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Mary B. Spaulding and Sandy E. Spaulding v. Monsanto Company

September 28, 2011

MARY B. SPAULDING AND SANDY E. SPAULDING,
PLAINTIFFS,
v.
MONSANTO COMPANY, PHARMACIA CORPORATION, FLEXSYS AMERICA CO., FLEXSYS AMERICA L.P., AND SOLUTIA, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

MEMORANDUM OPINION & ORDER

In this action, Plaintiffs assert claims under West Virginia law for injuries allegedly caused by Monsanto's negligent waste disposal practices at its Nitro, West Virginia chemical plant between 1949 and 1970. (Cmplt. ¶¶ 1-5) Plaintiffs allege that Monsanto engaged in these negligent waste disposal practices in the course of manufacturing 2,4,5- trichlorophenoxyacacidic acid ("2,4,5-T"), an herbicide, and that its negligence resulted in Plaintiffs' exposure to harmful chemicals referred to as "dioxins/furans." (Cmplt. ¶ 4) Defendants have moved for partial summary judgment, arguing that they are entitled to prevail under the government contractor defense as to all claims arising from 2,4,5-T production and associated disposal practices occurring between 1963 and 1970. For the reasons set forth below, Defendants' motion will be DENIED.

BACKGROUND

Defendants are Monsanto Company and alleged successors to its liabilities.*fn1

Plaintiffs are "resident[s] and/or former resident[s] of Nitro, West Virginia," in which Monsanto operated a chemical plant from approximately 1934 to 2000. (Cmplt. ¶¶ 3-4) Plaintiff Mary Spaulding claims that she suffers from peripheral neuropathy "as a result of [Defendants'] waste disposal and waste management practices related to [2,4,5-T]." (Cmplt. ¶ 5) The Complaint asserts that Monsanto "adopted an unlawful practice of disposing of dioxin waste materials by a continuous process of open 'pit' burning." (Cmplt. ¶ 74) Plaintiffs also allege that after 1970, when the plant stopped producing 2,4,5-T, Defendants "failed to adequately control the dioxin contaminated soils and other dioxin contaminated waste materials both on and off the plant site." (Cmplt. ¶ 75)

I.GOVERNMENT SUPERVISION OF THE 2,4,5-T MANUFACTURING PROCESS

Defendants' government contractor defense is based on Monsanto's involvement in producing "Agent Orange," the military defoliant. Beginning in the 1950s and continuing through 1970, Monsanto devoted a portion of its 2,4,5-T production at the Nitro plant to the needs of the United States Government. *fn2 (Def. R. 56.1 Stmt. ¶ 11) The Government's demand for 2,4,5-T peaked during the Vietnam conflict, when the compound was used in Agent Orange. (Def. R. 56.1 Stmt. ¶¶ 2, 6-7) Indeed, from at least March 24, 1967 through March 25, 1968, the Nitro plant produced 2,4,5-T exclusively for the Government's use in Agent Orange. (Def. R. 56.1 Stmt. ¶ 7) During this period, Monsanto was not permitted to manufacture 2,4,5-T for customers other than the Government absent the Government's express permission. (Def. R. 56.1 Stmt. ¶ 8) Monsanto was also forced to redesign its 2,4,5-T manufacturing process in order to meet the growing demand for 2,4,5-T during the Vietnam conflict. (Def. R. 56.1 Stmt. ¶¶ 16-17)

While the above facts are either undisputed or have not been disputed with citations to the record, Plaintiffs have offered evidence challenging Defendants' representation that all 2,4,5-T production during the period from 1963 to 1969 was undertaken "pursuant to a series of government contracts" and pursuant to government specifications. (Def. R. 56.1 Stmt. ¶ 5) In a 1968 Purchase Description referencing the Government's purchase of Agent Orange, for example, Monsanto and the Government specify that the agreement will "deal with the composition of the finished product and not go into the quality control of the materials used in producing [Agent] Orange." (Rubin Decl., Ex. A) Plaintiffs also note that Monsanto's internal documents describe the manufactured 2,4,5-T -- and a related chemical, 2,4,5-D -- as "two mixed, widely sold, products" which require no modification for use in Agent Orange. (Rubin Decl., Ex. B)

II.GOVERNMENT SUPERVISION OF WASTE DISPOSAL PRACTICES

Because the instant case concerns injuries allegedly arising out of Monsanto's waste disposal practices at the Nitro plant, the extent of the U.S. Government's supervision of those activities is a critical issue. Both sides cite to Monsanto's Technical Services Department's annual reports for their assertions about the U.S. Government's involvement in the Nitro plant's waste disposal practices.

