A prominent Burlington law firm plans to file a lawsuit in the coming weeks against biotechnology giant Monsanto over harmful chemicals in school buildings, the latest in a stream of similar Vermont litigation.
Pietro Lynn, a partner at Lynn Lynn Blackman & Manitsky, said his firm has been retained by multiple Vermont school districts across the state and expects to soon file a complaint in federal court over polychlorinated biphenyl contamination.
“Who bears the risk of cleanup for a product that was sold by Monsanto? Is it going to be Vermont schools and Vermont communities, or is it going to be Monsanto?” Lynn said in an interview. “We think it ought to be Monsanto.”
PCBs, a class of chemical manufactured by Monsanto for much of the 20th century, have been linked to multiple damaging health effects. The chemicals were incorporated into many common building materials, including caulk, paint, insulation and electrical equipment.
The Environmental Protection Agency banned PCB manufacturing in 1979, but the chemicals remain in many of Vermont’s aging school buildings. Their prevalence and the cost of their cleanup have become a source of anxiety in recent years for many school districts.
In 2020, high PCB concentrations forced the evacuation of Burlington High School, and students were moved into an abandoned downtown mall. After that, Vermont launched an unprecedented effort to test hundreds of school buildings for the chemicals.
Roughly 50 schools have been tested so far, according to state officials, about a third of which have shown elevated PCB levels.
Vermont’s legislature has set aside $32 million to reimburse school districts for PCB mitigation and remediation. But many local administrators fear that the state’s money will be insufficient, leaving school districts on the hook for expensive cleanup measures.
Now, some district officials are turning to litigation in an attempt to recoup those costs.
In December, the Burlington School District sued Monsanto, alleging that it was responsible for high PCB levels that eventually led to the demolition of Burlington High School. The suit seeks to force the company to pay for PCB cleanup and for construction of the district’s new high school. Two former Burlington High School educators have also sued Monsanto over alleged harm from PCB exposure.
Last week, Vermont’s attorney general, Charity Clark, filed a third lawsuit against Monsanto, citing environmental damage to state waterways, as well as schools.
Monsanto “chose to aggressively promote PCB-containing products for use in construction, including schools,” the attorney general’s complaint reads. “The effect of this is that a number of schools in Vermont have levels of PCBs that require remediation in order to protect human health.”
Nicole Hayes, a spokesperson for Bayer, which owns Monsanto, pushed back against allegations of wrongdoing.
“We will respond to a complaint, if filed, in detail in court, but as described this potential case has no merit,” Hayes said in an emailed statement.
Hayes pointed to the fact that Vermont’s PCB screening levels are more stringent than those published by the EPA and accused Vermont of failing to maintain its school buildings.
“The bottom line is that the state has underfunded its public schools and significantly deferred recommended best maintenance practices,” Hayes said, adding, “The state cannot recover damages from Monsanto for problems caused by its own neglect and delays.”
Lynn Lynn Blackman & Manitsky is working with two other law firms, Tennessee-based Frazer PLC and Onder Law, LLC, based in Missouri, according to Lynn. Outside of Burlington, the firms are representing “all the other Chittenden County (districts), all of Franklin County, all of Orleans County, all of Windsor County, all of Orange County,” he said, among others. “So this is literally almost all of the districts in the state.”
It’s not clear how many of the schools represented by the firms have detected PCBs. Many are likely still awaiting testing. Testing has revealed elevated PCB levels in at least 11 schools, including Charlotte Central School and North Country High School, according to the attorney general’s lawsuit.
Jeff Francis, executive director of the Vermont Superintendents Association, said that he had heard from several superintendents about the case but knew few details.
“I don’t know which school districts, I don’t know what the nature of the (retention) agreement is,” he said.
Asked about the upcoming legal action, Lauren Jandl, the attorney general’s chief of staff, said only that the agency was aware of two previously filed lawsuits over PCBs.
It’s unclear how the attorney general’s lawsuit will affect the new case. In response to a question on the subject, Jandl shared a document about the state’s case titled “Q&A For Vermont Schools.”
“The State cannot guarantee how Vermont courts would treat private lawsuits concerning the same subject matter filed independently by individual schools after the filing of the State’s lawsuit,” the document reads.
Schools that have already retained a private attorney “should consult with your attorney and ask them to explain the impact of the State’s lawsuit and your options going forward.”
Lynn said he did not know if the attorney general’s case will complicate his.
“What I do know is this: that if there is money to be paid, beyond what the state has allocated, the districts will have to pay those funds for mitigation,” he said. “So the districts should do whatever they can to make sure that their communities don’t end up financially responsible for those costs.”