29 ELR 10003 | Environmental Law Reporter | copyright © 1999 | All rights reserved

The Common-Law Impetus for Advanced Control of Air Toxics

Editors' Summary: Although the Clean Air Act is the primary tool used for controlling air toxics, the dramatic increase in toxic tort cases brought under common-law theories such as nuisance, trespass, negligence, and strict liability for ultrahazardous activities has raised concern in the industrial community that compliance with regulatory requirements may not protect industry from large-scale toxic tort liability. This Article analyzes the implications of common-law liability on the selection of air quality controls. First, the Article presents an overview of technology-based regulatory requirements and identifies some inherent shortcomings in the regulatory framework, illustrating the public's dependence on state common law to redress injuries from air pollutant exposure. It then provides a brief overview of the theories underlying these common-law tort actions. The Article further examines the evolution of toxic torts, identifies typical barriers to recovery under traditional tort law, and highlights developments that have eased the burden on plaintiffs and that may encourage more toxic tort litigation. The Article concludes that the prudent decisionmaker should consider both regulatory standards and potential common-law liability when selecting air pollution controls.

The authors are members of the "Team for Environmental, Science, and Technology" Law (TESTLaw) Practice Group, a national environmental law practice within the law firm von Oppenfeld, Hiser & Freeze, P.C. Rolf R. von Oppenfeld is one of the firm's principals and practices primarily in the areas of environmental law and litigation, natural resources and water law, and toxic tort litigation. Eric L. Hiser leads the firm's regulatory practice, assisting companies with designing corporate air permitting and compliance strategies, and regularly lectures on air quality issues. William C.B. Underwood is an associate in the firm's Western Regional Office and practices in the area of environmental law and litigation.

[29 ELR 10003]

The modern control of sources and levels of air pollution is predominantly dictated by federal policy and laws.¹ In the United States, the Clean Air Act (CAA)² is the primary federal statute regulating air quality. The general structure of the CAA requires the federal government to establish either uniform national standards or national air quality goals with the states directed to develop the means to achieve those goals.³ Thus, the way in which an industrial source operates and the level of permitted emissions are generally decided nationally with state and local authorities given the responsibility of ensuring that the national standards are met.

The CAA imposes a range of technology-based emission limits variously known by such acronyms as BACM,⁴ BACT,⁵ GACT,⁶ LAER,⁷ MACT,⁸ RACM,⁹ [29 ELR 10004] and RACT.¹⁰ Facility decisionmakers traditionally have selected air quality controls that reflect a balance between productivity and regulatory compliance. However, the dramatic increase in toxic tort litigation brought under common-law theories such as nuisance, trespass, negligence, and strict liability for ultrahazardous activities has raised concern in the industrial community that compliance with regulatory requirements may not protect industry from large-scale toxic tort liability.

Indeed, under state common law, following agency regulations is simply the minimum legal requirement imposed on regulated facilities. For example, the common law requires facilities to operate in such a way as to protect others against unreasonable harm. A judge or jury may find it "unreasonable" for a facility to employ only the minimum level of emission controls necessary for regulatory compliance when additional controls could have significantly reduced the facility's harmful effects. Facilities that fail to account for common-law liability in their choice of pollution control technology may be required to compensate injured parties for personal injury and property damages, install additional control measures, or even shut down operations if emissions cannot be brought within acceptable levels.

This Article analyzes the implications of common-law liability on the selection of air quality controls. Specifically, the Article presents an overview of technology-based regulatory requirements and identifies some inherent shortcomings in the regulatory framework, illustrating the public's dependence on state common law to redress injuries from air pollutant exposure. The Article then presents a brief overview of the theories underlying these common-law tort actions. The Article further examines the evolution of toxic torts, identifies typical barriers to recovery under traditional tort law, and highlights developments that have eased the burden on plaintiffs and that may encourage more toxic tort litigation. The Article concludes that the prudent decision-maker should consider both regulatory standards and potential common-law liability in selecting air pollution controls.

Technology-Based Air Quality Controls

Originally, the CAA's control of air pollution was driven primarily by ambient air quality standards. In other words, standards were chosen that represented a "safe" level of a particular pollutant in the air. Compliance with such standards would therefore provide a facility with a reasonable assurance that its emissions would not pose an unreasonable risk of harm to human health and the environment.

While ambient air quality offered an appealing theoretical basis for controlling air pollution, as a practical matter it became bogged down by the difficult scientific, legal, and political issues inherent in the development of such standards.¹¹ Responding to these difficulties, Congress in the 1990 CAA Amendments¹² shifted air pollution control from its ambient air quality basis to a more traditional technology-driven program.¹³ Today, technology-based standards may require application of particular technologies or achievement of certain performance levels regardless of the effect on ambient pollution levels. For example, in order to obtain necessary permits, new air pollution sources may be required to adopt demonstrated state-of-the-art pollution controls.

With the shift toward technology-based controls, a facility's potential exposure to toxic tort liability due to its air emissions is likely to increase because technology-based standards do not specifically address the risks to human health and the environment posed by a particular pollutant; they simply require emissions to be reduced by some amount based on the technology standard. Because there is no underlying risk assessment, emissions from a source that complies with the technology-based standards may still create an unreasonable risk of harm to surrounding communities. Therefore, the congressionally mandated shift in the emphasis of the CAA may have actually expanded the toxic tort liability exposure of facility owners and operators.

Air Toxics Control

Air toxics, or "hazardous air pollutants" (HAPs), are generally those pollutants that are known or suspected to cause serious health problems.¹⁴ Before 1990, the U.S. Environmental Protection Agency (EPA) set pollutant-specific national emission standards for hazardous air pollutants (NESHAPs), which were required to provide "an ample margin of safety to protect public health."¹⁵ This ambiguous language, however, afforded EPA little guidance in developing emission standards as to whether absolute safety was required or if technological constraints and costs could be considered.¹⁶ The inevitable scientific uncertainty involved in assessing the risk posed by a given pollutant further complicated development of the standards.¹⁷ For most air toxics, the only absolute safe level of emissions is zero. Under-standably, EPA was reluctant to shut down industries by requiring zero emissions standards.¹⁸ Given these difficulties in implementation, EPA promulgated NESHAPs for only [29 ELR 10005] seven pollutants: asbestos, arsenic, benzene, beryllium, mercury, radionuclides, and vinyl chloride.

The 1990 CAA Amendments significantly revised the HAPs program by adopting a two-phased approach. Unlike the old health-based NESHAPs, the first phase requires EPA to establish technology-based emission standards for categories and subcategories of sources of 189 specified HAPs.¹⁹ The basic thrust of the first phase of the program is: (1) to identify those HAPs to be controlled; (2) to identify those sources emitting HAPs in certain minimum amounts; and (3) to establish performance standards for use by those sources. These performance standards are commonly referred to as maximum achievable control technology (MACT).²⁰

The MACT standard for new sources of HAPs must be at least as stringent as the most stringent emission control "achieved in practice by the best controlled similar source."²¹ For existing sources, the MACT standard must be at least as stringent as: (1) the average emission limitation of the best performing 12 percent of existing sources in a similar category or subcategory with 30 or more sources; or (2) the average emission limitation of the 5 best performing sources in a category or subcategory with fewer than 30 sources.²² For "area sources,"²³ EPA has the discretion to impose MACT standards or to allow the use of cost-effective and generally achievable control technologies (GACT) or management practices.²⁴ As area sources are often small businesses, Congress has attempted to ease the economic burden of regulation and encourage control of area sources through this policy.²⁵

As dangers to health and the environment from air toxics may still remain after the implementation of technology-based controls, the CAA directs EPA to develop a second phase of standards if necessary to provide "an ample margin of safety" to protect the public health or to prevent an adverse environmental effect.²⁶ These additional post-MACT standards are known as "residual risk" standards. The CAA mandates EPA to promulgate such standards if the residual risk of cancer is not reduced to less than one in one million after an applicable MACT standard is in place for eight years.²⁷ Essentially, the residual risk provisions adopt the same health-based approach as the former NESHAPs program.

