Lee takes action after General Electric failed to respond at a critical moment in the litigation; the company now agrees to comply with the lawsuit

Lee — After General Electric Company (GE) allegedly failed to respond in a timely manner to complaints filed by Lee City Attorney Cristobal Bonifaz, the court had considered actions that might give the municipality an advantage in its federal case centered on the conglomerate and Monsanto. However, after some technicality, the company agreed to respond to Lee’s allegations while Bonifaz filed his lawsuit.

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On March 13, Lee filed a civil lawsuit in Massachusetts state court, naming GE, Monsanto, and its spin-offs Solutia and Pharmacia as defendants. He alleged that the companies had an illegal relationship, a conspiracy, in which GE agreed to indemnify and hold Monsanto harmless for all consequences of selling its now-banned polychlorinated biphenyls (PCBs) to GE because the authorities knew of the dangers the chemicals posed to humans and the environment. GE was found to have discharged PCBs into the Housatonic River after using the chemicals at its Pittsfield electrical transformer manufacturing plant.

A 2020 settlement between then-representatives of five Berkshire towns—Great Barrington, Lee, Lenox, Sheffield and Stockbridge—as well as GE and the Environmental Protection Agency (EPA) stipulated that those municipalities would receive a total of $62 million from GE if they did not appeal the terms of the settlement. Under that settlement, Lee received $25 million and an Upland Disposal Facility would be built within the town limits to receive the less toxic material dredged from the waterway. But Bonifaz insists that the 2020 document, long opposed by residents and local government, does not prevent Lee officials from seeking financial compensation from GE and Monsanto for the damages caused to the town and its residents, including the use restriction of the river that runs through the town and the negative impacts of a toxic waste dump in their jurisdiction.

Regarding Lee’s lawsuit, a Monsanto representative responded to The Berkshire Edge at the time that the lawsuit “reflects an attempt by the City of Lee to impose environmental liability on a manufacturer that has not disposed of PCBs in or near the city and is not a party to a settlement under which the city agreed to establish a PCB disposal site.” In addition, the spokesperson stated that the agreement that formed the basis of the lawsuit was only between GE and Monsanto.

After the lawsuit was filed, the case was transferred to a federal court, the U.S. District Court for the Western District of Massachusetts, in April at GE’s request.

Lee asks court to decide on liability of GE and Monsanto

On May 10, the city asked the court for partial summary judgment, a ruling on some claims in the case that Monsanto and GE are liable for the damage to residents and the environment. That ruling would limit the issues for trial. Boniface said GE never responded to that filing within the required June 8 deadline and is now asking the court for a default judgment from GE on the liability issue; that is, a clear ruling in favor of Lee on summary judgment. That document can be found here.

“This continues to demonstrate GE’s arrogance and contempt not only for the public but also for the courts,” Lee Select Board member Bob Jones said in a statement. “They clearly have no interest in what is best for Lee and the river corridor. If this is a reflection of how they will meet the EPA’s requirements, how can we trust them to properly implement the cleanup plan?”

In its July 1 objection to the default, GE argued that the move to federal court occurred before it had even been served with the lawsuit or formally notified of it, and therefore GE could not be considered a party to the case until the lawsuit was served on June 17. At that point, its attorney, James Campbell, agreed to waive service, which legally gives the defendant more time to respond to the lawsuit, which in this case GE reportedly has until August 12.

In addition, GE claims that service of summary judgment did not begin until June 17, when the company waived service of the complaint and subpoena, so the company is not yet in default in its response.

“Basically, in my entire career, I’ve never heard of anyone doing anything like what GE did,” Bonifaz said. “They were never served. I was waiting to prepare my motion for summary judgment in (state) court. Before I had served the motion on anyone, GE came running in a panic and transferred the case to federal court, which was fine. When they filed the motion in federal court in April, they accepted federal court jurisdiction. When they accepted federal court jurisdiction on May 10, I filed a motion for summary judgment, and they have to respond to that.”

Campbell alleged that Boniface had made no attempt to resolve the matter in light of the response to summary judgment, and yet Boniface had nevertheless filed a motion for default judgment on the matter.

However, Bonifaz said he discussed the timeline with GE’s counsel and agreed to give the company additional time until Aug. 6 to respond. He said he was later informed that GE would never respond to the motion for summary judgment, but would instead file other pleadings. Bonifaz said he then filed a motion for default judgment on the issue on June 20. In an accompanying memorandum, he defended his motion by saying GE still had to respond to the motion for summary judgment within the 28-day deadline, regardless of when GE was served with the lawsuit.

GE’s counsel informed the court on July 5 that a summary judgment response would be filed by July 8, and Boniface agreed.

A GE spokesperson responded to The Berkshire Edge that the company declined to comment due to ongoing litigation.

Monsanto demands dismissal of all Lee lawsuits

Meanwhile, on July 3, the Monsanto defendants, through their attorney Stephen Hanson, filed a motion to dismiss the complaint for summary judgment, asking the court to dismiss all of Lee’s claims. Hanson clarified that Lee’s lawsuit was “a case of obvious buyer’s remorse.” The city is now seeking damages from GE and Monsanto Company for the disposal facility that will be built in the middle of the city. Although the city agreed to the 2020 settlement that requires a toxic waste site in Lee and the dredging and removal of PCB-containing materials through city streets, Lee officials and residents have long complained that this agreement was made behind closed doors and without their knowledge or consent.

First, Hanson argued that the lawsuit could only have been filed within three years of the alleged act, in this case the sale of PCBs to GE and others that occurred before 1977—the lawsuit was simply filed too late. Second, although Lee’s lawsuit states that the city learned of the agreement between GE and Monsanto in December, he claimed that the allocation of the liability agreement or indemnity between those parties had nothing to do with the damages suffered by Lee. Third, Hanson claimed that the city’s compensation had already been negotiated in the 2020 settlement agreement, which called for $25 million, with that compensation preempting any further government action by the federal government. Finally, according to Hanson, Monsanto was not a party to that settlement agreement and cannot be held responsible for its terms.

“Normally, this (type of) case would be preempted by CERCLA (Comprehensive Environmental Response, Compensation and Liability Act, which applies to a Federal Superfund-funded cleanup site),” Bonifaz said. “In this case, CERCLA allows the City of Lee to seek damages.”

Although the 2020 federal agreement cannot be changed, the municipality can seek compensation due to the potential harm to people and the environment, he said, referring to the lawsuit.

“I came here to win this case,” Bonifaz said. “Between 1972 and 1977, GE and Monsanto joined forces in a criminal conspiracy to harm people and the environment.”

According to Bonifaz, Monsanto sold 400 million pounds of PCBs to GE. “The contamination is everywhere, in the Hudson River, in Washington state,” he said of the PCBs.