The health risks from exposure to hazardous wastes, and to hazardous substances in general, are real. This is why the Environmental Defense Fund (EDF) has sued the Department of Health and Human Services (HHS) to force the Department to carry out the congressional mandate in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),¹ and why it has supported new proposals that seek to ensure that victims of toxic exposure will be compensated. I would first like to address the CERCLA § 104(i) litigation. The remainder of my remarks will focus on the health hazards of toxic exposure.

Section 104(i) is the provision of CERCLA that required HHS to set up an agency to perform health studies on environmental exposure to toxic substances, exclusive of the workplace. The studies were not to be limited to hazardous waste sites.Adequate funding from the Superfund was not provided to establish the agency. We filed suit in December 1982 to force compliance to establish a centralized agency responsible for collecting information on the health effects of hazardous substances.

We feel very strongly about the requirements of § 104(i). Such requirements as long-term health registries are essential to keep track of people who have been exposed, to follow up on latent symptoms that might develop. Developing uniform registrations for birth, death, and other vital statistics across the states is another effort that will make it possible to develop scientifically valid ideas about the relationship of injury to exposures to toxic substances. There is absolutely no question that a lot of data is just not there and Congress required the § 104(i) studies to make certain that the data would be collected. EDF believes that this is a very important effort. We would not have invested our time in a lawsuit, otherwise. We were happy to welcome the Chemical Manufacturers Association as an intervenor in the case.

We do not believe, however, that completion of § 104(i) studies is a necessary predicate to going forward with a victim compensation program, as I have heard several industry representatives argue. First, there is a clear basis in the statute showing that these studies were not intended to be completed before a victim compensation program was considered and implemented. Congress set a very short statutory deadline — one year — for the 301(e) Report. Yet, there was no deadline attached to the § 104(i) studies. Secondly, injuries are now occurring from exposure to toxic substances in the environment — injuries that are going uncompensated; we do not have the leisure to await conclusion of the § 104(i) studies.

It is difficult to document scientifically the etiology of disease due to toxic exposure. Long latency periods present problems because, for instance, many of the injuries due to toxic exposure have yet to become manifest. In addition, subtle effects can result in significant societal impacts from exposure to toxic chemicals. Exposure of children to lead, for instance, leads to lowered IQ levels. This is a very dramatic result with an obvious long-term impact on society as a whole. Laboratory tests now show that exposure to some carcinogens, such as benzo-a-pyrine,leads to reduction in fertility — obviously, also, presenting long-term societal impacts. I can cite a host of more minor effects, ranging from headaches to respiratory problems to rashes, that occur as a result of exposure to toxic substances. Some economists, in fact, argue that these types of effects exert more economic impact on society in terms of lost productivity than do cancer deaths. Yet these subtle effects have not received much attention in the debate. Each of these sorts of effects are difficult to distinguish from their "normal" incidence; nonetheless, they occur as a result of exposure to toxic substances.

Although many adverse health effects are difficult to document, epidemiology and laboratory studies show that the chemicals from hazardous waste sites, in air emissions and in water effluent, are associated with some diseases. A recent study prepared for the Natural Resources Defense Council showed that up to twenty percent of lung cancers are caused by air pollution generally.

We are beginning to see some health effects evidence in clinical studies as well.

The Missouri dioxin case is the most recent revelation. Of the first 112 individuals at Times Beach who were tested by the Ceners for Disease Control, all exhibited abnormal liver functions. In addition, a range of documented symptoms has been detected in Times Beach residents and among other populations in Missouri that have been exposed to dioxin. Although the symptoms have not yet been connected to dioxin, it is safe to say that there is a sick population in Missouri and it is probably due to dioxin exposure.

Clinical studies of children exposed to PBBs in Michigan show an inverse correlation between body burden of children — that is, the concentration level in the fatty tissue — and levels of intelligence.

Children born in San Jose during a three-year period, after their mothers had ingested water contaminated with TCE released from a high technology firm, evidence a startling rate of birth defects, especially heart defects above the norm, as documented by the March of Dimes.

Children in Deer Park, Texas who live around a lead smelter that has been designated a Superfund site have very high blood lead levels, so high that they are accepted by the Public Health Service as indicating the presence of lead poisoning.

These are but a handful of examples, but they clearly indicate that there is sufficient evidence of a problem. We should not wait for more evidence to mount.

The legal barriers to compensation are well documented in the 301(e) Report. Among the many barriers, I will address briefly the issue of causation only. In an ordinary tort case, proof of causation is not very difficult, whether it be a plaintiff shot with a gun or one who has contracted an ordinary disease that can be traced to an infectious agent. The etiology of diseases caused by toxic chemicals is not traceable, however. We cannot trace a molecule from a smokestack of a lead smelter into an organ of a child and [14 ELR 10119] trace the effect that it has on his or her intelligence. It is just not possible. To require that sort of proof, which our law of torts now seems to require, is to deny compensation.

The plaintiff's burden of proof in these cases should be composed of the three sorts of elements outlined in the 301(e) Report. One is that the plaintiff show a likelihood of exposure of sufficient duration to cause or contribute to the disease. Therefore, persons who havejust driven through the Love Canal area will not likely be able to make this showing and will be sorted out of the system. On the other hand, it should not be a plaintiff's burden to account for every glass of water that he or she has drunk in the last ten years in order to demonstrate the exact exposure to toxic chemicals. Living, breathing and drinking the water in the vicinity that has been shown to be highly contaminated should be a sufficient proof of exposure. Second, plaintiffs should be required to show a scientific link between the disease and exposure. In proving this link, plaintiffs should be allowed to rely on statistical evidence such as epidemiological studies, animal studies, in vitro studies, tissue culture studies and the like. This type of evidence is often inadmissible presently. The third element the plaintiff must prove is injury in fact. This burden of proof is still substantial and expensive, but it does allow plaintiffs to present their cases in the only way relevant to toxic torts.

1. 42 U.S.C. § 9601 et seq., ELR STAT 41941 et seq.

14 ELR 10118 | Environmental Law Reporter | copyright © 1984 | All rights reserved