Document 5B616aOQrDGRejJGgROLR8VD

FILED 18 JAN 02 AM 9:00 1 KING COUNTY 2 SUPERIOR COURT CLERK E-FILED 3 CASE NUMBER: 18-2-00001-7 s|eA 4 5 6 7 SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY 8 9 ANGELA M. BARD and WILLIAM BARD, individually No. and as legal guardians of minor J.D.B.; JESSICA L. 10 BARD; JOHN M. BEUTLER; STACY R. MULLENDELAND and ERIC DELAND, individually and as legal COMPLAINT FOR DAMAGES 11 guardians of minors A.S.M.D. and C.R.M.D.; DONYA C. 12 GRANT and WELDON J. GRANT, individually and as legal guardians of minors H.B.G., K.M.G., M.A.G. and 13 R.K.G; CEANNA N. HEIT; MELANIE K. LONG, individually and as legal guardian of minors AD.L., 14 A.R.L. and I.R.L.; ILYANA A. LONG; HOLLY A. 15 MILLS; CHERYL T. PRITCHETT and JOEL PRITCHETT, individually and as legal guardians of 16 minors I.G.P. and M.E.P.; JILL E. SAVERY and JAMES SAVERY, individually and as legal guardians of minors 17 M.E.S. and S.L.S.; ARICAL. SMITH-SIMMER, 18 individually and as legal guardian of minors KRM.S. and N.D.S.; ILLYEANNA WOLF STORM, individually 19 and as legal guardian of minor I.S.W.; JAMES L. WOODARD; and DOES 1-250; 20 21 v. 22 Plaintiffs, 23 MONSANTO COMPANY, a Delaware corporation; SOLUTIA, INC., a Delaware corporation; PHARMACIA 24 LLC, a Delaware limited liability corporation, f/k/a Pharmacia Corporation; STATE OF WASHINGTON; 25 MONROE SCHOOL DISTRICT NO. 103 d/b/a 26 MONROE PUBLIC SCHOOLS; UNION HIGH SCHOOL DISTRICT NO. 402; SNOHOMISH HEALTH DISTRICT; 27 and ROES 1-10; 28 Defendants. FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094830 1 TABLE OF CONTENTS 2 Page 3 I. 4 INTRODUCTION TO THE SKY VALLEY EDUCATION CENTER CASE....... 1 5 II. IDENTITY OF THE PARTIES......................................................................................2 6 A. Identities of the Defendants......................................................................................2 7 B. Identities of the Plaintiffs.........................................................................................7 8 9 III. VENUE AND JURISDICTION..................................................................................... 7 10 A. Venue is proper in King County..............................................................................7 11 12 B. King County Superior Court has jurisdiction......................................................... 8 13 IV. COMPLIANCE WITH STATUTORY NOTICE REQUIREMENTS...................... 8 14 15 A. Plaintiffs complied with the statutory claim notice requirements and waiting periods for the following public entity Defendants:..............................................8 16 1. The State of Washington.................................................................................... 8 17 2. Momoe School District No. 103, a/k/a Momoe Public Schools;................... 8 18 3. Union High School No. 402; and...................................................................... 9 19 4. Snohomish Health District................................................................................... 9 20 B. Plaintiffs are not required to give any statutory claim notice to the following 21 non-public entity Defendants:...................................................................................9 22 1. Monsanto Company............................................................................................. 9 23 2. Solutia, Inc.............................................................................................................9 24 3. Pharmacia LLC, f/k/a Pharmacia Corporation..................................................9 25 26 V. FACTS REGARDING CONTAMINATION, EXPOSURE, AND POISONING... 9 27 A. Monsanto produced and promoted PCBs from the 1930s to the 1970s...............9 28 B. Monsanto's PCBs are "extremely toxic" synthetic chemicals..............................10 Page-i FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094831 1 C. Monsanto knew PBCs were toxic, but promoted them without warnings......... 22 2 D. PCB-caulking and PCB-light ballasts cause PCB-contamination....................... 33 3 E. The school buildings became toxic, injuring children and adults........................ 47 4 5 VI. LEGAL CONTEXT AND CAUSES OF ACTION.................................................. 92 6 A. State law protects individual rights........................................................................ 92 7 8 B. Plaintiffs are fault-free............................................................................................ 93 9 C. Negligence claims are covered claims...................................................................93 10 D. Defendants' joint and several liabilities................................................................. 94 11 E. Monsanto Defendants' product liabilities to the Plaintiffs.............................94 12 L PCBs are a product............................................................................................94 13 2. Strict product liability, not reasonably safe in construction......................... 94 14 3. Strict product liability, not reasonably safe as designed................................ 94 15 4. Liability for negligence, "Comment K" unavoidably unsafe products...... 95 16 5. Liability for failure to provide warnings when manufactured..................... 96 17 6. Liability for failure to provide warnings after manufacture........................ 97 18 7. No "useful safe life" defense, statute does not apply................................... 98 19 8. No "useful safe life" defense, the indefinite persistence of PCBs 20 means an indefinite "useful" life..................................................................... 99 21 9. No "useful safe life" defense, statutory exception applies......................... 99 22 10. Statute of limitations........................................................................................ 99 23 11. Foreseeability....................................................................................................100 24 12. Missouri exemplary damages apply................................................................ 101 25 F. Public entity negligence........................................................................................... 102 26 1. Standing of the State to be sued......................................................................102 27 2. State's direct liability for negligence............................................................... 102 28 3. State's vicarious liability through negligence of its agents......................... 103 Page-ii FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094832 1 4. State's vicarious liability through acting in concert.......................................103 2 5. State's paramount, nondelegable duty............................................................104 3 6. State's duty to provide, establish, maintain, and supervise reasonably safe school buildings.........................................................................................104 4 7. State's standard of reasonable care for provision, establishment, 5 maintenance, and supervision of these school buildings.............................106 6 8. State violated its duty....................................................................................... 106 7 9. The State remains in contempt of the Supreme Courtof Washington.........107 8 10. State's violations caused Plaintiffs' damages................................................ 107 9 11. No Title 51 immunity........................................................................................ 108 10 12. State and public entity claims against Monsanto........................................... 108 11 13. Standing of Monroe School District No. 103............................................... 109 12 14. Momoe School District's direct liability for negligence............................. 109 13 15. Momoe School District's vicarious liability for negligence.......................109 14 16. Statutory duties................................................................................................ 109 15 17. Common law duty to students....................................................................... 110 16 18. Momoe School District's duty...................................................................... 110 17 19. Momoe School District violated its statutory duty..................................... 110 18 20. Momoe School District violated its common law duty.............................. 110 19 21. Momoe School District's duty to public invitees........................................Ill 20 22. Momoe School District is liable for violating its duty to public invitees. Ill 21 23. Momoe School District violated its duty to public invitees........................112 22 24. Momoe School District's duty to staff members......................................... 112 23 25. Momoe School District violated its duty and may be liable to Plaintiffs who were staff members................................................................ 112 24 26. Union High as landowner and school district.............................................. 112 25 27. Joint liability.................................................................................................... 113 26 28. Momoe School District and Union High, causes of action......................... 113 27 29. Standing of the Snohomish Health District.................................................. 114 28 30. Health District's direct liability for negligence............................................114 Page - iii FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094833 1 31. Health District's vicarious liability for negligence.................................... 114 2 32. Health District's joint obligation with the State to enforce safety requirements in the school buildings............................................................114 3 33. Healthy District's duty to inspect school buildings................................... 115 4 34. Health District's duty to take corrective action and enforce safety 5 requirements.................................................................................................... 115 6 35. Health District breached its duties to the Plaintiffs, causing them harm. .115 7 G. Roes......................................................................................................................... 116 8 9 H. Admonition of the Environmental Defense Fund decision................................ 117 10 I. Accountability........................................................................................................ 117 11 12 VII. PRAYERS FOR RELIEF...........................................................................................117 13 A. Request for preservation of evidence................................................................... 117 14 B. Ex parte contact is prohibited................................................................................ 117 15 C. Limited waiver of physician-patient privilege..................................................... 118 16 D. Motion practice...................................................................................................... 118 17 18 E. Judgment for damages............................................................................................118 19 20 21 22 23 24 25 26 27 28 Page-iv FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94834 1 I. INTRODUCTION TO THE SKY VALLEY EDUCATION CENTER CASE 2 Monsanto intentionally produced and promoted in the U.S. more than 1.25 billion 3 pounds of synthetic chemicals called Polychlorinated Biphenyls (PCBs). According to 4 U.S. government agencies, PCBs are "extremely toxic" and damage essentially every 5 system of the human body. Since the 1930s, Monsanto has known that PCBs are toxic, 6 yet promoted them without adequate warnings for electrical, construction, and other 7 applications--until they were banned. Internal memoranda, however, show that while 8 Monsanto knew PCBs are toxic, Monsanto made decisions based on PCB profits. As a 9 consequence, PCBs were produced and incorporated into public buildings, including 10 school buildings. Today up to 14 million school children in roughly 20,000 U.S. school 11 buildings may be exposed to PCBs, as estimated by a Harvard School of Public Health 12 study. Monsanto still fails to adequately warn about the extreme toxicity of its PCBs. 13 In this case, the contaminated school buildings are called Sky Valley Education 14 Center. They contained PCBs and other toxic chemicals, exposing the children and adults 15 who used the buildings. As a result, these individuals have been coping with adverse 16 medical effects, including neurological damage, autoimmune and endocrine diseases, and 17 cancers. The State, the School District, and the Health District negligently allowed the 18 toxic chemicals to exist in the buildings, due in part to Monsanto's ongoing failure to 19 warn about PCBs' extreme toxicity. Regardless, the public entities had joint duties of 20 reasonable care to provide, maintain, inspect, operate, and supervise public education for 21 the children and adults at Sky Valley. The public entities violated their duties by allowing 22 the toxic chemicals to remain in the school buildings and poison these children and 23 adults. 24 This case is about school safety and the toxic chemicals in school buildings that 25 poisoned children and adults, and whether under state law the manufacturer will be held 26 accountable for its toxic products, and whether the public entities that are obligated to 27 provide safe school buildings will be held accountable for the toxic school buildings. 28 The following EPA slide demonstrates the mechanism of the toxic poisoning: COMPLAINT - 1 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94835 SEPA United States Environmental Protection Agency PCBs - A Complex Problem In Bu ildings Example Scenario Over 100 PCB chemicals Multiple primary sources possible Transport from sources to air, surfaces, dust, soil Secondary sources created Exposures through multiple pathways Ventilation and temperature effects COMPLAINT - 2 Sources and Sinks Dust/Soil HARTOLDMON0094836 1 II. IDENTITY OF THE PARTIES 2 A. Identities of the Defendants. 3 1. In 2015 and 2016, the Cities of Spokane and Seattle and the State of 4 Washington each separately sued the Monsanto Defendants for their role in 5 contaminating Washington public resources with Monsanto's PCBs. Many of the 6 following allegations have been made or admitted to by the State and Monsanto 7 Company, Solutia, Inc., and Pharmacia LCC, through the State's Complaint for 8 Damages, and Monsanto, et al.'s Answer to the Complaint, or are sourced from other 9 public documents. See State's Complaint for Damages, State v. Monsanto, et al.. King 10 County Case No. 16-2-29591-6-SEA (December 16, 2016), and Defendant Monsanto 11 Company et al.'s Answer to Complaint, State v. Monsanto Company, et al.. No. 2:17-cv- 12 00053 (W.D. Wash. Jan. 12, 2017); see also City of Seattle v. Monsanto Co., 237 F. 13 Supp. 3d 1096, 1100, fn 2 (W.D. Wash. 2017) ("The original Monsanto Company 14 operated within three main industries: agricultural products, chemical products, and 15 pharmaceuticals. In the late 1990s, Monsanto Company spun off into three separate 16 corporations, each responsible for a different industry: Monsanto Company retained the 17 agricultural products business; Solutia, Inc. assumed the chemical products business; and 18 Pharmacia Corporation assumed the pharmaceutical business. Each assumed certain 19 assets and liabilities from the original Monsanto Company, and all are defendants in this 20 case"); City ofSpokane v. Monsanto Co., Case No. 2:15-cv-00201-SMJ (E.D. Wash. July 21 31, 2015); see also Solutia, Inc. v. McWane, Inc., 726 F.Supp.2d 1316, 1318-19 (N.D. 22 Ala. 2010) ("Monsanto Company and its predecessors produced polychlorinated 23 biphenyls (`PCBs')... In 1997, Monsanto created Solutia in a spin-off transaction... In 24 2000, Pharmacia was formed by the merger of Monsanto and Pharmacia & Upjohn"). 25 2. Defendant Monsanto Company is a Delaware corporation with its principal 26 place of business in St. Louis County, Missouri. 27 3. Defendant Solutia, Inc. is a Delaware corporation with its principal place of 28 business in St. Louis County, Missouri. COMPLAINT - 3 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94837 1 4. Defendant Pharmacia LLC is formerly known as Pharmacia Corporation 2 and is successor to the original Monsanto Company. Pharmacia is a Delaware limited 3 liability corporation and is a citizen of the states of New York and Delaware. Pharmacia 4 is now a wholly-owned subsidiary of Pfizer, Inc. 5 5. The original Monsanto Company ("Old Monsanto") operated agricultural, 6 chemical, and pharmaceutical businesses. 7 6. Old Monsanto began manufacturing PCBs around the 1930s and continued 8 to manufacture commercial PCBs, including PCBs used in electrical equipment 9 applications such as light ballasts, through the 1940s, 1950s, 1960s, and 1970s, until 10 approximately 1977. 11 7. Around 1997, Old Monsanto spun-off its chemical business to Solutia. 12 Since 2000, the present or current Monsanto Company has operated the agricultural 13 business, while Pharmacia retained the pharmaceutical business. 14 8. Old Monsanto is now known as Pharmacia LLC. 15 9. Old Monsanto organized Solutia to own and operate its chemical 16 manufacturing business. Solutia assumed the operations, assets, and liabilities of Old 17 Monsanto's chemical business. 18 10. Although Solutia assumed and agreed to indemnify Pharmacia (then known 19 as Monsanto Company) for certain liabilities related to the chemicals business, 20 Monsanto, Solutia, and Pharmacia have also entered into agreements to share or 21 apportion liabilities, and/or to indemnify one or more entities, for claims arising from Old 22 Monsanto's chemical business, including the manufacture and sale of PCBs. 23 11. According to Monsanto, Solutia, and Pharmacia, the three entities have 24 entered into complex corporate transactions and agreements that determine their 25 respective legal or financial obligations for claims arising from Old Monsanto's 26 manufacture and sale of PCBs. 27 12. In 2003, Solutia filed a voluntary petition for reorganization under Chapter 28 11 of the U.S. Bankruptcy Code. Solutia's reorganization was completed in 2008. In COMPLAINT - 4 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094838 1 connection with Solutia's Plan of Reorganization, Solutia, Pharmacia, and new Monsanto 2 entered into several agreements under which Monsanto continues to manage and assume 3 financial responsibility for certain tort litigation and environmental remediation related to 4 the chemicals business. 5 13. Monsanto represented in a recent Form 10-K (for the fiscal year ending 6 August 31, 2016): "Monsanto is involved in environmental remediation and legal 7 proceedings to which Monsanto is party in its own name and proceedings to which its 8 former parent, Pharmacia LLC (`Pharmacia') or its former subsidiary, Solutia, Inc. 9 (`Solutia') is a party but that Monsanto manages and for which Monsanto is responsible 10 pursuant to certain indemnification agreements. In addition, Monsanto has liabilities 11 established for various product claims. With respect to certain of these proceedings, 12 Monsanto has established a reserve for the estimated liabilities." The document specifies 13 that the company holds $545,000,000.00 in that reserve. 14 14. For the Monsanto Defendants' wrongdoing that lead to PCB contamination 15 and toxic poisonings at the school buildings in this case, Monsanto, Solutia, and 16 Pharmacia are liable to the Plaintiffs under state tort law. These Defendants may be 17 obligated to one another in contract for PCB tort liabilities as set out in their complex 18 corporate agreements, but that is not the subject of this lawsuit. For purposes of this 19 Complaint, these Defendants are referred to as "Monsanto." 20 15. Monsanto's conduct is a legal cause of damages to the Plaintiffs because 21 the Sky Valley Education Center school buildings never would have become 22 contaminated with "extremely toxic" PCBs if Monsanto had not intentionally produced 23 and promoted PCBs in building construction applications. 24 16. The State of Washington is a sovereign that has constitutional and statutory 25 duties to citizens of the State of Washington, including the Plaintiffs, through State 26 departments, agencies, and employees at the Department of Health, the Office of the 27 Superintendent of Public Instruction, and other offices. See, e.g., Wash. State Depart, of 28 Health, Office of Environmental Health and Safety. June 2005, p. 8, available at COMPLAINT - 5 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094839 1 https://www.doh.wa.gov/CommunityandEnviromnent/Schools/EnviromnentalHealth (last 2 visited November 15, 2017). 3 17. The Department of Health is the state agency that supervises and partners 4 with health districts, such as the Snohomish Health District, and school districts, such as 5 Momoe School District and Union High, regarding public health safety requirements in 6 school buildings, including the school buildings in this case. Id. 7 18. The Office of the Superintendent of Public Instruction is the state agency 8 that supervises the public education system, which includes administrative and support 9 responsibilities, for school districts such as Monroe School District and Union High. Id. 10 19. The Office of Superintendent of Public Instruction also partners with the 11 Department of Health and other agencies to support student health and safety in relation 12 to indoor air quality, including the air quality in the school buildings in this case. Id. 13 20. Momoe School District No. 103, d/b/a Monroe Public Schools, is a 14 Washington school district. 15 21. Momoe School District provides educational services to families who live 16 in King and Snohomish Counties. 17 22. Union High School District No. 402 is a Washington school district. 18 23. According to tax accessor records, Union High appears to be the owner of 19 the land and school buildings formerly known as Monroe High School (1950-1977), 20 Momoe Junior High (1977-1987), Momoe Middle School (1987-2011), and now known 21 as the Sky Valley Education Center (2011-present), located at 351 Short Columbia Street 22 at Hill and Kelsey Streets, in Momoe. In this Complaint, this location may be referred to 23 as Sky Valley Education Center, Sky Valley, or the school buildings. 24 24. The Snohomish Health District ("Health District") is a Washington 25 independent special purpose district. 26 25. The Health District is the municipal corporation responsible for public 27 health in Snohomish County, in part by inspecting and enforcing minimal environmental 28 safety requirements in educational facilities, including the school buildings in this case. COMPLAINT - 6 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094840 1 B. Identities of the Plaintiffs. 2 1. The Plaintiffs are residents of King and Snohomish Counties. 3 2. The Plaintiffs identified in the caption by their initials are minor children 4 who were or are students served by the Momoe School District. These Plaintiffs spent 5 time in the school buildings. Due to the Defendants' wrongful conduct, the Plaintiffs 6 were exposed to toxic chemicals and have suffered adverse medical consequences. 7 3. The Plaintiffs identified in the caption by their full names are adults who 8 spent time in the school buildings. Due to the Defendants wrongful conduct, these 9 Plaintiffs were exposed to toxic chemicals and have suffered adverse medical 10 consequences. 11 4. The Plaintiffs identified in the caption as Does 1-250 are individuals who 12 spent time in the school buildings. These Plaintiffs may have been exposed to toxic 13 chemicals and suffered adverse medical consequences, as discovery may reveal. In 2016, 14 environmental testing publicly revealed the toxic contamination in the school buildings. 15 5. In all, the Plaintiffs are children, parents, spouses, and Momoe School 16 District staff members, including teachers, who were harmed due to the corporate and 17 governmental wrongdoing of the Defendants. The Plaintiffs bring claims against the 18 Defendants for products liability and negligence. The Plaintiffs bring claims for personal 19 injuries as well as societal and consortium injuries to their family members. 20 6. The Plaintiffs will move to appoint the required guardians ad litem to 21 represent and review the litigation and settlement interests of the minor children. 22 III. VENUE AND JURISDICTION 23 A. Venue is proper in King County. 24 1. King County venue is proper because one or more of the Monsanto 25 Defendants transacts business in King County, including Monsanto, Solutia, and/or 26 Pharmacia. RCW 4.12.025(1). 27 2. King County venue is proper because suit is against the State, and the 28 Plaintiffs are residents of King and Snohomish Counties. RCW 4.92.010 ("Any person or COMPLAINT - 7 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094841 1 corporation having any claim against the state of Washington shall have a right of action 2 against the state in the superior court. The venue for such action shall be as follows: (1) 3 The county of the residence or principal place of business of one or more of the 4 plaintiffs"). 5 3. King County venue is also proper because the Momoe School District 6 transacts business in King County. RCW 4.12.025(1). A school district is a "municipal 7 corporation." RCW 39.69.010. Venue is proper "in any county in which the defendant 8 resides... the residence of a corporation defendant shall be deemed to be in any county 9 where the corporation: (a) Transacts business [or] (c) transacted business at the time the 10 cause of action arose." RCW 4.12.025(1). Although the School District has offices and 11 buildings in Snohomish County, it transacts business in King County as well as 12 Snohomish County by providing educational services to children and families within 13 King County, including the Plaintiffs, who are King County residents. The School 14 District provides educational and outreach services in King County, while also receiving 15 compensation from King County residents for providing these services. 16 4. King County venue is also proper to the extent any Defendant alleges legal 17 fault to a third-party corporate resident of King County. Such corporation may be cross- 18 claimed against or added in an amended complaint by Plaintiffs. 19 5. King County venue is also proper to the extent any Defendant alleges legal 20 fault to third-party Snohomish County and if the County becomes a party. 21 B. King County Superior Court has jurisdiction. 22 1. This Court has jurisdiction over this case. Wash. Const. Art. 4, 6; RCW 23 2.08.010; RCW 4.12.020(3). 24 IV. COMPLIANCE WITH STATUTORY NOTICE REQUIREMENTS 25 A. Plaintiffs complied with the statutory claim notice requirements and 26 waiting periods for the following public entity Defendants: 27 1. The State of Washington; 28 2. Momoe School District No. 103, a/k/a Momoe Public Schools; COMPLAINT - 8 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094842 1 3. Union High School No. 402; and 2 4. Snohomish Health District. 3 B. Plaintiffs are not required to give any statutory claim notice to the 4 following non-public entity Defendants: 5 1. Monsanto Company; 6 2. Solutia, Inc.; or 7 3. Pharmacia LLC, f/k/a Pharmacia Corporation. 8 V. FACTS REGARDING CONTAMINATION, EXPOSURE, AND POISONING 9 A. Monsanto produced and promoted PCBs from the 1930s to the 1970s. 10 1. Polychlorinated biphenyls, or "PCBs," are mixtures of synthetic organic 11 chemicals comprised of chlorine atoms attached to a double carbon-hydrogen ring (a 12 "biphenyl" ring). U.S. EPA. PCBS: CANCER DOSE-RESPONSE ASSESSMENT AND 13 APPLICATION TO ENVIRONMENTAL MIXTURES (1996) at 1. U.S. Environmental 14 Protection Agency, Office of Research and Development, National Center for 15 Environmental Assessment, Washington Office, Washington, DC, EPA/600/P-96/001F, 16 1996, available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid= 12486 (last 17 accessed November 6, 2017). "Different mixtures can take on forms ranging from oily 18 liquids to waxy solids." Id. 19 2. PCBs are comprised of many similar semi-volatile chemicals called 20 congeners. A "PCB congener" is any single, unique chemical compound in the PCB 21 category. Two hundred nine congeners have been identified. 22 3. From approximately the 1930s to 1977, Monsanto was the only 23 manufacturer in the United States that intentionally produced and promoted PCBs for 24 commercial use. Environmental Defense Fund v. Environmental Protection Agency, 636 25 F.2d 1267, 1281 fn 37 (1980) ("From the sparse legislative history of 6(e), it also 26 appears that Congress focused its attention on the deliberate use, manufacture, and 27 distribution of PCBs. Throughout the congressional debate, members of Congress 28 referred to Monsanto Company as the sole producer of PCBs. See 122 Cong.Rec. 8294 COMPLAINT - 9 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94843 1 (1976), reprinted in Legislative History, supra note 7, at 240 (Senator Tunney, speaking 2 in support of the section, referred to Monsanto as the "sole domestic manufacturer of 3 PCB's"); id. at 27187, reprinted in Legislative History, supra note 7, at 588 4 (Congressman Leggett, speaking in support of the corresponding section in the House 5 bill, referred to Monsanto as "the only American manufacturer of PCB's")."). See also 6 116 Cong. Record 11,695, 91st Congress, (April 14, 1970) ("Insofar as the Monsanto 7 Co., the sole manufacturer of PCB's is concerned....") and 121 Cong. Record 33879, 94th 8 Congress, (October 23, 1975) ("The sole U.S. producer, Monsanto Co.... "); and see Sky 9 Valley Complaint, Exhibit A (from City of Spokane v. Monsanto Co., Case 2:15-cv- 10 00201-SMJ, ECF No. 1-1 (E.D. Wash. July 31, 2015), Bates Nos. MONS 058730 11 058752, entitled "PCB Presentation to Corporate Development Committee") at MONS 12 058733 (identifying other producers as "all ex-USA"). 13 4. The most common trade name for PCBs in the United States is "Aroclor." 14 21 CFR 500.45(a) ("Polychlorinated biphenyls (PCBs) represent a class of toxic 15 industrial chemicals manufactured and sold under a variety of trade names, including 16 Aroclor (United States)"). 17 5. Aroclor is a name that was trademarked by Monsanto. 18 6. "Between 1929 and 1977, more than 1.25 billion pounds of PCBs were 19 produced in the United States." Agency for Toxic Substances and Disease Registry 20 (ATSDR). 2014. Case Studies in Environmental Medicine: Polychlorinated Biphenyls 21 (PCBs) Toxicity. Atlanta, GA: U.S. Department of Health and Human Services, at 21, 22 available at https://www.atsdr.edc.gov/csem/csem.asp?csem=30&po=10, last visited on 23 November 7, 2017. 24 B. Monsanto's PCBs are "extremely toxic" synthetic chemicals. 25 1. "PCBs are extremely toxic to humans and wildlife." Environmental 26 Defense Fund v. Environmental Protection Agency, 636 F.2d 1267, 1270 (D.C. Cir. 27 1980). 28 2. PCBs are a "keystone pollutant" and "a prime motivator for the enactment COMPLAINT - 10 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094844 1 of TSCA," the Toxic Substances Control Act. "By most accounts, PCBs are the 2 archetypical chemical villains against which the contemporary pollution laws are 3 directed." William H. Rodgers, Jr. and Elizabeth Burleson, Polychlorinated biphenyls 4 (PCBs), 3 Envtl. L. (West) 6:9 (July 2017) (internal citations omitted). 5 3. By the late 1970s, the United States banned the "manufacture, processing, 6 distribution in commerce, and use of polychlorinated biphenyls (PCBs)." 44 Fed. Reg. 7 31514 (May 31, 1979). The ban remains in effect. "The TSCA prohibits the manufacture, 8 processing, distribution, and use (other than in a `totally enclosed manner') of 9 polychlorinated biphenyls (PCBs) unless the EPA determines that the activity will not 10 result in an `unreasonable risk of injury to health or the environment.'" General Electric 11 Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (holding that an EPA-issued guidance 12 document was a legislative rule requiring prior notice and opportunity for public 13 comment), citing 15 U.S.C. 2605(e) (2) & (3). 14 4. PCBs are "among the most stable chemicals known and decompose very 15 slowly once they are in the environment... In the environment, PCBs are toxic at low 16 concentrations to a wide variety of species, marine mammals included. Once PCBs 17 reach the environment, they tend to stay there, or move slowly in damaging cycles..." 18 William H. Rodgers, Jr. and Elizabeth Burleson, Polychlorinated biphenyls (PCBs), 3 19 Envtl. L. (West) 6:9 (July 2017) (emphasis added), citing in part Response to Exemption 20 Petitions, 50 Fed. Reg. 35,184 (August 29, 1985) ("PCBs are also toxic to mammals at 21 very low exposure levels. The survival rate and reproductive success of fish can be 22 adversely affected in the presence of PCBs. Various sublethal physiological effects 23 attributed to PCBs have been recorded in the literature") (emphasis added); see also 21 24 CFR 500.45(a) ("Since PCBs are toxic chemicals, the PCB contamination of food as a 25 result of these and other incidents represent a hazard to public health."). 26 5. "For humans, exposures cause acute effects such as skin rashes, vomiting, 27 abdominal pain, and temporary blindness and are suspected of causing birth defects, 28 miscarriages, and cancer." William H. Rodgers, Jr. and Elizabeth Burleson, COMPLAINT - 11 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094845 1 Polychlorinated biphenyls (PCBs), 3 Envtl. L. (West) 6:9 (July 2017) (internal citations 2 omitted). See also Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1319 (N.D. Ala. 3 2010) ("PCBs have been found to cause cancer, decreased fertility, still births, and birth 4 defects in test animals.") (Monsanto cleanup contribution case), citing Dickerson, Inc. v. 5 United States, 875 F.2d 1577, 1579, 1583 (11th Cir.1989) ("PCBs are highly toxic 6 chemicals frequently used in electrical transformers... Scientists have found PCB 7 concentrations far below those involved in this case to cause cancer, decreased fertility, 8 still births, and birth defects in test animals.") (affirming judgment against the United 9 States for PCB liability). Both Solutia, Inc. and Dickerson cited Environmental Defense 10 Fund v. Environmental Protection Agency, 636 F.2d 1267 (D.C. Cir. 1980), infra. 11 6. The Environmental Defense Fund decision summarized research available 12 to the scientific community by the late 1970s: 13 Polychlorinated biphenyls (PCBs) have been manufactured and used commercially for fifty years for their chemical stability, fire resistance, and 14 electrical resistance properties. They are frequently used in electrical 15 transformers and capacitors. However, PCBs are extremely toxic to humans and wildlife. The extent of their toxicity is made clear in the EPA Support 16 Document accompanying the final regulations, in which the EPA Office of 17 Toxic Substances identified several adverse effects resulting from human and wildlife exposure to PCBs. 18 19 Epidemiological data and experiments on laboratory animals indicate that exposure to PCBs pose carcinogenic and other risks to humans. 20 Experimental animals developed tumors after eating diets that included 21 concentrations of PCBs as low as 100 parts per million (ppm). Experiments on monkeys indicate that diets with PCB concentrations of less than ten 22 ppm reduce fertility and cause still births and birth defects. Other data show 23 that PCBs may adversely affect enzyme production, thereby interfering with the treatment of diseases in humans. Support Document, supra note 4, 24 at 9-18. 25 EPA has found that PCBs will adversely affect wildlife as well as humans. 26 Concentrations below one ppb (part per billion) are believed to impair 27 reproductivity of aquatic invertebrates and fish. Some birds suffered "severe reproductive failure" when fed diets containing concentrations of 28 only ten ppm of PCBs. Id. at 19. Because PCBs collect in waterways and bioaccumulate in fish, fish-eating mammals run a special risk of adverse COMPLAINT - 12 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94846 1 effects. Such mammals may have "significantly higher concentrations of PCBs in their tissues than the aquatic forms they feed on." Id. at 36. 2 3 EPA estimates that by 1975 up to 400 million pounds of PCBs had entered the environment. Approximately twenty-five to thirty percent of this 4 amount is considered "free," meaning that it is a direct source of 5 contamination for wildlife and humans. The rest, "mostly in the form of industrial waste and discarded end use products, is believed to be in landfill 6 sites and thus constitutes a potential source of new free PCBs." Id. at 33-34. 7 Other significant sources of PCBs include atmospheric fallout and spills associated with the use or transportation of PCBs. Id. at 29. 8 9 EPA concluded in the Support Document that "the additional release of PCBs" into the environment would result in widespread distribution of the 10 PCBs and "will eventually expose large populations of wildlife and man to 11 PCBs." Id. at 36-37. EPA concluded further that: 12 As a practical matter, it is not possible to determine a "safe" 13 level of exposure to these chemicals. Because PCBs are already widely distributed throughout the *1271 biosphere, 14 they currently pose a significant risk to the health of man as 15 well as that of numerous other living things. As a consequence, any further increase in levels of PCBs in the 16 biosphere is deemed undesirable by EPA. 17 Id. at 38. Because "PCBs released anywhere into the environment will 18 eventually enter the biosphere ... EPA has determined that any such release of PCBs must be considered `significant.'" Id. 19 20 In 1972, Monsanto, the major American manufacturer of PCBs, limited its sales of PCBs to manufacturers of transformers and capacitors. It ceased all 21 manufacture of PCBs in 1977 and shipped the last of its inventory before 22 the end of that year. Today, PCBs are produced in this country only as incidental byproducts of industrial chemical processes. There are no known 23 natural sources of PCBs. Id. at 2. 24 Environmental Defense Fund v. Environmental Protection Agency, 636 F.2d 1267, 1270 25 71 (D.C. Cir. 1980) (holding, in part, that there was no substantial evidence to support 26 EPA's decision to establish a regulatory cutoff below 50 ppm). 27 7. The decision made other findings: "Most importantly, EPA expressly found 28 that any exposure of PCBs to the environment or humans could cause adverse effects." COMPLAINT - 13 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094847 1 Environmental Defense Fund, 636 F.2d at 1283-84. 2 8. Closed PCB systems develop leaks. Another issue in the decision related 3 to the regulation of non-enclosed uses of PCBs, such as "carbonless paper, paints, 4 coatings, soaps, and copying ink toners," versus so-called "totally enclosed uses" of 5 PCBs such as "transformers, capacitors, and electromagnets." Environmental Defense 6 Fund, 636 F.2d at 1285. The court ruled against the EPA on this artificial distinction 7 because of something that is also true in this case: "put simply, closed systems develop 8 leaks." Id. at 1285; see also 1286 (witness "recognized that environmental losses can 9 occur through accidental rupture or leakage."). 10 9. In the years following the ban, the EPA confirmed that PCBs are toxic, may 11 cause reproductive and developmental effects, and may cause tumors ("oncogenic 12 potential") in people exposed: 13 Health effects. EPA has determined that PCBs are toxic and persistent. PCBs can enter the body through the lungs, gastrointestinal tract, and skin, 14 circulate throughout the body, and be stored in the fatty tissue. 15 Available animal studies indicate an oncogenic potential, the degree to 16 which would depend on exposure... Further epidemiological research is 17 needed to correlate human and animal data, but EPA finds no evidence to suggest that the animal data would not predict an oncogenic potential in 18 humans. 19 In addition, EPA finds that PCBs may cause reproductive effects, 20 developmental toxicity, and oncogenicity in humans exposed to PCBs. 21 Available data show that some PCBs have the ability to alter reproductive processes in mammalian species, sometimes even at doses that do not cause 22 other signs of toxicity. Animal data and limited available human data 23 indicate that prenatal exposure to PCBs can result in various degrees of developmental toxic effects. Postnatal effects have been demonstrated in 24 immature animals following exposure to PCBs prenatally and via breast 25 milk. 26 In some cases chloracne may occur in humans exposed to PCBs. Severe 27 cases of chloracne are painful and disfiguring, and symptoms may persist for an extended time... 28 COMPLAINT - 14 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94848 1 50 Fed. Reg. 35182, 35183-84 (August 29, 1985). 2 10. The EPA also determined that Monsanto's PCBs are probable human 3 carcinogens. In 1996, the EPA reassessed PCB carcinogenicity based on data related to 4 Aroclors 1016, 1242, 1254, and 1260. The EPA's cancer reassessment was peer reviewed 5 by experts on PCBs, including scientists from government, academia, and industry. U.S. 6 EPA. PCBs: Cancer Does-Response Assessment and Application to Environmental 7 Mixtures (1996). U.S. EPA, Office of Research and Development, National Center for 8 Environmental Assessment, Washington Office, Washington, DC, EPA/600/P-96/001F, 9 1996, available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid= 12486 (last 10 accessed November 6, 2017). 11 11. This EPA report found that "[j]oint consideration of cancer studies and 12 environmental processes leads to a conclusion that environmental PCB mixtures are 13 highly likely to pose a risk of cancer to humans." Id. at 57. In addition, "PCBs persist in 14 the body, providing a continuing source of internal exposure after external exposure 15 stops. There may be greater-than-proportional effects from less-than-lifetime exposure, 16 especially for persistent mixtures and for early-life exposure." Id. at 58-59. 17 12. The 1996 EPA report also noted that "PCBs also have significant 18 ecological and human health effects other than cancer, including neurotoxicity, 19 reproductive and developmental toxicity, immune system suppression, liver damage, skin 20 irritation, and endocrine disruption. Toxic effects have been observed from acute and 21 chronic exposures to PCB mixtures with varying chlorine content." Id. at vi. 22 13. In 2000, the Agency for Toxic Substances and Disease Registry (ATSDR), 23 issued a public health statement regarding PCB exposure. It noted that "[s]kin conditions, 24 such as acne and rashes, may occur in people exposed to high levels of PCBs... Some 25 studies in workers suggest that exposure to PCBs may also cause irritation of the nose 26 and lungs, gastrointestinal discomfort, changes in the blood and liver, and depression and 27 fatigue." Agency for Toxic Substances and Disease Registry (ATSDR). 2000. 28 Toxicological profile for polychlorinated biphenyls (PCBs). Atlanta, GA: U.S. COMPLAINT - 15 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094849 1 Department of Health and Human Services, Public Health Service, at 4. The public health 2 statement summarized experimental animal studies finding liver damage, anemia, acne 3 like skin conditions, stomach injuries, thyroid injuries, kidney damage, impaired immune 4 system function, behavioral alterations, endocrine disruption, and impaired reproduction. 5 Id. at 5. 6 14. Children are more vulnerable to PCB exposure. The 2000 ATSDR 7 statement also summarized studies tending to show effects in PCB-exposed children: low 8 birthweight; problems with motor skills; decreases in short-term memory; and effects on 9 the immune system. Id. at 6. The report noted that children are more vulnerable to PCB 10 exposure than adults, although the routes of exposure are the same: 11 Children are exposed to PCBs in the same way as are adults: by eating 12 contaminated food, breathing indoor air in buildings that have electrical devices containing PCBs, and drinking contaminated water. Because of 13 their smaller weight, children's intake of PCBs per kilogram of body weight may be greater than that of adults. 14 15 It is possible that children could be exposed to PCBs following transport of the chemical on clothing from the parent's workplace to the home. House 16 dust in homes of workers exposed to PCBs contained higher than average 17 levels of PCBs. PCBs have also been found on the clothing of firefighters following transformer fires. The most likely way infants will be exposed is 18 from breast milk that contains PCBs. Fetuses in the womb are also exposed 19 from the exposed mother. 20 Because the brain, nervous system, immune system, thyroid, and 21 reproductive organs are still developing in the fetus and child, the effects of PCBs on these target systems may be more profound after exposure during 22 the prenatal and neonatal periods, making fetuses and children more 23 susceptible to PCBs than adults. 24 Id. at 5-6. In addition, "Younger children may be particularly vulnerable to PCBs 25 because, compared to adults, they are growing more rapidly and generally have lower and 26 distinct profiles of biotransformation enzymes, as well as much smaller fat deposits for 27 sequestering the lipophilic PCBs." Id. at 381. 28 15. Children are not small adults. The ATSDR toxicological profile for PCBs COMPLAINT - 16 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094850 1 reiterated these developmental concerns while cautioning against the fallacy that children 2 possess the same level of resilience to toxic exposure as adults: "Children are not small 3 adults... Children also have a longer remaining lifetime in which to express damage from 4 chemicals; this potential is particularly relevant to cancer." Id. at 380-81. 5 16. Workplace PCB exposure can contaminate homes. The ATSDR 6 statement reiterated that workplace exposure to PCBs can result in the worker's home 7 becoming contaminated with PCBs: "If you are exposed to PCBs in the workplace, it 8 may be possible to carry them home from work... If this is the case, you should shower 9 and changing clothing before leaving work, and your work clothes should be kept 10 separate from other clothes and laundered separately." Id. at 7. 11 17. PCB exposure and cardiovascular damage. A 2011 ATSDR addendum 12 to the toxicological profile for PCBs reported on more recent research, including animal 13 studies showing cardiovascular damage following PCB exposure. Agency for Toxic 14 Substances and Disease Registry (ATSDR). 2011. Addendum to the toxicological profile 15 for polychlorinated biphenyls (PCBs). Atlanta, GA: U.S. ATSDR, Division of 16 Toxicology and Environmental Medicine, at 1. 17 18. PCB exposure and type 2 diabetes. The 2011 addendum reported research 18 that "PCB exposure was strongly related to prevalence of type 2 diabetes mellitus." Id. at 19 2-3. 20 19. PCB exposure and deficient immune function. The 2011 addendum 21 reported research "suggesting possible impaired immunologic development" in children, 22 and the results of another study that "implied that exposure to PCBs is a possible cause of 23 deficient immune function in children." Id. at 4. 24 20. PCB exposure and neurodegenerative diseases. The 2011 addendum 25 reported other research "that exposure to PCBs likely has an effect on neurodegenerative 26 diseases for women but not men," including amyotrophic lateral sclerosis (ALS, also 27 known as motor neuron disease), Parkinson's disease, and dementia. Id. at 4. 28 21. PCB exposure and neurobehavioral effects, anxiety. The 2011 COMPLAINT - 17 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094851 1 addendum reported animal studies research "that exposure to PCBs may exert anxiogenic 2 behavior." Id. at 5. An anxiogenic or panicogenic substance is one that causes anxiety. 3 22. PCB exposure and central nervous system effects. The 2011 addendum 4 reported animal studies research showing inhibited and depressed central nervous system 5 effects following PCB exposure. Id. at 5-6. 6 23. PCB exposure and children's permanent teeth. The 2011 addendum 7 reported human studies showing "a dose-response relationship between PCB exposure 8 and development enamel defects of permanent teeth in children." Id. at 7. 9 24. PCB exposure and sexual development. The 2011 addendum reported 10 human studies research showing impaired sexual development, including a positive 11 association between high total PCB concentrations and cryptorchidism (undescended 12 testicles) in boys. Another study "suggested that even low levels of PCBs had a robust 13 negative impact on gonadal hormones in newborns." Id. at 7-8. Another study of girls 14 exposed to PCBs "suggested that even at low levels of estrogenic PCBs, the time to 15 menarche attainment was decreased," and the "median age at menarche for this cohort 16 (138 girls) was 12.2 years." Id. at 9. Another study found "that exposure to certain PCB 17 congeners may interfere with human reproductive development" in both boys and girls. 18 Id. at 9. Animal studies also found "dose-related prolongation of the estrous cycle in 19 female offspring," and "changes in body weight, body length, tail length, and weights of 20 kidneys, testes, ovaries, and uterus." Id. at 9. 21 25. Broad spectrum of effects. A 2014 ATSDR publication stated that 22 occupational exposure to PCBs can result in a "broad spectrum of effects that includes 23 increased levels of some liver enzymes, with possible hepatic damage, chloracne and 24 related dermal lesions, and respiratory problems." Agency for Toxic Substances and 25 Disease Registry (ATSDR). 2014. Case Studies in Environmental Medicine: 26 Polychlorinated Biphenyls (PCBs) Toxicity. Atlanta, GA: U.S. Depart, of Health and 27 Human Services, at 39, available at https://www.atsdr.cdc.gov/csem/csem.asp?csem=30&po=10. 