While the HAPs program's technology-based approach has undoubtedly resulted in a decrease in air toxic emissions, the MACT standards do not necessarily result in an ample margin of safety. As a result, compliance with MACT may not adequately reduce an air toxic emitter's toxic tort liability exposure.

"Nontoxic" Air Quality Controls

The CAA addresses the control of air toxics separately from the control of other air pollutants, which presumably are not toxic, but it does not clearly distinguish between them. These "nontoxic" pollutants may nonetheless be the subject of toxic tort litigation, especially when one considers the uncertainty surrounding the synergistic effects of multiple pollutants.²⁸ As one observer notes:

Most air pollution affects human health. Regulators selected many of the criteria pollutants for special attention because they contributed to "killer smogs" in the 1940s and 1950s. Yet they did not label these pollutants "toxic." Regulators presumed that toxic air pollutants, usually carcinogens, were more deadly or poisonous. But Congress, regulators, and the courts curiously have not developed brightline distinctions between toxicsubstances and other forms of pollution, and instead typically rely on lists of toxic substances, treating the distinction as if it were self-evident.²⁹

[29 ELR 10006]

Many air toxics may also be subject to other regulatory programs under the CAA, such as programs designed to reduce smog-causing volatile organic compound (VOC) emissions. Likewise, the technologies used to control air toxics may incidentally affect the emissions of other pollutants. Thus, facility owners may be able to reduce their toxic tort exposure substantially by maximizing the reduction of toxic emissions that present the greatest risk to their locality by differentially selecting between available nontoxic air pollution controls.

[] New Source Performance Standards. As Congress recognized that new sources have more flexibility in locating and designing air quality controls than do existing sources, the CAA generally subjects new sources to more stringent levels of control.³⁰ Principal among these provisions are the new source performance standards (NSPS). The NSPS are uniform, technology-based emission limits for industrial categories or subcategories of sources. Under the NSPS provisions, EPA must publish a list of categories of polluting stationary sources and promulgate regulations establishing national standards of performances for new sources in these categories.³¹

The standards of performance are based on "the best system of emission reduction" that EPA determines has been "adequately demonstrated," taking into consideration costs and "any nonair quality health and environmental impact and energy requirements…."³² These standards establish the minimum level of control required of new or modified sources.³³ EPA must review and, if necessary, revise these standards at least every eight years.³⁴ In practice, however, EPA has frequently neglected to do so.³⁵ Compliance with the NSPS may forestall an agency enforcement action, but may not suffice to show a judge or jury that a facility took appropriate precautions to prevent an unreasonable risk of harm.

[] National Ambient Air Quality Standards. The cornerstone of the CAA is the national ambient air quality standards (NAAQS) program. The CAA requires EPA to establish national standards for each "criteria" pollutant.³⁶ Once NAAQS are established, each state must prepare a state implementation plan (SIP) that provides for the "implementation, maintenance and enforcement" of NAAQS.³⁷ Currently, EPA has promulgated NAAQS for only six criteria pollutants: carbon monoxide, sulfur dioxide, lead, particulate matter, nitrogen dioxide, and ozone.

In those areas that fail to attain NAAQS for a particular pollutant, the CAA requires major sources to adopt reasonably available control measures (RACM), including, at minimum, reasonably available control technology (RACT) for existing sources.³⁸ Although the CAA defines neither term, EPA defines RACT as "the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economical feasibility."³⁹ Thus, RACT is not a uniform standard, but a flexible one that considers cost and available control technology.⁴⁰ This flexibility, while certainly welcome by industry, carries with it the increased potential that compliance with the standard will not protect the owner or operator from common-law tort liability. In other words, a judge or jury may find that the standard does not embody a "reasonable" balance of these considerations.

[] The Nonattainment Area Program. To ensure that construction activities do not prevent attainment of NAAQS, the CAA requires all "new or modified major stationary sources" to obtain a permit and satisfy stringent conditions before operation in a nonattainment area.⁴¹ Among the numerous requirements imposed by the nonattainment permit program, perhaps the most significant is the lowest achievable emission rate (LAER).⁴² This control standard requires the lower of either "the most stringent emission limitation" for such a class or category of source contained in any SIP (unless the owner or operator of the source demonstrates that such a limit is not achievable) or "the most stringent emission limitation which is achieved in practice by such class or category of source."⁴³

Although the emission control technology used to comply with LAER may represent the most stringent level of control achieved in a particular industry, the entire industry [29 ELR 10007] may be found to have "unduly lagged in the adoption of new and available devices."⁴⁴ Facilities may be reluctant to introduce innovative technologies due to the delay and increased costs of convincing permitting authorities to accept a technology that has not been authorized before.⁴⁵ Moreover, other technologies may exist that are better at reducing over-all emissions through process changes, but may not represent the most stringent emission rate.⁴⁶ Thus, the adoption of LAER does not firmly establish that a facility has exhausted all opportunities to prevent an unreasonable risk of harm from its emissions.

The CAA also contains detailed requirements for areas that fail to attain NAAQS for specific pollutants. Generally, as nonattainment problems become more severe, the control requirements become more stringent. For example, the CAA requires implementation of best available control measures (BACM) for nonattainment areas that are classified as "serious" for particulate matter.⁴⁷ EPA issues technical guidance on BACM and RACM for controlling sources of particulates such as fugitive dust, residential woodstoves, and prescribed open burning.⁴⁸ While these control measures may be deemed "best" or "reasonable" according to EPA guidance, they may nonetheless be found to have been insufficient in the retrospective view of a judge or jury.

[] Prevention of Significant Deterioration. In addition to the nonattainment area program, the CAA provides a program to preserve the air quality of areas that meet or exceed NAAQS.⁴⁹ The prevention of significant deterioration (PSD) program essentially divides these clean air areas into three classes and prescribes the amount of air quality degradation allowed in each.⁵⁰ Prior to construction or modification in a PSD area, all major emitting facilities must undergo preconstruction review.⁵¹ To obtain a PSD permit, the owner or operator of a proposed new source or modification must show that the source will employ the best available control technology (BACT) for every regulated pollutant that it will emit in significant amounts.⁵² BACT is defined as "the maximum degree of [emission] reduction … taking into account energy, environmental, and economic impacts and other costs … [that] is achievable."⁵³ BACT is not a uniform standard but is determined on a case-by-case basis.

Again, while the emission controls determined on this case-by-case basis may satisfy regulatory authorities, it may not satisfy a judge or jury that appropriate measures were taken to prevent an unreasonable risk ofharm. The balancing of costs and other non-air quality factors increases the likelihood that the adoption of the particular control technology will not shield an owner or operator against potential tort liability.

Protecting Human Health: Regulatory Shortcomings

Although the primary goal of air pollution control during the last 25 years has been the protection of human health,⁵⁴ the existing regulatory scheme inherently falls short of completely reducing the risk of harm from air pollution exposure. Most people agree that health risk cannot feasibly be eliminated. The question, therefore, is what level of risk is acceptable. This question is the subject of perennial debate.⁵⁵

Furthermore, there is considerable scientific uncertainty about the actual risks of harm from most toxic pollutants.⁵⁶ As a result, the development of standards is susceptible to political pressure.⁵⁷ As one commentator explains, "[m]anagement of risk by Congress is a haphazard affair, dependent largely upon the strength of vested interests and the prevailing political winds."⁵⁸ Such standards are therefore more likely to be influenced by political interests than by objective, scientific principles.⁵⁹ Consequently, powerful industries have been able to obtain broad exemptions, removing vast amounts of harmful pollutants from meaningful control by the regulatory system.⁶⁰

Uniform national standards also pose problems of both overregulation and underregulation.⁶¹ By design, national standards generally aim "to reduce an aggregate level of pollution or risk without forcing a particular level of control at any given facility or location."⁶² Given differences in factors such as geographic dispersion and the number of [29 ELR 10008] sources in any particular area, the level of risk reduction will ultimately vary between areas. Hence, areas may exist where relatively high concentrations of pollutants have accumulated.⁶³ These so-called hot spots may pose a significant risk to human health even if all regulatory requirements have been met.

