with 17 PCBs or PCB-containing materials and food. Humans may inhale PCBs that are emitted into the 18 air, or they may be exposed through consumption of PCB-contaminated food or beverages. They 19 may also absorb PCBs upon direct physical contact—for example, through direct contact with 20 contaminated sediment at a swimming beach. Because PCBs bioaccumulate in fish and other 21 wildlife species and in domestic animals, humans often are exposed through the consumption of 22 PCB-contaminated fish and other food products. 23 24 49. PCBs are transported through soil, sediment, air, and water. Because they attach so 25 readily to particulate matter, they often are transported to remote areas far from the location of 26 their initial release. Page 15 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 D. Monsanto Has Known Since 1937 That PCBs Are Toxic. 2 50. 3 Today, it is commonly known that PCBs are some of the most toxic and persistent 4 chemicals in our environment. Monsanto, however, has known that since at least 1937. And by 5 at least the 1950s, if not earlier, Monsanto had overwhelming evidence that PCBs escaped into 6 the environment—even from closed systems—where they would persist indefinitely. 7 Nevertheless, Monsanto continued to produce, market, and distribute these dangerous substances 8 for decades, despite knowing they could cause serious and significant harm to the environment 9 and to humans. 10 51. 11 Ample evidence shows that Monsanto knew of the dangers of PCBs very early on. For 12 example, an internal Monsanto memorandum dated October 11, 1937, explained the toxic effects 13 that Aroclors have on humans and animals:15 14 15 16 17 18 19 20 21 22 23 24 25 15 “Experimental work in animals shows that prolonged exposure to Aroclor vapors evolved at high temperatures or by repeated oral ingestion will lead to systemic toxic effects. . . . Repeated bodily contact with the liquid Aroclors may lead to an acne-form skin eruption.” 26 Page 16 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 52. 2 The very next year, Dr. Cecil Drinker of the Harvard School of Public Health presented 3 Monsanto with the findings of his research, which further explained the toxic effects of PCBs 4 and demonstrated that PCB exposure resulted in permanent liver damage in test animals.16 5 Despite learning of the serious effects of PCB-exposure through this and other sources, 6 Monsanto nevertheless continued to produce PCBs without providing any warnings to the public 7 or its customers. 53. 8 9 On the rare occasions when its customers sought information about the hazards of PCBs, 10 Monsanto minimized and dismissed those risks. For example, in December 1947, in response to 11 an inquiry from a customer, the Celanese Corporation of America, Monsanto directed the 12 Celanese Corporation to Drinker’s publications and noted that, according to that research, 13 “Aroclor 1268 is almost non-toxic” but “[t]he vapors of other Aroclors studied are toxic and 14 should be avoided.” 15 16 17 18 19 20 21 22 23 24 25 26 16 Cecil K. Drinker, Report to the Monsanto Chemical Company (Sept. 15, 1938), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19380915_545.pdf. Page 17 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 54. 2 3 Similarly, in 1949, Monsanto developed its own statement regarding the risks of Aroclor that it would give to inquiring clients and customers.17 That statement read,18 4 5 6 7 8 9 55. 10 But, throughout that time, Monsanto knew PCBs were toxic. For example, an internal 11 12 memorandum from Elmer P. Wheeler, Monsanto’s Manager of Environmental Health, to 13 Mr. E. Mather, Monsanto’s Chief Chemist, dated September 1, 1953, made clear that Monsanto 14 knew that “Aroclors cannot be considered nontoxic.” 56. 15 In 1955, Mather authored an internal report summarizing the “Process for the Production 16 17 of Aroclors, Pyranols, etc. at the Anniston and at the Wm. G. Krummrich Plant.” Attached to 18 that report was an article authored by Robert M. Brown, Chief of the Industrial Hygiene Section 19 of the City of St. Louis Department of Public Welfare, entitled “On the Toxicity of the 20 ‘Aroclors’” and published in The Chemical Analyst in September 1947. That article explains, 21 22 23 24 25 17 Interoffice Memorandum on Aroclor Toxicity from M.N. Strachan to J.R. Barrett (Aug. 30, 1949), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19490830_161.pdf. 18 “TOXICITY—Prolonged exposure to AROCLOR vapours will lead to systemic toxic effects. . . . Acne-form skin eruptions may arise from continued bodily contact with liquid AROCLORS, but normal precautions and, if necessary, suitable garments provide adequate protection. Toxic effects will follow considerable oral ingestion, but this hazard is unlikely to be encountered.” 26 Page 18 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 3 There is need . . . to give warning [about PCBs]. For the toxicity of these compounds has been repeatedly demonstrated, both from the standpoint of their absorption from the inspired air, as well as from their effects in producing a serious and disfiguring dermatitis when allowed to remain in contact with the skin. 4 5 57. Remarkably, and notwithstanding the abundance of research demonstrating that PCBs 6 have systemic toxic effects, Monsanto’s Medical Director, Emmet Kelly, recommended to 7 Monsanto that it need not conduct any additional toxicity testing of the chemical. The company 8 worried more about possible legal implications than any harm to humans or the environment: 9 10 11 12 13 14 15 16 17 18 19 20 21 58. 22 23 Monsanto’s disregard for human life and the environment, however, did not stop the most 24 sophisticated consumers from conducting their own independent research on the hazards of 25 PCBs. For example, the U.S. Navy rejected the use of PCBs in its submarines because it 26 concluded that PCBs were too dangerous. The Navy reached that conclusion after conducting its Page 19 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 own independent testing of PCBs, which revealed that “[t]he inhalation of 10 milligrams of [the 2 PCB] Pydraul 150 per cubic meter or approximately 2 tenths of a part of the Aroclor component 3 per million for 24 hours a day for 50 days caused, statistically, definite liver damage.” Monsanto 4 tried to change the Navy’s mind, but the Navy ultimately decided that PCBs simply “would not 5 be suitable for use in submarines.”19 The Navy informed Monsanto that it “would not accept 6 Pydraul 150 and probably no other fluid containing chlorine or chlorinated diphenyls.”20 7 59. Since practically the beginning of its commercial production of PCBs, Monsanto was 8 9 well aware of PCBs’ toxic effects. It knew that prolonged exposure to PCBs would lead to 10 systemic toxic effects in both humans and animals. It knew that those systemic toxic effects 11 could be caused either by inhalation of PCB vapors or direct contact with PCBs or PCB- 12 containing materials. It declined to conduct its own independent testing. Others, however, did 13 conduct testing, and their research demonstrated that exposure to PCBs, even at relatively low 14 concentrations, was harmful to the health of both humans and the environment. 15 E. 16 Monsanto Also Knew, Since at Least the 1950s, That PCBs Escaped Into the Environment, Where They Would Persist and Destroy the Natural Environment. 17 60. 