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Lexington files federal class action suit on PCBs

Posted by Tom Coakley  October 3, 2012 03:14 PM

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Lexington has filed a class action lawsuit in federal court seeking damages on behalf of itself and other school districts throughout Massachusetts that are affected by potentially harmful levels of chemicals known as PCBs.

The suit against Pharmacia Corporation, Solutia Inc. and Monsanto Company, claims the makers of polychlorinated biphenyls, or PCBs, knew or should have known the public health and environmental dangers posed by the use of the chemicals in the construction of schools from the 1950s through the 1970s and failed to provide adequate warnings.

The New York law firm of Robert F. Kennedy Jr. and his partner, Kevin Madonna, is representing Lexington in the suit, which was filed in U.S. District Court in Boston on Sept. 4.

In a statement Wednesday, Monsanto Company said it is aware of Lexington’s complaint, but believes the lawsuit is without merit. Solutia declined comment and Pharmacia referred questions to Monsanto.

Madonna said his lawfirm is also working with other school districts in the state with concerns about PCBs, but he declined to name them until lawsuits have been filed on their behalf. The firm specializes in environmental litigation and has already settled a similar suit filed by the Yorktown Central School District in New York in 2008, Madonna said.

“This isn’t a problem that is limited to the North East,” he said. “We think this is occurring all over the country but schools are hesitant to affirmatively test for the PCBs for fear of having to spend millions of dollars in litigation.”

Lexington Public Schools temporarily closed its Estabrook Elementary School in September 2010 when testing revealed elevated levels of PCBs in the school. Madonna said Lexington has since spent millions on remediation to address the PCB levels in the Estabrook School. The system is in the process of replacing Estabrook with a new school.

The PCBs are potentially cancer-causing if they build up in the body over long periods, according to the U.S. Environmental Protection Agency, and Congress banned the manufacture and most uses of the chemicals in 1976.

In 2009, the EPA issued a series of guidelines, including testing procedures, that school administrators should follow to limit exposure to PCBs, which the agency said were widely used in construction materials, such as caulk, between 1950 and 1978.

The class action suit seeks to represent all school districts in the state that have one or more buildings with airborne PCBs in excess of public health levels established by the EPA. According to the lawsuit, Massachusetts has almost 1,900 schools and more than half were built between 1950 and the 1970s.

The school district’s lawsuit claims that Monsanto, a known since April of 2000 (cq) as Pharmacia (cq) and now owned by New York-based Pfizer (cq), was the exclusive manufacturer of PCBS in the United States from 1935 to 1978 (cq). The suit claims that the company knew about the toxicity of PCBs as early as the 1930s but continued to manufacture, sell and promote the products.

As research mounted about the dangers of the chemicals in the 1950s, the company “willfully and callously” failed to provide adequate warnings of PCB toxicity, and instead downplayed the dangers of its product in order to protect its profits, according to the lawsuit.

Madonna said the goal of the Lexington’s suit is to identify the schools that have elevated levels of PCBs and to have the manufacturer pay to have them removed.

“It’s not fair that taxpayers are potentially being shouldered with the cost of cleaning up Monsanto’s mess,” Madonna said.

Monsanto changed its name to Pharmacia in 2000 (cq), but a spin off company named Monsanto Ag Company (cq) changed its name to Monsanto Company the same year.
According to Lexington’s lawsuit, Pharmacia, Solutia Inc. and the present-day Monsanto Company have agreements that have divided the liabilities arising from the chemical business of Pharmacia when it was known as Monsanto.

Thomas Helscher (cq), a director of corporate affairs for the present-day Monsanto Company, said in a statement Wednesday that PCBs were a legal and useful product several decades ago that were sold in bulk to manufacturers who used the constituent chemical to formulate and design a wide variety of products to improve safety and performance.

He said many building codes required PCBs in electrical equipment in schools hospitals or buildings where risk of fire was a major concern.

Helscher said Monsanto did not have a commercial relationship with Lexington, and the “duty to warn" theories presented in the town’s lawsuit are not supported by Massachusetts law.

“Moreover, it is our understanding that the school in question was built over 50 years ago, was poorly maintained, and was scheduled for demolition years ago since it had outlived its useful life,” Helscher said.

Lexington Superintendent of Schools Paul Ash (cq) said the school district had already planned to replace the Estabrook school by the end of the decade.

But once the elevated PCB levels were discovered, the district expedited the process by filing an emergency request seeking funding from the Massachusetts School Building Authority to help replace the school. Ash said the ceremonious groundbreaking for the construction of the new school will be held Oct. 18 (cq) and the work is expected to be completed in the spring of 2014 (cq)
Madonna said it will likely be a while before there is a resolution to the town’s lawsuit.

“These things typically take years,” he said.

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