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Federal Suit Over DDT Dumping Is Dismissed : Courts: Judge rules U.S. filed Palos Verdes case too late. Decision is blow to effort to clean up offshore deposits.

March 23, 1995|MARLA CONE | TIMES ENVIRONMENTAL WRITER

In a ruling that sent shock waves through U.S. environmental agencies, a federal judge Wednesday dismissed a huge government lawsuit against chemical companies that dumped millions of pounds of the pesticide DDT into the ocean off Palos Verdes Peninsula.

The stunning decision by U.S. District Judge A. Andrew Hauk dealt a severe blow to federal efforts to collect several hundred million dollars to be used to clean up the enormous offshore deposit of DDT--the largest in the nation--and heal the coastal environment.

The dismissal--granted on the grounds that the government lawsuit was filed too late--came five years into the case and after $24 million in taxpayer funds were spent collecting evidence. Federal lawyers said the ruling was curious because Hauk has been overseeing the case since it was filed in 1990.

Before his ruling, the Los Angeles judge--known for eyebrow-raising remarks from the bench--threw numerous personal barbs at environmentalists, the Clinton Administration and the U.S. Environmental Protection Agency. He called environmentalists a bunch of "do-gooders and pointy-heads running around snooping" and "always complaining about something or another."

The lawsuit against Montrose Chemical Corp. and six other firms was the largest in U.S. history alleging damage to natural resources from chemical dumping, and it was expected to be a landmark case in resolving coastal pollution issues. In environmental circles, the Montrose case was often compared to the $5-billion verdict against Exxon to compensate for its 1989 massive oil tanker spill in Alaska.

"This is just unbelievable," said Mark Gold, director of Heal the Bay, an environmental group that has worked to clean up Santa Monica Bay. "It is an outrage for the environment."

Several lawyers said it was highly unusual for a judge to dismiss such a major case, citing a missed filing deadline under federal law, after presiding over the litigation for so many years. The motion to dismiss was originally filed in 1993. In another unusual twist, in ruling now in the companies' favor Hauk rejected the advice of a special master he had appointed to help the case proceed.

Justice Department attorneys said they would probably appeal to a higher court, but Hauk handed them another major blow Wednesday by refusing to grant their request for an immediate appeal, which could mean an appellate court won't review it for years.

"This isn't over," said Justice Department attorney Gerald George, the lead government lawyer. "They are litigating against the United States and the United States doesn't go away."

Karl Lytz, a San Francisco attorney representing Montrose Chemical Corp., said Hauk "did the right thing" because the case was too old for the companies to fairly defend themselves.

"From Montrose's perspective, the government was suing us for conduct that we had terminated back in 1971, and it always seemed to us that the government's claim had grown very stale," Lytz said.

"We had no one left, no current employee of our company, who really knew anything about these matters. The only fair thing to do was to recognize that the claim had grown stale after all these years, and it is unfair to try to defend ourselves under the circumstances."

DDT from the Montrose plant in Torrance was released into sewers that empty in the ocean off the Palos Verdes Peninsula for nearly a quarter of a century 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. The federal government has wrestled for decades with what to do about the contamination, and had turned to the lawsuit to seek funds to help restore the coastal environment.

Court records filed in October show that the government has spent $23.6 million in scientific research to support the case. The suit was at a pivotal point because the government's expert witnesses had just completed their scientific reports, and depositions had begun this month.

"The biggest loser here is definitely the environment and most likely the people in the Los Angeles area," said John Lyons, assistant regional counsel for the EPA.

"Over the last five to seven years, EPA and the (federal) trustees have spent a lot of time, energy and money working together to address the releases that originated from the Montrose plant," he said.

Without the opportunity to collect damages from the companies, wildlife experts and health officials warn that the DDT continues to pose a cancer threat to the health of people, largely poor minorities, who eat fish caught off Palos Verdes as well as to birds, fish and other marine life off the coast.

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