All Law Division initial Case Management Dates will be heard via12-Person

ZOOM. Jury
For more information and Zoom Meeting IDs go to https://www.cookcountycourt.org/HOME/Zoom-Links/Agg4906_SelectTab/12
Remote Court date: 5/30/2023 10:00 AM
FILED
3/24/2023 3:04 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
CIRCUIT CLERK
COUNTY DEPARTMENT, LAW DIVISION
COOK COUNTY, IL
2023L002929
Calendar, D
22015300
CITY OF EVANSTON, CITY OF LAKE )
FOREST, CITY OF NORTH CHICAGO, CITY )
OF ZION, VILLAGE OF BEACH PARK, )
VILLAGE OF GLENCOE, VILLAGE OF ) Case No. 2023L002929
LAKE BLUFF, VILLAGE OF WINNETKA, )
and VILLAGE OF WINTHROP HARBOR, )
)
Plaintiffs, )
)
)
v. )
)
)
)
MONSANTO CO., SOLUTIA INC., )
PHARMACIA LLC, and UNIVAR )
SOLUTIONS INC., )
)
)
Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

The City of Evanston, the City of Lake Forest, the City of North Chicago, the City of

Zion, the Village of Beach Park, the Village of Glencoe, the Village of Lake Bluff, the Village of

Winnetka, and the Village of Winthrop Harbor (collectively, “the Municipalities” or “Plaintiffs”)

file this complaint seeking monetary damages to address pollution of these jurisdictions by

polychlorinated biphenyls (“PCBs”). In support, the Municipalities allege as follows:

I. INTRODUCTION

1. Polychlorinated biphenyls (“PCBs”) are industrial chemicals that contaminate

Lake Michigan. Although PCBs were banned in the late 1970s, they continue to exist in the

1
environment due to releases from products manufactured before the ban. PCBs released from

such products continue to drain into Lake Michigan through municipal separate storm sewer

systems (“MS4s”), including the Municipalities’ MS4s. The accumulation of PCBs in natural

resources, and fish in particular, poses a public health threat, including to residents of the

Municipalities.

2. These PCBs were manufactured by the original Monsanto Company (“Old

Monsanto”), which was the corporate predecessor to Defendants Monsanto Co. (sometimes

referred to herein as “New Monsanto”), Solutia Inc. (“Solutia”) and Pharmacia LLC

(“Pharmacia”). These three Defendants—New Monsanto, Solutia, and Pharmacia—shall be

referred to herein as the “Monsanto Defendants,” and together with Old Monsanto, as

“Monsanto.” The remaining Defendant is Univar Solutions Inc. (“Univar”), which distributed

Monsanto’s PCBs in the greater Chicago area.

3. For decades, Monsanto knew that its commercial PCB formulations were highly

toxic and would inevitably produce precisely the contamination and human health risks that have

occurred. Yet Monsanto intentionally misled the public about these key facts, maintaining that

its PCB formulations were safe, were not environmentally hazardous, and did not require any

special precautions in use or disposal.

4. Similarly, Univar knew or should have known that the PCB products it sold in the

Chicago area would inevitably cause widespread contamination, yet it continued selling these

products without warning its customers or the public.

5. By marketing and selling PCBs in this way, Defendants created a vast public

nuisance in the Municipalities. This action seeks to require Defendants to pay for efforts by the

Municipalities to control and reduce PCB contamination in their MS4s.

2
 6. As a result of Defendants’ sales of PCB products in and/or around the

Municipalities, there is now widespread contamination in and around the Municipalities,

including Lake Michigan. As a result of the contamination in Lake Michigan in particular, the

Municipalities must reduce PCB contamination in stormwater they discharge to Lake Michigan.

Specifically, the Illinois Environmental Protection Agency (“IEPA”) has promulgated a

regulatory requirement, known as a “Total Maximum Daily Load,” for PCBs for the portion of

Lake Michigan that abuts Illinois (“Lake Michigan TMDL”). To comply with this TMDL and

with the stormwater discharge permit issued by IEPA, the Municipalities must reduce their PCB

discharges in stormwater to Lake Michigan by an estimated 99.6%.

7. This lawsuit seeks to shift the costs associated with reducing or eliminating PCB

concentrations to the corporations responsible for this widespread environmental problem—i.e.,

to Monsanto and its distributor in the area, Univar.

II. JURISDICTION

8. The Court has original jurisdiction over this action pursuant to Article VI, Section

9 of the Illinois Constitution.

9. The Court has personal jurisdiction over Defendants under 735 ILCS 5/2-209

because Defendants have conducted continuous, systematic, and substantial business in Illinois

and have entered into contracts or made promises that are substantially connected to Illinois.

10. Venue for this action lies in Cook County, Illinois, pursuant to section 2-101 of the

Illinois Code of Civil Procedure, 735 ILCS 5/2-101, in that this action arises out of transactions and

activities that occurred in part in Cook County. About 40% of all PCB mixtures sold and used in

Illinois were sold to customers in Cook County. These PCBs now contaminate Lake Michigan, as

described herein.

11. The Municipalities do not seek, and hereby disclaim, any relief with respect to

3
any federal lands, federal enclaves, or any federal interests in any property or resources.

III. PARTIES

A. Plaintiffs

12. The Municipalities are municipal corporations capable of suing and being sued

under Illinois law. Each of the Municipalities owns and operates a storm sewer system that

discharges stormwater to Lake Michigan. Complying with the Lake Michigan TMDL and

addressing PCB contamination are essential public functions of the Municipalities.

B. The Monsanto Defendants

13. Defendant Monsanto Company (New Monsanto, as defined above) is a Delaware

corporation with its principal place of business at 800 North Lindbergh Blvd., St. Louis,

Missouri 63167. Following a merger transaction that closed in 2018, New Monsanto is a

wholly-owned subsidiary of Bayer AG.

14. Defendant Solutia Inc. (Solutia, as defined above) is a Delaware corporation with

its principal place of business at 575 Maryville Centre Drive, St. Louis, Missouri, 63166. Solutia

is a wholly-owned subsidiary of Eastman Chemical Company.

15. Defendant Pharmacia LLC (Pharmacia, as defined above), formerly known as

Pharmacia Corporation, is the successor to the original Monsanto Company (Old Monsanto, as

defined above). Pharmacia LLC is a Delaware company with its principal place of business at

100 Route 206 N, Peapack, New Jersey 07977. Pharmacia is a wholly-owned subsidiary of

Pfizer, Inc.

16. Old Monsanto operated an agricultural products business, a pharmaceutical and

nutrition business, and a chemical products business. Old Monsanto began manufacturing PCBs

in 1935 after acquiring Swann Chemical Company, which manufactured PCBs from 1929 to

1935. Old Monsanto continued to manufacture commercial PCBs until the late 1970s.

4
 17. Through a series of transactions beginning in approximately 1997, Old

Monsanto’s businesses were spun off to form three separate corporations.

18. The corporation now known as Monsanto Company (and referred to herein as

“New Monsanto”) operates Old Monsanto’s agricultural products business.

