CHAPTER 9 EVOLVING ISSUES IN TOXIC TORT LAW: WHAT HAPPENS WHEN CLEAN-UP IS NOT ENOUGH?

• Jurisdiction: United States

Environmental Considerations in Natural Resource and Real Property Transactions
(Nov 1988)
CHAPTER 9
EVOLVING ISSUES IN TOXIC TORT LAW: WHAT HAPPENS WHEN CLEAN-UP IS NOT ENOUGH?
Michael C. Donovan, Esq.
Cogswell and Wehrle, P.C.
Denver, Colorado
Columbus, Ohio
Helena, Montana

I. INTRODUCTION

Among the great unwanted legacies of this nation's industrial economy is and has been hazardous waste. Fueled by the intense manufacturing which resulted from both new scientific in-roads and the cyclical consumer demands of repetitive war-time economies, United States industries in this century alone have generated and disposed of many billions of tons of hazardous waste. A recent report by the Congressional Office of Technology Assessment estimated that United States industries generate approximately 250 to 275 million tons of hazardous waste annually.¹ Most of the disposal of hazardous waste in the United States prior to the last ten years has been accomplished with little, if any, understanding of the long-term public health and environmental consequences inherent in the nature of the substances disposed of and in the manner of their disposal.

Today we know much more about both the toxicological and chemical properties of the hazardous substances being disposed of as well as how those substances behave in the environment. With this increased knowledged has come a heightened awareness of the dangers which are continuing to be presented by the hazardous substances which were disposed of many years ago and which persist in the environment as well as those which are being generated and disposed of today. As a result of this increased awareness and

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concern by the American public, Congress, commencing in the early 1970s, began to enact a series of prospective, regulatory legislation designed to ameliorate the impact of both hazardous and non-hazardous pollutants on the environment and public health. This legislation includes the Clean Air Act ("CAA"),² Federal Water Pollution Control Act ("FWPCA"),³ Toxic Substances Control Act ("TSCA"),⁴ Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act ("RCRA"),⁵ Safe Drinking Water Act ("SDWA"),⁶ the Surface Mining Control and Reclamation Act ("SMCRA"),⁷ and most recently, the Emergency Planning and Community Right-to-Know Act ("EPCRA").⁸ While an in-depth analysis of these acts is beyond the scope of this paper, it is sufficient for present purposes to note that each of these acts was and remains essentially a prospective, regulatory type of legislation designed essentially to alter and control specified activities which occur after the effective date of the statute. Similarly, each of these regulatory environmental statutes contains provisions expressly targeting the problems of hazardous substances in the environment, and each contains a "citizen suit" provision authorizing private

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individuals to bring civil actions to enforce the provisions of the statutes in the event that the governments fail to do so after being given required notices.

Often hazardous substances lie buried in the ground or saturated through an underground aquifer for many years or even decades before migrating to human, animal, or other receptors. When human contact results, through ingestion, dermal contact, inhalation or otherwise, the adverse effects, whether acute or chronic, may not be readily apparent. It is generally regarded by the scientific community that cancer-causing substances, or carcinogens, have a latency period of between five and forty years from the time of exposure to the time when tumors or other pathologies result. The result is what is currently known in the toxic tort field as the "delayed manifestation" or "latency" case, where the plaintiff only discovers the injury many years after the original contact with the pollutant and often times decades after the original act of disposal of the pollutant. Understandably, Congress, reacting to this situation and recognizing the present day hazards resulting from past disposal practices, began in this decade to enact environmental legislation which is, to the limit of its constitutional powers, retrospective (albeit not "retroactive" in the due process sense), compensatory legislation. These pieces of compensatory federal environmental legislation, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund Act")⁹ and § 7002(a)(1)(B) and § 7003

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of RCRA¹⁰ and the "imminent hazard" provisions of the FWPCA¹¹ and the SDWA¹² , each authorize the imposition of liability for cleanup and other "necessary" compensatory costs upon persons who acts of pollution substance management or disposal regardless of when such act occurred (even prior to the effective date on the statutory provision being invoked) are now presenting an imminent and substantial endangerment (i.e., risk) to public health or the environment. Due both to constitutional "due process" and political limitations, these retrospective, compensatory environmental statutes impose liability only for broad-based compensatory measures necessary to protect the public health or environment. Generally speaking, they neither impose liability for nor provide a vehicle for the recovery of entirely "private damages", such as personal injury damages, diminution in property value, etc.¹³