18 Throughout the 1940s and 1950s, scientists continued to report to Monsanto on the 19 widespread, harmful effects of PCBs. Dr. Kelly continued to find himself in the position of 20 having to explain, primarily to consumers of Monsanto products, that use of or exposure to 21 Monsanto’s PCBs may have caused the harm that customer reported.21 Yet Monsanto continued 22 to increase the volume of PCBs it produced and sold. 23 19 24 25 26 Memorandum from Elmer P. Wheeler to Philip L. Slayton on Toxicity of Pydraul 150 (Sept. 25, 1957), http://www.chemicalindustryarchives.org/search/pdfs/anniston/ 19570925_500.pdf. 20 Id. 21 See, e.g., Memorandum from R. Emmet Kelly to Richard Davis on Aroclor Exposure at Hexagon Laboratories (Feb. 2, 1961), http://www.chemicalindustryarchives.org/search/pdfs/ Page 20 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 61. Meanwhile, public awareness of the harmful effects of chlorinated hydrocarbons—at the 3 time, primarily DDT—also increased. Detailed accounts of the toxic effects of DDT on the 4 environment became more accessible to the public, triggering widespread concern for the 5 continued use of chlorinated hydrocarbons more generally. In 1962, for instance, Rachel Carson 6 authored Silent Spring, which was then known as the most thorough explanation, and effective 7 denunciation, of industry practice with respect to the use and misuse of chlorinated 8 hydrocarbons: 9 10 11 12 13 14 15 In the less than two decades of their use, [dangerous chemicals] have been so thoroughly distributed throughout the animate and inanimate world that they occur virtually everywhere. They have been recovered from most of the major river systems and even from streams of groundwater flowing unseen through the earth. Residues of these chemicals linger in soil to which they may have been applied a dozen years before. They have entered and lodged in the bodies of fish, birds, reptiles, and domestic and wild animals so universally that scientists carrying on animal experience find it almost impossible to locate subjects free from such contamination. They have been found in fish in remote mountain lakes, in earthworms burrowing in the soil, in the eggs of birds—and in man himself. 16 17 18 19 20 21 22 23 24 25 26 62. Silent Spring focused primarily on industry’s use of DDT and other insecticide sprays made of chlorinated hydrocarbons, but during the 1960s the scientific research on the anniston/19610202_587.pdf (“Yesterday, Mr. Allen of the subject company called and stated he had two employees nauseated from exposure to a leak in a heat transfer unit that used Aroclor 1248.”); Letter from Jack T. Garrett to S. Facini on Pydraul Exposure (Aug. 29, 1960), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19600929_176.pdf (“I would not expect [PCBs] to be very toxic to aquatic life. On the other hand, this is a surmise on my part since we have no tests on aquatic animals.”); Memorandum from R. Emmet Kelly to O.F. Heasel on Pydraul Exposure (June 23, 1959), http://www.chemicalindustryarchives.org/search/ pdfs/anniston/19590623_175.pdf (“I think [they] are being overcautious in this matter, but I certainly can’t give Pydraul an absolutely clean bill of health . . . .”); Letter from Joseph P. Allen to Emmet Kelly on Aroclor Exposure at Hexagon Laboratories (Feb. 14, 1961), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19610214_177.pdf (noting, in a letter to Kelly, that “two . . . plant personnel were exposed to hot Arochlor (1248) vapors generated by a broken pipe connection [and] the two men developed symptoms of Hepatitis and were confined to a hospital for approximately two weeks”). Page 21 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 environmental and ecological effects of PCBs was also becoming more widely known. As a 2 result, both the scientific community and Monsanto were becoming increasingly aware that 3 PCBs were just as poisonous as, if not more poisonous than, DDT. 4 63. 5 In 1966, an article summarizing the findings of Swedish researcher Soren Jensen was 6 published in an article in the Swedish daily paper, Dagens Nyheter. The article described 7 Jensen’s findings: 8 [PCB] is found in salmon and in pike. It is found in sea eagle living on fish. It is found on the surface of the needles of the fir trees, it is in the air. It is found in the hair of a [five-month-old] baby . . . . 9 10 The scientists working with biocides have [found that] a group of poisons, Polychlorinated Biphenols (for short PCB) . . . are closely related to, and equally poisonous as, DDT. 11 12 PCB is broken down considerably slower than DDT and gives rise to damage of liver and skin. PCB is not used as a[n] herbicide. It is not manufactured in Sweden but is supposed to [be] used by the industry to quite some extent. . . . 13 14 Research Asst. S. Jensen has tested 200 fishes and a number of birds. He has taken several samples of air and has reached the conclusion that PCB is equally common in Nature as chlorinated hydrocarbons of the type of DDT, DDE, and Lindane. . . . 15 16 17 Monsanto circulated the article internally and, shortly thereafter, visited Jensen at the Stockholm 18 University to “discus[s his] programme of work.” Based on that discussion, Monsanto 19 concluded that “there is no doubt that the chemical which is the subject of [Jensen’s] 20 investigation and the news release, is chlorinated diphenyl i.e. Aroclor.”22 21 22 23 24 25 26 22 Memorandum from D. Wood to G.R. Buchanan on Soren Jensen Research (Jan. 26, 1967), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19670126_183.pdf Page 22 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 3 4 5 6 7 8 9 10 11 12 13 64. Monsanto’s own research, conducted in the waterways adjacent to its Anniston 14 15 manufacturing facility, demonstrated the seemingly limitless potential of PCBs for 16 environmental destruction. In a study of bluegills caged in various locations, the results were 17 dramatic: 18 A branch of Snow Creek originating in the Monsanto Plant and flowing east . . . Result: All 25 fish lost equilibrium and turn on their sides in 10 seconds and all were dead in 3 ½ minutes. 19 20 21 Snow Creek at a point where it is crossed by the Highway 21-Highway 78 cut-off . . . . Result: 10 fish were down after 1 hour and 40 minutes; all were down in 2 hours and 25 minutes. All were dead in 2 hours and 35 minutes. 22 .... 23 Anniston Sewage Treatment Plan – near the out-flow to Choccolocco Creek. . . . Result: All 25 fish were dead when the first check was made after 23.5 hours. Their condition suggested that they had died several hours earlier.23 24 25 26 23 Letter from Denzel Ferguson to L.C. Fuhrmeister on Caging Experiments (Nov. 2, 1966), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19661102_291.pdf Page 23 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 65. 2 As Monsanto became more and more concerned about threats of negative publicity to its 3 PCB business,24 the reality of the toxic effects associated with the persistence of PCBs in the 4 natural environment grew increasingly evident. Monsanto received reports of significant fish 5 kills in waterways adjacent to its manufacturing plants. A 1968 study of Snow Creek, a 6 waterway adjacent to Monsanto’s Anniston plant, characterized the creek as “a potential source 7 of future legal problems”:25 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24 Memorandum from R. Emmet Kelly to D. Wood on Response to Aroclor Reports (Feb. 10, 1967), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19670210_586.pdf (“We are very worried about what is liable to happen in the states when the various technical and lay news media pick up the subject. This is especially critical at this time because air pollution is getting a tremendous amount of publicity in the United States.”). 