19. Old Monsanto’s chemical products business is now operated by Solutia.

20. Old Monsanto’s pharmaceuticals business is now operated by Pharmacia.

21. Solutia was organized by Old Monsanto to own and operate its chemical

manufacturing business. Solutia assumed the operations, assets, and liabilities of Old

Monsanto’s chemical business.

22. Although Solutia assumed and agreed to indemnify Pharmacia for certain

liabilities related to the chemicals business, Defendants have also entered into agreements to

share or apportion liabilities, and/or to indemnify one or more entities, for claims arising from

Old Monsanto’s chemical business, including the manufacture and sale of PCBs.

23. In 2003, Solutia filed a voluntary petition for reorganization under Chapter 11 of

the U.S. Bankruptcy Code. Solutia’s reorganization was completed in 2008. In connection with

Solutia’s Plan of Reorganization, Solutia, Pharmacia, and New Monsanto entered into several

agreements under which New Monsanto continues to manage and assume financial responsibility

for certain tort litigation and environmental remediation related to the chemicals business.

24. Eastman Chemical Co. (Solutia’s parent) reported in its 2020 Form 10-K that it

“has been named as a defendant in several [legacy tort] proceedings, and has submitted the

matters to [New] Monsanto, which was acquired by Bayer AG in June 2018, as Legacy Tort

Claims [as defined in a settlement agreement with Monsanto arising out of Solutia’s bankruptcy

proceedings]. To the extent these matters are not within the meaning of Legacy Tort Claims,

5
Solutia could potentially be liable thereunder. In connection with the completion of its

acquisition of Solutia, Eastman guaranteed the obligations of Solutia and Eastman was added as

an indemnified party under the Monsanto Settlement Agreement.”

25. In its Form 10-K for the period ending August 31, 2017, filed with the U.S.

Securities and Exchange Commission (the last such filing before Bayer AG acquired New

Monsanto), New Monsanto represented: “[New] Monsanto is involved in environmental

remediation and legal proceedings to which Monsanto is a party in its own name and

proceedings to which its former parent, Pharmacia LLC or its former subsidiary, Solutia, Inc. is a

party but that Monsanto manages and for which Monsanto is responsible pursuant to certain

indemnification agreements. In addition, Monsanto has liabilities established for various product

claims. With respect to certain of these proceedings, Monsanto has established a reserve for the

estimated liabilities.” The filing specifies that the company held $277 million in that reserve as

of August 31, 2017.

C. Univar

26. Defendant Univar Solutions Inc. (“Univar”) is a Delaware corporation with its

principal place of business at 3075 Highland Parkway, Suite 200, Downers Grove, Illinois

60515. Including through its predecessor Central Solvents & Chemical Co. (“Central

Solvents”), Univar distributed products containing Monsanto’s PCBs to customers in the greater

Chicago area. Central Solvents was at all relevant times one of the largest and most

sophisticated chemical distributors in North America.

IV. FACTUAL ALLEGATIONS

A. PCBs threaten human and environmental health and safety.

1. Physical and chemical properties of PCBs.

27. PCBs are a class of chemical compounds in which a minimum of two and a

6
maximum of ten chlorine atoms are attached to the biphenyl molecule.

28. There are no known natural sources of PCBs in the environment.

29. There are 209 distinct PCB compounds (known as congeners) with from 2 to 10

chlorine atoms on a biphenyl molecule. The number and placement of the chlorine atoms on the

biphenyl molecule determines how the congener is named and dictates its environmental fate and

toxicity. PCBs generally occur as mixtures of congeners.

30. Old Monsanto manufactured PCB mixtures primarily under the “Aroclor” trade

name. Aroclors are differentiated principally by the composition of chlorine by weight, so, for

example, “Aroclor 1254” means the mixture contains approximately 54% chlorine by weight.

Generally, the higher the chlorine content of a PCB mixture, the higher its persistence and

toxicity.

31. PCBs do not burn easily, are hydrophobic (i.e., they do not dissolve in water but

rather cluster together), and bio-accumulate and bio-magnify in living tissue.

32. PCBs are semi-volatile. Small amounts of PCBs vaporize from PCB-containing

products and PCB-contaminated sites, resulting in long-range transport of PCB vapors, at normal

environmental temperatures. PCB volatilization increases with increases in temperature, i.e.,

more PCBs are released to the atmosphere from PCB-containing products or PCB-contaminated

sites as temperature increases. Once released into the atmosphere, PCBs are eventually deposited

into other media nearby, such as soil, sediment, and water bodies.

33. PCBs entered the air, water, sediments, and soils during their ordinary and

prescribed uses. Indeed, PCBs gradually escaped and dispersed from their common applications,

e.g., in road paint or caulking, into the natural environment due to the chemical compounds’

inherent tendency to volatilize, that is to emit PCB vapors, particularly when exposed to heat

7
(such as when road paint or building materials are exposed to the sun over time). As vapors,

PCBs travel through the air, eventually settling in nearby soil, sediment, or water bodies.

34. Similarly, PCBs can be released by the grinding, scraping, and removal of

caulking and other construction materials that include PCBs, resulting in the contamination of

nearby soil.

35. PCBs entered the environment from spills or leaks, for example through transport

of the chemicals, from leaks or fires in transformers, capacitors, or other products containing

PCBs, and from the burning of wastes in some municipal or industrial incinerators. PCB

transformers release PCB vapors or fluids in the ordinary course of use, e.g., by venting or

releasing pressure.

36. In addition, Old Monsanto prescribed that PCBs and PCB-contaminated wastes

should be disposed of in the ordinary course in landfills, from where they easily escaped,

leached, and leaked into the surrounding environment.

37. Old Monsanto advised customers to discharge liquid PCB wastes into sewers

when it knew that this would directly introduce PCBs into surface waters, and to vent PCB

vapors to the atmosphere when it knew that this would directly introduce PCBs into the

atmosphere, soils, and surface waters.

38. Once in the environment, PCBs do not break down readily and may remain for

decades absent remediation.

39. In water, PCBs travel along currents and attach to bottom sediment or particles in

the water and evaporate into air or settle into sediment. Sediments contaminated with PCBs

release PCBs into surrounding water. In soil, PCBs combine with soil organic matter and remain

in soil for many years.

8
 40. PCBs are taken up into the bodies of small organisms and fish in water. They are

also taken up by other animals that eat these aquatic animals as food, and eventually by humans.

PCBs especially accumulate in fish and marine animals, reaching levels that may be many

thousands of times higher than in water because PCBs are soluble in lipids (including body fat)

and bio-accumulate and bio-magnify over time in living tissue. Indeed, PCB levels are highest

in animals higher up the food chain.

2. Health and ecological effects of exposure to PCBs.

41. Humans are exposed to PCBs primarily from eating contaminated food, breathing

contaminated air, or drinking or swimming in contaminated water. The major dietary sources of

PCBs are fish (especially sportfish caught in contaminated water bodies), meat, and dairy

products. PCBs collect in milk fat and can enter the bodies of infants through breast-feeding.