Just as the major advances in both the medical and environmental science have informed Congress and the state legislatures of the problems inherent with past and present hazardous substances management and disposal practices, so too have such advances impacted the courts. In our tradition of judge-made and continually evolving "common law", the many advances in

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geochemistry, hydrology, toxicology, and epidemiology have continued to inform the evolution of common law as applied to environmentally-based torts. While some have recently argued that "the environmental and toxic tort lawsuit is no different than any other suit brought on behalf of a plaintiff who claims injury to his health or property,"¹⁴ such as insertion must ignore the very real dynamic which exists in environmentally-based toxic tort litigation by which each case seemingly demands that the law evolve with a just response to the complex causation, liability, and damages issues presented by very new yet still-evolving scientific principles which surround all aspects of hazardous substances in the environment.

While a thorough analysis of all of the issues inherent in toxic tort litigation is well beyond the scope of this paper, it is appropriate to briefly review the potential common law theories of action in environmentally-based toxic tort cases. Following that review, the paper will then turn to an analysis of the interrelationship between statutory and common law liabilities as they impact on civil practice, choice of forum, liability, and damages issues in the toxic tort arena.

II. COMMON LAW "TOXIC TORT" CAUSES OF ACTION

The principal legal theories under which polluters have been held liable under the common law are negligence, trespass, nuisance, inverse condemnation, and fraud and deceit. Because

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these common law doctrines have evolved almost entirely as a matter of state law, the particulars as they relate to statutes of limitation, liability, causation and damages issues will vary considerably from state to state.

The principal legal theories are briefly discussed below followed with some comments and exemplary cases.

A. Negligence:

Negligent conduct is "Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Restatement (Second) of Torts, § 282 (1964). This standard is often defined by reference to what would be expected of the hypothetical "reasonable man" under similar circumstances. In the context of environmental law, if a person discharges pollutants negligently so as to cause injury to another person or to that person's property, the discharger is liable for the damage which results. Certainly proving a causal relationship between the negligent act of pollution management or disposal and resulting injury or disease is perhaps the most difficult part of any toxic tort lawsuit and, often the most costly. These causations issues will be examined in some detail later in this paper.

: Exemplary Cases

Potter v. Fire Insurance Exchange, 3 Tx.L.R. 308 (Cal. Super. Ct., Santa Clara Co., No. 606612, July 8, 1988) (Insured awarded $5.2 million for insurance company's negligence and bad faith in failing to pay claim on homeowner's policy resulting from ground water contamination caused by a third party.)

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Potter v. Firestone Tire and Rubber Company, 2 Tx.L.R. 862 (Cal. Super. Ct., Monterey Co., No. 81723, 1987) (two couples awarded $3.9 million for ground water contamination stemming from negligent management of merely Crazy Horse Landfill).

Clark v. United States, 660 F.Supp. 1164 (W.D. Wa., 1987) (plaintiff sued U.S. Air Force for TCE contamination of their water. He claimed Air Force violated state water pollution statutes and U.S.A.F. regulations. The court held negligence per se).

Sterling v. Velsicol Chemical Corp., 647 F.Supp. 303 (W.D. Tenn., 1986), rev'd in part, Case No. 86-6087 (6th Cir., October 26, 1988) 3 Tx.L.R. 698.

B. Trespass:

Trespass involves an unreasonable or unacceptable interference with another person's property rights. One who pollutes the environment so as to cause physical damage to another's property is liable for the resulting damage in a trespass action. Restatement (Second) of Torts § 158, (1964); Prosser, Handbook on the Law of Torts, § 13 (1971). The kind of intent necessary to create a trespass, is not intent to injure the plaintiff, but rather the specific intent on the part of the defendant to take (or fail to take) that action that ultimately results in the contamination...