Court Reinstates Lawsuit on DDT

In a major victory for the government and environmentalists, a federal appeals court in San Francisco on Friday reinstated a massive lawsuit against several chemical companies that dumped millions of pounds of the pesticide DDT into the ocean off the Palos Verdes Peninsula.

The ruling paves the way for a trial jointly prosecuted by federal and state agencies, which are hoping to recover millions of dollars in damages to help restore the area.

Other than the Exxon Valdez oil spill case, this suit is the largest in U.S. history alleging damages to natural resources from chemical dumping. The federal government has already spent $24 million collecting evidence.

A three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously reversed a March 1995 decision by U.S. District Judge A. Andrew Hauk of Los Angeles. Hauk had ruled that the case was barred by the statute of limitations, a ruling that stunned government lawyers because he had been presiding over the suit since 1990.

The 9th Circuit ruled that Hauk misinterpreted the statute. The appellate judges also reversed the other major ruling Hauk made 22 months ago--that the cap on damages in such a case was $50 million.

The decision was praised by John Saurenman, an environmental attorney with the California attorney general’s office, one of two lead lawyers for the plaintiffs. “Obviously, we’re happy; we have our case back,” Saurenman said.

He said the ruling on the damages cap was particularly important because it was the first appellate decision on the issue. If the 9th Circuit had agreed with Hauk, “the ability of federal or state agencies to pursue big [toxic] injury cases would have been really hampered.”

John J. Lyons, regional general counsel of the Environmental Protection Agency in San Francisco, said: “EPA is obviously very pleased with the court rulings because they will allow us to work with other government agencies to affect a complete cleanup and restoration of the natural resources.”

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Heal the Bay, an environmental organization that has worked to clean up Santa Monica Bay, also expressed delight.

“It’s great news, but completely expected that the 9th Circuit would overturn Judge Hauk’s ruling since there was no logic to it,” said Executive Director Mark Gold. He said that damage to birds, fish and other wildlife is ongoing.

Karl S. Lytz, the lawyer for lead defendant Montrose Chemical Corp. of California, said he was disappointed with the ruling. He predicted that his client would be exonerated if the case goes to trial. “Ultimately, once objective science is brought to bear, the court will conclude that there are no significant injuries on the Palos Verdes shelf that warrant any award of natural resources damages.”

DDT from the Montrose plant in Torrance was released into sewers that empty into the ocean off the Palos Verdes Peninsula from 1947, when the plant opened, through 1971, when the county cut off access to the sewer system because of mounting concerns over ocean pollution.

About 100 tons of contaminated sediments still lie on the ocean floor, spread over at least a 27-square-mile area of the Palos Verdes shelf and deeper ocean floor.

In 1989, the EPA designated the site of Montrose’s former Torrance plant--now a huge parking area--as a federal Superfund site. The agency has done considerable studies and is continuing to assess the clean-up options, Lyons said.

Last July, the agency initiated an investigation of DDT and PCB contamination on the Palos Verdes shelf and is managing that investigation in conjunction with the Torrance effort.

The plaintiffs did not prevail on one significant issue, however. The 9th Circuit denied the government’s request to remove Hauk from the case. When the 84-year-old jurist dismissed the suit in March 1995, he criticized the lead plaintiff, the National Oceanic and Atmospheric Administration, as “all pointy-heads, so-called experts, pseudoscientists on environmental matters.” He also referred to the Justice Department lawyer as “Mr. Government,” adding “I can’t remember your name,” and flayed other government officials too.

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In 1994, in a rare disciplinary action, the judicial council of the 9th Circuit barred Hauk from hearing any more police brutality cases after an investigation of the judge’s frequently intemperate comments on the bench.

But in this instance, 9th Circuit Judge Charles Wiggins said that although the appellate panel agreed with the government’s contentions that Hauk’s comments “are not as restrained as we would wish them to be . . . there is no indication . . . that the judge was ruling against the government based upon any of his often expressed opinions concerning environmental science or the government.” Consequently, the panel denied the government’s request and sent the case back to Hauk for further proceedings consistent with their rulings.

Gold expressed disappointment, saying the judge is ‘incredibly biased against environmental causes.”