28 last visited on November 7, 2017. The following information references this 2014 COMPLAINT - 18 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094852 1 ATSDR publication. 2 26. Acute exposure to PCBs. Signs and symptoms of acute exposure to PCBs 3 can include chloracne, eye irritation, nausea, vomiting, and elevated liver enzymes and 4 altered liver function. Id. at 55-56. 5 27. Chronic exposure to PCBs. Signs and symptoms of chronic exposure to 6 PCBs can include abdominal pain, anorexia, jaundice, nausea, vomiting, weight loss, 7 uroporphyria, headache, dizziness, and edema. Id. at 56-57. 8 28. Toxic responses to PCBs. Animal studies have shown that "commercial 9 PCBs elicit a broad range of toxic responses including: 10 Acute lethality, 11 Body weight loss, Carcinogenesis, 12 Dermal toxicity, 13 Fatty liver, Genotoxicity, 14 Hepatomegaly, 15 Immunosuppressive effects, Neurotoxicity, 16 Porphyria, 17 Reproductive and developmental toxicity, 18 Thymic atrophy, and Thyroid hormone-level alterations." 19 20 Id at 39-40. 21 29. Dermatological effects. "Conclusive evidence that exposure to PCBs 22 induces adverse dermal effects in humans exists": 23 Chloracne and related dermal lesions have been reported in workers occupationally exposed to PCBs. 24 25 The chin, periorbital, and malar areas are most often involved, although lesions might also appear in areas not usually affected by acne vulgaris 26 (e.g., the chest, arms, thighs, genitalia, and buttocks). The most distinctive 27 lesions are cystic and measure 1-10 mm, although comedonal lesions can also be present. 28 Chloracne generally indicates systemic toxicity and can be caused by not COMPLAINT - 19 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094853 1 only dermal contact but also ingestion of PCBs... Chloracne typically develops weeks or months after exposure. The lesions are often refractory 2 to treatment and can last for years or decades. 3 In addition to chloracne, other dermal effects noted some PCB-exposed 4 workers include pigmentation disturbances of skin and nails, erythema and 5 thickening of the skin, and burning sensations. 6 Id. at 41-42 (internal citations omitted). 7 30. Reproductive and developmental effects. "Reproductive function may be 8 disrupted by exposure to PCBs," and "neurobehavioral and development deficits have 9 been reported in newborns exposed to PCBs in utero." Id. at 45. Children bom to women 10 exposed to PCBs exhibited statistically significant decreases in gestational age, birth 11 weight, and head circumference. Id. at 43. Higher levels of PCB exposure correlated with 12 weaker reflexes, greater motor immaturity, and more pronounced startle responses. Id. at 13 43-44. Follow-up studies of the children of that cohort "demonstrated that the effects of 14 perinatal exposure to PCBs are persistent." Id. at 44. At four years of age, the children 15 still had deficits in weight gain, depressed responsiveness, and reduced performance on 16 the visual recognition memory test. Id. at 44. "At 11 years of age, the children of highly 17 exposed mothers were three times more likely than controls to have low full-scale IQ 18 scores; twice as likely to lag behind at least 2 years in reading comprehension; and more 19 likely to have difficulty paying attention." Id. at 44 (internal citation omitted). 20 31. Endocrine effects. "The epidemiological studies suggest a link between 21 exposure to PCBs and thyroid hormone toxicity in humans." Id. at 46. "Thyroid 22 hormones are essential for normal behavioral, intellectual, and neurologic development. 23 Thus, the deficits in learning, memory, and attention processes among the offspring of 24 women exposed to PCBs are partially or predominantly mediated by alterations in 25 hormonal binding to the thyroid hormone receptor." Id. "Recent studies in populations 26 exposed to PCBs and chlorinated pesticides found a dose-dependent elevated risk of 27 diabetes." Id. 28 32. Hepatic effects. "Although liver damage is common in animals exposed to COMPLAINT - 20 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94854 1 PCBs, overt hepatotoxicity is uncommon in humans. Exposure to PCBs can increase 2 serum levels of hepatic enzymes and can induce microsomal enzyme function." Id. at 46 3 48. 4 33. Neurological effects. Adults exposed to PCBs have been shown to have 5 significantly greater motor retardation; poorer results on certain memory and attention 6 tests; and higher scores on standardized confusion scale than did control adults. Id. at 51. 7 34. Additional adverse effects. "Occupational and epidemiologic studies have 8 suggested or demonstrated other adverse health effects from exposure to PCBs," 9 including cardiovascular, gastrointestinal, genetic, immune, musculoskeletal, and 10 neurological systems. Id. at 51-52. 11 35. Additional signs and symptoms. The ATSDR "advises patients to consult 12 their physicians if they develop signs or symptoms of PCB exposure such as: appetite 13 loss; joint pain; nausea; skin disorders, changes, or discoloration; breast changes or 14 lumps; and/or stomach distress and pain." Id. at 68. 15 36. Highly toxic PCDDs and PCDFs. "Occupational exposure to PCBs may 16 be accompanied by exposure to chlorinated dibenzodioxin and dibenzofuran 17 contaminants, which are much more toxic than PCBs in comparative animal studies. 18 These substances can cause chronic fatigue and elevated liver enzymes." Id. at 57. 19 37. PCBs are a "probable human carcinogen." The Department of Health 20 and Human Services and the Environmental Protection Agency "consider PCBs a 21 probable human carcinogen." Id. at 51. In addition, and "on the basis of sufficient 22 evidence of carcinogenicity in humans and experimental animals, the IARC 23 [International Agency for Research on Cancer] classified PCBs as carcinogenic to 24 humans." Id. PCB exposure has been linked to cancers of the liver, gallbladder, biliary 25 tract, brain, stomach, intestinal, thyroid, myeloma (cancer of plasma cells, which can 26 damage the bones, immune system, kidneys, and red blood cell count), non-Hodgkin 27 lymphoma (a cancer that starts in the lymphatic system), and the skin, such as malignant 28 melanomas. Id. at 48-50. In addition, "data from animal studies have shown that PCBs COMPLAINT-21 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094855 1 cause gastrointestinal tract tumors, hepatocarcinomas, leukemia, lymphomas, and 2 pituitary tumors." Id. at 50. 3 38. IARC: "PCBs are carcinogenic to humans." In 2016, the International 4 Agency for Research on Cancer published an assessment on the carcinogenicity of PCBs. 5 International Agency for Research on Cancer. IARC monographs on the evaluation of 6 carcinogenic risks to humans, volume 107. Polychlorinated and Polybrominated 7 Biphenyls (2016), available at http://monographs.iarc.fr/ENG/Monographs/vol 107/index.php (last 8 accessed November 6, 2017. The IARC report concluded, "There is sufficient evidence in 9 humans for the carcinogenicity of polychlorinated biphenyls (PCBs). PCBs cause 10 malignant melanoma. Positive associations have been observed for non-Hodgkin 11 lymphoma and cancer of the breast... PCBs are carcinogenic to humans.'" Id. at 439 12 (emphasis in original). 13 39. Wide range of cancers and lesions. Animal and human studies show 14 associations between PCB exposure and other cancers and lesions not specifically 15 enumerated above. These can include prostate cancer, testicular cancer, pancreatic 16 cancer, lung cancer, mouth cancer, uterine cancer, and non-neoplastic lesions of the liver, 17 thyroid gland, ovary, oviduct, uterus, lung, adrenal cortex, pancreas, kidney, heart, 18 thymus, spleen, clitoral gland, mesenteric artery, oral mucosa, bone marrow, and bladder. 19 See, e.g, Agency for Toxic Substances and Disease Registry (ATSDR). 2011. Addendum 20 to the toxicological profile for polychlorinated biphenyls (PCBs). Atlanta, GA: U.S. 21 ATSDR, Division of Toxicology and Environmental Medicine, at 10-14. 22 C. Monsanto knew PBCs were toxic, but promoted them without warnings. 23 1. "Monsanto was well aware of scientific literature published in the 1930s 24 that established that inhalation of PCBs in industrial settings resulted in toxic systemic 25 effects in humans." State of Washington's Complaint for Damages against Monsanto, p. 26 12, T| 49, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016). 27 2. A 1937 Monsanto memorandum advised that "Experimental work in 28 animals shows that prolonged exposure to Aroclor vapors evolved at high temperatures or COMPLAINT - 22 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094856 1 by repeated oral ingestion will lead to systemic toxic effects. Repeated bodily contact 2 with the liquid Aroclors may lead to an acne-form skin eruption." Id. at ]f 50; see Sky 3 Valley Complaint, Exhibit B (from City of Spokane v. Monsanto Co., Case 2:15-cv4 00201-SMJ, ECF No. 1-2 (E.D. Wash. July 31, 2015), MONS 061332). 5 3. A 1955 memorandum entitled "AROCLOR TOXICITY" by Monsanto 6 Medical Director Emmet Kelly summarized Monsanto's position on PCB toxicity: "We 7 know Aroclors are toxic but the actual limit has not been precisely defined. It does not 8 make too much difference, it seems to me, because our main worry is what will happen if 9 an individual develops any type of liver disease and gives a history of Aroclor exposure. I 10 am sure the juries would not pay a great deal of attention to MACs [maximum allowable 11 concentrates]." State of Washington's Complaint for Damages against Monsanto, p. 12, ^ 12 51, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016); see Sky Valley 13 Complaint, Exhibit C (from City ofSpokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, 14 ECF No. 1-3 (E.D. Wash. July 31, 2015), MONS 095196-97) at 2. 15 4. A 1955 "CONFIDENTIAL" memorandum by Monsanto's Medical 16 Department stated that workers should not be allowed to eat lunch in the Aroclor 17 department. Three reasons were provided, including the fact that "Aroclor vapors and 18 other process vapors could contaminate the lunches unless they were properly protected." 19 See Sky Valley Complaint, Exhibit D (from City ofSpokane v. Monsanto Co., Case 2:1520 cv-00201-SMJ, ECF No. 1-4 (E.D. Wash. July 31, 2015) at 2. 21 5. In addition, after noting that "the chance of contaminating hands and 22 subsequently contaminating the food is a definite possibility," the Medical Department 23 stated that 24 It has long been the opinion of the Medical Department that eating in 25 process departments is a potentially hazardous procedure that could lead to serious difficulties. While the Aroclors are not particularly hazardous from 26 our own experience, this is a difficult problem to define because early literature work claimed that chlorinated biphenyls were quite toxic 27 materials by ingestion or inhalation. In any case where a workman 28 claimed physical harm from any contaminated food, it would be extremely difficult on the basis of past literature reports to counter such claims. COMPLAINT - 23 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94857 1 Id. (emphasis added); see also State of Washington's Complaint for Damages against 2 Monsanto, pp. 12-13, ]f 52, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 3 2016). 4 6. A 1957 internal memorandum by Monsanto Medical Director Emmet Kelly 5 reported that, after it conducted its own tests, the U.S. Navy decided against using 6 Monsanto's Aroclors: "No matter how we discussed the situation, it was impossible to 7 change their thinking that [Aroclor-containing] Pydraul 150 is just too toxic for use in a 8 submarine." State of Washington's Complaint for Damages against Monsanto, p. 13, ]f 9 53, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016); see Sky Valley 10 Complaint, Exhibit E (from City ofSpokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, 11 ECF No. 1-5 [E.D. Wash. July 31, 2015]) at 2. 12 7. Therefore, by the 1950s, Monsanto knew that its PCBs a/k/a "Aroclors are 13 toxic but the actual limit has not been precisely defined." Supra at ]f V.C.3. Perhaps 14 reflecting on this, Monsanto's Medical Director Kelly made the reasonable observation 15 that "juries would not pay a great deal of attention" to exposure limits set by the industry. 16 Id. This is reasonable because so-called exposure limits have not been based on human 17 subject testing, which would be unethical. Instead, the industry extrapolated so-called 18 human exposure limits from laboratory tests of small mammals like rats, guinea pigs, 19 rabbits, and dogs, who have a limited ability to report or demonstrate complaints 20 following PCB exposure before dying--or being killed--and then dissected for the 21 pathological examination of lesions. See, e.g.. Exhibits L and R. Regardless, Monsanto 22 also knew that "early literature work claimed that chlorinated biphenyls were quite toxic 23 materials by ingestion or inhalation." Supra at ]f V.C.5. 24 8. In 1966 or 1967, Monsanto Medical Director Emmet Kelly reviewed a 25 scientific presentation by University of Stockholm researcher Soren Jensen, who stated 26 that PCBs "appear to be the most injurious chlorinated compounds of all tested." See Sky 27 Valley Complaint, Exhibit F (from City of Spokane v. Monsanto Co., Case 2:15-cv28 00201-SMJ, ECF No. 1-6 [E.D. Wash. July 31, 2015]), at JDGFOX00000038 (at COMPLAINT - 24 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094858 1 bottom). Researcher Jensen referred to a 1939 study associating PCBs with the deaths of 2 three young workers and concluding that "pregnant women and persons who have at any 3 time had any liver disease are particularly susceptible." Id. at JDGFOX00000039. 4 Monsanto Medical Director Kelly did not dispute the researcher's remarks, noting in the 5 1967 letter to the Research Division of National Cash Register, that "As far as the section 6 on toxicology is concerned, it is true that chloracne and liver trouble can result from large 7 doses." Id. at JDGF0X00000037; see also State of Washington's Complaint for 8 Damages against Monsanto, p. 13, ]f 54, Case No. 16-2-29591-6, King County Superior 9 Court (Dec. 8, 2016). Medical Director Kelly did not define the term "large doses." 10 9. By the latter half of the 1960s, Monsanto became aware that PCBs were 11 causing widespread contamination of the environment. See Sky Valley Complaint, 12 Exhibits G, H, and L (from City ofSpokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, 13 ECF No. 1-7, 1-8, 1-13 [E.D. Wash. July 31, 2015]); see also State of Washington's 14 Complaint for Damages against Monsanto, p. 14, Case No. 16-2-29591-6, King County 15 Superior Court (Dec. 8, 2016). 16 10. Despite the growing evidence of harm caused to living things by PCB 17 contamination, Monsanto remained steadfast in its production of PCBs. See State of 18 Washington's Complaint for Damages against Monsanto, p. 19, ]f 60, Case No. 16-2 19 29591-6, King County Superior Court (Dec. 8, 2016). 20 11. In March of 1969, Monsanto employee W.M. Richard wrote a 21 memorandum entitled "AROCLOR WILDLIFE ACCUSATIONS" to Monsanto 22 employee Elmer Wheeler. See Sky Valley Complaint, Exhibit I (from City ofSpokane v. 23 Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-9 [E.D. Wash. July 31, 2015]), 24 Bates No. MONS 096509-11. In the memorandum, Richard responded to a 1968 article 25 in Nature criticizing PCBs as being (in Richard's paraphrasing) "a pollutant... a toxic 26 substance--with no permissible allowable levels... [and] a toxic substance endangering 27 man himself, implying that the [extinction] of the peregrine falcon is a leading indicator 28 of things to come." Id. at MONS 096509. Richard also responded to a 1969 article in COMPLAINT - 25 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094859 1 Science regarding the Environmental Defense Fund's legal strategy, which Richard 2 summarized in part by writing that 3 These people at EDF are saying we must not put stress on any living thing through a change in air or water environment. Eagles, plant life, anything 4 which lives or breathes. This group is pushing hard on the extension of the 5 word harmful. They claim `enzyme inducer' activity is the real threat of DDT and PCB's and are using these arguments to prove that very small 6 amounts of chlorinated hydrocarbons are `harmful. ' 7 8 Id. (emphasis in original). Richards also explained that Monsanto could take steps to 9 reduce PCB releases from its own factories, but he cautioned that "It will be still more 10 difficult to control other end uses such as cutting oils, adhesives, plastics, and NCR 11 paper. In these applications, exposure to consumers is greater and the disposal problem 12 becomes complex." Id. at MONS 096510; see also State of Washington's Complaint for 13 Damages against Monsanto, pp. 14-15, Case No. 16-2-29591-6, King County Superior 14 Court (Dec. 8, 2016). 15 12. During this time period, "the coordination of the Division effort has been 16 principally the responsibility W.R. Richard and E.P. Wheeler with support from R.E. 17 Keller and Cumming Paton." See Sky Valley Complaint, Exhibit M (from City of 18 Spokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-13 [E.D. Wash. July 31, 19 2015]), Bates No. DSW 014623. 20 13. In September of 1969, Monsanto employee W.R. Richard wrote an 21 interoffice memorandum entitled "DEFENSE OF AROCLOR." See Sky Valley 22 Complaint, Exhibit J (from City ofSpokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, 23 ECF No. 1-10 [E.D. Wash. July 31, 2015]), Bates No. DSW 014256-63. The 24 memorandum set out Monsanto's general policy on defending litigation against the 25 public: "Make the Govt., States and Universities prove their case." The memorandum 26 acknowledged, however, that Monsanto 27 can't defend vs. everything. Some animals or fish or insects will be 28 harmed. Aroclor degradation rate will be slow. Tough to defend against. Higher chlorination compounds will be worse [than] lower chlorine COMPLAINT - 26 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094860 1 compounds. Therefore we will have to restrict uses and clean-up as much as we can, starting immediately. 2 3 Id. at DSW 014256 (emphasis added). Based on this, Monsanto knew by the late 1960s 4 that "some animals or fish or insects will be harmed" in the general environment, where 5 PCB contamination is low and diffuse--as opposed to PCB contamination in a more 6 enclosed space such as a classroom, as shown below. The 1969 memorandum also 7 outlined Monsanto's plans for challenging scientific studies of the toxicity of PCBs: 8 Monsanto Pirove Bloharmiass - Limited work at Ind, 5lo--est - 9 "Safe" toxic (man flats Seek evidence of Biodcgi's level for < mammals via Chickens dation 10 Question evidence agalns* us. 11 Question shnirup toxicology . especially ether* toxic 12 r chemicals. If Aroclor hadj others 13 must be worse. 14 Probable Outcome 15 We can prove some things are OK at low concentration* Give Monsanto some defense. 16 17 Id. at DSW 014256. The memorandum also outlined Monsanto's own plans for chronic 18 toxicity studies using animals. Id. at DSW 014262-63; see also State of Washington's 19 Complaint for Damages against Monsanto, p. 15, ]f 60, Case No. 16-2-29591-6, King 20 County Superior Court (Dec. 8, 2016). 21 14. In January of 1970, Elmer Wheeler of Monsanto's Medical Department 22 circulated laboratory results of its animal studies. The memorandum was entitled "Status 23 of Aroclor Toxicological Studies." See Sky Valley Complaint, Exhibit K (from City of 24 Spokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-11 [E.D. Wash. July 31, 25 2015]), Bates No. MONS 098480. Wheeler stated, "Our interpretation is that the PCBs 26 are exhibiting a greater degree of toxicity in this chronic study than we had 27 anticipated. Secondly, although there are variations depending on species of animals, the 28 PCBs are about the same as DDT in mammals." Id. (emphasis added). COMPLAINT - 27 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094861 1 15. Monsanto expressed a desire to keep profiting from PCBs despite the 2 research showing PCB toxicity. See Sky Valley Complaint, Exhibit A. In the "PCB 3 Presentation to Corporate Development Committee," Monsanto stated that "Do[ing] 4 nothing was considered unacceptable from a legal, moral, customer, public relations & 5 company policy viewpoint." Id. at MONS 058737. But the alternative of stopping PCB 6 production and promotion, and instead going out of the Aroclor business, "was 7 considered unacceptable from a Divisional viewpoint... there is too much 8 customer/market need and selfishly too much Monsanto profit to go out." Id. 9 16. Monsanto formed an internal Aroclor Ad Hoc Committee whose objectives, 10 "agreed to by the Committee," were to "submit recommendations for action which will: 11 1. Permit continued sales and profits of Aroclors and Terphenyls. 2. Permit continued 12 development of uses and sales. 3. Protect image of Organic Division and of the 13 Corporation." State of Washington's Complaint for Damages against Monsanto, pp. 15 14 16, T| 62, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016); see Sky 15 Valley Complaint, Exhibit L (from City of Spokane v. Monsanto Co., Case 2:15-cv16 00201-SMJ, ECF No. 1-12 [E.D. Wash. July 31, 2015]), Bates No. MONS 030483-86 17 ("CONFIDENTIAL MINUTES OF AROCLOR `AD HOC' COMMITTEE"). Monsanto 18 set these business objectives despite knowing that PCBs had been found in the 19 environment, wildlife, and the food chain, as PCBs "may be a global contaminant." Id. In 20 these confidential minutes, Monsanto recognized the problem of PCB "environmental 21 contamination by customers." Id. at MONS 030485 ("Our in-plant problems are very 22 small vs. problems of dealing with environmental contamination by customers."). 23 17. In October of 1969, Monsanto's Aroclor "Ad Hoc" Committee issued its 24 confidential report. See Sky Valley Complaint, Exhibit M (from City of Spokane v. 25 Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-13 [E.D. Wash. July 31, 2015]), 26 Bates No. DSW 014612-24. The committee reported environmental PCB contamination 27 causing the killing of marine species and the possible extinction of several species of 28 birds. Id. at DSW 014615. In addition, "the committee believes that there is no possible COMPLAINT - 28 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094862 1 practical course of action that can so effectively police the uses of these products as to 2 prevent completely some environmental contamination." Id. (underscore and 3 strikethrough in original). The report outlined a plan to protect Monsanto's corporate 4 interests: "There are, however a number of possible actions which must be undertaken in 5 order to prolong the manufacture, sale, and use of these particular Aroclors as well as to 6 protect the continued use of other members of the Aroclor series." Id. (strikethrough and 7 underscore in original). 8 18. The committee offered recommendations, including notifying PCB 9 "customers of environmental contamination problems." Id. at DSW 014616. The basis for 10 the recommendation, in part, concerned reports of PCB environmental contamination and 11 Monsanto's knowledge of the mechanisms of PCB releases: 12 It been recognized front the beginning that other 13 functional fluid ueeE could lead to losses Of the 14 Aroclore to liquid waste streams from the customers' plants, Losses could occur from spills, unusual 15 leakage of large volumes and dally losses of smaller 16 v olumeti. 17 It has also been recognised that there could be vapor losses but It has been felt that these wore 18 perhaps of less significance than the vapor losses 19 in plasticizer applications. The concern for vapor losses rises from the published proposed theory that 20 even minute quantities of vapors are eventually 21 transferred to the water environment and accumulated! therein. . 22 23 Another possible source of air environmental con tamination is the eventual destruction of materials 24 which have Aroclors In them. Of particular signifi cance might be the burning or partial incineration 25 of waste or used products containing the Aroclors* 26 27 Id. at DSW 014618. 28 COMPLAINT - 29 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206} 501-4446 HARTOLDMON0094863 1 19. Despite the environmental damage caused by its PCB products, Monsanto 2 was clearly concerned about losing the production of PCBs and the associated "sales of 3 this very profitable series of compounds": 4 Budgetary Considerations 5 The committee recognizes the restrictions placed on 6 those currently involved by mandates to operate within normal or proposed reduced budgets. it 7 should be clear, however, that the product groupe, the Division and the Corporation are faced with 8 on extra ordinary situation. Theirs can not be too 9 much emphasis given to the threat of curtailment or outright discontinuance of the manufacture and 10 sales of thlB very profitable series of compounds. If the products, the Division and the Corporation 11 are to be adequately protected, adequate funding - is necessary, -------- -------------- 12 13 Id at DSW 014624. 14 20. Therefore, by 1970, the escape of PCBs into surrounding environments and 15 the resulting contamination was not only reasonably foreseeable, but the problem was 16 known to Monsanto. In addition, the escape of Monsanto's PCBs by PCB customers and 17 users into surrounding environments was not only reasonably foreseeable, but was known 18 to Monsanto. See also State of Washington's Complaint for Damages against Monsanto, 19 pp. 23-24, Tf 99, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016). 20 21. By 1970, Monsanto also knew that its PCBs exhibited a greater degree of 21 toxicity than Monsanto previously anticipated. Supra at Tf V.C. 14. 22 22. Despite this knowledge, Monsanto chose not to warn its customers and the 23 public regarding the human health dangers of Monsanto's PCBs. Any statements made 24 by Monsanto in that regard have been insufficient to convey the actual dangers posed by 25 PCBs. Instead, Monsanto's efforts were and continue to be focused on protecting its own 26 profits. 27 23. An interoffice memorandum circulated in February of 1970 that provided 28 talking points for discussions by Monsanto representatives with PCB customers. COMPLAINT - 30 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094864 1 Monsanto informed its PCB representatives that Monsanto "can't afford to lose one 2 dollar of business." To that end, Monsanto stated, "We want to avoid any situation where 3 a customer wants to return fluid... We would prefer that the customer use up his current 4 inventory and purchase [new products] when available. He will then top off with the new 5 fluid and eventually all Aroclor 1254 and Aroclor 1260 will be out of his system. We 6 don't want to take fluid back." See Sky Valley Complaint, Exhibit N (from City of 7 Spokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-14 [E.D. Wash. July 31, 8 2015]), at 2 (emphasis in original); see also State of Washington's Complaint for 9 Damages against Monsanto, p. 17, ^ 67, Case No. 16-2-29591-6, King County Superior 10 Court (Dec. 8, 2016). 11 24. In roughly this same time period, Monsanto advised public officials that 12 Monsanto's PCBs "are not particularly toxic by oral ingestion or skin absorption" and 13 "infrequent exposure to PCB vapor should not cause ill effects." See Sky Valley 14 Complaint, Exhibits O and P (from City of Spokane v. Monsanto Co., Case 2:15-cv15 00201-SMJ, ECF No. 1-15, 1-16 [E.D. Wash. July 31, 2015]); see also State of 16 Washington's Complaint for Damages against Monsanto, p. 20, ^ 76, Case No. 16-2 17 29591-6, King County Superior Court (Dec. 8, 2016) ("While the scientific community 18 and Monsanto knew that PCBs were toxic and becoming a global contaminant, Monsanto 19 repeatedly mispresented these facts, telling governmental entities the exact opposite-- 20 that the compounds were not toxic and that the company would not expect to find PCBs 21 in the environment in a widespread manner."). 22 25. Monsanto also offered the message to a member of Congress that Monsanto 23 "cannot conceive how the PCBs can be getting into the environment in a widespread 24 fashion." See Sky Valley Complaint, Exhibits Q (from City ofSpokane v. Monsanto Co., 25 Case 2:15-cv-00201-SMJ, ECF No. 1-17 [E.D. Wash. July 31, 2015]); see also State of 26 Washington's Complaint for Damages against Monsanto, p. 21, ^ 79, Case No. 16-2 27 29591-6, King County Superior Court (Dec. 8, 2016). 28 26. Monsanto also represented to another governmental official that "Based on COMPLAINT-31 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094865 1 available data, manufacturing and use experience, we do not believe the polychlorinated 2 biphenyls to be seriously toxic." See Sky Valley Complaint, Exhibit R (from City of 3 Spokane v. Monsanto Co., Case 2:15-cv-00201-SMJ, ECF No. 1-18 [E.D. Wash. July 31, 4 2015]) at 3; see also State of Washington's Complaint for Damages against Monsanto, p. 5 21, ]f 80, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016). 6 27. Clearly, Monsanto's knowledge of PCB toxicity deepened between the 7 1930s and the 1970s. Despite its knowledge of PCB toxicity, Monsanto intentionally 8 produced and promoted PCBs "for use in a wide range of industrial and household goods, 9 including electrical equipment, paint, sealants, food cookers, furnaces, floor wax, 10 insecticides, lubricants, moisture-proof coatings, papers, asphalt, leather adhesive, and 11 stucco." City ofSeattle v. Monsanto Co., 237F. Supp. 3d 1096, 1100 (W.D. Wash. 2017). 12 28. "Though Monsanto was aware of PCBs' toxicity and propensity to leach, it 13 denied or misrepresented those facts to government investigators. Monsanto continued to 14 manufacture, promote, and profit from its PCBs." Id. (internal citations omitted) (holding 15 that Seattle's claims against Monsanto for public nuisance and equitable indemnity are 16 not preempted by Washington's Product Liability Act (WPLA); Seattle's common law 17 product liability claims are not preempted by WPLA to the extent they arose on or before 18 1981; Seattle's claims are not time-barred; Seattle stated a claim for public nuisance, 19 the court rejecting Monsanto's argument that any intervening acts of third parties 20 cut off proximate causation, because such acts were foreseeable; Seattle lacked 21 standing to bring product liability claims; Seattle stated a claim for negligence; and 22 Seattle failed to allege facts supporting its claim for equitable indemnity). 23 29. Monsanto intentionally failed to warn customers and the public regarding 24 the toxicity and hazards of its PCB products. See, e.g., Nevada Power Co. v. Monsanto 25 Co., 955 F.2d 1304, 1306-07 (9th Cir. 1992) ("Nevada Power discovered internal 26 documents of the Manufacturers which Nevada Power contends show that the 27 Manufacturer's understanding of the dangers of PCBs in the 1960s and early 1970s was 28 much more advanced than the general state of knowledge in the scientific community") COMPLAINT - 32 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094866 1 (holding, in part, that it was a fact question as to whether Nevada Power's fraud and 2 failure to warn claims were barred by the Nevada statute of limitations). 3 30. Monsanto's PCBs were not reasonably safe in construction because they 4 were unsafe--"extremely toxic"--to an extent beyond that which would be contemplated 5 by an ordinary consumer. The extreme toxicity of Monsanto's PCBs was a proximate 6 cause of Plaintiffs' damages. 7 31. Monsanto's PCBs were not reasonably safe as designed under a balancing 8 test or under a consumer expectations test, which was a proximate cause of Plaintiffs' 9 damages. 10 32. Monsanto's PCBs were an unavoidably unsafe product, which was a 11 proximate cause of Plaintiffs' damages. 12 33. Monsanto's PCBs were not reasonably safe due to inadequate warnings 13 when manufactured or after manufacture. 14 34. Any Monsanto warnings to the non-Monsanto parties in this case at the 15 time of manufacture regarding the extreme toxicity of PCBs, were inadequate and a 16 proximate cause of Plaintiffs' damages. 17 35. Any Monsanto warnings to the non-Monsanto parties in this case after 18 manufacture--and up to the present day--regarding the extreme toxicity of Monsanto's 19 PCBs, have been inadequate, which was a proximate cause of Plaintiffs' damages. 20 36. Due to their extreme toxicity, Monsanto's PCBs never had a "useful safe 21 life." 22 37. Monsanto had actual knowledge of the defect and the danger of its PCBs, 23 but showed complete indifference or conscious disregard for the safety of others by 24 producing and promoting PCBs anyway. 25 D. PCB-caulking and PCB-light ballasts cause PCB-contamination. 26 1. Monsanto manufactured PCBs that were incorporated by Monsanto's 27 customers as plasticizers in caulking, paints, and sealants. In these forms, Monsanto's 28 PCBs were used in interior and exterior windows, doors, and masonry joints. COMPLAINT - 33 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94867 1 2. Even today, caulking with high PCB levels are usually still flexible and 2 often largely intact. 3 3. PCB-caulking emits PCBs, which migrate into the air and nearby materials, 4 including adjoining wood, cement, and brick; air and dust inside schools; soil near school 5 buildings, and other materials and furnishing. 6 4. The following information comes from a publication of the United States 7 Environmental Protection Agency (2014, pp. 7-9). Thomas, K. (2014). PCBs in school 8 buildings: sensible steps to healthier school environments. Washington, DC: U.S. EPA 9 Office of Research and Development. 10 // 11 // 12 // 13 // 14 // 15 // 16 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 27 // 28 // COMPLAINT - 34 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094868 &EPA United States Environmental Protection Agency PCB Sources - Caulk and Other Sealants > U.S. Production of Aroclors as a plasticizer ingredient 1958 - 4 million lbs. 1969 - 19 million lbs. 1971 -0 lbs. > PCBs were sometimes added to caulk during construction > Used for Exterior and interior windows and doors Exterior and interior joints Window glazing Other locations/seams (plumbing, casework, etc.) > Caulk with PCBs > 50 parts per million (ppm) is not an allowed use Office of Research and Development National Exposure Research Laboratory COMPLAINT - 35 7 HARTOLDMON0094869 &EPA United States Environmental Protection Agency PCB Sources - Caulk and Other Sealants > In several northeastern schools: 18% of 427 interior caulk/sealant samples >50 ppm PCBs 6% of interior samples >100,000 ppm (10% by weight) 63% of 73 exterior caulk/sealant samples >50 ppm PCBs 34% of exterior samples >100,000 ppm Highest level was 440,000 ppm PCBs (44% by weight) > We have found that caulk with high PCB levels is usually still flexible and often largely intact > Visual identification of caulk with PCBs is not reliable Office of Research and Development National Exposure Research Laboratory COMPLAINT - 36 8 HARTOLDMON0094870 &EPA United States Environmental Protection Agency PCB Sources - Caulk and Other Sealants > PCBs in caulk/sealants move over time into: Adjoining wood, cement, brick Air and dust inside schools Soil near school buildings Other materials/furnishings > Emissions of PCBs into the air can be quite substantial Emissions can create indoor air levels above recommended concentrations As the temperature increases, emissions increase Ventilation is an important factor > Although installed 40 - 60 years ago, high PCB levels remain and emissions will continue far into the future > Other PCB sources, like coatings and paints, will act much like caulk in releasing PCBs into the environment Office of Research and Development National Exposure Research Laboratory COMPLAINT - 37 HARTOLDMON0094871 1 5. As stated by the EPA {supra, p. 9), PCB-caulking and other sealants in 2 school buildings can create indoor air levels above recommended concentrations. In 3 addition, "high PCB levels remain and emissions will continue far into the future." Id. 4 6. Monsanto's PCBs were also produced and promoted as components of 5 electrical equipment such as transformers, motor start capacitors, and lighting ballasts. 6 7. "Commercial PCB mixtures vary from colorless to dark brown oils, and 7 from viscous liquids to sticky resinous semisolids. Although PCBs evaporate slowly at 8 room temperature, the volatility of PCBs increases dramatically with even a small rise in 9 temperature. Equipment that contains PCBs can overheat and vaporize significant 10 quantities of these compounds, creating an inhalation hazard that can be magnified by 11 poor ventilation" (ATSDR, 2014, p. 25). 12 8. As stated by the State of Washington, "PCBs easily migrate or volatilize 13 out of their original source material or enclosure and contaminate environmental media 14 such as air, soil, stormwater, and sediment. For example, PCB compounds volatilize out 15 of building materials (such as caulk) and into the surrounding environment. PCBs 16 can also escape from totally enclosed materials (such as light ballasts) and similarly 17 contaminate and damage the environment." State of Washington's Complaint for 18 Damages against Monsanto, p. 9, ]f 37, Case No. 16-2-29591-6, King County Superior 19 Court (Dec. 8, 2016) (emphasis added). 20 9. As stated by the State of Washington, "PCBs present serious risks to the 21 health of humans... Humans may be exposed to PCBs through ingestion, inhalation, and 22 dermal contact. Individuals may inhale PCBs that are emitted into the air. They may also 23 ingest PCBs that are emitted into air and settle onto surfaces that come into contact with 24 food or drinks. And they may absorb PCBs from physical contact with PCBs or PCB25 containing materials." State of Washington's Complaint for Damages against Monsanto, 26 p. 9, T| 38-39, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 2016). 27 10. PCB light ballasts release PCBs. The following information comes from 28 the same EPA publication regarding PCBs in school buildings (EPA, 2014, pp. 10-11): COMPLAINT - 38 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094872 &EPA PCB Sources - Fluorescent Light Ballasts United States Environmental Protection Agency > PCBs are continuously released into the air from intact, functioning light ballasts When lights are off, emissions are low When lights are on, the ballast heats up, and emissions increase several-fold PCB ballasts can fail, releasing PCB vapors into the air and liquid PCBs onto surfaces Air levels of PCBs can become quite large Surfaces can be contaminated Significant impact/costs to remediate Residues from previously failed ballasts can remain in light fixtures even if the ballast is replaced The impact on PCBs in the school environment has not been determined Office of Research and Development National Exposure Research Laboratory COMPLAINT - 40 11 HARTOLDMON0094874 1 As stated (p. 10), PCB-containing light ballasts were manufactured until the late 1970s. 2 ("Light ballasts" are components of light fixtures in buildings.) The "failure and release 3 of PCBs will continue and may increase" in school buildings containing PCB-light 4 ballasts. Id. This is because "PCBs are continuously released into the air from intact, 5 functioning light ballasts. When lights are off, emissions are low. When lights are on, the 6 ballast heats up, and emissions increase several-fold." Id. at 11. 7 11. Failed PCB ballasts cause high levels of PCB contamination. In 8 addition, "PCB ballasts can fail, releasing PCB vapors into the air and liquid PCBs onto 9 surfaces." Id. When that occurs, "Air levels of PCBs can become quite large. Surfaces 10 can be contaminated." Id. 11 12. Toxic PCDDs and PCDFs. Also of concern are the extremely toxic 12 chemical byproducts of failing PCB-light ballasts, including dioxins and furans. Failing 13 PCB-ballasts that pyrolyze their PCB contents generate and emit additional toxic 14 chemicals called polychlorinated dibenzodioxins (PCDDs) and polychlorinated 15 dibenzofurans (PCDFs). 50 Fed. Reg. 29,171 (July 17, 1985); Ahrens v. Pacific Gas & 16 Electric Co., 197 Cal.App.3d 1134, 1139, fn2, 243 Cal.Rptr. 420 (1988). 17 13. Over time, school building materials become secondary sources of PCB 18 contamination after absorbing PCBs emitting from the primary contamination sources, as 19 illustrated in this diagram and in the following EPA slides (2014, pp. 12, 2): 20 -------------------------------- -----21 22 -- 23 24 25 26 27 f 28 II ,V, entilato4r*r PSroimuraJry PCB SSoeucorcnedsarayndPCSBinks ^. D.. ust,/.Sc o" COMPLAINT - 41 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094875 SEPA PCB Sources - Secondary Sources/Sinks United States Environmental Protection Agency > PCBs released from primary sources are absorbed into other materials in the school environment over time > Following removal of primary sources, PCBs in secondary sources may be released into the school environment and result in continuing exposures > In some cases, secondary sources may need to be considered for additional remedial actions following removal/remediation of primary sources Office of Research and Development National Exposure Research Laboratory COMPLAINT - 42 12 HARTOLDMON0094876 SEPA United States Environmental Protection Agency PCBs - A Complex Problem In Bu ildings Example Scenario Over 100 PCB chemicals Multiple primary sources possible Transport from sources to air, surfaces, dust, soil Secondary sources created Exposures through multiple pathways Ventilation and temperature effects COMPLAINT - 43 Sources and Sinks Dust/Soil HARTOLDMON0094877 1 14. For these and other reasons, school buildings should not contain 2 Monsanto's PCBs. 3 15. When a reasonably careful manufacturer learns that its product is toxic and 4 poses public health hazards, the manufacturer stops manufacturing it, recalls its product, 5 and warns the public about the product. 6 16. But Monsanto never recalled PCBs, despite knowing their toxicity and 7 danger to public health. Instead, Monsanto continued to promote PCBs, particularly in 8 electrical applications, until PCBs were banned. 9 17. Monsanto did not warn users of PCBs, such as the State, the School 10 District, Union High, the Health District, or the Plaintiffs, that Monsanto's PCBs are 11 extremely toxic and pose a public health hazard. 12 18. Monsanto provided the public with no warnings, notices, bulletins, or 13 information that PCBs are extremely toxic and pose a public health hazard. Any 14 information provided by Monsanto during or after manufacture has been inadequate. 15 19. Monsanto's PCBs have contaminated school buildings in Washington, 16 including the school buildings in this case, causing harm to occupants of the buildings, 17 including the Plaintiffs. As shown above, this was not only reasonably foreseeable, it was 18 actually known to Monsanto that such harm would come to third parties such as the 19 Plaintiffs. Accordingly, the Plaintiffs seek damages against Monsanto. 20 20. It was also reasonably foreseeable, based on Monsanto's history of 21 experience with PCB customers and users, that some inspectors, owners, operators, 22 providers, or maintainers of buildings would engage in negligent conduct that causes 23 harm to third parties by exposing them to Monsanto's PCBs. 24 21. Unfortunately, Monsanto's PCBs continue to contaminate school buildings 25 built before 1980, including the school buildings in this case. As shown above, this is 26 because Monsanto intentionally produced and promoted PCBs in a variety of 27 construction applications. As a result of Monsanto's conduct, it was reasonably 28 foreseeable that Monsanto's PCBs would be incorporated in buildings, including the COMPLAINT - 44 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94878 1 school buildings in this case, and would contaminate classrooms used by people, 2 including the Plaintiffs, causing them damages. Monsanto's PCB contamination of Sky 3 Valley Education Center was a legal cause of injury to the Plaintiffs. 4 22. As shown in the following EPA slide (2014, p. 16), "Occupants in schools 5 with interior PCB sources will be exposed to PCBs in the indoor air, dust, and on surfaces 6 through their normal activities." For the Plaintiffs and others in such school buildings, 7 "Exposures will occur through inhalation, ingestion, and dermal contact." 8 9 <>EPA Exposures 1U1 nniittepdH States 10 Environmental Protection Atjencv 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Figure from 2009 NIEHS L. Btrnbatim presentation 27 I Office of Research and Development | National Exposure Research Laboratory 28 The full EPA slide appears on the following page: COMPLAINT - 45 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94879 SEPA Exposu res to PCBs in the School Environment IUInniittoerdl QSttaatfeasc Environmental Protection Agency > Occupants in schools with interior PCB sources will be exposed to PCBs in the indoor air, dust, and on surfaces through their normal activities [nhalatikm > In school buildings with exterior PCB sources, exposures may occur through contact with contaminated soil > Exposures will occur through inhalation, ingestion, and dermal contact Investlom Dcrmsl Exposure Figure from 2009 NIEHS L. Birnbaum presentation Office of Research and Development National Exposure Research Laboratory COMPLAINT - 46 HARTOLDMON0094880 1 23. As shown in the history below, the Sky Valley Education Center buildings 2 were contaminated with Monsanto's PCBs. This fact was publicly revealed in 2016 3 following environmental testing done in response to severely sickened and diseased 4 teachers and over one hundred Sky Valley individuals reporting to the Snohomish Health 5 District illnesses related to the school buildings. The Defendants' wrongdoing led to the 6 PCB contamination and caused PCB exposure in the Plaintiffs, causing them damages. 7 24. "Monsanto's PCB contamination constitutes injury to the State's public 8 natural resources and to other property and waters of the State [of Washington], for 9 which the State seeks damages, including on behalf of itself and on behalf of its residents 10 in its parens patriae capacity." State of Washington's Complaint for Damages against 11 Monsanto, p. 5, ^ 16, Case No. 16-2-29591-6, King County Superior Court (Dec. 8, 12 2016). 13 E. The school buildings became toxic, injuring children and adults. 14 L History of the school buildings. Starting in the 1950s, the school campus 15 located in Momoe at 351 Short Columbia Street, near Hill, Kelsey, and Sams Streets, was 16 known as Momoe Union High School or Momoe High School. 17 2. Today, the tax accessor records identify the property as belonging to Union 18 High School District 402: 19 20 CTTION HIGH SCHOOL CIST 4132 21 HILL ^ KELSEY ST 22 NDNF.OS., Wh 92212 23 FEC IJl 7WP JJ7 R-F. G 2/3 -KF3/4 f|Wl f4 NE1 / A LE'r.S W 3 DPT Ffl-SL T PEP. kF 24 LW 011 l-rJ 2 y 1 25 V 22*5 F ?4I 26 27 3. The following page is a true and correct copy of a page of this government 28 record, which is also attached as Exhibit S: COMPLAINT - 47 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094881 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 48 aa a .8 ttaj ,U3, ocS"0 t' 13 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094882 1 4. Other pages in the tax accessor's file for this property reference Union High 2 School District 402 as well as "School District 103," including this excerpt dated April 3 13, 1990: 4 ilLZ 706- i-OZ3-0001 Ch/13/90 L900699 5 6 UNION HIGH SCHOOL DI ST ^02 7 8 9 L/C 053C SCHOOL DISTRICT 103 10 SCC 01 TWP 2 7 KGE 06 51/2 seiA SfclM Nil A cess u 30F T FOR ST PER AT 1001110231 V I?99 11 P 9^1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A "SITE SKETCH" of the campus shows school buildings built in 1950, 1963, 1965, and 27 1968. The site sketch is shown on the following page. The configuration of the school 28 buildings at the campus appears the same today: COMPLAINT - 49 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094883 1 2 k td uy 3 V Ptr S* nl/-' U. j~~ 4 5 gO 6 I g:-, 1 7 i3 8 3> ni', 9 10 CtJ 9 11 L 12 13 * &*W- fStefr. 14 II s <M 15 I! I 16 : 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 50 ~fr'K2 t' FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094884 1 5. This school campus is located in Monroe, Washington, within the 2 inspection jurisdiction of the Snohomish Health District. 3 6. According to its own statements, "[t]he Snohomish Health District inspects 4 all schools (public and private) in order to verify compliance with minimal environmental 5 standards for education facilities, as per WAC 246-366-040." Health District "inspectors 6 may check lighting, ventilation, and safety equipment." The enforcement requirements 7 are stated in Health District letters and Washington law. RCW 43.20.050(5). 8 7. The facts of the following inspections--and the lack of annual inspections 9 in recent decades--is based on Snohomish Health District's responses to Public Records 10 Act requests. 11 8. From the late 1950s through 1990, the Snohomish Health District 12 conducted inspections of these school buildings on a roughly annual basis. During this 13 time, inspectors regularly cited Monroe School District for violating requirements for 14 minimum lighting intensities for these school buildings. Despite these citations, 15 apparently no penalties or enforcement actions were taken. 16 9. For example, a Snohomish Health District school inspection report, dated 17 1973, recorded code violations for ventilation, lighting, and safety for these school 18 buildings. The inspector wrote, "Lighting is substandard in a number of places in this 19 building as has been reported every year since the school was built." Oct. 15, 1973 20 School Inspection report by Snohomish Health District, to Momoe #103, Momoe High 21 School (Bates stamped 000054) (emphasis in original). 22 10. Lighting continued to be substandard in subsequent decades. This is 23 significant because, years later, the same substandard lighting fixtures in these school 24 buildings exposed the Plaintiffs to PCBs and other toxic chemicals. 