United States District Court, S.D. California
WILLIAM Q. HAYES, United States District Judge
matter before the Court is the Motion to Dismiss the City of
San Diego's Second Amended Complaint. (ECF No. 108).
March 13, 2015, Plaintiffs San Diego Unified Port District
(the “Port District”) and City of San Diego (the
“City”) commenced this action by filing the
Complaint. (ECF No. 1). On August 3, 2015, the City and the
Port District filed separate First Amended Complaints
(“FACs”) against Defendants Monsanto Company,
Solutia Inc., and Pharmacia Corporation. (ECF Nos. 24, 25).
On August 31, 2015, Monsanto filed a Motion to Dismiss the
City's FAC (ECF No. 31) and a Motion to Dismiss the Port
District's FAC (ECF No. 32). On September 28, 2016, the
Court issued an Order granting in part and denying in part
Monsanto's Motion to Dismiss the Port District's FAC
and granting Monsanto's Motion to Dismiss the City's
FAC in its entirety. (ECF No. 81).
November 28, 2016, the City filed a Motion for Leave to File
a Second Amended Complaint. (ECF No. 85). On December 20,
2016, Monsanto filed a Statement of Non-Opposition to the
City's Motion. (ECF No. 89). On December 21, 2016, the
Court granted the City's Motion for Leave to File a
Second Amended Complaint. (ECF No. 91).
December 22, 2016, the City filed the Second Amended
Complaint (“SAC”) alleging a single cause of
action against Monsanto for continuing public
nuisance.(ECF No. 93). On March 24, 2017, Monsanto
filed Motion to Dismiss the SAC. (ECF No. 108). On April 7,
2017, the City filed a response in opposition. (ECF No. 109).
On April 17, 2017, Monsanto filed a reply. (ECF No. 111).
28, 2017, the Court held oral argument. (ECF No. 133).
ALLEGATIONS OF THE COMPLAINT
City is a “California Charter City and municipal
corporation.” (ECF No. 93 at ¶ 11). “The
City was a trustee of certain relevant tidelands and
submerged lands in and around the [San Diego] Bay from the
early 1900s through 1963, when that property was transferred
to the Port District.” Id.
Monsanto Company, Pharmacia LLC, and Solutia Inc.
(collectively, “Monsanto”) are three separate
corporations spun off from the original Monsanto Company.
Id. ¶¶ 13-17. “Mosanto Company has
repeatedly held itself out as the sole manufacturer of PCBs
in the United States from 1935 to 1979, and trademarked the
name ‘Aroclor for certain PCB compounds.”
Id. ¶ 2.
biphenyls (or ‘PCBs') are man-made chemical
compounds that have become notorious as global environmental
contaminants - found in bays, oceans, rivers, streams, soil,
and air.” Id. ¶ 1. “In humans, PCB
exposure is associated with cancer as well as serious
non-cancer health effects, including effects on the immune
system, reproductive system, nervous system, endocrine system
and other health effects.” Id.
commercially-produced PCBs . . . were used in a wide range of
industrial applications in the United States, including
electrical equipment such as transformers, motor start
capacitors and lighting ballasts. In addition, PCBs were
incorporated into a variety of products such as caulks,
paints and sealants.” Id. ¶ 80.
“PCBs easily migrate or leach out of their original
source material or enclosure and contaminate nearby surfaces,
air, water, soil, and other materials.” Id.
knowledge of PCB toxicity, Monsanto continued to
“promot[e] the use and sale of Aroclor and other PCB
compounds.” Id. ¶ 95. “Monsanto
remained steadfast in its production of . . . PCBs.”
Id. ¶ 103. “While the scientific
community and Monsanto knew that PCBs were toxic and becoming
a global contaminant, Monsanto repeatedly misrepresented
these facts, telling governmental entities . . . that the
compounds were not toxic and that the company would
not expect to find PCBs in the environment in a
widespread manner.” Id. ¶ 117.
“Although Monsanto knew for decades that PCBs were
toxic, knew that they could not be contained and as a result
were widely contaminating all natural resources and living
organisms, and knew that there was no safe way to dispose of
PCBs, Monsanto concealed these facts and continued producing
PCBs until Congress . . . banned the manufacture of and most
uses of PCBs as of January 1, 1979.” Id.
of having customers return fluids, Monsanto instructed its
customers to dispose of PCB containing material in local
landfills, knowing that landfills were not suitable for PCB
contaminated waste.” Id. ¶ 112.
“Monsanto had determined that the only effective mothed
[sic] of disposing of PCBs was incineration, and it
constructed an incinerator for disposal of its own PCB
contaminants.” Id. “Nevertheless . . .
Monsanto instructed its customers to dispose of PCB
contaminated waste in landfills . . . .” Id.
have traveled into San Diego Bay and the City of San
Diego's stormwater system by a variety of ways.”
