I am convinced that during the 98th Congress a toxic victims' compensation act will pass the House of Representatives. There are currently two bills in the House, one introduced by Congressman LaFalce, whose district includes Love Canal, and a second introduced by Congressmen Markey and Florio. The approaches of the separate bills are radically different. We will be holding hearings on both bills in June.¹

First, I will discuss the Markey-Florio bill, H.R. 2582, which I helped draft. The bill focuses on an administrative mechanism (Tier I) for compensating victims who suffer from exposure to hazardous substances from a "facility," as broadly defined in Superfund. The bill also includes a federal cause of action (Tier II).

Compensation under Tier I covers all out-of-pocket medical expenses, two-thirds of lost wages, and burial expenses. There is no retroactive liability; only injuries occurring after the enactment of the bill, or existing injuries aggravated subsequent to enactment, can be compensated.Realistically, it is not possible to compensate every injury that has occurred in the past; there is simply not enough money in the federal treasury or in the chemical industry coffers to do so.

The procedure by which a victim would be compensated under Tier I is fairly simple. The bill envisions a claims procedure handled by administrative law judges in a manner similar to disability compensation schemes such as Social Security. The claimants must prove that they have suffered the injury, that they were exposed to a hazardous substance, that the exposure came from a "facility" and that there was a high probability of causation. Proof of these elements will give rise to a rebuttable presumption that the exposure caused the injury. The presumption can be overcome if the administrative law judge determines there is sufficient evidence to the contrary. Therefore, unless rebutted, causation will be presumed and the claimant will be compensated.

To satisfy the last element of proof, i.e., the high probability of causation, a wide range of evidence would be admissible, including statistical evidence about the increase of that type of injury in the exposed population; epidemiological studies without regard to the size of sample; animal studies; tissue culture studies; microorganism studies; laboratory toxicological studies; and, probably most importantly, health effects documents that have been prepared by the Administrator of EPA (or by HHS). In my view, the health effects documents would be similar to the Surgeon General's Report on Smoking which indicates that there is a causal link between smoking and lung cancer.

Under H.R. 2582, the claimant may choose to assert a claim in federal court, yet may not recover for the same injury twice. The provisions for the cause of action are fairly simple. The bill does not change the burden of proof in any way; it does mandate that the standard of liability will be without fault and will be joint and several. The bill also provides that health effects documents can be entered into evidence, for whatever relevance they may have. This proposal has done nothing to alter or affect the state law in any way. Of course, there is a subrogation provision which allows the Attorney General to sue for reimbursement from any responsible party who can be located.

To fund the administrative compensation scheme, we created a duplicate tax, if you will, drawing from the same well from which Superfund draws. However, the bill establishes an entirely separate fund, to be accumulated over a five-year period or when the fund reaches $1 billion, whichever occurs first. We decided that the current Superfund account would be inappropriate to tap because it lacks sufficient funds to achieve its basic purpose — the cleanup of hazardous waste sites.

The LaFalce bill, H.R. 2482, focuses on a federal cause of action, although it also provides for an administrative compensation fund. The bill provides for recovery for a wide range of injuries, including personal injuries and property damage.

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Recoverable damage includes loss of real or personal property (including the cost of assessing that damage), loss of income, profits (or earning capacity), pain and suffering, medical expenses, rehabilitation costs, and the loss of taxes or other revenue to the federal or state government. This last item would have allowed the government of Times Beach, Missouri to recover lost taxes in perpetuity. Punitive damages are also available. They would, however, be paid to the fund rather than to the plaintiff.

The LaFalce proposal includes various defenses. For instance, there can be no recovery for releases of hazardous substances caused by an act of God, an act of war, or an unforeseeable act of a third party; for the latter defense, the defendant would have to prove that he had exercised due care and that a third party was solely responsible.

This proposal provides a presumption to ease the proof of causation in private causes of action. It should be emphasized that the presumption in the Markey-Florio bill is only available in the administrative scheme (Tier I). The LaFalce presumption is available upon a showing that the substance is "reasonably likely to cause or significantly contribute" to injury. Recall that the presumption available in the Markey-Florio administrative scheme requires showing a "high probability" that the exposure caused the disease, a more difficult standard of proof, I suggest.

Like H.R. 2582, the LaFalce bill would direct the development of health effects documents, prepared by the Secretary of Health and Human Services. These could be submitted as evidence to prove causation. The LaFalce bill also allows animal studies, tissue culture studies, and the like to be introduced as evidence in a private lawsuit.

This bill differs from the Markey-Florio bill on the question of state workers' compensation law. It establishes that the presumption of causation (between exposure and injury) would be applicable in state workers' compensation hearings. The compensation boards would have to award injured workers compensation based on the presumption arising from a showing of a reasonable likelihood of causation.

An administrative compensation mechanism is also provided. Duplicative awards for medical expenses and lost income would be reimbursed to the fund if the claimant also brought a successful action against the responsible person. Curiously, the LaFalce bill contains no funding mechanism. It does provide that any unobligated balance in Superfund is available, but it is unclear to me why there would be an unobligated balance in view of current Superfund efforts. It also allows for the compensation board to borrow from the Treasury. There is no taxing mechanism; the only other source of funds derives from the subrogation provision. Clearly, the emphasis of the LaFalce bill is on the federal cause of action.

1. The subcommittee held a hearing on victim compensation legislation on June 29, 1983.

14 ELR 10132 | Environmental Law Reporter | copyright © 1984 | All rights reserved