25 11. Around 1977, the usage of the school buildings changed from the High 26 School program to the Momoe Junior High. 27 12. Although Momoe Public Schools corrected some safety standard violations 28 over the years, other safety standard violations in the school buildings persisted. For COMPLAINT-51 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94885 1 example, a letter dated 1980 from the Health District to Momoe School District reported 2 complaints related to ventilation, sanitation and environmental conditions, and noted that, 3 "with little exception, these problems have been noted on our inspection reports for the 4 past several years. Because of the possible health and safety impact upon your students 5 and staff, we feel it is important that substantial changes be made." June 13, 1980 6 Snohomish Health District letter to Momoe School District (Bates stamped 000080-81). 7 13. The 1981 Health District inspection report for these school buildings cited 8 deficiencies in areas related to ventilation and lighting, stating "lighting is poor in 9 classrooms and restrooms in the pods [classrooms]." 1981 Health District inspection 10 report to Momoe School District (Bates stamped 000105-08). 11 14. The 1982, 1984, and 1985 inspection reports noted similar deficiencies. For 12 example, the 1984 report stated, "As we have pointed out for several years now, pod 13 classroom lighting is poor." 1984 Health District inspection report to Momoe School 14 District (Bates stamped 000118-24). 15 15. Around 1987, the usage of the school buildings changed from being the 16 Momoe Junior High to the Momoe Middle School. 17 16. In the 1990s, the Health District only conducted safety inspections in 1990 18 and 1996. (In 1999, there was a complaint investigation report--not an inspection 19 report--regarding poor kitchen ventilation.) There were no Health District inspections of 20 the school buildings in 1991, 1992, 1993, 1994, or 1995. In the 1996 inspection report, 21 the Health District again cited Momoe School District for ventilation and lighting code 22 violations in these school buildings. 23 17. The Health District did not conduct a regular inspection of these school 24 buildings in 1997, 1998, 1999, 2000, 2001, 2002, 2003, or 2004. 25 18. By the year 2000, Momoe Public Schools had actual knowledge that its 26 school buildings built before 1980 may contain PCB-light ballasts. The Momoe School 27 District--through a policy apparently promulgated by a State agency--established a 28 "LIGHTING AND BALLAST DISPOSAL PROCEDURES" policy. It required COMPLAINT - 52 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094886 1 inspection of all light ballasts during the summer of 2000. See ]f 3. PCB-light ballasts 2 must then be marked for identification. Id. Then "All ballasts that are assumed to 3 contain PCBs must be disposed of as hazardous waste." Id. at If 4 (emphasis added). 4 19. The State, the Health District, Momoe School District, and Union High all 5 should have ensured the removal and remediation of PCBs and other toxic chemicals 6 from the school buildings. The public entity Defendants were negligent in not doing so, 7 which was a proximate cause of Plaintiffs' damages. 8 20. The Health District should have enforced the minimum environmental 9 safety standards relating to lighting intensities. If the Health District had done so since 10 1980, the new light fixtures would have been PCB-free. The Health District's lack of 11 action, particularly in light of its actual knowledge of decades of safety code violations, 12 was negligent and a proximate cause of Plaintiffs' damages. 13 21. The 2003 "Health and Safety Guide" by the State Department of Health and 14 Superintendent of Public Instruction specifically recognized the existence of PCBs in 15 school buildings: 16 I. LIGHTING 17 Required WAC or Other Recommended Cods Reference Plans Review t n-jn inspeuaa njufesutauiy* Lajaasiur rut; uuuaiLtsrpy usnajn iu wadi niJLeryuves X 18 1 cy and gcgjjss. Identify PCS Dalasis for Mute repteDanent. Almost aJOiorescentlglTt times nractebatoJuiyl 979 nxitansn^amouTtscfhfc^'Xnceraated PCBs |--| |--| their tdtass. that car t^t^aritariiralEdoi. Seewet6ite:wvmt^gcvJ^ 19 hHA t Ai j Clean al RGB leakage, inditing any oFfe dm, and replace ail leaking ballasts. 20 c ii Cisco of leaking ballasts and deariigrida^haocordvdhEPA and DOE isguaiicns. Wearing ^wes and goggles is nnporla^forpeEorialprotedBnasPCBs 2L AL ^ateated1hirxcnihes3<iiCal1-8QCM344372afsWEt6itB 21 \ ' ' | wiiw.epagcwrl 0eaifrt>chl*n X 40 CFR Part 761 r t > Underte FedsraiTcwc Steterces CentralAct h Isakipg 22 1 bafastrarMwgrcSfemuSbepadegedhaatiHnerapprcvedfar ty PCBcfeccsai marked 'caws PCBs" and rare an aoamparMrg manfea. it most be r--I |--| ^tedtanaLflioBB(IPCBten^iDiferiaaicereedPCB(lsposdfai(*y. Seeweb: 23 i ; _J vmv.spagmllCefflaYteDi-BTi X TSCA 40 CFR Part 761 24 Office of Superintendent of Public Instruction and Department of Health. OSPI-DOH 25 School Health and Safety Guide, January 2003, p. 26. 26 22. The State's failure to require the removal of PCBs from the school 27 buildings was negligent and a proximate cause of Plaintiffs' damages. 28 23. The negligence of the public entity Defendants allowed PCBs to remain in COMPLAINT - 53 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094887 1 the school buildings, which was a proximate cause of PCBs remaining in the old Momoe 2 Middle School, later known as Sky Valley Education Center, which contaminated the 3 indoor air and subsequently poisoned children and adults, including the Plaintiffs. 4 24. It may be that the State, its departments, its employees, or other public 5 entity Defendants, were not fully aware of the dangers of PCBs due to a lack of warnings 6 from Monsanto. Monsanto's statements regarding PCBs have historically and 7 consistently minimized the risk of PCBs to human health. Such statements may have 8 deceived, misled, or lulled the State or other public entity Defendants into inaction 9 regarding the removal of PCBs from school buildings. 10 25. The 2003 State policy also required minimum light intensities in school 11 buildings. Here is excerpt from that policy requiring minimum lighting: 12 I. LIGHTING 13 Required WAC or Other flee cram ended Code Reference Plans Review 14 j WfcTiTurti^iriiersIyof 10tootcardes,flwigsrefal EEk,orreliraiiQtiiPQ^0!be 1cftMtedu norin3tiu^r$afB$r^ Imdrooms, assembly areas (j tote! and steruopB.Kicl(>s.andsiaiis. 15 no X 246-366-120(1) X 16 t nrp ffiminligMitenBiyof2Ofi30tcai(lffi,6ari^neiB|rtesk,QrrHlijrEiyTtng^'allB proMdaifhgyriiBsiifiBiicluitOrnBf) and aafay ^aoes, andsixwsrand tatter 17 SU on 18 T^i Mnimn ltd intereiy of 30 foot cardes. Irani gererai. BekcrnalnraiijjTtirgshalte 1 piDifl^inl*liaiaiBashclu(iTgSooctstofageafUpeFi^fcninorTK. 19 SU Li 20 T flfli Mhimirri light interesy of 30 fcotcarytes, Irani gererai ask or natural ighSngshal be 1 - praMtted in irelnjcliorial a/^ hdu^ sindy halfe. iec^ rasma araJItnaies. In 21 5 U rooms wth ampules, orifngarJovisLial presenters, fghting may tereduced on 22 y Mrirtm Sghtintenssy of 50 foot cmcles, from genera task ornatual Sorting shall be 1 provided in spedal hstnjcfaia! areasinducing sating rooms, iaboiatories'Jndudrg 23 c n |--| |--| chemical storage areas), CTE (voc-ed)tacte, hirstnaJ shops, tiaflrq rams.andvisual & perform^ ails roars. X 246-366-120(1) X X 246-366-120(1) X X 246-366-120(1) X X 246-366-120(1) X 24 25 26. As stated above, if these minimum lighting requirements had been enforced 26 by the Health District, Union High, Momoe Public Schools, or the State at any time since 27 1980, Momoe School District would have uninstalled the PCB-light ballasts at the school 28 buildings and installed code compliant, non-PCB light ballasts. This would have COMPLAINT - 54 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094888 1 prevented or minimized much of the PCB contamination and subsequent PCB poisoning 2 of the Plaintiffs. Because the public entity Defendants did not do this, however, the 3 Plaintiffs were exposed to PCB contamination. The public entity Defendants' negligence 4 was a proximate cause of Plaintiffs' damages. 5 27. The State and other public entity Defendants knew or should have known 6 that the existence of PCBs in school buildings poses a danger to children and adults. The 7 potential ignorance of the State, though negligent, is reflected in the absence of PCB 8 discussion in the State's School Indoor Air Quality Best Management Practices Manual 9 (Nov. 2003), available at https://www.doh.wa.gov/CommunitvandEnviromnent/Schools/EnviromnentalHealth (last 10 visited November 15, 2017). Presumably, adequate warnings or instructions by Monsanto 11 should have rectified or ameliorated the negligence of the public entity Defendants and 12 prevented some or all of Plaintiffs' damages. 13 28. In the 2000s, the Health District only conducted safety inspections of these 14 school buildings in 2005, 2007, and 2009. 15 29. In the 2005 inspection letter and report, the Health District stated, as usual, 16 that its "inspectors may check lighting, ventilation, and safety equipment" to "verify 17 compliance with minimal environmental standards for educational facilities, as per WAC 18 246-366-040." The Health District cited Momoe School District for ventilation and 19 lighting standard violations, but again failed to enforce compliance. 2005 Health District 20 letter and inspection report to Momoe School District (Bates stamped 000146-51). 21 30. For C02 concentration limits, ASHRAE Standard 62-2001 recommends no 22 more than 700 ppm above the outdoor concentration as the upper limit for occupied 23 classrooms, which is usually around 1,000 ppm. Carbon dioxide is an asphyxiate that, 24 when measured, serves as a proxy for the quality of ventilation in occupied classrooms. 25 31. The 2005 inspection report was the first Health District report to measure 26 and record carbon dioxide air quality violations at the school buildings. The report 27 recorded 25 readings in 25 separate classrooms at these school buildings that exceeded 28 COMPLAINT - 55 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094889 1 1,000 ppm of carbon dioxide. Six readings were above 1,500 ppm. Four readings were 2 above 2,000 ppm. Two readings were above 3,000 ppm. Id. at 149. 3 32. As in past years, however, the Health District did not enforce compliance 4 with the minimal environmental standards for the school buildings. 5 33. In 2005, the State published its familiarity with poor indoor air quality and 6 how it affects children. The State compared sensitive or vulnerable individuals like 7 children to "canaries in the coal mine." The introduction is reprinted here: 8 Background 9 Students and school staff deserve and expect a healthy and comfortable environment in which to learn and teach. Similarly, parents expect schools to provide a healthy environment conducive to 10 student learning and one that does not promote or exacerbate illnesses in their children, Within the school environment, reduced indoor ah quality (IAQ) due to a lack of fresh ah, chemical and 11 biological contaminants, temperature, and humidity has resulted in student and staff health 12 concerns. These concerns may be expressed as complaints of: headaches, rashes, tiredness, respiratory or eye irritation: and may result from single or multiple factors. Since individuals 13 respond to stressors differently, it's likely that individuals that respond initially may be more sensitive than others and are in essence like the "canary in the coal mine," providing an early 14 indication of poor or reduced IAQ, Therefore, it is important that all concerns be taken seriously 15 and investigated thoroughly. An open and proactive response to an expressed IAQ concern can prevent a minor situation from becoming a major problem. 16 Considerable evidence exists supporting a relationship between poor IAQ and student learning 17 and illness. Children spend between 80 and 85 percent of their time indoors, which includes 18 about seven hours per day hi school. Poor indoor air quality in schools is associated with increased student absenteeism and reduced student academic performance. As an example, a 19 recent study involving Washington and Idaho schools found that classroom carbon dioxide (COi) concentrations greater than 1000 ppm, due to inadequate fresh make-up ah. were associated with 20 a 10 to 20 percent increase in student absenteeism. During the 1990s, the incidence of asthma in 21 young children rose by nearly 60 percent and was responsible for ten million missed school days per year1 nationwide. In the mid 1990s, one in five schools across the United States, representing 22 8.4 million students, was identified as having IAQ problems. Furthermore, maintenance and operations budgets have declined as a percentage of school operating budgets from nearly 12 23 percent in 1990 to nine percent in 2000, which may contribute to poor indoor air quality in both 24 new and aging school buildings. 25 Washington State has 296 school districts with more than 2,200 buildings and over one million students. While the total number of IAQ concerns reported in Washington State schools is 26 unknown, several school districts have experienced severe IAQ events that have resulted in 27 temporary school closures. Discussions with officials from these districts highlight the need for a clear and systematic approach that enables school administrators to quickly and effectively 28 investigate and resolve IAQ concerns. COMPLAINT - 56 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094890 1 Wash. State Department of Health, Office of Environmental Health & Safety. 2 Responding to Indoor Air Quality Concerns in our Schools. June 2005, p. 5, available at 3 https://www.doh.wa.gov/CommunityandEnvironment/Schools/EnvironmentalHealth (last 4 visited November 15, 2017). 5 34. Despite this knowledge, the State did not supervise the removal of toxic 6 and hazardous substances such as PCBs from the school buildings. This was negligent 7 and a proximate cause of Plaintiffs' damages. 8 35. In 2006, the Health District did not conduct an inspection of these school 9 buildings. 10 36. In 2007, the Health District inspected the school buildings and noted "there 11 were several items noted during this safety inspection that appear not to have been 12 addressed since the last inspection conducted in 2005." 2007 Health District letter and 13 inspection report to Momoe Public Schools (Bates stamped 000153-59) (emphasis 14 added). This included ventilation violations as well as more than a dozen C02 15 measurements in different classrooms that exceeded 1,000 ppm, with five measurements 16 that exceeded 1,500 ppm. Id. at 154, 156-57. The Health District also cited Monroe 17 School District for violating minimum light intensity standards in the Music rooms, the 18 Library, and a half-dozen classrooms. Id. at 153, 155. 19 37. In 2007, the Health District did not enforce compliance with the minimal 20 environmental standards for the school buildings. 21 38. In 2007, the School District received its State Study and Survey by an 22 architecture firm, Hutteball & Oremus, regarding the District's public educational 23 facilities. The study reported to the School District that the school buildings, then known 24 as the Momoe Middle School, have safety issues. The Momoe Middle School "is 25 deteriorating at a rate which exceeds that of normal maintenance efforts and funding 26 2007 Hutteball & Oremus State Study and Survey for Momoe School District, p. 219. 27 "The level of deterioration at this facility is the most severe of any school within the 28 District." Id. at Executive Summary. The study recommended demolishing the existing COMPLAINT - 57 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094891 1 classrooms and library. Id. at 19. "None of the existing HVAC equipment is in 2 compliance with current codes." Id. at 69. The study reported that the lighting was 3 deficient, and recommended that the lighting system be upgraded and replaced 4 throughout the facility. Id. at 70, 18. Hazardous material existed in the school buildings: 5 "The campus is reported to contain friable asbestos containing material such as pipe 6 insulation and non-friable vinyl asbestos floor tile. The Classroom/Library building 7 contains insulated asbestos panels at the window areas." Id. at 11. The study did not 8 mention PCBs, but recommended a hazardous material survey by an independent 9 consultant in conjunction with planning of future modernization, additions, or 10 replacements. Id. The study stated that "the Monroe Middle School is in need of 11 immediate renovation and upgrades... Existing life safety issues, energy inefficiencies, 12 and code issues will continue to exist until significant action is taken to correct these 13 deficiencies." Id. at Summary, 25 (emphasis added). 14 39. The Momoe School District did not follow these recommendations in 2007, 15 but instead continued to use the school buildings in their condition for several more 16 years. 17 40. In 2008, the Health District did not conduct an inspection of these school 18 buildings. 19 41. In 2009, the Health District inspected the school buildings and noted "there 20 were several items noted during this safety inspection that appear not to have been 21 addressed since the last inspection conducted in 2007." 2009 Health District letter and 22 inspection report to Monroe School District (Bates stamped 000254-62) (emphasis 23 added). The repeated violations included safety standards relating to ventilation, lighting, 24 and air quality, including roughly a dozen rooms where C02 levels exceeded 1,000 ppm. 25 Id. at 254-61. 26 42. Again, the Health District did not enforce compliance with the minimal 27 environmental safety requirements for these school buildings. 28 43. In 2010, the Health District did not conduct an inspection of these school COMPLAINT - 58 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094892 1 buildings. The Health District also did not enforce compliance. 2 44. In May of 2011, the Health District inspected the school buildings and 3 noted "there were several items noted during this safety inspection that appear not to 4 have been addressed since the last inspection conducted in 2009." 2011 Health District 5 letter and inspection report to Momoe School District (Bates stamped 000270) (emphasis 6 added). Repeated violations included safety standards relating to ventilation and lighting. 7 Id. at 266-70. This report did not measure and record C02 levels. 8 45. But the Health District did not enforce compliance with the minimal 9 environmental safety requirements for these school buildings. 10 46. If the Health District or the State had enforced compliance with minimum 11 lighting safety requirements in 2011, then Momoe School District (or Union High) would 12 have uninstalled the toxic PCB-light ballasts at the school buildings and installed code 13 compliant, non-PCB light ballasts. This would have reduced the PCB contamination and 14 subsequent PCB poisoning of the Plaintiffs. But the Health District and the State did not 15 enforce compliance. That was negligent and a proximate cause of Plaintiffs' damages. 16 47. Following the spring of 2011, the Momoe School District removed the 17 middle school program from the school buildings. 18 48. The School District chose to move an education program called Sky Valley 19 Education Center into the school buildings. 20 49. Sky Valley Education Center was and is an alternative kindergarten through 21 twelfth grade education program. Often, parents spent time with their children in the 22 classrooms. Many mothers were also pregnant or had infants with them at school. 23 50. The program was formerly situated in a warehouse space in Momoe. The 24 use of the warehouse space cost the Monroe School District several hundred thousand 25 dollars per year in rent. To avoid paying that money, the School District chose to break 26 its lease with the warehouse landlord, sue the landlord, and move the Sky Valley program 27 into the old Momoe Middle School. The litigation led to a 2013 settlement in which the 28 School District paid $900,000 to parties related to the interests of the warehouse landlord. COMPLAINT - 59 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094893 1 51. In the summer of 2011, the Momoe School District did not conduct a 2 hazardous material survey of the old Momoe Middle School. The School District also did 3 not fund any hazardous material abatement or renovation work of the school buildings. 4 52. Instead, the Momoe School District, or the administrators for the Sky 5 Valley Education Program, invited Sky Valley program teachers, parents, and children to 6 volunteer to clean the old Momoe Middle School. As a result, Sky Valley program 7 teachers, parents, and children worked during the summer to remove some old carpets, 8 paint some walls, and clean classrooms. This was the first exposure that these individuals, 9 including some of the Plaintiffs, had to the toxic contamination at these school buildings. 10 53. The Momoe School District administered the Sky Valley Education 11 program at this location, starting in September of 2011. 12 54. In the 2010s, the Health District only conducted safety inspections of these 13 school buildings in 2011, 2013, and 2016. 14 55. In December of 2011, the Health District inspected Sky Valley Education 15 Center, now occupying the site of the old Momoe Middle School buildings. As in past 16 years, the Health District cited the Momoe School District for violations of primary and 17 secondary school safety requirements, WAC 246-366. Jan. 2011 Health District letter and 18 report to the Momoe School District (Bates stamped 000273-79). The Health District 19 cited the School District for violations of ventilation and lighting intensity requirements. 20 56. In 2011, the Health District did not enforce compliance with minimal 21 environmental safety requirements for these school buildings. 22 57. In 2012, the Health District did not conduct an inspection of these school 23 buildings. The Health District also did not enforce compliance. 24 58. In 2013, the Health District inspected Sky Valley Education Center. As in 25 past years, the Health District cited the School District for violations of primary and 26 secondary school safety requirements, WAC 246-366, including lighting intensity and 27 ventilation requirements. 2013 Health District letter and report to the School District 28 (Bates stamped 000283-87). The carbon dioxide levels in four classrooms was measured COMPLAINT - 60 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094894 1 and exceeded 1,000 ppm. Id. at 283. 2 59. In 2013, the Health District did not enforce compliance with minimal 3 environmental requirements for these school buildings. 4 60. In 2014, the Health District did not conduct an inspection of these school 5 buildings. The Health District also did not enforce compliance. 6 61. From 2011 through 2016, the school buildings continued to have PCB7 caulking and PCB-light ballasts, some of which failed over time and leaked PCBs and 8 pyrolyzed PCB byproducts such as dioxins and furans into the indoor air of the school 9 buildings. 10 62. It is unknown exactly how many PCB-light ballasts failed, fumed, leaked, 11 or smoked PCBs or PCB byproducts into the Sky Valley classrooms between 2011 and 12 2016. According to a 2014 School District memorandum, however, by that time it 13 appears that more than 100 light ballasts had failed, resulting in "Fixtures requiring 14 maintenance cleaning." See MSDG 014266. 15 63. From 2011 through 2016, the Momoe School District does not appear to 16 have conducted any environmental testing regarding the various levels of PCBs, dioxins, 17 or furans in the school buildings during PCB-light ballast failure events or in their 18 immediate aftermath. 19 64. Students and teachers witnessed different PCB-light ballast failures in 20 different classrooms. The failing PCB-light ballasts burned, fumed, or smoked vapors 21 into the classrooms. Some failing PCB-light ballasts also dripped PCB fluids onto the 22 desks and carpets. The Momoe School District's solution for one such PCB leak was to 23 put a bucket under the leaking ballast, which collected a puddle of PCB fluid. This open 24 collection of PCB fluids was done while children used the classroom. The bucket was left 25 in place for several days. The PCB-stained carpet was left in place even longer. 26 65. One Sky Valley teacher recorded some PCB-light ballast failures and 27 probable failures during this time period. For example, in April 2014 a "ballast in Nona's 28 room caught fire and we could smell the smoke in rooms A, C and D and the hallways." COMPLAINT-61 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094895 1 Another ballast failed and created "a bad smell" the following week. Some teachers 2 began researching the issue, inspecting overhead lights in the rooms, and reporting their 3 concerns to the Momoe School District. Here is one photo (taken by a teacher during that 4 time) of stained light fixture housing, along with the teacher's notes: 5 ballast plates with dried blaek/brown residue assumed to be previous ballast oil leaks. 1 remember that there at least two (first ballast on left as enter the room from the hallway 6 and one near the back of the room on the window side) and maybe three lighting plates 7 with brown residue that I assumed was oil from ballast (See Figure 1). We also looked at the fixture in room A that had leaked in 2010 and found that it also had brown residue. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Figure 1: Ballast leak in Room C (Note: photo taken April 2014, tray replaced May 2016) 22 66. In response to other light ballast failures, the Momoe School District 23 maintenance department staff often put the stained light fixture housing materials (along 24 with cleaning rags) in hallways or leaning against classroom walls. Some such housing 25 materials were left in common areas for weeks. 26 67. In 2014, at least three Sky Valley teachers submitted indoor air quality 27 reports for classrooms, reporting symptoms of acute headaches, sinus issues, burning 28 eyes, "pressure" in the head," sneezing, and neck pain. Nov. 14, 2014 SVEC Preliminary COMPLAINT - 62 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094896 1 Indoor Air Quality Assessment, East Pod, by EHSI, p. 2. 2 68. The Monroe School District knew that the Sky Valley Education Center 3 classrooms and common areas contained PCB-light ballasts. The Momoe School District 4 also knew that the PCB-ballasts would fail and make "a very nasty smell filling a 5 classroom." The Sky Valley principal acknowledged this to the Sky Valley staff, 6 although the principal assured staff that the building is "safe." Here is part of the Sky 7 Valley principal^ message to the staff in April of 2014: 8 Hi SVEC Staff, 9 I wanted to let you know about a challenge we are having with the lighting in our school and make sure you are 10 aware how to get your lighting fixed should yon have an issue Please know that we are complying with Risk Management policies and procedures regarding these light fixtures; and as you all know, Risk Management 11 takes its job of protecting staff and students very, very seriously? 12 1 have met with the Maintenance and Facilities Director, Ralph Yingling, consulted with the Assistant Superintendent of Operations, John Mannix (who among other things is in charge of Facilities and Risk 13 Management) and talked with our custodians Dean and Tun to review our procedures to ensure safety. 14 Some of the lighting ballasts in our building (as with several orher schools in the district and many schools 15 nationwide) are quite old and contain material with PCBs. This material requires special care. At this time, there are some of these old ballasts in many of our classrooms and common areas. As these ballasts go out, we 16 are replacing them with new' ballasts that do not contain PCBs. 17 In the meantime, we want you to be sure to follow the procedure below to prevent any issues from happening in your classroom. The issues we have experienced are a very nasty smell filling a classroom and the large 18 bulbs getting extremely hot then producing a gooey substance around the lighting in the fixture. Do not attempt to mess with or fix the light on your own. That job must be done by one of our custodians who knows what 19 equipment to use, how to take care of the problem safely, and how to dispose of the materials properly. 20 the number one priority of a school district. Our building is quirky and old and sometimes a challenge. But it is 21 ours. And it is safe. 22 Karen 23 69. The Sky Valley principal also told parents that they should not complain 24 about the condition of the school buildings or else they could lose their program. Instead, 25 the principal said that parents should be grateful to have the campus. 26 70. In response to complaints in 2014 by some teachers, however, the Monroe 27 School District maintenance department conducted some inspections and drew some 28 maps of the school building ceilings and light fixtures. Some maps are attached to this COMPLAINT - 63 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094897 1 complaint as Exhibit T. Different areas of the school buildings are depicted as showing 2 PCB-light ballast leaks. Here is a portion of one of the maps (a later draft version of 3 MSDGO14453), looking up at the ceiling of the south pod: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 operations recorded carbon dioxide levels of 1,700 ppm in one classroom. EHSI 2014 COMPLAINT - 64 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094898 1 Report. In November of 2014, roughly ten measurements of classroom areas showed 2 C02 above 1,000 ppm. Id. at 7. An independent contractor, EHS-International, Inc., 3 concluded that "there is not a mold problem in the classrooms assessed," and stated that 4 "the reported symptoms which include headaches, sinus issues and sneezing are more 5 likely related to under-ventilation of the spaces as indicated by indoor carbon dioxide 6 concentrations that exceed 1,000 parts per million (ppm) during classroom sessions." Id. 7 at 1. Although "carbon dioxide is considered a surrogate for other airborne 8 contaminants," neither the School District nor EHSI appear to have measured the 9 concentrations of PCBs or other toxins in the classrooms at this time. Id. at 12. 10 72. By 2014, if not earlier, the State (through its Department of Health) had 11 actual knowledge of PCB-light ballast failures and PCB contamination at the Sky Valley 12 school buildings. The State also knew that even apparently intact and non-leaking PCB13 light ballasts can release PCBs into the air. (See below.) Despite this knowledge, the 14 State took no action to prevent toxic exposure and protect the children and adults who 15 used those school buildings. 16 73. In response to one student's complaints of headaches, the Health District 17 conducted a field investigation and found that classroom "airflow was low (C02 high)." 18 Jan. 2015 Health District Field Investigation Report (Bates No. 000289). 19 74. Apart from that field investigation, the Health District conducted no 20 regular, comprehensive inspection of the school buildings in 2015. 21 75. Despite the Health District's lack of inspections in the fall of 2015, the 22 Health District had actual knowledge that Sky Valley teachers reported being sickened by 23 the school buildings. 24 76. In the fall of 2015, one Sky Valley teacher was taken away from the school 25 buildings by ambulance due to neurological symptoms. She later resigned due to illnesses 26 she attributed to the school buildings. The substitute teacher who took her place began 27 having neurological symptoms in the weeks that followed, including a seizure, until he 28 also resigned within three months of assuming the post. Many other teachers developed COMPLAINT - 65 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94899 1 diseases like thyroid disorders, Hashimoto's Disease, and cancers. Roughly a dozen, if 2 not more, teachers resigned from working in these school buildings. Later, roughly a 3 dozen teachers also filed a union grievance against the Momoe School District for the 4 toxic contamination in the school buildings. Children and parents in these classrooms 5 also developed concerning symptoms and diseases, as outlined below. 6 77. Because the cafeteria "gathering area" was too small to accommodate 7 everyone for mealtimes, children and adults regularly ate lunches and snacks in their 8 classrooms. 9 78. By the end of 2015, if not earlier, the Health District had actual knowledge 10 that the school buildings contained PCB spills and PCB-containing materials. 11 79. Despite this knowledge, and upon request by the School District, in 2015 12 the Health District canceled the regular inspection of the school buildings. The Health 13 District canceled the inspection scheduled for September of 2015, and instead 14 rescheduled it to December of 2015. Upon request by the School District, however, the 15 Health District also canceled the inspection scheduled for December of 2015. The Health 16 District delayed the inspection until January of 2016. 17 80. As in 2014 and previous years, the Health District did not enforce 18 compliance with the minimum environmental safety requirements for these buildings in 19 2015. 20 81. During 2015 and 2016, the Health District received and compiled 21 complaints about illnesses associated with the buildings. 22 82. But Health District staff told complaining Sky Valley families and teachers 23 that the Health District would not take any enforcement action against the School District 24 unless eventually many people became sick. 25 83. Between March of 2013 and January of 2016, the Health District conducted 26 no regular inspection and issued no regular inspection report to the Momoe School 27 District regarding these school buildings. 28 84. In December of 2015 and January of 2016, the Momoe School District COMPLAINT - 66 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMQN0094900 1 contracted with environmental engineers to conduct indoor air quality samples, which 2 were then analyzed in a laboratory for PCB content. Some air samples were taken while 3 classes were in session. Apparently unbeknownst to the environmental engineers, this air 4 quality sampling of indoor classroom air was done with exterior windows and doors wide 5 open, rendering the results invalid. During the testing, teachers and students wore their 6 winter coats in the classrooms. Other air samples were apparently taken over the holiday 7 break when classroom air temperatures were low. One State (Department of Health) 8 official emailed other officials, questioning the validity of these results: 9 I do not know the purpose of the PCB testing-is it to address this duster of exposed students/concerned parents, or to address the ballast that smoked in August, or for another reason? I do agree with Nancy that the air test results are not 10 representative of school exposures if the school temperature was low on the day of the testing. From the EPA info IVe read, temperature should be taken into consideration when conducting air tests due to the volatility of PCBs. I also find 11 it odd that the LOD for this set of samples of <200 ng/m3, is 5x higher that the LOO for the May 2014 report (<40 ng/m3). Tiie author refers to the duration of sampling but that was the same (24 hours). For the above reasons, can't 12 agree with the report conclusions about PCBs in air are less than the EPA guidelines. 13 See Snohomish Health District Response to Public Record Requests, Bates No. 000379. 14 85. By December of 2015, the Health District and the State Department of 15 Health received reports that "multiple teachers have adverse health issues including 16 dizziness, nausea and headaches," and that the school buildings contained both live and 17 failed PCB light ballasts, according to a timeline created by Health District investigator 18 Amanda Zych: 19 11/30/15 - Amanda Zych received call from Nancy Bernard, DON School Program 20 They received a complaint from a teacher with health issues at the school. 21 12/1/15 - Amanda Zych received call from original complainant - Complainant #1 22 Complainant #1 (teacher) reported that multiple teachers have adverse health issues 23 including dizziness, nausea and headaches. Complainant stated that 4 light ballasts burst (catch on fire and then oil was noted leaking out of the fixture) in Spring - 2014. 24 Complainant #1 reported that consultants were hired by the Monroe School District to 25 address. It was reported that another bulb burst and leak this Fall -August 2015 - after the consultants completed their work. Complainant #1 also alleged that the PCB light 26 fixture that burst in August 2015 had oil that leaked onto the carpet in Room D and the School District covered the oil stain with duct tape. 27 28 See Snohomish Health District Response to Public Record Requests, Bates No. 000468. COMPLAINT - 67 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094901 1 86. By this time, if not earlier, the Health District was aware of reports of 2 sickened children ("endocrine or hormonal issues") in addition to the "multiple teachers 3 with adverse health issues," according to inspector Zych's chronology: 4 5 1/3/16 - Amanda Zych received call from Complainant #2-5 children in the school, 6 parent All 5 children are sick with endocrine or hormonal issues. All 5 are in the Montessori pod. Fowarded her to the Pediatric Environmental Health Specialty Unit 7 (PEHSU), 8 See Snohomish Health District Response to Public Record Requests, Bates No. 000467. 9 87. Meanwhile, the Health District received report of multiple teachers who 10 were "out on medical leave": 11 1/20/16 - Amanda Zych received call from Complainant #3 - parent has children at the 12 school. Worried because multiple teachers are out on medical leave. Wondering if the 13 school is safe. Knows about PCB ballasts. Forwarded her to PEHSU. 14 Id. 15 88. Despite this knowledge, no public entity Defendant conducted a health 16 impact assessment on the Sky Valley population. Instead, the public entity Defendants 17 kept the school buildings open and in use. 18 89. In January of 2016, the Health District conducted an inspection and issued 19 a report to the Momoe School District. As in previous years, the Health District cited the 20 School District for numerous violations of WAC 246-366, including roughly twenty 21 violations of minimum lighting intensity safety requirements as well as violations of 22 ventilation standards. 23 90. The Health District report to the School District did not mention PCBs, 24 PCB spills, or the sicknesses of Sky Valley teachers, parents, and children. 25 91. Meanwhile, the public entity Defendants learned that, in addition to the 26 PCB contamination, the school buildings were contaminated with metals (including lead) 27 in the school drinking water, radon in the indoor air, disturbed asbestos fibers, and molds, 28 including black mold. COMPLAINT - 68 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094902 1 92. By March, Health District inspector Zych noted a report that people had 2 been ill from the school buildings for years, back when the campus was the Momoe 3 Middle School. Separately, the Everett Herald newspaper published the fact that the 4 School District "received eight complaints about illnesses potentially linked to air quality 5 from 2001 to 2015." See Snohomish Health District Response to Public Record Requests 6 at Bates No. 000465. The March complainant to the Health District reported that "70 7 people are known to be ill from Sky Valley. More don't want to be added to the list for 8 fear of repercussions... People are very scared to report symptoms and join group." Id. at 9 Bates No. 000475. This number grew in the coming months. 10 93. A Momoe School District administrator, John Mannix, dismissed these 11 parental and teacher concerns at a community meeting, stating that "If only 10% of the 12 population ever reacted to the environment, that would be normal." See Snohomish 13 Health District Response to Public Record Requests, Bates No. 000474. Mannix also 14 reportedly stated that the reported illnesses could not be caused by the disturbed asbestos 15 fibers in the school buildings, because lung diseases caused by asbestos fiber exposure do 16 not appear until decades after exposure. 17 94. Meanwhile, Health District inspector Zych reported to her colleagues 18 regarding a dozen known cases of Sky Valley children experiencing "precocious 19 puberty," which is a pathological early-onset of puberty caused by hormonal or endocrine 20 disruptions. Id. at Bates No. 000585. 21 95. By April, Health District inspector Zych updated her chronology to reflect 22 additional information, including notes on an environmental report on the buildings: 23 4/21/16 - Update, Continue to receive calls from numerous complainants. Printing out 24 emails and adding additional service records to the file. Received a copy of the PBS Environmental report on 4/18/16, The report states that PCB levels were above the Rfd 25 in 7 areas of the school. The report states that PCB-containing paint was noted on some interior walls in the school. The report states that some caulk used exterior and 26 interior was noted to contain levels of PCBS. 27 Id. at 000592. 28 96. Health District inspector Zych created a spreadsheet of some symptoms and COMPLAINT - 69 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094903 1 diseases of 63 Sky Valley complainants who had come forward to report adverse medical 2 affects. The Health District spreadsheet is attached as Exhibit U (Bates No. 000593-96). 3 97. Despite this knowledge, the public entity Defendants still kept the school 4 buildings open and in use. 5 98. The Momoe School District's environmental contractors created a map 6 entitled "PCB Light Fixture Cleaning," in which red dots showed the light fixtures 7 throughout the school buildings. It is attached as Exhibit V along with a map showing 8 School District remediation activities in the spring of 2016. 9 99. The school building maps show the room names and the rooms' PCB light 10 fixtures--the red dots--that needed cleaning. Here was the Music Room and its red dots: 11 12 13 14 15 100. Here was the Gathering Area, where children and adults ate and socialized: 16 17 fecm Hlu 18 tO o 19 2 20 Q U s 21 W UJ 22 < Z 23 UJ 24 j. < g> 25 26 27 1..... q28 n i mil nuiA COMPLAINT - 70 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094904 1 101. Here was Building 2, Annex, which housed classrooms A, B, C, D, and F, 2 marked with the red dots in the classrooms, along with Building 1, the Office: 3 4 BUILOING1 5 OFFICE 6 7 8 9 10 11 12 13 102. Here were the numerous PCB light fixtures that needed cleaning in 14 Building 5, where the Library and the pod classrooms 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15 13, 14, 15, 16, 17, 18, 19, and 20 were located. Note the frequency of red dots: 16 BUILDING 5 17 18 19 20 21 22 23 24 25 26 27 28 HARTOLDMON0094905 1 103. By the end of April of 2016, 81 individuals had come forward to report to 2 Health District inspector Zych regarding their diseases and symptoms they associated 3 with Sky Valley Education Center: 4 From: 5 Sent: To: 6 Subject: Amanda Zych Friday, April 29, 2016 4:01 PM Kevin Piemel; Jeff Ketcbel Updated SVEC Complainant Summary 7 fvi - 8 Since December 2015, I have recorded 81 individuals that have complained of health effects that they associate with Sky Valley Education Center, 9 Of these individuals: 10 17-thyroid issues {including 3 Grave's disease, 5 precocious puberty, 5 Hasimoto's disease and 1 hypothyroid) 29 - report fatigue 11 24 - report asthma/cough 23 report headache 12 21 report Gl issues and nausea 17 report cognitive issues - "foggy brain" 13 11 report sore throat 7 Burring of lungs 14 9 dizziness, fatigue 15 Thanks! 16 Amanda Zych | Environmental Health Specialist | Environmental Health 3020 Rucker Avenue, Ste 104 | Everett, WA 98201 J 425,337,3774 I azych^sn.ohd^rg 17 ,J'.i>r7nHS6NAOLrHi l ODIMSTIRSICHT 18 -w'.vwsMOHonsiG Public Ueafflt: Always walking for a safar & healthier inobombb County 19 See Snohomish Health District Response to Public Record Requests, Bates No. 000633. 20 104. The Health District sent at least two letters in June to the School District 21 regarding elevated PCB levels, the closure of some classrooms, and required summertime 22 remediation of the buildings. See Exhibits W1 and W2. The Health District letters cited 23 WAC 246-366-140, stating "the existence of unsafe conditions which present a potential 24 hazard to occupants of the school are in violation of these regulations." Id. By the end of 25 June, the Health District was aware of "over 100 parents, teachers and children [who] 26 have reported illness that they associate with the building." Id. at W2. 27 105. Apart from a closed classroom or two, Sky Valley Education Center 28 remained open through June of 2016. COMPLAINT - 72 FRIEDMAN | RUBIN 51 201University Street, Suite 98101Seattle WA (206) 501-4446 HARTOLDMON0094906 1 106. Another name for PCB-light ballasts is "T-12 lights." The Monroe School 2 District made a map of affected classrooms at the Sky Valley campus: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 107. Before the 2016 school year was over, the Momoe School District had 24 disposed of at least 1,648 pounds of PCB-light ballasts: 25 *7S LBS. PCR HA BLAST. DRUM 3 1%'} 26 dZfci L5S. PCR BALLAS Fr DRUM 3 2770 27 342 LBS PCR BALLAST. DRUM 3 2?7| 28 See MSDG 014240-41 (hazardous waste disposal manifest). COMPLAINT - 73 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094907 1 108. Around this same time, the Monroe School District appeared to have 2 possessed a PowerPoint regarding the dangers of PCB-light ballasts. Here are two of the 3 slides: 4 Common Health Effects 5 6 Chloracne and fingernail discoloration. 7 Skin and mucous membrane inflammation. 8 Swollen eyelids, excessive eye discharge and burning eyes. 9 Burning and edema of the face and hands. 10 Acute contact dermatitis. Chronic absorption cause fatty degeneration of the 11 liver. 12 Probable human carcinogen Cause cancer in animals 13 14 Chronic Health Effects 15 16 Chronic = long term. 17 Evidence of skin cancer. 18 Evidence of liver cancer. Respiratory Tract Irritation. 19 Gastrointestinal Problems. 20 Bioaccummulation: builds up along the food 21 chain; builds up in organic tissue. 22 See MSDG014128, 014135. As shown earlier in this Complaint, the list of these adverse 23 health effects due to PCB exposure is not complete. 24 109. The Momoe School District's environmental consultants conducted a litany 25 of air, wipe, and caulking sample tests for PCBs between January and June of 2016. 26 Results varied at different locations and different times within the school buildings, with 27 some results as "none detected," other results characterized as being "low" or "safe" by 28 the public entity Defendants, and with other results recognized as being "high." Many COMPLAINT - 74 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094908 1 wipe samples appear to have been taken after deep cleaning. Despite the cleaning efforts, 2 PCB test results in May of 2016 were among the more elevated levels of PCBs detected. 3 110. By the spring of 2016, some families had unenrolled from Sky Valley due 4 to the adverse medical effects that they associated with the school buildings. Other 5 families stayed enrolled until June of 2016, having been either unaware of the reports and 6 tests of environmental contamination, or having been assured by the Momoe School 7 District that the school buildings were safe. 8 111. After some remediation in the summer of 2016, the Monroe School District 9 resumed Sky Valley classes in September. 10 112. Some families attempted to return to Sky Valley in the fall, but unenrolled 11 after re-experiencing adverse medical symptoms that they previously experienced in the 12 school buildings. With the knowledge that the school buildings had been contaminated 13 with toxic chemicals, these families unenrolled. Their spots were then filled by other 14 families on the waitlist for the school program (Sky Valley is a popular program), while 15 the Monroe School District assured the public that the school buildings were safe. 16 113. The Health District and School District had some knowledge that this was 17 happening, as shown in this fall 2016 email by inspector Zych to school administrators: 18 From: 19 Sent: To: Cc: 20 Subject: Amanda Zych Friday, September 30, 2016 3:10 PM 'Piplic, Devlin', Mannix, John Kevin Pletriel; Jeff Ketchel Complaint SVEC 21 John and Devlin, 22 For your awareness, I talked to a parent today on the phone that has concerns about Sky Valley, She stated that her 23 daughter had rashes and her son had nose bleeds last year and were both fine over the summer. She went on to say no that they have been back for 2 weeks, symptoms have reoccurred. She stated that her daughter was in Music and Art on 24 Tuesday and then her hands swelled up and had a red rash or hives on them. She stated that her son was in Robotics HI , HIS and Art and then had a bad nose bleed last night. 25 Amanda Zych | Environmen toI Hoa-th Specialist | Environmenlol Hoaith 26 302Q Rucker Avenue, Sle 104 | Everett, WA 90201 | 425.339,0774 I oiych@snohcl.orti 27 SNOHOMISH HEAUH DISTRICT WWW.SNOHD.OftC 28 Public Heatth: Afvrcrys working !or a sofef & healthier Snohomish Counfy COMPLAINT - 75 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094909 1 See Snohomish Health District Response to Public Record Requests, Bates No. 001398; 2 see also Bates No. 001820 (Sky Valley parent emailing Zych that "Hope to hear 3 something will change for our kids and families. We do love this program. As so many 4 that cry that they still feel sick when they come near the building so cannot come [Vc]."). 