25 Monsanto Chemical Company, Investigations of Certain Pesticide-Wildlife Relationships in the Choccolocco Creek Drainage (Sept. 1, 1966—Aug. 31, 1967), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19670831_186.pdf. Page 24 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 3 4 5 6 7 8 66. 9 10 In December 1968, Richard Risebrough, a researcher at the Institute of Marine Resources 11 and the University of California-Berkeley, published a report entitled Chlorinated Hydrocarbons 12 in Marine Ecosystems that identified chlorinated hydrocarbons generally as “the most abundant 13 synthetic pollutants present in the global environment.” The article reported significant 14 concentrations of PCBs in the bodies and eggs of peregrine falcons and 34 other bird species. 15 The report linked PCBs to the rapid decline in peregrine falcon populations in the United States. 16 Internally, Monsanto employees acknowledged that “Risebrough has found PCBs along with 17 chlorinated pesticides in a number of species of fish and birds along the California coast as well 18 as in waters off Baja California and Central America.”26 67. 19 By January of the following year, Monsanto employees recognized the need to respond, 20 21 if only internally. In a memo dated January 23, 1969, and designated as “C-O-N-F-I-D-E-N-T-I- 22 A-L,” Monsanto’s Paul Hodges, an official in its St. Louis General Offices, noted the need for 23 Monsanto to begin to “protect” itself: 24 25 26 26 Memorandum from Elmer P. Wheeler to W.H. Richard on Polychlorinated Biphenyls in the Environment (Oct. 21, 1968), http://www.chemicalindustryarchives.org/search/pdfs/ anniston/19681021_305.pdf. Page 25 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 3 4 5 6 7 8 9 10 11 12 13 68. 14 Monsanto therefore formed an “Aroclor Ad Hoc Committee,” and tasked that committee 15 with preparing recommendations for actions that Monsanto could take to improve its reputation 16 and salvage its bottom line, notwithstanding the now publicly known damage resulting 17 worldwide from PCBs. The committee’s charge was to develop a plan that would: 18 1. Permit continued sales and profits of Aroclors and Terphenyls. 19 2. Permit continued development of uses and sales. 20 3. Protect [the] image of Organic Division and of the Corporation.27 21 69. 22 Monsanto’s Aroclor Ad Hoc Committee first met on September 5, 1969. At that 23 meeting, the committee acknowledged that PCBs had been found in fish, oysters, shrimp, birds, 24 and in and “[a]long coastlines of industrialized areas such as Great Britain, Sweden, Rhine River, 25 26 27 Confidential Minutes of Aroclor “Ad Hoc” Committee First Meeting (Sept. 5, 1969), http://www.chemicalindustryarchives.org/search/pdfs/anniston/19690905_200.pdf. Page 26 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 low countries, Lake Michigan, Pensacola Bay, and in Western wild life.” The committee was 2 aware that PCBs “may be a global contaminant.” Moreover, the committee knew that ordinary 3 usage of Monsanto’s own PCB-containing materials was a cause of the environmental problem: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 70. The Aroclor Ad Hoc Committee issued a confidential report on October 2, 1969. In that report, the Committee explained its overall findings: The committee believes 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. (Emphasis added.) 20 21 71. On September 9, 1969, Monsanto employee W.R. Richard, who was a member of the 22 Aroclor Ad Hoc Committee, wrote an interoffice memorandum entitled “Defense of Aroclor,” in 23 which he acknowledged that “[w]ater [p]ollution seems to be [the] first issue” with Aroclor: 24 “Aroclor product is refractive, will settle out on solids—sewerage sludge—river bottoms, and 25 apparently has a long life.” He noted that Aroclors 1254 and 1260 had been found in shrimp 26 along Florida’s Gulf Coast; in the San Francisco Bay, where it was reported to thin egg shells in Page 27 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 birds; and in the Great Lakes. Richard also acknowledged that the company could not defend 2 itself entirely: We can’t defend vs. everything. Some animals or fish or insects will be harmed. Aroclor degradation rate will be slow. Tough to defend against. Higher chlorination compounds will be worse [than] lower chlorine compounds. Therefore we will have to restrict uses and clean-up as much as we can, starting immediately. 3 4 5 6 72. 7 8 On January 29, 1970, Wheeler, Monsanto’s Manager of Environmental Health, circulated laboratory reports discussing results of animal studies. He noted,28 9 10 11 12 13 14 73. 15 Rather than take steps to correct the impact that Monsanto’s poisonous materials were 16 likely to have on the natural environment, Monsanto opted instead to take steps that would 17 18 19 20 21 continue to improve Monsanto’s reputation and bottom line. Although Wheeler recognized that ignoring the environmental havoc that the PCBs would wreak worldwide was “unacceptable from a legal, moral, and customer public relations and company policy viewpoint,” he ultimately concluded that Monsanto’s profits were more important: “[T]here is too much customer/market need and selfishly too much Monsanto profit to go out” to take any action to the contrary. 22 23 24 25 28 “Our interpretation is that the PCB’s are exhibiting a greater degree of toxicity in this chronic study than we had anticipated. Secondly, although there are variations depending on species of animals, the PCB’s are about the same as DDT in mammals.” 26 Page 28 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 74. In an interoffice memorandum circulated on February 16, 1970, and entitled “Pollution 2 3 Letter,” Monsanto provided talking points for its employees when discussing the dangers of 4 PCBs with inquiring customers: “We (your customer and Monsanto) are not interested in using a 5 product which may present a problem to our environment.” But the memorandum also 6 acknowledged that Monsanto “will continue to make” PCBs; “[w]e can’t afford to lose one 7 dollar of business,” and admonished employees not to take any product back: “We want to avoid 8 any situation where a customer wants to return fluid. . . . We would prefer that the customer use 9 up his current inventory and purchase [new fluids] when available. He will then top off with the 10 new fluid and eventually all Aroclor 1254 and 1260 will be out of his system. We don’t want to 11 take fluid back.” (Emphasis in original.) 12 75. 13 In 1970, the year after Monsanto formed the Aroclor Ad Hoc Committee, and despite 14 Monsanto’s knowledge of the global nature of PCB contamination, PCB production in the 15 United States peaked at 85 million pounds. 16 76. 17 Growing awareness of the ubiquity of PCBs led the U.S. Government to conduct an 18 investigation of PCBs’ health and environmental effects and any resulting contamination of food 19 and other products. In May 1972, an interdepartmental government task force published a report 20 confirming that PCBs were highly persistent, could bioaccumulate to relatively high levels, and 21 could have serious adverse effects on human health.29 22 23 24 25 26 29 Participating agencies included, among others, EPA and the Departments of Agriculture; Commerce; Health, Education, and Welfare; and the Interior. See generally Interdepartmental Task Force on PCBs, Polychlorinated Biphenyls and the Environment (May 1972). Page 29 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 77. 