42. Fetuses in the womb are exposed to PCBs through their mothers. Studies show

that babies born to mothers exposed to high concentrations of PCBs in the workplace or from

eating PCB-contaminated fish suffer from lower birth weight than other babies. Babies born to

women exposed to PCBs before and during pregnancy showed abnormal responses to infant

behavioral tests, including motor skills, and experienced short-term memory deficiencies.

43. Many studies have examined how PCBs affect human health. Human health

effects associated with PCB exposure include liver, thyroid, dermal, and ocular changes,

immunological alterations, neuro-developmental and neurobehavioral changes, reduced birth

weight, reproductive toxicity, and cancer.

44. Due to the importance of the thyroid to brain development, PCBs’ effects on the

thyroid produce neurodevelopmental effects. Neurological changes associated with PCB

exposure include abnormal reflexes and deficits in memory, learning, impulse control, and IQ.

9
Such changes affect infants and children more severely than adults.

45. Reproductive changes associated with PCB exposure include menstrual

disturbances in women and effects on sperm morphology and production in men, all of which

can result in difficulty conceiving.

46. PCBs are associated with a number of cancers, including cancer of the liver,

biliary tract, intestines, and skin (melanoma).

47. In 1996, EPA assessed PCB carcinogenicity based on data related to Aroclors

1016, 1242, 1254, and 1260. EPA’s cancer assessment was peer-reviewed by 15 experts on

PCBs, including scientists from government, academia, and industry. All experts agreed that

PCBs are probable human carcinogens. Similarly, the International Agency for Research on

Cancer, an intergovernmental agency that is part of the World Health Organization of the United

Nations, concluded in March 2013 that PCBs are known human carcinogens.

48. In addition to being highly toxic to humans, Monsanto’s commercial PCB

mixtures are highly toxic to fish and wildlife. For example, toxicity studies have demonstrated

that commercial PCB mixtures induce hepatotoxicity, immunotoxicity, neurotoxicity, and

reproductive toxicity in birds and mammals.

B. Monsanto knew that PCBs were dangerous contaminants.

49. Old Monsanto developed an early, sophisticated understanding of the dangers

associated with PCB compounds.

50. In 1936, many workers at a New York facility using PCBs and operated by

Halowax Corporation were afflicted with severe chloracne. Three workers died and autopsies

revealed severe liver damage in two of them.

51. Halowax Corporation asked Harvard University researcher Cecil K. Drinker to

investigate the issue, and Dr. Drinker’s analysis was presented at a 1937 meeting attended by

10
high-level personnel employed by Old Monsanto.

52. Dr. Drinker’s investigation revealed that rats exposed to PCBs suffered severe

liver damage. Dr. Drinker’s results were published in a September 1937 issue of the Journal of

Industrial Hygiene and Toxicology.

53. That same year, Old Monsanto admitted in an internal report that PCBs produce

“systemic toxic effects” as a result of prolonged exposure to PCB vapors or oral ingestion, and

that bodily contact with PCBs produces “an acne-form skin eruption.”

54. Old Monsanto subsequently retained Dr. Drinker to conduct further animal

studies. In September 1938, Dr. Drinker confirmed liver damage in rats exposed to various

formulations of PCB compounds.

55. Other studies explored and confirmed the toxicity of chlorinated hydrocarbons

like PCBs. A 1939 study published in the Journal of Industrial Hygiene and Toxicology, for

example, referred to the worker fatalities investigated by Drinker and went on to conclude that

pregnant women and persons previously affected by liver disease are particularly susceptible to

adverse effects from chlorinated hydrocarbons, such as PCBs.

56. In February 1950, Old Monsanto Medical Director Dr. R. Emmet Kelly

acknowledged that when workers fell ill at an Indiana factory that used PCBs in the

manufacturing process, he immediately “suspected the possibility that the Aroclor fumes may

have caused liver damage.”

57. A 1955 report on the production of Aroclor prepared by Old Monsanto

acknowledged that in the “early days of development,” workers at a plant in Anniston, Alabama

processing PCBs had developed chloracne and liver problems.

58. In 1955, Dr. Kelly further documented the company’s clear understanding: “We

11
know Aroclors are toxic[.]” Dr. Kelly appeared to recognize the scope of Old Monsanto’s

potential legal liability, explaining that “our main worry is what will happen if an individual

develop[s] 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 [maximum allowable concentration levels].”

59. Old Monsanto’s Medical Department prohibited workers from eating lunch in the

Aroclor department in November 1955. The Department memorandum explained that “Aroclor

vapors and other process vapors could contaminate the lunches unless they were properly

protected” and that “[w]hen working with this material, the chance of contaminating hands and

subsequently contaminating the food is a definite possibility.”

60. In January 1957, Dr. Kelly reported that the U.S. Navy had refused to use

Monsanto’s PCB products in submarines: “No matter how we discussed the situation, it was

impossible to change their thinking that Pydraul 150 [a PCB product marketed by Old Monsanto]

is just too toxic for use in a submarine.”

61. Notably, at the same time it was manufacturing PCBs, Old Monsanto also

manufactured—and researched the toxicological profile and environmental effect of—DDT,

another now-infamous chlorinated hydrocarbon similar to PCBs.

62. By the late 1940s, Old Monsanto had already researched and compiled an

extensive toxicological profile of DDT, showing that it is extremely toxic to human and

environmental health. Indeed, by then, scientific researchers had established that DDT and other

chlorinated hydrocarbons are absorbed and stored in fatty tissue of living organisms exposed to

them and pass these contaminants on to their offspring.

63. The American Journal of Public Health published a 1950 report warning that

“chlorinated hydrocarbons, such as DDT and chlordane, are soluble in fats and are stored in the

12
fatty tissues of the body. These compounds possess a high order of toxicity, and their

uncontrolled or unwise use is not desirable.” As Old Monsanto knew, the same was and is true

of its PCB compounds.

64. Extensive scientific research establishing the toxicity and bio-accumulative and

bio-persistent nature of DDT and other chlorinated hydrocarbons was published from the 1940s

to the 1960s. Old Monsanto produced DDT and was acutely aware of this research, and of the

similarities between DDT and PCBs.

65. In 1966, the New Scientist published a short article (“Report of a New Chemical

Hazard”), summarizing recent research by Søren Jensen, a Swedish chemist at Stockholm

University’s Institution of Analytical Chemistry, which estimated that PCBs may be spreading

through environments in high volumes due to their use by manufacturing interests.

66. Søren Jensen had accidentally found enormous quantities of PCB compounds in

wildlife while analyzing DDT accumulations. Dr. Jensen presented his findings to the scientific

community in 1966, including that PCBs “appear[] to be the most injurious chlorinated

compounds of all tested.” Dr. Jensen reported that the “main characteristic[s]” of PCBs include

their “very high stability,” lack of “metaboliz[ation] in living organism[s],” and their non-

flammability.

67. Old Monsanto’s Medical Director, Dr. Kelly, was aware of Dr. Jensen’s findings

at the time.

68. In December of 1968, Nature published an article by Dr. Richard Risebrough of

the University of California entitled, “Polychlorinated Biphenyls in the Global Ecosystem.” The

article assessed PCB presence in marine wildlife and reports high concentrations of PCBs

detected in peregrine falcons and 34 other bird species, drawing a connection between PCBs and

13
the catastrophic decline of peregrine falcon populations in the United States.

