U.S. to Require Polluters to Restore Wildlife, Habitat

Federal officials next week will begin to systematically enforce a long-ignored provision of federal environmental law by bringing suit against as many as 16 companies accused of polluting waters off the Southern California coast.

The action will represent an opening volley in a potentially sweeping form of environmentalenforcement to require polluters to not only clean up their mess but pay to restore decimated wildlife and habitat to its natural state.

This could open up a vast--and potentially expensive--new realm of environmental responsibility for corporate America. Immense new areas of polluted land and water nationwide, some of it damaged decades ago, could come under the gaze of government attorneys.

The National Oceanic and Atmospheric Administration, an agency better known for weather reports than environmental regulation, said it will file suit Monday against firms it accuses of polluting the waters off the Palos Verdes Peninsula--in some cases, as long as 40 years ago.

Possible targets of the suits include such giants as Westinghouse Electric Corp. and Benjamin Moore & Co. as well as tiny Apex Drum Co. in Commerce, NOAA says. By all accounts, the suits could assess these companies millions of dollars.

The money would be used to clean up marine deposits of DDT and PCBs. The companies allegedly flushed the hazardous substances into the Los Angeles County sewer system, which eventually dumped them into the ocean.

The firms will be sued for so-called natural resource damages under a provision in the 1980 Superfund law and 1972 Clean Water Act that allows the government--as trustee for public natural resources--to assess polluters for restoration of decimated wildlife and habitat.

Federal agencies--notably the Environmental Protection Agency--have long collected funds from polluters to clean up spilled oil, toxic waste, polluted drinking water and other hazards to human health under various environmental laws. But only rarely has the government gone after polluters for the money to take the next step: to restore lands and wildlife to their natural states.

The legal strategy has always been “a complete sleeper,” says William Stelle Jr., counsel to the House subcommittee on fisheries, wildlife conservation and the environment.

That has changed as the Bush Administration has restored money to the budget, cut during the Ronald Reagan Administration, for this new area of enforcement. Significant use of natural resource damages law is expected in Alaska, in the wake of the immense damage done in the Exxon Valdez spill, although the government has yet to file a lawsuit.

NOAA, particularly, has been quietly moving towards more vigorous use of the law since the early 1980s. But it was the size of the damage to publicly owned natural resources in Prince William Sound that spurred government-wide interest in the strategy.

“It’s a hot area,” said Thomas A. Campbell, NOAA general counsel. “We’re hopping around here like one-armed paperhangers . . . and we’ve just had a very significant number of spills in this year.”

Assessing polluters to fund restoration of damaged U.S. wilderness, wetlands, coastal waters and wildlife has long been on the strategy wish-list of environmentalists and some government regulators.

In simple terms, much environmental enforcement has until now concentrated on pollution affecting human health. Natural resource damage law looks at the damage done to public lands, waters and wildlife.

“Eliminating a toxic chemical wouldn’t necessarily help (restore) fish,” explained Mark A. Eames, the NOAA staff attorney in Los Angeles in charge of the Southern California lawsuits.

Typically, Eames explains, a hazardous waste site might pollute a stream that provides drinking water. But that stream might also drain into the ocean, killing off fish and other sea life. The EPA would likely stop the pollution and treat the polluted upstream drinking water. But until now, no concerted effort to restore the fish and ocean habitat would likely have been launched.

Few broad-scale efforts at habitat restoration have been made so far, and there is much disagreement about what would constitute such a restoration and how much it would cost. For example, what’s the price tag on replacing a sea lion or a bed of shellfish? And is it even possible to completely restore a badly damaged habitat to its pristine state?

Under the law, the President--and by appointment, the appropriate federal Cabinet officers--are deemed trustees of the nation’s natural resources. So are state governors. Agencies under these officers may then be delegated to assess polluters for damage and to use these funds to restore or replace the wildlife and habitat.

NOAA, a Commerce Department umbrella management agency over eight federal research services monitoring the nation’s atmosphere and seas, is responsible for the nation’s marine resources.