2 After that report, environmental sampling and studies suggested that PCBs were a “more 3 serious and continuing environmental and health threat than had been originally realized.”30 To 4 address these concerns, EPA undertook a study to assess PCB levels in the environment on a 5 nationwide basis. That study revealed widespread occurrence of PCBs in bottom sediments in 6 several states; in fish and birds; in lakes and rivers; in the Atlantic Ocean, the Pacific Ocean, and 7 the Gulf of Mexico; in sewage treatment facilities; in a variety of foods, including milk, poultry, 8 eggs, fish, meat, and grains; and in human milk, blood, hair, and tissues. 9 78. 10 At the same time, Monsanto continued to promote the use and sale of Aroclor and other 11 PCB compounds. In a 1960 brochure, Monsanto promoted the use of Aroclors in transformers 12 and capacitors, utility transmission lines, home appliances, electric motors, fluorescent light 13 ballasts, wire and cable coatings, impregnants for insulation, dielectric sealants, chemical 14 processing vessels, food cookers, potato chip fryers, drying ovens, thermostats, furnaces, and 15 vacuum diffusion pumps. According to the brochure, Aroclors also could be used as a 16 component of any of the following: automotive transmission and industrial cutting oils; 17 insecticides; natural waxes used in dental casting, aircraft parts, and jewelry; abrasives; 18 specialized lubricants; adhesives; moisture-proof, tack, masonry, and other coatings; printing 19 inks; papers; mastics; sealant; caulking compounds; plasticizers; resin; paints, varnishes, and 20 lacquers; railway tank and gondola cars; and wood and metal maritime equipment. 21 79. A 1961 company brochure explained that Monsanto’s Aroclors were being used in a wide 22 23 variety of common household items, including in “lacquers for women’s shoes”; as “a wax for 24 25 26 30 Environmental Protection Agency Office of Toxic Substances, Review of PCB Levels in the Environment, at 1 (Jan. 1976). Page 30 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 the flame proofing of Christmas trees”; as floor wax; as an adhesive for bookbinding, leather, 2 and shoes; and as invisible marking ink used to make chenille rugs and spreads. 3 4 80. During the entirety of the 1960s, and probably before, Monsanto knew that its Aroclors 5 were being used in a variety of industrial, commercial, household, and consumer goods. Indeed, 6 Monsanto encouraged these uses by affirmatively urging salesmen to market products for these 7 and other applications. 81. 8 9 A few years later, in 1970, Monsanto tried to distance itself from the variety of 10 applications of Aroclors that it proudly espoused a few years earlier. In a press release, the 11 company claimed, “What should be emphasized . . . is that PCB was developed over 40 years 12 ago primarily for use as a coolant in electrical transformers and capacitors. It is also used in 13 commercial heating and cooling systems. It is not a ‘household’ item.” Yet, in 1970, Monsanto 14 was still marketing and selling Aroclor as a compound for use in common household items. 15 16 F. Monsanto Concealed the Harmful Effects of PCBs From Consumers and Government Entities. 17 18 82. While the scientific community and Monsanto knew that PCBs were toxic and becoming 19 a global contaminant, Monsanto repeatedly misrepresented those facts, telling consumers, the 20 public, and government entities the exact opposite—that the compounds were not toxic and that 21 the company would not expect to find PCBs in the environment in a widespread manner. 22 23 83. For example, in a March 24, 1969, letter to Los Angeles County Air Pollution Control 24 District, Monsanto advised that the Aroclor compounds “are not particularly toxic by oral 25 ingestion or skin absorption.” Addressing reports of PCBs found along the West Coast, 26 Monsanto claimed ignorance as to their origin, explaining that “very little [Aroclor] would Page 31 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 normally be expected either in the air or in the liquid discharges from a using industry.” A 2 similar Monsanto letter to the Regional Water Quality Control Board explained that PCBs are 3 associated with “no special health problems” and “no problems associated with the 4 environment.” 5 6 84. In May 1969, Wheeler spoke with a representative of the National Air Pollution Control 7 Administration, who promised to relay to Congress the message that Monsanto “cannot conceive 8 how the PCBs can be getting into the environment in a widespread fashion.” This is the same 9 Wheeler who, only seven months later, circulated internally to Monsanto executives laboratory 10 reports showing that PCBs were as toxic as DDT in mammals. 11 85. 12 Monsanto delivered the same message to the New Jersey Department of Conservation in 13 July 1969, claiming first that, “[b]ased on available data, manufacturing and use experience, we 14 do not believe the PCBs to be seriously toxic.” The letter then reiterated Monsanto’s position 15 regarding environmental contamination: “We are unable at this time to conceive of how the 16 PCBs can become wide spread in the environment. It is certain that no applications to our 17 knowledge have been made where the PCBs would be broadcast in the same fashion as the 18 chlorinated hydrocarbon pesticides have been.” 19 20 G. Land, Waters, and Natural Resources Owned or Held in Trust by the State of Oregon Have Been Impaired by PCB Contamination. 21 22 86. The State of Oregon, by and through the Department of State Lands (DSL), owns or 23 holds in trust for the benefit of the public approximately 2.8 million acres of land, as well as the 24 waters of all navigable or tidally influenced rivers, waterways, and lakes within the State. The 25 remaining surface and groundwater, from all sources of supply and prior to capture, is also held 26 Page 32 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 in trust by the State for the benefit of the public. The State, as trustee, holds title to such waters 2 subject to the public’s right to use the water for various beneficial purposes. 3 4 87. In its capacity as trustee of all natural resources situated within its borders, the State has 5 the authority to protect and preserve, for the benefit of the public, those natural resources, 6 including public waters, from impairment and harm. 7 8 9 10 88. As a result of Monsanto’s manufacture, sale, and distribution of PCBs throughout the United States, including in Oregon, Monsanto’s PCBs continue to persist throughout Oregon’s natural environment. 11 89. 12 Pursuant to its authority under state law, the State has investigated, monitored, and 13 detected the presence of PCBs on its lands, in its waters, and in various wildlife species and other 14 public trust resources within its borders. 90. 15 16 State-owned waters in which PCBs are known to persist include but are not limited to: 17 a. Portland Harbor, 18 b. Lower Columbia River, 19 c. Middle Columbia River, 20 d. Coos Bay, 21 e. Columbia Slough, 22 f. Johnson Creek, 23 g. Coffee Lake Creek, 24 h. Mill Creek, 25 i. Pringle Creek, 26 j. Willamette River, Page 33 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 k. Tualatin River, 2 l. Upper and Lower John Day Rivers, 3 m. Middle Fourth Lake, and 4 n. Muddy Creek. 5 The Portland Harbor 6 91. 