69. Old Monsanto personnel took note of Dr. Risebrough’s article, recognizing the

public-relations disaster it portended. W.R. Richard, manager of Old Monsanto’s Research and

Development of Organics Division, wrote in early 1969 that the article shows not only that PCBs

are “toxic substance[s]” but also because they are easily and broadly distributed in air and water,

they are “an uncontrollable pollutant … causing [the] extinction of [the] peregrine falcon …

[and] endangering man himself.”

70. In 1969, Dr. Jensen published the formal results of his years-long research into

PCBs in the environment. Dr. Jensen’s research demonstrated very high PCB concentrations in

Baltic Sea fauna such as white-tailed sea eagles. As a recent commentator observed,

summarizing the implications of Dr. Jensen’s results, “PCBs had entered the environment in

large quantities for more than 37 years and were bio-accumulating along the food chain.”

71. In September 1969, W.R. Richard wrote a memorandum titled, “Defense of

Aroclor.” Richard’s memo notes that critics of PCBs have raised a multitude of different issues

with the compounds, so “[w]e can’t defend vs. everything. Some animals or fish or insects will

be harmed. Aroclor degradation rate will be slow. Tough to defend against. Higher chlorination

compounds will be worse [than] lower chlorine compounds. Therefore, we will have to restrict

uses and clean-up as much as we can, starting immediately.” In the same document, Richard

admitted that PCBs will leak from virtually all applications, including such “closed” applications

as air compressor, heat transfer, and capacitor fluids.

72. That same month, Old Monsanto formed what it dubbed the “Aroclor Ad Hoc

Committee” to strategize about defending its PCB business against a growing public outcry and

growing evidence of PCBs’ toxicity and environmental harms. The minutes of the Committee’s

14
first meeting observed that PCBs had been found in fish, oysters, shrimp, and birds, along the

coasts of industrialized areas including Great Britain, Sweden, the Rhine River, Lake Michigan,

Pensacola Bay, and in wildlife throughout the Western hemisphere.

73. The Committee acknowledged that normal and intended uses of PCB-containing

products were the cause of the contamination: “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.”

74. The Committee worked to formulate a response to growing concerns over PCBs,

including those reflected by the U.S. Department of the Interior’s Fish and Wildlife Service

(which found PCBs in dead eagles and marine birds), the Bureau of Commercial Fisheries

(which found PCBs in the river below Monsanto’s Pensacola plant), and the U.S. Food and Drug

Administration (which found PCBs in milk supplies).

75. The Committee’s constitutive agenda was to: “1. Protect continued sales and

profits of Aroclors; 2. Permit continued development of new uses and 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 control contamination of the global

ecosystem.”

76. As the minutes reflect, “there is little probability that any action that can be taken

will prevent the growing incrimination of specific polychlorinated biphenyls … as nearly global

environmental contaminants leading to contamination of human food (particularly fish), the

killing of some marine species (shrimp), and the possible extinction of several species of fish-

eating birds.” However, while “there is no practical course of action that can so effectively

police the uses of these products as to prevent environmental contamination … [t]here are … a

15
number of 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 of the Aroclor

series.”

77. In keeping with the corporate strategy reflected in the Aroclor Ad Hoc Committee

meeting minutes and elsewhere, Old Monsanto not only continued producing Aroclors through

1969, but increased production that year and in 1970, which were the highest volume production

years in the history of PCBs.

78. Elmer Wheeler, in Old Monsanto’s Medical Department, circulated laboratory

reports discussing results of animal studies in January 1970, in which Dr. Wheeler noted that

“PCBs are about the same as DDT in mammals.”

79. Old Monsanto knew that the PCBs they produced were used in “household

products” and aggressively promoted this use of PCBs. For example, in a 1960 brochure, Old

Monsanto promoted the use of Aroclors in a wide variety of household and personal products

including home appliances, food cookers, potato chip fryers, thermostats, automotive

transmission oil, insecticides, waxes used in dental casting, jewelry, lubricants, adhesives,

moisture-proof coatings, printing inks, papers, sealants and caulking compounds, tack coatings,

asphalt, paints, varnishes, lacquers, masonry coatings for swimming pools, stucco homes, and

protective or decorative coatings for a number of other finishes.

80. A 1961 brochure published by Old Monsanto explained that Aroclors are used in

“lacquers for women’s shoes,” as a “wax for the flame proofing of Christmas trees,” as “floor

wax,” as an adhesive for bookbinding, leather, and shoes, and as invisible marking ink used to

make chenille rugs and spreads.

81. Old Monsanto knew that PCBs were used in products certain to directly result in

16
contamination of the environment, such as highway paints and other exterior applications.

82. In February 1970, Old Monsanto’s high-level personnel circulated a talking-

points memorandum to be used in engaging with customers raising concerns over PCB toxicity.

Although Old Monsanto had reformulated certain high-chlorine congeners (Aroclor 1254 and

1260) to lower the chlorine content, it instructed employees to resist product returns of the more

toxic congener formulations, explaining that Old Monsanto “can’t afford to lose one dollar of

business.” The memo instructed employees to advise customers to use up their existing Aroclor

1254 and 1260 stock before topping up with new fluids: “We don’t want to take fluid back.”

C. Monsanto deceived the public concerning the hazards of PCBs.

83. As described above, Old Monsanto knew that PCBs are toxic to human and

environmental health, and that their commercial PCB products would leach, leak, off-gas, and

escape their ordinary and intended applications and from disposal sites—regardless of the nature

of the application—to contaminate waters, soils, and air. Even with this knowledge, Old

Monsanto issued no public warning or instruction about PCBs or the health and environmental

safety hazards they present.

84. On the contrary, Old Monsanto lied, expressly denying the harmfulness and

environmental toxicity of PCBs. Old Monsanto made no public disclosure of the high risk that

PCBs posed to the environment and continued to recommend disposal of PCB waste materials in

local landfills. For example, Old Monsanto executive William Papageorge acknowledged in

testimony provided in 1975 to the Wisconsin Department of Natural Resources that Old

Monsanto generally recommended disposal of PCB-contaminated wastes in landfills.

85. As government investigations and formal inquiries into the dangers of PCBs

amplified in the late 1960s and early 1970s, Old Monsanto doubled down on its campaign of

misinformation and denial.

17
 86. For example, Howard S. Bergen, from Old Monsanto’s Functional Fluids

division, sent a letter dated March 27, 1969, to the Regional Water Quality Control Board of the

San Francisco Bay Region, in which he claimed that PCBs are associated with “no special health

problems,” and that due to PCBs’ chemical inertness, “we would anticipate no problems

associated with the environment from refuse dumps.” Both of those statements were false and

Old Monsanto knew they were false.

87. Dr. Wheeler, Assistant Director of Old Monsanto’s Medical Department, told a

representative of the National Air Pollution Control Administration in May 1969 that Old

Monsanto “cannot conceive how the PCBs can be getting into the environment in a widespread

fashion.”

