PCBs/Common Law Claims: Delaware Court Dealing with Issues Arising from State Damages Action | Mitchell, Williams, Selig, Gates & Woodyard, LLC

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[co-author: Jacob Armstrong]

The Delaware Superior Court, in a July 11 opinion, addressed issues arising from a damages lawsuit brought by the State of Delaware (“State”) against a manufacturer of polychlorinated biphenyls (“PCBs”). See State of Delaware v Monsanto Company, et al., 2022 WL 2663220.

The State of Delaware filed a lawsuit in the Delaware Superior Court (“Court”) against Monsanto and another company alleging:

  • Public nuisance
  • Intrusion
  • Unjust enrichment

Monsanto has filed a motion to dismiss the claims.

PCBs are chemical compounds manufactured from the 1930s until about 1977. They have since been classified as a group of toxic chemicals that have negatively impacted the health of wildlife and humans. PCBs are “particularly stable” due to their chemical composition, “which causes them to degrade slowly. . .”.

The chemicals have been shown to accumulate in the fatty tissues of animals. Concerns with PCBs include their tendency to “enter the food chain” when eaten by small animals. These effects can be amplified as the size of the animal increases.

Monsanto began manufacturing PCBs in 1935. The company sold PCBs to third-party manufacturers until 1971. Their sale was voluntarily discontinued that year, except for “limited use in electrical capacitors and transformers.”

The state alleged that Delaware River Zone 5, Delaware Bay Zone 6, Saint Jones River, Appoquinimink River, Brandywine River, Red Clay and White Clay Creeks, and Christina River are impaired due to PCB contamination. The deficiency cited included the inability to consume fish from water bodies due to the detection of PCBs in some species of fish. General advice on fish consumption had been issued.

The state also alleged that the PCBs entered the environment through “ordinary use, maintenance, and disposal of associated products.” He argued that Monsanto had known about the toxic effect of PCBs on animals and humans since 1937. This would have included the possibility that PCBs could “leak and pollute the environment” since the 1950s.

The state cited an authority that a complaint of public nuisance could be based on air or water pollution. However, the Court found that the Delaware authority and other jurisdictions “supported[s] the conclusion that product claims are not encompassed by the doctrine of public nuisance. »

The lawsuit was based on the claim that the state is the “owner” of the lands and waters. Monsanto argued that it was “essentially certain” that an intrusion would occur.

The Court found that the state lacked standing to sue for trespass. She concluded that the state did not have “exclusive possession” of the bodies of water that would have been impaired by PCB contamination. Further, he concluded “there can be no action for trespass for contamination” because Monsanto had “no ownership or control of the instrument of intrusion – in this case, the PCBs.” .

The state based its claim for unjust enrichment on the idea that Monsanto retained economic advantages. The state has been accused of “relieving [Monsanto] to pay for the cleanup by spending taxpayers’ money to control PCB contamination.

The Court held that it lacked jurisdiction because “unjust enrichment is a just cause of action.” Thus, it “is not a stand-alone claim before the Superior Court”. He further found that the state complaint did not contain any allegation that Monsanto had “enriched” itself. There was no Delaware authority “supporting the proposition that the exemption from future obligations amounts to a claim for unjust enrichment”.

A copy of the notice can be downloaded here.

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