DDT Injured Eagles, Falcons, Judge Rules

A federal judge ruled Monday that DDT pollution on the ocean floor is responsible for decades of injuries to bald eagles and peregrine falcons on the Channel Islands.

The ruling by U.S. District Judge Manuel L. Real resolved a key issue in a decade-old environmental case against Montrose Corp. and two other chemical companies. The decision set the stage for potential damage awards against the companies that could run into tens of millions of dollars.

The U.S. Justice Department and the California attorney general’s office are seeking about $150 million for damage to natural resources plus about $10 million for past cleanup costs in the litigation, which is the largest case in the nation seeking damages for pollution of natural resources.

In a trial scheduled to begin Oct. 17, Real must determine whether the DDT discharged by the companies was the substantial cause of the wildlife injuries, and if so, how much money the companies must pay.

Los Angeles County, 150 municipalities and three other companies already have agreed to pay $67 million in damages for their roles in the pollution.

The government is also seeking money from the companies to pay the future costs of cleaning up the DDT. Last month, Real ruled that the firms could not be forced to pay those costs. The government is now appealing that decision.

About 100 tons of DDT lies on the Palos Verdes Shelf about a mile offshore. The pesticide was banned in the United States almost 30 years ago because of links to cancer in humans and reproductive problems in birds and marine animals.

The offshore DDT came from a Montrose plant near Torrance that operated for 25 years until 1972, flushing its waste water into county sewers that flowed into the ocean off the Palos Verdes Peninsula.

In 1996, the U.S. Environmental Protection Agency named the 17-square-mile area of the ocean floor a Superfund site, ranking it among the most dangerous waste sites in the country.

The companies have argued that there have been no injuries to the falcons and eagles because they are about as numerous on the islands as they were before DDT was introduced. They argue that the ocean deposit off the peninsula is being buried under ocean sediment and is not the source of whatever contamination is found in the birds and fish.

Attorney Karl Lytz, who represents Montrose, said after the ruling that while the companies lost their argument that the birds have not been injured by DDT, Monday’s decision does not resolve the question of who is liable for the injuries. That remains an issue for the trial.

Government attorneys called the ruling a major victory but declined to speak in detail about the case because the trial is about to begin.

“The judge has found that certain injuries were caused by DDT. Obviously, we feel the judge issued the correct ruling and we’re gearing up to go to trial on the remaining issues,” said Steve O’Rourke, a Justice Department attorney.

Monday’s ruling involved damages to birds in the region. Bald eagles on Santa Catalina Island have suffered complete reproductive failure because of the pesticide. Even now, so much DDT is found in eagle eggs that chicks cannot survive without human intervention. As recently as 1992, an adult bald eagle on the island died from DDT poisoning. The eggshells of peregrine falcons also have been thinned by DDT.

The government is seeking $17 million to restore the eagles and falcons to the Channel Islands, plus an unstated amount for loss of the birds as natural resources.

In June, Real decided that fish were injured by the DDT on the Palos Verdes Shelf.

The state has banned commercial fishing of white croaker, a bottom-dwelling species popular in Asian diets, around the deposit.

Despite the fishing ban, the environmental group Heal the Bay has found croakers with high levels of DDT being sold in local Asian markets. The EPA says eating a weekly meal of the fish multiplies the risk of cancer.

On the issue of who must pay to clean up the DDT, Real ruled last month that the companies were liable for the EPA’s cleanup of the offshore deposit as well as the costs of cleaning an onshore industrial site near Torrance. But he greatly restricted the amount the EPA can obtain by limiting the recovery to past costs, not future ones.

Real made his ruling as a sanction against the government for failing to comply with a May 31 deadline to identify what cleanup actions will be taken on the ocean floor.

The EPA argued that the deadline was unreasonable and unlawful and did not comply with it. The agency, under Superfund regulations, is required to conduct a lengthy investigation and public review before deciding on a cleanup method.

If the order is upheld on appeal, the EPA would be able to collect no more than the $10 million it has spent since 1982. Federal officials estimate that the eventual cleanup costs could total $150 million.

The EPA has been experimenting this summer with an operation designed to cover the ocean deposit with clean sand dredged from Long Beach Harbor. Montrose Corp. attorneys say covering the deposit is risky and a waste of money.

The DDT appears to be leaking from the deposit and is being consumed by marine organisms on the ocean floor, government scientists believe. From there, it moves through the food chain. Most experts say it breaks down slowly, remaining in ocean sediments for decades if not centuries.

The Montrose case is being closely watched because it is exceeded in potential damages only by the $1 billion that federal and state officials won for the Exxon Valdez oil spill in Alaska.

The Montrose lawsuit, filed in 1990, originally was dismissed by U.S. District Court Judge Andrew A. Hauk. His ruling, in 1995, was overturned by the 9th Circuit Court of Appeals.

Real took over the case earlier this year.