PCB manufacturer Monsanto asked a court on Thursday to dismiss the Burlington School District’s lawsuit over contamination, citing the statute of limitations.
The suit, filed in December, alleges that Monsanto encouraged customers to use PCB mixtures in construction materials “despite knowing that this would directly introduce PCBs into surrounding air and other construction materials, and onto nearby interior surfaces.”
The school district shuttered the high school in fall 2020 due to elevated levels of airborne PCBs. For the past two years, students have been attending classes at a temporary downtown high school in a former Macy’s department store.
When the suit was filed, Burlington superintendent Tom Flanagan said legal action would hold the company “accountable for the harm it has inflicted on our community.”
Monsanto’s motion to dismiss states that civil actions in Vermont must be commenced within six years after “discovery of facts constituting the basis of the cause of action.”
The company points to letters from state agencies and the Environmental Protection Agency written between 2013 and 2015 that made clear that schools built or renovated between 1950 and 1979 potentially contain PCBs. Despite having knowledge of those letters, “BSD nevertheless waited five years after receiving guidance from the Department of Health to test BHS for PCBs and three years after that to sue [the company],” the motion states.
In its filing, Monsanto also takes issue with the school district’s public nuisance claim.
“Courts have frequently dismissed public nuisance claims against manufacturers because they lack control over the products once sold,” the motion states. “The PCB-containing building materials which are the sole source of the alleged nuisance were in the possession and control of [Burlington School District] since their sale and incorporation into the [Burlington High School] buildings.”
In response to the school district’s trespass claim, the motion states that the “migration of PCBs from and to one’s own property cannot be a trespass because there is no ‘invasion’ or ‘entering the land of another.'”
In late December, Monsanto’s parent company, Bayer, filed a motion in response to a different lawsuit filed by two former Burlington High School teachers who claim workplace exposure to PCBs caused them to suffer serious health problems. Bayer asked to postpone the planned demolition of the high school — which was supposed to begin in January — in order to give the company’s consultants more time to inspect the premises. In January, the two parties agreed to delay the demolition’s start until February 18.
A spokesperson for Burlington School District was not immediately available for comment. District officials have said they hope to finish the construction of a new high school by August 2025, and Burlington voters overwhelmingly approved a $165 million bond last November to support the project.
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This article appears in The Love & Marriage Issue 2023.
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