“A decision in the Reagan Administration restricted use of the Superfund law to ‘human health concerns’ and prohibited its use for these resource-damage cases,” said a House staffer long familiar with the issues. “But NOAA got $2.5 million on its own last year, and the same this year, to pursue litigation.”

Natural-resource damages have also been sought in Exxon’s spill of 567,000 gallons of heating oil at Arthur Kill, N.J.; a marine toxics case in New Bedford, Mass., and in a proposed settlement between six federal and state trustees and other agencies with Shell Oil Co. over a 1988 spill near Martinez, Calif.

But no lawsuits have yet gone to trial using this legal mechanism. And accounting procedures for assessing natural-resource damage are still being debated.

In the Exxon Valdez case, the few estimates of natural-resource damage, admittedly pulled mostly from thin air, have run to $1 billion or more.

“But how much is Exxon willing to pay?” asks Andy Spear of the Alaska state Oil Spill Coordinating Office. “They paid $40,000 apiece to clean up otters, but you wouldn’t have to pay that much if you bought one for an aquarium.”

Still, the tactic offers government regulators trying to restore long-damaged wilderness and wildlife “one of the most fascinating targets of opportunity in the environmental business today,” says Cecil Hoffmann, senior environmental protection specialist in the Interior Department’s Office of Environmental Affairs.

“It’s a very positive development to have the power of the federal government behind natural-resource cleanups,” agrees Ann Notthoff, a senior project planner with the Natural Resources Defense Council, an environmental group. “We’ve been waiting for it for a long time.”

Stelle sees the tactic “attempting to fix what economists have been complaining about for years. That is, the failure of the market to recognize that environmental quality is worth something.”

“For 200 years we have been degrading our coastal water quality, and our river habitats and our fisheries,” Stelle says. “That costs money, because today’s fishermen have to spend more time and more fuel to catch fewer fish. It’s not a cost that anybody really recognizes. But the fishermen pay. What this program does is say that the people who cause the damage are going to have to pay.”

In Southern California, NOAA five months ago issued warning letters to the 16 firms indicating that they are potentially liable for past pollution. Some of them are Westinghouse, Potlatch Corp., Benjamin Moore & Co., Simpson Paper Co., Montrose Chemical Corp. of California, Chris-Craft Industries, ICI Americas Inc., ICI Inc., ICI American Holdings Inc., Stauffer Management Co., Stauffer Chemical Co. and Trans Harbor Services. Smaller companies that clean and recondition used 55-gallon industrial drums--including Apex Drum--were also sent letters.

The companies were told that they could be sued for damage for allegedly dumping DDT, the long-banned pesticide, or polychlorinated biphenyls (PCBs).

Officials of several companies--including Westinghouse and Montrose--declined comment on the lawsuit until they could review it. But several firms maintained that they were innocent of any liability for pollution.

“I know that some of the other companies say that some of these (cases of pollution) trace back to times when these materials were thought not harmful,” said John T. Rafferty, general counsel of Benjamin Moore. “And now they are having their feet held to the fire for something done then. . . . But when you are faced with an environmental law, you comply. There’s nothing you can do.”

NOAA biologists say that commercial and sport fish off Palos Verdes Peninsula are seriously contaminated and that Southern California’s sea lions and dolphins carry the highest body-fat concentrations of the two pollutants ever found in marine mammals. The pollution, according to NOAA, can be traced back to sewage discharges by these companies.

Meanwhile, the Alaska spill has provided a test of some environmentalists’ contention that the law also allows private groups to be considered trustees. The National Wildlife Federation, the Wildlife Federation of Alaska and the Natural Resources Defense Council are suing Exxon under that premise.

“What we are saying is that the law permits the citizenry” to bring suit, says Leonard Schroeter(, a Seattle attorney and part of the conservationists’ legal team. “And in this instance, it is the environmental groups who best of all speak for the birds, the bees, the animals, the fish, the natural habitat.”

At NOAA, research into pollution sites over the past couple of years is about to produce more lists of potentially liable companies. That and proposals to better fund the assessment stage make many environmentalists and government prosecutors hopeful that--sooner rather than later--they can put natural-resource damage collection to far broader, tougher use, particularly to begin cleaning up older polluted habitat.

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