7 The area of the lower Willamette River immediately upstream of its confluence with the 8 Columbia River generally is known as the “Portland Harbor.” In December 2000, EPA, pursuant 9 to its authority under the federal Comprehensive Environmental Response, Compensation, and 10 Liability Act (“CERCLA”), identified the Portland Harbor area as a “Superfund Site” and placed 11 it on the National Priorities List. 12 92. 13 The Portland Harbor Superfund Site includes an approximate 10-mile stretch of the 14 Willamette River, between river mile (RM) 1.9 and RM 11.8.31 The upstream end of the 15 Portland Harbor Superfund Site is currently located near the Broadway Bridge in downtown 16 Portland. The Superfund Site area is approximately 2,190 acres and includes both in-river and 17 upland areas. 18 93. 19 The presence of PCBs in the lower Willamette River, the lower Columbia River, 20 Multnomah Channel, and the sediments of those waterways, was a significant factor in EPA’s 21 decision to place the Portland Harbor on the National Priorities List and require potentially 22 responsible parties to remediate PCB-related contamination. 23 24 25 26 31 Measured from confluence of the Willamette River with the Columbia River. Page 34 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 94. 2 The Portland Harbor is characterized by its wide variety of commercial, industrial, 3 residential, recreational, and agricultural uses. Its waterfront land and harbor uses generally 4 consist or consisted of ship building; wood products manufacturing and treating; metal recycling, 5 production, and fabrication; manufactured gas production; electrical production and distribution; 6 fuel storage; asphalt manufacturing; marine operations; and rail. 7 95. 8 Many of the industrial landowners and users along the Portland Harbor waterfront 9 handled, used, and disposed of Monsanto’s PCBs or PCB-containing materials. Transformers 10 used in wood products manufacturing and treatment operations, for instance, contained PCBs 11 that were released into the natural environment. Ancillary operations associated with metal 12 recycling, production, and fabrications were known to cause releases of PCBs used in hydraulic 13 fluids and other products. Industrial uses relating to electrical production and distribution 14 resulted in the handling and disposal of dielectric fluids containing PCBs. PCBs are also known 15 contaminants associated with steel mills, smelters, foundries, and railyards, all of which are 16 significant components of the Portland Harbor industrial landscape. 17 96. 18 Four categories of entities are jointly and severally liable to clean up and remediate a 19 contaminated site: the current owners or operators of the site, the owners or operators of the site 20 at the time the hazardous materials were disposed of at the site, anyone who generated hazardous 21 waste that was disposed of at the site or who arranged to dispose of hazardous material at the 22 site, and anyone who transported hazardous material to the site.32 Together, these parties are 23 known as “potentially responsible parties” (“PRPs”). 24 25 26 32 See Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a) (2016). Page 35 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 97. 2 The State, by and through DSL, holds the bed and banks of the lower Willamette River, 3 the Columbia River, and Multnomah Channel, including the Portland Harbor Superfund Site, in 4 trust for the people of Oregon. As a result, EPA has identified the State of Oregon as a PRP in 5 the Portland Harbor.33 As a PRP, the State, through DSL, faces significant potential liability for 6 cleanup costs in the Portland Harbor, and has already spent millions of dollars in defense and 7 investigation costs related to the presence of PCBs in the Portland Harbor. 98. 8 9 EPA has also identified the State of Oregon, by and through its Department of 10 Transportation (ODOT), as a PRP in the Portland Harbor. As a PRP, the State, through ODOT, 11 faces significant potential liability for cleanup costs in the Portland Harbor, and has already spent 12 millions of dollars in defense costs related to the presence of PCBs in the Portland Harbor. 13 Other State-Owned Waterways 14 99. The State has also investigated, monitored, and detected the presence of PCBs in certain 15 16 other state-owned waterways at concentrations that are hazardous to human health and the 17 environment. Those waterways include, but are not limited to, the following: 18 a. The Lower Columbia River, between RM 0 and RM 142, contains elevated levels 19 of PCBs. Levels of PCBs in excess of health criteria have been measured in 20 various species of fish, and the Oregon Health Authority has issued fish 21 consumption advisories pertaining to all resident fish in the one-mile section of 22 the waterway between Bonneville Dam at Bradford Island and Ruckel Creek, and 23 a crayfish and clam advisory for the pool behind Bonneville Dam, due to elevated 24 25 26 33 EPA Region 10, Portland Harbor Superfund Site, List of Potentially Responsible Parties, available at https://www3.epa.gov/region10/pdf/ph/uplands/gnl_address_list_september_ 2014.pdf (last visited Dec. 6, 2017). Page 36 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 PCB levels. Studies have also shown that the reproductive patterns of the bald 2 eagle have been impaired in areas along the Lower Columbia River as a result of 3 PCB contamination. 4 b. The Middle Columbia River, between RM 142 and RM 287.1, contains elevated 5 levels of PCBs. Levels of PCBs in excess of health criteria have been measured 6 in various species of fish, and the Oregon Health Authority has issued fish 7 consumption advisories pertaining to all resident fish in the section of the 8 waterway between Ruckel Creek and McNary Dam as a result of PCB 9 contamination. 10 11 c. Coos Bay, between RM 7.8 and 12.3, contains elevated levels of PCBs. PCB concentrations throughout Coos Bay exceed guideline values. 12 d. The Clackamas River, between RM 0 and 22.9, contains elevated levels of PCBs. 13 PCB concentrations throughout the Clackamas River exceed guideline values. 14 e. Columbia Slough, between RM 0 and 8.5, contains elevated levels of PCBs. 15 Levels of PCBs in excess of health criteria have been measured in various species 16 of fish, and the Oregon Health Authority has issued fish consumption advisories 17 pertaining to all resident fish in the waterway as a result of PCB contamination. 18 f. Johnson Creek, between RM 0 and 23.7, contains elevated levels of PCBs. 19 Studies performed by the Oregon Department of Environmental Quality (DEQ) 20 show that levels of PCBs are steadily increasing. 21 22 23 24 g. Coffee Lake Creek, between RM 0 and 5, contains elevated levels of PCBs. PCB concentrations throughout Coffee Lake Creek exceed guideline values. h. Mill Creek, between RM 0 and 25.7, contains elevated levels of PCBs. PCB concentrations throughout Mill Creek exceed guideline values. 25 i. Pringle Creek, between RM 0 and 6.2, and its tributary between RM 0 and 2.8, 26 both contain elevated levels of PCBs. PCB concentrations throughout both Page 37 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 reaches exceed guideline values. The waters of Pringle Creek and its tributary 2 provide aquatic and wildlife habitat and are used for fishing, recreation, and 3 drinking water consumption. 