The inability of the current regulatory system to protect against hot spots is heightened by EPA's inadequate accounting of the additive, antagonistic, and synergistic effects of pollutants.⁶⁴ When two or more substances interact, the risk may be much greater than what an evaluation of their individual risk would otherwise indicate.⁶⁵ Even when EPA attempts to compensate for these uncertainties by taking a conservative approach to estimating individual risks, the actual risk posed by these substances may be grossly underestimated.⁶⁶

Due in part to EPA's inability to make these health-based risk decisions with any confidence, Congress opted for a technology-based approach to the control of air toxics.⁶⁷ The shift toward technology-based standards allows EPA to postpone difficult risk assessments. This more workable approach has perhaps achieved greater progress toward risk reduction than did the former NESHAPs program. However, technology-based standards by definition allow air toxic exposure to continue while technology advances.⁶⁸ Consequently, through this "incremental" approach,⁶⁹ communities may remain exposed to dangerous levels of toxic pollutants depending on local sources of air toxics, EPA's diligence in promulgating standards, and the development of technological controls.⁷⁰

As in any regulatory program, the process of developing and implementing a standard can be slow, sometimes resulting in the adoption of an out-of-date standard. For example, during the time it takes to promulgate a MACT standard, including the time given to comply with it, technology may have again advanced and the actual "maximum achievable" control standard may no longer be embodied by the regulation. In addition, the standard EPA adopts may reflect a compromise that falls short of "maximum achievable" control technology.⁷¹ Even if a particular MACT standard is regarded as state-of-the-art at the time it is promulgated, facilities that "lock in" to a technology may be held liable under common law for failing to update their emission controls with newer technologies as they are developed.⁷² Moreover, there are many sources for which technology standards have not been promulgated. For example, according to a list of source categories published by EPA in early 1998, the Agency has yet to promulgate MACT standards for well over 100 of the listed source categories.⁷³ For one or more of these reasons, a technology selected by an operator and allowed by the regulations may not satisfy the trier of fact in a toxic tort action that a facility implemented the control technology necessary to prevent its emissions from creating an unreasonable risk of harm.

Although the CAA's residual risk provisions are designed to address the limitations of MACT, this health-based approach still suffers from the pervasive scientific and political uncertainty that accompanied risk assessment under the NESHAPs program.⁷⁴ EPA must promulgate these standards based on "an ample margin of safety" as that term was construed before the 1990 CAA Amendments.⁷⁵ While the CAA expressly requires EPA to promulgate residual risk standards if a MACT standard does not reduce lifetime excess cancer risks to individuals most exposed to less than one in one million, it does not require that the standard be set at that benchmark.⁷⁶ Rather, the provision merely mandates an additional round of regulation.⁷⁷ Thus, as the provisions fail to provide any additional guidance, EPA is faced with the same difficulties responsible for the failure of the health-based NESHAPs program.⁷⁸

[29 ELR 10009]

While the current HAPs program has allowed EPA to defer health-based standards, chronic uncertainty surrounding risk assessment remains. EPA's experience under the old NESHAPs program is highly suggestive of the difficulties EPA will encounter in developing residual risk standards. Once technology-based standards are in place, therefore, residual risks are likely to endure. Inevitably, the current regulatory system does not guarantee the elimination of all potentially harmful exposures to air toxics.

The Common-Law Control of Air Pollution

Historically, environmental pollution was controlled not by legislation or regulation but primarily through the use of common-law tort remedies.⁷⁹ Under various common-law tort theories, actions could be brought against polluters to abate pollution and to receive compensation for personal injury or property damages. Although air quality is now largely controlled by federal law, the CAA does not preempt state common-law tort claims.⁸⁰ Indeed, the common law, not the CAA, provides the sole means to redress personal injury or property damage from air pollution emissions.⁸¹ The CAA explicitly provides that "nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief."⁸²

The common-law theories used most often include nuisance, trespass, negligence, and strict liability for ultrahazardous activities. In fact, nuisance theory and case law have been described as the "common law backbone" of modern environmental law.⁸³

Nuisance

The common law recognizes two types of nuisance: private and public. A private nuisance is generally defined as an unreasonable interference with the use and enjoyment of another's land.⁸⁴ The focus of a nuisance complaint is not the defendant's conduct, but the "unreasonableness" of the interference. The determination of whether a defendant's interference is "unreasonable" involves balancing the harm to the plaintiff and the utility of the defendant's conduct.⁸⁵ Factors considered relevant to the plaintiff's harm include the extent and nature of the injury, the social value of the use or enjoyment invaded, the suitability of the use or enjoyment to the locality, and the burden of avoiding the harm imposed on the plaintiff.⁸⁶ The utility of the defendant's conduct is generally measured by considering the social value of the conduct, the suitability of the conduct to the locality, and the impracticality of preventing or avoiding the interference.⁸⁷

A public nuisance, on the other hand, is an unreasonable interference with a right common to the general public.⁸⁸ A key distinction between the two types of nuisances is that public nuisance actions are typically brought by the government on behalf of the public. In addition, private citizens generally cannot bring a public nuisance action unless special damages can be shown that are different in kind from those suffered by the general public. Nevertheless, conduct may constitute a public and private nuisance simultaneously, and courts often discuss them without any distinction.⁸⁹

As the U.S. Supreme Court noted in Washington v. General Motors Corp., "air pollution is, of course, one of the most notorious types of public nuisance in modern experience."⁹⁰ Common-law nuisance actions provide a means to seek monetary damages as well as injunctions or abatement of air pollution. Such abatement includes court orders requiring the installation of pollution controls or forcing businesses to shut down.⁹¹ Monetary damages include recovery for the devaluation of plaintiff's property and the lost use and enjoyment as well as any personal injuries suffered as a result of the nuisance.⁹²

Nuisance claims can be actionable on theories that the interference is intentional and unreasonable, negligent or reckless, or abnormally dangerous.⁹³ Furthermore, it is well-settled that even lawful activity may be deemed a nuisance. Thus, emissions may be within the limits established by a permit and still constitute a nuisance.⁹⁴ Prudence dictates, therefore, that an emitter take those control measures [29 ELR 10010] that are practical and reasonable to avoid nuisance litigation.⁹⁵ The expense of implementing advanced air control technology, above and beyond that required by regulations, may be money well spent if it averts the potential cost of defending a nuisance lawsuit.

Trespass

A trespass is generally defined as a physical invasion of an interest in the exclusive possession of another's property.⁹⁶ The same conduct on the part of a defendant may and often does support both nuisance and trespass theories. Like nuisance, trespass requires proof of intent, negligence, reck-lessness, or abnormally dangerous activities.⁹⁷ However, trespass does not entail an analysis of the reasonableness of the invasion to establish liability. Indeed, even an unintentional trespass that causes little or no injury can be remedied by nominal or punitive damages.⁹⁸

Nevertheless, trespass actions are typically premised on some form of intentional conduct.⁹⁹ However, a plaintiff does not have to prove that the defendant deliberately intended to affect plaintiff's property, but merely that the defendant's conduct was substantially certain to do so. Knowing that one's emissions include particulates that will likely settle on surrounding property and failing to take appropriate control measures, therefore, may expose a facility to trespass liability.¹⁰⁰ As with nuisance actions, compliance with air pollution laws will not shield liability for a trespass.¹⁰¹ Such liability may include compensation for the diminution in value of plaintiff's property and any physical injuries suffered by plaintiff.