88. Old Monsanto similarly claimed ignorance of how PCBs could be entering the

environment in large quantities to a number of other public entities, regulators, and authorities,

including the New Jersey Department of Conservation. In July 1969, the company claimed that,

“[b]ased on the available data, manufacturing and use experience, we do not believe PCBs to be

seriously toxic,” adding that, “we are unable at this time to conceive of how the PCBs can

become widespread in the environment. It is certain that no applications to our knowledge have

been made where the PCB’s would be broadcast in the same fashion as the chlorinated

hydrocarbon pesticides have been.” Those statements were false, as Old Monsanto knew at the

time.

89. At the same time that it was internally acknowledging that PCBs are “about the

same” as DDT, in January 1970, the journal Environment published a note authored by Old

Monsanto: “Monsanto Statement on PCB.” The company note acknowledged that recent studies,

including Dr. Jensen’s studies, indicated PCBs’ widespread presence in the natural environment,

18
and expressed the company’s “concern[] over the situation.”

90. However, the note defended PCBs by deploying a variety of false statements that

Old Monsanto used on multiple occasions in the late 1960s and early 1970s to minimize the

negative impacts of PCBs.

91. In particular, Old Monsanto claimed that (a) PCBs cannot escape so-called

“closed applications” where PCBs are “completely sealed in metal containers”; (b) PCBs cannot

escape applications such as adhesives, elastomers, and surface coatings; (c) PCBs are not “to our

knowledge” used in “household products”; and (d) it is simply “not true” that PCBs are “highly

toxic.”

92. Old Monsanto knew that all of these statements were untrue and would mislead

regulators and the public when they published them.

93. Similarly, Old Monsanto falsely asserted in the note that research it conducted

into PCB toxicity in fish and mammals and PCB presence in waters and soils provided “[v]ery

early results . . . that PCBs are not highly toxic.”

94. Contrary to their published claims, Old Monsanto knew PCBs would leach, leak,

off-gas, and escape their ordinary and intended applications, including closed applications, and

cause significant injury to natural resources and human life.

95. Old Monsanto’s Dr. Kelly communicated with the Ohio State Board of Health in

March 1970 regarding the detection of PCBs, particularly Aroclor 1254, in samples of milk from

at least three herds in Ohio. The Board traced this contamination back to Aroclor-containing

paint flaking off and possibly leaching from the interior walls of the silos in which the milk was

stored. The Board reported to Old Monsanto that it would have to destroy about 150 tons of

milk, valued at about $30 per ton. The Board reported that there may be 50 other silos similarly

19
contaminated in the state that were painted with the same formulation. In response, Dr. Kelly

communicated to other Old Monsanto officials: “All in all, this could be quite a serious problem,

having legal and publicity overtones. This brings us to a very serious point. When are we going

to tell our customers not to use any Aroclor in any paint formulation that contacts food, feed, or

water for animals or humans? I think it is very important that this be done.”

96. Old Monsanto refused to heed Dr. Kelly’s admonition to warn of the dangers of

similar applications of Aroclors, and instead continue to mislead customers and the public.

97. An internal memorandum prepared by Dr. Kelly dated February 10, 1967,

continued to express his concern about PCB contamination: “We are very worried about what is

liable to happen in the [United States] when the various technical and lay news media pick up the

subject [of PCB contamination]. This is especially critical at this time because air pollution is

getting a tremendous amount of publicity in the United States.” The memo noted that some of

Monsanto’s largest PCB customers, such as NCR (National Cash Register), had been pressing

Monsanto to furnish more information on PCB safety, but that Monsanto had dodged their

inquiries.

98. Old Monsanto’s misrepresentations and omissions to public entities and others

were designed to conceal the toxicity and hazardousness of its PCB formulations to humans and

the natural environment in order to salvage what Monsanto repeatedly emphasized was “one of

Monsanto’s most profitable franchises,” generating tens of millions of dollars in annual

revenues.

99. An internal presentation to the Corporate Development Committee generated in or

around 1969 advised against exiting the Aroclor market despite clear knowledge of its dangers

because “there is too much customer/market need and selfishly too much Monsanto profit to go

20
out.” Another internal Monsanto memorandum remarked, “There can not [sic] be too much

emphasis given to the threat of curtailment or outright discontinuance of the manufacture and

sales of this very profitable series of compounds.”

100. In short, though Old Monsanto had a complete and comprehensive record of all

PCB-related scientific research and general reportage during the relevant time period (an August

6, 1971 internal memorandum noted that the company “ha[s] probably the world’s best reference

file on the PCB situation”), the company failed to timely alert regulators and the public of the

dangers of its PCBs, and did not take adequate steps to stave off the impending environmental

disaster—a course of conduct aimed at shielding the company’s sales, profits, and reputation.

101. Rather than admit the hazards associated with widespread PCB usage and take

appropriate corrective action, Old Monsanto elected to finally withdraw from certain markets in

around 1972. Old Monsanto continued producing and marketing PCB products for limited

applications until 1977.

102. Even after Old Monsanto stopped manufacturing and selling its PCB products, it

continued to deceive the public about PCBs. For example, in 1980, Old Monsanto publicly and

falsely stated that “PCBs are considered only mildly toxic on an acute basis when ingested by

humans – about on the same order as common table salt” and that “[t]here has never been a

single documented case in this country where PCBs ever caused serious human health

problems.” In 2009, New Monsanto issued a public statement falsely downplaying the toxicity

of PCBs: “Scientific studies have been undertaken for more than three decades on the health

issues involving PCBs. They are continuing today. There is no scientific consensus on the health

effects. The weight of scientific evidence does not support any causal link between exposure to

PCBs and cancer or other significant human illnesses.” Similarly, New Monsanto’s director of

21
environmental communications acknowledged in 2004 the “perception” that PCBs were toxic,

but told a newspaper that (in the reporter’s paraphrase) “no data ever has confirmed a connection

between PCBs and disease or harm.”

D. Univar distributed Monsanto’s PCB products in the greater Chicago area—and

knew or should have known about the harm they would cause.

103. Univar is the successor to Central Solvents & Chemical Co. (“Central Solvents”).

For years, Univar (including through Central Solvents) distributed Monsanto’s PCB products,

and sold vast quantities of Monsanto’s PCB products each year, including to at least a dozen

firms (and possibly many more) within the greater Chicago area.

104. As one of the largest and most sophisticated chemical distributors in the country,

Central Solvents knew or should have known at all relevant times about the published research

on PCBs described above—and accordingly knew or should have known that the PCB products

it was distributing would cause widespread contamination, including in and around the

Municipalities. On information and belief, neither Univar nor Central Solvents ever provided

any warning to the Municipalities, customers, end-users, or the public about these dangers.

E. The ordinary and intended use of PCBs has resulted in widespread contamination.

105. The ordinary and intended application of Defendants’ commercial and household

PCB products (in, for instance, paints, papers, caulks, lubricants, hydraulic and heat-transfer

fluids, transistor and capacitor fluids, and so on) has resulted in the release of PCBs into air,

waters, and soils, due principally to the chemical compound’s tendency to volatilize or

redistribute itself across different environmental media.

106. PCBs are predominantly redistributed from one environmental medium to

another—soil to water, water to air, air to water, sediment to water—so PCBs in the air, for

example, results in substantial part from volatilization of PCBs from soil and water.

