Cooperative Assessments

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 241-252

Page 241

Chapter 15

Cooperative Assessments

15.1 Introduction

he assessment of natural resource d amages (NR Ds) through litigation is expensive and time consuming.

United States v. Montrose Chemical Corp. of California1 is illustrative. In 1990, the United States and the

State of California led suit to recover NR Ds under the Comprehensive Environmental Re sponse, Com-

pensation, and Liability Act (CERCLA).2 e trustees alleged that discharges of DDT and PCBs to sewers

caused severe sediment contamination in Los Angeles Harbor and the Palos Verdes Shelf and injuries to

wildlife.3 More t han a decade of scientic and legal battles ensued. Trustees a nd responsible parties both

funded expensive studies. Lawyers punched and counterpunched over the su ciency of complaints,4 stat-

utes of limitations,5 the technical underpinnings of the other side’s case, and their experts.6 Both potentially

responsible parties (PRPs) and trustees scored major points in dierent legal rounds.7 With encouragement

from the trial judge and after nearly 11 years of litigation, in December 20 00, the Montrose case nally

resolved through settlement between the government and the responsible parties that remained until trial.8

An educated guess is that the tota l bill shouldered by PRPs for asse ssment costs and legal fees is well over

$100 million. e trustees recovered $30 million for NRDs, an amount substantia lly less than the $225-

250 million sought,9 a nd it took more than a decade to achieve a settlement that would allow important

restoration of natural resources to begin.

1. 104 F.3d 1507, 27 ELR 20508 (9th Cir. 1997).

2. See discussion of the case and site history found in United States v. Montrose Chemical Corp., 104 F.3d 1507, 1511, 27 ELR 20508 (9th Cir.

1997).

3. Id.

4. United States et al. v. Montrose Chemical Corp. et al., 1991 U.S. Dist. LEXIS 10128, 22 ELR 21333 (C.D. Cal. 1991) (dismissing complaint

without prejudice and with leave to rele).

5. See United States v. Montrose Chem. Corp., 883 F. Supp. 1396, 1995 U.S. Dist. LEXIS 5011, 25 ELR 20809 (C.D. Cal. 1995) (dismissing

natural resource damage assessment (NRDA) claim on statute of limitation grounds), rev’d, 104 F.3d 1507, 27 ELR 20508 (9th Cir. 1997).

6. See the following unpublished orders in Montrose: United States v. Montrose Chem. Corp. of Cal., No. 90-CV-1944 (C.D. Cal. Apr. 17,

2000) (precluding federal and state plainti’s use of contingent valuation study to estimate interim lost use); United States v. Montrose Chem.

Corp. of Cal., No. 90-CV-2044 (C.D. Cal. June 26, 2000); United States v. Montrose Chem. Corp. of Cal., No. 90-CV-2085 (C.D. Cal.

Aug. 1, 2001) (excluding key federal and state experts); United States v. Montrose Chem. Corp. of Cal., No. 90-CV-2520 (C.D. Cal. Oct. 3,

2000) (excluding testimony of key defendant experts).

7. See the cases and decisions cited in the preceding ve footnotes and accompanying text.

8. Press Release, U.S. Dep’t of Justice, [United States and] California Announce Settlement to Clean Up Toxic Pollution Prevention in the Pacic

Ocean (Dec. 19, 2000); United States v. Montrose Chem. Corp. of Cal., No. CV-90-3122-AAH (C.D. Cal.) (partial consent decree entered

Mar. 15, 2001).

9. e trustees sought more than $225 million in NRDs, i.e., costs to restore, replace, or acquire the equivalent of resources lost. Trustees re-

covered approximately $30 million in NRDs required to be used for restoration pursuant to CERCLA. See Scoping document prepared by

National Oceanic and Atmospheric Administration (NOAA), California Dept. of Fish and Game, U.S. Fish and Wildlife Service, California

Dept. of Parks and Recreation, Nat’l Park Service, and California State Lands Commission, “Announcing the Invitation of Public Scoping

for a Restoration Plan/Environmental Impact Statement Montrose Settlements Restoration Program.” p. 3, Aug. 24, 2000. See also the four

consent decrees associated with the Montrose case: United States v. Montrose Chemical Corp. et al., No. CV 90-3122-AAH (JRx), Consent

Decree with CBS Corporation, entered Aug. 24, 1999; No. CV 90-3122-AAH (JRx), Amendment to the May 19, 1992, Consent Decree,

entered Aug. 24, 1999; No. CV 90-3122-AAH (JRx), Amended Consent Decree, entered Aug. 24, 1999; No. CV 90-3122-R, Partial Consent

Decree with Montrose Chemical Corporation of California, Aventis Cropscience USA, Inc., Chris-Craft Industries, Inc., and Atkemix irty

Seven, Inc. (relating to Oshore Matters and Department of Justice Costs, entered Mar. 15, 2001).