Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don't Apply

Date01 July 2010
AuthorJoshua R. More and Melinda W. Hahn, Ph.D.
Making the Case for Causation
in Toxic Tort Cases: Superfund
Rules Don’t Apply
by Joshua R. More and Melinda W. Hahn, Ph.D.
Joshua R. More is a Partner in Schi Hardin LLP’s Environmental Group. Melinda W.
Hahn is a Senior Manager at ENVIRON International Corporation.
While causation is often a paramount obstacle to
prosecuting a toxic tort claim, judicial interpre-
tation of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)1
generally has eliminated consideration of causation of actual
injury or harm. Generally, under CERCLA’s strict liability
regime, no showing of causation of actual injury or harm at
a site is required for liability to attach. is is important to
understand, because too often parties presume that a poten-
tially responsible pa rty (PRP) under CERCLA also is liable
to private parties under common-law tort theories, but this is
more dicult tha n it seems.  is Article compares the rela-
tive ease with which the government establishes liability of
private parties under CERCLA to the more rigorous dem-
onstration of causation that a plainti must make in a toxic
tort case.
I. CERCLA—Causation
CERCLA was intended to address the damage presented at
waste disposal sites where releases or threatened releases of
contaminants had occurred and traditional negligence the-
ories did not provide a basis for recovery against the par-
ties responsible for placing the hazardous substances in t he
environment.2 CERCLA imposes strict liability upon: (1)the
current owner or operator of a faci lity from which there has
been a release or threatened release of a hazardous substance;
(2)any person who owned or operated a facility at the time
the hazardous substances were disposed; (3)any person who
contracted, agreed, or otherwise arranged for the disposal or
treatment of a hazardous substance or arranged with a trans-
porter for transport for disposa l or treatment of a hazardous
substance; and (4)any person who transported the hazardous
substance to a facility f rom which there has been a release
1. 42 U.S.C. §§9601-9675 (2007), ELR S. CERCLA §§101-405.
2. e U.S. Congress enacted CERCLA with the principal goal of addressing
liability resulting from the need to clean up inactive hazardous waste disposal
sites where hazardous substances have been released into the environment. See
Pub. L. No. 96-510, 94 Stat. 2767 (1980); New York v. Shore Realty Corp.,
759 F.2d 1032, 1040, 15 ELR 20358 (2d Cir. 1985).
or threatened release.3 e reasoning behind CERCLA strict
liability is to shift the cost of t he necessary environmental
response from ta xpayers to t he pa rties who beneted from
the intentional use of such sites.4
Establishing liability under CERCLA, therefore, often
requires no more than a simple demonstration of ownership
or operation history. To est ablish “arranger” liability, one
often only has to show that an entity arranged for disposal or
placement of a ha zardous substance (such as for a generator
of waste disposed at a dump site). Presently, there are approx-
imately 800 specically designated CERCLA ha zardous
substances identied in Table 302.4 in 40 C.F.R. §302.4,
including synthetic and naturally occurring chemicals, such
as copper, manganese, sodium, and zinc. Many common
household items—including personal care products, furni-
ture, ooring, a nd electronics, among others—contain haz-
ardous substances, so this determination ca n be trivial. No
demonstration of an unacceptable risk, injury, property dam-
age, or other harm must be made to identify a PRP.
Once an entity is identied as a PRP, it can be compelled
to investigate and possibly remediate a contaminated area or
reimburse the government or third parties for past and future
response costs.5 e CERCLA cleanup process often begins
with a procedure for identif ying and ranking the hazards
posed by contaminated sites. On the basis of that ranking
system, CERCLA establishes a national priorities list t hat is
intended to ensure t hat the most dangerous sites are reme-
diated rst. ere are two types of cleanups recognized by
CERCLA: (1)removal actions are short-term measures taken
to minimize the dangers to human health and the environ-
ment on an emergency basis; whereas (2)remedial actions are
long-term eorts that attempt to rid the site of dangers on a
permanent basis.6
4. Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 364 (5th
Cir. 2005).
5. See, e.g., Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161, 34 ELR
20154 (2004).
6. 42 U.S.C. §9601(23), (24); see, e.g., Schaefer v. Town of Victor, 457 F.3d 188,
195, 36 ELR 20139 (2d Cir. 2006).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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