What type of physical invasion will suffice to sustain a trespass action has long been a key question in deciding trespass cases. Historically, courts have disagreed about how tangible or visible the physical invasion must be. Modern courts, however, have abandoned such distinctions and instead focus on whether the invasion interferes with the right to exclusive possession of the property.¹⁰² Thus, airborne microscopic particles or chemical deposits on another's property have been held to constitute a trespass.¹⁰³

Negligence

Recovery under a negligence theory requires proof that a defendant breached a duty owed to the plaintiff that proximately caused the plaintiff injury.¹⁰⁴ Unlike nuisance, which addresses the reasonableness of the effect resulting from a defendant's conduct, negligence focuses on the reasonableness of the conduct itself. Negligence is that conduct that "falls below the standard established by law for the protection of others against unreasonable harm."¹⁰⁵ The "standard established by law" is that degree of care exercised by a reasonable person of ordinary prudence under the circumstances.¹⁰⁶

Plaintiffs often attempt to show negligence by asserting that a defendant violated the standard of conduct established by a statute or regulation. In most jurisdictions, unexcused violations of regulations designed to prevent the risk created and protect the persons injured constitutes negligence per se.¹⁰⁷ Hence, evidence of such a violation could result in a successful negligence claim without examining the reasonableness of the defendant's conduct. On the other hand, compliance with a statute or regulation will not preclude a finding of negligence in cases where a reasonable person would have taken additional precautions.¹⁰⁸

Because it is possible to comply with agency regulations and still be held liable for negligence, facility operators must look beyond regulatory compliance in the selection and implementation of emission control technology. Due care requires the avoidance of unreasonable risk. If called for by the circumstances, a facility operator must take whatever additional precautions are necessary to avoid an unreasonable risk of harm to the public. The failure to do so exposes an air toxic emitter to potential tort liability.

Defendants often argue that they have followed the custom or practice of their industry and, therefore, have not acted negligently and should not be held liable for plaintiffs' injuries. This defense, like the defense of compliance with statutes or regulations, has been widely rejected where industry practice is considered unacceptable in light of the foreseeable harms.¹⁰⁹ Although industry practice or custom provides some evidence of the standard of care, it does not categorically establish the requisite level of care.¹¹⁰ Thus, an emitter will not avoid tort liability simply by asserting that its facility employs the same emission control technology used by others in the same industry if such technology is later shown to be insufficient under the circumstances to avoid an unreasonable residual risk of harm.

[29 ELR 10011]

Strict Liability for Ultrahazardous Activities

The theory of strict liability for ultrahazardous activities imposes liability regardless of whether a defendant was negligent or otherwise at fault. Indeed, even if the defendant exercised the utmost care to prevent the harm, liability may be imposed if the defendant engaged in an ultrahazardous or "abnormally dangerous" activity.¹¹¹ Traditionally, courts consider the following factors in determining whether an activity is abnormally dangerous: (1) the existence of a high degree of risk of harm; (2) the likelihood that the harm that results will be great; (3) the inability to eliminate the risk by the exercise of reasonable care; (4) the extent to which the activity is not a matter of common usage; (5) the inappropriateness of the activity to its location; and (6) the extent to which its value to the community is outweighed by its dangerous attributes.¹¹²

Because liability may be imposed without regard to whether a defendant was negligent in the selection of emission controls, regulatory compliance provides no defense under a strict liability for ultrahazardous activity theory. Thus, a prudent emitter should examine the factors above to assess whether its emissions could be subject to strict liability as an ultrahazardous activity. Assuming risks posed by air toxic emissions cannot be eliminated completely through the selection of emission controls, other decisions such as the siting of a facility may become important in reducing potential toxic tort liability.

The Evolution of Toxic Torts

Common-law claims for personal injuries or property damages arising from exposure to toxic substances are generally referred to as "toxic torts."¹¹³ In recent years, the United States has experienced a "veritable explosion" of toxic tort litigation.¹¹⁴ This trend shows no signs of waning given the literally thousands of toxic substances released into the environment from potential defendants. Indeed, despite the proliferation of regulations aimed to protect human health and the environment, studies indicate that air toxics still pose potential health problems.¹¹⁵

Toxic tort claims arise under a wide variety of factual scenarios and are often brought under several common-law theories. Given the numerous variables that may exist in any particular case, there is no such thing as a "typical" toxic tort. Nonetheless, typical hallmarks of toxic tort litigation include: (1) a long lead time between exposure and disease manifestation in the toxic exposure victim; (2) causal indeterminacy; (3) an inchoate understanding of the causes of cancer and other insidious diseases; and (4) the lack of an identifiable present injury.¹¹⁶ These peculiar attributes create a number of formidable barriers to recovery under traditional tort law principles.

Barriers to Recovery Under Traditional Tort Law

Although toxic tort claims may be brought under a variety of legal theories, claims are typically based on a negligence theory.¹¹⁷ As stated previously, a traditional negligence claim consists of four elements: duty, breach of duty, proximate causation, and injury. Assuming that people generally have a duty not to expose others to unreasonable risks from toxic substances, the duty element is easily established.¹¹⁸ To establish the remaining elements, a plaintiff must prove by a preponderance of the evidence the defendant's release of a specific toxic substance into the environment, plaintiff's exposure to the specific toxic substance, plaintiff's injury, and causation of plaintiff's injury or damages by the exposure.¹¹⁹

Although the plaintiff's burden is fairly straightforward, the characteristics unique to toxic exposure cases create complexities that have perplexed juries and judges under traditional tort law.¹²⁰ Injuries alleged to originate from exposure to toxic substances usually do not manifest until many years later. As such, plaintiffs face an extremely difficult and costly task of identifying the specific toxic substance to which they were allegedly exposed, the party responsible for the exposure, and whether the substance involved caused the injuries claimed. Given these evidentiary problems, toxic tort cases are replete with expert scientific and medical testimony assessing exposure, causation, and symptoms. This complex and technical evidence is sometimes argued to be beyond the abilities of lay juries and judges.¹²¹

Compounding this technical complexity is the problematic application of traditional tort law principles to toxic exposure cases. At the outset, due to the long latency period between alleged exposure and the resulting injury, toxic tort plaintiffs may find that a statute of limitations bars their claim. Statutes of limitations generally prescribe time periods of two to four years in which a plaintiff must file a claim after a cause-of-action "accrues."¹²² Courts have historically held that a cause-of-action accrues once a defendant acts wrongfully thereby causing the plaintiff harm.¹²³ Under [29 ELR 10012] this "exposure" rule, a claim accrues once the plaintiff was exposed to the substance allegedly responsible for plaintiff's harm.¹²⁴ Thus, long before an injury manifests itself and the plaintiff realizes the need to file a claim, a statute of limitations may bar recovery.

Conversely, if a plaintiff brings a claim immediately after exposure, the lack of an identifiable present injury may preclude recovery. To protect against speculative claims, courts have traditionally required plaintiffs to establish the existence of a recognizable, present physical injury.¹²⁵ Once a plaintiff discovers that they have been exposed to a toxic substance, they may rush to file a claim before the statute of limitations has run. However, due to the long dormancy before disease manifestation, generally the most a plaintiff can establish is an increased risk of developing the disease. Thus, the "present injury" rule denies recovery to such plaintiffs as they are unable to prove that they suffered a legally recognizable injury.

Perhaps no issue illustrates the difficulty and complexity of toxic tort litigation more than that of causation.¹²⁶ Under any theory of recovery, the toxic tort plaintiff must prove, by a preponderance of the evidence, that the defendant is responsible for plaintiff's harm.¹²⁷ In other words, the plaintiff must establish that it is "more likely than not" that the defendant's conduct was a "cause-in-fact" of the plaintiff's injury. Generally, a defendant's conduct is a cause-in-fact of plaintiff's injuries if the injury would not have occurred "but for" the defendant's conduct or if the defendant's conduct was a "substantial factor" in bringing about plaintiff's injury.¹²⁸

Due to a rudimentary understanding of the effects of most toxic substances, plaintiffs face the onerous burden of demonstrating that the exposure involved causes the type of harm reported. In most cases, medical science cannot establish that a particular substance is "more likely than not" responsible for a particular disease. Plaintiffs, therefore, use epidemiological¹²⁹ studies and experts to infer that exposure to a particular substance is likely to cause an increased incidence of a particular disease in a given population. However, on any particular subject, epidemiological studies may not exist and conducting such a study is often cost prohibitive. Furthermore, although these studies may indicate that a given substance may increase the incidence of a disease among an exposed population, a portion of that population might develop the disease regardless of the alleged exposure. Other independent factors such as background concentrations, smoking, or diet may contribute to plaintiffs injuries making it difficult to isolate a single responsible substance.¹³⁰

Even if plaintiffs can establish a causal nexus between the toxic substance and a particular disease, they may be unable to establish that they suffered the exposure necessary to develop the disease. Actual monitoring is oftentimes unavailable to assess the magnitude, frequency, and duration of plaintiffs' alleged exposures to toxic substances. Although various models can be used to generate exposure estimates, they can be quite expensive and are usually based on various assumptions that limit their probative value.¹³¹

Assuming proof of sufficient exposure can be established, a plaintiff may nevertheless fail to identify the source of such exposure. During the long latency periods of toxic exposure injuries, a plaintiff may lose evidence that might have implicated a particular defendant. Furthermore, when various sources of the toxic substance are involved, it may be extremely difficult to ascertain which one is responsible for plaintiff's exposure. A rigid application of traditional tort principles of causation denies recovery to those plaintiffs who cannot distinguish between these potential defendants.

