NJDEP Seeks to Extend Environmental Liabilities Statewide on PCB Manufacturers for All New Jersey PCB Contamination

Andrea A. Lipuma

Published

On August 4, 2022, the New Jersey Department of Environmental Protection (“NJDEP”) filed suit against Monsanto Co., Pharmacia LLC and Solutia, Inc., seeking to hold them liable for PCB contamination throughout New Jersey. (Complaint). While the suit also addresses contamination at Monsanto’s Bridgeport, New Jersey facility, the potential significance of this case arises from NJDEP’s allegations that the Defendants are liable for PCB contamination statewide, without the need for the State to prove a direct discharge nexus. This is due to the Defendants’ dominance of the PCB market and their alleged intentional acts and omissions.

What You Need to Know

  • NJDEP has filed suit seeking to impose liability for all PCB contamination statewide on former PCB manufacturer Monsanto Co. and its related entities Pharmacia LLC and Solutia, Inc. 
  • NJDEP’s claims and allegations have potential implications for current and future PCB-related litigation and cleanups.
  • If NJDEP is successful, it could be argued that there is no longer an orphan share for New Jersey PCB contamination.

​This case has potential implications for private party PCB litigation and analysis of orphan share liability in environmental cleanup cases throughout the state. NJDEP alleges that “Defendants caused statewide PCB contamination through the design, production, use, marketing, sale and distribution of and failure to warn about the hazards of PCBs across New Jersey.” Complaint at paragraphs 2; 269-270. The NJDEP suit alleges that “Defendants’ PCBs entered the air, waters, sediments, and soils during their ordinary and prescribed uses” and that they “failed to provide adequate instructions to minimize, mitigate, reduce, control, or eliminate this contamination.” Complaint at paragraphs 76; 270. NJDEP seeks Natural Resource Damages (“NRD”) for PCB impacts everywhere in New Jersey except for the Passaic River and the Newark Bay Complex, as those claims are reserved and related to conditions in a December 12, 2013 Consent Judgment. Complaint footnote 1, page 55. In addition, NJDEP seeks recovery of past cleanup costs, a finding of joint and several liability “for all future cleanup and removal costs and direct and indirect damages” including civil penalties, punitive damages and NJDEP’s costs and fees for prosecuting the suit. Complaint paragraphs 274-277; pages 76-77.

There have been several similar suits filed in other states against Monsanto for PCB environmental contamination. The NJDEP’s suit is based in part on New Jersey’s Spill Act liability provisions, which impose liability for a party “in any way responsible” for a discharge. If the State is successful in holding Monsanto, Pharmacia and Solutia responsible for statewide PCB contamination, it could be argued that there is no longer an orphan share for New Jersey PCB contamination and cause a re-evaluation of PCB liability issues in private party litigation. 

Authors
Andrea A. Lipuma