4 j. The Willamette River, between RM 0 and 72, contains elevated levels of PCBs. 5 PCB concentrations throughout the reach exceed guideline values. Levels of 6 PCBs in excess of health criteria have been measured in various species of fish. 7 The waters of the Willamette River provide aquatic and wildlife habitat and are 8 used for fishing, recreation, and drinking water consumption. 9 k. Middle Fourth Lake, in the Upper Willamette watershed, contains elevated levels 10 of PCBs. The waters of Middle Fourth Lake provide aquatic and wildlife habitat 11 and are used for fishing, recreation, and drinking water consumption. The lake is 12 also known as a resource for anadromous fish passage. 13 l. Muddy Creek, between RM 0 and 56.2, and in its tributary between RM 0 and 14 1.2, both contain elevated levels of PCBs. PCB concentrations throughout both 15 reaches exceed guideline values. The waters of Muddy Creek and its tributary 16 provide habitat for local aquatic life and other animals. 17 18 100. The waters described above, among others, constitute essential habitat for various species 19 of fish, birds, invertebrates, reptiles, mammals, and plants. The presence of PCBs in those 20 waters has caused the contamination of, and in some cases injury to or destruction of, fish, 21 wildlife, and fish and wildlife habitat throughout Oregon. 22 Orphan Sites 23 101. 24 “Orphan Sites” are properties not owned by the State that have been contaminated by a 25 release of hazardous substances posing serious threats to human health or the environment and 26 for which no responsible party is currently known or able to pay remediation costs, or for other Page 38 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 reasons called for DEQ to take action before identifying a responsible party. Oregon law permits 2 DEQ to undertake any removal or remedial actions necessary to protect public health, safety, 3 welfare, and the environment, and authorizes the State, by and through DEQ, to take any action 4 necessary to conduct such removal or remedial actions and to carry out the policies and 5 provisions of Oregon’s environmental laws. 6 7 102. Pursuant to that authority, DEQ has conducted PCB-related removal and/or remediation 8 activities, including but not limited to monitoring, testing, investigating, sampling, planning, 9 engineering, design, construction, maintenance, or enforcement, at the following designated 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Orphan Sites: a. Orphan Site No. 88, designated as Nuway Oil Company and located in Multnomah County; b. Orphan Site No. 139, designated as NW Pipe & Casing Parcels A & B and located in Clackamas County; c. Orphan Site No. 178, designated as the UPRR Albina Yard and located in Multnomah County; d. Orphan Site No. 277, designated as the University of Portland River Campus and located in Multnomah County; e. Orphan Site No. 764, designated as Black Dog Slough and located in Linn County; f. Orphan Site No. 1370, designated as the Astoria Plywood Corporation and located in Clatsop County; g. Orphan Site No. 1383, designated as Stantosh Landfill and located in Columbia County; h. Orphan Site No. 1703, designated as Burns Air Force Station and located in Harney County; Page 39 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 i. Orphan Site No. 1906, designated as Mid-Coast Marine and located in Coos 2 County; j. Orphan Site No. 2082, designated as Hoy’s Marine and located in Lincoln 3 4 County; 5 k. Orphan Site No. 2251, designated as Killingsworth Fast Disposal Landfill and 6 located in Multnomah County; 7 l. Orphan Site No. 2352, designated as Marine Finance Company and located in Multnomah County; 8 9 m. Orphan Site No. 2382, designated as Merrill Auto Wrecking, Inc. and located in 10 Tillamook County; and 11 n. Orphan Site No. 3314, designated as B&M Equipment and located in Malheur 12 County. 13 103. 14 The State has incurred significant remediation costs associated with cleanup activities on 15 designated Orphan Sites. The State anticipates that it will incur additional remedial action costs 16 as necessary to complete the recommended remediation activities on the designated Orphan 17 Sites. 18 Other State-Owned Lands and Public Trust Resources 19 20 104. In addition to the Orphan Sites described above, the State, primarily through DSL and 21 ODOT, owns various other properties throughout the State, many of which have been impacted 22 by the presence of Monsanto’s PCBs. Those properties include, but are not limited to, upland 23 properties nearby or adjacent to waterways contaminated by PCBs and public rights-of-way 24 along roadways owned and managed by ODOT. 25 26 Page 40 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 105. Additionally, Monsanto’s PCBs have been detected in the tissues of various fish and 3 wildlife species throughout Oregon. Among those include fish species sampled from the 4 following watershed areas: Alsea, Applegate, Clackamas, Coast Fork Willamette, Coos, 5 Coquille, Donner and Blitzen, Little Deschutes, Lost, Lower Columbia, Lower Crooked, Lower 6 Deschutes, Lower John Day, Lower Rogue, Lower Willamette, McKenzie, Middle Columbia- 7 Hood, Middle Columbia-Lake Wallula, Middle Fork Willamette, Middle Owyhee, Middle 8 Rogue, Middle Snake-Payette, Middle Snake-Succor, Middle Willamette, Necanicum, Nehalem, 9 North Santiam, Siletz-Yaquina, Siuslaw, Sixes, South Umpqua, Tualatin, Umatilla, Umpqua, 10 Upper Crooked, Upper Deschutes, Upper John Day, Upper Klamath Lake, Upper Willamette, 11 Wilson-Trask-Nestucca, and Yamhill. 12 13 106. Through the process of bioaccumulation, the concentrations of Monsanto’s PCBs in the 14 fish species described above will only continue to increase. And, when other Oregon 15 predators—e.g., an eagle or other bird, whale, or human—eats any of the fish species in the 16 Oregon watersheds listed above, the concentration of PCBs will increase yet again. The PCBs 17 will remain in the predators’ fatty tissues and will cause significant adverse effects to their health 18 and to their surrounding environment. 19 FIRST CLAIM FOR RELIEF (Public Nuisance) 20 21 22 23 107. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 24 25 26 Page 41 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 108. 2 Defendants’ production and use of PCBs in the various chemical and industrial 3 applications described above caused the continuous presence of PCBs on lands and in waters 4 owned, controlled, or held in trust by the State. 5 109. 6 The continuous presence of PCBs on lands and in waters that Plaintiff owns or holds in 7 trust for the benefit of the public presents significant risks to the health of humans, fish, wildlife, 8 and the environment in the State of Oregon and constitutes an unreasonable and unnatural 9 interference with the use of such lands and waters, which is contrary to the public policy of this 10 state. 11 12 110. The continuous presence of PCBs on lands and in rivers, waterways, and lakes that 13 Plaintiff owns or holds in trust for the benefit of the public constitutes a per se public nuisance. 14 111. 15 The continuous presence of PCBs on lands and in rivers, waterways, and lakes that the 16 State owns or holds in trust for the benefit of the public substantially, continuously, and 17 unreasonably interferes with interests and rights of the general public to be free from injury to 18 public health, safety, and welfare. It further interferes with the interests of the general public in 19 the preservation of Oregon’s natural resources—including fish, wildlife, and habitat—which the 20 State is obligated to hold in trust for the benefit of, and for use by, members of the general 21 public. As alleged above, Oregon has also incurred significant costs at Orphan Sites and 22 elsewhere in abating the nuisance caused by Defendants. 