5 114. Decades of PCB off-gassing, leaks, spills, and fume events, however, 6 caused these school buildings to become secondarily contaminated as large toxic "sinks " 7 That is, porous materials like library books, papers, bricks, and carpets absorbed the 8 PCBs over the years and now release PCBs back into the indoor air. Plaintiffs who have 9 been sensitized to PCB contamination after suffering PCB poisoning still cannot enter or 10 use these school buildings without suffering uncomfortable, painful, or debilitating 11 reactions, despite the School District purportedly uninstalling the primary sources of 12 PCBs (the PCB-caulking and the PCB-light ballasts) by the summer of 2016. 13 115. Environmental tests during the 2016-2017 school year continued to detect 14 levels of PCBs in the air and classrooms of these school buildings to varying degrees, 15 although many results showed "none detected" at the reporting limits. (There is a limit to 16 the sensitivity of the air sampling and laboratory testing.) 17 116. As before, at least some environmental tests were conducted with the 18 classroom windows "wide open," as reported to Health District inspector Zych: 19 3/1/2017 - phone call from Shamils Moary teacher - 360-Koom F 20 He stated that he was concerned that the levels In the quarterly testing were 42,000 In his room. He 21 stated that he was upset that the district didn't let him know of this sooner. I stated that we just 22 received the information on 2/23/17, 23 24 He stated that when he came back from winter break he noticed the air sampling machine In his room and didn't understand why - he thought the testing was completed. He also stated that the window m 25 his room was wide open. He stated he believes that this occurred on January 7lh. 26 See Snohomish Health District Response to Public Record Requests, Bates No. 001517. 27 117. According to the Health District, "Seven of the rooms that were tested 28 during the PCB air sampling indicated levels in excess of established exposure limits." COMPLAINT - 76 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094910 1 Id. at 001524. 2 118. The Monroe School District went to the press to claim that such year-2017 3 PCB results were "false positives." Superintendent Smith made this claim to reporters. 4 She also claimed that any past symptoms reported by members of the Sky Valley 5 Education community were minor and like "colds." This was not true. She knew this 6 statement was not true because parents and teachers had previously reported to her 7 serious illnesses and diseases, including sexual developmental disorders in young 8 children after they began attending classes in the school buildings. 9 119. The services of the environmental consultant were terminated. 10 120. Subsequent PCB testing results appeared to be lower (or "none detected") 11 than the pre-remediation testing results. 12 121. Until last year, when the PCB and other toxic contamination became 13 public, the School District kept the Sky Valley staff, parents, and children in the dark 14 about the actual toxic contamination in the school buildings. 15 122. Two out of three STEM teachers at the program have reportedly had cancer 16 since 2011. Three young parents of STEM students have died of cancer. Two children 17 have reportedly died of cancer. Other children and adults who spent time in the school 18 buildings have also suffered cancers, endocrine disorders, autoimmune disorders, 19 neurological disorders, and miscarriages. 20 123. Since the Monroe School District moved the Sky Valley Education 21 program into the old Momoe Middle School in 2011, many but perhaps not all children 22 and adults who spent time in the school buildings developed symptoms. The symptoms 23 varied in their type and intensity. They included eye irritation, vision difficulties, frequent 24 colds and infections, throat irritation, nose bleeds, allergies, asthma, persistent coughs, 25 difficulty breathing, heart palpitations, headaches, tremors, numbness, tingling, 26 confusion, memory loss, concentration difficulties, depression, anxiety, learning 27 problems, dizziness, nausea, vomiting, abdominal pain, gastrointestinal issues, joint pain, 28 thyroid issues, puberty abnormalities, weight issues, weakness, fatigue, chills, night COMPLAINT - 77 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94911 1 sweats, skin rashes or hives or blisters, skin cysts, peeling skin, and other complaints. 2 124. The frequency and severity of the symptoms appeared to be positively 3 correlated with the vulnerability of the individual and the amount of time spent in the 4 school buildings. The symptoms and diseases worsened over time for these individuals. 5 125. Symptom severity generally improved during holiday breaks, when the 6 children and adults spent time away from the school buildings. 7 126. At different times during the past few years, some Sky Valley parents and 8 teachers raised serious health concerns associated with the school buildings to the 9 Momoe School District and the Health District. Until mid-2016, the School District and 10 the Health District did not appear to take the concerns seriously. 11 127. For example, in 2014 the Momoe School District head of maintenance, 12 Ralph Yingling, told two teachers that they should not be concerned about the PCB-light 13 ballasts. He added that he was in Vietnam and exposed to Agent Orange, and PCB-light 14 ballasts are nothing to worry about in comparison. 15 128. Administrators for the School District promised some teachers that all 16 PCB-light ballasts would be removed and replaced with safe light fixtures during the 17 summer of 2014. This clearly was not done. 18 129. Another School District administrator ridiculed parents of "sick children" 19 as not being interested in going to school. 20 130. The Momoe School District, or its Sky Valley principal, actively 21 discouraged Sky Valley teachers from sharing environmental safety concerns with Sky 22 Valley families. 23 131. The Momoe School District, or its Sky Valley principal, also actively 24 discouraged parents from filing indoor air quality complaints with the School District. 25 132. The Sky Valley principal also admonished one teacher for cancelling 26 classes due to her concerns about safety in her classroom. 27 133. That same teacher developed Hashimoto's Disease (a thyroid disorder) after 28 teaching in that classroom. COMPLAINT - 78 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94912 1 134. Some people who spent time in these school buildings cope with skin 2 issues. Unlike headaches, gastro-intestinal pain, or other internal maladies, skin disorders 3 can be photographed. Here are photographs of children, parents, and teachers showing 4 skin sloughing, blisters, rashes, pigmentation changes, a neurological disorder, and a cyst: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 79 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094913 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 80 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094914 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These photos (above) show blisters and sloughing skin in Sky Valley adults and children. COMPLAINT - 81 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094915 1 Many flares have spread since the fall of 2014, some flares lasting weeks or months. At least 2 four were so painful that they interfered with sleep or required medical attention. This photo shows the start of a flare. In just a week, it got quite a bit worse. First photo was 2/13/15. 3 4 5 6 7 8 9 10 11 12 13 14 Second photo shows the rash spreading onto back of neck on 2/21/15. 15 16 17 18 19 20 3rd photo was 4/11/2015. 21 22 23 24 25 26 27 28 COMPLAINT - 82 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94916 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here are skin pigmentation changes in a Sky Valley adult and a child (above and below): COMPLAINT - 83 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094917 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 84 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094918 1 Here is chloracne on the back of a Sky Valley parent: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 85 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094919 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 87 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094921 1 DupuytrerTs Contracture (2017} 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is the first cyst (of a cluster) removed from a Sky Valley girl's scalp this past year. COMPLAINT - 88 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094922 1 The photographs above are of about a dozen different Sky Valley individuals who 2 developed skin, neurological, and other disorders as part of the constellation of symptoms 3 they attribute to time spent in the school buildings before the School District remediated 4 the buildings. Other photographs of children and adults in the hospital, whether due to 5 encephalitis, cardiac problems, breathing problems, and neurological disorders--all of 6 which have happened to Sky Valley children and adults--are not included. Plaintiffs will 7 request entry of a protective order regarding Plaintiffs' medical records, identifiable 8 photographs, and related personal information. 9 135. According to the Momoe School District's attorney, one defense asserted 10 by the School District is that the levels of toxic contamination were never high enough to 11 cause anyone harm. 12 136. The Health District's history of citing Momoe Public Schools for code and 13 safety deficiencies at these school buildings establishes two basic facts: (1) Momoe 14 School District and Union High have had a history since the 1950s of poor maintenance 15 and safety compliance for these school buildings up to present-day; and (2) Snohomish 16 Health District knew that these school buildings suffered from poor maintenance and 17 non-compliance with safety requirements, particularly in areas of ventilation and lighting. 18 137. Despite this knowledge, the Momoe School District and Union High did 19 not enforce compliance with the minimum safety requirements at these school buildings. 20 That was negligent and a proximate cause of Plaintiffs' damages. 21 138. Despite this knowledge, the Snohomish Health District did not enforce 22 "compliance with minimal environmental standards for education facilities, as per WAC 23 246-366-040," which was the purpose of the Health District's inspections, until late last 24 year. That was negligent and a proximate cause of Plaintiffs' damages. 25 139. The State has constitutional and statutory duties to provide for and 26 supervise the administration of educational services in Washington. 27 140. The State also knew that many of its school building in general--and these 28 school buildings specifically--contained toxic chemicals such as PCBs. COMPLAINT - 89 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094923 1 141. The State Departments of Ecology and Health both recognized that PCBs 2 "can cause adverse health effects in humans and wildlife including cancer and harm to 3 immune, nervous, and reproductive systems. PCBs disrupt thyroid hormone levels in 4 animals and humans, hindering growth and development." State of Wash. Department of 5 Ecology and Department of Health. PCB Chemical Action Plan (Feb. 2015), p. 12, 6 available at https://fortress.wa.gov/ecy/pubhcations/SummaryPages/1507010.html, (last 7 accessed November 14, 2017). 8 142. These departments of the State have also been aware that toxic PCBs 9 persist in school buildings built before 1979, and are aware that this represents a danger 10 to the occupants of the buildings: "We are especially concerned about exposure to 11 children in school buildings with old lamp ballasts and other PCB-containing building 12 materials." Id. at 12. 13 143. The departments of the State know that old ballasts "are at a high risk for 14 failing (dripping, smoking, and catching fire)." Id. at 15 (parenthetical explanation in 15 original). The State recognized that the old ballasts release PCBs into the air breathed by 16 children and other people in school buildings: 17 18 19 20 Id. 21 Ballast failures can expose children to concentrated PCB oils and elevated PCBs in air. Low concentrations of lower chlorinated PCB congeners are continually released from lamp ballasts. When ballasts fail, high concentrations of a broader spectrum of congeners are released, so it is important to find and remove the lamp ballasts before they fail. 144. Despite recognizing this danger, the State did not require and supervise the 22 removal of PCBs from these school buildings. The State's inaction created or increased 23 the risk of harm to the Plaintiffs, causing them damages. This was negligent and a 24 proximate cause of Plaintiffs' damages. 25 145. Stated differently, a reasonably careful governmental entity establishes and 26 enforces policies to remove toxic chemicals such as PCBs from school buildings to 27 prevent toxic exposure and to protect children, teachers, and parents from sickness, 28 disease, and death. COMPLAINT - 90 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094924 1 146. A reasonably careful provider of school buildings removes toxic chemicals 2 such as PCBs to prevent toxic exposure and to protect children, teachers, and parents 3 from sickness, disease, and death. 4 147. Broadly speaking, a reasonably careful school building inspector requires a 5 building owner or operator to comply with the minimum environmental safety 6 requirements to prevent injury and to protect the building's occupants from harm. 7 148. Specifically, a reasonably careful school building inspector requires a 8 school building owner or operator to remove toxic chemicals such as PCBs to prevent 9 toxic exposure and to protect children, teachers, and parents from sickness, disease, and 10 death. 11 149. The public entity Defendants' failures to protect the Sky Valley children 12 and adults from reasonably foreseeable harms were negligent. 13 150. The public entity Defendants' negligence in these and other ways was 14 reasonably foreseeable to Monsanto and does not serve to cut off the chain of causation 15 of Plaintiffs' damages. 16 151. Specifically, the State, the Momoe School District, and Union High used 17 Monsanto's PCBs in a reasonably foreseeable manner, i.e. as components of caulking and 18 light fixtures integral to the structures of the school buildings. The use of PCBs by the 19 public entity Defendants was not so highly extraordinary as to be unforeseeable. In fact, 20 the use of PCBs by these Defendants was consistent with Monsanto's intended promotion 21 of its PCBs, i.e., as components of caulking and light fixtures. In addition, the continued 22 use of PCBs in school buildings is also reasonably foreseeable, as thousands of school 23 buildings across the United States continue to use and contain PCBs. 24 152. Due to the negligence of the public entity Defendants, however, the 25 Plaintiffs were exposed to PCBs and other toxic contamination. Their negligence was a 26 proximate cause of Plaintiffs' damages. 27 153. Although the public entity Defendants and the Plaintiffs "used" Monsanto's 28 PCBs as components of the structures and fixtures of the school buildings, the Plaintiffs COMPLAINT-91 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94925 1 themselves did not "misuse" Monsanto's PCBs. 2 154. The public entity Defendants' failures to require and supervise the removal 3 of PCBs from the school buildings was caused in part by Monsanto's wrongful conduct. 4 This is because Monsanto intentionally misrepresented facts about its PCB products, or 5 intentionally concealed information about PCBs, and this wrongful conduct was a 6 proximate cause of Plaintiffs' damages. 7 155. Specifically, Monsanto provided no warnings, notices, or bulletins to the 8 State, the Snohomish Health District, the Momoe School District, Union High, or the 9 Plaintiffs, which would have alerted them to the full extent of the dangers of toxic PCB 10 exposure in school buildings. The reason is this: Monsanto profited for decades by 11 producing and promoting PCBs, and Monsanto continues to have a strong financial 12 interest in denying the environmental dangers and health hazards associated with toxic 13 contamination caused by Monsanto's PCBs. 14 156. Due to the Defendants' wrongful conduct, the Plaintiffs have suffered past 15 damages and will suffer future damages. Damages includes reasonable fears of present 16 and future adverse medical consequences. Wilson v. Key Tronic Corp., 40 Wn. App. 802, 17 701 P.2d 518 (1985) (where defendant operated a toxic landfill that poisoned local well 18 water, plaintiffs' fears of present and future health problems stemming from actual 19 ingestion of the toxic chemicals are reasonable and therefore compensable). 20 VI. LEGAL CONTEXT AND CAUSES OF ACTION 21 A. State law protects individual rights. Plaintiffs bring claims for damages 22 against the named Defendants under state law only for strict products liability, negligence, 23 and exemplary damages, as outlined below, and under other applicable state law remedies 24 as discovery may reveal. 25 The Plaintiffs respectfully request that the guarantees of the Washington State 26 Constitution weigh in the consideration of legal rulings in this case. "All political power 27 is inherent in the people, and governments derive their just powers from the consent of 28 the governed, and are established to protect and maintain individual rights." Wash. COMPLAINT - 92 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94926 1 Const., Art. I, 1. The Washington Supreme Court recognizes "that the judiciary has 2 ample power to protect constitutional provisions that look to protection of personal 3 `guarantees,'" including "judicially enforceable affirmative duties of the State." Seattle 4 School Dist. No. 1 v. State of Washington, 90 Wn.2d 476, 502, 585 P.2d 71 (1978). This 5 includes the "paramount duty on the State to make ample provision for the education" of 6 children. Id. Courts have "ample power" to protect such constitutional guarantees and 7 personal rights: 8 When it comes to considering individual rights such as are protected by the 9 guaranties, that the right to trial by jury shall remain inviolate; that no person shall be deprived of life, liberty or property without due process of 10 law; that no law shall grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all 11 citizens; and many other constitutional guaranties that look to protection of 12 personal rights, the courts have ample power, and will go to any length within the limits of judicial procedure, to protect such constitutional 13 guaranties. 14 15 Seattle School Dist. No. 1 v. State of Washington, 90 Wn.2d 476, 501, 585 P.2d 71 (1978) 16 (holding in part that the school district, parents, and school children who were faced with 17 deteriorating buildings and other shortfalls, had standing to sue the State for its violations 18 of its paramount duty to make ample provision for the education of children), quoting 19 Gottstein v. Lister, 88 Wash. 462, 493, 153 P. 595 (1915). 20 B. Plaintiffs are fault-free. Defendants cannot allege or show facts that would 21 support a claim that the Plaintiffs, who spent time in these school buildings, are somehow 22 at-fault for the toxic contamination and poisoning. The Plaintiffs are fault-free. 23 C. Negligence claims are covered claims. The claims against the public entities 24 are for negligent provision, establishment, maintenance, inspection, and supervision of the 25 school buildings, which were a legal cause of Plaintiffs' damages. Stated differently, the 26 public entities negligently managed the safety of the school buildings, which caused the 27 Plaintiffs' to suffer damages. No "pollution exclusion" would apply to deny coverage, even 28 COMPLAINT - 93 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94927 1 if such an exclusion exists in any policy of insurance in this case. Xia v. ProBuilders 2 SpecialtyInsur. Co., 188 Wn.2d 171, 393 P.3d 748 (2017). 3 D. Defendants' joint and several liabilities. These claims relate to negligence 4 and product liability for "hazardous substances" that contaminated the school buildings and 5 poisoned the Plaintiffs. As a result, all Defendants are jointly and severally liable for all of 6 Plaintiffs' damages. RCW 4.22.070(3); Coulter v. Asten Group, Inc., 135 Wn. App. 613, 7 146 P.3d 444 (2006), reconsideration denied, review denied, 161 Wn.2d 1011, 166 P.3d 8 1217. 9 E. Monsanto Defendants' product liabilities to the Plaintiffs. 10 1. PCBs are a product. Monsanto's PCBs are a "product" under Washington 11 law. RCW 7.72.010(3). 12 2. Strict product liability, not reasonably safe in construction (WPI 13 110.01). A manufacturer of a product is liable if its product was not reasonably safe in 14 construction and this was a proximate cause of plaintiff s damages. 6 Wash. Prac., Wash. 15 Pattern Jury Instr. Civ. WPI 110.01 (6th ed.). A product is not reasonably safe in 16 construction when it is "unsafe to an extent beyond that which would be contemplated by 17 the ordinary consumer." Id., citing RCW 7.72.030(3). Monsanto's PCBs are extremely 18 toxic, and their toxicity was a proximate cause of Plaintiffs' damages. The existence of 19 Monsanto's PCBs in the construction materials, caulking, and light ballasts of the school 20 building was unsafe to an extent beyond that which was contemplated by the other 21 Defendants, their employees, and the Plaintiffs who "used" the PCB-containing materials 22 in the school buildings, which contaminated the buildings and caused PCB-poisoning in 23 the Plaintiffs and others. Monsanto is strictly liable for Plaintiffs' damages. 24 3. Strict product liability, not reasonably safe as designed (WPI 110.02). 25 A manufacturer of a product is liable if its product was not reasonably safe as designed at 26 the time it left the manufacturer's control and this was a proximate cause of plaintiffs 27 damages. A product may be not reasonably safe as designed under either a balancing test 28 COMPLAINT - 94 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094928 1 or a consumer expectations test. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 2 110.02 (6th ed.). 3 At the time Monsanto manufactured PCBs, there was a high likelihood that the 4 PCBs would cause injuries similar to that claimed by the Plaintiffs, and the seriousness of 5 the injuries is significant. This outweighed any "burden" on Monsanto to design a 6 product that would have prevented the injuries (/.e., alternative chemicals or mechanisms 7 used in caulking, light ballasts, and other applications, that are not "extremely toxic"), 8 and any adverse effect that a practical and feasible alternative design would have on the 9 usefulness of the product. Id. Monsanto is also liable under the consumer expectations 10 test, considering the following factors: the relative cost to the School District of replacing 11 the caulking, light ballast fixtures, and other materials later discovered to be 12 contaminated with Monsanto's PCBs; the seriousness of harm caused by exposure to 13 PCBs is high; the cost to Monsanto of eliminating PCB production would have 14 eliminated PCB profits, while the feasibility of eliminating or minimizing the risk was 15 readily available to Monsanto; and other factors as may be revealed in discovery. Id. 16 Monsanto's PCBs were not reasonably safe as designed and this was a proximate 17 cause of Plaintiffs' injuries following exposure to Monsanto's PCBs. This was reasonably 18 foreseeable by Monsanto. In addition, any claimed "misuse" of toxic PCB-containing 19 products by other Defendants, third parties, or even the Plaintiffs, was also reasonably 20 foreseeable. Regardless, a product can be "not reasonably safe" even though the risk that 21 it would cause the plaintiffs harm or similar harms was not foreseeable by the 22 manufacturer at the time the product left the manufacturer's control. Id. (bracketed 23 material). As designed, PCBs were not reasonably safe, and Monsanto is strictly liable for 24 Plaintiffs' damages. 25 4. Liability for negligence, "Comment K" unavoidably unsafe products 26 (WPI 110.02.01). A chemical manufacturer has a duty to use reasonable care to design 27 chemicals that are reasonably safe. "Reasonable care" means the care that a reasonably 28 prudent chemical manufacturer would exercise in the same or similar circumstances. A COMPLAINT - 95 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094929 1 failure to use reasonable care is negligence. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. 2 WPI 110.02.01 (6th ed.). 3 The question of whether a manufacturer exercised reasonable care is to be 4 determined by what the manufacturer knew or reasonably should have known at the time 5 of the plaintiffs injury. In determining what a manufacturer reasonably should have 6 known in regard to designing its product, a jury should consider the following: a 7 chemical manufacturer has a duty to use reasonable care to test, analyze, and inspect the 8 product it sells, and is presumed to know what tests would have revealed; and a chemical 9 manufacturer has a duty to use reasonable care to keep abreast of scientific knowledge, 10 discoveries, advances, and research in the field, and is presumed to know what is 11 imparted thereby. Id. 12 From the first decade of manufacture, Monsanto knew that its PCBs were toxic. 13 The scientific research regarding the toxicity of PCBs increased over time. Despite the 14 actual and imparted knowledge of PCB toxicity, Monsanto continued producing PCBs so 15 Monsanto profited from their sales. Monsanto only stopped producing PCBs due to 16 federal action banning their production. PCBs were never reasonably safe. They are 17 toxic, durable, persistent, bioaccumulate, and are known to migrate from their source 18 material to contaminate the surrounding environment. By their very nature as synthetic 19 chemicals, PCBs were and are unavoidably unsafe products. Monsanto was negligent and 20 is liable for Plaintiffs' damages. 21 5. Liability for failure to provide warnings when manufactured (WPI 22 110.03). A manufacturer has a duty to supply products that are reasonably safe. A 23 product may be not reasonably safe because adequate warnings or instructions were not 24 provided with the product. This can be proven either through a balancing test or a 25 consumer expectations test. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 110.03 26 (6th ed.). 27 The balancing test establishes that Monsanto is liable: at the time of manufacture, 28 there was a likelihood that PCBs would cause injury or damage similar to that claimed by COMPLAINT - 96 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094930 1 the Plaintiffs, and given the seriousness of the injuries or damages, the lack of warnings 2 by Monsanto were inadequate; and Monsanto could have provided adequate warnings or 3 instructions. Monsanto could have provided warnings--but chose not to provide any 4 warnings--such as "CAUTION: CONTAINS PCBS (Polychlorinated Biphenyls), A 5 TOXIC ENVIRONMENTAL CONTAMINANT REQUIRING SPECIAL 6 HANDLING AND DISPOSAL." Monsanto presumably chose not to provide such PCB 7 warnings because the warnings would have reduced PCB sales and profits. 8 The consumer expectations test also proves that Monsanto is liable: the 9 construction materials and fixtures containing PCBs are not cheap, and their replacement 10 by the School District and the State would likely be a factor considered; the seriousness 11 of potential disorders and diseases (including reproductive toxicity and cancers) caused 12 by PCB exposure is extremely high, especially considering the vulnerability of children; 13 the cost and feasibility of eliminating or minimizing the risk are substantial; and other 14 factors as discovery may reveal. Id. 15 Monsanto's PCBs were not reasonably safe because adequate warnings or 16 instructions were not provided, and this was a proximate cause of Plaintiffs' injuries. As a 17 result, Monsanto is liable for Plaintiffs' damages. 18 6. Liability for failure to provide warnings after manufacture (WPI 19 110.03.01). A manufacturer has a duty to supply products that are reasonably safe. A 20 product may be not reasonably safe because adequate warnings or instructions were not 21 provided after the product was manufactured. 6 Wash. Prac., Wash. Pattern Jury Instr. 22 Civ. WPI 110.03.01 (6th ed.). PCBs are not reasonably safe because adequate warnings 23 or instructions were not provided after they were manufactured: (1) Monsanto learned, or 24 a reasonably prudent manufacturer should have learned, about the dangers connected 25 with PCBs (while and) after they were manufactured; (2) without adequate warnings or 26 instructions, PCBs are unsafe to an extent beyond that which would be contemplated by 27 an ordinary user such as the School District, the State, or the Plaintiffs; and (3) Monsanto 28 failed to provide warnings or instructions concerning the dangers of PCBs in the manner COMPLAINT - 97 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94931 1 that a reasonably prudent manufacturer would act in the same or similar circumstances. 2 Because Monsanto did not provide adequate warnings or instructions after its PCBs were 3 manufactured and this was a proximate cause of Plaintiffs' injuries, Monsanto is liable 4 for Plaintiffs' damages. 5 7. No "useful safe life" defense, statute does not apply. A statute of repose 6 enacted in 1981 provides a defense to some product manufacturers. It provides that "a 7 product seller shall not be subject to liability to a claimant for harm under this chapter if 8 the product seller proves by a preponderance of the evidence that the harm was caused 9 after the product's `useful safe life' had expired." RCW 7.72.060(1). The statute also 10 provides that "`Useful safe life' beings at the time of delivery of the product and extends 11 for the time during which the product would normally be likely to perform or be stored in 12 a safe manner." RCW 7.72.060(1). The statute creates a presumption: "If the harm was 13 caused more than twelve years after the time of delivery [of the product], a presumption 14 arises that the harm was caused after the useful safe life had expired. This presumption 15 may only be rebutted by a preponderance of the evidence." RCW 7.72.060(2). 16 Monsanto's PCBs were installed in the school buildings from the 1950s through 17 the 1970s. Although the PCB-caulking and PCB-light ballasts continued to have useful 18 product lives up to the time of remediation in 2016, the PCBs themselves never had safe 19 lives due to their extreme toxicity. Monsanto knew that PCBs were toxic, but it provided 20 no adequate warnings. As a result, the public entity Defendants were left uninformed by 21 the manufacturer about the extent of the true dangers of PCBs. Up to the present day, 22 PCBs remained as toxic as they were when Monsanto produced and promoted them. By 23 the 1980s, the EPA termed PCBs "extremely toxic." The statute of repose requires a 24 product to have had a useful safe life when manufactured; the plain meaning of "safe," 25 however, does not include "extremely toxic." Due to their extreme toxicity, Monsanto's 26 PCBs never had a safe life. PCBs are not and were not reasonably safe products. PCBs 27 were and still are unavoidably unsafe products. A defense that applies to products having 28 a "useful safe life" cannot and does not apply to PCBs. COMPLAINT - 98 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94932 1 8. No "useful safe life" defense, the indefinite persistence of PCBs means 2 an indefinite "useful" life. In the alternative, the chemical stability and persistence of 3 PCBs means they have an indefinitely long "useful" life. In the school buildings, the 4 PCB-light ballasts continued to perform their functions for decades, in fact, until 2016 5 when they were uninstalled. Likewise, the PCB-containing caulking continued to perform 6 its function of sealing gaps between walls, window frames, and masonry joints, until the 7 caulking was removed in 2016. The utility of the PCBs continued uninterrupted from the 8 time of their installation in the school buildings until 2016, and the PCBs performed their 9 functions throughout that time. RCW 7.72.060(1) (`"Useful safe life' begins at the time 10 of delivery of the product and extends for the time during which the product would 11 normally be likely to perform..."). The product seller statute of repose provides 12 Monsanto no defense in this case. 13 9. No "useful safe life" defense, statutory exception applies. In the 14 alternative, if the Court finds that PCBs had a safe life, then a statutory exception applies 15 to deprive Monsanto of the defense. "A product seller may be subject to liability for harm 16 caused by a product beyond its useful safe life if... The product seller intentionally 17 misrepresents facts about its product, or intentionally conceals information about it, and 18 that conduct was a proximate cause of the claimant's harm." RCW 7.72.060(l)(b). 19 Monsanto has intentionally misrepresented facts about PCBs, or has intentionally 20 concealed information about them, and that conduct was a proximate cause of Plaintiffs' 21 harms. No "useful safe life" defense applies under this statutory exception. 22 10. Statute of limitations. For the Plaintiffs, the product liability claims did 23 not accrue until spring of 2016, when the School District's environmental hygienists 24 reported that Monsanto's PCBs contaminated the school buildings. RCW 7.72.060(3); 25 North Coast Air Services, Ltd. v. Grumman Corp., Ill Wn.2d 315, 759 P.2d 405 (1988); 26 16 Wash. Prac., Tort Law and Practice 10:16 (4th ed.) (Oct. 2017 update) ("A three year 27 discovery rule applies, with the provision that the statute begins to run when `the 28 claimant discovered or in the exercise of due diligence should have discovered the harm COMPLAINT - 99 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094933 1 and its cause.'"). "The Washington Supreme Court has held that this statute extends the 2 limitations period beyond the time when the harm occurred in circumstances when the 3 claimant would have no reason to know about the causal connection to a defective 4 product." Id., citing North Coast Air Services, Ltd., Ill Wn.2d 315. Before spring of 5 2016, the Plaintiffs had no reason to know that any harm that occurred was caused by 6 PCBs and that they were manufactured by Monsanto. 7 11. Foreseeability. For decades, Monsanto produced and promoted PCBs for a 8 wide variety of applications, including building materials and fixtures such as caulking 9 and light ballasts. Monsanto's PCBs were installed in these school buildings between the 10 1950s and the 1970s. These building applications--and Monsanto's PCBs--are stable 11 and durable. It was foreseeable that Monsanto's PCBs would be installed in such 12 buildings, would persist up to the present day, and would harm people such as the 13 Plaintiffs. This is due to several factors. The first is the stability and durability of PCBs, 14 known to Monsanto. PCBs do not readily breakdown or decompose. This is one of their 15 utilities and a reason that Monsanto produced and promoted them. 16 The second is the known propensity of PCBs to migrate from their sources and 17 contaminate the surrounding environment. Monsanto has known for several decades that 18 PCBs migrate from their sources into their surrounding environments and harm the 19 organisms that live in those environments. Over the years, the PCBs migrated from their 20 sources in caulking and light ballasts into the surrounding building materials such as 21 bricks, carpets, and library books, all of which are absorptive and act as a toxic "sink." As 22 shown by the EPA, the toxic sink then acts as a secondary source of toxic exposure to 23 occupants of the school buildings, in addition to the ongoing primary sources of PCB 24 exposure. In recent years, spikes in indoor air toxicity occurred due to PCB-light ballast 25 failures in which PCB liquid dripped onto carpets and desks in classrooms, and in which 26 failing PCB-light ballasts vented vapors and pyrolyzed byproducts such as dioxins and 27 furans--which are highly toxic as well as foreseeable byproducts--into classroom air. 28 The overall toxicity of the school buildings gradually increased every year until 2016, COMPLAINT - 100 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094934 1 when inspectors discovered the PCB contamination and the Health District ordered the 2 School District to remediate the buildings. 3 The third factor making the persistence of PCBs foreseeable in these school 4 buildings is that Monsanto provided no warnings regarding their toxicity. Monsanto's 5 knowing inaction made it more likely that the other Defendants would not act, causing 6 more people, including school children, to become poisoned by Monsanto's PCBs. In 7 short, it was foreseeable that Monsanto's PCBs would be left in place for decades in the 8 school buildings while contaminating those buildings and slowly poisoning the people 9 who use the buildings. 10 It was also foreseeable that other people and entities may be negligent in their 11 provision, maintenance, inspection, or supervision of the school buildings, especially due 12 to Monsanto's failures to warn. Any allegation by Monsanto of "misuse" of toxic PCB13 containing products by other Defendants, third parties, or even the Plaintiffs, was a 14 foreseeable "misuse" in part for this reason. Regardless, a product can be "not reasonably 15 safe" even though the risk that it would cause the plaintiffs harm or similar harms was 16 not foreseeable by the manufacturer at the time the product left the manufacturer's 17 control. See WPI 111.02, -.03 (bracketed material). PCBs were not and still are not 18 reasonably safe. Monsanto is strictly liable for Plaintiffs' damages. 19 12. Missouri exemplary damages apply. "Washington courts will apply the 20 punitive damages law of other jurisdictions in product liability cases, if warranted under 21 choice of law principles. In such a situation, the jury instructions on punitive damages 22 should conform to the laws of the other state." 6 Wash. Prac., Wash. Pattern Jury Instr. 23 Civ. WPI 110.00 (6th ed.), citing Singh v. Edwards Lifesciences Corp., 151 Wn. App. 24 137, 143-44, 210 P.3d 337 (2009). Under a choice of law analysis, the Missouri law of 25 punitive damages applies because Monsanto's reckless decisions and reprehensible 26 conduct took place at Monsanto's headquarters in Missouri. In products liability cases 27 under Missouri law, exemplary or punitive damages are available "if the defendant had 28 actual knowledge of the defect and the danger and showed complete indifference or COMPLAINT - 101 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94935 1 conscious disregard for the safety of others by selling the product anyway." 34 Mo. Prac., 2 Personal Injury and Torts Handbook 5.4 (2017 ed.), ]f 17(e). Monsanto produced and 3 promoted PCBs, an unreasonably dangerous product, with actual knowledge of their 4 dangers. Id. at If 11. Monsanto knowingly concealed the hazards of its PCBs and 5 marketed them as safe for open and closed applications in order to maximize Monsanto's 6 profits from PCB sales. See, e.g., City ofSan Jose v. Monsanto Co., 231 F. Supp. 3d 357, 7 366 (N.D. Cal. 2017) (denying Monsanto's motion to dismiss the claim for punitive 8 damages on these facts while holding that the Cities stated a claim for public nuisance 9 based on PCB contamination). 10 F. Public entity negligence. 11 1. Standing of the State to be sued. The State may be sued for its 12 wrongdoing that damages its residents: "The state of Washington, whether acting in its 13 governmental or proprietary capacity, shall be liable for damages arising out of its 14 tortious conduct to the same extent as if it were a private person or corporation." RCW 15 4.92.090. The State's "waiver [of immunity] is very broad." State of Washington JLARC 16 Report 11-8 (2011): State Risk Management Practices in Washington at 5. 17 2. State's direct liability for negligence. "A person conducting an activity 18 through servants or other agents is subject to liability for harm resulting from his conduct 19 if he is negligent or reckless (a) in giving improper or ambiguous orders or in failing to 20 make proper regulations." Restatement (Second) of Agency, 213(a); see also Comment 21 g ("Inadequate regulations. A master is negligent if he fails to use care to provide such 22 regulations as are reasonably necessary to prevent undue risk of harm to third persons or 23 to other servants from the conduct of those working under him. See 508 and the 24 Restatement of Torts, 317. One who engages in an enterprise is under a duty to 25 anticipate and to guard against the human traits of his employees which unless regulated 26 are likely to harm others. He is likewise required to make such reasonable regulations as 27 the size or complexity of his business may require."). The State gave improper or 28 ambiguous orders or failed to make proper regulations reasonably necessary to prevent COMPLAINT - 102 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94936 1 undue risk of harm to children and adults at Sky Valley Education Center. The State 2 negligently provided, maintained, and supervised education in these school buildings. 3 The State's negligence exposed the Plaintiffs to toxic chemicals and caused harm. The 4 State is directly liable to the Plaintiffs for its own negligence. 5 3. State's vicarious liability through negligence of its agents. Any 6 negligence of a State agent within the scope of his or her authority is the negligence of 7 the State. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.03 (6th ed.) (modified). 8 Constitutional and statutory provisions "impose on the state an obligation to provide an 9 integrated system of agencies for the acquisition, construction, financing, administration, 10 supervision, maintenance, and operation of public schools." Robert F. Utter and Hugh D. 11 Spitzer, The Washington State Constitution 154 (2002); State ex. Rel. DuPont-Fort Lewis 12 School Dist. No. 7 v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963). "The state exercises its 13 sovereign powers and fulfills its duties of providing education largely by means of a 14 public school system under the direction and administration of the State Superintendent 15 of Public Instruction, State Board of Education, school districts, and county school 16 boards." Edmonds School Dist. No. 15 v. City ofMountlake Terrace, 77 Wn.2d 609, 611, 17 465 P.2d 177 (1970); see also Restatement (Second) of Agency, 214 (1958). State 18 employees negligently provided, inspected, maintained, operated, and supervised the 19 education in these school buildings, causing Plaintiffs to become exposed to toxic 20 chemicals and suffer damages. The State is vicariously liable for this negligent conduct. 21 4. State's vicarious liability through acting in concert. The State, Momoe 22 School District, and Union High are bound together in a joint obligation: "a school 23 district is a corporate arm of the state established as a means of carrying out the state's 24 constitutional duties and exercising the sovereign's powers in providing education." 25 Edmonds School Dist. No. 15 v. City ofMountlake Terrace, 77 Wn.2d 609, 611-12, 465 26 P.2d 177 (1970). Specifically, "in the matter of education, a school district is deemed to 27 be an arm of the state for the administration of the school system." Edmonds School Dist., 28 77 Wn.2d at 614, citing Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 P. COMPLAINT - 103 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094937 1 1004 (1915). "It follows that the school district exercises the paramount power of the 2 state in providing education and carries out the will of the sovereign state as to all matters 3 involved in the educational processes and in the conduct, operation, and management of 4 the schools." Id. at 614-615; see also State ex rel. DuPont-Fort Lewis School Dist. No. 7, 5 Pierce County v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963). As a legal consequence, the 6 State is vicariously liable for the negligence of its "arms," the Momoe School District 7 and Union High, that caused damage to the Plaintiffs in this case. 8 5. State's paramount, nondelegable duty. "It is the paramount duty of the 9 state to make ample provision for the education of all children residing within its 10 borders..." Wash. Const., Art. IX, 1; McCleary v. State, 173 Wn.2d 477, 520, 269 P.3d 11 227 (2012) ("paramount" means "having the highest rank that is superior to all others... 12 the State's first and highest priority before any other State programs or operations"); 13 Seattle School Dist. v. State, 90 Wn.2d 476, 511, 514, 585 P.2d 71 (1978). This is the 14 only declaration in the State Constitution "that a specified state function is the state's 15 `paramount duty.'" Robert F. Utter and Hugh D. Spitzer, The Washington State 16 Constitution 154 (2002); Seattle School Dist., 90 Wn.2d at 523. This paramount duty is 17 "mandatory" on the State, and "the State may discharge its duty only by performance." 18 Seattle School Dist., 90 Wn.2d at 500, 513; Wash. Const., Art. I, 29. The paramount 19 duty of the State "creates a correlative right on behalf of all children residing within the 20 borders of the state." Seattle School Dist. v. State, 90 Wn.2d 476, 510-13, 585 P.2d 71 21 (1978). This is a "true right" created by a "positive constitutional grant." "Positive 22 constitutional rights do not restrain government action; they require it." McCleary v. 23 State, 173 Wn.2d 477, 518-19, 269 P.3d227 (2012). 24 6. State's duty to provide, establish, maintain, and supervise reasonably 25 safe school buildings. "Provision shall be made for the establishment and maintenance 26 of systems of public schools free from sectarian control which shall be open to all the 27 children of the said state." Wash. Const., Art. XXVI, 4. The State "shall provide for a 28 general and uniform system of public schools." Wash. Const., Art. IX, 2. "The COMPLAINT - 104 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94938 1 establishment and maintenance of the public schools throughout the state are essential 2 and are primarily a state purpose." Robert F. Utter and Hugh D. Spitzer, The Washington 3 State Constitution 156 (2002). "The superintendent of public instruction shall have 4 supervision over all matters pertaining to public schools, and shall perform such specific 5 duties as may be prescribed by law." Wash. Const., Art. Ill, 22. These constitutional 6 provisions impose duties on the State to provide, establish, maintain, and supervise "all 7 matters pertaining to public schools." 8 In addition, the State has the "fundamental responsibility" to protect the public's 9 health. RCW 43.70.512(1) ("Protecting the public's health across the state is a 10 fundamental responsibility of the state"); RCW 43.70.005 ("The legislature finds and 11 declares that it is of importance to the people of Washington state to live in a healthy 12 environment"). This includes the safe management of hazardous waste. The State knows 13 that the "[s]afe and responsible management of hazardous waste is necessary to prevent 14 adverse effects on the environment and to protect public health and safety." RCW 15 70.105.005(2). "The health and welfare of the people of the state depend on clean and 16 pure environmental resources unaffected by hazardous waste contamination." RCW 17 70.105.005(1). Specifically, to protect health in school buildings, the State must "adopt 18 rules controlling public health related to environmental conditions including but not 19 limited to heating, lighting, ventilation, sanitary facilities, and cleanliness in public 20 facilities including... schools." RCW 43.20.050(2)(d). To protect children and adults in 21 school buildings, the State must exercise its duties in part through the State Department 22 of Health, the Board of Health, and in conjunction with local boards of health that "shall 23 enforce all rules adopted by the state board of health." RCW 43.20.050(5). 24 It was foreseeable--and the State actually knew--that these school buildings were 25 or have been contaminated with hazardous waste or toxic substances such as PCBs, and 26 that mismanagement can harm the occupants of those buildings, including the school 27 buildings in this case. The State's neglect and negligent inaction regarding toxic 28 chemicals in these school buildings caused foreseeable harm to the Plaintiffs. COMPLAINT - 105 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094939 1 7. State's standard of reasonable care for provision, establishment, 2 maintenance, and supervision of these school buildings. Together with local 3 governmental entities, the State must provide, establish, maintain, and supervise 4 reasonably safe school buildings for the Sky Valley Education community to prevent 5 injury and to protect the children and adults who use those buildings. Reasonably safe 6 school buildings do not expose their occupants to toxic or hazardous chemicals that cause 7 injury or disease. Stated differently, school buildings that expose their occupants to toxic 8 or hazardous chemicals that cause injury or disease are not reasonably safe. Through its 9 agencies and employees, the State must also provide reasonably careful supervision of 10 school districts in their provision and maintenance of school buildings. Although this 11 paramount duty to provide and maintain reasonably safe school buildings primarily 12 benefits children, the duty extends to reasonably foreseeable third parties such as 13 teachers, parents, and other members of the community. 14 8. State violated its duty. The existence of inadequate or unhealthful school 15 buildings can constitute violations of the State's constitutional duty to children. Seattle 16 School Dist. v. State, 90 Wn.2d 476, 524-526, 585 P.2d 71 (1978) (State violated its 17 constitutional duty to school district, parents, and children who were "faced with a 18 deteriorating physical plant" and lacked other educational necessities); Ramsdell v. North 19 River School Dist., 104 Wn.2d 264, 704 P.2d 606 (1985) (citing Seattle School Dist. and 20 noting that inadequacy of facilities may be a constitutional violation). The State violated 21 its duty of reasonable care by allowing PCBs and other toxic contamination to remain in 22 these school buildings. The toxic poisoning of the Plaintiffs was a foreseeable and 23 avoidable consequence of the State's negligence. 