In an effort to use product liability theories to hold manufacturers culpable for environmental releases, the Attorney General of Washington State sued PCB manufacturer Monsanto in state court in December. See Complaint, Washington v. Monsanto, No. 16-2-29591-6 (King Co. Super. Ct. Dec. 16, 2016). The suit is the first to apply product liability theories honed in more than a decade of MTBE litigation to allegations of statewide PCB contamination in waterways.

Polychlorinated biphenyls, or PCBs, have flame retardant characteristics, and were used in a wide variety of products, including electrical equipment, carbonless copy paper, heat transfer fluids such as hydraulic oils, paints, caulks, and many others. Monsanto manufactured PCBs from 1935 until 1977 when it voluntarily ceased production. The U.S. Environmental Protection Agency banned production of PCBs in 1979, but allowed for their continued use in some electrical equipment until a suitable alternative could be developed. Washington’s lawsuit claims that PCBs are now found in water bodies throughout the state, an alleged injury to the state’s public natural resources for which the state may seek damages on behalf of itself and its residents in the state’s parens patriae capacity.

The complaint asserts claims for public nuisance, trespass, equitable indemnity for the state’s response costs, and products liability (defective design and failure to warn). The state seeks compensatory damages, damages for natural resource injury, and present and future cleanup costs. Though individuals and localities have brought other suits alleging PCB contamination through the years, this case is the first to be brought against the PCB manufacturer by a sovereign state alleging statewide contamination and statewide damages on product liability theories. The structure of the allegations draws from similar claims made by states for alleged impacts to groundwater and surface water from releases of gasoline containing MTBE.