NJ Seeks to Expand Reach of the Spill Act in PCB Contamination Suit Against Monsanto and Others

On August 4, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued a press release announcing a lawsuit of sweeping, breathtaking scope against Monsanto, Solutia, and Pharmacia ─ all linked to the original Monsanto (“Old Monsanto”), which reorganized its businesses into three separate corporations in the late 1990s ─ seeking natural resource damages (NRDs) for polychlorinated biphenyl (PCB) contamination across the entire state of New Jersey. Old Monsanto formerly operated a large industrial facility in Bridgeport, an unincorporated community in Logan Township, Gloucester County, New Jersey (the “Bridgeport Site”). In addition to the claims for statewide PCB contamination, the complaint seeks NRDs and other relief in connection with the Bridgeport Site.

The suit alleges the three defendants contaminated the area in and around the Bridgeport Site through discharges of many chemicals, including PCBs, over decades of operations at that site. PCBs are a class of toxic synthetic organic chemical compounds that enter the environment by escaping their intended applications, passing into water bodies, sediment, and soils. In a statement announcing the suit, Acting Attorney General Matthew J. Platkin said that “PCBs contamination has harmed natural resources and threatened the health of humans and wildlife in every corner of New Jersey . . . includ[ing] many environmental justice communities ─ communities throughout our State that for too long have borne a disproportionate exposure to environmental damages and dangers.”

The suit further alleges Old Monsanto manufactured and marketed PCBs from 1935 until they were banned in the late 1970s, despite knowing, as early as the late 1930s, that they were toxic and also knowing, by the mid-1960s, that PCB contamination in the environment was widespread and uncontrollable. During that period, the suit alleges, Old Monsanto was responsible for the manufacture of 99 percent or more of all PCBs used or sold within the United States, including the sale of at least 38 million pounds of PCBs to dozens of companies in New Jersey, but that it failed to tell its customers about their toxic nature and instead recommended that PCBs and PCB wastes be disposed of in the same way as any other waste, i.e., without any special precautions.

The New Jersey Attorney General’s Office is handling the suit through its Environmental Enforcement and Environmental Justice (EEEJ) Section within the Division of Law’s Affirmative Civil Enforcement Practice Group. The state has taken a “whole of government” approach to its environmental justice initiative, a phrase used by Kandyce Perry, Director of New Jersey’s Office of Environmental Justice, to describe the state’s efforts. The Monsanto matter highlights those efforts and marks the latest in a string of collaborative environmental actions between the Attorney General’s Office and the NJDEP. The Attorney General’s Office created the EEEJ in December 2018 by repurposing existing resources and hiring additional attorneys to bring enforcement actions and promote environmental justice across the state. After more than a decade in which no such cases were brought in New Jersey, the Attorney General’s Office has now filed more than 47 environmental justice cases since 2018, including the filing of 10 NRD lawsuits against DuPont, ExxonMobil, 3M, and other corporations that operated industrial plants in the state and left behind toxic chemicals.

The complaint asserts a number of common-law claims based on the statewide PCB contamination, such as public nuisance, trespass, strict liability, design defect, and failure to warn or instruct, and most notably, the suit seeks to expand the coverage of the Spill Compensation and Control Act (“Spill Act”) to include the manufacturers of products that are sold to, used, and disposed of by other parties. In the language of the statute, such manufacturers would now be deemed persons “in any way responsible” for discharged hazardous substances. That category has previously included such parties as the owner of a contaminated site, the former owner of the site if a discharge occurred during its ownership, and a parent company that controlled a subsidiary that itself discharged the contaminants. The state’s complaint posits a new basis for Spill Act liability as a person “in any way responsible” ─ failing to warn customers, regulators, and the public that your product is toxic and would cause contamination, and failing to provide instructions on use and disposal that would reduce or eliminate such contamination. Judicial acceptance of such a theory would cause a seismic shift in Spill Act law, and environmental law in general, vastly expanding the range of potential contribution defendants for a responsible party.

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