24 During the several years of the negligent acts and omissions that caused the school 25 buildings to poison the Plaintiffs by toxic contamination, the State was meanwhile 26 violating its duty to make ample provision for education. McCleary v. State, 173 Wn.2d 27 477, 532-537, 269 P.3d 227 (2012) (finding education to be "woefully underfunded"). 28 "The State has failed to meet its duty under Art. IX, sec. 1 by consistently providing COMPLAINT - 106 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094940 1 school districts with a level of resources that falls short of the actual costs of the basic 2 education program." McCleary, 173 Wn.2d at 547. "School districts" include Monroe 3 School District and Union High. This may be relevant to the extent Momoe School 4 District or Union High allege that any negligence on their part was a consequence of 5 underfunding by the State, although the School District was clearly able to remediate the 6 buildings in 2016, regardless of budgetary constraints, when ordered to do so by the 7 Health District. 8 Through its agencies, departments, and employees, the State breached its duties of 9 reasonable care to the Plaintiffs by not providing reasonably safe school buildings; by not 10 maintaining the school buildings free of toxic and hazardous substances that cause injury 11 and disease; and by not providing reasonably careful supervision of Snohomish Health 12 District, Momoe School District, and Union High, as they inspected, maintained, and 13 administered educational services at the school buildings now known as Sky Valley 14 Educational Center. Based on the known facts, the State breached its duties in these and 15 other ways as discovery and legal research may reveal. 16 9. The State remains in contempt of the Supreme Court of Washington. 17 The State has been in contempt of the Supreme Court's McCleary decision while the 18 negligence regarding the school buildings caused the Plaintiffs to be exposed to toxic 19 contamination. McCleary v. State, No. 84362-7 (Wash. Sept. 11, 2014) (order of 20 contempt); (Wash. August 13, 2015) (order imposing sanction of $100,000 per day 21 penalty on the State for each day it fails to adopt a complete plan to comply with its 22 constitutional duty); (Wash. Oct. 6, 2016) ("monetary sanction of $100,000 per day shall 23 remain in place and continue to accrue until the State purges its contempt by adopting a 24 complete legislative plan demonstrating how it will fully comply with article IX, section 25 1 of the Washington Constitution by September 1, 2018); (Wash. Nov. 15, 2017) (same). 26 10. State's violations caused Plaintiffs' damages. The State's breaches of its 27 duties exposed the Plaintiffs to toxic and hazardous substances that caused injury and 28 disease. The State's negligence is a legal cause of Plaintiffs' damages. COMPLAINT - 107 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094941 1 11. No Title 51 immunity. The State is not an employer of any Plaintiff and 2 therefore is not entitled to claim immunity under Title 51. RCW 51.08.070; Afoa v. Port 3 of Seattle, 176 Wn.2d 460, 482, 296 P.3d 800 (2013) (Port of Seattle liable in tort to 4 injured worker employed by third-party employer). There are no express contracts or acts 5 that show any of the Plaintiffs or the State recognized one as the employee and the other 6 as the employer. Hubbard v. Dept, of Labor and Indus., 198 Wash. 354, 88 P.2d 423 7 (1939); Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963) (relationship of 8 employer and employee cannot exist without consent of employee for purposes of 9 workers compensation laws). 10 12. State and public entity claims against Monsanto. In 2016, the State sued 11 Monsanto Company, Solutia, Inc., and Pharmacia Corporation for PCB contamination in 12 Washington, alleging public nuisance, products liability (defective design), products 13 liability (failure to warn), negligence, equitable indemnity, and statutory trespass. King 14 County Superior Court, Case No. 16-2-29591-6-SEA. Against the Monsanto Defendants, 15 "the State seeks damages, including on behalf of itself and on behalf of its residents in its 16 parens patriae capacity," for Monsanto's PCB contamination in the State of Washington. 17 Complaint for Damages at 5. Under the nullum tempus doctrine, no statute of limitations 18 defense shall apply to the State's claims or to the claims of other public entity Defendants 19 bringing claims for the benefit of the State. RCW 4.16.160 ("except as provided in RCW 20 4.16.310, there shall be no limitation to actions brought in the name or for the benefit of 21 the state, and no claim of right predicated upon the lapse of time shall ever be asserted 22 against the state"); State v. LG Electronics, Inc., 186 Wn.2d 1, 8, 12, 375 P.3d 636 (2016) 23 (noting that "the legislature has expressly instructed that the State shall not be subject to 24 policies of preventing stale claims inherent in statute of limitations because of competing 25 policy considerations regarding the public welfare and the State's purse.") (antitrust 26 parens patriae case). While the public entity Defendants may have claims against 27 Monsanto arising out of the damages in this case, Monsanto does not have viable 28 counterclaims against non-Monsanto parties in this case. See, e.g., City of Spokane v. COMPLAINT - 108 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94942 1 Monsanto Co., No. 2:15-CV-00201-SMJ, 2017 WL 2945729 (E.D. Wash. July, 10, 2017) 2 (dismissing Monsanto's counterclaims against plaintiff City of Spokane). 3 13. Standing of Monroe School District No. 103. The School District shall be 4 liable for damages arising out of its tortious conduct. RCW 4.96.010; RCW 4.08.120 5 ("An action may be maintained... for an injury to the rights of the plaintiff arising from 6 some act or omission of such county or other public corporation."); RCW 39.50.010(c). 7 14. Monroe School District's direct liability for negligence. The School 8 District shall be liable for its own failures to hire, train, or supervise its employees in the 9 performance of the duties of provision, inspection, and maintenance of the environmental 10 safety requirements for the school buildings. Id.; Restatement (Second) of Agency, 11 213(a). 12 15. Monroe School District's vicarious liability for negligence. Any 13 negligence of a school district board member, administrator, or employee within the 14 scope of his or her authority is the negligence of the school district. 6 Wash. Prac., Wash. 15 Pattern Jury Instr. Civ. WPI 50.03 (6th ed.) (modified). The law "guarantee^] that each 16 common school district board of directors, whether or not acting through its respective 17 administrative staff, be held accountable for the proper operation of their district to the 18 local community and its electorate." RCW 28A. 150.230. 19 16. Statutory duties. Momoe School District "shall: (a) Cause all school 20 buildings to be properly heated, lighted, and ventilated and maintained in a clean and 21 sanitary condition; and (b) Maintain and repair, furnish, and insure such school 22 buildings." RCW 28A.335.010(1). It is "the responsibility of the certificated teaching and 23 administrative staff in each common school to: ...(e) Give careful attention to the 24 maintenance of a healthful atmosphere in the classroom. [And] (f) Give careful attention 25 to the safety of the student in the classroom and report any doubtful or unsafe conditions 26 to the building administrator." RCW 28A. 150.240(2); 6 Wash. Prac., Wash. Pattern Jury 27 Instr. Civ. WPI 60.01 (6th ed.); Swank v. Valley Christian School, 188 Wn.2d 663, 398 28 P.3d 1108 (2017) (holding that a statute enacted to protect student safety created an COMPLAINT - 109 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094943 1 implied remedy for violations of the statute). 2 17. Common law duty to students. School districts "have a special 3 relationship with the students in their custody," and "[b]ased on this relationship, school 4 districts have a duty to anticipate dangers which may reasonably be anticipated, and then 5 to take precautions to protect the pupils in [their] custody from such dangers." 6 Henrickson v. Moses Lake School Dist., 199 Wn. App. 244, 249, 398 P.3d 1199 (2017), 7 citing McLeod v. Grant County School Dist., 42 Wn.2d 316, 320, 255 P.2d 360 (1953). 8 The duty is based on "the well-established law in Washington that a school district has an 9 enhanced and solemn duty to protect minor students in its care." Quynn v. Bellevue 10 School District., 195 Wn. App. 627, 634, 383 P.3d 1053 (2016), citing Christensen v. 11 Royal School Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005). 12 18. Monroe School District's duty. The School District must provide and 13 maintain reasonably safe school buildings to prevent injury and to protect the children 14 and adults who use those school buildings. The School District must provide and 15 maintain school buildings free of PCBs and other toxic chemicals to prevent injury and to 16 protect the children and adults who use those school buildings. 17 19. Monroe School District violated its statutory duty. Momoe School 18 District violated its statutory duty to cause the school buildings to be properly lighted, 19 ventilated, and maintained in a clean and sanitary condition. Momoe Public Schools also 20 violated its statutory duty to give careful attention to the maintenance of a healthful 21 atmosphere and the safety of the students. The School District's violations of the statutes 22 were negligent and legal causes of harm to students and their parents, including the 23 Plaintiffs. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 60.03 (6th ed.). The 24 violations occurred over many years and were multiple and separate negligent acts and 25 omissions during those years. Discovery and legal research may reveal more violations. 26 20. Monroe School District violated its common law duty. Momoe School 27 District violated its common law duties, based on its special relationship with the students 28 in its custody, to anticipate the dangers of toxic contamination within the old school COMPLAINT - 110 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94944 1 buildings, and then to take precautions to protect the students from exposure to the toxic 2 contamination. The School District's violations of its common law duties were negligent 3 and legal causes of harm to students and their parents, including the Plaintiffs. Discovery 4 and legal research may reveal more violations. 5 21. Monroe School District's duty to public invitees. Monroe School District 6 owes to its public invitees a duty to exercise ordinary care. This includes the exercise of 7 ordinary care to maintain in a reasonably safe condition those portions of the premises 8 that the invitee is expressly or impliedly invited to use or might reasonably be expected to 9 use. 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.06 (6th ed.). 10 22. Monroe School District is liable for violating its duty to public invitees. 11 Momoe School District is liable for any injuries to its public invitees caused by a 12 condition on the premises if the School District (a) knows of the condition or fails to 13 exercise ordinary care to discover the condition, and should realize that it involves an 14 umeasonable risk of harm to public invitees; (b) should expect that they will not discover 15 or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise 16 ordinary care to protect them against the danger. 6A Wash. Prac., Wash. Pattern Jury 17 Instr. Civ. WPI 120.07 (6th ed.). See also Restatement (Second) of Torts 343 18 "Dangerous Conditions Known to or Discoverable by Possessor," (1965), which 19 Washington courts have cited for the duties owners or occupiers of land owed to invitees. 20 See, e.g., Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 875 P.2d 621 21 (1994); Ford v. Red Lion Inns, 67 Wn. App. 766, 840 P.2d 198 (1992). Landowners owe 22 to invitees a duty of reasonable care requiring them to inspect for dangerous conditions 23 and to make such repair, safeguards, or warnings as may be reasonably necessary for the 24 protection of invitees under the circumstances. Tincani v. Inland Empire Zoological Soc., 25 124 Wn.2d at 139. This duty of reasonable care includes an "affirmative duty to discover 26 dangerous conditions." Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 132, 606 27 P.2d 1214 (1980) (citing Restatement (Second) of Torts 343, comment b); Jarr v. Seeco 28 Const. Co., 35 Wn. App. 324, 326, 666 P.2d 392 (1983). COMPLAINT - 111 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094945 1 23. Monroe School District violated its duty to public invitees. For years, 2 Monroe School District invited members of the public to use the school buildings, 3 including parents, staff members, and community members, including the Plaintiffs. The 4 Momoe School District: knew or should have known that the school buildings contained 5 toxic contamination; knew or should have known that the toxic contamination involved 6 an umeasonable risk of harm to the Plaintiffs; and knew or should have known that the 7 Plaintiffs would not discover or realize the danger of the toxic contamination. Despite 8 this knowledge, Momoe School District failed to exercise ordinary care to protect 9 Plaintiffs from exposure to the toxic contamination in the school buildings. Due to its 10 negligent acts and omissions, the Momoe School District caused the Plaintiffs to suffer 11 injuries. The negligent acts and omissions occurred over many years and were multiple 12 and separate negligent acts and omissions during those years. Discovery and legal 13 research may reveal more violations. 14 24. Monroe School District's duty to staff members. "In Washington, an 15 employer has an affirmative and continuing duty to provide all employees a reasonably 16 safe place to work." McCarthy v. Dept, of Social and Health Services, 110 Wn.2d 812, 17 818, 759 P.2d 351 (1988). 18 25. Monroe School District violated its duty and may be liable to Plaintiffs 19 who were staff members. Due to the toxic contamination at the school buildings, 20 Momoe School District failed to provide its employees with a reasonably safe place to 21 work. Momoe School District is liable to staff member Plaintiffs to the extent their 22 damages fall outside the scope of Title 51. McCarthy v. Dept, of Social and Health 23 Services, 110 Wn.2d 812, 818, 759 P.2d 351 (1988); Birklid v. Boeing Co., 127 Wn.2d 24 853, 904 P.2d 278 (2003); WPI 32.04 (Measure of Damages--Loss of Consortium-- 25 Spouse); WPI 32.05 (Measure of Damages--Loss of Consortium--Parent). 26 26. Union High as landowner and school district. According to Snohomish 27 County tax assessor records, Union High School District No. 402 is the owner of the land 28 occupied by the old Monroe Middle School, currently known as Sky Valley Education COMPLAINT - 112 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094946 1 Center, and used by the Monroe School District. Union High is also a school district and 2 is liable to Plaintiffs in the same ways as Monroe School District, although Union High is 3 not an employer of any Plaintiff and cannot allege Title 51 immunity. Union High 4 violated its statutory and common law duties to the Plaintiffs in the same manner as did 5 Momoe School District, outlined above. The violations were a legal cause of damages to 6 Plaintiffs. Union High failed to maintain safe premises, violated common law and 7 statutory duties to maintain a safe workplace, and is jointly and severally liable with the 8 State and other Defendants to all Plaintiffs. Afoa v. Port ofSeattle, 176 Wn.2d 460, 482, 9 296 P.3d 800 (2013); Afoa v. Port of Seattle, 198 Wn. App. 206, 393 P.3d 802 (2017). 10 Discovery and legal research may reveal more violations. 11 27. Joint liability. Each school district "is a corporate arm of the state 12 established as a means of carrying out the state's constitutional duties and exercising the 13 sovereign's powers in providing education." Edmonds School Dist. No. 15 v. City of 14 Mountlake Terrace, 77 Wn.2d 609, 611, 465 P.2d 177 (1970). The State, Momoe School 15 District, and Union High are bound together in this joint duty. Id.-, RCW 28.A. 150.070; 16 Wash. Const., Art. IX, 2. Two or more governmental entities act in concert if they 17 consciously act together in an unlawful manner, although it is not necessary that they 18 intend to harm the plaintiff. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.20 (6th 19 ed.). One governmental entity is liability for the fault of another if both were acting in 20 concert with respect to a particular act or omission and that act or omission was a 21 proximate cause of the plaintiffs injuries. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. 22 WPI 50.21 (6th ed.). Momoe School District, Union High, and the State acted in concert 23 to provide to Plaintiffs the school buildings contaminated with toxic chemicals, which 24 was a proximate cause of exposing Plaintiffs to the toxins and injuring them. Each of 25 these three entities is liable for the fault of the other two. 26 28. Monroe School District and Union High, causes of action. Monroe 27 School District and Union High may have causes of action against the State and the 28 product manufacturer Defendants in this case. RCW 4.08.110; Seattle School Dist. No. 1 COMPLAINT - 113 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094947 1 v. State, 90 Wn.2d 476, 490, 585 P.2d 71 (1978) (holding in part that the school district 2 faced with deteriorating buildings and other shortfalls had standing to sue the State for its 3 violations of its paramount duty to make ample provision for the education of children). 4 No statute of limitations applies as a defense against school district claims brought to 5 benefit the State against a corporate defendant such as Monsanto. Bellevue School Dist. 6 No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 114, 691 P.2d 178 (1984); cf. Wash. 7 State Major League Baseball Stadium Public Dist. v. Huber, Hunt & Nichols-Kiewit 8 Constr. Co., 176 Wn.2d 502, 514, 296 P.3d 821 (2013) (noting statutory amendment after 9 Brazier Constr. to RCW 4.16.160 and -.310, providing that "the State is subject to the 10 construction statute of repose"); RCW 4.16.160 ("except as provided in RCW 4.16.310, 11 there shall be no limitation to actions brought in the name or for the benefit of the state, 12 and no claim of right predicated upon the lapse of time shall ever be asserted against the 13 state"). 14 29. Standing of the Snohomish Health District. The Health District shall be 15 liable for damages arising out of its tortious conduct. RCW 4.96.010; RCW 4.08.120 16 ("An action may be maintained... for an injury to the rights of the plaintiff arising from 17 some act or omission of such county or other public corporation."); RCW 39.50.010(c). 18 30. Health District's direct liability for negligence. The Health District shall 19 be liable for its own failures to hire, train, or supervise its employees in the performance 20 of the duties of inspection and enforcement of minimal environmental safety 21 requirements for the school buildings. Id.-, Restatement (Second) of Agency, 213(a). 22 31. Health District's vicarious liability for negligence. Any negligence of a 23 Health District board member, administrator, or employee within the scope of his or her 24 authority is the negligence of the Health District. 6 Wash. Prac., Wash. Pattern Jury Instr. 25 Civ. WPI 50.03 (6th ed.) (modified). 26 32. Health District's joint obligation with the State to enforce safety 27 requirements in the school buildings. The State Board of Health and the Snohomish 28 Health District have a joint obligation to protect public health in school buildings in COMPLAINT - 114 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094948 1 Snohomish County. To protect public health, the State Board of Health shall establish 2 safety requirements for water quality, air quality, and environmental conditions in school 3 buildings, "including but not limited to heating, lighting, ventilation, sanitary facilities, 4 and cleanliness." RCW 43.20.050(2)(d). The Snohomish Health District shall enforce 5 these requirements. RCW 43.20.050(5). The requirements are designed for the benefit 6 and protection of the children and adults who use public school buildings. Bailey v. Town 7 ofForks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987) (noting one exception to the public 8 duty doctrine is "when the terms of a legislative enactment evidence an intent to identify 9 and protect a particular and circumscribed class of persons (legislative intent)"). 10 33. Healthy District's duty to inspect school buildings. The Health District 11 must inspect school buildings and enforce safety requirements to prevent injury and to 12 protect the children and adults who use the school buildings. 13 34. Health District's duty to take corrective action and enforce safety 14 requirements. The Health District must take corrective action and enforce safety 15 requirements in school buildings to prevent injury and to protect the children and adults 16 who use the school buildings. 17 35. Health District breached its duties to the Plaintiffs, causing them harm. 18 For years, the Health District knew that the school buildings were violating 19 environmental safety requirements. For those same years, the Health District had a duty 20 to inspect, verify compliance, and order compliance with environmental safety 21 requirements at the school buildings. But the Health District failed to enforce compliance 22 until the spring of 2016, by which time many people, including the Plaintiffs, had 23 suffered toxic poisoning. In addition, the Health District knowingly and negligently 24 delayed enforcement and waited while dozens of people reported illnesses and diseases 25 attributed to the school buildings. The Health District specifically told Plaintiffs and 26 others harmed by the hazardous conditions in the school buildings that the Health District 27 would take no enforcement action until many people became sickened by the 28 contamination at the school buildings. The Health District chose not to act until 2016, COMPLAINT - 115 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094949 1 when it finally ordered environmental testing and remediation of the hazardous 2 substances in the school buildings. The Health District violations of its duties were legal 3 causes of harm to the Plaintiffs. 4 The Health District is liable to the Plaintiffs and other reasonably foreseeable 5 occupants of the school buildings for the toxic exposures that caused them harm. 6 Campbell v. City of Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975) (duty imposed on 7 electrical inspector who knew of nonconforming electrical system but failed to enforce 8 electrical code compliance, causing injury and death); Halvorson v. Dahl, 89 Wn.2d 673, 9 574 P.2d 1190 (1978) (claim may be made against city for its long-term knowledge of, 10 and inadequate response to, hotel's noncompliance with safety codes); Bailey v. Town of 11 Forks, 108 Wn.2d 262, 737 P.2d 1257 (1987) (liability against police officer who 12 allowed drunk driver to drive his truck, hitting motorcyclist). When the Health District 13 finally acted in 2016 on the school buildings, it found "[t]he existence of unsafe 14 conditions which present a potential hazard to occupants of the school [which] are in 15 violation of these regulations." WAC 246-366-140(1); RCW 43.20.050 (health district 16 shall enforce minimum safety requirements in school buildings); Swank v. Valley 17 Christian School, 188 Wn.2d 663, 398 P.3d 1108 (2017) (holding that a statute enacted to 18 protect student safety created an implied remedy for violations of the statute). The same 19 "unsafe conditions" had been present for months, years, and decades beforehand, had 20 harmed the children and adults in the school buildings, and had been known to the Health 21 District. The Health District's failure to enforce the safety requirements at the school 22 buildings was a proximate cause of Plaintiffs' damages. 23 G. Roes. Roes 1 through 10 are public entities or public or private corporations 24 who may be liable for causing injuries to the Plaintiffs. Currently, it is not known if named 25 Defendants will allege fault against these entities or corporations. Plaintiffs request leave to 26 amend this Complaint if Defendants allege fault against third parties, or if facts become 27 known showing liability against third parties. Third parties Snohomish County, Northwest 28 Education Service District #189, City of Monroe, EHS-Intemational, and McKinstry Corp. COMPLAINT - 116 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094950 1 are being given notice of this lawsuit. If they or another third party are added as Defendants, 2 the new claims in the amended pleadings relate back to the original complaint. CR 15(c). 3 H. Admonition of the Environmental Defense Fund decision. Years before 4 many of the Plaintiffs in this case were bom, the federal district court for the District of 5 Columbia advised that action must be taken to prevent toxic environmental poisoning and to 6 protect future generations: 7 We feel constrained to add one final note to emphasize our concern in this case. Human beings have finally come to recognize that they must eliminate 8 or control life threatening chemicals, such as PCBs, if the miracle of life is 9 to continue and if earth is to remain a living planet. This is precisely what Congress sought to do when it enacted section 6(e) of the Toxic Substances 10 Control Act. Yet, we find that forty-six months *1287 after the effective 11 date of an act designed to either totally ban or closely control the use of PCBs, 99% of the PCBs that were in use when the Act was passed are still in 12 use in the United States. With information such as this in hand, timid souls 13 have good reason to question the prospects for our continued survival, and cynics have just cause to sneer at the effectiveness of governmental 14 regulation. 15 16 Environmental Defense Fund v. Environmental Protection Agency, 636 F.2d 1267, 1286 17 87 (D.C. Cir. 1980) (internal citation omitted). 18 I. Accountability. The Plaintiffs respectfully request that each of the 19 Defendants be held accountable for their roles in causing the toxic poisonings in this case. 20 VII. PRAYERS FOR RELIEF 21 A. Request for preservation of evidence. Plaintiffs request that all Defendants 22 and third parties given notice of this lawsuit preserve all evidence that may potentially be 23 relevant. 24 B. Ex parte contact is prohibited. Many Plaintiffs are individuals who attend, 25 visit, or work at locations within the School District. Plaintiffs request that defense attorneys 26 instinct their agents, employees, defendant employees, and defendants' agents to please 27 refrain from any ex parte contact with Plaintiffs regarding the subject matter of this lawsuit, 28 whether in school buildings, hospitals, or other locations. This request includes the non- COMPLAINT - 117 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94951 1 physician State or University of Washington Medical Center employee(s) who have 2 observed or attempted to observe clinical evaluations of injured Sky Valley teachers, 3 parents, and children. 4 C. Limited waiver of physician-patient privilege. Under RCW 5.60.060(4)(b), 5 Plaintiffs hereby waive the physician-patient privilege only insofar as necessary to place 6 damages at issue at the time of trial. Plaintiffs' actions do not constitute a waiver of any 7 of their constitutional or statutory rights. Defendants, defense attorneys, and their agents 8 are not to contact any treating physicians without first notifying plaintiff counsel, so the 9 matter may be negotiated or brought to the attention of the Court. Loudon v. Mhyre, 110 10 Wn.2d 675 (1988); Smith v. Orthopedics International, Ltd, P.S., 170 Wn.2d 659 (2010). 11 D. Motion practice. 12 1. Plaintiffs' attorneys will move for the appointment of appropriate guardians 13 ad litem to represent the interests of Plaintiffs who are minors. 14 2. Plaintiffs will request relief during litigation through stipulation or motion 15 practice for a limited protective order to provide appropriate psychological, privacy, and 16 personal identification information protections for Plaintiffs. 17 3. Plaintiffs may request leave to amend the complaint, as discovery or 18 Defendants' answers may require. 19 4. Plaintiffs may request leave to reform the caption to reflect the addition or 20 deletion of parties. 21 5. Plaintiffs may request other relief as may be appropriate during litigation. 22 E. Judgment for damages. Plaintiffs demand judgment against Defendants, and 23 each of them, individually, jointly, and severally, for monetary damages to make Plaintiffs 24 whole, together with interest, expenses, costs of suit, attorney fees, as appropriate, and all 25 such other relief as the Court deems just and proper, including: 26 1. Full compensatory damages to the Plaintiffs for past, present, and future 27 general damages as allowed by law; 28 2. Full compensatory damages to the Plaintiffs for past, present, and future COMPLAINT - 118 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMONOQ94952 1 special damages as allowed by law; 2 3. Exemplary or punitive damages against Monsanto, Solutia, and/or 3 Pharmacia, under the applicable law of foreign jurisdiction(s); and 4 4. All other damages allowed by law, rule, or equity. 5 6 DATED this 29th day of December, 2017. 7 FRIEDMAN I RUBIN 8 9 By: Sean J. Gamble, WSBA No. 41733 10 James A. Hertz, WSBA No. 35222 11 Richard H. Friedman, WSBA No. 30626 Henry G. Jones, WSBA No. 45684 12 13 Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 119 FRIEDMAN | RUBIN 51 University Street, Suite 201 Seattle WA 98101 (206) 501-4446 HARTOLDMON0094953 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.36 Page 1 of 25 EXHIBIT A HARTOLDMON0094954 ' t Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.37 Page 2 of 25 PCS PftBSEHTATIOH TO CORPORATE DEVELOPMENT COMCTTSE i. INTRODUCTION; V* are her* today to acquaint you with ths PCS (Aroclor) pollution probit and to secure your guidance and approval on a reoonuatnded plan of action. Certain PCB'a hava raoantly baan ldantlflad by varloua L 1 "ir -- aclentlata along.with DOT In fish, birds, and othsr wlldllfa. Proa tha standpoint of reproduction, the PCB'a are highly toxic to birds, in a faw omenta, Elmer Wheeler will describe the problem In detail. Our objective la to deacrlbt for you tha basic problems, the laauea involved, review alternative courses of action, and suggest an action plan program for your approval. This la a serious mattar, not only fro* tha pollution viewpoint, but also because of the $22 K worldwide customer business Involvsd with rssultant gross profits of $10 H and s net investment of approximately $9 H. In addition, there could be possible adverse legal and public relations problems leveled against Monsanto. Our Agenda will be as followst RONS 098730 HARTOLDMONOQ94955 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.38 Page 3 of 25 -2- PCB AGENDA REVIEW I. INTRODUCTION - II. THE FR0BLB4 DEVELOPMENTS INCRIMINATINO PCS'a - COMPLEXITY OF IDENTIFICATION - NATURE OF - SERIOUSNESS III. LAV DEPARTMENT VIEWPOINT AND RECOMMENDATIONS IV. EFFECT ON MONSANTO AND ALTERNATIVES V. FUNCTIONAL FLUID BUSINESS CROUP DISCUSSION - MARKETS, USES - - SOURCES OF POLLUTION - CUSTOMER EFFECT VI. PLASTICIZER BUSINESS CROUP DISCUSSION - MARKETS, USES - SOURCES OF POLLUTION VII. RECOMMENDED ACTION PLAN * VIII. SUMMARY MCMS 096731 6 HARTOLDMON0094956 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.42 Page 7 of 25 There are theoretically 210 different Isomers of chlorinated biphenyls. * Monsanto entered the Aroclor market In 1930 by acquiring Swan Chemioal Company. The first load of Aroclor went out of Anniston, Alabama to General Electric in 1931. Since then, ___ . the market has grown to one of Monsanto*s most profitable franchises. This franchise Is now being threatened A recently found pollution problems which Elmer Wheeler will . now dlsoues, * II. The Problem (Wheeler) - seeuattached Appendix A III, law Department Viewpoint and Recommendations (French) IV. Effect on Monsanto and Our Alternative Courses of Action - As discussed, Aroelors 1254 and 1260 -- the 5 and 6 Cl - ringed biphenyls are the ones most seriously Involved In the pollution problem. Both Plasticizers and Fluids Groups' are Involved as shownj HONS 05*73$ HARTOLDMON0094960 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.44 Page 9 of 25 Ve considered 4 alternative courses of action; (Slide) Alternative It Co nothing was considered unacceptable from a-legal, tnoral^an# customer ^ public relations fc coopany policy viewpoint. Oils Is also the qulokest route to being forced out of business. : Alternative 2i Oo out of total Aroclor business was considered unacceptable from a Divisional viewpoint, but from a Corporate viewpoint may be necessary. Only you- can sake-that decision. All Aroclor products are not aerlous pollutante - many degradfc; there Is too muoh customer/market need and selfishly too much Monsanto profit to go out. To go out would require a write off of Aroolor net investment of $7 K -(iO^/ehare) or If biphenyl included $8.8 It (12jf/share). In addition. Inventory disposition, continuing cost of utilities, and back-up capital and serious manpowers resources reallocation at Anniston. Alternative 3* Oo out of Aroclor 1254 and 1280. nils was seriously considered and may eventually ocour by our motions and ouetomer motions, nevertheless, we feel that segments of this business are defensible or are so "confined" In use that specific plans of action are called for this portion. Our reasons for eliminating this alternative will become dearer as -we outline our action plans. HONS 056737 HARTOLDMONOQ94962 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.46 Page 11 of 25 -10- Altematlve U; Develop specific action plane .tailored to each Business Oroup and each custooer/market situation, - was the alternative eeleoted at this point of time and based on our knowledge from a Divisional viewpoint as making Monsanto act In the most positive, responsible way to society and our customers, as well as our Interests, However, because of the magnitude and seriousness of this problem and Its total is^lloationa for corporate Monsanto, V, Functional Fluids Business Group Discussion; Aim dors are used widely In 3 of our 4 market areas in the Fluids Qroupi - HGKS 058739 HARTOLDMON0094964 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.50 Page 15 of 25 Customer Choices. & Alternatives fc Penalties? Summarising, some of our custODsera have no Immediate alternative, some could change only at sacrifices of safety, or cost or various technical factors. Only In the Industrial field could the customer make an Immediate conversion, PCS Hireat to~ Functional Fluids Business ai>T~Profit t ( i HONS 056743 HARTOLDMON0094968 Case 2:15-cv-0020l-SMJ ECF No. 1-1 filed 07/31/15 PagelD.51 Page 16 of 25 -i FLUIDS BUSINESS THREATENED <1970 BUPQET) PROBLEM 1. Confined to A-125V 1260 only. 2. Spreads to A-1242 and 1248 First to* a)' Industrial Fluids Then toi b) Dielectric Fluids Then to: o) Heat Transfer SALES 4 3*0 IT OROSS PROFIT 41,36 H 4 4.0 H 4 8.0 Tt 4 1.0 H 41570 H 41*6 * 43*8 H 4 *6 TJ 47.35* -------------------- *ons S HARTOLDMON0094969 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.52 Page 17 of 25 fC +( JZ' PLASTICIZERS ( WCRLD-WIDE) SALES, rCLLARS POUKDS 4* // ALL AROSLOKS $ 6.0 71 3^.0 T? $ 2.5 H AROCLOR 125V126G Tjf?E $1.7 H (2t%) 9.5 n (2S^: *0,3 3 (32JO HONS 0561A5 HARTOLDMON0094970 Case 2:15-cv-0020l-SMJ ECF No. 1-1 filed 07/31/15 PagelD.53 Page 18 of 25 -i6- COMMENTS: DISTINCTIONS FROM F.l\ 1, Large number of direot U.S. customers - 570. 2, Customers are emails 23 direct customers - A-125Vl6o sales. 3, 50^5 domestic a-1254/1260 sales through distributors - . difficult to polioe. HONS 05a?<t<> HART OLDMONOQ94971 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.54 Page 19 of 25 n KARXETS ' Carbonless Carbon Paper Hot Kelt Adhesive's Swimming Fool Faints Protective Coatings Pulsion Adhesives Sealants ;/a:: Modifier. ;ion Miscellaneous 1968 SALES B.b H lb. . 5.7 H lb. 1.7 * lb. 5.3 H lb. 1.5 R lb. 3.0 K lb. 2,c Tt lb. 5.0 H lb. MAJOR AROCLOR USED Aroolor 1242 Aroelor 546c Aroclor 125-:) Aroolor 5460) Aroclor 1254) Aroclor 5460) tvX .* .*>+ 1*1 1 Aroclor 1260} Aror._c, 1254) Aroclor Aroclor Aroclor 5-icO} Aroclor 1'.>' Aroclor lai;*1 J >0.'. c&Jor customer of /.reelor lik'd sold * i. 1;,- of done;,tie Arociore"sold -ihrou^.v .-ori-utort,, 0* HARTOLDMON0094972 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.55 Page 20 of 25 if POSSIBLE CONTAMINATION SOURCES f FLASTICI2BRS "i DEOREE OP . CONTAMINATION Host t r Least MARKET APPLICATION SOVRC? Coatings - Marine Palnta) Leaching Water tank --f lining* J Coatings . Swimming Pool Leaohing.-Paints ' Carbonless ' Carbon paper -. Vaporisation Wax - Vaporization Modification Emulsion Adhesives Contact with product e via packaging. In cineration. Hot Melt Adhesives . Contaot with product via packaging. In cineration. ' Sealants Automotive Long-term leaching Construction Joint sealants 1 IS A-1254 /1260 USED? Yes Yeo Uo Yes Yes No "KMSyTSt ~ 1. Unlike fluid*, Aroclor plasticisers are combined in;o plr.a'iics to produoe^the final product - therefore, far less nobile. y. Problems suoh at wastea from our manufacturing plant-, rt:v^c-v.-rt plants uid and leasing of drums common to both group ji* Jb.-^rlor protective coatings are not considered a high c- sow. c, ' .. ' ' **v" V:.. .;\*.ration of Aroclors during plant processing oi- \ui ' ?r- -..vv. E^ln will :;e.sh Vfcp.n tick to earth. HOhS oss1 HARTOLDMON0094973 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.56 Page 21 of 25 i ii PLASTICIZER BUSINESS THREATENED PRODLiK 1. Confined to A-1254/1260 type only. 2, Sprsa-s to all chlorinated biphenyls. b. Sp/oicb to all PCB's and all" chlorinated t('.phenyls SALES RETAINED* *5.3 H * O.P. RETAINED (LOS?j *1.7 H (-*0.8 7?) *2,0 ` *0.6 E (-*1.S R) 0,0 0.0 (-*2.5 K) on prospects. C.,'S . .'-tsticr.aera sell Aroclor 1262/V+65 which are v-.%- c-.ofee to A-1254/1260 and these have been lneiu'-ei i A-I25V1260. HCtiS 05 HARTOLDMON0094974 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.58 Page 23 of 25 RECOWMENDED ACTION PLAN 7. Continue end expend blodegratatlon test program with Aroolor eerie*, particularly 1242, 1246 end 12^4. 8. Continue toxioologieel test progrem. 9. Accelerate present analytloal test progrem. 10. Determine feasibility end cost of eliminating 5/6 Cl2 in Aroolors 1242 end 1246. (3/70) 11. Study Incineration products. (3/70) 12. Develop business plan to offer* - Monsanto Fluid Reclamation end Recovery with Xnviro Oiem (4/70) (Reclamation already underway at Flndett.) I .0H5 HARTOLDMONOQ94976 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.59 Page 24 of 25 WHAT COULD WE EXPECT PROW THIS PROGRAM? - Through thla action program, Monsanto would expect to; Retain or oonvert a good portion of our business and Profits; PROBLEMS a. Confined to A-1254/ 1260. b. Spreads to A-1248 and 1242. CONVERT OR RETAIN SO,3 K 10 H H SALES OUT OP PRESENT 22 K 22 H ODDS OP SUCCESS TOjC 60X 2. Oaln further valuabls knowledge and tine to; a. Learn more faots. b. Protedt our position. o. Make further decisions regarding our program, d. Contribute to overall pollution knowledge. 3. Clean-up the major contributing FCB pollution fmotors. 4. Minimise customer oomplalnts and hardships. HONS OSS*5* HARTOLDMONOQ94977 Case 2:15-cv-00201-SMJ ECF No. 1-1 filed 07/31/15 PagelD.60 Page 25 of 25 The Program Would i -fit* * 1. Co*t acme aoney. JSflt, SAKE - $400-500 K Bet. Capital - $700 K $1.1 K- 1.2 H 2. Expose ur to continued advert* publicity and poaaible la* ulta. 3. Cause son* customer discontent - but such less than an abrupt termination of production. HONS 051193 HARTOLDMON0094978 Case 2:15-cv-00201-SMJ ECF No. 1-2 filed 07/31/15 PagelD.61 Page 1 of 2 EXHIBIT B HARTOLDMON0094979 Case 2:15-cv-00201-SMJ ECF No. 1-2 filed 07/31/15 PagelD.62 Page 2 of 2 October U, 1*J7# prolonged expoeure to Arcelor Tcporc ej voleed it hlfh temperature* or by repeated oral Infection *111 lead to eyetealo toxic effeote. Repeated bodily eentcet with the liquid ri Aroelore aay lead to an acoe-fom skin eruption. Suitable draft ventilation to oontrol the tapora mind ot elevated tesperatureo, - well protcotioa by aultable gaxweat* 1 from exteneive bodily oontaet with the liq uid Aroolore, chould prevent any untoward ^effeot/ Xa talking with Dr. Solly before then# three parofrapho were written, we agreed that they night it well be phraeed eo that they could be need act only la the Arcelor booklet, but quoted la correspondence ae that may bo ncoeeaery. L.A. Part Attachment 3-2 HONS 061332 CV96~J~QMQ"-E DATE 04/02/01. PUFF EXHIBIT NO- 077 HARTOLDMON0094980 Case 2:15-cv-00201-SMJ ECF No. 1-3 filed 07/31/15 PagelD.63 Page 1 of 3 EXHIBIT C HARTOLDMON0094981 Case 2-.15-CV-00201-SMJ ECF No. 1-3 filed 07/31/15 PagelD.64 Page 2 of 3 COPY Dr. D.V.N. Hardy*''' Dr. H.R. Newman. Monsanto Chemical Company St. Louis, Missouri September 20, 19?? Dr. J.W. Barrett London Your memo September Q to Mr. Nason *- AROCLOR TOXICITY Howard Nason has given me your memo of September 8. I will be happy to discuss this with Dr. Newman during his visit here. I think, however, there are several points that I can answer you now. You comment upon the difference in toxicity between Aroclor 12?V and 12^2. This is not particularly surprising because in the earlier work it was found that toxicity increased with chlorination. Of course, from the standpoint of vol atility in the case of inhalation or absorption from the gut from the point of view of ingestion are important. Frankly, there was not too great a difference between the two compounds, however. As you know, the maximum allowable oonoentrate is 0.1 ml/cubic meter in the case of 12?4, and as high as 10,0 mgm in the case of 1268. I think the former is too low and the latter is too high. In this country they don't use the MACS very routinely, but certainly in England I think it would be alright to consider 0.2 mgm/cubic meter as perfectly safe. I don't know how you would get any particular advantage in doing more work. What is It that you want to prove? I believe your work should be directed towards finding out what the concentrations are of Aroclor during different operations whether it is industrial or painting. The re ports you have seen from Kettering Laboratory are the re sult of approximately 21?,000 to 220,000 expenditure by MCC MCC's position can be summarized in this fashion. We know Aroclors are toxic but the actual limit has not been pre cisely defined. It does not make too much difference, it seems to me, because our main worry is what will happen if an individual developes any type of liver disease and gives a history of Aroclor exposure. I am sure the Juries would not pay a great deal of attention to MACs. PLAINTIFF'S EXHIBIT I HART OLDMON0094982 Case 2.-15-CV-00201-SMJ ECF No. 1-3 filed 07/31/15 PagelD.65 Page 3 of 3 SQEL Page 2 September 20, 1955 AROCLOR TOXICITY We, therefore, review every new Aroclor use from this point of view. If it is an industrial application where we can get air concentrations and have some reasonable expectation that the air concentrations will stay the same, we are much more liberal in the use of Aroclor. If, however, it is distributed to householders where It can be U3ed in almost any shape and forth and we are never able to know how much of the concentration they are exposed to, we are much more strict. No amount of toxicity testing will obviate this last dilemma and therefore I do not believe any more test ing would be Justified. Let's see what our discussions with Dr. Newman and yourself bring out. HEKik R, Emmet Kelly, E.D. HONS 095197 HARTOLDMONOQ94983 Case 2:15-cv-00201-SMJ ECF No. 1-4 filed 07/31/15 PagelD.66 Page 1 of 2 EXHIBIT D HARTOLDMON0094984 Case 2:15-cv-00201-SMJ ECF No. 1-4 filed 07/31/15 PagelD.67 Page 2 of 2 From Monsanto Chemical Company ccMr. Mr, J. E, Crosce -fCrumm, W, Lieben Pnit A| St. Louis Mr. R. M. Webber ft CQItDOh JflAA Lf Dale November 14, 1955 To Mr. H. B. Patrick Reference Al Krummrich Plant Subject DEPARTMENT 246 (AROCLORS)' It la the opinion of the Medical Department that the eating of lunches should not be allowed' in this department for a number of reasons. (1) Aroclor vapors and other process vapors could con taminate the lunches unless they were properly pro tected. (2) When working with this material, the chance of contami nating hands and subsequently contaminating the food 1b a definite possiblity. (3) It has long been the opinion of the Medical Department that eating in process departments 1b a potentially hazardous procedure that could lead to serious diffi culties. While the Aroclors are not particularly hazardous from our own experience, this is a diffi cult problem to define because early literature work claimed that chlorinated biphenyls were quite toxic roaterlalB by ingestion or inhalation. In any case where a workman claimed physical harm from any contaminated food, it would be extremely difficult on the basis of past literature reports to counter such claims. HARTOLDMON0094985 Case 2:15-cv-00201-SMJ ECF No. 1-5 filed 07/31/15 PagelD.68 Page 1 of 2 EXHIBIT E HARTOLDMON0094986 2.15-CV-00201-SMJ ECF No. 1-5 filed 07/31/15 PagelD.69 Page 2 of 2 at. Uvlt/ Mlitourl Hr, H. X. APBUtron* Robert* Building . Jonuaiy 21, 1957 ttus'ra,f 0. . Buchanan - Robte* K St Hatton * H.O, r h, Ltngenreid-R&bta, H. f. Uttaingap-ftobte. o* ** Bido*aahinttfl,s. rffiMUL ISO pr. Traon and 1 epant an aftomooci with the Navy people to distuat Fydraul 150* Stioae proeant Mr* Captain Shcrvc, Captain Aivia# Captain teaclcra, Coraend*r lc*l and Xr, MleMjr Albert, They diaevoaed tbalr information con- ooroitw rytJraul 150 which vat obtained at the Naval Xnatltut* or Habioal Roaofci-an, While report# were not available, they had the follwrthc tr*r*1 data* . nor. appllontlona of rydrau) 150 eaueed booth li, oil of tu rvWjltc tested, (Tho amount administered was net glvon,) A Ilka aaount of Collulubc 220 did net oauee any dattho. n* lrholction of 10 nllllsrew of Pydreul 1&0 par eutio wUr w approximately 2 tenth* of a part of the Ai'oeler ceaponest per million for ft hours a day.for &o day# oeuoed, ttatiatiealiy, definite liver dftaage.'* o natter ftow we diecucied the oituotion, It was iapc-oaiblo to ehoaijo the lr thinking that fydreul 15? lo #uv too toxic for uoo In a submarine, It taoy be that aueh eonoentretloos would never be reached in tins oubsnrlnn but tho Jtovy dooe not appear vUllnc to even put tic notorial in a trial run to oae if it will wuric, Zt would appear, therefore# that wo altould diaeontlnue to aoll Pydrsui 150 for this particular Hestton and try to develop a hydraulic field without Aroeior ao one of it# oanponento. In this ocnnoction, Gslielube 220 la toot uied in a submarine but it was weed in thlo teat wvely ti a yardstick. n Navy aaid they did not have tay mnpotitive fluid far enough aloes englneering-wlae to even eonsldor the tosieity reauem R. teat Kelly# H#t>. MOWS 095640 HARTOLDMONOQ94987 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.70 Page 1 of 28 EXHIBIT F HARTOLDMON0094988 case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.71 Page 2 of 28 February 27, 1967 Dr, M.,J. Thomas. Research Division Building Ko. 33 national Cash Register Dayton 9, Ohio . Dear Dr, Thomas: Attached is a photostat of the original paper of . Dr. Jensen in Sweden, relating to polychlorinated biphenyls. I will be happy to have your ideas after you read it. ' ' ' . As far as the section on' toxicology is' concerned, it is true that chloracne and liver trouble can result from.large doses. Whether or not this is at all relevant to small quantities existing in human fat is, of course, an entirely different question, At any rate, I believe before we worry about the toxicological part of the problem, we should settle the analytical part. . ' ' Sincerely, . REK/ln att.. R. Emmet Kelly, M, D. . Medical Director '. '. . .. 0111892 1 GNCR 0000013 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 2 of 28 Document 582-5 JDGFOX00000037 HARTOLDMON0094989 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.72 Page 3 of 28 fi 4. yO o c> lir Chairman, Ic^Aioe and gontloaon. V->- In honor to our Brittieh ^oot I will "try "fco hold -fcliie locturo in * _ Ao tho titlo ol thie lecture etatos, I am -today going -to toll about tho &I ocovory of some Hi thorto unoboejTod chlorinated hydrocarbon & Having up to oight chlorine in the nolooultf cmA found4 m rcoiduo ana-- lyulo, 5?bo chemical nrua of polychlorinated bifeayls ( In tho following ooll&d PCS)* TO got familiar with POB I will BtBJt with tho ohoaiietry and iioxloolbgi. ' - - jphomistry -. tThe jaBia- oharaoterietio of PCB is 1 * Theinr very high stability. A an oxomplo they can bo boiled with nitrin acid without being destroyed, 2* They aro Ijardly rnetabollo&d in living organism* 3f more than 4 chlorine are ^pretjoent they Bxe non infloanable. It is oloax thattheee .[ ( threo oh&reio't&rietiCB does it eaoy to undoretand that when they havo . .r ` onto rod tho ^Living organism'.' the will h aye a low perBiatenoa But it i` difficult 'to explain How they find their way into tha living organicu. Ono thingop etna to bo el nr, they don't oome from egri cultural hbo, but from bl tochnioal one and moat probable it ftomee to the nature via wastes that are tried to bo burnt up, -because then wo Have them, at .onco * in tho air, beo&uoe of thoir non inflamatilllty. , ...... ^ - ; / . : .Toricolop;i - *-. '* ' / Tho PCB wore introduced in 1929 and. am early as 1936 Jones.and Aidon reported that 23 out of 24 men employed in manufacturing of PCB eufferofi from <m nemo form- eruption of tho skin. - Acne did not appear -until 6 to 3 months after the material was first'used, in 1937 Brinlter reported that rats esepooed to chlorinated biphenyls in concentration of BppXoxi** mately 1 mg/m^ for 16 hours a day fo^ 6 woefce chowdd- damage of tho livox. After that time the cdlonod toaoeatratlon of '3PCB in air' is-0,5 wg/n^* . j } (Per !