Hazardous Substance Victims Need a Federal Cause of Action

Janet Hathaway

Editor's Introduction: On August 8, 1984 the House passed H.R. 5640, the Superfund Expansion and Protection Act of 1984. If agreed to by the Senate, the bill will greatly expand the hazardous waste cleanup program begun under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

As originally drafted, Title II of the bill created a federal cause of action for personal injuries stemming from hazardous waste disposal. The cause resembled the government's cause of action for recovery of response costs under CERCLA § 107. All generators, transporters, and operators of offending sites would have been jointly and severally liable for personal injuries caused by releases, without proof of fault, and subject only to limited defenses. Plaintiffs could have brought suit in federal district court and could have claimed a broad range of damages, including attorneys fees. The action would have had a three-year statute of limitations running from the discovery of the cause of the injury, but the bill also would have revived any claims up to 10 years old that had died under more restrictive state laws.

During the floor debate on H.R. 5640, the House voted 208-200 to delete Title II. The issue has not died, however. The Senate is considering similar provisions in its CERCLA amendments, S. 2892, and there is widespread environmentalist support for some sort of victim compensation scheme.

This month's Dialogue presents two contrasting views on creating a federal cause of action for victims of hazardous waste, both written before the House had deleted Title II. Janet Hathaway, Staff Attorney for Public Citizen's Congress Watch, writes in support of Title II's scheme. Leslie Cheek, Vice President-Federal Affairs for Crum and Forster Insurance Companies, argues against it.

[14 ELR 10294]

If a chemical company truck driver recklessly ran you down on a city street, there is a strong probability that the company would pay your medical bills. But if the same company carelessly disposes of toxic substances in ways that contaminate your drinking water, causing you to suffer from chemical poisoning — or cancer — chances are slim that the company will be required to help cover costs.

Toxic tort suits differ from traditional traumatic injury tort suits, and the differences disfavor the toxic tort victim.The long latency period of cancers and other toxic-induced diseases increases the difficulty of amassing evidence on the exposure, the responsible parties, and the causal nexus between exposure and injury. Medical science does not yet provide a clear understanding of chemical health effects. Laws obviously cannot change a disease latency period or the state of scientific certainty, but they can recognize these peculiarities of toxic torts in fashioning an appropriate remedy.

Title II of H.R. 5460 represents the most comprehensive and swiftest method of reforming the judicial system to make it more fair for the toxic tort plaintiff. Title II would establish a federal cause of action that would not preempt other state or federal tort remedies but that would allow persons in any state to avail themselves of procedures that take into account the extraordinary burdens on a plaintiff in these suits.

A Uniform Statute of Limitations

A statute of limitations for the pursuit of a remedy is intended to prevent dilatory behavior or unfair surprise by the plaintiff. But in some states, toxic tort plaintiffs are being forced to file suit soon after exposure, bringing claims for acute effects and "reasonable fear of cancer." If they wait until toxic-induced cancer is in fact diagnosed, their right to sue will have expired. While only a handful of states have the worst kind of statute of [14 ELR 10295] limitations for persons with long latency health effects — one beginning at the time of exposure — only 13 jurisdictions have the most appropriate limitations period, beginning when a plaintiff knows or should know both that he or she has been injured and has a cause of action. In the majority of states, a plaintiff's right to sue may lapse before he or she could or should know that a remedy is available.

Title II will give plaintiffs in every state a fair chance to bring suit after discovering their injury. Plaintiffs who have been unfairly foreclosed from bringing suit due to restrictive state laws will have a new, live cause of action under Title II that they may pursue in either the state or federal courts.

