U.S. Must Pay Cleanup Costs at Waste Site, Court Decides

The U.S. government must pay the entire cost of cleaning up a hazardous waste site in Los Angeles, a federal appeals court has ruled.

In their appeal to the court, lawyers for the federal government had said that Dow Chemical should share in the cost to clean up the site, which was polluted during World War II efforts to produce synthetic rubber. The plant is located just east of Torrance. But the three-member panel for the U.S. 9th Circuit Court of Appeals called the case “shocking” and Tuesday upheld a decision by a lower court.

“The government is trying to take money from firms it conscripted for a critical part of a great war effort,” said the decision. “The polluting conduct was completely under the direction of the government, it was legal at the time, and the government promised to hold the polluters, who acted as government agents, harmless.”

The judges were referring to a 60-year-old agreement between the federal government and Dow Chemical in which Dow Chemical would operate the plant as an “agent” and “at the expense and risk” of the government.

The plant was built at the height of World War II when most of the regions that produced natural rubber were in Japanese hands and the United States needed synthetic rubber for everything from gas masks to medical supplies.

The production created waste that was kept in pits and polluted the ground as well as some water.

In its appeal, the government argued that Dow should have to share some cleanup costs because it supervised the digging of the waste pits. But the judges ruled that Dow was just doing what the government asked.

“Dow’s role was more nearly analogous to a soldier’s than to a commercial tenant’s,” the judges ruled.

Dow operated the plant until 1955, when it was sold to Shell Oil, which made synthetic rubber there until 1972. In 1983, its new owner, developer Cadillac Fairview/California Inc. sued Dow, Shell, the U.S. government and several rubber companies to cover the expense of investigating soil pollution. Several cross suits have followed, and a lower court ruled that the government should pay for cleanup costs.

An appeal to the U.S. Supreme Court is “within the realm of possibility,” said Dana Perino, a spokeswoman for the Department of Justice. “But those decisions aren’t made lightly, so we are still reviewing our options.”