>3>t the came value is 0*5 -- 1 tog/m^)* Tho same authors finished their oxporicionta in 1930, and related that thee compounds have an lnjourlcuo effect, manifested oOlely in the liyox. Chlorinated bipohnylo} C) appoort-d to. be^.th* - moot -Lnjourloua chlorinated compound o of all tested* ( 14 * GNCR 0000014 ozmzo Case 2:08-cv-00016-WCG Filed 08/28/09 Page 3 of 28 Document 582-5 JDGFOX00000038 HARTOLDMON0094990 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.73 Page 4 of 28 i i4 3 ii ! 1 ' o - O' Gsreenburg, Mayor and Smith 1959 reported that FOB and polyohlorlnated nuphtolcnoa are blamed for the death of three young Yforkera, and th^t^ prpgnaDt women and poraone who have at any time had any livor diseases rvre particularly ouepeotlble. & Wedol, Hallor and Sent on gave 1942 animals PCB including adminiotration by inhalation, igo ation and skin abBoxbtion. HiotologioEH oxwainatioo Of t>ho viBOora showed important toxic effeot only in the okin and livor, and the dogonoratlon effects in the live** are- essentially the some what ever wao'tho method for the* administration. Faribok (1955/ found as an occupational poison in the electrical indue try, mixed totra and pouts ohlorobiphenyl cauaoa Xolliculitia, ooraodo, pypderinia and other elcin affections, and that It a principal toxic of foot Is fatty degeneration of the liver, r Wilier (1944) injected 69 mg FCB (4 end 5 chlorine) euhoontaneouoly in 52 guinea- pigs. Bight to ton days after injection, fat droplets v/cro noted in the liver cello, and after 16 days they were present in moderate or very large numbers. Rabbits and rate'were also tested in this lnvoati-- i, \ g&tion, as well as the PC was administotsd both continoualy, oubountin- ously or ingested in the food* In the feeding experiment G guinea pigs rooeived 2 doses of 69 mg of the chlorinated .biphenyl 1 week; apart* Death occurred in 11 to 29 days- Finally Mo I^ughlin 1964 reported a method to toot the chemical toxicity and teratogenic effect by injection into the yolk sac of fertile eggs prior to lnoubatlpn, PCB tob found between the eight compounds among IOO tented having the highest order of toxicity* Ho hatch waa found at a level of 25 mg pr egg. At a level of JO* zng per egg, ne ohiok hatched out of 20 Injected eggs, but died 2 days later- Some embryo which wore examined after they died, showed weak deformities (often a short upper brak) and growth retardation* liead acetate resulted as an example in no hatch - at a level of 1 mg per egg* Autopsy of the dead embyoe have showed exten dive brain damage* Mercuric chloride showed no hatoh even at a level of , O,5 mg per egg* As the analytical oheaiBtxy is a pronounced service science I have boon In contact with many scientists from other fields during the work with residue analysis, and I have always found this contact very stimulating `' . ,, for my own work* 23his co-- operation often demands that we are talking tno same scientific language * Because of this need I will today try to give a lecture in low level analytical chemistry for biologists^ illustrated c by the residue analysis of polychlorinated biphenyls. fhe lecture will bo divided in the following three sub-dlviaionei . GNCR 0000015 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 4 of 28 Document 582-5 JDGFOX00000039 HARTOLDMON0094991 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.74 Page 5 of 28 o OO 1. ahemiotry ox and their tocloology, 2, Analytical method a for residue analysis and proof of Btructur&o, 5* -Behaviour of PCXB An nature, dlfforenoles in metabolising xato of -the PCB oomponants, potenoation in an eoolo^leal serie, ooa- oentration lovole and eromplos of eamploo which have boon proved to con tain PC, A residue analysis can toe divided In* * 1*3Ex traction of the pesticides from the biological material, * followed by a oeroful oleanlng-up to take away Interforring eutstanoes, moat often fats. *, 2 Identification analysis by moan of gas ohromato^raphy, Thin-- ^' layer chromatography and mass apeotrometry. 25, Quantitative analysis* '. ' . * At an ecological laboratory in Eikamuedot in Stockholm 1--2 g of a sample o ia cut out of tbo biological material and transferred into a Weighed and carefully cleaned test tube, and stored at --20 until analysis. Smaller s ampi o a hove been used, min. 5 mg *>f body fat, and with dry materials eueh as hair, feathers, pine needles TOO mg are sufficient to reach the desired lO ng/g level in residue analysis. In cases dT water proofs 1 1. is ueed for reaching the 10 pg/g. level. B.l(hotnog) In order to facilitate complete extraction of the fatty materials from the biological sample, the doulbe amount of finely powdered anhydrous * magnesium sulphate is added to the sampling tube, and the whole is'hono- gonlscd with an ineertable homogervizer'. Ihe resulting powder is traneferred into a special Soxhlet extractor. After 4 hours of extraction th /solvent #Sox.--tube) le evaporated, leaving the fat In a am aXI weighed test tube at the bottom of the extractor. Shis, fat is dissolved in methylene chloride An ouch a way that lOO ul (0,1 ml) contain 20 xng of fat, The lOO ul solution As now transferred to a little object glass, 3 x ? cm, covered with a sllioagel layer 1 mm thick, in order to form a lino 0,7 cm from one end of the slide. Inserting this thin-layer plate into a vessel ( the bottom of which is covered by a few mra of methylene chloride, the 3 solvent will be sucked up in the dry layer of eilicagel, and at least reach the upper end of the plate. The fact Ao that the fat has a greater affinity to the powder on the plate than the chlorinated hydrocarbons have, -- and we get a separation. The fat being more polar than the chlorinated hydrocarbons will never go longer than 2 cm before the * 02A1422 GNCR 0000016 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 5 of 28 Document 582-5 JDGFOX00000040 HARTOLDMON0094992 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.75 Page 6 of 28 ,, O23.0TCIOS -tuba 5 Bb 6 o io o O aalvont x-oachoe the uppar poxt ot -the ElaBa. Tho fx'oni of tho fat appoara ^ul-fco vlolblo & lamp f eoadi with the old of a iraaor bl&do tbo aond above the fat lo transferred -to the olutlon tub md *th ohloxlnatod blooldes absorbefl on "the powder oan no\7 be eluted by ono ml or other. The concentration ie miffiolent for detection or tho chlorinated hydrooarbone down to tha TO g level. S?ho noxt stop in tho analytical procedure oonoerna the Doj>aratlon of tb dlfforoat chlorinated hydreoarbong that tbe eamplo may oontaln. An a natter or fact, thlc n broubloBome tack. It le entry t oirtiiouto what In not proaont, but: r difficult to y exactly one i prooent. Y/e puffer from th negative dowonatration, as will be ohorm later* ,, At first a fovr vordfl about: the eoparaticn of the coaponente preeeat in tho pa^ple. and their visualisation. r Ih Boparatlon o aocoapliuhod by mean of a gas chromatograph fitted "to a detector -that: tronofere its impulse to a recorder* Tho ay atom io shortly .de&cribcfl* _ A spirally formed glass -tube with an innor diameter o 2 nun and about 2 m in length ie filled up by a support* covored with an thin layer of an oil* The tube is heated in the chromatograph to about 200. Through the tube a stream of nitrogen oontinously follows. When about 10 ul (l/lOO of 1 ml) of tho purified sample is injected intc& the tubs* the components of the eampl will be vaporised and go forward through the column with the gas stream* As the constituents hava different affinity to the column billing they dll pass the column with different spood and, it will talce different time for then 'to roac.h tho dotoctor at tho other nd of the glass tubs* It tho temperature and the nitrogen flow are held constant this time, tho retention time, has a specifiovialu for a certain compound* This is true, but unfortunately it is also a fact that two components can havo tho - same retention time* This is one of the bigger problems in gas chromatographic analysis of unknown samples, as will soon bo obvious. To maire it possible to estimate tho retention time it ie necessary to Viouallaa the chlorinated hydrocarbons. 3?or that purpo.se more or loos epcoifio detootore are used* The detector most often.weed in postioido onalyelo is tho ao called electron oapturo detootor, which can detect down to one pioogram (* lO*"'*2 g of linden). Unfortunately this detector is not epooifio for chlorine, bu gives answer also for cocygenoontaining compounds. The reeponsQ hero ie mucj; lower but can be counterbalanced if the conson- tratlon of the oxygon containing is much higher* 0201*23 Tho principle for tho electron capture detector ie shortly; At the end of the gao ohrofflatographio tuba ia placed a little tube con-- tn-iainc a foil. wSn of -tl tarlwro triildo. This in an-t-tuS laat. The U-- GNCR 0000017 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 6 of 28 Document 582-5 JDGFOX00000041 HARTOLDMON0094993 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.76 Page 7 of 28 O !o \ ii V2* o particles arc reacting with, the nitrogen noleculee coning from the ooluon. Shen wo got *- Nz o'" + I?!,, Ovaxr the detector we have a tonaion of 90 violt and by mean of the electrons we will get a oonotcmt elootric&l ourront over the detector, ThiB standing current a a trenaferrua to a ono--mV recorder as a constant haseline. When now a chlorinated hydrocarbon Xoavbo the column thlo compound hao a high oXfinity to the electrons and this moeuio that - the umewt oX eXoctrons will diminish) and they will diminish proportionally to the ampwnt of chlotlno. The elcotriodl ouiront will uleo diminish and this le noted as a peak on th recorder, The area of tho peak will be proportional to the amount of substance in the ample, By moan of a standard injection it ie now possible to compare the reton-- . tloxi time and the area of an unknown component with the retention time and area of the known standard* As said before this detector is not sped*r*--.fio for chlrino but anyhow very useful, because of its high sensitivity* Tho system described has, as we have seen, two disadvantages; | 1 * Two different compounds can have the same retention time and bo detected as one peak, '. 2. A registrated peak doss not need to be chlorinated f because the detector is not specific* If the sample ie injected in two different columns with different chemical properties we have increased' the chance for a good separation* If two compounds have the same retention time on one column they may not have it on another* When a result scemo doubtful, -- if the compound being responsible for a certain peak contains chlorine or not -- it is poesiblo to oonqontratc tho sample and onalyoo ,lt on a lose sensitive detector suoh oo the mierocloumetrie one, which is specifio for chlorine. Tho compound is burned in a furnace and teh generated chlorine titrated directly, s-i- As la seen from the two last mentioned possibilities it is anyhow possible to get a rather high degree of certainty in residue analysis, but it is a rather time--oonsumoing work*When using this method just described, wo # very often found that many chromatograms from residue analysis of most carefully purified samples atlH contain a large number of peaks, tSa^iy of these have retention times that do not agree with any knovm chlorinated pesticides, or their metabolites, This chromatogram con serve as an example* It was obtained by residue analysis or a sea-eagle found deed in the archipelago of Stockholm, In the range of the known peaks, there arc bo many unidentified that there also must bo an obvious riok of the known peako to bo covered by unknown ones. If thin remark in fniinri +rm. +.ho T-ot>nr>t.<l -i-ooi1 +.n r~t'F mimv ^*w*S <\n n',f>"-- GNCR 0000018 V7VT8Z0 \ Case 2:08-cv-00016-WCG Filed 08/28/09 Page 7 of 28 Document 582-5 JDGFOX00000042 HARTOLDMON0094994 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.77 Page 8 of 28 titabivo onatfc s must be brought into Quee* Jn. In the present Invoeti. Ir gation it io shown that most of the unknown peak of chromatogram at rooiduo walyslo of chlorinated pesticides are due to polychlorinated blphohyle, - I will how chromatogram of human fat enalyBofl on a eo called SP 96 oolunm# the moot often used type In postlcido analyse & Early retention tlines wore In acrocraont with CUE, ICDTop and DDTpp. Woxt slide ohowo the same sample analysed on a column, Now the former 2 JD2XP peaks have ' divided Into 4 peaks,and two of them are still in agreement with DD^pp ' and op,, the two now were imJcnown, logically, these unknown components were at first thought to be metabolites of the insecticideD. Against that spoke that neigther treatment ttok* ooxj cent rated eulfurio sold in other, This treatment made it rather are that the compounds did not contain osygen. In Sweden residues of organic wax cury have been investigated rather intensively in the Swedish fauna. - As those oompounde give very high responses to the electron capture detec tor it was also investigated if the unknown peaks could have a mercuric origin. * It was found that the wator--ecological series had high residues Of both mercury (v/eotermarlc,Johnelo) and the unknown ones, when the same indivi duals were analysed. Anyhow, the pheasant suffering most from mercury poisoning only contained low levels of electron capturing compound a and those belonged ` * ' to the normal inooctlaides. Therefore the unknown oould hardly be mercu rials or metabolites of'them. Ac the eagle sample giving the chromatogram shown in fig. ID, could be estimated to contain I3DT and 3XDE up id 1? g/kg in extractable fat, the amount of unknown compounds also- were suggested to be in the eafflo range, and tehn sufficiently high to do a run on the combined gas chromatograph -- Stas spectrometer* If this oould be done aucceesfiully it would be possible' to get very important informations about the chemical nature of the unknown, for 5c. the -aolekulai* weight numbers of chlorine etc* This method is up to now the method giving the highest degree of certainty in the low level analytical chemistry, amounts of lOO ng substance being enough. szvmo Ag this method for identification of totally unknown roaidueo surely will be very important in the future (when f.ox, a biologist has found that fishes in a river die) it raeybponeible by raezm of this method to find out exactly what compounds are responsible for the death, ?Di* this reason, I will go into come detail with this method* In the actual case we took the extract from 20 mg eagle land concentrated GNCR 0000019 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 8 of 28 Document 582-5 JDGFOX00000043 HARTOLDMON0094995 Case 2:15-cv-0020l-SMJ ECF No. 1-6 filed 07/31/15 PagelD.78 Page 9 of 28 O ' <T it ekb muoil as poeelble aud made an cation on the gas chromatograph cowbinod with tho mass spectrometer. Xhe result was the ohromatograni fihovm on the next; slide# Every time tho recorder ehowod that a compound ie leaving the ooXrnm^ the effluent is led to the mass spectrometer. Now 5uat a fow words about tho mass spec# ** o 1:0 Tho noleouloB leaving the column, are bomded with electrons at E. Wo have &ovr got the molecule positive oheurgodf but with the same maos na before* V Shi a M+ is oocolorftted in a vacuum and will then get a kinotie enorgl, . whero is the speed. Next comes the magnetic field that tries to bend the direction oX the molecule. Sfhie will be big for.a email molecule and less for : If we have a sieve in the other end we can directly read the nolcoulax weight. Added to this parent molecule M+ we will alec got addition in-- formations) because of the fact that M+ may npt bo ethbls, a port of . them will be broken down before they reach the sieve in the other end. y.ex. M Dm. M _ Cci? Mass speotrogroms from the different unknown peaks in the agio sample as shown. Tho mass numbers equal to the molecular weights of tho unlcnovma could be read to 426,392# 356# 324. Xstonishingly) the moleoular diffe rences wore constantly >4 mass unite. This difference shows a tfemilerity in origin of the unknown. Now tho fact is that chlorine eseiuta as a mixture of two isotopes with atom weights 35 and 37 in proportion 75*25. If the molecule has one chlorine, this will give two molecule peaks, one Xor Cl^ and one for 01^^. If there, are two chlorine wo have the possibility of one with only 01^^, one with both Cl^e, 37 and one with 2 C137 . therefore 0201426 GNCR 0000020 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 9 of 28 Document 582-5 JDGFOX00000044 HARTOLDMON0094996 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.79 Page 10 of 28 I 1O 1 i 1 ;V 3 I :d 2Jie relation of the .poaJce found or* different inase spec wore;. Hole evilar ?24 550 592 426 Chlorino content * *_ 5 ' 6 7 . Au ospl&n^tion or the fmniaAeyity of the compound s btm he given if one mibotanoe A built from the former by eubetitu-bing a hydrogen with chlorine , HH , m+ ^ 1a BC1 MCI M++ 34 SPbon it 1b posib3 to calculate th moloCular weight or the parent hydrocarbon i *3 -- x + sc.Mjj * where is the moleoulftr weight of the couponont having x chlorine atoms# y.ex. for m *= 426 sal e ci we will get - 426 -- 2BO *- 3 a *154 and equal with the other aolekylB. ^ ffho moot probable formula with carbon and hydrogen giving this molecular weight ie O-j g ^"|o "this ocul only be safiefied when the parent-hydro-- carbon la biphenyl, and the vmkn.OY,m being polychlorinated biphenyls. tPhie explanation was later fully Verified by injection of a synthetic PBO on the mass npoo, Furtheywore'extensive gas chromatographic investigationa proved that the HBG standard gave peaks with the same retention time as the unknown ` poako from the eea eagle. With the method just described I suppose that y/g have a new possibility to study the residues in the air because the pine needles can nllv/ayo be . We have had great difficult; in quantifying the PCB, but when getting a little more time A*t will be poaaible, We have done a few oalcollations on a few' species, and 1 uppose they are right within e. faotor 2* We have found the residue to be from . It has been my statement here to-day to present this method for etudios of defiling of the nature, find with this method a new typo of dofilinj agents ha boon found to be present in nature, and. a few experiment have shown where they may bo found * How this method is going to be used in the first hadn to estimate how the situation is An nature as a whole, and An the other hand to find the leaks throug whAoh they find its way to nature. Soflm maybe ore present here today to got neve about the leak, and to then 1 wont to say come baoJs in n yea*. 028i.e7 GNCR 0000021 Case 2:08-cv-Q0016-WCG Filed 08/28/09 Page 10 of 28 Document 582-5 JDGFOX00000045 HARTOLDMON0094997 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.80 t . t v.2r* So nmol* X think X can cay again that the BOB hardly can come from agriculture As uppoft for -this BUggeotion X can Bay that we have round PCS in eaglo foathere from Bile emu sect from 1944r where hardly any chlorinatoA postloldoa were used in agrioultruo One more -thing that X find important; to say is that in contrast to tire aeroury problem this dooc not Doom to bo a pure Swedish problem. I have ;}ust otudied chromatograms -talcon from Xondon air, Cmd they cloarly oontain POBr and dr. Holdoa han told mo- that bo alao find "theta in hie flehsaaplee# Bui finally in waiting ttt moro. rosulta inohould lilce to point morething. It ia proved that PC combe to aaturo, wo ctont laaow now where they are -uaod, but they are voxy poreiotaat to chemicals and to fir. 1 think: the poison 3ury should try to state that a content of BOB ball always bo found in cut. open &edera tion. . O io GNCR 0000022 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 11 of 28 Document 582-5 JDGFOX00000046 HARTOLDMON0094998 Case 2:15-cv-002Gl-SMJ ECF No. 1-6 filed 07/31/15 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 12 of 28 Document 582-5 JDGFOX00000047 HARTOLDMON0094999 GNCR 0000024 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.82 Page 13 of 28 ocviezo i ii f o r> v<*:> Vj V Is f o i j. ' ,? fn i n . O 2o o Case 2:08-cv-00016-WCG Piled 08/28/09 Page 13 of 28 Document 582-5 JDGFOX00000048 HARTOLDMON0095000 - C'ase' -2`-4Scev-0'2#i^SMi3:''-w-F N o --fite#07/M/-1S - Page ID .83 " Page 14 -of 28 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 14 of 28 Document 582-5 JDGFOX00000049 HARTOLDMON0095001 GNCR 0000026 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.84 Page 15 of 28 ervi9?o 0Q < QKC) s*. Cs $ CJ o o C un/e f Curve 2 3 Our vs 3 Ourvp. /j (' V> . % tx % x> * v A. 0 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 15 of 28 Document 582-5 JDGFOX00000050 HARTOLDMON0095002 Case 2:15-cv-0020l-SMJ ECF No. 1-6 filed 07/31/15 PagelD.85 Page 16 of 28 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 16 of 28 Document 582-5 JDGFOX00000051 HARTOLDMON0095003 GNCR 0000028 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.86 Page 17 of 28 IP .sM ^**- Ob o . QkQ $ kS- <Q* <5: o .CUfM-d <X !O Cvrrc g. $-ur-u. o **> Qkc> vI o<X*. N M % *> VO I 0Z8V *<31i Case 2:08-cv-00016-WCG Filed 08/28/09 Page 17 of 28 Document 582-5 JDGFOX00000052 HARTOLDMON0095004 G N C R 0000029 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.87 Page 18 of 28 Case 2:08-cv-G0016-WCG Piled 08/28/09 Page 18 of 28 Document 582-5 JDGFOX00000053 HARTOLDMON0095005 GNCR 0000030 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.88 Page 19 of 28 o o o Case 2:08-cv-00016-WCG Filed 08/28/09 Page 19 of 28 Document 582-5 JDGFOX00000054 HARTOLDMON0095006 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.89 Page 20 of 28 GNCR 0000031 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 20 of 28 Document 582-5 JDGFOX00000055 HARTOLDMON0095007 G NCR 0000032 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.90 Page 21 of 28 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 21 of 28 Document 582-5 JDGFOX00000056 HARTOLDMON0095008 G NCR 0000033 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.91 Page 22 of 28 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 22 of 28 Document 582-5 JDGFOX00000057 HARTOLDMON0095009 G N C R 0000034 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.92 Page 23 of 28 ovyT9?o i^ ( Case 2:08-cv-00016-WCG Filed 08/28/09 Page 23 of 28 Document 582-5 JDGFOX00000058 HARTOLDMON0095010 GNCR 0000035 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 PagelD.93 Page 24 of 28 Case 2:08-cv-00016-WCG Filed 08/28/09 Page 24 of 28 Document 582-5 JDGFOX00000059 HARTOLDMON0095011 G NCR 0000036 Case 2:l5-cv-002Gl-SMJ ECF No. 1-6 filed 07/31/15 O Case 2:08-cv-00016-WCG hiled 08/28/09 Page 25 of 28 Document 582-5 JDGFOX00000060 HARTOLDMON0095012 Case 2:15-cv-00201-SMJ ECF No. 1-6 filed 07/31/15 VVTZO " ^ \X v; C V> ^ v5 <r Case 2:08-cv-00016-WCG Filed 08/28/09 Page 26 of 28 Document 582-5 JDGFOX00000061 HARTOLDMON0095013 GNCR 0000038 Case 2:15-CV-00201-SMJ ECF Na l-6w J!:e5i.p7/3,1/15, ;f>ageJD.,96 -Page 27 of 28 r\ Case 2:08-cv-00016-WCG Filed 08/28/09 Page 27 of 28 Document 582-5 JDGFOX00000062 HARTOLDMON0095014 Case 2:15-cv-00201-SMJ ECF^^^SJilert:Q^/^3j15U--.-PageiD.S7 - Page 28 of 28 . 1 S^VI8?0 ' rn 3 r 4 v *^i i T* U Ss h-7. -Q-, <4* ' **V k.: V; ^ /* to >to* \ to y --v V> ** {rJ* .-v Q roL. Case 2:08-cv-00016-WCG Hied 08/28/09 Page 28 of 28 Document 582-5 JDGFOX00000063 HARTOLDMON0095015 Case 2:15-cv-00201-SMJ ECF No. 1-7 filed 07/31/15 PagelD.98 Page 1 of 2 EXHIBIT G HARTOLDMON0095016 Case 2:15-cv-00201-SMJ ECF No. 1-7 filed 07/31/15 >agelD.99 Page 2 of 2 MEW SCIENTIST Dec. 15, 1966 "Report of a New Chemical Hazard" A Swedish research worker has expressed concern over the increased mounts of polychlorinated biphenyl (PCS) encoring the air, presumably from industrial smoke and rubbish-dump smoke, and being absorbed by water and taken up. by fish and inter humans. PCB which ia related to and as poisonous as DDT vns detected by Hr. SSren Jensen of the Inetitute for Analytical Chemistry, University of Stockholm, in some 200 pike token from different-parts of Sweden, fish end fleh-spavn throughout the country, an eagle which was found dead In the Stockholm Archipelago, end in his own, his wife's and Baby daughter's hair. As the baby ia only five months old hsr father concludes that she got bar dose of PCB with her mother's milk. It le not known at praaant how much of thla aubatance is dangerous or avan fatal. If It is coaperabls with DDT then the limit would be 0.5 mg per cubic metre of ulr--and, for comparloon, the dead eagle bad at least 10 times ss high s conesntratlon in its body. For purposes of elimination Hr. Jansen has obtained feathers from eagles preserved at the Swedish National Museum of Natural Hlatory educe IMO and haa detected PCD flrat in an angle from 1946. In Sweden, PCB le known to he uaed in electrical Insulations, hydraulic oils, high-temperature end hlgb-preeeore lubricating alia, paints, lacquers sod varnishes, and as pigments In various plastics. It does not seem to be used as sa insecticide. It Is not deotroyed by incineration and may enter the body directly through the akin, by breathing, or by way of food (especially fish). It la particu larly harmful to the liver, and also the skin; this has baan demonstrated by experiments on ales. PCB Is such harder to break down than DDT and there is every mason to suppose that It Is much mors difficult to get It out of the aystme. The substance has also baan detected In tba air over London and Hamburg and also in aaala caught off Scotland. It can therefore be presumed to be widespread throughout the world. ^ ,,0NS 002WB MONSFOXOOOQ3427 Case 2:08-cv-00016-WCG Filed 09/30/09 Page 1 of 1 Document 668-3 HARTOLDMON0095017 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.100 Page 1 of 6 EXHIBIT H HARTOLDMON0095018 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.101 Page 2 of 6 1098 NATURE. VOL, 220. DECEMBER 14, 1968 Polychlorinated Biphenyls in the Global Ecosystem by R, W. RISEBROUGH P. RIECHE Institute of Marine Resources, University of California, Berkeley 94720 D. B. PEAKALL Division of Ecology and Systematics, Cornell University, Ithaca. New York 14750 S. G, HERMAN Department of Zoology, University of California, Davis 95616 M. N. KIRVEN San Diego Natural History Museum, PO Box 1390, San Diego,California92II2 Polychlorinated biphenylsare widely dis persed in the global ecosystem, and are powerful inducers of hepatTcenzymes which degrade oestradiol. Together with other chlorinated biocides, such as DDT, they could account for a large part of the aberration in calcium meta bolism which has been observed in many species of birds since the Second World War. Declining populations of raptorial and fish-eating birds in Great Britain1 and North America2 have produced thin-shelled eggs since the period after the Second World War, A widespread change in the chemical environment which affected the calcium physiology of these species evidently occurred at that time. The chlorinated hydro carbons, which came into general use in tho IS)40s, may now bo tho most abundant synthetic pollutants present in the global environment*, Tliin eggshells have been found only in species which accumulate high concen trations of these compounds: relatively uncontaminated populations of those species continue to produce normal eggs1'2. Calcium metabolism in birds is intimately related to reproductive metabolism and is to a large extent regulated by steroids such as oestrogen and vitamin D1. The deposition of medullary hone, the chief source of calcium during egg and eggshell formation, is controlled by the steroid sex hormones*-', and horns deficient in vitamin D lay eggs with lower eggshell weights*. Steroids arc hydroxylated anti thereby degraded in vivo and in vitro by hepatic enzymes induced by exogenous, lipid-solublo substances, including the chlorinated hydrocarbons9*11. The relatively small amounts of chlorinated hydro carbons required to produce this effect8'11'15-13, and tho discovery that small amounts of some of the DDT compounds are oestrogenic*'18'20, have made irrelevant much of the parts per million approach to pollutant ecology based on toxicity data alone. In both Great Britain2114 and North America*8 it was the decline of the peregrine falcon which initiated concern about the extent of the harmful effects of environmental contamination. In the United States the eastern popu lation was extinct before competent observers were aware of a general, widespread dcclino25. Breeding peregrines persist in apparently normal numbers in British Columbia33 and in the Arctic57'111. In 1967 we collected an unhatched, abandoned egg of a peregrine falcon in south-western North America, where a small remnant population remains (unpublished work of M, N, K., R. W. R. and S. G. H.). Analysis of this egg (Table 1) showed that it contained almost 5 mg of p.p'-DDE (dichloro-2,2-6w(p-chlorophenyl) ethylene). Unknown peaks present in the chromatograms of the extract of tho egg were unidentified until polychlorinated biphenyls (PCB) were detected in European wildlife18-21. Positive confirmation of tho identification was accom plished by mass spectrometry in Sweden30. Tho retention times of the unknown peaks in the peregrine extracts proved to bo identical with those of several PCB com pounds on DC-200 and QF-1 columns3 and on a mixed FE-30:QF-1 column. Other species of birds and fish wore subsequently analysed for PCB. The chlorine content of several extracts and standards was determined with a Dohrman microeoulometrie detector and a method of quantification of the PCB compounds was devised based on peak heights produced in the electron capture detector related to standard p,p'-DDE3. The DDT compounds are destroyed by nitration13 and p,p'-DDT (1,1,1-trichloro- 2,2-ids(p-chloropheny1Jethane), DDD (l,l-dichloro-2,2-6i (p-chlorophenyl)ethaue) and toxaphcnc aro dehydrochlorinated by saponification with alcoholic KOH. PCB is not degraded by either procedure. Table 1. UHLOaiNAXED HYDEOCARSONS IN NORTH AMERICAN PBKKQRINE Sample PAIOONS Dieldrin Total DDT* Pel'cents ge DDE PCB DDT/ PCB 1. Unhatched eggt Baja California (wet) 2. Second year$ migrant from Arctic Breast maacle (wot) Breast muscle (dry) Brain (wet) Carcass (wet) Care-oss (lipid) 3. Immature, CnUforut&Si Breast muscle (wet) Li ver (wet) Brain (wet.) Brain (lipid) Carcass (wot.) Carcass' lipid) 4. Adult, Cali fornlali Breast miiicle(wet) Liver (wet) Brain (wet) Brain (lipid) Carcass (wet) Carcass (lipid) Oil NM NM 0*87 B2 5 NM NM 001 0r 50 on HS NM NM 0*31 3-7 1-7 50 102 Q9 296 85 70 5,000 14*4 7*7 2-8 36 20*2 300 127 77 49-5 595 85 2,600 97 10*2 94 28 84 98 21 93 19*7 1,420 90 9*4 92 4*5 89 1-5 19*3 92 10-8 160 87 98 80 57 86 31*6 415 87 65 1,080 10 35 4*7 3-5 1*5 1*7 1-0 1*9 1-3 1-4 1-4 1*3 5. Immature11 migrant from Arctic Breast muscle (wet) Breast muscle (dry) Liver (wet) Briin (wet) Body fat (wet) Carcass (wet,) Carcass (lipid) (1. Immature Arctic NM NM NM NM 0*07 0-44 2-3 7*8 1-0 0-43 50*3 0`S 63-7 81 92 83 82 82 016 0*54 0-T0 0 037 3-2 0-80 5-5 14 10 12 19 12 migrant* * Breast muscle (wet) Breast inuse In (dry) NM Id) 89 6-0 0-6 3-4 1-9 Coneentmtions in parts per million wet weight, dry weight, or lipid weight. * mvr residues include: p.p'-DDT. p.p'-PDE. n.jJ'-DDI) (p.p'-TDE), M'-ttOllT!,DPT and ,p'-DPE. NM, Not measured. + Chlorinated hydrocarbon contents of the egg were: 4,700 pg .> : -? >PJ5: 40 e.p'-DDE; 79 p./' DDT; 7-4 1 > !T>; 37 nk P.P'-DPMU; 5 tlicldrin: 12 fig hcptvhtor epoxide. Concentrations were calculated by assuming a volume of 47-3 ml., the average value obtained by measuring eleven clutches of peregrine eggs from California id the Museum of Vertebrate Zoology, University of California, Berkeley, and by assuming a density of 1-0, i Second year female, captured in October on the Texas coast during migration. Pied in captivity shortly afterwards, no apparent cause of death. No body fat.. Total body content of chlorinated hydrocarbons: 39 mg DPT, 10 mg PCB, 0-44 mg dieldrin, 0-18 mg heptaehlor epoxide. Total body- lipid, 7 g. $ S'lnnvigc characteristics of both 3 and 4 were intermediate between those of typically resident California birds and the Arctic race F.p. htpdriw, as described by White54. No, 3 was an immature female of the year trapped in the southern San Francisco Bay area in the winter of 1386. Observed feeding in the area for a week before capture. Pied suddenly after eating a dead gult. Moderate body fat. Total body chlorinated hydrocarbon content: 13 mg DDT, B-8 mg PCB, 0'07 mg dieldrin, (FOB mg heptachlor epoxide. Total body lipid, 43 g. i! Adult female. Trapped in the southern San Francisco Bay area in the winter of 1068. Observed feeding in the area for a month before capture. Pied shortly afterwards with no apparent cause of death and no body fat. Total body chlorinated hydrocarbon content: 32 mg PPT. 48 mg PCB, 1-0 mg dieldrin, 1-0 mg heptachlor epoxide. Total body lipid, 20 g. II First year female trapped on the Texas coast in October. Lost at Ft Mugn, California, the following January and. was shot by a sportsman 3 weeks Inter. Abundant body fat. Total body content: 7 mg DPT, 0-6 mg PCB. 0-05 mg dieldrin, (1-17 rag heptachlor epoxide. Total body lipid, 11.0 g. ' * First year female trapped on the Texas coast in October, Died shortly afterwards of lieat prostration. In Table 1 are presented the results of analyses of peregrine falcons which died from a varietv of causes i960 Nature Publishing Group HARTOLDMON0095019 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.102 Page 3 of 6 NATURE, VOL. 220, DECEMBER 14. 1968 1099 shortly after being trapped for falconry. Significant amounts of POB wore present in Arctic peregrines only a few months old (Nos. 5 and 6), but higher residues were present in a second year Arctic bird (No. 2) and exceptionally high residues were present in an adult trapped in California (No. 4). In birds 2 and 4 the total lipid reserves were very low, and in both the brain concentrations of DDE and PCB were high, perhaps at toxic levels. Fat mobilization during reproduction or in times of starvation or stress could be expected to cause significant changes in the internal distribution of chlori nated hydrocarbons. Steroid hydroxylase activity in the liver might increase at this time. Dieldrin concentrations were lower than in the peregrines analysed in Britain, but DDE concentrations were approximately com parable54. Table 2 presents the results of analyses of peregrine prey species, remains of which were codecLed at eyries in Baja California. Mexico. With the exception of the remains of one mourning dove {Zmablura maermmt) and of three fish bats {Pitonyx vivesi), prey material found at four eyries consisted of sea birds. Of these, t he cared grebe (Fodiceps caspicus) and the black petrel (Loomelania melania) constituted 32 and 25 per cent, respectively, of the remains. Black petrels, like other petrels and shearwaters (Table 3), contained especially high concentrations of both DDT and PCB. Reproductive success in this population of peregrines seems to be subnormal. In 1968 no pairs were observed to hatch or fledge more than a single young. In the past, two to four young, the number normally produced by healthy peregrines35'37, were raised by each pair (L. W. Walker, personal com munication). The thickness of fragments of a peregrine eggshell, with its membrane, collected in 1968 below an eyrie where one young hatched, was O' 24 mm, a decrease of 34 per cent from the mean thickness of 0-34 mm + 0-015 mm (95 per cent confidence level) in twenty-three eggs collected in the area before 1947. The region is wilderness, with little or no human interference, and is remote from sources of pollution. In California, numbers of breeding peregrines have been reduced by at least 80 per cent in recent years. The remaining few pairs, however, seem to be reproducing normally and rear, when undisturbed, between two and four young each year. They are found, like most of the surviving pairs in Great Britain51-34, in a relatively uncontaminated region and seem to be feeding on birds which contain low concentrations of chlorinated hydro carbons. A pair which fledged three young in 1968 fed chiefly on passerines and coluinbiformes during the breeding season. Both prey groups arc relatively un- eontamiriated (M. N. K., B. W. R. and 8. G- H,, in preparation). A clutch of eggs collected in this region weighed as much as the eggs obtained in pre-war years, whereas other peregrine eggs from California collected since the Second World War have been thin-shelled (ref. 2, and D. W. Anderson, D. Hickey and R. F. Christen son, in preparation). Despite official protection the surviving birds are still subjected to shooting by sportsmen and to harassment at the eyries. If these could be effectively reduced the population might yet survive. In Table 3 are presented the results of analyses of marine and terrestrial birds and of three speck s of fresh water fishes for PCB and DDT content and concentration. From the rat io of total I>DT to FOB, it is apparent that regional fallout patterns exist . In most of the birds from San Francisco Bay which have been analysed, including peregrine falcons (Table I) and eggs of the western gull, the Caspian tern and the black-crowned night heron (Table 3), the ratio was between one and two. Another black-crowned night heron egg had a typically "ocean" profile, suggesting that the adult female had wintered along the coast. In most of the birds from the Farallon Islands, which arc 27 miles west of the Golden Gate Bridge, this ratio was between 2 and 5. In the Gulf of Panama, where PCB contamination might come from the Canal Zone and industrial areas in Panama City, the ratio is between 1 and 3 (Table 3). In the Gulf of California, a region relatively remote from the sources of either DDT or PCB contamination, the ratio was in most cases approximately 9 or 10. This was true in I he egg of the peregrine falcon (Table 1), m all of the black petrels and least petrels analysed, in the Craveri's murrelots (Table 2), in five of six osprey eggs and in six of seven western gull eggs (Table 3). Among the exceptions the fish bat, with low concentrations of both DDT and PCB, was the most divergent, with a ratio of 43 (Table 2). It is not clear whether this reflects differences between avian and mammalian physiology or a fundamental difference in feeding habits. The other exceptions include species which are present in the area only during the breeding season (Table 2). In sea birds from the Pacific the ratio was usually between 5 and 10 (Table 3). PCB was not found in oggs of the Adelie penguin from Cape Crazier, Antarctica. Table 2, PCB AND PDT IN 1*11KV SPECIES OF PEREGRINE FALCONS IN THE GTTLF OF CALIFORNIA Species* DDT N (Mg) DDT (p.p.m.) Percentage DDE PCB (Mg) PCD (p.p.m.) DDT/ PCB Eared grebe (13) Whole body 3 -- 0-28, 0 26, 97 NMf -- 121 Black petrel (10) whole tody s 810 9*2 (W) 81 -- 1 -0 (W) 9*2 (686-1,344) (0-90-114) Least petrel (6) Whole body 3 99 3-2 <W) 83 -- 0-35 (W) 9*3 Eggs - 30 (23-37) -- 84 3d (1-2-5-0) -- 10 Fish bat (3) whole body 7 25 0-71 (W) 62 0*58 0*02 (W> 43 (lfr 31) (0*45-1-06) Craved s morrdet (2) Eggs (one clutch) 9 230 % (223-238) 39 (L) 80 -- 4*5 (L) 8-7 Whole body, adult Whole body, adult 1 I 37-1 295 0 31(W) 2-4 (W) 85 85 _ -- 0-039 (W) 0*26 (\V) 7-9' 9*2 Eiegunt tern (1) Eggs lleermann's gull (1) Eggs 8 15'5 (9-6-24-3) 3 105 (94* 278) 5-0 (I.) 48 (L) 00 95 -- --- 1*5 (I,) (0-8-3-6) 8*1 (L) (3*5-11*3) 3-9 5-0 Cmitffiit, in of whole bodies and eggs; ronoentratlona In p.p.m, wet weight (W) or lipid weight ILK * Ail specimens were collected In the vicinity of four peregrine cyriefl in Baja California, Numbers tn parentheses ftre the* number of remains of each T'rny species which were found at the eyries, Also found were remains of one cormorant (Pbntitcroeorax sph one red phalarope (Phalaropus fulienrius), otic northern phalarope (Lobipelabatm) and one mourning dove IZeiiaidttra mactoura), but local specimens of these species were not analysed. Eggs of least petrels, elegant terns and Eeermann's gulls wore from different clutches. Eared grebe: Podiceps ranpicus; black petrel: Loomelania melania: least petrol: llaloryptena micromma: fish bat: Pizonyx mem: Craveri's murrelet: Endomychvra craveri] elegant tern: Thalasseus elegans; Heermann's gull: Laws ?u ?rmctwti. t Not measured. Interfering peaks on chromatograms. t Both eggs also contained 0-08 p.p.m. dieldrin (lipid weight) and 0-17 p.p.m. endrin (lipid weight). 1968 Nature Publishing Group HARTOLDMON0095020 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.103 Page 4 of 6 1100 NATURE. VOL. 220. DECEMBER 14, 1968 Tabic 3. pcs attd dot tn the global ecosystem Species White Chippie (1) Black crappie (2) Bluegill (3) Adclie nenanin (4) Eggs Western grebe (5) Breast muscle Fulmar (6) A B 0 Pink-footed shearwater (7) Sooty shearwater (8) A B c Slender-billed shearwafer (9) Ashy petrel (10) Brown pelican (11) Eggs, Panama Eggs, Baja California Frigate-bird (12) eggs. Panama Brow n booby (13) eggs, Panama Brandt's cormorant (14) eggs Pelagic cormorant (15) eggs Cinnamon teal (10) White-tailed kit^ <17> Eggs, clutch A Unhatched egg B Unhatched egg C Clutch 1) Clutch E Clutch F Cooper's hawk (IS) Golden eagle (19) egg Osprey (20). Baja California Merlin (21) American kestrel (22) Whole body, adult Eggs, two dutches Black-crowned night heron (23) Egg Egg Western gull (24) Eggs, San FraudWo Bay, three (dutches Egg?, Farallon Is., ton dutches Eggs, Baja Calif., seven clutches Forster's tern(2o) eggs Caspian tom (26) Eggs, San F nineteen Bay F.ggsj( Sun Diego Bay Red phalarope (27) Common hlurro (28) eggs Cassia's anklet (29) Ancient murrelet (30) R hinoceros auklet (31) Mourning dove (32) Bara owl (33) Egg, one clutch Eggs, one clutch Meadowlark (34) N 1 1 1 5 1 1 1 l 1 1 1 1 1 3 6 2 3 4 17 2 1 4 1 1 2 3 4 1 1 6 1 l 6 1 l 4 10 7 2 2 5 1 6 1 1 1 o 3 2*> 0<g) -- -- -- Total DDT (p.p.m.) 1*83 (W) 2*10 (W) 5*5 (W) 0*78 (0*59-1*04) 0*128 (L) -- 26*4 (W) -- -- 10,475 2,000 0*41 (W) 3*4 (W) 17*5 (W) 3*0 (W) -- 1,265 -- 12*3 (W) 10*3 (W) 2*3 (W) 32*0 (W) 2,158 (1,644-2,826) 59 (18-183) 53 (47-59) 9*6, 8*7, 30*0 59*3 (W) 11*5 (L) 10-0 (L) ---- *20-8 (16*4-24*5) 326 8*2 (L) -- 128 (125-130) 4,340 11-4 (9-8-12-0) 5-1 5-3 8-3/egg 10-2/egg 31-9/egg 8,500 150 127 (30-264) 435 51 2* 4/egg -- 10*9 (W) 0*76 (W) 0*34 (W) 0*35 (W) 9-0 (L) -- 25-2 (W) 2*0 (W) 55 (L) 2*9 (W) 0-044 0-20 (W) fill 869 803 (632 1*123) 412102 385 230 -- -- -- g--- 665 (598-732) 1,269 (1,216 1,322) 1,430 (991-2,430) -- 1*945 (932 3*621) .-- -- -- 12 0* 33*1 27-7/egg 113/egg 21-2,448 --- - '---- -- 0*78 (W) 151 (L) 5*8 (W) 0*75 27 0*19 (W) 1*25 (W) 0*6 (W> 0*18, 3-3 <W) Percentage DDE 6 6 6 74 5 76 89 96 93 94 86 85 92 95 61 (47-78) 81 88 89 91 90 70 77 82 73 82 57 80 90 98 85 94 39 93 89 99 85 89 97 89 89 88 79 90 98 90 97 77, 93 95 96 77, 93 (kg) -- -- -- POE < 0*044 /<g/egg (p.p.m.) 0*004 (W) 0*003 0-005 -- -- -- 3,900 277 -- NM -- 389 (298-482) 231 (18-30) 10*4 (9*0-11-7) 8*4, 5-7, 84*0 t -< . o (6-A3-9) 113 62 (48-75) -- 0-4 (5-5-7-8J 0-84 3-6 4-3/egg 4-0/egg 8-8/egg 17*5 <7-3, 3-0, 103) (24, 7-0. 19) 55-4 3*7 1'0/egg 0-098 rwi 0*08 <W) 0*34 (W) 6*5 (W) 0-42 (W) 1-2 (W) 0-9 <W) 2-1 <\V) 9-8 (W) *---- 4*8 (L) -- -- 0*9! -- -- -- -- -- --- 0*3 0*23 <W) -- 0*39 (W) 0*031 0*09 (W) 330 23 805 (580-1,310) 138 + 55 15 30 -- -- -- 114 (91-137) 805 (660-950) 1,010 (550 1,600) -- 558 (364-1*010) -- --. -- Not detected 104/egg 14 *4/egg 2*5, 28* 1 -- 0*10 45 (L) 0*16 0*15 0*36 -- 0*47 (W) 0*00 (W) -- DDTi'PCB 475 660 1,200 >18 270 5 10 2*7 7*2 to 12 15 5*5 1*55 (0-97-3 2> 6-5* 4-0 1*1, 1*5, 0*4 1*7 2-9 21 12 1*8 6-0 1*5 2*0 2*6 8*5 4*0 8*5 8*5,10*1.1-3, 11*2,9*7, il l 12*7 14 2*3 1*6 36 1-0 3*0 9*1,10*5, 5-0, 12*3,10*6, 10-7,10*5 5-8 1*7 1*4 S 3*5 36 5 8 2*7 10 8*4, 15*9 Content In n\r. and concentrations In p.p.m. wet, weight (W) or lipid weight (L). I'nlftHM otherwise specified, analyses were of whole bodies. Endrin and dieldrin were identified on the basis of retention times on both QF-1 and 2X7 200 columns. 1* Pomaxis annularis, 294 g. Clear Lake, T.hke Oo*, Calif,, May 1008, 2, Pomoxis nigronutculataxi 212 g. Clear Lata, Iraki? Co,, Calif,, May 1908. 3, Lepomis tnaeroehirua, 229 g, Clear Lake, Lake Co., Calif,* May 1968, 4, Pyffwcrfi* n4*Utt, Cape roller, Antarctica, October ] 907. AecftmwhorM omdmt&lu, Clear Luke* Lata Co,. Calif., May 1968. 0. Putman us gUteiali*. A and B: Monterey Bay, Calff., November 1, i960, C: Point Iteyes, Calif, December 1967. Fulmars breed. In Alnaka* 7. PitffthuB ermioptw. Breeds in Chile, Collected in May 1968, in the Gulf of California, 8+ Pliffinux ffrise***. Breeds in New Zealand and Chile. A and JB: Monterey Bay* November 1, 1966, C: Gulf of California* May 1968, NM, Not measured, interfering peaks, 9, PujEfinustenitiroslris. Breeds In Australia. Monterey Bay, December 1966. 10, Oceanadroma homochroa. Farallon Islands, Calif., May 1968, 11, Pelecamts occidentalw. Panama eggs wrere collected on Isla Pacheca and Tsla Paehequilla, GuJf of Panama, February 1968. One egg contained 0 06 p.p.m. dieldrin and 0*06 p.p.m. endrin, another contained 016 p.p.m. dieldrin and 0*07 p.p.m. endrin (lipid weight), Baja California eggs were collected at Bahia de los Angeles, March 1968, One egg contained 0*21 p.p.m, dieldrin and 1*13 p.p.m, endrin (lipid weight). 12, PTEtfaia mtnjnificem, Isla Pacheca, Panama, February 1968, JS. Sula IfucofiatUr. Isla Pacheca and Isla Pachequilla, Panama. February 1968. Two eggs were analysed for dieldrin and endrin. Dieldrin: 0*08, 0*18 p.p.m,; endrin: 0*06 and 0*011 p.p.m, (lipid weight). 3.4. Phaiacrocorar pmicillalm, Farnlion Islands, May 1967, 15. Phalantacartix pdmfjirm. San Mateo Co,, Calif. " 16. Ann* tyanaptxra. San Diego, April 1968. Adult mule, 17. Etonus leneurits. A: Contra Costa Co., Calif., April 1969. B and C: Contra Costa Co., May 1908, two and three young raised* respectively. /): Abandoned. Contra Costa Co., May 1967. E and Fi Destroyed nests, Contra Costa Co., March 1968. 1968 Nature Publishing Group HARTOLDMON0095021 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.104 Page 5 of 6 NATURE, VOL. 220. DECEMBER 14, 1968 I 101 Table 3 (continued) 16. A cripiter cooperii. Balboa Park, San Diego, February 1068. First year female, died of trichomoniasis, ID. Ayuiia ckrysaetos. San Luis Obispo Co., Calif,, April 1368. Pnhatched egg in nest where one young was raised, Bgg also contained 4-7 jig of dieldrin, 1-9 g of heptachlor epoxide, but no endrin. 20. Pandion haliaetus. Gulf of California, March 1968. One egg also contained 0-10 p.p.m. dieldrin and 0-25 p.p.m, endrin (L). 21. JRoJco columbariits. Immature, Utah, December 1967. 22. Fai' ' sp&rverius. Adult was killed on road, Mendocino Co,, Calif., December 1967, Eggs from Davis, California, 1968. 23. Xyclicorax nycticoraa. Eggs from different clutches, 6011 Francisco Bay, May 1367. 24. Larus occidcntaiis. Standard errors, 96 per pent oonlldenee limits, 25. Sterna forstcri. San Diego Buy. May 1967, 26. Hudraprogm caepia, 1967. 27. Ptinlaropru fulicariur. Monterey Bay, November 1, ! 90': 28. Vrittacuge Faratlon Islands, May 1967. 29. Ptychoramphiis altuticua. Farallon Islands, April 1906. 30. St/nthliboramphus antiquum. Monterey Bay, November 1,1966, 31. CerorAfws momcetaia. Monterey Bay, November 1, I960. 32. Zentiidura macroura. San Diego. July 1968. 30. Tylo alba. Clutch A from Contra Costa Co,, Calif, March 1968. Clutch F> from Yolo Co., Calif., April 1968. 