In short, traditional tort law principles have not been effective at accommodating the complexities and uncertainties that embody toxic exposure cases. These principles were developed long before the unique risks posed by toxic exposure were realized.¹³² However, the common law is not fixed and absolute, but evolves to adapt to changes in society.¹³³ Despite the relatively recent emergence of toxic torts, courts have already begun to tailor new and modified theories to address the claims of toxic exposure victims more effectively.

Recent Developments: Easing the Plaintiff's Burden

The legal landscape is changing for sources of toxic pollutants. Routine business practices may now expose such emitters to a threat of toxic tort liability. Several innovations in the evolving toxic tort regime have addressed some of the unique challenges presented by toxic exposure cases. As a result, the barriers to toxic tort recovery are not as formidable as they once were. Indeed, a recent study indicates that toxic tort plaintiffs have been relatively successful.¹³⁴ Furthermore, various statutory and regulatory measures are encouraging litigation by providing potential plaintiffs with [29 ELR 10013] low-cost access to information. Accordingly, by easing the burden on potential plaintiffs, these developments are likely to add momentum to the growth of toxic tort litigation.

[] Increasing Availability of Information. Potential plaintiffs have access to an increasing array of information that may be helpful to establish a causal nexus in toxic exposure cases. For example, the Agency for Toxic Substances and Disease Registry (ATSDR) maintains a database of literature, research, and studies on the health effects of toxic substances.¹³⁵ Congress specifically mandated that EPA and the ATSDR develop lists of toxic substances commonly found at Superfund sites that pose significant health risks and that they prepare "toxicological profiles" of each of the substances listed.¹³⁶ In addition, the ATSDR must perform specific Superfund site "health assessments" and may conduct such assessments for specific releases or facilities at the public's request.¹³⁷

Other examples of government sources of toxic substance data include: EPA Health Assessment Documents; the National Institute for Occupational Safety and Health (NIOSH) Criteria Documents for industrial chemicals; the World Health Organization's Environmental Health Criteria monographs on major industrial chemicals; and the International Agency for Research on Cancer's (IARC's) publications on known or suspected carcinogens.¹³⁸ This growing body of information provides plaintiffs with objective data about the linkages between toxic substances and health effects.¹³⁹

Furthermore, developments such as the Environmental Monitoring for Public Access & Community Tracking (EMPACT) program aim to provide the public with increased information as to the concentration levels of pollutants in their communities.¹⁴⁰ Pilot community projects include real-time air quality monitoring systems and improved data management to provide easily accessible and understandable air quality information to local communities.¹⁴¹ As state and local monitoring networks continue to develop and improve, the increased availability of this information may assist toxic tort plaintiffs in establishing exposure to the pollutant alleged to have caused their injury.¹⁴² The threat of tort liability is thereby increased as communities learn that their symptoms or illnesses may have a toxic substance origin.

Mandatory reporting requirements generate additional information that potential plaintiffs may use to identify and assess the source of their alleged exposure. Sources subject to Title V permitting requirements under the CAA must compile a detailed inventory of the nature and quantity of their emissions and submit them to appropriate regulatory authorities.¹⁴³ Many states also require periodic updates to the emissions inventory. Additionally, reporting requirements under the Emergency Planning and Community Right-To-Know Act (EPCRA)¹⁴⁴ and various state laws such as California's Proposition 65¹⁴⁵ mandate disclosure of toxic emissions regardless of compliance with regulations and permits. EPCRA mandates that owners and operators of regulated facilities complete an EPA "Form R" summarizing any releases of certain toxic substances into the environment.¹⁴⁶ Once such data are submitted to regulatory authorities, they become public record.

These disclosures arm plaintiffs with information that may be presented as evidence of emissions, exposure, and alleged wrongdoing. Moreover, through data resources such as EPA's Toxics Release Inventory (TRI),¹⁴⁷ Sector Facility Indexing Project (SFIP),¹⁴⁸ and Right-To-Know Community Information Website,¹⁴⁹ this information is becoming increasingly available to the public via the Internet. Opening up documentation of potentially harmful emissions to public scrutiny enables toxic tort claims to be brought more readily.

[] The Discovery Rule. In light of the severe hardships that statutes of limitations impose on toxic exposure victims, most courts have modified the definition of when a claim accrued.¹⁵⁰ Instead of starting the statutory time period on the [29 ELR 10014] date when the defendant exposes the plaintiff to a toxic substance, the clock does not begin to run until the plaintiff discovered or should have discovered the injury.¹⁵¹ Some courts have gone further and require discovery of both the injury and the causal nexus between the injury and the toxic exposure before the limitations period begins.¹⁵² Still, other courts require discovery of the party responsible for the plaintiff's exposure as well.¹⁵³ In whatever form, application of the discovery rule has removed one of the more for-midable roadblocks to toxic exposure claims.

[] Innovative Remedies. Individuals exposed to toxic substances often go uncompensated as they cannot show a present, identifiable injury and causation. Consequently, they must then live "with the knowledge that they harbor an increased susceptibility to debilitating, and perhaps fatal, diseases."¹⁵⁴ In recognition of the failure of traditional tort law principles to accommodate these exposure victims, courts have begun to accept several novel theories of damages. Three innovative remedies include damages for increased risk of future illness, fear of future illness, and medical monitoring.

Recovery for increased risk of future illness is predicated on a theory that by increasing a plaintiff's risk of developing a disease, the defendant has inflicted a presently compensable injury.¹⁵⁵ Although this conceptualization avoids the present injury problem, courts still focus on the disease, not the increased risk, as the underlying injury.¹⁵⁶ Thus, courts typically apply traditional causation principles, requiring proof that the plaintiff has a greater than 50-percent chance of contracting a particular disease.¹⁵⁷ Some courts have nevertheless permitted recovery where the plaintiff's risk of developing a particular disease was much less than 50 percent.¹⁵⁸

Toxic exposure plaintiffs may also recover for the emotional distress suffered from the reasonable fear of developing a particular disease such as cancer (i.e., cancerphobia).¹⁵⁹ Out of concern for speculative claims, courts have been reluctant to allow such recovery without proof of some physical impact or injury.¹⁶⁰ However, some courts have interpreted this requirement broadly, accepting evidence such as subcellular contact with a toxic substance as satisfying the physical impact requirement.¹⁶¹ Some courts have abandoned the physical impact or injury requirement altogether and instead focus on the plaintiff's probability of developing a particular disease.¹⁶² Such courts allow recovery for fear of future illness merely on a showing that the plaintiff was exposed to a toxic substance and that the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the disease in the future due to the exposure.¹⁶³ Fear is deemed reasonable on showing "reasonable medical certainty" that the plaintiff will develop the disease.¹⁶⁴ Thus, under this approach, the toxic exposure plaintiff faces causation hurdles similar to those under the increased risk of future illness theory.

