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Oil Firms Lose Cleanup Appeal

Environment: A federal court rejects bid to make U.S. pay for $100-million Superfund site. Firms argued pollution was part of 1940s war effort.


A federal appeals court Friday rejected a bid by oil companies to make the U.S. government pay for the $100-million cleanup of the McColl property in Fullerton, where the companies dumped toxic waste during World War II.

The ruling by the 9th Circuit Court of Appeals in San Francisco reaffirms an earlier decision by that court, making the oil companies responsible for 95% of cleanup costs on the 22-acre site, where more than 100,000 cubic yards of toxic byproducts were dumped in the 1940s.

The property was placed on the Environmental Protection Agency's Superfund list in 1983 after investigators found sulfuric acid, benzene and other potentially hazardous substances there. By 1998, the land was cleaned up and now is part of a golf course. The cleanup involved a multilayer cap, gas-collection system and groundwater equipment to monitor the site.

Although that process won national praise and was used as a model for other toxic-waste sites, the issue of who should pay for it remained in dispute.

A district court judge ruled in 1998 that the U.S. government should foot the bill because the dumping by Atlantic Richfield Co., Shell Oil Co., Texaco Inc. and Union Oil Co. was part of the war effort.

The appeals court reversed that decision, finding that the government did not order the companies to dispose of their sludge at the McColl site. The companies asked the court to reconsider.

The toxic sludge was a byproduct of a special high-octane gas the government ordered for the military. It was reusable, but the recycling process was slow and costly, threatening to bottleneck gas production plants at the height of the war. So the companies began dumping it at McColl, a facility set up by private citizen Eli McColl to dispose of the sludge.

"The oil companies had other disposal options for their acid waste," Judge William A. Fletcher wrote in Friday's ruling. "They were not compelled by the government to dump waste in any particular manner."

The appeals court did order the U.S. government to pay for the cleanup of sludge from government-owned benzol dumped at McColl--about 5% of the hazardous material there.

Federal officials declared the ruling a victory.

"The Department of Justice remains pleased with the result of this case and is certainly pleased the court denied the oil companies' petition for rehearing," spokeswoman Dana Perino said.

Attorneys for the oil companies did not return calls Friday afternoon.

Neighbors of the site have rallied behind the oil companies, arguing that they were key in cleaning the property and that the government should take responsibility for the pressure it put on companies to produce during the war.

"It should be at least 50-50," said David Bushey, who has lived in a house next to the site for 24 years. "The government is great at ordering people to do stuff and then denying culpability years later."

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