Cleaning out DDT-contaminated sediment in a sewer that received wastewater discharged from the Montrose Chemical Corporation. Courtesy of the EPA

A group of defendants led by Montrose Chemical Corp. will pay at least another $77 million to clean up contamination in Los Angeles from a former Montrose dichlorodiphenyltrichloroethane, or DDT, manufacturing plant in what a veteran litigator hailed as a "milestone" in a 31-year legal saga.

Three partial consent decrees that U.S. District Judge David Carter of the Central District of California approved last week resolve some claims the California Attorney General's Office and U.S. Department of Justice brought in a 1999 amended complaint under the Comprehensive Environmental Response, Compensation and Liability Act of 1980.

Through them and previously approved decrees, all disputes heard during a bench trial in 2000 that remained under submission when the trial judge died in 2019 have now been resolved.

Together, the three new decrees provide for the study and clean up of portions of two superfund sites, but they don't preclude possible future litigation about buried barrels of DDT that were the subject of a Los Angeles Times investigation last October. Montrose's lawyer Kelly Richardson, a Latham & Watkins partner in San Diego, assured Carter of that in a Sept. 28 hearing. 

"As long as I have that representation, I feel much more comfortable," the judge replied. "I just didn't want a future court to be looking back without clarity."

U.S. District Judge David Carter of the Central District of California. Photo via Meghann M. Cuniff/ALM

Carter said the issue of the "hundreds of thousands" of buried barrels "has to be left to future litigation or decrees." 

Deborah Gitin, a lawyer with the DOJ's environmental resources division, told Carter she wanted "to make clear the government is not either endorsing or rejecting any of the statements that were made in recent press articles about numbers or locations." 

But Carter said the defendants have told him the barrel sites that were "the subject of recent news attention were apparently documented in detail in a 1985 report prepared on behalf of the Los Angeles Regional Water Quality Control Board" and entered as an exhibit in the 2000 bench trial.

Initiated in 1990, the litigation already includes more than $100 million in consent decrees and other settlements, and it is so epic that it cites itself. The U.S. Court of Appeals for the Ninth Circuit vacated one consent decree in the case in 1995, which EPA lawyers referenced in a motion to approve two of the most recent consent decrees.

"The standard for approval of a CERCLA federal settlement is whether it is "reasonable, fair, and consistent with the purposes that CERCLA is intended to serve," as the Ninth Circuit has held in this very case," according to the motion.

Along with Montrose, which operated the plant, the settling defendants include Bayer CropScience Inc., Stauffer Management Co. LLC and TFCF America Inc. TFCF is part of 21st Century Fox and a successor to Chris-Craft Industries. It had contested liability in this case, which U.S. District Judge Manuel Real of the Central District of California considered during the 2000 bench trial but never adjudicated.

The notoriously independent jurist died June 26, 2019, with the trial still under submission, though he'd resolved several other aspects of the case in the meantime, including through a partial consent decree in 2012. 

The new decrees follow several settlement negotiation sessions with U.S. Magistrate Judge Gail Standish. One builds on the last decree in 2012, which included Montrose, Bayer, Stauffer and TFCF, too.

Montrose manufactured DDT at the plant from 1947 to 1982 and dumped large amounts into the Pacific Ocean, while Stauffer and Bayer are connected to the ownership of the property as established through their own admissions. TFCF "is successor to a parent company of Montrose, which Plaintiffs contend is directly liable as a former operator at the Site; TFCF's liability has not been adjudicated."

The cleanup work dictated under one decree is estimated to cost $52.6 million, while the work in the other consent decree is pegged at $25 million. The companies "have committed to perform the work regardless of its cost," according to the motion to approve.

Case law says a consent decree is just, in part if it were negotiated with "adversarial vigor," according to the motion, and "It would be difficult to argue, in the context of a litigation that has spanned three decades and over 3000 docket entries … that the parties have not been adverse."

"Negotiations were lengthy, and the parties were represented by experienced counsel and technical staff," according to the motion.

In court Tuesday, Richardson, who has been involved in the case since 1999, said the agreements "mark the culmination of decades of technical studies."

"They're clearly in the public interest," Richardson said in court.

The third consent decree involves the four companies agreeing to pay approximately $4 million for a study into DDT contamination on a portion of the Montrose superfund. Once that is complete, "the parties intend to pursue a cooperative resolution of the cleanup," according to an approval motion. They'll also reimburse the Environmental Protection Agency and California Department of Toxic Substances Control nearly $4 million for previous work.

One attorney who attended last week's hearing said he's been involved in the litigation since it began. Jose R. Allen, a retired partner at Skadden, Arps, Slate, Meagher & Flom who represents TFCF, said in court that the decrees are "a very important milestone in this matter, "and we are very pleased and thrilled that we've been able to achieve it."