Id. ¶ 4. “The Bay is one of the
region's most widely used natural resources, and the PCB
contamination affects all San Diegans, who reasonably would
be disturbed by the presence of a hazardous, banned substance
in the sediment, water, and wildlife.” Id.
¶ 124. “PCBs . . . have been found in samples of
sediments and water taken from the Bay at varying times and
locations, requiring substantial remediation work and
cost.” Id. ¶ 125. “PCBs are
identified as a Primary Chemical of Concern (‘COC')
in California Regional Water Quality Control Board, San Diego
Region (‘Regional Water Board') Cleanup and
Abatement Order (‘CAO') No. R9-2012-0024 . . .
which directed the City to, among other things, remediate PCB
contaminated sediments within a discrete area known as the
Shipyard Sediment Site.” Id. ¶ 126.
“Other areas of PCB deposition and impacts have been
located, and it is probable that the Regional Water Board may
order remediation of PCB contaminated sediments in other
areas.” Id. ¶ 127. “PCBs leach from
landfills and are found in commercial and industrial waste
water as a result of Monsanto's directions to its
customers on proper disposal methods when it knew . . . that
disposal of PCBs in landfills was not proper.”
Id. ¶ 130. “PCBs regularly leach, leak,
off-gas, and escape their intended applications, causing
runoff during naturally occurring storm and rain events,
after being released into the environment. The runoff
originates from multiple sources and industries and enters
the City of San Diego's stormwater system and San Diego
Bay through stormwater and dry weather runoff.”
Id. ¶ 4.
City has property rights in its stormwater system, captured
stormwater, and tidelands or submerged lands, and other
public trust lands that are contaminated with Monsanto's
PCBs, to the extent the City of San Diego owns or holds lands
in public trust.” Id. ¶ 25. “The
City owns, manages, and operates a municipal stormwater and
dry weather runoff system, which captures, collects, reuses
for beneficial purposes, and/or transports stormwater and dry
weather runoff.” Id. ¶ 26.
“Monsanto's PCBs have contaminated and damaged
multiple facilities within the City's stormwater and dry
weather runoff systems.” Id. ¶ 27.
“As a result of Monsanto's PCB's presence, the
City cannot operate many of its stormwater and dry weather
runoff systems as designed because the system now requires
upgrades and retrofits to accommodate Monsanto's
PCBs.” Id. ¶ 28. “The City has
incurred and will continue to incur costs to reduce PCBs from
stormwater and dry weather runoff, which includes efforts to
capture and beneficially use stormwater and dry weather
runoff to augment existing water supplies.”
Id. ¶ 29. “The City's stormwater and
dry weather runoff management system is damaged such that
multiple facilities within the City's system has [sic]
been and must be further retrofitted and improved in order to
reduce and remove PCBs from stormwater and dry weather
runoff. The retrofits and improvements required to reduce
PCBs from stormwater and dry weather runoff have cost and
will continue to cost the City money.” Id.
¶ 30. “Retrofits . . . are required to reduce and
remove Monsanto's PCBs to prevent further contamination
of the San Diego Bay.” Id. ¶ 33.
municipal stormwater system “collects and transports
stormwater to be discharged into the Bay.” Id.
¶ 130. “In order to discharge stormwater into the
Bay, [the City] is required to receive a Municipal Regional
Stormwater Permit from the Regional Water Board, pursuant to
the National Pollutant Discharge Elimination System under the
Clean Water Act.” Id. “As stormwater
system owners and operators, [the City] has spent substantial
amounts of money to limit the amount of PCBs in the Bay. [The
City] will also likely continue to incur costs to remove PCBs
from the Bay and to keep PCBs from entering the Bay for the
foreseeable future.” Id. ¶ 131.
Stormwater Resources Planning Act “authorizes the City
to develop a stormwater resource plan, including compliance
with stormwater regulations and beneficial capture of
stormwater” and “confer[s] use or usufructuary
rights on the City regarding . . . dry weather runoff and
stormwater.” Id. ¶ 41. Further, in
Assembly Bill 2594, “[t]he Legislature passed
legislation confirming and codifying the Cities' use
rights in stormwater.” Id. ¶ 36.
“The City built, and owns, and manages an entire
stormwater system, including plans and programs designed and
intended to capture stormwater for beneficial uses outlined
in The Stormwater Resources Planning Act . . .”
Id. ¶ 50. “The City has a usufructuary
right and property interest in stormwater and dry weather
runoff by its beneficial capture and use of
stormwater.” Id. ¶ 49.
City of San Diego has specific water rights and property
interests in the San Diego River, and other rivers and
streams in San Diego, through Pueblo Rights.”
Id. ¶ 75. The San Diego River “transports
stormwater and dry weather runoff” and “is part
of the stormwater management system and plan for the City of
San Diego.” Id. ¶ 77. The San Diego River
operates “as the main stormwater thoroughfare for all
flows from the San Diego River Watershed to drain to the