A claim for medical monitoring seeks to recover the costs of periodic medical examinations and associated monitoring to detect and diagnose the onset of disease resulting from toxic exposure.¹⁶⁵ In general, medical monitoring costs may be recoverable on a showing that it is reasonably anticipated that exams are medically necessary.¹⁶⁶ "[T]he appropriate inquiry is not whether it is reasonably probable that plaintiffs will suffer harm in the future, but rather whether medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease."¹⁶⁷ Given this reduced evidentiary burden, medical monitoring claims have achieved relatively greater success than increased risk of future illness and fear of future illness claims.¹⁶⁸ However, a trade off exists as medical monitoring damages are limited to the expected cost of future monitoring.¹⁶⁹ Nevertheless, as air emissions have the potential to affect large populations, the costs of medical monitoring tests can add up to large-scale liability, thereby making such claims particularly attractive to plaintiffs' counsel receiving a contingency fee.

Although toxic exposure cases typically involve claims for personal injury, plaintiffs often seek compensation for property damages as well. Traditionally, relief for property damage depends on whether the damage is permanent or temporary. If the damage is permanent, recovery is based on the difference between the value of the property in its present state and the value the property would have been if not for the toxic exposure. For temporary damages, relief is generally limited to the costs of cleanup. In the context of toxic exposure cases, property damages are often characterized as temporary because the contaminated property can be remediated.

However, remediation frequently removes only enough contamination necessary to meet regulatory standards.¹⁷⁰ Since remediation may not completely restore a property's value, plaintiffs have increasingly claimed a permanent injury based on the "residual" contamination and the "stigma" resulting from that property's association with toxic exposure.¹⁷¹ In other words, the public perception that risks may [29 ELR 10015] remain as a result of toxic exposure places a stigma on the property that reduces its market value. Moreover, a property suffering no physical damage may nonetheless merit recovery due to its proximity to contamination.¹⁷² Thus, the evolution of stigma damages exposes emitters of air toxics to additional avenues of tort liability, potentially from those who may not have been directly injured by the defendant's activities.¹⁷³

[] Alternative Theories of Liability. Courts have developed several alternative theories of liability to allow toxic tort plaintiffs to proceed even though they cannot identify the specific source of their exposure. The principle of alternative liability arises from the seminal case of Summers v. Tice.¹⁷⁴ In that case, the plaintiff suffered one gun shot, but two defendants had negligently fired their guns in plaintiff's direction. Consequently, the plaintiff could not prove which defendant was responsible for his injury. Instead of permitting both defendants to escape liability by adhering to strict tort law principles of causation, the court shifted the burden of proof to the defendants to establish that they did not cause the plaintiff's injury. Although shifting the burden of proof greatly enhances the toxic exposure plaintiff's recovery, the application of alternative liability is generally limited to those situations where all possible defendants are present, information concerning causation is more readily available to defendants, and there is a clear indication that all of those defendants are at fault.¹⁷⁵

Another alternative liability theory is that of proportional liability, in which defendants are liable in proportion to the harm caused by each.¹⁷⁶ As a court can award damages based on the magnitude of increased risk created by each defendant, application of this theory removes the plaintiff's burden of establishing a causal nexus by a preponderance of the evidence.¹⁷⁷ Furthermore, plaintiffs can recover for a portion of their injuries even if the identity of a specific responsible defendant is unknown.¹⁷⁸ Thus, the proportional liability theory alleviates the harshness of an all-or-nothing resolution of plaintiff's claim while requiring each defendant to provide compensation only for that portion of plaintiff's harm commensurate with the risks each created.

Traditionally, when two or more defendants independently cause a distinct or single harm, courts impose joint and several liability.¹⁷⁹ Similar to the alternative liability theories above, joint and several liability shifts to the defendants the burden of proving who is responsible and to what degree. Furthermore, joint and several liability permits a plaintiff to fully recover from any one defendant or combination of defendants. In other words, each party who caused the injury is liable to the injured party for the entire amount of the injury. This helps ensure that a plaintiff will recover all damages the court awards, regardless of the ability of various liable parties to pay. Of course, it also puts "deep pocket" defendants at risk of paying the entire award when they were minimally responsible for the injury.

Even minor contributors to the overall pollutant loading of an airshed (i.e., hot spot) should be concerned about joint and several liability. Especially where harm has resulted from the additive or synergistic effect of several pollutant sources, it may be extremely difficult to determine the relative responsibility of each of the many facilities from which emissions may be impacting a particular airshed. Thus, it is likely that joint and several liability could be employed in such cases, making even minor contributors potentially subject to enormous liability. For example, courts have applied joint and several liability to independent emissions of air pollutants where the effects of each plant's individual pollution was impossible to determine.¹⁸⁰ In addition, some medical experts in mass and class action toxic tort cases involving many square miles of affected municipal airsheds have testified that cumulative airborne emissions causing an additional risk of one in one million can create a medical need for early detection screening for the onset of cancer or other diseases.¹⁸¹ Obviously, these costs could become substantial if any significant urban area is affected.

Although many jurisdictions have modified the doctrine of joint and several liability, a significant minority still retain the traditional rule.¹⁸² Furthermore, the vast majority of states that have modified the rule have retained some form of joint and several liability, albeit with certain limitations.¹⁸³ A common area where states have retained joint and several liability is that of toxic torts.¹⁸⁴ Thus, the specter of joint and several liability heightens the need for diligence in the avoidance of toxic tort liability.

[] Toxic Torts in the Workplace. A facility's ambient emissions are not the only consideration in assessing potential toxic tort law liability. Indoor air quality is an expanding area of toxic tort litigation.¹⁸⁵ So-called sick building syndrome results when "there is inadequate ventilation in combination with pollutants emitted from building materials inside the structure, or contamination from outside of the building which is drawn inside."¹⁸⁶ While workers' compensation benefits are generally an employee's exclusive remedy against an employer, an employee is not precluded from suing third parties, such as building owners and managers. [29 ELR 10016] Furthermore, many states allow an employee to sue its employer for the intentional disregard of worker safety. For example, an employer was held liable for intentionally ignoring unsafe working conditions caused by airborne lead particles.¹⁸⁷

EPA has characterized indoor air pollution as an extremely serious threat to human health. In fact, in 1992 EPA and the NIOSH published a guide for managing indoor air quality entitled Building Air Quality: A Guide for Building Owners and Facility Managers. There is, however, no comprehensive regulatory program that addresses indoor air pollution. At the federal level, the Occupational Safety and Health Administration has developed some limited regulations relevant to indoor air quality,¹⁸⁸ but its March 31, 1994, proposal to develop a more comprehensive indoor air quality regulatory program was so controversial (over 100,000 written comments) that it was never finalized. Nonetheless, courts have held that common-law actions are not preempted by such regulations.¹⁸⁹ Thus, facility owners and operators should be aware of and consider indoor air quality as an additional concern for potential common-law liability.

[] Punitive Damages. Punitive damages offer plaintiffs additional compensation in circumstances where a defendant's behavior is found "so egregious as to shock the senses of the community."¹⁹⁰ Typically, a plaintiff must show that the defendant acted with an evil motive or reckless indifference to the rights of others.¹⁹¹ In one case, a jury imposed over $ 1.8 million in punitive damages against a particulate matter emitter where evidence indicated that the defendant acted fraudulently and with wanton and reckless disregard for the injured plaintiffs' rights.¹⁹² The evidence indicated that the defendant intentionally violated air regulations, concealed emissions problems through manipulation of emissions out-put and monitoring instruments, withheld information from regulatory authorities, and ignored neighboring community complaints.¹⁹³ Thus, if a facility operator knowingly continues to emit air toxics in the face of evidence that those emissions pose a significant risk of harm, punitive damages potentially could be assessed.

Significantly, some courts have shown a willingness to impose punitive damages for the mere disregard of a facility's "societal obligations." In Orchard View Farms, Inc. v. Martin Marietta Aluminum, Inc.,¹⁹⁴ the court explained:

Our system of law attempts to ensure that businesses are, on balance, socially beneficial by requiring that each enterprise bear its total production costs, as accurately as those costs can be ascertained. A fundamental means to this end is the institution of tort liability, which requires that persons harmed by business or other activity be compensated by the perpetrator of the damage. In the context of pollution, however, the tort system does not always operate smoothly to impose liability for compensatory damages. Among the difficulties encountered are: (1) that the harm may be gradual or otherwise difficult to perceive; (2) that the cause of the harm may be difficult to trace to the pollution and from the pollution to its source; and (3) that the harm may be inflicted in small amounts upon a large number of people….