Fair Evidentiary and Liability Standards

Toxic tort plaintiffs face two great hurdles in proving their cases. The first is tying their injury to chemical exposure. The human health consequences of exposure to chemicals found at hazardous waste sites are only dimly understood. Enough is known to lead the National Toxicology Program to conclude that there are at least 117 probable human cancer-causing substances. Ninety-five of these materials are presticides or industrial chemicals that are likely to be found at waste sites. However, the National Academy of Sciences estimated in March that a partial health hazard assessment is possible for only about one-tenth of the thousands of chemicals in commerce and that no toxicity information is available on the majority of such chemicals. Virtually unknown is the consequence of exposing people chronically to low levels of many different hazardous substances. Some people living near hazardous waste dumps cynically speculate that they are serving as human guinea pigs whose medical records will begin to provide this important information.

Diseases caused by toxics found at waste sites are often diseases that occur ordinarily, although less frequently, in non-exposed populations. For example, benzene is known to cause leukemia, but leukemia also occurs among people who have not been exposed to the chemical. The cancers caused by toxic substances are rarely different from the cancers otherwise caused in ways that would help distinguish what triggered any individual's disease. It is only when the incidence of a disease is markedly greater among toxics-exposed communities that suspicions begin to turn to the toxic substances.

Title II will not eliminate this first hurdle. But the federal suit provision should help alleviate confusion and variability as to the admissibility of evidence that will be needed to make the plaintiff's case. Anachronistic state court hearsay, reliability, and relevancy rulings may keep essential evidence from the jury. Courts in some states rule against admitting scientific evidence derived from studying groups other than the parties before the court. Such often-excluded evidence includes epidemiological studies, animal studies, toxicological studies, tissue cultures, and immunological studies. When plaintiffs take advantage of Title II's opportunity to pursue action in the federal courts, the Federal Rules of Evidence may allow much of this information under its definition of "relevant evidence" (Rule 401) and exceptions to the hearsay rule (Rule 803, especially exceptions (4), (8), (18), and (24)).

The second hurdle plaintiffs face is establishing defendants and their actions as the source of the offensive chemical. A toxic chemical is seldom distinguishable as the product of one particular generator. An identical toxic substance may be made by dozens of companies and used or disposed of by hundreds. Even where there are few industries located near a contaminated well, proving who allowed dangerous solvents to leach into the groundwater can be a nightmare for toxics victims.

The problem is analogous to the problem of establishing liability for waste site cleanup. Title II solves the problem the same way the Comprehensive Environmental Response, Compensation, and Liability Act solved the problem of liability for cleanup — by creating a tort of strict liability. In addition, H.R. 5640 establishes that multiple parties who contribute to an indivisible harm — whether environmental degradation or personal injury — will be jointly and severally liable. There is no reason why physical cleanup and personal injury should not be treated under the same standards.

A Fair Measure of Damages

Hazardous waste injuries may range from obvious property loss to subtle physical, sensory, neurological, emotional, or intellectual impairment. Loss of intelligence from lead poisoning is a significant injury, and where liability of a responsible party can be established, such an injury should be compensable in a tort suit.

Title II provides for damages for a broadly defined class of injuries. It also allows plaintiffs to claim attorneys fees where appropriate. Thus, it ensures the court will have the options available to fashion a fair remedy and to more as close as possible to making the plaintiff whole.

Room for Improvement

Title II is by no means perfect. A better bill would allow for punitive damages for flagrant acts, relax federal class action certification requirements to lower the cost of litigation, and clarify lingering questions on admissibility of some forms of evidence. Ideally, Congress should pair Title II with an administrative compensation system that could grant speedy, readily available relief to the majority of victims. But Title II is a welcome step.

The chemical and insurance industries, as one might expect, vehemently oppose this provision. The characterize such reform as radical and unnecessary. Some lobbyists ridicule the section as a "hypochondriac's relief act," and insist that the difficulties toxics victims face do not warrant congressional attention. Victims disagree. Without changes of the legal procedures denying victims a fair day in court, they will pay both a tremendous emotional toll and devastating medical bills for the misfortune of living near a toxic waste dump. With or without legislation, the health hazards posed by toxics are costly. The question is, who should apy? Why should not generators, transporters, and site operators who reap the rewards for trading in these profitable products contribute to the full costs toxics impose on society?