22
 107. PCBs may be released to the atmosphere from landfills and hazardous waste sites,

incineration of PCB wastes, or leakage and runoff from older electrical equipment in use.

108. PCBs may also be released to water from spillage of PCB-containing hydraulic

fluids, historic disposal, combined sewer overflows or storm water runoff, from organic

petroleum products used as dust suppressants (e.g., on dirt roads), and from runoff and leachate

from PCB-contaminated sewage sludge applied to farmland.

109. PCBs may further be released to soil from leaks and spills, releases from

contaminated soils in landfills and hazardous waste sites, deposition of vehicular emissions near

roadway soil, and land application of sewage sludge containing PCBs.

110. Due to their uncontrollable environmental circulation, Monsanto internally

acknowledged that PCBs would inevitably contaminate the environment—even as they

continued to increase their production of PCBs and to conceal or deny any association of adverse

human health and ecological effects with PCBs.

111. Monsanto’s continued aggressive production and marketing of PCB formulations

was particularly outrageous because, as Monsanto recognized, these PCB mixtures were not

necessary for many of the uses for which Monsanto marketed them and were not superior to

alternative products.

112. Monsanto’s internal documents acknowledge that its PCB-containing dielectric

fluids never offered any real advantage to non-PCB fluids. For example, a document concerning

the company’s product strategy for dielectric PCBs fluids marketed under the name “askarel”

reports: “[T]he incidence of explosion with mineral oil was actually lower than with askarel!

This in addition to the economic disadvantage of askarel leads to the embarrassing question of

why bother to use askarel, and lends an ear to complaints from the workers who dislike the odor,

23
irritating and toxic qualities of our material.”

113. Likewise, many chemicals could perform the function of PCBs in various “open

use” applications, such as adhesives, caulks, or varnishes, such that there was never any need to

introduce environmentally hazardous PCBs for these types of uses, except for the purpose of

enriching Monsanto.

F. Defendants’ PCB products have injured the Municipalities.

114. Between 1929 and 1977, Defendants sold a large volume of commercial PCBs

and PCB-containing products to various customers in and/or around the Municipalities. PCBs

made and/or distributed by the Defendants were also included in innumerable products sold

throughout the United States, including in each of the Municipalities. As a result of Defendants’

practices (including Defendants’ misleading acts and omissions), PCBs remain present to this

day in Lake Michigan and in each of the Municipalities.

115. Defendants never advised the Municipalities or the public that Defendants’ PCB

mixtures are toxic to human and environmental health and that those PCBs would leach, leak,

off-gas, and escape their ordinary and intended applications, regardless of the nature of the

application, to contaminate the Municipalities’ stormwater and stormwater systems, as well as

surface waters, sediments, soils, air, fish, and/or other resources. Defendants issued no public

warning or instruction about PCBs or the health and environmental safety hazards they present.

Monsanto denied that such hazards exist in their communications with public entities and the

general public.

116. When Monsanto provided any information concerning the use and disposal of

PCBs, Monsanto denied toxicity concerns and adverse human and environmental health effects,

and advised that PCBs were safe for their intended uses and wastes should be deposited in

landfills, despite knowing this would result in environmental contamination and human and

24
ecological hazards.

117. Defendants’ PCB mixtures and PCB-containing products were used in countless

applications within each of the Municipalities’ geographic boundaries and leached, leaked, off-

gassed, and escaped their ordinary and intended applications to contaminate the Municipalities’

stormwater and stormwater systems, surface waters, sediments, soils, air, fish, and/or other

resources. Because PCBs are environmentally persistent, they continue to circulate within each

of the Municipalities to this day.

118. The harm caused by PCB contamination can be redressed, but doing so will be

expensive. The Municipalities seek recovery of their costs to address such contamination.

119. In particular, the portion of Lake Michigan near the Municipalities is so heavily

polluted with PCBs that these waters are subject to a PCBs TMDL approved in 2019 (“Lake

Michigan TMDL”). The Lake Michigan TMDL lists some 20 public entities that have a permit

to discharge stormwater to these waters, including each of the Municipalities, and estimates that

these public entities discharge some 0.62 kilograms of PCBs to Lake Michigan each year—a

mass that exceeds the maximum amount allowed under the TMDL by 99.6%. The Lake

Michigan TMDL states that these reductions are to be achieved primarily through the

development of Best Management Practices (“BMPs”)—e.g., measures to eliminate sources of

PCBs entering stormwater and to capture flows of unfiltered stormwater before this stormwater

reaches the Lake. This TMDL is enforceable through the stormwater discharge permits that

IEPA issues to the Municipalities. These permits require the Municipalities to implement

stormwater management programs to control certain stormwater discharges. Although the

Municipalities’ efforts to comply with the recent Lake Michigan TMDL are only just beginning,

the Municipalities will incur significant costs to reduce PCB concentrations in their stormwater.

25
 120. PCBs drive key limits on human consumption of many fish species in and around

the Municipalities, including in Lake Michigan and the North Shore Channel (a canal that flows

through Evanston and connects Lake Michigan to the North Branch of the Chicago River). For

example, in Lake Michigan alone, the Illinois Department of Public Health advises limited

consumption of lake trout, rainbow trout, lake whitefish, smelt, coho salmon, common carp,

channel catfish, brown trout, and chinook salmon—all due to PCB contamination in these fish.

For some types of fish contaminated by PCBs, IDPH has issued a “do not eat” recommendation,

to advise against any consumption of these fish.

121. PCBs in fish are taken up by other animals that consume aquatic animals as food,

posing a threat to aquatic and other wildlife higher up in the food chain, including birds and a

host of other fish-eating species. PCB contamination of fish and other aquatic animals and

wildlife adversely affects not only the health of such animals and residents’ ability to enjoy their

consumption, but also limits recreational opportunities available within the Municipalities, and

introduce additional risks of PCB contamination, e.g., by transporting PCBs to new and

previously uncontaminated areas. Contamination of these water bodies and aquatic life

attributable to Defendants’ PCB products has significantly curtailed (and will continue to curtail)

the ability of residents to collect and consume local fish and enjoy recreation at and near the

impacted water bodies.

26
 V. CAUSES OF ACTION

COUNT I – Against All Defendants

STRICT LIABILITY DESIGN DEFECT

122. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

123. At all relevant times, Defendants were in the business of designing, engineering,

manufacturing, developing, marketing, selling, and/or distributing commercial PCB formulations

and PCB-containing products.

124. Defendants’ PCB mixtures and PCB-containing products were not reasonably

safe as designed at the time they left Defendants’ control. Defendants’ PCB mixtures’ toxicity,

volatility, tendency to bioaccumulate, inability to be contained, and environmental persistence

rendered them unreasonably dangerous at all times.

125. With respect to Defendants’ products composed of PCBs and hydrocarbon

solvents or other components in which PCBs are soluble, such products were additionally

defective in that their formulations enhanced the environmental risk posed by PCBs as they

allowed PCBs to more easily escape their applications to cause environmental contamination.

Defendants’ PCB mixtures and PCB-containing products were unsafe as designed.