Because of these impediments to smooth operation of the tort system and to ensuring that each enterprise bears its own costs of production, the law imposes upon businesses a societal obligation not to obstruct legal procedures designed to provide compensation to persons harmed by externalized costs of production. Enterprises must cooperate with their neighbors in ascertaining the nature, severity and scope of the harm and in arranging to prevent the damage or to neutralize it through some form of compensation.

Thus, according to the Orchard View Farms court, a business enterprise has an affirmative societal obligation to determine whether its emissions pose a risk of harm to others and to take appropriate measures to abate such harm if necessary.¹⁹⁵ Any breach of this obligation justifies the imposition of punitive damages.¹⁹⁶

With respect to a facility's obligation to adopt appropriate emission control measures, the court noted that although the defendant's control system "was among the best in any aluminum plant in the world…. [that did] not necessarily discharge the company's societal obligations, because the performance of other plants might also evidence social disregard."¹⁹⁷ Indeed, the court concluded that the defendant could have adopted control measures that would have significantly reduced its fluoride emissions, and, thus, the court held that by failing "to adopt and maintain reasonable, efficient pollution control measures," the defendant "faltered in carrying out its societal responsibility to control its harmful emissions."¹⁹⁸

Jury perceptions of a defendant's conduct may have consequences far beyond the initial question of liability and thus play a significant role in the assessment of punitive damages. The perception that a defendant has acted "unreasonably" may taint the defendant in the eyes of the jury and may result in substantial punitive damages awards. Although a defendant may have complied in good faith with applicable regulations, jury perceptions in environmental suits are often clouded by their predispositions on environmental issues and by the complexity and quantity of scientific evidence and expert testimony presented at trial.¹⁹⁹ In general, jurors can be expected to view negatively a defendant that unreasonably failed to utilize advanced emission control technology when that defendant was aware of the potential residual risk of harm created by its emissions.

Thus, where a facility knows or should know that its emissions pose a risk to human health and the environment [29 ELR 10017] despite meeting applicable regulatory requirements, there exists the potential for punitive damages. Punitive damages can substantially increase defendant's liability, often eclipsing the award of compensation for plaintiff's injuries.²⁰⁰

Conclusion

The public's increasing awareness and the evolution of tort doctrine have enhanced the air pollutant emitter's risk of toxic tort liability. From a risk management perspective, the potential costs of tort liability create an obvious financial incentive for selecting control technology that both meets regulatory requirements and minimizes to a reasonable degree potential tort liability. Class action suits create the potential for large-scale claims and encourage litigation by making it economically viable for plaintiff's counsel to bring toxic tort claims despite the difficulty and uncertainty. Toxic torts are thus an expanding field with plaintiff's lawyers aggressively seeking new ways to get cases before juries.²⁰¹

Given the complex nature of toxic tort litigation, defense costs are typically high because of the necessity of extensive discovery and expert testimony. Likewise, significant costs may be incurred right from the start due to mandatory disclosure provisions that have now been adopted by the federal courts and most state courts.²⁰² Defending against toxic tort claims, even a speculative one, can be extraordinarily expensive because they often involve many plaintiffs and because conflicting expert opinion and fact-intensive issues can make summary judgment difficult to obtain.

As risks to public health and the environment are likely to remain despite regulatory compliance, emitters must look beyond regulatory requirements in selecting emission control technology. The prudent decisionmaker must identify and incorporate the risk of potential common-law liability into business decisionmaking. In addition, given the capital-intensive nature of many emission controls, in many cases it is better to address the risks of common-law liability by selecting appropriate controls at the outset rather than later installing more costly and intrusive retrofit technology. In short, facility decisionmakers should have a fair understanding of the scope of potential common-law liability exposure posed by their emissions and recognize regulatory compliance as merely a floor rather than a ceiling when selecting air quality controls.

1. While this Article focuses on federal standards, state and local governments retain a significant role in air quality control. Federal air quality laws and regulations are typically superimposed over state statutes and regulations andare further complicated by joint state and federal approval regimes. Although some aspects of air quality regulation are dominated by federal law reducing the role of state and local governments to that of implementing the federal program, states continue to retain the right "to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution." 42 U.S.C. § 7416, ELR STAT. CAA § 116. Thus, states may adopt air quality control measures not covered by federal law and may also require more stringent standards than those required by federal rules and regulations.

2. Id. §§ 7401-7671q. ELR STAT. CAA §§ 101-618.

3. For example, see id. §§ 7411-7412, ELR STAT. CAA §§ 111-112 (requiring promulgation of uniform federal standards for criteria and hazardous air pollutants) and id. §§ 7409-7410, ELR STAT. CAA §§ 109-110 (requiring promulgation of national ambient air quality standards (NAAQS) and preparation and approval of state implementation plans (SIPs)).

4. Id. § 7513a(b)(1)(B), ELR STAT. CAA § 189(b)(1)(B) ("best available control measures" apply generally to sources of particulate matter in areas classified as "serious" for the nonattainment of the NAAQS for that pollutant).

5. Id. § 7475(a)(4), ELR STAT. CAA § 165(a)(4) ("best available control technology" applies to major new sources in areas subject to the prevention of significant deterioration program).

6. Id. § 7412(d)(5), ELR STAT. CAA § 112(d)(5) ("generally achievable control technology" applies to area sources subject to the hazardous air pollutants (HAPs) program).

7. Id. § 7503(a)(2), ELR STAT. CAA § 173(a)(2) ("lowest achievable emission rate" applies to major new stationary sources in areas that have not attained a NAAQS for a criteria pollutant).

8. Id. § 7412(d)(2), ELR STAT. CAA § 112(d)(2) ("maximum achievable control technology" applies to new and existing sources subject to the HAPs program).

9. Id. § 7502(c)(1), ELR STAT. CAA § 172(c)(1) ("reasonably available control measures" apply generally to all major sources in areas that have not attained a NAAQS for a criteria pollutant).

10. Id. ("reasonably available control technology" applies to existing major sources in areas that have not attained a NAAQS for a criteria pollutant).

11. See Sanford E. Gaines, Science, Politics, and the Management of Toxic Risks Through Law, 30 JUREMETRICS J. 271, 296-97 (1990) ("The health risk assessment approach to the management of toxic releases has strong appeal in theory because of its emphasis on the motivating goal of the statute. In practical terms, however, the awkward and arduous nature of the assessment process precludes a significant acceleration of decision making ….").

12. Pub. L. No. 101-549, 104 Stat. 2399.

13. A technology-based approach is traditional in the sense of its early application under the Federal Water Pollution Control Act (FWPCA), which requires all point sources that discharge pollutants to meet technology-based standard such as best available technology (BAT). 33 U.S.C. § 1311; see also Oliver A. Houck, Of Bats, Birds and B-A-T: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403, 417 (1994) (explaining how the FWPCA "led the way" in the use of technology-based approaches).

14. Formerly, HAPs were defined as those pollutants that cause or contribute to air pollution that "may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. § 7412(a)(1), ELR STAT. CAA § 112(a)(1).

15. Id. § 7412(b)(2), ELR STAT. CAA § 112(b)(2).

16. William A. Wichers II et al., Regulation of Hazardous Air Pollutants Under the New Clean Air Act: Technology-Based Standards at Last, 22 ELR 10717, 10718 (Nov. 1992).

17. Id.

18. Bradford C. Mank, What Comes After Technology: Using an "Exceptions Process" to Improve Residual Risk Regulation of Hazardous Air Pollutants, 13 STAN. ENVTL. L.J. 263, 268 (1994).