34. SturncUa ncglecta. Davis, Calif, December 1367, lit these, however, the amount of DDT was very low; with a DDT: PCB ratio of 18, no PCS would have been detected. A larger amount of fat material from Antarctic organisms, which would contain more DDT, would therefore have to be analysed before concluding that PCB has not yet reached the Antarctic, Individuals of species resident in industrial areas have, as expected, higher PCB levels than individuals of the same species from more remote regions. Analysis of ten eggs from ten dutches of the western gull from the Farallon Islands showed an average PCB content of 136 + 55 yg (95 per cent confidence level). PCB content of four eggs from three clutches from an island in San Francisco Buy averaged 805 gg with a range from 580 io 1.310 (Table 3). Seven eggs from seven clutches in the Gulf of California contained 45 i 30 ug of PCB. The DDT content of the eggs from the Farallons was not significantly different from that of the Baja California eggs. Birds from the Gulf of California also contain dieldrin and endrin (Tables 2 and 3), but the number of analyse is as yet insufficient to compare their relative abundance with that of DDT and PCB. Despite the inability of the Shell Chemical Company to find any chlorinated hydrocar bons in the Gulf of California and at the mouth of the Colorado River36, which drains into the Gulf, it is likely that some do enter from the Colorado River and from agricultural areas in western Mexico. A significant fraction, however, must come from the atmosphere36, and an1 transport best explains the presence of PCB in remote areas. In extracts from the Gulf of California one PCB compound was present in relatively small concentrations. This compound is readily degraded by ultraviolet light irradiation in laboratory experiments, nncl may therefore be selectively degraded in the atmosphere. Although PCB is not soluble in water, it has a low but finite vapour pressure3'. Incineration of materials containing PCB would greatly increase the rate of entry into the atmosphere, PCB is used m the manufacture of many industrial products, so the high amounts found in San Francisco Bay, Puget Sound3 and San Diego Bay presumably result from direct discharge of industrial wastes into these waters and from local fallout. The presence of PCB in the few land birds and fresh water fish analysed indicates that it is also distributed among continental ecosystems in North America, Pere grines could therefore acquire PCB, as well as tho other chlorinated hydrocarbons, over all their global range. No PCB residue data are available for prey species from the Atlantic, but compounds which seem to be PCB have been isolated from seals38. A second year male peregrine spent the winter of 1967--68 on Isla Pacheea, Panama, where tile pelican, booby and frigate-bird eggs of Table 3 wore collected. The Cooper's hawk which was analysed, a species Which also preys upon birds, contained high residues of both DDT and PCB (Table 3). Cooper's hawks have declined in eastern North America and in sonic regions have produced thin-shelled eggs3*. Several species of raptors do not accumulate high amounts of the orgario-chlot'ine compounds (Table 3), a result of the very low residue levels usually found in their prey. American kestrels and bam owls are common residents of California cities. The white-tailed kite, which was near extinction 40 years ago in California, is now abundant in areas where insecticide use is intense, yet because it preys primarily upon the short-lived and herbivorous vole, Miorolut, the species accumulates very little DDT or PCB (Table 3). Previous work18 has shown that both DDT and dieldrin induoe hepatic enzymes in the pigeon which, in an in vitro preparation, increase the metabolism of progesterone and testosterone. This work has now been extended to study the metabolism of oestradiol by enzymes induced by p,p'-DDE, technical DDT (Dupont) and PCB (`Aroclor 1262'). The experimental procedure previously described18 was followed except that the chlorinated hydrocarbons were injected intramuscularly rather than given orally, and in the separation of oestradiol and its metabolites the solvent system used was the upper layer of a mixture of benzene -. heptane: methanol: water 7:3:8; 2. The strips were monitored noth an autographic strip scanner. The profiles obtained for the various inducing agents are shown in Fig. 1. It will be noted that the profiles of the metabolites obtained after enzyme induction using DDE and DDT are identical, but, that a different metabolite is produced by the enzyme induced by PCB. The amount of metabolites formed was calculated from the radio activity of the peaks. The results obtained are given in Table 4. Table 4. ircrease of 0estradiol metabolism pmosok lives homo genates FROM BIRDS TREATED WITH VARIOUS CHLORINATED HYDROCARBONS Amount of polar metabolites farmed in mnmoles Control DDE (40 mg/kg) DDT (10 mg/kgl PCB (20 mg/kg) 29-3 6-5 76-2 13-1 931 +11-2 1M-0 +10-S Each figure is the average with standard deviation of a group of four birds. In all oases 590 m^moles of oostradiol-d.T-T (590 mCi/mmole) was present In the incubation mixture. Incubation time 30 win, weight rif microsomal fraction used 360 ma. Ail chlorinated hydrocarbons were injected intramuscularly into the pectoral nmscic 7 days before death. Body concentrations of 40 p.p.m. of p,p'-DDE signifi cantly increased the rate of oestradiol degradation by the induced enzymes in the experimental conditions. On a. weight basis the PCB preparation had an oestradiol degrading potential approximately five times that of jyp'-DDE or technical DDT. Both DDK and PCB, which are apparently the most abundant of the chlorinated hydrocarbon pollutants in the global ecosystem, have therefore the capacity to produce sublethal physiological effects in birds. Studies on the activity of induced enzymes in the rat at various times after a, single injection of DDT or dieldrin have been made by Ghazal el al.n. He found that it took 70 days for the activity to fall to half its maximum value in the ease of DDT and 15 days in the case of dieldrin. Experiments with dieldrin on pigeons 1966 Nature Publishing Group HARTOLDMON0095022 Case 2:15-cv-00201-SMJ ECF No. 1-8 filed 07/31/15 PagelD.105 Page 6 of 6 1 102 NATURE. VOL. 220, DECEMBER 14. 1968 This work was supported by the US National Science Foundation, the Bureau of Sport Fisheries and Wildlife and the US Public Health Service. Pure p,p'-DDE was supplied by the Federal Drug Administration, and samples of `Aroclor' by the Monsanto Chemical Company. Received August 20; revised! November 14} 1968, DDT Tip. 1. Chromatographic separation of oestradiol and its metabolites. The large peak is unaltered ocstradiol. show that only n quartor of maximum activity remains after a month. Thus there, is evidence that the effects of those induced enzymes can persist over a long period of time although more studies are needed to determine the steroid degrading potentials of livers of those species contaminated with chlorinated hydrocarbons. The profile of the metabolites should be some indication or I he history of exposure to chlorinated hydrocarbons. The reductions in eggshell thickness and eggshell weight incrcaao the chances of egg breakage11 -*1, and water retention, which affects hatching success10-11, might be impaired. The environment in which birds now exist is therefore no longer the same as that in which they evolved; it is unlikely that any species has the genetic capacity to meet t he selt ction pressures resulting from the abrupt environmental change which has produced the thin eggshells. The peregrine falcon is a species long highly revered and respected. G. H. Thayer12 has described it as "the embodiment of noble rapacity and lonely freedom". An irony therefore exists in the fact that the peregrine may be the first species to he extirpated by global contamination. 1 Ratcllffe, D. A., Nature,21b, 208 (1067). * Hickey, J. J., and Anderson, D. W., Science* 162, 271 (1968), 3 Risebrongh, R. WV, in Chemical Fallout, First Rochester Conference on Toxicity (In the press, 1968). `Simkiin, iu., Calcium in Reproductive Phyxiafaffif (Rcinhold, New York, 1967). * Sioikiss. liiol. Rev.. 36. 321 (1961). * (11avert, ,1., .and Benoit, J,, OR Snc. Mini., Paris, L3g, 509 (1942). 7iCyes, l\. and Potter. T. 8., Anal. Rec60. 377 11934). * Kurt, E. R., Steenhock, H.. Lopkovsky, 8., Klctzicti, S. W. F., Hatpin. J. G., and Johnson, O, N., J. Biol. Ghent., 65, 579 (1925). 3 Welch, R. M., Levin, W.r and Coimcy, A. H., Chemical Fallout, First Rochester Conference on Toxicity (in the press), *" Hart. To O,, Snlmllice, R. W.T and Pouts, ,T. E.T Toxicol. Appl. Pharmacol., 6. 371 (1063). 14 Hart, 1., G,, and Pouts, J. R., Naunyn-Schmkdeberg's Arch. Exp. Path. Pharmakvl..Ud, 486 (1965). uComugPi A. 1JL, Welch, R. M,, Kunlsmait, R. and Burns, J. J., Win Pharmacol. Therap8, 2 (I960). 13 Conncy, A. H,t Pharmacol. Rev,, 19, 317 (1967). u Kupfcr, 1>.. Residue Rev.. 19. 11 (1967). 13 Gertaoth, G>, awl Schwabe, IT,, Arch. Exp. Pathol. Pharmakol., 246, 469 (1964). Gillctt, J. W., J. Agric. Food Chem... 16, 295 (1968). 17 Schwabe, U,, ArzneimitUl-Forsch., 14. 1265 (1964). Peakall, J), B., A'a/ure, 216, 505 (1967). Welch, R. M., Levin, W-, and Conney. A. II., Toxicol Appl. Pharmacol, (in the press). -e Hitman, J,, Cecil, H. 0., Harris, S. J., and Fries, G. F,, Science162, S71 (1968). Ratcllffe, D. A., Brit. Birds, 51, 23 (1958). " Ratcllffe, D. A., Bird Study, 10, 56 (1963). Ratcllffe, D. A., Bird Study. 12, GO (1965). IUIOtifTe, D, A., Bird Study, 14, 238 (1907). M Hickey, -T. J., Peregrine Falcon Populations: Their Biology and Decline (University of Wisconsin Press, In the press). M Beebe, F, L,, Candor, 60, 146 (I960). " Oa.de, T. .1., White, 0. M., and Haugh, J. R,, Condor, 70, 170 (1968). tn Endi;fstm, ,T. H., and Berger, B, B., Condor, 70,149 (1968). 17 Jensen, R.f AT*ii> Set., 32, 612 (I960). " Wldmark, G., J. Assoc. Off. Anal. Chcm., 50.1069 (1967), 11 Holmes, B. C., Simmons, J. H., and Tatton, J. 0`G,, Nature, 218, 227 (1967). n Erro, F., Revenue, A., and Bookman, H., Bull. Environ. Cont. Toxicol 372 (1967). White, C. M.. Auk, 86. 179 (1968). ** Jefferies, B. J., and Prcstt, I., Brit. Birds, 59. 49 (196). 15 Aldrin, Dieldrin, Endrin (H Status Report) (The Shell Chemical Company 1967). u Rjsebrough, R. W., Huggct, R. J., Griffin, J. J,, and Goldtarg, E. B., Science, 159, 1233 (1968). >T Tech. Bull. PL-306 (Monsanto Chemical Company). 31 Holden, A. V,, and Marsdcn, K., Aa(ur?, 216,1274 (1967). *v Ghazni, A., Roransky, W., Portlg, J., Votiland.lH. W., and Klempau, I. Arch. Exp. Pathol. Phanntikohr2Ad, 1 (1964). *(l Jones, R, E,f and Leopold, A. S,. J. WUdL Management t 37, 221 (1967). Mayhew, W. W., J, Wildl, Management, 19, 36 (1955). ** Thayer, G. II.. Bird Lore, 6, 47 (1904). Tsunamis on the Moon? by W. G. VAN DORN Scripps Institution o( Oceanography, University of California, San Diego, California The spacing of the five annular mountain rings around Mare Orientate fits a dispersion curve for gravity waves on a 50 km "liquid" layer overlying a rigid basement. The question whether the multiple ring-like mountain structures surrounding most of the lunar craters larger than 120 miles in diameter might he "frozun tsunamis", set in motion by the shock wavos caused by impacting planet.esimales, was first brought to my attention by R. B. Baldwin (personal communication). Baldwin points out that in several eases (including the giant Marc Imbrium) two or more rings can be made out 1968 Nature Publishing Group HARTOLDMONOQ95023 Case 2:15-cv-00201-SMJ ECF No. 1-9 filed 07/31/15 PagelD.106 Page 1 of 4 EXHIBIT I HARTOLDMON0095024 Case 2:l5-cv-0020l-SMJ. ECF No. 1-9 filed 07/31/15 PagelD.107 Page 2 of 4 r'i tUftlll`1 VO : Vf. H, Richard - Rcnoarch Center March 6, l?S;i i it. fcurgen l/J'i'.G J, Opringsto j wt'riA AROCLOU fiSL.Pr47E Accusmoas V/. Schali: WSCiiA Jj. Olson dot.po H. Kelly RKEJ.T, * J, Gaivett JOARE E. Wheeler - EV.'KEE P. Hodges pKoro ?. Park PPAP.X A * , * * R. Kcllar 'E, Tucker JKQ JFQ HieebreUgh In ft recent papc?' "Mature", Yol. 220, Doc. 1>I, 195C, hr:, attacked chlorinated biphenyls in throe ways: {]) a pollutant - widely spread by air-water; therefore en un controllable pollutant. (2) a toxic substance - with no pemitaiblo allowable levels causing extinction of peregrine falcon by induced hepatic enzymes which degrade steroids upsetting Ca metabolism lead ing to reproductive weakness, presuirmbly through thinner eg2 shells, (J) a .toxic substance endangering nan' himself; implying that the . peregrine felcon is & ]ceding indicator of things to come. . At outlined in Science,Vol. 163, Pg. 5*10, Environmental Defense Fund (ED?) is attempvIKg to write new legal precedents in conservation law by hearings ana court action. In the Wieconoin case, water quality standards are at issue. "A substance' shall be regarded as * a pollutant if its use results in public health problems or in acute or chromic (injury) to animal, plant or aquatic life''. Wisconsin is one of 7 states which now wave fedt.-KlIy approved *alvr our}ity standards. According to Bern Wright, acting chief of the Federal Water Pollution Control Administration*s Water Quality Standards Branch, DlA' would fit the definition of a'pollutant upon a Phoning that it is harmful to aquatic life. These people in EDI* are Baying we mutt not put r.trens on any living thing through o change .in air or water environment-. Eagles, plant life, anything which livtu or breathes. This group Ad pushing hard on the extension of the word harmful. They claim "cnzyrvj ^inducer" activity la the real threat of DDT avid PCD1 a and are using 7 tBoae~arguments to prove*"that very small amounts of chlorinated . .Jf'r hydrocarbons arc "harmful". Monsanto ic preparing to challenge certain aspects of this problem but v;o are not prepared to defend egulnr-t all of the accusations. fa) Mor.np.nto is preparing itself to identify trace opt qucr.SHt: es of chi or-.nr ted hlphcr.yla In water samples, in concentrated collected air samples, end in animal tissues:, He will Uf.ev whether wo have b*an falsely identified n.ui cccucod or net. We will eventuslly know where eny pollution is taking place and the extent of the pollution. t HONS 03650*? CV96- J- 04 4 0 -E DATE 04/02/0:. s-'LFF EXHIBIT NC.. 163 7 HARTOLDMON0095025 Case 2:15-cv-00201-SMJ ECF No. 1-9 filed 07/31/15 PagelD.108 Page 3 of 4 E, Wheeler March 6, )tjCy (b) Wti are not prepared to defend ourselves against the accusa tions made of enzyme and horaone activity, the isolation of 'enzymes or metabolic products, the indirect accusation of cancer, or the splitting of genes, when this accusation is made. Whether we can defond thie route or not needa further discussion, (c) Through the Industrial 3io-Yest program we arc to establish the long term allowable limits of chlorinated biphenylc fur certain blrdn-fish-animals by feeding experiment a, pathologi cal examination, and tissue analyslo for chlorinated biuhcnyls, We may be ablo to answer reproductive ability in some animal a. DPT haa been under attack for 6cme years because of its chlorine, content, Its persistent Rbility to be identified, and the wildlife problems attributed to it. We will still be under the aamc attack by the mcchaniems listed In (b) even though we might establish nufc- operating limits for humans and certain animals. Where doss this leave u3? - pnrior identification and control of exposure - wo will be able to identify and analyze residues as well or better than anyone in the world. Vie will probably find residues other than herr and PCE`6, We will probably wind up Bhcring the blame In the ppm t'o ppb con centration level, . Vic can tuke steps to minimize pollution from our own chlorinated biphenyl plants, vo can work with our larger customers to minimize pollution, wo can continue to set up disposal and reclaim operations. Vie ct>n wiy-'V Cnr minimum exposure in manufacture and dJspoanl of cnoacitorc, transformers and .heat transfer systems, and minimize lo'socn for large hydraulic users, Out, v?o can't easily control hydraulic fluid losses in small plants, It v.'ill be still moro difficult to control other end uses such t.t cutting olio, adhesives, plastics and RCR pepor, In these appli cations exposure to consumers is greater and the disposal problem becomes complex, If ohlorinated biphenyl in shown to have somt long term enzyme or horvitone activity in the ppm range, the applicationa with consumer exposure would ceune difficulty, Riocbrough baa taken knowr'Sroclor BSmples and claims to have evidence of enzyme an<rhormone changed Hers there Is no question of identification, E it he "r* h'i s position is attacked and discounesd or wc will eventually have to viithdraw product from end uses which have otpe-rure problems. Since RiCubrough1s paper in "Nature", Doc. IV'jS hno just been published, it 1 = timely, perhaps imperative, that ut'.r, paper and its implications be discus sad with certain cuotomora. Tilt's is a rough one because it could mean loss of bucinwofi or. empty and false claims by Kitetrough, V.'oil prepared d< r.cuGsionr with Ind ,- Qlo-Test, Moncanto biochvnffitx, . the. medical and legal departments must take place now, 1'he HQNS OlbSlO T HARTOLDMON0095026 Case 2.15-CV-00201-SMJ ECF No. 1-9 filed 07/31/15 PagelD.109 Page 4 of 4 I., Wheeler -5- . March 6, 19^9 position of DOT manufacturers ehould he determined as a aulde, V/e are being Accused of the same things attributed to DDV. I ha'o written this memo -to clarify some of the issues. May % plctite have comments, 'fhankr.j ms Alt. W* R, Richard HONS 0 <36511 HARTOLDMON0095027 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.110 Page 1 of 11 EXHIBIT J HARTOLDMON0095028 Case 2.-15-CV-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.lll Page 2 of 11 ,;0. ?.. Richard - Research Center toaU September 9, 19^9 CC P. Hedges PKCSC- DEFENSE 0? AP.0CL0R j1', TO : 2. Wiie el er - 2WH2E tw.f* iui| General Policy Make the Govt., States and Universities prove their case, / but avoid as much confrontation as possible. Comply and work with public officials to meet or'exceed requirements ahead of time. -Adverse publicity and competition are the real weapons. Analytical fin Air - Which Aroclors are present? Wnere?^ ' for Aroclcr Un Water- WMeh epagnuniai? . (in Animals ^interfere? } Govt. , JAgencie Keep track of how much contamination - which sources. prove Bioharmful - Let Govt, prove its case, on case by case basis Monsanto Vlslt-Oovt, Blolabs - in search of toxicological experiments and evidence vs. Aroclors to keep up with progress. Monsanto Prove Bloharmlass - Limited work at Ind. 3io-test - "Safe" toxic /man level for < mammals via (fish Hats Seek evidence of Biodegra ChTckens dation Fish " ~ Question evidence against "" us. Question shrimp toxicology . especially other toxic * . chemicals. If Aroclor bad, others must be worse. Probable Outcome We can prove some things are OK at low concentration. 01ve Monsanto some defense. We can't defend vs. everything. Some animals or fish or insects will be harmed. Aroclor degradation rate will be slow. Tough to defer.! .jair.st. Ii_Ther chlorlnatlor* compounds will be woruc _v/.;er chlorine compounds. . Therefore we-will have to restrict uses ond clean-up as much Ej__we_pan, starting Immediately, f. "IV* osw 014256 HARTOLDMON0095029 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.112 Page 3 of 11 -2 'Therefore we will have to work for alternate products ir. end use applications; for Aroclor production facilities. Clean Up Aroclors and substitute products where necessary *" and wren required, cerore pnreats of publicity anc competitive activity over whelm us. ' '.......... Water Pollution seems to be first Issue Aroclor product 13 refractive, will settle out on solids sewerage sludge - river bottoms, and apparently has a long-, life, Florida or Gulf Coast - Aroclor 125^ - Aroclor 1260 present *' issue. 40-200 ppb - causing problem at Pensacola (Monsanto) in plant effluent-causing " with shrimp, - can't risk shut-down of plant. Federal and State can extrapolate to other plants in Gulf area. San Francisco - Aroclor 125^ and 1260 Reported Aroclor to be present In San Francisco Bay. Reported to be thin egg shells in blrd3 Lot of screaming - Great Lakes Warf studies on DDT Aroclor 1254 will be found' Aroclor 1242 will be found? Air Pollution - Possible spread - but less of an issue _ - right now. at-'.-.' *. 7c Analytical work more difficult. ; y Direct Co--ntac--t---w-- it--h Product J:\ r A ,"s--.jf*-- _ ` r>' Doesn't seem to be an issue - except for food heat transfferV We don't believe Aroclor is being used as carrier for / / " insecticide - sprayed around - V; / j! !^ We are not positive but most uses are "closed" systems!! . , *4 or products used in solid plastics, or adhesives, or Jv' sealants. 0SW 014257 ft HARTOLDMON0095030 case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/1 PagelD.113 Page 4 of 11 "3* F, Fluids Product ' Hydraulic Fluids Air Compressor Fluids Heat Transfer Capacitor Fluids Transformer Fluids Possible Pollution by Possible Pciluti Customers Plant Operation byCustcmers ?rc Yes, leakage external Yes, leakage external Yes, leakage external Yes, leakage from plant - Scrap materials. No, Should be clean. Yes, Reworked trans formers Possible - ee Johnsw.. .;o-ors Castings. Leakage into prcbu Leakage into prcdu Zn prccu=t tun closeo for end use In product tu closed for en n- (t * Capacitors can go to land fill dumps. Probably not burned, in A1 containers. ** Need to take care of Aroclor in discarded transformers. Product could be drained and reworked. Probable Conclusions Hydraulic Leakage Air. Compressor Fluids - Product could be .caught at machines but will take a lot of clean-up work with customers. Will have to have replacement .product - with less-sensitive components.. Work from this base on clean-up to prevent more pollution problems. " Hydraulic Fluids . . Must expect "shrimp" experiments, . West Florida State, to be "aired" sometime soon; next few months. This will lead to bad publicity and competitive action vs. all Pydrauls, We will have to try to confine to Aroclor 125^ and Aroclor l26o. OSW 014258 HARTOLDMON0095031 Case 2:15-cv-0020l-SMJ ECF No. 1-10 filed 07/31/15 PagelD.114 Page 5 of 11 V/e will have to take action before that tine. Gulf Coast - Action '*, Richard Gallon/ Richard Be able to replace Aroclor 1254 and Arccler I2c in Pydraul AC* and 625 in 2 month1 s time before Nov. 15, 1569. Have trial product in hands of Gulf Coast accounts and distributor before Dec. 15. ^ | Fallon Suggest possible buy of "all phosphate" ester from Food Machinery. Use this as one trial fluid MCS___ for insurance. Richard/ Suggest possible substitution of Aroclor 5442 for Aroclor 1254 in hydraulic and compressor blends. E. Wheeler judges lower order of toxicity and solubility for 5442 series. Have to test product in pump test for deposits. Fallon/ Richard Suggest field trials of our own all-phosphate ester. Fallon/ Kuhn/ Kountz Work with large customers to clean-up streams. Erlng in Flndett as mfg, partner in the recycle business. Get money out of recycle operations. Inland-Waterways- './heeler/ Richard Be close .enough to Great Lakes studies to Judge situation. Are there animals which are being affected by the concentrations found? ^ (Richard ! Be prepared to replace Aroclor 1254 and Aroclor 1260 in 4 months in hydraulic fluids and in air compressor fluids, iRlchard Be prepared to replace all Aroclor 1242 or 124R I in 6 months in hydraulic fluids. This means replacement of Pydraul 312 serleB, and control of sale of Aroclor 1248 to other hydraulic accounts such as Cities Service and Mobil. Heat Transfer OSH Fallon/ Roush/ Kountz Systems will have some leakage depending strongly on engineering and maintenance. Heed to work with customers or. clean-up. 014259 Fallon/ Rouch Need to replace FR especially In food or sensitive profluot area* the prr-.auot is tfettin:; into water. Sec dish washer corapouncs. See letter E. Wheeler to T; Fallon, We have possible rep cement products i.\ Thermir.- 35. Thermi/... co. 4 HARTOLDMON0095032 case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.115 Page 6 of 11 o- Actfon Xuhn Try to assure adequate production of ?he mino1 * 66 in face of decreased Aroclor production. Ha and terphenyl supply may become short. Switch customers to Therainol 55 or Therminol 66 ahead of pollution problems in customers plant. Work with customers on plant and dumping practices. Kuhn/ Fallon Findett already set up to rework. Need to make them a manufacturing arm. We get sale of recycle-rework fluld.- Canacitor Capacitor plants have re FJ.U1Q5 purification and recycle "systems but up to 5% of product can be lost by poor plant producers and off-quality material. Mkt. Benignus/ Bryant 536 of production could be Eng, -Kountz/ Mfg-Hodges Iff lbs/year. This is a big loss for the type of pollution we are trying now to guard against. Capacitor products Enclosed in A1 or stainless steel for 5 to 25 year period. Will ultimately have to dispose of capaci tor products. Recommend we try to save this product for a time. Action Eng.,TSDPlant Pol lution Con trol Hodges/ Kountz Monsanto must start to work with capacitor people to clean up plant practices. We have set-up to accept material for rework into hydraulic fluid but this relocation Is not a satis factory solution. Material must be reworked to electri cal grade or destroyed, whichever is more economical. Must start now to get con trol of off-grade material. Recommend replacement of future Aroclcr business with other products. Have 2 years. Action ~ Monsanto must help plant cleanup of customer plants a.j cant at ion, coalescing, adsorption, dis posal of aduc.-benr or recycle of adsorbents. Monsanto badly needs '`know-how" for clean-up, Monsanto should seek Govt, contract money for clean-up research, (See MRC R, Binning, D. Nelson) 014260 HARTOLDMON0095033 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.116 Page 7 of 11 -6- . .1 ,A. .. '` . M'' I Transformers * Action Benlgnus/ Bryant Transformer Plant can operate in a clear., efficient manner with recycle of off-grade Aroclor. Should advise disposal of filter element materials so as to minimize chance of water pollution. Incinerate or dispose. Reworked transformers pose a threat if the Aroclor is dumped into a water stream. Product transformer can remain clone: a no exposure for Should try to retal business 'ey clear-u by education of cur tomers. r> d> Action Benlgnus/ Bryant Should try to minimize chance of dumping "old" fluid by reworking and by educating co. shops and collecting product for rework or disposal. Dalton is set up in England to rework electrical grade fluid. Kuhn/Kountz Findett? Need rework facility here + disposal scheme. Monsanto Plants The Dept, of Interior and/or State authorities could monitor plant outfall and find ppm of chlorinated biphenyls at Krunmrich or Anniston anytime they choose to do so. This would shut us down depending on what plants or animals they choose to find harmed, Action - Take steps to see that every precaution is taken to prevent Aroclor entering water streams. Try to i*<luce to ppb level. P.Hodges-Seek a Oovt. contract on adsorption and incineration TSD cycles - MRC. Engrg,- Kountz Take samples of streams and river water and mud evidence for before and after clean-up. Samples can be stored for further analysis if we can't . keep up current with analytical determinatlono. Apply Monsanto clean-up method* to customer plant Clu-n Up SuU pVvitucuras, DSU 01A261 HARTOLDMON0095034 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.117 Page 8 of 11 -7- Actjon - Engrg. & sfg. * Kountz and Kuhn Evaluate liquid incinerators vs, solids handling incinerators for disposing of Arcelor and pentachlorophenol wastes, I estimate Aroclor disposal at 1-4M" lbs/year, exclusive of cleaning up river bottoms or outfall bottoms. Hydraulics 20^ of 4fT lbs Heat Transfer 1056 of 25T lbs Capacitors 5% of 20R" Transformers 5^ of 15JT 800,coo lbs 200.000 lbs l,0OC,CCC lbs 750.000 lbs 2,750,000 lbs Central Eng. k Mfg TSD Kountz & Kuhn Set up an incinerator to handle Aroclor dis-N f T y- posal - preferably one which will handle . solids such as muds - slurries as well as , L-- liquids. Have in operation within 12 months. /V * Ideally have incinerators available differentj sections for disposal. , Possible help from MRC Chronic Toxicity Studies - Ind. Bio-Test Wheeler Keller Ind.Bio- Test Continue studies to establish PDA type limits of toxicity on Aroclor 1242, Aroclor 1254 and Aroclor 1260, Rework with R. Keller-S, Tucker the number of samples which are to be analyzed for Aroclor in tissue. Try to see if Aroolora are changed metabolically. Does concentration level off, decline if feeding is stopped? . Institute studies against the most limiting biological parameters. If shrimp are the most limiting species for Aroclor levels of toxicity, then we will have to have biological studies on these species to con firm or deny adverse findings. OSH 01*262 6 HARTOLDMON0095035 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.118 Page 9 of 11 W -7- Action - Sngrg. & Xfg. * Xountz and Kuhn Evaluate liquid incinerators vs. solids handling incinerators for disposing of Arcelor and pentaehlorophenol wastes, I estimate Aroclor disposal at 1-W lbs/year, exclusive of cleaning'up river bottoms or outfall bottoms. Hydraulics 20?6 of 4ST lbs Heat Transfer 10# of 2JT lbs Capacitors 5# of 20JT Transformers 5^ of 15fT 800,010 lbs 20C,COG lbs 1,000,000 lbs 750,000 lbs 2,750,000 lbs Central Eng. & Mfg TSD Kountz & Kuhn Set up an incinerator to handle Aroclor dis-x . - posal - preferably one which will handle solids such as muds - slurries as well as ,, liquids. Have in operation within 12 months. /P ' Ideally have incinerators available different / sections for disposal. / . * Possible help from MRC Chronic Toxicity Studies - Ind. Bio-Test Wheeler Keller Ind.Bio- Test Continue studies to establish FDA type limits of toxicity on Aroclor 1242, Aroclor 1254 and Aroclor 1260, Rework with R. Keller-S. Tucker the number of samples which are to be analyzed for Aroclor in tissue. Try to see if Aroclors are changed metabollcally. Does concentration level off, decline if feeding is stopped? Institute studies against the most limiting biological parameters. If shrimp are the most limiting species for Aroclor levels of toxicity, then we will have to have biological studies on these species to con firm or deny adverse findings. 0SM 014262 * HART OLDMON0095036 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.119 Page 10 of 11 -8- Blodegradation Studies Set up rate of biodegradation studies with Inorganic 3iv. on Aroclor 1242 va. Aroolor 1254 Aroclor 5442 vs, Aroclor 5460 Swisher Chlorinated diphenyl ether Chlorinated paraffin vs, chlorinated naphthalene Chlorobromo Aroclors 1242 and 1248 Baxter Contact Baxter and Lidgett at MCL regularly for results on Lidgett Aroclor degradation. They are reported to be moving on MCL laboratory experiments, Establish contact with chlorophenol degradation studies of Cellu-Chera Group. WRRjras JyMl. V. R, Richard DSM 0142*3 HARTOLDMON0095037 Case 2:15-cv-00201-SMJ ECF No. 1-10 filed 07/31/15 PagelD.120 Page 11 of 11 Biodegradation Studies Set up rate of biodegradation studies with Inorganic Dlv, on Aroclor 1242 vs. Aroclor 1254 >' Aroclor 5442 vs. Aroclor 5460 Swisher Chlorinated diphenyl ether Chlorinated paraffin vs. chlorinated naphthalene Chlorobromo Aroclors 1242 and 1248 Baxter Contact 3axter and Lldgett at MCL regularly for results on Lidgett Aroclor degradation. They are reported to be moving on MCL laboratory experiments. Establish'contact with chlorophenol degradation studies of Cellu-Chera Group, WRR:ms W. R, Richard DSW 0142*1 HARTOLDMON0095038 Case 2:15-cv-002Gl-SMJ ECF No. 1-11 filed 07/31/15 PagelD.121 Page 1 of 2 EXHIBIT K HARTOLDMON0095039 PagelD.122 Page 2 of 2 Case 2:15-cv-00201-SMJ ECF No. 1-11 filsd 07/31/15 timer P. Vheeler, Medical Department Ttnuary 29, 1970 Status or Aroclor Toxteo/ logical Studlea ( y J. 5. Sarrett. 5 Cl gc.u," B5MS! V. 5. fapageerge. D. 3. Cameron grueae1* ,,,,,, the report* frcei our coneultir* tnoloed l* a . the *ttu* of the animal toxic it* laboratory indicating pertinent finding. i. " of thee* data to on* V. S. cuateye Hava sl*/e" CSni end on* or two other etate tgener, the V. 8. '* h_ thl* information cannot be jskvsys- * - Our lnUrprtt00^JjJJJtJh{o,?hlI uhrwlc ttuuj* tthhrOegaannr-e-v--wa-a- e*t-reihharaat?ddioena`gCr,nete^dice^oipnpfedanttdloneixnsg^g Ucon<ilj, oo-nn---a#--pP--c-c--iie*raa. although there oorf a* nimal., the PCCBB''aa aarree aibrvou*t t-h--a- ,mbs aa DDT in uwu Va have additional intarim data which will nem*n beexpmeorirme ednlat.cotourctgolonfglr.w Woer aderenyrethpeeaetiangrlieaornerio,*f_ * At `ributing tb* early remit* t thi* tit* 40,1 EJPV: Ju Sncioadre glmer T. Wheeler 5 r'' t Case 2:15-cv-002Gl-SMJ ECF No. 1-12 filed 07/31/15 PagelD.123 Page 1 of 5 EXHIBIT L HARTOLDMON0095041 Case 2:15-cv-0020l-SMJ ECF No. 1-12 filed 07/31/15 PagelD.124 Page 2 of 5 CONFIDENTIAL MINUTES OF ABCCLOR "AD HOC11 COMMITTEE First Meeting Date: September 5, 19^9 Present: M. W. Farrar P, B. Hodges, Secretary E. V- John W, H. Richard E. P. Wheeler, Chairman . ' Objectives: (Agreed to by the Committee) _ . Submit recommendations for action which will: 1. Permit continued sales and profits of Aroclora and TerphenyIs. 2, Permit continued development of uses and sales. 3_. Protect lmagg^ of Organic Division and of the Cor poration, ' Background Discussion of Problem: 1. Agreed that we should concentrate on Aroclor 1254 and . 1260. Aroclor 1242 has not yet been Incriminated for these possible reasons: a, Nature of uses of 1242 minimizes environmental contamination. . - ` b. .It may degrade biologically, c. Unless analytical techniques are performed care fully, 1242 can be destroyed by oxidation during the analyses. 2. - PCB has been found in: a. Fish, oyaters, shrimp, birds. b. Along coastlines of industrialized areas such as Great Britain, Sweden, Rhine River, low countries, Lake Michigan, Pensacob Bay, in Western wild life (eagles). It may be a global contaminant. 3. PCB has been tied to DDT in effects on disappearance of wild birds which have fish diets. Ratio of PCB to DDT has been about 40-50:1 generally. Dr. Relsboro reported almost 1:1 ratio. PCB may be contributing to or exag gerating the effects of other chlorinated aromatics. HONS 030483 HART OLDMON0095042 cv-00201-SMJ ECFNo. 1-12 filed 07/31/15 PagelD.125 Page 3 of 5 -2- H, sample acceptance from the numerous rcaearchers was discussed. This has been done on a limited basis. Our corroboration of testing of their samples adds to our knowledge end demonstrates a willingness by Mon santo to help define the problemj but it is expensive and also tightens any possible legal cases against us-lt rules out possibilities that Aroclors are not involved. 5. Toxicity levels: . Aroclors have been shown to be safe for man in rea sonable exposure concentrations. We arc testing 100 ppm in diet of rats and dogs on a rule-of-thumb basis that 1/100 of toxicity level is safe and 1 ppm is probably the upper limit in total diet. "Allowable levels" are probably lower than DDT. The worst example to date is the teat at Pensacola where 5 ppb was found to be toxic to shrimp in IS days exposure. One problem we are facing Is toJ<eep the "safe level" ..... r.-: f.or s hrimp^dl rom _be i ng -app 11 e&.Xo~e. g. .Lake_Mi chi gan where more tolerant fish species probably exist. We need to show the safe level in shrimp, clams, oysters and several species of fish. . (?) Many toxicity studies on PCB are underway and it v/as agreed to be desirable to keep contact with all' lab oratories which have requested Aroclor samples, One ----- fraTf'to-'two-third3-oP-4he-*samp-l-e~requests_hav.e .come from state labs (who would let us know what they are doing) and about 1/3 have come from universities (who - may give us the "brush-off"). Question of who should call on the laboratories waa not resolved. 6. Escambia River Problem: For a clearer understanding of the general problem, - the situation at Pensacola waa reviewed. From a rela' tively negligible discharge of 1-3 gal/day into a large river, 1/4 mile downstream levels of 42 ppb in water and 476 ppra in mud were found. Although use of Aroclor waa halted immediately, we can expect the water contam ination to continue for a lengthy period by leaching from the contaminated mud. No downstream samples have yet been taken to measure the decrease in contamination (as of 9/6/69). HONS G30*S4 HARTOLDMON0095043 Case 2.15-CV-00201-SMJ ECF No. 1-12 filed 07/31/15 PagelD.126 Page 4 of 5 t i! -3- i 1 1t 7. Problem In Producing Plants: . i P, Hodges reviewed what was being done to stop gross i losses at Anniston and at WOK. Basically, the work to date consists of stopping or trapping any sewering or free Aroclor with return to process or land fill i disposal of the trapped Aroclor. This will reduce levels in plant effluents to below solubility ranges, i particularly as we move to install traps (or sumps) back into the waste source points where flows are small . and as yet undiluted by Aroclor-free waste streams. \t The question of exactly how far to reduce (how much money to spend) ia not yet clear and expenditures to date ii have beep comparatively small. It was agreed that, until the problems of gross environmental contamination by our customers have been alleviated, there is little object in going to expensive extremes in limiting discharges from the plants. *. One problem that ha3 been interfering with logical i> development of our plant Aroclor waste reduction pro grams has been delays in obtaining analytical results from in-plant and ex-plant sampling. It was agreed^ - - -that additional-help-was;necessary Tn Dr.-Tucker'a ji lab but no specific actions were proposed. In addition to in-plant work, the plants are sampling the receiving s treams. i i Air pollution reduction has not been considered-by the plants to date except as incidental prevention of pro duct contamination during tank car and drum loading i* - -"operations. 1^ung-rangs-vT^g year)'~l'mpzLbVTnnent3 at Anniston are planned to reduce product contamination (and air emissions) in car loading operations. It was - agreed that a comprehensive air-sampling and testing program would be very expensive and is probably not Justified at this stage of the problem. 0. Environmental Contamination by Customers: Our lrr=plant problems are very small vs, problems of dealing with environmental contamination by customers. In one application alone (highway paints), one million lbs/year are used. Through abrasion and leaching we can assume that nearly all of this Aroclor winds up in the environment. Because the rate of natural (blo-degradatlon) Is very low, other degradation must destroy FCO equal to the rate of environmental exposure In order to avoid build-up of contamination. . A general discussion was held on philosophy of controlling sales or working with customers to prevent pollution.by PCb< HONS 030*05 HARTOLDMON0095044 Case 2:15-cv-00201-SMJ ECF No. 1-12 filed 07/31/15 PagelD.127 Page 5 of 5 Action Planned: Each member of the group will submit to the other members for consideration possible ideas and programs to help accomplish the overall objectives set by the Committee. Following review of the suggestions, the Committee will meet again at an early date to be arranged by the Chairman. : ju j i I i ?. B. Hodges Secretary t t t | i it Ii HONS 030486 HARTOLDMON0095045 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.128 Page 1 of 14 EXHIBIT M HARTOLDMON0095046 Case 2.-15-CV-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.129 Page 2 of 14 CONFIDENTIAL Date: October 2, 1969 Subject: REPORT OF AROCLOR "AD HOC" COMMITTEE To: Howard S. Bergen, Jr, James E. Springate From: M. N. Farrar P. B. Hodges, Secretary E, V. John W. R. Richard E, P. Wheeler, Chairman DSU 014612 HARTOLDMON0095047 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.130 Page 3 of 14 *P ib* ( fro 1. Objectives CONTENTS 2, Probability of Success _3< Recommendations 4. Baals Tor Recommendations 5- Ocneral Background Page 1 Page 2 Page 3-^ Page 5-11 Page OSW 014613 HARTOLDMON0095048 Case 2:15-cv-0020l-SMJ ECF No. 1-13 filed 07/31/15 PagelD.131 Page 4 of 14 OBJECTIVES At a meeting of business group directors of Function Fluids and Plastlci2fers with Organic Division and Cor porate Staff members/, an "ad hoc" committee waa appointed to prepare a resume of the situation concerning the envir onmental contamination through the manufacture and use of polychlorinated biphenyls (Aroclors), The objective of the committee was to pa1 u-ptuig recommends^ action^ that will: 1. Protect continued sales and profits of Aroclors j 2. Permit continued development of new uses Bnd sales, and 3. Protect the Image of the Organic Division and the Corporation as members of the business community recognizing their responsibilities to prevent and/or con trol contamination of the global ecosystem. * ., ` 1* / .,**- - /* 1 OSM 014614 HARTOLDMON0095049 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.132 Page 5 of 14 PROBABILITY OF SUCCESS The committee believes there la little probability that any action that can be taken will prevent the growing incrimination of specific polychlorinated biphenyls (the higher ch'l ori na ted--e . g. Aroclors 1251* and 1260) es nearly global environmental contaminants leading to contamination of human food (particularly fish), the killing of some marine Bpecies (shrimp), and the possible extinction of several Bpecies of fish eating birds. Secondly, the committee believes that there is ^fiuj:curse-j>f_acilon that can so effectively police the uses of these products as td preventyenvlronmental con tamination. **'*< There are, however,/a number of pnwifcie actions which must be undertaken/to prolong, the ,manufacture, sale and use of these particular Aroclors as' well as to protect the continued use of other members The ultimate that can be expected ! oJLJ.be,.lowerchlorinate^ biphenyl a ----- ------------ - terphenyls'ln "applications amenable to such control that there is practically zero losses to the environment. In the interim we would hope to establish by appropriate research efforts "tolerance" or safe levels for particu lar Aroclors In the environment. ___ 7T* e -*v*/i t > h >~*f J] t ---- ^ V,f 4 t S -- Lif;Ka-*f/yr hk 66 U >fz*. ' i *,U Sy/rc /rj OSH 014615 HARTOLDMON0095050 Case 2.-15-CV-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.133 Page 6 of 14 -3- RECOMMENDATIONS In view or legal and moral considerations, notify all Arocior 125^ and 1260 customers of environmental contamination problem-, -f CVJioweVj. --^ 3, A Consult with appropriate federal agencies ' head quarters in Washington to determine current atatua of concern and to inform appropriate individuals therein of Monsanto's research and control efforts. Personally contact all governmental and university laboratories which have requested Arocior samples and indicated interest In the environmental contam ination problem. ?,y Reduce losses of Aroclora In liquid wastes Monsanto plants to abselwfre minimum. Goal VW yu*'w yirFU1 l*Hrm. 5. Determine extent of atmospheric losses from Aroclors from Anniston and WOK Plants and develop plans for control, 6. Analyze in Organic Division laboratories (or by contract) selected appropriate samples from: a. Environment of Anniston Bnd WOK Plants. b. Monsanto products where contamination Is possible. c. Agencies and/or laboratories attempting to pinpoint specific sources of contamination, d. Customer plants' environments, e. Research efforts involved in biological atudles--i.e. animal, bird and fish toxicity studies and biodegradation studies. 7, Expand analytical capabilities In conjunction with Items 5* and 6. above. OSH 014616 HARTOLDMON0095051 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.134 Page 7 of 14 RECOMMENDATIONS (Continued) 8. Assign one individual from the division full-time for three to six months to coordinate division and Corporate Staff department efforts. 9. Establish special budgetary account to allow Implementation of these recommendations and the continuation of the toxicological research effort now underway and continuing until June, 1971. . OSH 014617 HARTOLDMON0095052 Case 2:15-cv-0020l-SMJ ECF No. 1-13 filed 07/31/15 PagelD.135 Page 8 of 14 " -- . ' -5-' BASIS FOR RECOMMENDATIONS 1. Notification of All Customers 2U) 1969 the San Francisco Chronicle publicfieff~b"scare! story following an Interview with Dr. Robert RlBebrough of the University of California, The latter had recently published in Nature the finding of polychlorinated biphenyls In fish, birds and eggs In the California coastal areas. On March 3, 1969/ the Functional Fluids group Bent a letter to the 31 major Aroclor customers in the transformer and capacitor applications. The letter included a copy of the Chronicle story and a Mon santo statement concerning the 'situation. This was Intended to announce to these customers that the polychlorinated biphenyls mlght.be in trouble and Implied that the customers should make every effort to prevent Iosb of these materials to the environment. There has been subsequently some follow-up with at least General Electric and Wesfclnghouee. It has been recognized from the beginning that other functional fluid uses could lead to losses of the Aroclors-to liquid waste streams from the customers' plants. Losses could occur from spills, unusual leakage of large volumes and dally losses of smaller volumes. It has also been recognized that there could be vapor lessee but It has been felt that theBe were perhaps of less significance than the vapor losses In plasticizer applications. The concern for vapor losses rises from the published proposed theory that even minute quantities of vaporB are eventually transferred to the water environment and accumulated therein. , Another possible source of air environmental con tamination Is the eventual destruction of materials which have Aroclors in them. Of particular signifi cance might be the burning or partial incineration of waste or used products containing the Aroclors. DSW 01461A HARTOLDMON0095053 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.136 Page 9 of 14 BASIS FOR RECOMMENDATIONS (Continued) Ab the alarm concerning the contamination of the environment grows it ia almost certain that a number of our customers or their products will be incriminated. The company^could be considered derelict, morally if not legally, if it falls to notify all customers of the potential implication. A case in point is the recent determination (midceflll Aiig^et) that milk to be marketed by the Maryland * ' Cooperative Milk Producers, Inc. in Baltimore was contaminated with polychlorinated biphenyls. The source of the PCB's was Isolated to six dairy herds in Martinsburg, West Virginia. Investigation by the Producers Association is continuing but to our knowledge the specific source of the PCB has not been pin-pointed. When the Aroclors were indited as causing poisoning In cattle In the mld-1950's, chlorinated naphtha lenes were eventually Identified as the causative agent. The naphthalenes were used in greases or lubricants for cattle feed machinery and had con taminated the animal food, (Members of the Medical Department have been told that the TexaB company ''bought1' 6,000 head of cattle around the country as a result of thla Incident. It 1b not known whether or not the suppliers of the naphthalenes to Texaco were brought into the settlement.) Are our customers selling grease or lubricants con taining Aroclors that are now responsible for the milk contamination? In the plasticizer use area, the Aroclors may be used in rubber based paints or surface coatings. The uses for these Burface coatings Include the interior walls of potable water supply storage tanka in some communities. In Europe we have been told that similar paints are widely used for Bwimmlng pools. In spite of the low degree of solu bility of the PCB'b in water, there are sentiments among the European scientists (and our PCB competi tive manufacturers) that such uses may be Bourcea of pollution. Other cuetomer applications or uses which could be suspect Include highway marking paints^ any of the oil and/or grease "lubricant applications^ dV, Gov--y^rV>-- i-o f OSH 014619 HARTOLDMON0095054 CV-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.137 Page 10 of 14 -7- BASIS FOR RECOMMENDATIONS (Continued) 2, Consultation witn Federal Agencies In August of 1968 when the current effort related to this problem got underway, the scientists at the U. S. Department of Interior, Fish and Wildlife Lab oratories at Paturentr.ary land-were visited. In the six to twelve months that the laboratory had been looking for FOB residues, they had Identified such compounds in dead eagles as well as marine birds, At that time they did not report positive findings in fish, shell fish or other marine organisms. We know that their efforts have been continuing at an accelerated rate but the labor atory has not been revisited to learn of current developments. The U. S, Food and Drug Administration in Washington called Dr. Kelly in June to report that the State of Georgia had found PCB's in milk (we had in April supplied samples of our Aroclors to the Georgia State Department of Agriculture Laboratories In Atlanta). The analyses of milk from the Maryland co-op mentioned in 1. above were performed by an FDA laboratory. On1 Friday, September 26, we were asked to send samples to the Atlanta Toxicological Branch of the FDA and to the Residue Chemical Branch Divi sion of Pesticides, FDA in Washington. The stated reason for the request was for these laboratories to determine the "acute toxicity" of Aroclors 125*< and 1260. In the past year we have had request for samples from five or six of the regional laboratories of the Federal Water Pollution Control Administration-an agency within the U. S. Department of Interior. We have not had an opportunity to follow-up with these laboratories as to their interest or concern. In August a laboratory of the Bureau of Commercial Fisheries, Department of Interior, at Pensacola, Florida, reported finding PCBls in the river below our Pensacola Plant. Subsequently, they reported that 5 parts per billion of Aroclor 1254 killed baby shrimp in 18 days. There has been no follow up by St. Louis based personnel since our Pensacola Plant discontinued the use of Pydraul AC. DSW 014620 HART OLDMON0095055 Cass 2.15-CV-00201-SMJ ECF No. 1-13 filed 07/31/15 Pa.gelD.138 Page 11 of 14 BASIS FOR RECOMMENDATIONS (Continued) Appropriate Individuals In the parent federal agencies should be visited to determine their current activities and concern and, secondly to make these agencies aware of Monsanto's interest, research and control efforts. 3, Contact with other governmental and University Laboratories In addition to the above, Monsanto has provided earnpies of the Aroclors to 30 or kO other governmental and university laboratories or scientists. It would be prudent and appropriate for someone from Monsanto to personally follow-up the supplying of the samples and determine the status of the efforts of thcBC groups. For example, the State Department of Agriculture Laboratory in Hartford, Connecticut reported in July that they hao found PCB in fish off the coast of Connecticut. This led to two articles in the Hartford Times and a five minute radio program through a syndicated outlet of 108 radio stations. b. Losses from Monsanto Plante Efforts to reduce the losses of Aroclors in liquid wastes from the Anniston and V/OK Plants are com pleted or underway. It is impossible to establish a limit as to what can be discharged "Barely". Investigation has shown that the waters In receiv ing streams below the Anniston Plant contain sig nificant {parte per million) concentrations of PCB. More ominouB perhaps le the fact that sedi ment In the bottom of these BtreamB miles below our plantB may contain up to 2% Aroclor. To prepare for the eventual publication in the presB of the discharge of PCB'e in Alabama and to the Mississippi River, a significant effort must be made to determine the present levels of contami nation end more importantly, determine; the levels jjf..contajnlnatiqnjaB "clean up" procedures begin to . show an_efpg_t~."' ...... ` The incident at the Monsanto Plant at PenBacola indicates that all Monsanto Plants UBing Aroclora should be made aware of the potential problem and efforts made to eliminate any losBes. The sig nificance of "any losses" may be related to the one to three gallons per day which was being lost at the Pensacola Plant. DSM 014621 HART OLDMON0095056 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.139 Page 12 of 14 BASIS FOR RECOMMENDATIONS (Continued) Hopefully research effortB will indicate that a "safe level1' of losBes would be higher in fresh water streams not adjacent to coastal estuaries. At the present time we know of no claims that the PCB'b are "destroying" fish. 5. Atmospheric Losses at Anniston and WGK The determination of atmospheric losses for our Aroclor manufacturing plants will be more tedious and time consuming than in the case of liquid wastes. We will never be prepared to discuss intelligently potential problems of our customers where there may be atmospheric lOBseB until we have Borne data on our own plants. This la parti cularly true if we ever expect to recommend to our customers measures for control of atmospheric losses. 