126. Defendants knew or should have known their PCB mixtures and PCB-containing

products were not safe and were likely to contaminate natural resources within the Municipalities

and cause toxic contamination in the Municipalities. Defendants knew or should have known

their PCB mixtures and PCB-containing products were unsafe to an extent beyond that which

would be contemplated by an ordinary person because of the information and evidence available

to them associating PCB exposure with adverse human and animal health effects as well as the

27
overwhelming seriousness of creating widespread environmental contamination.

127. These risks were not obvious to the Municipalities or the public.

128. Defendants manufactured, distributed, marketed, promoted, and/or sold PCB

mixtures and PCB-containing products despite such knowledge.

129. The seriousness of the environmental and human health risk posed by

Defendants’ products far outweighs any purported social utility of Defendants’ conduct in

manufacturing and distributing their commercial PCB mixtures and PCB-containing products.

The rights, interests, and inconvenience to the Municipalities and general public far outweigh the

rights, interests, and inconvenience to Defendants, which profited heavily from the manufacture,

sale, and/or distribution of their commercial PCB mixtures and PCB-containing products.

130. Practical and feasible alternative designs capable of reducing the Municipalities’

injuries were available. Such alternatives include alternative chemical formulations and/or

additional chemical processing measures Defendants could have taken to enhance the safety of

their PCB mixtures. Alternative chemical formulations that would have reduced the

Municipalities’ injuries include a reduction of chlorine content in all PCB products, which would

have materially decreased the environmental persistence and toxicity of PCBs without

eliminating their typical applications or utilities. Moreover, products combining PCBs and

hydrocarbon solvents in which PCBs are soluble could have been designed with components in

which PCBs are not soluble, mitigating the risk of environmental harm. Viable and readily

available alternatives to PCBs vary by application, and include non-chlorinated plasticizers and

solvents (such as monoisopropyl biphenyl, phthalate esters, or epoxy compounds) as well as

mineral oils, silicone fluids, vegetable oils, esters, and nonfluid insulating chemicals for

electrical applications, as evidenced by the rapid replacement of PCBs by such alternatives upon

28
the prohibition of PCBs.

131. Defendants’ conduct caused the presence of PCBs in the Municipalities and

subsequent injury to the public interest, including the physical and economic health and well-

being of residents, contamination of the Municipalities’ stormwater, and the public’s free use and

comfortable enjoyment of natural resources in and around the Municipalities.

132. The Municipalities have suffered and/or will suffer injuries and damages to their

public treasuries as a result of Defendants’ conduct and the presence of PCBs within the

Municipalities. Defendants are under a continuing duty to act to correct and remediate the

injuries their conduct has introduced and to warn the Municipalities, their customers, and the

public about the human and environmental risks posed by its PCBs. Defendants are strictly

liable for all damages arising out of their defectively designed PCB mixtures and PCB-

containing products.

REQUEST FOR RELIEF, COUNT I

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

29
 COUNT II – Against All Defendants

NEGLIGENT FAILURE TO WARN

133. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

134. At all relevant times, the Defendants were in the business of designing,

engineering, manufacturing, developing, marketing, selling, and/or distributing commercial PCB

formulations and PCB-containing products. As sophisticated designers, manufacturers, sellers

and/or distributors of commercial PCB-containing products, Defendants had greater knowledge

than the Municipalities, end-users, and other members of the public about the dangers these

formulations and products posed. At the time Defendants manufactured, distributed, marketed,

promoted, sold, and/or distributed PCB mixtures and PCB-containing products, they knew or

should have known their PCB mixtures and PCB-containing products were not safe and were

likely to contaminate property and resources in the Municipalities. The Municipalities and the

public lacked this knowledge.

135. Defendants had a duty to provide reasonable instructions and adequate warnings

about the environmental and health hazards posed by PCBs.

136. Despite their greater knowledge and expertise, the Defendants failed to provide

adequate warnings that their PCB mixtures and PCB-containing products were toxic and would

cause this contamination, and to provide adequate instructions to minimize, mitigate, reduce,

control, or eliminate such risks. Defendants’ PCB mixtures and PCB-containing products were

not reasonably safe at the time they left the Defendants’ control because they lacked adequate

warnings and instructions.

137. The Defendants continued to conceal the dangers of PCBs after they

30
manufactured, distributed, marketed, promoted, and/or sold PCBs and PCB-containing products.

138. An adequate warning would have diminished the volume of PCBs entering the

environment, including by diminishing or eliminating the use of PCBs altogether. The

Defendants’ conduct caused and continues to cause injury to the Municipalities and their

residents. The Municipalities have suffered and/or will suffer injuries and damages to their

public treasuries as a result of Defendants’ conduct and the presence of PCBs within the

Municipalities.

REQUEST FOR RELIEF, COUNT II

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

COUNT III – Against All Defendants

NEGLIGENCE

139. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

140. Defendants had a duty to the Municipalities and their residents to exercise due

care in the design, manufacture, formulation, marketing, sale, distribution, and/or labeling of

31
their products. Defendants had a duty not to contaminate or cause the contamination of the

Municipalities’ environment.

141. Defendants breached their duties when they designed, manufactured, formulated,

marketed, sold, distributed, and/or labeled their commercial PCB mixtures and PCB-containing

products in a manner that they knew or should have known would result in injury to Lake

Michigan and to the Municipalities’ property and resources.

142. Defendants knew or should have known that their PCB mixtures and PCB-

containing products were not safe and were likely to contaminate stormwater and other property

and resources within the Municipalities. Defendants knew or should have known their PCB

mixtures and PCB-containing products were unsafe to an extent beyond that which would be

contemplated by an ordinary person because of the information and evidence available to them

associating PCB exposure with adverse human and animal health effects as well as the

overwhelming seriousness of creating widespread environmental contamination.

143. Defendants failed to exercise ordinary care because a reasonably careful company

would not manufacture or distribute those products, would warn of these products’ toxic and

environmentally hazardous properties and instruct on the proper use and disposal thereof to

minimize or mitigate such risks, and/or would take steps to enhance the safety and/or reduce the

toxicity, environmental persistence, and other effects of the products.

144. Defendants were grossly negligent because they failed to exercise even slight

care, placing profit generation above human and environmental health and safety.

145. The seriousness of the environmental and human health risk posed by

Defendants’ conduct and products far outweighs any purported social utility of Defendants’

conduct in manufacturing and/or distributing their commercial PCB mixtures and PCB-

32
containing products without disclosing the dangers posed by these products. The rights, interests,

and inconvenience to the Municipalities and general public far outweigh the rights, interests, and

inconvenience to Defendants, which profited from the manufacture, sale, and/or distribution of

their commercial PCB mixtures and PCB-containing products.

146. Defendants’ negligent conduct caused and continues to cause injury to the

Municipalities and their residents, including but not limited to contamination of the

Municipalities’ stormwater. The Municipalities have suffered and/or will suffer injuries and

damages to their public treasuries as a result of the Defendants’ negligent conduct.

147. Defendants are under a continuing duty to act to correct and remediate the injuries

their conduct has introduced and to warn the Municipalities, their customers, and the public

about the human and environmental risks posed by its PCBs.

