Toledo's Ottawa River could benefit from Ohio's lawsuit against Monsanto

4/9/2018

Ohio Attorney General Mike DeWine's lawsuit contends that Monsanto knowingly produced cancer-causing PCBs, which impaired the Ottawa River and many other bodies of water in Ohio.

THE BLADE/LORI KING
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Ohio Attorney General Mike DeWine’s ambitious lawsuit against St. Louis-based Monsanto Co. that alleges it knowingly produced cancer-causing PCBs that put people’s health at risk could have huge ramifications for Toledo’s Ottawa River and dozens of other PCB-laden waterways across Ohio.

Mr. DeWine’s suit filed last month alleges Monsanto had already covered up dangers of PCBs for more than 40 years by the time the U.S. EPA’s ban took effect. The chemical compounds remain a primary source of pollution worldwide, even though the U.S. Environmental Protection Agency banned them on April 19, 1979, three days before Earth Day that year.

Included in the lawsuit is that the PCBs impaired nearly all conceivable bodies of water in Ohio, including the Ottawa River and much of Lake Erie. Other northwest Ohio bodies of water mentioned in the lawsuit include the Maumee River, the Blanchard River, the Portage River, the Sandusky River, the Tiffin River, and Toussaint Creek.

Virtually all other major bodies of water in Ohio — including the Ohio River, the Cuyahoga River, and Grand Lake St. Marys — are mentioned, as well.

“High PCB concentrations are the cause of impairment of over 100 significant Ohio waterbodies,” the lawsuit states.

Damages could conceivably be in the billions of dollars if the case goes to trial and the attorney general gets all of the compensation and punitive damages he is seeking.

Although it has been on the mend in recent years, the Ottawa remains one of Ohio’s most polluted rivers. Its worst spots have historically been in the highly industrialized one-mile stretch between Stickney Avenue and Lagrange Street in North Toledo.

Well over $100 million has been put into restoring it since 1995, mostly — although not exclusively — because of PCBs.

Hazard known 

The lawsuit states that Monsanto and two of its affiliated companies — Solutia, Inc., and Pharmacia LLC — made 99 percent or more of all PCBs in the United States between 1926 and 1977, despite knowing as far back as 1936 that the chemicals could destroy human livers and do other things that make people seriously ill. 

“Defendants embarked on a decades-long campaign of misinformation and deception in order to prolong the manufacture, sale, and use of PCBs in Ohio and elsewhere,” the lawsuit states. 

PCBs — industrial lubricants derived from polychorinated biphenyls — were found in paint, ink, caulks, dyes, coolants, hydraulic fluids, electrical equipment such as capacitors and transformers, sealants, and carbon-less copy paper. 

They are synthetic, and break down so slowly that, decades later, they remain embedded in soil, plants, and air. They are stored indefinitely in the fat of fish and wildlife, eventually making their way up to humans through the food chain, according to the attorney general’s lawsuit. 

Spokesman Kate Hanson said the attorney general’s office knows “from internal memoranda that have become public over the years that Monsanto was well aware of their product’s human and environmental toxicity, even as they were publicly denying it.”

Even today, PCBs are the No. 1 cause of fish-consumption advisories in Ohio and other parts of the world. In this state at least, mercury — which is still emitted from coal-fired power plants and other sources — is No. 2.

Monsanto declined to address specifics of the Ottawa River or any other Ohio waterway named in the suit.

But in a statement issued by Charla Lord, senior communications manager, it acknowledged that Monsanto voluntarily stopped producing PCBs more than 40 years ago and sold the chemical compounds “to many industrial and manufacturing customers, as well as the U.S. government, which put them to various uses and disposed of them in different ways.”

“We are still reviewing this lawsuit, and we will defend ourselves aggressively,” said Scott Partridge, Monsanto vice president of global strategy.

San Diego, Seattle, Spokane, Long Beach, Calif., San Jose, Calif., and other major cities have filed lawsuits, as have the states of Washington and Oregon, and multiple individuals from many states.

Most have failed.

But a St. Louis Circuit Court jury ordered Monsanto and other defendants to pay $46.5 million in a 2016 verdict; $17.5 million to three plaintiffs and $29 million more in punitive damages. The verdict applied to only three of 100 plaintiffs in that case.

Costly cleanup

More than $60 million was spent in the 1990s on capping long-dormant landfills that had operated legally but had chemicals leaching from buried industrial drums. Several sites along the river had illegal waste dumped there, as well.

At least $5 million was spent in 1998 to cut off, drain, and excavate an unnamed tributary that had been Ohio's hottest spot for PCBs for 26 years. Then, in 2010, the Ottawa played host to one of the U.S. EPA’s largest projects that year. Nearly 300,000 tons of contaminated sediment were dug up at a cost of $47 million.

Kurt Erichsen, recently retired vice president of environmental planning for the Toledo Metropolitan Area Council of Governments, spent much of his career coordinating such efforts.

He said people can’t, in hindsight, assume there never would have been fish-consumption advisories if PCBs had never existed.

“Without PCBs, industry would likely have used another chemical [or other chemicals] to serve PCB functions. Conceivably the replacement may have been worse,” he said. “And, if not industry was also discharging PAHs [polycyclic aromatic hydrocarbons, a different set of chemical compounds] and heavy metals to the Ottawa River.”

Environmentalists see it differently.

“Monsanto should be held accountable for this contamination in the Ottawa River and throughout the nation, as well as pay for the cleanup of legacy PCBs,” said Kristy Meyer, Ohio Environmental Council vice president of policy.

Mr. Erichsen said questions shouldn’t be limited to what could have happened if PCBs weren’t used but “what if the business, government, and people of Toledo had understood and given a damn about water pollution?”

The importance of floodplains and shoreline habitat was not widely understood decades ago and raw sewage was inexplicably discharged into streams, even during dry weather, he said.

“Certainly the Ottawa River would’ve been better off if no PCBs had ever been discharged to it. But the rivers would still have been seriously polluted by other sources,” Mr. Erichsen said.

U.S. Rep. Marcy Kaptur (D., Toledo), co-chair of the U.S. House Great Lakes Task Force, said she welcomes Mr. DeWine’s “interest in joining the effort to hold parties accountable for the damage that was done,” and said northwest Ohio “could certainly use the additional resources in the fight to restore the Ottawa and the Maumee River Basin.”

Ken Kilbert, a University of Toledo law professor who specializes in water-quality issues, said he expects Monsanto to file a motion to have the case heard in federal court, then attempt to quash the state of Ohio’s claims.

Consumption advisories for the Ottawa River were upgraded in 2017 in the sense that state health officials now believe it’s OK to eat three species — channel catfish, common carp, and golden shiner — once a month, instead of continuing to keep a blanket advisory urging people to stay away from all of them year-round. The Ohio EPA also said then it was safe to start eating pumpkinseed sunfish, but no more than once a week.

The attorney general’s office said it’s obvious a lot more work still needs to be done along the Ottawa. An Ohio EPA specialist said a couple of years ago that the agency has determined it will likely be at least 2030 before the waterway is fully restored.

Mike Murray, staff scientist for the National Wildlife Federation’s Great Lakes Regional Center in Ann Arbor, said he wouldn’t be surprised if fish-consumption advisories remain in effect longer.

“Obviously, PCBs are such a case study on bioaccumulative effects. They are so persistent,” he said. “It's likely we'll have fish-consumption advisories for decades to come.”

Contact Tom Henry at thenry@theblade.com, 419-724-6079, or via Twitter @ecowriterohio.