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

• Date: 01 July 2010
• Author: Joshua R. More and Melinda W. Hahn, Ph.D.

40 ELR 10640 ENVIRONMENTAL LAW REPORTER 7-2010

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

3. 42 U.S.C. §9607(a).

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).

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