Defendants' garbled account of the 1962 annual report states . . . as per United States Public Health Service ("USPHS") in conjunction with the West Virginia Water Resources Division to reduce industrial waste by a total of 80% by 1965, Monsanto's "Major Objectives" at the Nitro Plant included advances in waste treatment and waste reduction, while at the same time undertaking "2,4,5-T Expansion" to meet the federal government's demands. (Def. R. 56.1. Stmt. ¶ 21) Defendants further allege that "Monsanto's Nitro Plant was engaged in 'close follow up and participation [in] . . . both State and Federal pollution programs,'" and that "[i]n 1963, as Monsanto began to ramp up its 2,4,5,-T operation to meet the federal government's wartime demands, the federal government's monitoring of waste discharge in the Kanawha River region increased significantly." (Def. R. 56.1 Stmt. ¶¶ 22-23)

The 1962 annual report states that one of Technical Services' "1963 Major Objectives" is to "assist Organic Engineering [to] develop and demonstrate a pilot treatment unit in preparation for a second major mandatory reduction in waste discharge." (Tyrrell Decl., Ex. 26) In the section of the report devoted to waste reduction, Technical Services explains that "[t]he West Virginia Water Resources Division will put into effect in June 1963 the first phase of [its] program to reduce industrial pollution of the Kanawha River . . . , [which] will require that Monsanto as well as other industries reduce their plant waste by 40%." (Id.) The report further states that "friction has developed between the USPHS and ORSANCO [the Ohio River Valley Sanitation Commission]," reflecting a "battle between those who are in favor of Federal government control of pollution and those who favor regional or state control." "This fight appears to be centering on the Kanawha River as it is probably the most polluted stream under ORSANCO control. The USPHS seems to be trying to embarrass ORSANCO over condition[s] on the Kanawha River." (Id.) The report further states that "an unpublished memorandum of the [West Virginia] Water Resources Division indicates their plans to require another 40% or a total of 80% reduction of industrial waste by the end of 1965." (Id.)

The 1963 Technical Services report's remarks concerning waste management are similarly focused on water pollution in the Kanawha River. The report states that Monsanto's waste reduction programs for 1962 and 1963 have had the "effect . . . [of] reduc[ing] [Monsanto's waste] to the new 40% permit level for the month prior to the deadline required by the Water Resources Division." (Tyrrell Decl., Ex. 27) The report also states that Technical Services' "1963 waste abatement activities involved . . . in-plant abatement studies to develop means of waste incineration." (Id.)

The 1963 annual report also discusses federal government involvement in monitoring pollution in the Kanawha River:

Federal activity in water pollution study of the Kanawha River increased significantly in 1963. The USPHS started an intensive survey of the Kanawha River in the summer of 1963. There was fear that this would develop into a Federal hearing over the polluted condition of the Kanawha River and thus interject the Federal Government into this problem. A conference between U.S. Senator Randolph, local Plant Managers, and USPHS officials tended to ease this fear and remove USPHS pressure in this area. (Id.)

With respect to air pollution, the 1963 annual report states that "[l]ittle emphasis had been placed on air pollution by public authorities until late in 1963," but notes that "[a] citizens group, headed by a State Senator, started a movement to bring air pollution problems to the forefront," and that "[a]n announcement was made in December that the USPHS would conduct an Air Pollution Survey in the Kanawha Valley during the summer of 1964." (Id.)

Technical Services' 1964 annual report includes what appear to be headlines from news articles indicating that government authorities have embarked on a study of air pollution in the Kanawha Valley. (Tyrrell Decl., Ex. 28) The report states that [t]he United States Public Health Service and the West Virginia Air Pollution Commission have started on [an] extensive air pollution study of the Kanawha Valley. This is one of three surveys of this magnitude now being sponsored by the PHS. A complete audit of emissions from every process in the plant has been made and will be given to the air pollution team. Increased Federal and State expenditures for air pollution control will result in more and more pressure being applied to industries to reduce air pollution.

(Id.)

The 1965 annual report states that [t]he Nitro Plant is again faced with drastic reduction in waste load. The Division of Water Resources will require a 50 percent reduction in waste load by June 1966. This will be met by in-plant reductions and by installation of a $130,000,

1.4 million gallon aerated lagoon.

Political forces continue to be active in 1965. The U.S. Public Health Service continues to monitor water quality in the Kanawha River with the threat that they will become active in enforcement pr[og]rams. The Nitro Plant was visited in October by Messrs. Ellenger, Roes, and Venderhof of the USPHS Taft Sanitary Engineering Center. The purpose of this visit was for review of progress being made by local chemical industries in abating waste. A Kanawha River inspection trip was held by ORSANCO to publicize progress made in improving conditions of the Kanawha River. This was made in an effort to forestall federal take-over of the pollution control of the Kanawha River. (Tyrrell Decl., Ex. 30)

Technical Services 1967 annual report contains the following remarks about government authorities' air pollution program:

The air pollution program in the Kanawha Valley is in the formative stages with increased activity expected during 1968. An air pollution survey sponsored by the United States Public Health Service is near completion. Four regulations have been adopted, two of which -- fly ash and odor regulation [-- ] have a direct effect on our operation. Improved fly ash collection equipment has been installed on one of our two coal burners and is now being evaluated, with modifications to be made to the other boiler in 1968. Odor problems at the ...


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