23 24 112. As early as 1937, Defendants knew, should have known, or were reckless in not knowing 25 that once the PCBs that it had produced were released into the environment, such interferences 26 with the interests of the general public were substantially certain to occur. Page 42 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 113. Defendants’ internal communications about the toxic and carcinogenic properties of 3 PCBs make clear that Defendants understood that, once PCBs were released into the 4 environment, it was highly probable that the PCBs would remain in the environment and present 5 serious risks to the health of humans, wildlife, and the environment. Defendants continued, 6 however, to release PCBs into the environment without informing the general public of those 7 toxic and carcinogenic properties. 114. 8 9 By way of their decisions to release PCBs into the environment on a widespread basis 10 without informing the general public of the risks that PCBs presented to the health of humans, 11 fish, wildlife, and the environment, Defendants engaged in ultrahazardous conduct and acted in a 12 manner that was consciously indifferent to the health, safety, and welfare of the general public 13 and the natural environment. 14 15 115. As a result of Defendants’ conduct, Plaintiff has incurred damages and is entitled to 16 compensation therefor. Plaintiff also seeks abatement of the nuisance caused by Defendants that 17 has not yet been cleaned up or remediated. Plaintiff further intends to amend this Complaint to 18 seek punitive damages pursuant to ORS 31.725. 19 SECOND CLAIM FOR RELIEF (Purpresture) 20 21 22 23 116. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 24 25 26 Page 43 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 117. 2 Defendants’ production and use of PCBs in the various chemical and industrial 3 applications described above have resulted in the continuous presence of PCBs on lands and in 4 waters to which Plaintiff holds title as described in this Complaint. 5 6 118. The continuous presence of PCBs on lands and in waters to which Plaintiff holds title 7 constitutes an encroachment on public rights by appropriation for private use, in violation of the 8 proprietary ownership interest that the State holds in those lands and waters. 9 10 119. The presence of those PCBs on lands and in waters to which Plaintiff holds title interferes 11 with public navigation by, for example, increasing the costs of dredging, and interferes with the 12 public use and enjoyment of lands and waterways held by the State by limiting fishing, 13 swimming, and other uses of those lands and waterways. 14 15 120. The continuous presence of PCBs on and in waters to which Plaintiff holds title is a direct 16 result of and is caused by Defendants’ manufacture and sale of PCBs, and that presence 17 constitutes a purpresture. 18 19 121. As a result of Defendants’ conduct, Plaintiff has incurred damages and is entitled to 20 compensation therefor. Plaintiff also seeks abatement of PCB-related contamination on all lands 21 and in all waters to which Plaintiff holds title. Plaintiff further intends to amend this Complaint 22 to seek punitive damages pursuant to ORS 31.725. 23 24 25 26 Page 44 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 THIRD CLAIM FOR RELIEF (Trespass) 2 3 4 5 122. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 6 123. 7 Defendants’ production and use of PCBs in the various chemical and industrial 8 applications described above has resulted in the continuous presence of PCBs on lands, in 9 waters, and in other public trust resources that Plaintiff owns, possesses, controls, or holds in 10 trust for the benefit of the public. 11 12 124. The presence of PCBs on Plaintiff’s property—including land, waters, and other public 13 trust resources—interferes with Plaintiff’s interest in the exclusive possession of that property 14 and thereby constitutes a trespass. Defendants’ conduct allowed or caused that interference to 15 occur. Their conduct was and is negligent, reckless, intentional, and/or abnormally dangerous. 16 Defendants had no license or other authorization to enter onto or leave contaminants on property 17 that Plaintiff possesses. Any compliance by Defendants with applicable laws or permit 18 conditions does not excuse Defendants’ interference. 19 20 125. As early as 1937, Defendants knew that once the PCBs that it produced were released 21 into the environment, they were likely to remain in, and be transported throughout, the 22 environment on a widespread basis. Thus, as early as 1937, Defendants knew, should have 23 known, or were reckless in not knowing, that Defendants’ decision to continue to release PCBs 24 into the environment would likely result in interferences with the interests that Plaintiff has in the 25 exclusive possession of its property. 26 Page 45 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 126. 2 The interference that Defendants’ conduct has caused with Plaintiff’s exclusive 3 possession of property that Plaintiff owns, possesses, controls, or holds in trust for the benefit of 4 the public is a continuing interference that, since at least the 1960s, Defendants have known of or 5 have allowed to persist. 6 7 127. By way of their decisions to release PCBs into the environment on a widespread basis 8 without informing the general public of the risks that PCBs present to the health of humans, fish, 9 wildlife, and the environment, Defendants engaged in ultrahazardous conduct. 10 11 128. As a result of Defendants’ conduct, Plaintiff has incurred damages and is entitled to 12 compensation therefor. Plaintiff further intends to amend this Complaint to seek punitive 13 damages pursuant to ORS 31.725. 14 FOURTH CLAIM FOR RELIEF (Equitable Indemnity) 15 16 17 18 129. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 19 20 130. Oregon law provides the State, by and through DEQ, the authority to undertake remedial 21 action when necessary or appropriate to abate hazards to the public health, safety, welfare, and 22 the environment. Pursuant to that authority, the State may use funds available from the 23 Hazardous Substance Remedial Action Fund (“the Fund”) when remedial action is necessary at 24 Orphan Sites—i.e., sites not owned by the State for which the party responsible for the 25 contamination is unknown, unwilling, or unable to undertake the recommended remedial action. 26 Page 46 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 The purpose of the Fund, and the purpose of any remedial action paid for by the Fund, are to 2 protect public health, safety, welfare, or the environment. 3 131. 4 Plaintiff has incurred significant costs to monitor, investigate, and remediate the 5 existence of PCBs at designated Orphan Sites. Given the number of Orphan Sites contaminated 6 by PCBs and for which the State may assume responsibility in the immediate future, Plaintiff 7 anticipates that it will incur significant additional remedial action costs. 132. 8 9 Plaintiff, through DEQ, has also incurred costs associated with its roles as lead agency for 10 source control actions at various Portland Harbor upland sites and as support agency for EPA’s 11 in-water cleanup in areas throughout the Portland Harbor. A portion of those costs will not be 12 reimbursed to Plaintiff by other responsible parties or by EPA. Additionally, Plaintiff, through 13 DSL and ODOT, has received general notice letters identifying DSL and ODOT as PRPs in the 14 Portland Harbor. As PRPs, DSL and ODOT potentially will incur a share of liability for 15 remedial action costs associated with PCB contamination in areas throughout the Harbor. 