Toxic Torts for the General Practitioner
| Publication year | 1992 |
| Pages | 207 |
| Citation | Vol. 21 No. 2 Pg. 207 |
1992, February, Pg. 207. Toxic Torts for the General Practitioner
Toxic pollution and contamination carries a high profile today. Identifying problems and knowing where to find expert help enables practitioners to serve their clients more effectively in this volatile arena.
This article first summarizes the major federal statutes and provides a general analysis of the civil and criminal provisions of these enactments. This offers a legal background against which to address various facts and situations. However, practitioners also should examine the number of state laws which have companion or additional features dealing with persons, property and environmental protection issues.(fn1) The article then presents some problems and case management suggestions and, finally, discusses the role of expert witnesses in the toxic pollution and contamination areas.
Federal and state governments, Superfund, related statutes and the courts are casting an ever-increasing net over this entire area of practice. Toxic substances and contaminants occur in numerous forms and situations. Hazardous substances include those which are toxic, corrosive, reactive and explosive. A sampling of substances considered hazardous includes asbestos, polychlorinated biphenyls ("PCBs"), solvents, pesticides, municipal effluent (solid waste) and fluorocarbons.(fn2) Moreover, underground petroleum storage tanks are extensively regulated by the Environmental Protection Agency ("EPA").(fn3) Control of such materials is effectuated primarily by federal statute. However, many of the federal programs have been delegated to the states. Comprehensive federal regulation began largely as a response to various shortcomings of common law remedies.
Federal regulations perform the multiple roles of establishing standards, providing requirements for state delegation and creating various enforcement remedies. Statutes contain broad policy statements, such as those found in the National Environmental Policy Act of 1969,(fn4) as well as specific emission standards, such as those directed by the Clean Air Act.(fn5) A number of major federal environmental statutes create comprehensive schemes of enforcement, including creation of citizen rights of action and both civil and criminal federal enforcement.
Comprehensive environmental regulation of federal agencies represented a central concern to Congress during the 1960s. Concern for the absence of accounting for environmental values in agency decision-making prompted Congress to reform federal agency decision-making. A substantial portion of the National Environmental Policy Act of 1969 ("NEPA") is devoted to the declaration of a national environmental policy.(fn6) Duties were imposed on federal agencies in later portions of NEPA.(fn7) For example, § 4332(c) requires detailed environmental impact statements ("EISs") for every "major Federal action[s] significantly affecting the quality of the human environment." Included within these EISs are such items as assessments of impact, alternatives and analysis of resources to be committed irreversibly.(fn8)
Provisions of NEPA which mandated preparation of EISs resulted in a profusion of litigation surrounding the necessity and adequacy of impact statements.(fn9) Substantive and procedural challenges to NEPA are largely a product of private lawsuits and agency actions. While NEPA carries no criminal penalties, the EIS requirements have proven to be a substantial
In 1976, Congress enunciated its concern over the growing solid waste disposal problem and recovery of usable materials in the United States. As a result, Congress enacted the Resource Conservation and Recovery Act of 1976 ("RCRA").(fn10) The primary objectives of RCRA are to assist states in solid waste management, address hazardous waste disposal issues, and promote resource recovery and conservation. Congress specifically wished "to promote the protection of health and the environment and to conserve valuable material and energy resources...."(fn11) It has attempted to achieve these objectives through the regulation of the generation, treatment, storage, transportation and disposal of hazardous wastes.(fn12) Although solid waste management is specifically left to state government, Congress envisioned there would be federal financial and technical assistance through RCRA.
Provisions regulating hazardous wastes are largely concerned with issuing permits for the treatment, storage and disposal of such wastes.(fn13) Specifically, RCRA prescribes so-called "cradle to grave" monitoring systems governing generation, transport, storage, treatment and ultimate disposal of hazardous materials. It also contains provisions extensively regulating underground storage tanks, guidelines for corrective actions and financial responsibility for clean-up of leaking tanks.(fn14) RCRA also has been updated to contain a demonstration program for medical waste disposal.(fn15)
Operative enforcement provisions of RCRA allow for citizen suits as well as civil and criminal sanctions. Citizen suits are permitted against anyone who has allegedly violated regulations enacted under RCRA.(fn16) Additionally, citizen suits may be brought to compel government administrators to perform acts and duties which are not discretionary.(fn17)
Compliance orders may be issued. The consequence of failure to comply may result in fines up to $25,000 per day of noncompliance.(fn18) Criminal sanctions flow from a variety of provisions. RCRA sections impose criminal liability for such actions as the knowing transportation of hazardous waste to an unpermitted facility; knowing treatment, storage or disposal of hazardous waste without a RCRA permit; and knowing violation of the provisions of such a permit.(fn19) Each of the above carries daily fines up to $50,000, with prison sentences of generally two years but up to five, or both. Repeat offenders are subject to double sanctions. If such violations occur in a context in which a person is knowingly placed in imminent danger, the sanction increases in severity to fines up to $250,000, fifteen years' imprisonment or both. Corporations may be fined up to $1 million.(fn20)
The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),(fn21) is frequently referred to as the "Superfund" statute. It represents congressional response to the growing problem of hazardous waste disposal. While RCRA is largely prospective in regulation of solid waste disposal, CERCLA is directed at cleaning up hazards created by inadequate disposal methods of the past. CERCLA and SARA established the "Superfund" trust from which the EPA may draw to clean up waste sites. More significant, CERCLA creates a framework of private owner and operator liability allowing for recovery of clean-up costs.(fn22)
CERCLA allows private actions for recovery of clean-up costs, as well as contribution actions in some instances.(fn23) CERCLA § 107(fn24) defines those parties potentially liable for response costs, as well as the scope of recoverable costs. Cases are characterized by broad interpretations of the parties defined by CERCLA.(fn25) Potential parties include present owners and operators of property where hazardous substances have come to be located, owners and operators at the time the disposal occurred, transporters of hazardous substances and those arranging for disposal on another's property.(fn26) CERCLA generally has been interpreted as attaching strict liability accompanied by relatively limited defenses.(fn27)
The broad scope of liability that may be attached under CERCLA has sweeping ramifications. CERCLA liability is without regard to fault and may be joint and several in character.(fn28) Simple real estate transactions now require careful investigation to determine the presence of waste on the property. Recent decisions indicate a willingness on behalf of courts to expand the definition of who are responsible owners or operators. Assertion of actual control appears to be the motivating factor behind these extensions.(fn29)
Some lender liability has been created despite the "secured creditor exemption" provided for under CERCLA.(fn30) Costs recoverable as a result of such actions can include the expense of removal or other remedial action.(fn31) Recently, the "cost of response" was expanded to include recovery of attorney fees incurred by private parties.(fn32) CERCLA § 107 provides only three defenses to imposition of liability: acts of God, acts of war and acts or omissions of third parties.(fn33) Civil liability in such instances can be substantial, thereby making CERCLA of significant fiscal importance.
CERCLA is not limited to civil actions. Criminal sanctions also can attach in certain instances. Failure of persons in charge of a facility to give proper notice of any release of a hazardous substance in a reportable quantity results in a strict liability offense.(fn34) Knowing failure to report treatment, storage or disposal of hazardous waste to the EPA carries criminal sanctions, as does the knowing destruction or falsification of required documents.(fn35) Criminal penalties include both imprisonment and fines.(fn36)
The Clean Water Act ("CWA") and its predecessor, the Federal Water Pollution Control Act ("FWPCA")(fn37) establish effluent standards for point sources and require that states promulgate ambient water quality...
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