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Compensating Victims of Toxic Substances: Issues Concerning Proposed Federal Legislation

June 1983

Citation: 13 ELR 10172

Issue: 6

Author: Theodore L. Garrett

Editors' Summary: In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, which provided a federal scheme for cleaning up hazardous waste sites and a so-called "Superfund" to finance the cleanups. Congress also considered but failed to include provisions to compensate victims of hazardous waste exposure. Instead, it created a study group, which in 1982 recommended a remedial system for hazardous waste injuries. In this Article, Theodore Garrett disucusses the study group report and analyzes the strengths and weaknesses of proposed legislation that has since emerged. He explores two threshold issues concerning victim compensation legislation that have yet to be considered fully—defining the nature and extent of the problem and determining the adequacy of our legal system in compensating claimants and ensuring fairness to defendants. He then discusses the issues in framing federal legislation, including what kinds of exposures are to be covered, who is to finance a compensation fund, what kinds of damages should be recoverable, whether plaintiffs should have a choice of remedies, and whether tort law should be "reformed" to compensate victims. Mr. Garrett concludes by presenting a victims compensation scheme preferred by industry and suggesting ways to protect innocent defendants through substantive tort law.

Mr Garrett is a partner in the law firm of Covington & Burling in Washington, D.C. This Article is based on a paper he presented at the American Law Institute-American Bar Association and Environmental Law Institute course of study, Water and Air Pollution, May 7, 1983. The views expressed are solely those of the author. Mr. Garrett wishes to acknowledge the assitance of Jeffrey E. Stake.

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