16 133. 17 Plaintiff, though DEQ, has incurred additional costs to develop and administer its toxic 18 monitoring program and to develop Total Maximum Daily Load (TMDL) estimates for certain 19 waterways known to be contaminated by Monsanto’s PCBs, among other regulatory costs related 20 to PCBs. 21 22 134. Defendants, not Plaintiff, are responsible for the presence of PCBs, and the 23 contamination, trespass, and nuisance resulting therefrom, on each of the designated Orphan 24 Sites and in other areas throughout the State for which Plaintiff has incurred or will incur 25 remedial action, toxic monitoring, or other costs. Plaintiff did not contribute in any way to the 26 presence of PCBs on any properties within its borders, or to the contamination, trespass, or Page 47 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 nuisance resulting therefrom. Accordingly, Defendants, and not Plaintiff, are liable for 2 associated damages arising from the presence of Defendants’ PCBs on any of those properties. 3 135. 4 As a result, as between Defendants and Plaintiff, Defendants should ultimately be 5 responsible for the payment of remedial action costs, including costs to monitor, investigate, and 6 clean up PCB contamination in the areas described above. 7 FIFTH CLAIM FOR RELIEF (Unjust Enrichment) 8 9 10 11 136. Plaintiff incorporates by reference the allegations in the above paragraphs as if fully set forth herein. 12 13 137. Under the laws of Oregon, Monsanto owed a duty to Plaintiff and to the public to prevent 14 its PCBs from interfering with the use and/or possession of property it does not own and from 15 causing harm to human health and the environment. 16 138. 17 Defendants’ production and use of PCBs in the various chemical and industrial 18 applications described above have resulted in the continuous presence of PCBs on lands and in 19 waters that Plaintiff owns, possesses, controls, or holds in trust for the benefit of the public, 20 including but not limited to State-owned lands, State-owned waterways, and Orphan Sites. 21 22 139. The presence of Defendants’ PCBs on lands and in waters that Plaintiff owns, possesses, 23 controls, or holds in trust for the benefit of the public poses an ongoing, serious threat to 24 Oregon’s public health, safety, welfare, and the environment. As described above, Defendants’ 25 PCBs already have caused, and will continue to cause, significant damage to, among other 26 resources, Oregon’s fish and wildlife and habitat areas. Page 48 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 140. Because of the damage that PCBs have caused to the natural environment, and in order to 3 abate continuing hazards that PCBs pose to public health, safety, welfare, and the environment, 4 Plaintiff has undertaken remedial actions to monitor, investigate, and remove the PCBs in 5 contaminated areas. As a result, Plaintiff has incurred significant remedial action costs. Based 6 on information gathered through toxic monitoring and investigation, Plaintiff anticipates that it 7 will incur additional remedial action and other costs to monitor, investigate, and abate continuing 8 hazards to public health, safety, welfare, and the environment. 9 10 141. By way of Plaintiff having undertaken remedial actions necessary to abate the hazard 11 created by Defendants’ PCBs, certain economic benefits, including but not limited to the 12 following, have been conferred upon or acquired by Defendants: 13 a. Reduction in the costs Defendants would have incurred, or in the future will incur, to 14 monitor and investigate the existence of and damages caused by the presence of PCBs 15 in Oregon’s natural environment; 16 b. Reduction in the costs that Defendants would have incurred, or in the future will 17 incur, to remediate the damages caused by the presence of PCBs in the natural 18 environment, including damages to Oregon’s lands, waters, fish, wildlife, and habitat 19 areas; 20 c. Other and further economic benefits relating to the existence of Monsanto’s PCBs in 21 Oregon’s natural environment, the retention of which by Monsanto would be unjust. 22 23 142. Given its duty and otherwise legally enforceable obligation to prevent its PCBs from 24 interfering with the use and/or possession of property it does not own and from causing harm to 25 human health and the environment, Defendants’ retention of the benefits described above, 26 without compensation therefor, would be unjust. Page 49 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 2 3 143. As a result, and to prevent Defendants from being unjustly enriched by its retaining the economic benefits described above, Plaintiff seeks restitution. 4 NOTICE OF INTENT TO AMEND 5 144. 6 Plaintiff will serve on Defendants a notice demanding compensation for the value of the 7 fish, wildlife, and fish and wildlife habitat injured or destroyed and the cost of restoring wildlife 8 production in the affected areas described above. If Defendant fails to satisfy Plaintiff’s demand 9 within 60 days of service thereof, Plaintiff intends to amend this Complaint to seek relief 10 pursuant to ORS 468B.060. 11 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff prays for: 13 1. An order to abate the public nuisance caused by the continuous presence of PCBs 14 on lands and in waters that the State owns, possesses, controls, or holds in trust 15 for the benefit of the public; an order to remove and remediate PCB-related 16 contamination on all lands and in all waters that the State owns, possesses, 17 controls, or holds in trust for the benefit of the public; an order of restitution in an 18 amount be proven at trial; and/or an award of damages in an amount to be proven 19 at trial, but not less than $100 million; 20 2. Prejudgment interest on all claims as provided by law; 21 3. Post-judgment interest on all claims as provided by law; 22 4. Attorneys’ fees and litigation costs as provided by law; and 23 5. For other such relief as this Court deems just and proper. 24 25 JURY DEMAND Plaintiff hereby demands a trial by jury. 26 Page 50 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1 DATED January 4, 2018. 2 Respectfully submitted, 3 ELLEN F. ROSENBLUM Attorney General 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: Henry Kantor, OSB No. 792843 Special Counsel to the Attorney General Scott Kaplan, OSB No. 913350 Senior Assistant Attorney General Oregon Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Facsimile: (971) 673-5000 Email: henry.kantor@doj.state.or.us scott.kaplan@doj.state.or.us -andKeith Ketterling, OSB No. 913368 Yoona Park, OSB No. 077095 Nadia H. Dahab, OSB No. 125630 STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 Email: kketterling@stollberne.com ypark@stollberne.com ndahab@stollberne.com Amy Williams-Derry (to be admitted pro hac vice) Derek Loeser (to be admitted pro hac vice) Daniel Mensher OSB No. 074636 Matthew Preusch, OSB No. 134610 KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com dmensher@kellerrohrback.com mpreusch@kellerrohrback.com Trial Attorneys and Special Assistant Attorneys General for the State of Oregon Page 51 - COMPLAINT Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000