After five years of litigation in courts around the U.S., Berkeley, Oakland, Los Angeles and other cities have come to a $650 million settlement with Monsanto over the production of PCBs that have migrated into water.
The proposed class-action settlement means that Berkeley will get at least $1 million in mitigation payments for the PCBs traveling through the city’s storm sewer system and into the San Francisco Bay, according to Farimah Faiz Brown, the city attorney. Since Berkeley was one of the 13 lead plaintiffs in the case, it may even get more than that, she said.
More than 2,500 cities, towns, boroughs, villages and independent port districts around the country sued Monsanto and are eligible for part of the settlement. The entities filing the lawsuit alleged that while Monsanto manufactured PCBs from the 1930s to 1977, and promoted their use, the company “internally acknowledged that PCBs would escape end use applications and migrate into the surrounding air or onto nearby surfaces and contaminate natural resources,” according to the proposed settlement document.
PCBs are toxic and have been classified as probable human carcinogens. The Environmental Protection Agency banned them in 1979.
Monsanto, which now goes by the name Pharmacia LLC, has denied it had prior knowledge of the potential contamination. Solutia, Inc. was also a defendant.
In 2019, after years of litigation, the opposing sides agreed to enter into mediation. Retired Magistrate Judge Jay C. Gandhi led the mediation and brought the parties into an agreement. U.S. District Court Judge Fernando M. Olguin of the Central District of California must now approve the settlement.
“This national resolution will provide nearly 2,000 local cities, towns, counties, and independent port districts funds for monitoring, mitigation, and remediation efforts to manage PCBs in stormwater, stormwater systems, sediments, and water bodies,”Mayor Jesse Arreguín said in a statement. “The San Francisco Bay is a precious regional resource and Berkeley has been at the forefront of the national movement to protect our waterways. We are proud to lead efforts to protect it, yet again, and to protect waters throughout the state and nation.”
The lead plaintiffs include Spokane, Tacoma, Portland, the Port of Portland, Berkeley, Oakland, San Jose, the County of Los Angeles, Long Beach, San Diego, Chula Vista, Baltimore and Baltimore County.
$10 billion Bayer settlement over Roundup
In a related part of the deal, Bayer, which bought Monsanto two years ago, has agreed to set aside $10 billion to settle claims against Roundup, a herbicide that can cause cancer, according to the New York Times. The deal announced Wednesday “is among the largest settlements ever in U.S. civil litigation,” according to the paper. “Negotiations were extraordinarily complex, producing separate agreements with 25 lead law firms whose clients will receive varying amounts.”
Berkeley operates its own storm sewer system which collects rainwater and discharges and funnels it to San Francisco Bay, which has been classified as “impaired” because it is contaminated with PCBs.
The State Water Resources Board has established a “total maximum daily load” of toxics that can flow into the Bay. “The conditions of the city’s Clean Water Act (NPDES) permit for [its separate municipal storm sewer system] require the city to undertake certain mitigation measures (such as the installation of green infrastructure) to reduce discharges of PCBs to the Bay,” Brown wrote in an email. “Berkeley filed suit to recover these costs and other damages incurred by the city due to Monsanto’s conduct.”
Berkeley has several stormwater projects in place
Berkeley has installed a number of green infrastructure projects to clean tainted stormwater (but not necessarily tainted by PCBs) before it flows into the bay. Berkeley was part of a four-city effort that used a $4 million grant from the Metropolitan Transportation Commission to build a “green stormwater spine” along San Pablo Avenue.
Other projects include a bioswale at Presentation Park on Allston Way and California Street, one at Hearst Avenue and Oxford Street as part of the “complete streets” project there, and another new green infrastructure feature where Hopkins and Rose streets intersect.
In 2014, Berkeley installed permeable pavers on Allston Way by Berkeley High School. The pavers were designed to absorb water rather than redirecting it to a storm drain the way traditional asphalt does. That decreases the load on the city’s storm drain system when it rains, while also filtering the runoff into the bay and reducing greenhouse gas emissions by requiring less maintenance.
In 2018, Berkeley voters decided to increase the city’s clean stormwater fee for the first time since it was introduced in 1991. The fee rose by around $43 annually for the average owner of a single-family home. The revenue was to be directed to updating the city’s 93 miles of pipes that capture rain and send it into creeks and the bay as well as for green infrastructure initiatives.
The proposed settlement with Monsanto does not indicate that the $1 million must be spent on the city’s storm sewer system or for any other specific use. The City Council will decide how to spend the funds, said Brown.
“I am very pleased with this resolution as it provides important funds to protect our natural resources,” said City Councilperson Sophie Hahn. “This is particularly gratifying given that the Save the Bay movement was born in Berkeley.”