6, Analytical Capabilities (a. through e. Inclusive) In each of the recommendations 2. through 5* above, there is the implication that Monsanto's best inter est could be served by appropriate sampling and analysis. In connection with any of the governmental and other laboratories, we must accept their reported analytical results or in specific Instances offer to run duplicate analyses to confirm for ourselves the validity of the reported results. The committee agrees that to perform-ana lyses that yjould confirm ail of the reported findings repre sents an unreasonable cost in terms of personnel and facilities. At the Bame time there.appears to be no alternative to the acceptance in the laat three months that confirmation analysis in Delected cases should be done. ThiB has led to an accumulation of a backlog of samples which need attention. Delays in analysis are occurring because of shifting pri orities for samples as they are received or as they have been retained. . A case in point 1b the delay in analyzing thirteen samples from the Inorganic Division, Samples were submitted following the finding that five of five commercially available electric dishwashing com pounds analyzed showed the presence of PCB's, The Inorganic Division can not exonerate the products It sells to the detergent manufacturers until it has some data showing whether or not Monsanto supplied materials are contaminated. In the mean time Inorganic Division Quality-Control has OStf 01<t622 HART OLDMON0095057 Case 2:l5-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.140 Page 13 of 14 BASIS FOR RECOMMENDATIONS (Continued) suggested to Its Division Engineering that future designs for making detergent components insure that the use of Aroclors will not permit contamination. Secondly, it le obvious that the Division cannot approach Its detergent manufacturing customers about their potential problem until the above data Indicate that "our own skirts are clean". This week It was agreed that milk and water samples from the Maryland co-op In Baltimore should take precedence over other samples which had been scheduled. In summary, the committee believes there will be a growing number of samples fronr the following: a. Environment of Anniston and WOK Plants. b. Monsanto products where contamination is possible. c. Agencies end/or laboratories attempting to pin-point specific sources of contam ination. . d. Customer plants' environment. e. Research efforts Involved in biological studies--i.e. animal, bird and fish tox icity studies and biodegradation studies. 7, Expansion of Analytical Capabilities The recommendation to expand the analytical capa bilities is a necessity in view of the preceding recommendations. 8. Assignment of Full-Time Effort Up to this time the coordination of the Division effort haB been principally the responsibility of W, R. Richard and E. P. Wheeler with support from R. E. Keller and Cumming Paton. Each of these Individuals has other responsibilities to the extent that, although `the Aroclor problem may have been a predominant issue, other areas of Interest could not be slighted. The committee believes that the problem is of sufficient seriousness to warrant the full concen tration of at least one individual for the next three to six months, ThoBe who have been involved up to thie point would obviously continue in their 05* 014623 HARTOLDMON0095058 Case 2:15-cv-00201-SMJ ECF No. 1-13 filed 07/31/15 PagelD.141 Page 14 of 14 BASIS KOH Hfc'O'OMMENUATION (Continued) supporting efforts where the individual's background or expertise would make it appropriate. For example in connection with the follow-up with the federal agencies In Washington, DrKelly would expect to be present for any contact with USFDA officials. Other members of the Medical Department would be made available for contacts with the pollution control agencies or those laboratories or univer sities where toxicity appears to be of interest or concern. Certainly Dr. Keller and Scott Tucker should accompany anyone making visits where the specific question of analytical techniques waa to be discussed. ThlB still leaves a number of man months to be de voted to the other laboratories or agencies which have up to this point not made their specific Interest known. , Equally if not more important is the effort which must be made relating to the contacts with custo mers, The committee does not believe that this can be handled by district marketing representatives without supplying such ''local'1 individuals with a complete background of the problem. . 9. Budgetary Considerations The committee recognizes the restrictions placed on those currently involved by mandates to operate within normal or proposed reduced budgets. It should be clear, however, that the product groups, the Division and the Corporation are faced with an extraordinary situation. TheFe can not be too much emphasis given to the threat of curtailment or outright discontinuance of the manufacture and sales of thiB very profitable series of compounds. If the products, the Division and the Corporation are to be adequately protected, adequate funding is necessary. ' ----------- OS 014624 HARTOLDMON0095059 Case 2:15-cv-002Gl-SMJ ECF No. 1-14 filed 07/31/15 PagelD.142 Page 1 of 3 EXHIBIT N HARTOLDMON0095060 Case 2:15-cv-00201-SMJ ECF No. 1-14 filed 07/31/15 PagelD.143 Page 2 of 3 Monsanto .M N*H:C VCHCATtQKJ N. T. Johnson St.. Louis February 16, 1970 *crc*nnct TO POLLUTION LETTER P. Cra9ka - Wilmington C. Clay - St. Louis J. H, Davidson - Los Angelas R.A. Damiani - Chicago / O.F, Fague - Detroit / R.A. Garcia - Akron / R. Garnsworthy - Melbourne J. A.'.Heilala - Akron' R, Irwin - Houston/' . J.S.- Pullman - New York J.J. Roder - Chicago R. Giles - Melbourne P. J,A. Marsh - Brussels R. Enrhardt - New York T, W. One son - Montreal J.N. Haggart - Brussels V. Morse - St, Louis J. Brydon - Montreal R. Graham - New York P, G. Benignus J.G. Bryant D. E. Roush d, R7 FaHSTD D. A. Hall ' D, R. Pogue D, F. Smith D, A, Olson - i / Attached is a list of questions and answers which may be asked of ` you by customers receiving our Aroclor-PCB letter. You can give / verbal answers; no answers should be given in writing. If the customer asks a question you can't answer or if he wants an answer in writing, then send his questions to me and we will answer from here, - ' / / 5 We want to avoid any situation where a customer wants to return fluid- The new reformulated products will be available within a month. We would prefer that the customer use tp his current /inventory and purchase Pydraul 625A, Fydraul ACA, Pydxaul AOA / Winter Grade and Pydraul 540A when available, He will then top off with the new fluid and eventually all Aroclor 1254 and Aroclor 1260 will be out of his system. We don't want to take fluid back. Sell him the replacement. We must be very positive in our approach with each customer relative to our decision to eliminate the use of Aroclor 1254 and Aroclor 1260 in our Pydraul products. We (your customer and Monsanto) are not interested in using a product which may present a problem to our environment. We certainly have no reason to be defensive or apologetic about making this change. The decision to change make6 good sense and our customers should commend us# not criticise our actions. No one has forced us to make this ,n-i8 MV. i> i;.. HARTOLDMON0095061 Case 2: 15-cv-00201tSMJ. ECF No.. 1-14 filed 07/31/15 PagelD.144 Page 3 of 3 2 change, We have done it to keep our customers out of possible trouble. They should appreciate our effort, and stay with, us as a customer on the reformulated Pydrauls. To make this change has cost us research monies and time. Fortunately, we possess the technical skills to make a change in our formulations without affecting the performance of products. Be positive, Take the offense. Don't let a customer or competitor intimidate you. 1 doubt if our competitors know whether their product could present a problem to our environment. You might ask your customer, if he has ever asked Houghton or Stauffer, Carbine, etc. about the effects of their products. _ We should also recognize (point this out to your customer) we ' must clean-up. The Chemical Week article gives him an idea of laws in effect in his state. Read this yourself. Be familiar with the data on each state in which your customers are located. Use this in your discussions. - ` We have no replacement products for Aroclor 1254 and Aroclor 1260,..: a*.. We will continue to make these products; however, customers , will have to use their own judgement on continued U3e. We can't afford to lose one dollar of business. Our .attitude in discussihg this subject with our customer will be the deciding factor in our success or failure in retaining all our present business. Good luck. ,' . .-- (We have also attached a copy of the letter sent to transformer customers.) * , ' -- '/ .* J ./ N. T. Johnson HARTOLDMON0095062 Case 2:15-cv-00201-SMJ ECF No. 1-15 filed 07/31/15 PagelD.146 Page 2 of 2 bcc: W, R. Richard Tom Ford H. S. Bergen J. . Springgate March 24, 1969 Mr. Harry Chatfleld Los Angalea County Air Pollution Control District 434 South San Pedro Street Loa Angalea, California 90013 Dear Mr. Chatfield: Enoloaed la a copy of the physical properties of our Aroclor compounds X promised you by phone. We have added the oral and akin absorption toxlolty to the bottom of this list to give you some ides of the relative toxlolty of these compounds. You will notice that they are not particularly toxic by oral ingestion or skin absorption. In addition, X have enolosed a copy of a paper that was printed in the American Industrial Hygiene Association quarterly in June, 1936. This paper ' discusses the vapor toxicity of Aroclor 1242 and Aroclor 1254. As X told you on the phone the 12 prefix in this case means biphenyl and the 42 or 54 suffix in this case represents 42% and chlorine by weight, respectively. Ve at Monsanto cannot understand the origin of the materials reported in the recent newspaper articles on the West Coaet. These compounds are utilised generally in enclosed systems and very little would normally be expected either in the air or in the liquid discharges from s using Industry. Xf we osn provide you with any additional data we would be glad to do so. lnoerely, JTOtoJa Enclosures Jaok T. Sarrett Manager, Pollution Abatement and Industrial Hygiene ' Case 2-.08-CV-00016-WCG Filed 09/30/09 Page 1 of 1 Document 668-9 NCR-FOX-0575881 HARTOLDMON0095064 Case 2:15-cv-00201-SMJ ECF No. 1-16 filed 07/31/15 ' PagelD.148 Page 2 of 5 Monsanto Mon*nio Compiny 800 N. Lindbergh Boultvtrd St Louij. Mittovn 63166 Phon. (314) 694-1000 March 27, 1969 ORQahiC CHCMICAL5 CVIJ o* Mr. Fred H. Dlerker Executive Officer State of Callfornla-Resources Agency San Francisco Bay Region Regional Water Quality Control Board 364 Fourteenth Street Oakland, California 94612 Dear Mr. Dlerker: Ref: File No. 2119-1075 This letter Is written in response to your letter dated March 7, asking several questions concerning poly chlorinated biphenyls ("PCB") manufactured by Monsanto. Responses to each of your questions are set forth below, numbered in accordance with your letter. 1. We have recently contracted with a consulting laboratory to undertake fish toxicity studies on PCB1s. Because of the low solubility of PCB in water, It may be difficult to obtain a 96-hour TL-,. Depending upon the results of the initial studies, we may conduct 30-day exposure experiments. 2. Attachment A shows the general physical characteristics of PCB. Information set forth on the bottom of these pages shows the results of acute animal toxicity studies showing the oral LDj-q in rats and the minimum lethal skin dose when applied to rabbits. You will note that these results were obtained using un diluted samples or as a corn oil suspension solution depending on the viscosity and solubility of the materials. Case 2:08-cv-00016-WCG Filed 09/30/09 Page 1 of 4 Document 668-10 NCR-FOX-0575882 HARTOLDMON0095066 Case 2-.15-CV-00201-SMJ ECF No. 1-16 filed 07/31/15 PagelD.149 Page 3 of 5 -2- 3. & 5* Attachment B shows the results of studies of chronic inhalation. You will note In the table describing the properties of various PCB`s that the liquid materials have extremely high distillation ranges and that waxy or reslnouB materials have to be distilled under high vacuum. These data attest to the low vapor pressure of the materials at ambient temperatures. PCB finds primary use in applications requir ing chemical stability, good dielectric properties, fire resistance, low volatility and water Insolubility. When used in dielectric fluid, PCB is hermetically sealed in capacitors and transformers, designed for 20 to 30 years life at temperatures at or near ambient temperatures. Plasticizer PCB is found primarily as a plasticizer for surface coatings such as corrosion resistant paints, industrial adhesives and as a sealant such as window sealants. These applications do not Include automobile tires, or floor tile. These applications of PCB emphasize its inertness and low volatility to provide long service life for the product without loss of flexibility. In normal UBe, PCB plasticizer applications are ambient temperature environments presenting no special health problems. In view of PCB's chemical Inertness, we would anticipate no problems associated with the environment from refuse dumps. PCB finds further application in industrial (excluding aviation) hydraulic and heat transfer systems. As in the case of dielectric applications, these systems are designed for essentially indefinite fluid life. 4, PCB Is essentially insoluble in water, which it a property valued for most of its industrial applications. The solubility of PCB varies with the number of chlorine atoms. Solubility in tap water at 25C. la as follows: Case 2:08-cv-00016-WCG Filed 09/30/09 Page 2 of 4 Document 668-10 NCR-FOX-0575883 HARTOLDMON0095067 Case 2-.15-CV-00201-SMJ ECF No. 1-16 filed 07/31/15 PagelD.150 Page 4 of 5 -3- Material Solubility In Water PCB - (42* chlorine by weight) PCB - (48* " " " PCB - (54* " " " 203 t 10 ppm 106 i 14 ppm 50 i 2 ppm This data Indicates that the most highly ohlorinated PCB'a are the least soluble In water. Annual consumption In the Bay Area Is less than 500,000 pounds for all PCB applications. 6. It Is a long standing policy at Monsanto not to dlsolose information concerning our customers. Including the customer's name. However, we desire to cooperate with you to the fullest extent practicable in this matter. Should you desire to vlBlt typical PCB users we will be happy to approach our customers to arrange a visit. 7. We advise persons using PCB products to take normal precautions associated with handling most synthetic materials. If accidentally spilled on hands, no serious skin irritation should occur. However, PCB has a solvent action (similar to paint thinner) on the fats and oils of the skin and prolonged contact may lead to drying and chapping of the skin. In the event of contact, the skin should be washed with soap and water. Saturated clothing should be removed and dry cleaned. Spills may be cleaned up with rags, sawdust or absorbent clay. Eye contact may result in painful irritation but should cause no permanent damage to tissues. In the event of eye contact, the eye should be flushed with large amounts of water. As with all eye first-aid, a physician should be consulted. To relieve Irritation, physicians have used a 1* Pontocalne as well as ophthalmic cortisone acetate solution, or castor oil. Infrequent exposure to PCB vapor should not cause 111 effects. However, prolonged exposure to high vapor concentrations should be avoided. Case 2:08-cv-00016-WCG Filed 09/30/09 Page 3 of 4 Document 668-10 NCR-FOX-0575884 HART OLDMON0095068 Case 2:15-cv-00201-SMJ ECF No. 1-16 filed 07/31/15 PagelD.151 Page 5 of 5 After many years of experience with PCB, It is our understanding that cases of harmful effects resulting from the industrial use of PCB have been extremely rare. We believe this Is due largely to low volatility which reduces possible inhalation at ambient temperatures. . We sincerely trust that thiB answers the questions con tained in your letter. As further information becomes available in which we feel you might be interested, we will pass such information on to you. Yours very truly HSB:pep Attachments BCCt P. S* Park Vheeler/J. Oarrvtt D. A. Olson Pt Bonlgnus V. Wayohoff D. Pogue M. ?t Johnson V. 11. Richard Howard S. Bergen Director, Functional Fluids Case 2:08-cv-00016-WCG Filed 09/30/09 Page 4 of 4 Document 668-10 NCR-FOX-0575885 HARTOLDMON0095069 Case 2:15-cv-002Gl-SMJ ECF No. 1-17 filed 07/31/15 PagelD.152 Page 1 of 3 EXHIBIT Q HARTOLDMON0095070 Case 2:l5-cv-00201-SMJ ECF No. 1-17 filed 07/31/15 PagelD.153 Page 2 of 3 VI\ - Moi.5anto_ r-- E. P. Wheeler 1toy 26, XS69 HPIHXI TO W. H. Richard Jwrt 2 T9S5 R. E. Keller/ S._S. Tucker_ 5TI."3. Bepgen J. E. Sprlnggace C. Pa^on W. Kuhn P. B. Hodges Dave Nelson - MRC Dave Nelson of KRC ca Information: e today ko relay the following 1. A Hr. Bob Day In the Cincinnati Laboratories of the National Air Pollution Control Administration had called him and salted for any Information Monsanto might have relating to what might happen to chlorinated biphenyls in products that might be Incinerated. Day Indicated that he needed the information for "hla boas" John Ludwig, assistant commissioner of NAPCA In Washington by Monday, May 26. After trying to reach Day and finding busy circuits I called John Ludwig directly el nee I know him personally. Ludwig was surprised and said If the question of PCBs had come up he had forgotten It or at leaat didn't remember that he wanted an answer by next Monday. He offered to have Day call me directly but I told him that I would get through to Mr. Bay. I did reach the latter and after much discussion it turned out that scrao member of Congress had sent a letter directly to the NAPCA offices In Washington asking what NAPCA knew about distribution of PCBa by Incineration and Ludwig had passed the latter on to Cincinnati to get Information for a reply. . Mr. Day was under the same misconception as so many others concerning the widespread situation of PCBs In such things as automobile tires. X set this matter straight quoting from the company prepared statement. We then got Into some detail because It became apparent that Day wae not a "Knight on a White Horse" but was reasonable and objective. A3 w chattad further and axpandeu comments about mutual acquaintances. Day finally told me that he Is a Monsanto employee from Pensacola fulfilling his mlllleary commitment as a member of the Commission Corps. In the Public Heslth Service. He Indicated that the laboratory In Cincinnati may try to set up a program where waate materials containing PCBs will be Incinerated (In one of the several experimental Incinerators which they have there) and _ analy2* the decomposition products. He asked If Monsanto would be In a position to provide wastes or Case 2:08-cv-00016-WCG Filed 09/30/09 Page 1 of 2 Document 668-11 NCR-FOX-0575888 HARTOLDMON0095071 Case 2:15-cv-00201-SMJ ECF No. 1-17 filed 07/31/15 PagelD.154 Page 3 of 3 V. R. Richard -2- May 26, 1S69 plastic materials containing Aroclor which they could us* in thir experiments. I offered to cooperate in ' any way we could. He will send word back to Washington which will then he related to the member of Congress that the PCBs are not used in some of the applications which have been indicated in the public press and in general try.to present Monsanto's views to witj "We can not conceive how the PCBs can be getting into the' environment in a widespread fashion and that the company is actively Involved in research programs to try to shed.some light on the situation." 2. Dave Nelson attended a meeting at the Federal Water Pollution Control Administration Laboratory in Athena, Georgia recently to aee If there were areas where MRC could bid on government grants for research in connection with pesticide residues. Dave says that In the course of the meeting some of- the FWPCA.boys raised the question as to what ( Monsanto at Anniston, Alabama does to control the eacap* of polychlorinated biphenyls or waste products getting out of the.plant. Obviously Dave would not have any of the details of our programs at Anniston but passed this.word on to me with the thought that -- -we can anticipate that the Feds will be looking at creek, river or lake water and mud samples below Anniston for PCBs. ` Case 2:08-cv-00016-WCG Filed 09/30/09 Page 2 of 2 Document 668-11 NCR-FOX-0575889 HARTOLDMON0095072 Case 2:15-cv-002Gl-SMJ ECF No. 1-18 filed 07/31/15 PagelD.155 Page 1 of 4 EXHIBIT R HARTOLDMON0095073 Case 2:15-cv-00201-SMJ ECF No. 1-18 filed 07/31/15 PagelD.156 Page 2 of 4 July 23, 1969 Nr. A. Bruce Pyle Assistant Bureau Chlsf Department of Conservation and loonooio Davalopmant F. 0. Box 1609 Tranton, New Jarsay Daar Mr. Fylat Xn oonnaotion with your raoant raquast for more spsoific information on TGB, X hava anolosad savaral itams that may bs of intsrast. Tha first is s tabla showing tha physical oharacteristios and propartlas of our Aroelors, tha trada name for our polyehlorlnatad biphanyla. Tha numarioal daaignation of thasa notarial* la mean ingful. Tha 1200 sarias ara biphanyla ohlorlnatad to tha axtant lndloatad by tha last two numarals. Por example, Aroolor 1242 Is blphanyl ohlorlnatad to the axtant of 42Aroolor 1254 is blphanyl ohlorlnatad to 54*. Tha 5400 sarias are tarphanyls ohlorlnatad to tha axtant of tha last two numarals. Thus Aroolor 460 is tarphanyl ohlorlnatad to 60*. Tha 2500 and 4400 natarlale ara mixtitraa of biphanyla and tarphanyls ohlorlnatad to 6$%,} Va have typad on tha bottom of tha tabla tha rasults of sputa tORlolty stadias. Thasa lndloata tha approxlmata lethal dosa in rats whan administered orally and tha minimum lathal dosa whan tha samplaa ware applied to tha unbroken akin of rabbits. You will note that the samples wars adsdnlstsred undiluted or as various con centrations in corn oil depending on tha physical form and solubility of tha sample. Case 2:08-cv-00016-WCG Filed 09/30/09 Page 1 of 3 Document 668-12 NCR-FOX-0575899 HARTOLDMON0095074 Case 2:15-cv-00201-SMJ ECF No. 1-18 filed 07/31/15 PagelD.157 Page 3 of 4 Nr. A. Bruce Fyle July 23. 1969 Pat Two Tht atoond enoloaure refer* to tha only published data that we now have concerning possible toxicity to fiah. This enoloaurt la a 1957 report from tha U. 8. ?iah and Wildlife Servlet ahowlng tha reaulta of atudlaa :o determina the poaaible effeota of ohemioala to larval lampreys and flahea. The enoloaurt lnoludee a oopy of tha title page, the page explaining the table and that portion of tha table which indioataa that four of tha Aroolora have no affect on trout, bluegill and larval lampreya at a concentration of 5 ppm in a 24 hour teat period. Tha only chronic toxioity data that we have refera to the inhalation of vapora of Aroolor 1242 and 1254. Enclosure three la a reprint describing the chronic inhalation atudlaa and enoloaure four la a Hygiene Quids publiahed by the American Industrial Hygiene Assooiatlon which preaorlbea safe handling teohniques for the use of these materials in industry. Baaed on available data, manufacturing and use exper ience. we do not believe the polyohlorlnated biphenyls to be seriously toxlo. At the same time we have also reooamended precautions to avoid repeated and prolonged akin oontaot and secondary avoldanoe of inhalation of vapors when the materials are heated. As indicated by the distillation ranges in enoloaure one. these produots have extremely low vapor pressure and thus present little vapor inhalation hasard at ambient temperatures. X don't know that X can add a great deal to your ques tion to the use of these materials without repeating the ooeaMnts in the statement whloh Tom Ford sent you. Their dielectric characteristics lead to usage as Insulating fluids for transformers and capacitors. Transformer application is in alses applicable to sub-stations rather than the amall transformer on lines for reduolng voltage for household use. The plasticiser type application FOB'S are incorporated into a polymer as an Integral part of the solid material. This is the oase whether the polymer is then used as an adhesive speoial elastomer or individual surfaoe ooeting. Contrary to some reports from the press, the FOB'S are not used in rubber tires, lipstiok. or the common plas tic containers or films used for industrial or house hold packaging. Case 2:08-cv-00016-WCG Filed 09/30/09 Page 2 of 3 Document 668-12 NCR-FOX-0575900 HARTOLDMON0095075 Case 2:15-CV-00201-SMJ ECF No. 1-18 filed 07/31/15 PagelD.ibb Page 4 of 4 Mr. A. Bruot Pyle July 23. 1969 Fast Thrtt Wt htvt a considerable rtttarch effort underway to dtttrmint tha toxlolty of ttvtral of tht FOB'S in rats and doga. we art alao Including thrtt generatlon reproduction atudlea in rata. Alao underway art ttudlta with fowl to datereina tht possible ohronlc effeot on the blrda themselves* egg alee and production* hatchablllty or tht tggt and via* bllity of the ohloka. Vt will alao do atudlea to determine any poaalblt effeot on tgg ahtll thloknese and ealolua and phoaphorua metabolism. Vt have attempted to eatabllah a program for deter mination of the poaalblt biodegradation of the polyohlorlnated blphenyla but research of thla type la not yet underway. Re-emphaslslng a point we attempted to make In the statement Tom sent you* we art unable at thla time to oonotlvt of how the PCS'a can beooae wide aprtad In the environment. Zt la oertaln that no applloatlona to our knowledge have been made where the PGB'e would be broadoaet In the aamt faehlon aa the ohlorinated hvdrooarbon peatloldea have been. X am sure there will be much more research undertaken to clarify some of the questions that early rtaearoh efforta have ralaed and you may be aure that we will partici pate In a number of theae. If Z oan be of any further aaslstanoa after you have reviewed this letter and the enclosures* pleaae let me know. Slnoerely* OTiJu llmer f, Wheeler Manager* Environmental Health Case 2:08-cv-00016-WCG Filed 09/30/09 Page 3 of 3 Document 668-12 NCR-FOX-0575901 HARTOLDMON0095076 EXHIBITS HARTOLDMON0095077 27060100102300 UNION HIGH SCHOOL DIST 402 HILL & KELSEY ST,M0NR01,WA,98272,USA 681 Card No. l o f l " u n io n h ig h scho o l B IS T 40 2 ) Tax ID 01270610230003 Printed 08/09/2016 /-------- M3 H O CN LD H O OJ H O 03 o e =s 03 C3 > 03 H O o$ H --I O 03 H O 03 > B C/1 OJ 1C/1 oo oo Oo r~ os u> as OS os CD rs OS H OS O as OS 03 L/S CO us US H r- u? ffl > 4) ft! Oo o CJ o oo OH as H as as H os l/S os os 03 as H as as H US r- us US iH VD o- u? 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E0d |tnh 01 o Oh C/J H OS 3 MC/1 61 ft CD U n O lN wui Mz Oas > Eu I Ui & I 15 Ifi -f! lw 00 2o r1g> -&H p. rnH 5H3HH-J sJO D U u3a)l .. aUH p cn 8 S*& s4ta-ee>> a Q H0 JJ 4MjO.3JJ W T-I V CrCtj o5g0Pa; 3 Hi n <D != gas hoo h aJ os C tTMN HARTOLDMON0095078 EXHIBIT T HARTOLDMON0095079 HARTOLDMON0095080 HARTOLDMON0095081 HARTOLDMON0095082 HARTOLDMON0095083 HARTOLDMON0095084 * MSDG 014436 HARTOLDMON0095085 MSDG 014437 HARTOLDMON0095086 MSDG 014438 HARTOLDMON0095087 rSY' MSDG 014439 HARTOLDMON0095088 MSDG 014440 HARTOLDMON0095089 /? a/* /v si/i? L&fl /\ i_ &*'! f- A/' MSDG 014441 HARTOLDMON0095090 -4 4 lo! ^(OqJ MSDG 014442 HARTOLDMON0095091 fS^ G gT MSDG 014443 HARTOLDMON0095092 'Co Vv\ L CE^. MSDG 014444 HARTOLDMON0095093 /- MSDG_014445 HARTOLDMON0095094 MSDG 014446 HARTOLDMON0095095 %o MkS4- kju t MSDG 014448 HARTOLDMON0095097 !l MSDG 014449 HARTOLDMON0095098 MSDG 014450 HARTOLDMON0095099 MSDG 014451 HARTOLDMON0095100 MSDG 014452 HARTOLDMON0095101 MSDG 014453 HARTOLDMON0095102 HARTOLDMON0095103 MSDG 014455 HARTOLDMON0095104 ,a --^ <=i o^ 4 a3p " r '-> -- ------------------------1-- r ----------- t---------------- J O ------ ------ f------------- c> -&____ _____________ -------------------- --------------------- 1----------------- -r? c 'V^W-e^ MSDG 014456 HARTOLDMON0095105 CUYViO 6ef- 27? v MSDG 014457 HARTOLDMON0095106 HARTOLDMON0095107 -->A- V\ Li4r t Qg^L_.c~-<s / ^jvJW0^\ \ \oviklA1 ------------ 1-- ------- . Z- rn MSDG 014459 HARTOLDMON0095108 V>siroo^2>v^ for*"* A L' % ^sxk^o aicjuo^I 9^^- I Zo vJbh s MSDG 014460 HARTOLDMON0095109 6 rtcK u ;// ^ MSDG_014461 HARTOLDMON0095110 43 I 7 C-/C- `-`V/ ct i / : >~viia=^=u; ,-r _ -. HARTOLDMON0095111 -vu UCO' s C-B P c^G^o/itr^Tx MSDG 014463 HARTOLDMON0095112 (d4<6 \"^0^ HARTOLDMON0095113 ~z~~n si ^ HARTOLDMON0095114 5dcyv\ VL- \p D? 'Z-i n x/S<Jr MSDG 014466 HARTOLDMON0095115 c0 ' ^ ^ L^k mSdG.0AA467 ^oldmo**0095116 \A/ ^ MSDG 014468 HARTOLDMON0095117 EXHIBIT U HARTOLDMON0095118 000593 Room # Gender "n *n ~n ~n Tl Tl Tl Tl Tl Tl ~n S "Tl Tl Tl Tl Tl ~n ti Tl m Tl Tl 3 2 00 to to Complainant #1 Complainant #2 m u lti Complainant #3 m ulti Complainant #4 m u lti | Complainant #5 montessori Complainant #6 Complainant #7 montessori Complainant #8 adolescent annex Complainant #9 Complainant #10 montessori + | Complainant #11 montessori + C om plainant#12 || montessori + Complainant #13 montessori + on 3 o o) trDo+ H* montessori + Complainant #15 1 montessori + Complainant #16 art and gym Complainant #17 9, 11 cn Complainant #18 Complainant #19 7, 19 Complainant #20 4,5 Complainant #21 15, Annex + oO u. OJ n o3 co Complainant #22 Complainant #23 Complainant #24 montessori + Complainant #25 montessori + + </> Complainant #26 Complainant #27 montessori + Complainant #28 montessori + Complainant #29 library Complainant #30 15, North pod + Complainant #31 18, woodworking ~n *n Parent/ Still Years a t l Age attending Teacher/Child SVEC 1 Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln in Ln P P P P P P P P P 4* P P adult teacher/parent| 10 child 13 child 00 child yes 11 child yes i iadult mom child H P child adult i mom 12 child child child child 1 10 child 00 child adult teacher 1 adult teacher leave adult teacher part-time r+ Q. C Cl) teacher/parent OO child 15 child 19 child adult teacher | part-time adult parent p a rt-tim e 12 child part-tim e i io child child p a rt-tim e p a rt-tim e Ul child part-tim e adult parent no 12 child no child no pPP P P H* H X X X X X X X XX XX X XX XXXX XX X X X XX Burning Lungs/infla m m a tio n XX XX Asth ma/c ough X XX X XXX X X X X c A" 1^;< w r Gl Cognti Thyr Heavy Grave issues/ ve oid nose s nausea issues issue bleeds Diseas X HARTOLDMON0095119 000594 Complainant #32 montessori, gym Complainant #33 montessori + Complainant #34 montessori + Complainant #35 montessori + Complainant #36 montessori + 1 Complainant #37 montessori + Complainant #38 montessori + Complainant #39 Room #5 and PPP Complainant #40 montessori + Complainant #41 9, art room Complainant #42 Complainant #43 i woodshop Complainant #44 library, art east po Complainant #45 library, art east po Complainant #46 library, a rt east po Complainant #47 Complainant #48 all over Complainant #49 all over Complainant #50 unsure Complainant #51 math pod Complainant #52 math pod Complainant #53 |unsure Complainant #54 22,18,15 + Complainant #55 Complainant #56 resource, library Complainant #57 north pod Complainant #58 north pod Complainant #59 north pod Complainant #60 north pod Complainant #61 north pod Complainant #62 Complainant #63 > P N> 4* 3 3 --h 3 --h --h 3 s ~n NJ cH1n ~n ~n ~n *n ~n ~n T\ Ul T1 ~n ~n ~n -n n *n ~n ~n ~n cn co U> 00 child adult parent 16 child child 10 child child 10 child child adult parent adult parent adult teacher adult i teacher adult parent l1i1 | child child 15 child adult parent child 7o3 In is is is is is M | no no no ) no no p a rt-tim e p a rt-tim e p a rt-tim e p a rt-tim e yes yes no no no | no yes N-> K> ro 1.5 1.5 4.5 4.5 4.5 4.5 < < rp w </ NMJ n a! 00 UJ <-n n a ou 91 +9 ou adult child child child parent child child yes yes yes yes yes parent child 11 child child adult teacher 14-15 child yes yes yes yes no -O \J Oo UJ is. in X XX X X X X XX XX XX X X X XX XXXX X X XXXX X HARTOLDMON0095120 HARTOLDMON0095121 000595 Sore Throat Sinus issues M e ta l taste in mouth Immune issues/"sick all the tim e" Dry Eyes/Ey e issues Dry m outh/ Blisters Rash es/Hi ves Heada che Fatig ue Fainting/ Chest Seizur Dizzy/Vert pain/racin es igo g heart reaction at home other X X X X X X X X XX XX XXX X X X XX XX X X X X XX XX X XX X X X X XX X XX X X X X XXX X X X XXX XXX X XXX X X precocious puberty precocious puberty X X X HARTOLDMON0095122 XX X 000596 X X XXX XX X Cl to O' CD cuT 1/1 3 o <r/o+ X X X XX X XX X leukemia precocious puberty asthma Hashimotos pneumonia pre-diabetes Hashimotos Hashimotos precocious puberty precocious puberty body odor, acne, underarm swea X X XX XX XX X / C01DW Sky Val.'ey fdotation Center Complaint Spre adject t'omplamant in Complainant Hi complamanf 0? Complainant ha Complainant S3 Complainant iFG Complainant H7 Complainant ifR toiilpljirunl IF9 r:iiii|11,iin,ifil mo Coinp'.nn.inl All Comn-iipniirn W17 Cooi pram,int in 3 Complainant JfK Complainant Jr 13 Complainant Jfi6 f onipl.nl n.i nl tf ] ? Complainant fflfi Complainant S 19 Complainant S7U Complainant Hi i to i n p la inj n C Hit Complainant tiii Comp'amiim ti24 Comj)?ainant rt,>$ CotTiphim.itil i2f> Complin mnr rt?7 Complainant IF7R Complainant IF39 Complainant *30 Complainant Jr3l Complainant JTJ2 Roomy occupied 8 multi nil11 h multi rnontpaSuri rt/a rf.potciion adolescent June* n/.i rrionteMnn * mantpsiari mnntesian * mcmtcsyori + monte nan + monte^on t ,uf anil gym 1, 11 G 7. ID A, lj Ui, jlnne* i 13, C U 11 montosson + montPisori * rr.onWiiOri * rrontc^orl mOntolSOri + libr.Uy !5, North pod * 18, wood working mo.'ilcuun, gym Condor Parent/ Tcachcr/Child Stil attending? Vcarjot SVEC Dunlin^ /Vithmu/r oi LinRi/inll ilHJCi/ruui OUgh or mat ion OJ Cogntivc inties Thyroid issues Heavy r.PSC bleeds Disease SQre Thr-p^t Smut issuGS wcial taste m mouth Immune l-JGS/"il ck all the time" adult teacher/pjrant TM 3 1 10 Mn 1) adult 1) 14 adult ]*> 9 M A M 1U M8 adult f aduii ,i ill ill Child child Child Child mprn Cta Id child niPm child chi'rt LhPtl chird third chirp lenche.' tiMChiy (nnchi-r no r.O V01 yPl reayc part time 5 5 unknown 45 45 45 45 4.S 4.5 4,5 4.5 4.5 1.5 1.5 4.3 as 1 1 1 1 i1 1 l] 1 f adult toachcr/par-fint fR child F ic; ( 19 child ciuM f adult teacher part-time 1.5 4-5 4.5 4-3 1.5 1 l 1 1 1 1 11 ] 1 1 1 1 1 t 1 t 1l F adult parent pait-time 1 Fu Child part-time 11 ft M 10 F5 f ada^t MU M0 FA cluld (.In Id child parert Child Child child pJrf-tirnp pait-ticna Oai t tirilC r'U ro r.o m 1 1 1 1 1 1 11 l 1 t t 1 1 i i HARTOLDMON0095123 Complainant tf.13 Complain ant ?rj4 Comp'amunt ConlpFainarH fJjJG Complainant 03/ Complainant Complainant t*i9 Complainant iMO Complainant Jf4i Conipijiniirn Jr.17 ConipFamnnl lfi13 doiiiiil.ini.int JM4 Complainant 045 Complainant H46 Complainant 047 Complainant N4S5 Complainant fl49 CoinpLiijunt 0!>O Comp kuna nt N51 Complainant W!?J Complainant 0^3 Complam ant #54 Comp la man! irc5 Comp'ainant JfSG nionSotsori montoisorl + mOnte iS-Ori tmontessoti + monies son mnntetsori * Hoom #5 anti PPP mantesturi 4, art room $ wootIt hop hPr.ii'v, art cast pod hbrjry, OH cast pod l-braty, ,ft east px>(F 73. 16. f a'l ovar ,i?l over unsure math pod math pod Uninr0 72,18.15 i fi>, R, D, 77, 71 rctuurCC, liprarv Compl j-nunl JF57 Complainant ifl>B Complainant 054 Complii inant it GO Complainant uG l Compljmant (162 Cornplamaiit NG3 Complainant B64 complainant wrj% Complainant IP nO'lti pod Jiotth pod noclti pod "unh ood north pod l: and 0 F an-j J) 4 4,5 Mo ntr tto r i/<i at h cn nj{ adult M 1G 33 M 30 & to 6 > adu't F ,n1nFt 1 adult M adult f adult fn F 11 F 15 f adult F 19 f 16 F 17 F9 M6 F adult Mj mS f9 f Hi 1 j f 11 111 a M adult m CM'. fil G m8 f adult pjront LhiU thiM child LlnhJ Child ch,Id parent parent teacher teacher DJfCllt child Child chi'rl Parent Child child (Inld child ch'ld parent <Jnld chdd rhilrl pasent Child child child teacher r Fli !d chuy Chi'd parent no no no no ru partt.mi? pan-time part-time pjrt time Ycl yes no no no no VCS no yes v yes j yes yet yet yet yes VOS yps vet no no no r.p port time 4 1.5 1.5 1.5 <1.4 4 > 45 7 2 7 4.5 4.5 6* > ? ? > i .1 2 7 45 45 45 45 1 45 3 3 4 1 l1 1 11 1 1 1 i 1 1 l 1 1 1 1 1 1 1 } l 1t ] 1 1 001335 1 1 HARTOLDMON0095124 Compel 1 n,nnE All 7 Complainant floa rompla inant r469 Complainant N70 Complainant n71 Mo nte s-^cri/Cl atha r ir-|a Montcssori/ijathcrinR Mont ei it?r i/G a" ti u ririx Montessuri/G athenri): Noilti Pod 1 ilsratv- Gym F F F F 9 1 2 n to ni pijiti Jnl Mi North Pod Library, Gym M IS CocViprainarv wv 3 Coniplflinant 4174 North Pod library, tjvni nujiti (T.rT cmail| adult Mu Cpmplainant f47S multi {sen fllliailj M9 Complainant N7& Complainant Mf Complainant rt/S ConijUamant Jr/1? Complainant U30 !'omplamant 41 ft] Complainant 4J82 muMwe emaill Ulj-Mry. fpiOufCO. E Olirlti multi rnulo 3, 9, tl CSS, Library Mi 7 adult lt> \7. n M9 r- adore Complainant C(.inifil,iin,inl r4JM Complainant rfS9 Bym, ]r lb, 3/, wrestrui^ library, yatliernljj. . unknown ts t} urlkili'nV F Complainant Jfd& muntesson and adolescent winn F 14 tonij:ir,. 11 .i rK Jra/ Coriipl .liminC 41R 8 Complainant SJ89 C ompla ina nt fJdO Complainant U9l 4l 1 OVI11 and ^al tl 0 r iri U ry p i n all Over tihraiy Math pod, east pod, room tr<> and 4no Bund, Library HSS, Monfesson Anno* F F M F F a dull ,'iilull 13 3 U Complainant n92 <',:iiii|'ilmn,lill l*`M Complainant 494 Complainant irDS CompfinnarH 49G Complin ant n97 Complainant Jl9 Mcnlesson 46 tSSandPit ESS and more Annex, LSS Library 49, irll library, RotlmrinR.. m 13 s- in m 1/ ( 13 t adult F9 F adult child child child Child child Ch Id parent child Child chdd parent Chird chifd child child parent child th.ld cn Id Child parent parent Child Child child chi'ct chi'd chid chi'd parent child parent part lime part time part time oart time ves < 4 4 4 ? yes 7 yui 2 yes 4 yCS 4 yes part time port turn? part lime part lime part lime yes A 4.S 4S 49 49 4S 2 yci 1 yes 1 p? yes unknown yes unknown ... ,._ yes l \ yes t yes :.s yes b yes 7 yes .1 yes .1 yes n VPS S ves 1 1 t t 1 1 l 1 1 1 1 1 1 1 1 3 1 1 1 t \ \ 1 1 1 1 1 1 1 t i 1 1 11 1 001336 ] ] 1 l ` 1 l i 1 3 t 1 1 HARTOLDMON0095125 ComfUin-intJt9^ CDrrpla inant if 100 11, a. ID, Anne*, H 11, 8, montessori, a, Annex, Ovm, ia, jo M M Complainant lOl library Complin ant frl02 Complainant Jr 10 3 to m phi hint wi04 Complainant JJ 103 11, % Choir, Art 11,0, Choir, Art 11,9, Choir, A/l All over, rtoom NS, Ar?, Engh$h, nothing in Anne* M M Complainant 0100 Pdoinly Pdontcsiori pod, wcDcKvorkina, flym M Cuirpkdmul rJtO/ Mil-'^o^it, 01 sen, Leahy, Murif>n-Df?I.HiiLJ, Noilli pod, ESS building F Lomnlmnanl JtlflS PJl.irtiu.iii, Olson, Leahy, Mullpn-OnLind, North pod, HSS tHiiktnifi M 12 10 adult 10 7 !i 18 12 10 14 Complainant infl^ fathering room, Pdalh pod, Mor<],j.irt, Olscrt, ic.iJiy, Nii.pl le n -(7e lo nd, f SS Jjui Idi nfl F Com ulm mint U1L0 Complainant *t]l,t Complainant (4112 Oil Over nil ovflr gathering room/liPrary h Pd M Complainant Wll 3 gathering room/libr.wy Pd adult / S 4 7 Complainant f) 1 in Annex A, 04 and JfO F3 Complainant rJ 113 Complainant rJl 10 Annex A, B4 jn([ JfS PJ jnd many Other clai-^rooms- f* f adult child l; h i !ci Psirenl Child child child Child Child Chi'c! chird porcnl child child child child child child p-ireol Y yec no no r.o no part time S s yes 5 no 5 part time , no s yes 1 ves t yes 1 yes 1 no 1 no 1 syes 1 1 1 1 1 1 1 11 1 ! 1 1 1 001337 1 1 1 1 1 1 1 -- 1 HARTOLDMON0095126 tnmpl.imant *01 i Complainant FJLIB CompUnin.int Dtl^ A ,>nd C 6 6 14 M 1? M 10 TOTA LS chi?ri third child 001330 VC5 5 y<M S 1 yes 5 1 11 18 29 21 fi 10.5 14 4 21 C-v-rri ny Aslhrnd/t Lurgs/infl OUgh am motion fil iUei/n<iin 0^ Cognlivo iuun thyroid H-j'jCi Heavy nose lifpetfs (Jiv?aio Sore Threat 9: mu issuti t/ctiil taito -ri mouth Immune isiucJ/"ji c!n j|l the lirne' HARTOLDMON0095127 Dry fye^/fye UitCJ Dry rr'Duth/Ol r 5- Hjihffi/H ivCS MOcid.iche fatigue Seizure* Fjintmft/ OiJiY/Ver pj in/racing HO hejrr reaction at horr.e Olr.pr bormnji .n nose an(S lL mouth Graves disease _______ !______ t -- - ------------- 1 'l l l1 tl 1l l 1 1 l 1t 1l ll \l \ l ll 1 ] ] Il 1 t \ precocious puberty 1 precocious pnbeny 001339 HARTOLDMON0095128 1 l kukoii-MO pjrncuciuus puborly iKhma d-juetei, Haiimotoi -- l 1l 11 \ 1 pneurnonij O'C diabetes H jihimotoi HiHhiMlOtOi --------- . l 1 .....-........ OrOCOt.Ou5 puljOrty -- l 11 1 body ndor, -icno, und<*r,wm ne 1 l1 \ 1 l 001D4G HARTOLDMON0095129 1 11 t 1 1 1 1 ] 1 1 1 1 ] 1) 1 1 11 ]1 \ 1 HaSiJrtOtOl AifjCrjjOri Oiifupt.yc mood disorder Hdrtnjl i',JuC4, hypothyroid diagnoy y hype r thy rod i^m - Grave* f>t&Woodwork in room when ti.ill.-ni! rooked HARTOLDMON0095130 1 l 1 ]l 11 11 11 1 1 1] J^liOW breathing, C'Cilr|il tflKOOt -- ,-dlj'Mj'ill,-ll cliyrDid ^uriU Skin peeling an feet PC6 Woodwork, !nvk<, aF^hn rKirt^ jkm pce'mgon feet 1 ooi ru: HARTOLDMON0095131 1 mustache at ajje 12 \] tody odor Since 3rd fpr.idn, welts 10 4 IS <14 4J 2 n 6 2 Ury Jj*v Fy^i/Eye ttdihCi/H moiJih/Oi njuei inters, ivs q h+? Fatigue Senurci FjinTint/ cteit Diiiy/Vcr poin/r^rinp t'go heart reaction jl home 001 D4.G HARTOLDMON0095132 EXHIBIT V HARTOLDMON0095133 PCB Light Fixture Cleaning BUILDING 4 TECHNOLOGY ED , 1 -2 onr nog i i i ~n~i HDD tDaOon F i uym mm mm mm mm mm mm ITinl Eje4i BhPfhirtTti'ti mm mm nsonuous K m m flit mm mm mm mm 00 00 oo 'II ttoo oo o ItI|I .tilmm mm mm mm o Large Gym oO o aB to' ' In GYMNASIUM Monroe Public Schools SKY VALLEY EDUCATION CENTER DISTRICT STORAGE ff LL T DISTRICT STORAGE r~ PORTABLE 2 SKY VALLEY EDUCATION CENTER Core Instruction Special Education Special Education Support Elective / Specialist / PE Support Restrooms Hallways / Foyers Administration/ Staff Rooms Conference Rooms Storage / Mech Spaces HARTOLDMON0095134 SKY VALLEY EDUCATION CENTER SKY VALLEY EDUCATION CENTER Core Instruction I I Special Education Special Education Support Elective / Specialist / PE Support Restrooms Hallways / Foyers Administration/ Staff Rooms Conference Rooms Storage / Mech Spaces Mo" roe ;'..folic Schools - Sta - STfrFp STrtoreEi i W'lU HARTOLDMON0095135 EXHIBIT W1 HARTOLDMON0095136 SNOHOMISH m----- HEALTH DISTRICT WWW.SNOHD.ORG 000741 Environmental Health Division June 2, 2016 John Mannix, Assistant Superintendent, Operations Monroe School District 200 E Fremont St Monroe, WA 98272-2336 Devlin Piplic, Director of Facilities Monroe School District 200 E Fremont St Monroe, WA 98272-2336 Karen Rosencrans, Principal Sky Valley Education Center 351 Short Columbia St. Monroe, WA 98272 Subject: RESTRICTED ACCESS TO ANNEX BUILDING School Environmental Health and Safety Complaint Investigation Name of School: Sky Valley Education Center Location: 351 Short Columbia Street, Monroe, Washington 98272 Dear Mr. Mannix, Mr. Piplic and Ms. Rosencrans: Our office received an electronic response from Monroe Public Schools on May 26, 2016 regarding our ongoing complaint investigation at Sky Valley Education Center. Since December 1,2015, over 90 parents, teachers and children have reported illness that they associate with the building. All of the rooms that were retested during the PCB air sampling resulted in levels higher than originally reported. Room A: 630 ng/m3 Room C: 450 ng/m3 Room C/A Prep: 480 ng/m3 Room D: 430 ng/m3 Room F: 210 ng/m3 Annex Hallway East: 390 ng/m3 Annex Hallway West: 390 ng/m3 Girl's bathroom: 180 ng/m3 * Room #11: 260 ng/m3 WAC 246-366-140 states, "the existence of unsafe conditions which present a potential hazard to occupants of the school are in violation of these regulations." Effective May 27, 2016, Monroe Public Schools has closed Room A. The elevated PCB air sampling levels above the EPA Rfd warranted a closure of that room. Irrespective as to the reason as to why the PCB levels have increased, exposure must be limited to the most vulnerable student population while further remediation and air scrubbing activities are on going. 3020 Rucker Avenue, Suite 104 Everett, WA 98201-3900 tel: 425.339.5250 n fax: 425.339.5254 HARTOLDMON0095137 000742 In addition, The Snohomish Health District is requiring that the remainder of the Annex Building and Room #11 be inaccessible to children under 12 and pregnant mothers until follow-up testing is completed to show that PCB levels are in an acceptable range. Since PCB levels were noted to be close to 500 ng/m3 in a few areas of Annex, it is best practices to limit access to the rest of the Annex Building and Room #11 by only allowing children 12 and older in the Building for the last few weeks of school. It is unacceptable that there are still light fixtures that have not been cleaned in the Office, Technology, Gyms and Office area. To avoid additional closure requirements, please provide documentation that this work has been done, including additional documentation as specified in the May 25, 2016 letter, by June 9, 2016. The Corrective Action Plan regarding PCB-containing caulk and paint should be finalized with the EPA. Please provide documentation by June 9, 2016 that staff and students have been notified to not touch or come in contact with the PCB-containing caulk or PCB-containing paint. Additional mold abatement, roof repair, unit ventilator cleaning and carpet removal must be addressed by an August 31, 2016 walk-through of the school. We would like to schedule a site visit on Monday June 6, 2016 at 10 a.m. to ensure that the Annex has been closed to younger students and proper signage posted at Room #11. I am available to answer any questions at 425.339.8781. Jefferson Ketchel, MA, RS Director, Environmental Health Division JK/AZ:jg cc: Nancy Bernard, Washington State Department of Health Dr. Fredrika Smith, Superintendent, Monroe School District No. 103 Michelle Mullen, EPA Region 10 Nancy Beaudet, Pediatric Environmental Health Specialty Unit Lauren Jenks, Washington State Department of Health Gary Goldbaum, Snohomish Health District HARTOLDMON0095138 EXHIBIT W2 HARTOLDMON0095139 SNOHOMISH HEALTH DISTRICT WWW.SNOHD.ORG June 29, 2016 000936 Environmental Health Division John Mannix, Assistant Superintendent, Operations Monroe School District 200 E Fremont St Monroe, WA 98272-2336 Devlin Piplic, Director of Facilities Monroe School District 200 E Fremont St Monroe, WA 98272-2336 Karen Rosencrans, Principal Sky Valley Education Center 351 Short Columbia St Monroe, WA 98272 Subject: RESPONSE TO THE CORRECTIVE ACTION PLAN School Environmental Health and Safety Complaint Investigation Name of School: Sky Valley Education Center Location: 351 Short Columbia Street, Monroe, Washington 98272 Dear Mr. Mannix, Mr. Piplic and Ms. Rosencrans: The Snohomish Health District (Health District) received a copy of the Corrective Action Plan from Monroe Public Schools on May 26, 2016, and an addendum on June 9, 2016 regarding the ongoing complaint investigation at Sky Valley Education Center. Since December 1, 2015, over 100 parents, teachers and children have reported illness that they associate with the building WAC 246-366-140 states, "the existence of unsafe conditions which present a potential hazard to occupants of the school are in violation of these regulations." In an effort to comply with this requirement, as well as those outlined in Health District letters of April 25, 2016 and June 2, 2016, it is our understanding that the School District has taken a number of actions. Additionally, the School District has prepared a "Corrective Action Plan for Sky Valley Education Center" dated May 25, 2016 as well a letter (addendum) to the Health District dated June 9, 2016. As stated in these documents, the School District intends to complete all described work by August 31, 2016. The Snohomish Health District appreciates the School District's intended diligence to remediate issues at the facility. As a condition for opening the school for use this fall for the 2016-2017 school year, the Health District is requiring satisfactory completion and acceptance by the Health District of all remediation, cleanup, repair and testing measures as outlined in the Corrective Action Plan and the later addendum. To this end, the Snohomish Health District accepts the actions outlined in items 1-8 of the May 25 Corrective Action Plan. In particular, we expect completion of additional air testing in all the rooms that had elevated levels of PCBs as detailed in Item 6. The Health District requires that air testing from these rooms, and any other rooms that are tested for PCBs in the air due to caulk removal, confirms PCB levels are below a concentration of 100 ng/m3. 3020 Rucker Avenue, Suite 104 Everett, WA 98201-3900 tel: 425.339.5250 fax: 425.339.5254 HARTOLDMON0095140 000937 Be advised. SHD wifi not approve opening the school for the 2016- 2017 school year if the concentrations of PCBs in the air are not below 100 nq/m3 in all the rooms tested. Additionally, the Health District looks forward to receipt of information regarding the PCB caulk testing as outlined in the June 9 letter (addendum). The Snohomish Health District expects regular and continuous update/communication with the School District regarding the remediation process over the coming months prior to the August 31, 2016 completion date. Consequently, the Health District will be in contact and/or conduct site visits a minimum of every two (2) weeks to confirm the project is on track to meet the deadline, Amanda Zych will schedule these check-ins with Devlin Piplic. I am available to answer any questions at 425.339.8781, Sincerely / Director, Environmental Health Division JK/AZ:ss cc; Nancy Bernard, Washington State Department of Health Dr. Fredrika Smith, Superintendent, Monroe School District No, 103 Michelle Mullen, EPA Region 10 Nancy Beaudet, Pediatric Environmental Health Specialty Unit Lauren Jenks, Washington State Department of Health Hans Dunshee, Snohomish County Council Jeff Rasmussen, Monroe City Council Gary Goldbaum, Snohomish Health District HARTOLDMON0095141