REQUEST FOR RELIEF, COUNT III

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

33
 COUNT IV – Against All Defendants

PUBLIC NUISANCE

148. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

149. The Defendants’ sale, promotion and/or distribution of their PCB products caused

PCB contamination in the Municipalities, as alleged above.

150. The Monsanto Defendants were substantially certain that that their sale and

promotion of PCB products would cause this contamination to occur, even when Monsanto’s

PCB products were used exactly as intended, as alleged above.

151. Univar negligently engaged in conduct that created an unreasonable risk of this

contamination.

152. This contamination has entered the Municipalities’ stormwater system and has

contaminated resources that would otherwise be used and enjoyed by the public, including sport

fish.

153. As a result of PCB contamination, the Municipalities and other lakefront

localities are required to reduce PCB contamination in their stormwater by an estimated 99.6%.

154. This PCB contamination constitutes a substantial and unreasonable interference

with rights enjoyed by the public, including rights under Article XI of the Illinois constitution.

This contamination has caused harm that is severe and greater than the Municipalities and the

public should bear without compensation and that outweighs any utility of the Defendants’

conduct. This PCB contamination obstructs the public’s free use and comfortable enjoyment of

property and natural resources, and an ordinary person would be reasonably annoyed or

disturbed by the presence of these toxic PCBs.

34
 155. The Municipalities will incur costs to monitor and address PCB contamination

stormwater and/or other media, and have suffered and/or will suffer other injuries as a direct and

proximate result of Defendants’ conduct.

REQUEST FOR RELIEF, COUNT IV

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

COUNT V – Against All Defendants

PRIVATE NUISANCE

156. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

157. The Defendants’ sale, promotion and/or distribution of their PCB products caused

the contamination of stormwater systems in the Municipalities, as alleged above, and thereby

invaded the Municipalities’ interest in the use and enjoyment of their property.

158. The Monsanto Defendants were substantially certain that that their sale and

promotion of PCB products would cause this contamination to occur, even when Monsanto’s

PCB products were used exactly as intended, as alleged above.

35
 159. Univar negligently engaged in conduct that created an unreasonable risk of this

contamination.

160. This PCB contamination has caused harm that is severe and greater than the

Municipalities should bear without compensation and that outweighs any utility of the

Defendants’ conduct. An ordinary person would be reasonably annoyed or disturbed by the

presence of these toxic PCBs.

161. The Municipalities will incur costs to address PCB contamination on their

property, and have suffered and/or will suffer other injuries as a direct and proximate result of

Defendants’ conduct.

REQUEST FOR RELIEF, COUNT V

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

COUNT VI – Against All Defendants

TRESPASS

162. The Municipalities incorporate all preceding allegations as if they were set forth

herein.

36
 163. The Monsanto Defendants designed, manufactured, formulated, marketed, sold,

distributed, and labeled their commercial PCB mixtures and PCB-containing products in a

manner that they knew or were substantially certain would wrongfully cause PCBs to intrude

upon and injure and contaminate property owned by the Municipalities. As alleged in detail

above, Monsanto instructed PCB users to dispose of PCB-containing wastes in a manner that

would certainly cause their PCBs to enter into this property, including by venting PCB vapors to

the atmosphere, sewering PCB wastes, dumping PCB fluids from PCB-filled heat transfer and

other systems, and disposing of PCB wastes in unlined landfills or pits, among others.

164. Univar negligently engaged in conduct that caused PCBs to enter upon and injure

and contaminate property owned by the Municipalities.

165. As a direct result of Defendants’ conduct, the Municipalities have suffered and/or

will suffer damages, including the cost to remove PCBs from stormwater systems and/or other

property owned by the Municipalities.

REQUEST FOR RELIEF, COUNT VI

The Municipalities request judgment against Defendants, jointly and severally, as

follows:

A. An award of monetary damages to the Municipalities to compensate for the injuries

described herein;

B. Any other damages as permitted by law;

C. Litigation costs and attorneys’ fees as permitted by law;

D. Pre-judgment and post-judgment interest on all monies awarded, as permitted by law;

and

E. Such other and further relief as the Court deems just and proper.

37
 JURY DEMAND

The Municipalities respectfully request trial by jury on all claims so triable.

Date: March 24, 2023 Respectfully submitted,

By: /s/ Michael T. Layden
Michael T. Layden
Croke Fairchild Duarte & Beres LLC
Firm I.D. # 100307
191 N. Wacker Dr., 31st Floor
Chicago, Illinois 60606
Tel. 312 641-1291
mlayden@crokefairchild.com
For Plaintiffs City of Lake Forest, Village
of Glencoe, Village of Lake Bluff and
Village of Winnetka
By: /s/ Jack Franks
Franks Gerkin Ponitz & Greeley
Firm I.D. # 34839
19333 E. Grant Highway
Marengo, IL 60152
Tel. 815 923-2107
JFranks@fgpglaw.com
For Plaintiffs City of Evanston, City of
North Chicago, City of Zion, Village of
Beach Park, and Village of Winthrop
Harbor
Of counsel for all Plaintiffs:
Matthew Pawa (pro hac vice motion forthcoming)
mpawa@seegerweiss.com
Wesley Kelman (pro hac vice motion forthcoming)
wkelman@seegerweiss.com
Seeger Weiss LLP
1280 Centre Street, Suite 230
Newton, MA 02459
Tel.: 617-641-9550
Fax: 617-641-9551

Nigel Halliday (pro hac vice motion forthcoming)

nhalliday@seegerweiss.com
Seeger Weiss LLP
55 Challenger Road
Ridgefield Park, New Jersey, 07660
Tel. 973-639-9100
Fax: 973-679-8656

38
 FILED
3/24/2023 3:04 PM
IRIS Y. MARTINEZ
CIRCUIT CLERK
COOK COUNTY, IL
2023L002929
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS Calendar, D
COUNTY DEPARTMENT, LAW DIVISION

CITY OF EVANSTON, CITY OF LAKE )

FOREST, CITY OF NORTH CHICAGO, CITY )
OF ZION, VILLAGE OF BEACH PARK, )
) 2023L002929
VILLAGE OF GLENCOE, VILLAGE OF Case No.
LAKE BLUFF, VILLAGE OF WINNETKA, )
and VILLAGE OF WINTHROP HARBOR, )
)
Plaintiffs, )
)
)
v. )
)
)
)
MONSANTO CO., SOLUTIA INC., )
PHARMACIA LLC, and UNIVAR )
SOLUTIONS INC., )
)
)
Defendants.

AFFIDAVIT
Now comes affiant Michael T. Layden and being first duly sworn on oath, deposes and
states:

1. I am one of the attorneys representing plaintiffs City of Lake Forest, Village of Glencoe,
Village of Lake Bluff and Village of Winnetka in this action.
2. I am familiar with the facts in this action.
3. I have reviewed the available information relating to the money damages this action.
4. On information and belief, the total money damages sought in this action by all plaintiffs
are in excess of $50,000.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily believes the same to be true.
Date: March 24, 2023 /s/ Michael T. Layden

39