Wednesday, August 7, 2002
U.S. Liable for Cleanup of Pollution From Wartime Rubber Production—Court
By a MetNews Staff Writer
A judge’s ruling that the federal government must bear the entire cost of cleaning up a Torrance toxic site where rubber was produced for the Allied effort in World War II was upheld yesterday by the Ninth U.S. Circuit Court of Appeals.
Senior U.S. District Judge Mariana Pfaelzer of the Central District of California did not abuse her discretion, Judge Andrew Kleinfeld wrote for the appeals court, in ruling that the government could not foist a portion of the cleanup costs on the companies that did the actual polluting.
It would be “shocking,” Kleinfeld said, if the government could “make a company that discharged pollutants into the soil at the government’s direction and under its control during World War II, in a war production plant, pay part of the cost of cleaning them up.”
With rubber in great demand—U.S. production had dropped during the Depression, and the natural-rubber producing countries of Asia had been conquered by the Japanese—the federal government sought to produce large quantities of Buna-S synthetic rubber, beginning in 1942, Kleinfeld explained.
Buna-S is made by attaching molecules of butadiene and styrene, a process known as polymerization. The government-owned Torrance facility included a butadiene plant operated by Shell Oil and a styrene plant operated by Dow Chemical.
Dow knew that it was contaminating the groundwater by disposing of the waste in pits, Kleinfeld said, but the government as a matter of policy chose not to hinder the war effort by diverting resources to pollution control. Dow closed the pits in 1947, after cleaner technologies had been developed.
The facility was sold to Shell Oil in 1955. Shell made synthetic rubber there until 1972, when it sold the site.
Cadillac Fairview/California, Inc., eventually bought the site and developed it for commercial and industrial use. In 1983, the company sued Dow, Shell, the federal government, and others for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act.
The litigation has bounced between the District Court and the Ninth Circuit since. After a 1994 appeal that held Dow to be a potentially liable “operator,” the case went to trial before Pfaelzer. She ruled that the government should bear all of the cleanup costs due to its authoritative role in the decisionmaking that led to the pollution.
Dow and the government were the only parties to yesterday’s appeal.
Kleinfeld, joined by Senior Judge Dorothy W. Nelson and Judge Diarmuid F. O’Scannlain, rejected the argument that Dow should have to pay part of the costs because it benefited financially from the activities that caused the pollution.
He cited evidence that the company accepted far less money than its services were worth “and lost much of the benefit it might have realized when the government sold the plant to Shell Oil instead of Dow after the war.”
The case is Cadillac Fairview/California, Inc. v. Dow Chemical Company, 99-56641.
Copyright 2002, Metropolitan News Company