The Burlington School District is entering a crowded field.
In announcing plans to file a lawsuit against the agrochemical company Monsanto, the district joined numerous other municipalities and individuals seeking damages for contamination caused by polychlorinated biphenyls, or PCBs, a hazardous group of chemicals produced until the late 1970s.
Two recent lawsuits from towns in Massachusetts failed in court. Does the Burlington High School case stand a better chance?
“Different law, different lawyers, more evidence,” said Matthew Pawa, chair of the Environmental Practice Group at the law firm Seeger Weiss. Pawa has signed on to represent the Burlington School District in its case against Monsanto for the contamination found at the high school.
The three firms representing Burlington School District have agreed not to bill the district unless they win the case.
Burlington High School detected PCBs in window caulking and glazing in 2020, according to an environmental report conducted in preparation for a building renovation. The school was subsequently closed and students have since been taking classes in the former Macy’s building downtown.
School district officials said in an interview Friday that their legal counsel told them they have a strong case. School officials would not elaborate on their suit and referred specific questions about the case to Pawa.
“We believe that it is our obligation to follow through with this lawsuit, because the makers of these chemicals really caused harm to our community and should be accountable,” Superintendent Tom Flanagan said.
The district selected the two national firms, Seeger Weiss and Grant and Eisenhofer, because of their experience against Monsanto, officials said. The Vermont law firm Langrock, Sperry and Wool is also representing the district.
Pawa said in an interview Friday that his firm is working on two other pending PCB-related lawsuits against Monsanto, one in Los Angeles and another in New Jersey. He also cited two additional soon-to-be-filed cases he couldn’t speak about.
His firm did not represent Lexington nor Westport, the two Massachusetts towns that previously sued, unsuccessfully, under similar circumstances to Burlington in 2012 and 2017, respectively. Schools in both towns discovered levels of PCBs above Environmental Protection Agency limits in window caulking and glazing, but judges dismissed both cases, ruling that the towns failed to prove that Monsanto was required to warn about the hazards of PCBs at the time of school construction, according to court documents.
At least a handful of cases focused on personal injury, similar to the one that former Burlington educators filed against Monsanto this month, have been more successful. A public statement by Monsanto’s parent company, Bayer, lists five cases in Washington state related to personal injury from PCB exposure. In four of them, plaintiffs received damages totalling more than $500 million. One case ended in mistrial, Bayer said in the statement.
Bayer also reached settlements totaling $650 million to pay a variety of municipalities and states, including New Hampshire, for PCB contamination of water.
Pawa said Monsanto sales records in other cases showed that the company was the sole domestic manufacturer of the chemicals at the time of construction of the contaminated buildings. “They are virtually the sole manufacturer (of PCBs) who operated in the United States,” he said.
The Burlington district announced its plans for the lawsuit, which has not yet been filed, on Oct. 13, amid its public push for a $165 million bond to pay for a new high school, which goes before voters on Nov. 8. The district has shared conceptual renderings of the new school building, estimated construction costs and a breakdown of the tax implications if the full bond amount is borrowed.
District officials have stressed in public documents and statements that, even if the bond wins approval, they are seeking a variety of additional funding sources, including federal and state grants and private donations, to avoid borrowing the full $165 million.
At the Oct. 13 press conference, officials pitched the lawsuit as another potential source of money that could help pay for the high school.
However, in an interview the next day, Flanagan rejected the notion that the announcement was timed to drum up support for the bond. Instead, he said the district was responding to residents’ inquiries.
“I’ve been asked multiple times, publicly, whether or not we’re pursuing (a lawsuit for PCBs),” Flanagan said.
The district estimates that the total project will cost $190 million, including $21 million to pay for environmental remediation, which covers the cleanup of PCBs. School officials have identified $25 million in other funding sources to supplement the bond.
School officials said that they intend to seek damages from Monsanto beyond just the environmental cleanup costs. They also hope to recoup costs associated with closing the high school, moving students to the temporary location downtown and building the new school.
Neither school officials nor Pawa would comment on a specific timeframe for filing the lawsuit.
“Soon,” Pawa said.
