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Volume 28, Issue 6 — June 1998


Separating the Scientist's Wheat From the Charlatan's Chaff: Daubert's Role in Toxic Tort Litigation

by Christopher H. Buckley Jr. and Charles H. Haake

Editors' Summary: In the wake of Daubert v. Merrell Dow Pharmaceuticals, Inc., it has become increasingly important for the judicial system to discern the reliability of scientific evidence offered by experts in toxic tort cases. In this Article, the authors offer practical guidance on the application of the rule established in Daubert to toxic tort litigation. From the general acceptance test established in Frye v. United States to the refinements of the Daubert test outlined in the recently decided General Electric Co. v. Joiner case, the authors trace the evolution of the rule governing the admissibility of scientific evidence. They then examine the application of the Daubert rule to toxic tort cases by evaluating the various types of scientific evidence that can be used to prove causation. Last, they analyze the application of the Daubert rule in cases where a plaintiff has alleged development of a multiple chemical sensitivity.

EPCRA Citizen Suits After Steel Co. v. Citizens for a Better Environment

by Jim Hecker

Editors' Summary: In March, the U.S. Supreme Court rendered its decision in Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 28 ELR 20434 (1998). The Court held that an environmental group lacked standing to sue a company for past EPCRA reporting violations, because the group failed to meet the redressability requirement for Article III standing. In a follow-up to his November 1997 ELR Article on the Steel Co. litigation, Jim Hecker, an environmental enforcement attorney at Trial Lawyers for Public Justice, looks at the implications of the Steel Co. case. He first discusses the holding of the case and the nature of EPCRA suits. Then, he explores what Congress can do in the wake of the opinion to restore citizen authority to sue for past EPCRA violations. Finally, he examines the impact the case will have on citizen suits for civil penalties when the defendant complies after suit is filed.

CERCLA Cleanup at Federal Facilities: The Misunderstood Relationship Between Sections 104, 113(h), and 120

by Paul S. Weiland

Editors' Summary: In 1986, in an effort to expedite cleanups at Superfund sites, Congress enacted SARA, which among other things added §113(h) to CERCLA. Section §113(h) bars "preenforcement" challenges to response actions under §104 and cleanup orders issued under §106. SARA also amended CERCLA by adding §120, which provides for cleanup at federal facilities. Although §113(h) does not explicitly apply to §120 cleanups, the question has arisen whether it nevertheless does apply to them.

This Article analyzes that issue. First, the Article examines the plain language of CERCLA. Then, it looks at the legislative history of SARA, and analyzes relevant case law and policy considerations. It concludes that §113(h) does not bar review of §120 actions.


Pfiesteria Piscicida: A Regional Symptom of a National Problem

by Elaine Bueschen

Editors' Summary: Pfiesteria piscicida, a sometimes toxic microorganism, is responsible for the death of millions of fish in Delaware, Maryland, North Carolina, and Virginia. Although the problem of Pfiesteria-related fish kills is associated with the Mid-Atlantic region, other toxic microorganisms have threatened fish and marine wildlife throughout the world. Scientists attribute this "global epidemic" of toxic microbes to excessive nutrient loading from nonpoint sources of pollution. Thus, toxic outbreaks of Pfiesteria appear to be a symptom of the national problem of nonpoint source pollution. This Comment discusses the probable causes and demonstrated effects of toxic forms of Pfiesteria. It summarizes existing federal and state laws that can be used to reduce nonpoint source pollution and lessen the likelihood of future outbreaks of Pfiesteria. It also examines how different entities, including federal and state governments, environmental organizations, and industry groups, have responded to toxic outbreaks of Pfiesteria. This Comment concludes that federal controls on nonpoint source runoff are needed to achieve the FWPCA's goals and to reduce the likelihood of future outbreaks of and other toxic microbes.