19. 42 U.S.C. § 7412(d), ELR STAT. CAA § 112(d). Congress originally listed 189 pollutants as HAPs in the 1990 CAA Amendments. However, EPA must periodically review the list and, where appropriate, revise the list using formal rulemaking procedures. In fact, there are currently only 188 HAPs as EPA has removed caprolactam from the list. See 61 Fed. Reg. 30816 (June 18, 1996).

20. 42 U.S.C. § 7412(d)(2), ELR STAT. CAA § 112(d)(2); 40 C.F.R. 63 (1997) (providing MACT standards for source categories). Note that the presence of the federal HAPs program does not preclude the states and localities from adopting their own air toxics program. Many state air toxics programs use an ambient air quality approach. Under this approach, the program monitors the ambient air concentrations of air toxics emitted from a facility (typically using the SCREEN model at the fence line) and compares the modeled concentrations to a calculated "acceptable" concentration, frequently one derived from occupational exposure limits. If the facility's air toxics emissions exceed these state guideline levels, many state or local programs will require the owner or operator of the source to add control equipment to reduce the ambient concentrations levels below that which the state believes are of concern. Several states have also adopted technology-driven approaches very similar to the federal MACT program. The integration of these state air toxics programs into the federal HAPs program has proven to be one of the most challenging aspects of the CAA Amendments of 1990.

21. 42 U.S.C. § 7412(d)(3) ELR STAT. CAA § 112(d)(3).

22. Id. EPA interprets the "average emission limitation" of the applicable group of sources as taking the average emission limitation achieved by each of the sources, and then finding the average of those limitations as a group. See 59 Fed. Reg. 29196, 29197 (June 6, 1994).

23. An "area source" is any stationary source emitting HAPs that is not a major source 42 U.S.C. § 7412(a)(2), ELR STAT. CAA § 112(a)(2). A "stationary source" is a building, structure, facility, or installation that emits or has the potential to emit any air pollutants. Id. § 7412(a)(3), ELR STAT. CAA § 112(a)(3).

24. Id. § 7412(d)(5), ELR STAT. CAA § 112(d)(5).

25. Mark W. Ciaravella, Regulation of Hazardous Air Pollutants Under Section 112 of the Clean Air Act Amendments of 1990, 15 ENERGY L.J. 485, 494 (1994).

26. 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA § 112(f)(2)(A).

27. Id. The emphasis on cancer risks is understandable given EPA findings at the time of the 1990 CAA Amendments. As one observer notes:

In January 1990, EPA had found 149 facilities associated with lifetime cancer risks in exposed individuals of greater than one in 10,000. Among these were 52 plants in which cancer risks were greater than one in 1,000; seven with cancer risks greater than one in 100; and one with a risk to surrounding inhabitants of one in 10. EPA based these estimates on emissions caused by a single toxic air pollutant from each plant. In reality, many plants emit several carcinogens, a fact that could multiply isolated risk assessments.

Troyen A. Brennan, Environmental Torts, 46 VAND. L. REV. 1, 35 n. 109 (1993).

28. Recent studies linking increased hospital admissions for lung and heart ailments with increased levels of ozone and particulate pollution highlight the potential for such "nontoxic" pollutants to serve as the basis of toxic tort claims. See Study by Kaiser Foundation Links Los Angeles Air, Admissions to Hospitals, 28 Env't Rep. (BNA) 1447 (Nov. 28, 1997); S. California Study Confirms Smog's Link to Lung Ailments, ARIZ. REPUBLIC, Nov. 21, 1997, at A25. One study estimated that 64,000 people in major American cities may die each year from lung and heart problems aggravated by such pollutants. Id.

29. Brennan, supra note 27, at 14 (citation omitted).

30. S. REP. No. 91-1196, at 15-16 (1970); ENVIRONMENTAL LAW HANDBOOK § 2.2 (Thomas F.P. Sullivan ed., 14th ed. 1997).

31. 42 U.S.C. § 7411(b)(1)-(2), ELR STAT. CAA § 111(b)(1)-(2). Currently, substantive NSPS regulations are set forth in 40 C.F.R. §§ 60, Subparts D to VVV (1997). Each subpart defines the specific source, equipment, or activity that it regulates.

32. Id. § 7411(a)(1), ELR STAT. CAA § 111(a)(1).

33. A "new source" is defined as "any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance … applicable to such source." Id. § 7411(a)(2), ELR STAT. CAA § 111(a)(2).

34. Id. § 7411(b)(1)(B), ELR STAT. CAA § 111(b)(1)(B).

35. ENVIRONMENTAL LAW HANDBOOK, supra note 30, § 2.2.1.

36. 42 U.S.C. § 7409, ELR STAT. CAA § 109. A criteria pollutant is one produced by numerous and diverse sources "which may reasonably be anticipated to endanger public health or welfare." Id. § 7408(a)(1)(A), ELR STAT. CAA § 108(a)(1)(A). Pursuant to the CAA, EPA establishes "primary" and "secondary" NAAQS for each criteria pollutant. Primary NAAQS are set at a level designed to protect the public with "an adequate margin of safety…." Id. § 7409(b)(1), ELR STAT. CAA § 109(b)(1). Secondary NAAQS are set at a level to "protect the public welfare from any known or anticipated adverse effects…." Id. § 7409(b)(2), ELR STAT. CAA § 109(b)(2).

37. Id. § 7410, ELR STAT. CAA § 110.

38. Id. § 7502(c)(1), ELR STAT. CAA § 172(c)(1).

39. 44 Fed. Reg. 53761 (Sept. 17, 1979).

40. EPA's control technique guidelines (CTGs) provide nationwide guidance on RACT. On promulgation of NAAQS, the CAA directs EPA to simultaneously issue CTGs, which include information on available technology, installation and operation costs, energy requirements, emission reduction benefits, and environmental impacts. See 42 U.S.C. § 7408(b)(1), ELR STAT. CAA § 108(b)(1).

41. Id. § 7502(c)(5), ELR STAT. CAA § 172(c)(5). A "major stationary source" is a "source of air pollutants which directly emits, or has the potential to emit, [100] tons per year or more of any air pollutant…." Id. § 7602(j), ELR STAT. CAA § 302(j). A "modification" is "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted." Id. § 7411(a)(4), ELR STAT. CAA § 111(a)(4). However, note that these definitions change as the degree of nonattainment increases. For example, a facility is a major source of ozone if it has the potential to emit 10 tons per year of volatile organic compounds in an "extreme" ozone nonattainment area. Id. § 7511a(e), ELR STAT. CAA § 182(e). Thus, the more severe the nonattainment area, the greater number of sources which must be controlled via permitting.

42. Id. § 7503(a)(2), ELR STAT. CAA § 173(a)(2); 40 C.F.R. § 52.21 (1997).

43. 42 U.S.C. § 7501(3), ELR STAT. CAA § 171(3).

44. 1 WILLIAM H. RODGERS, ENVIRONMENTAL LAW: AIR AND WATER § 2.7 (1986) (quoting The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932)).

45. See Byron Swift, Barriers to Environmental Technology Innovation and Use, 28 ELR 10202, 10208 (Apr. 1998).

46. Id. at 10206-07.

47. 42 U.S.C. § 7513a(b)(1)(B), ELR STAT. CAA § 189(b)(1)(B).

48. Id. § 7513b, ELR STAT. CAA § 190.

49. See id. §§ 7470-7492, ELR STAT. CAA §§ 160-169B; 40 C.F.R. § 52.21 (1997).

50. The air quality of a particular area may be degraded by various increments based on that areas's classification. See 42 U.S.C. § 7473, ELR STAT. CAA § 163. Class I areas, including such places as national parks and wilderness areas have the most restrictive increments, and Class III areas have the least.

51. 42 U.S.C. § 7475, ELR STAT. CAA § 165. A source is a "major emitting facility" if it emits, or has the potential to emit: (1) 100 tons per year or more and is within a specific list of 28 categories of sources; or (2) 250 tons per year of any regulated air pollutant. Id. § 7479(1), ELR STAT. CAA § 169(1).

52. Id. § 7475(a), ELR STAT. CAA § 165(a). Note that the 1990 CAA Amendments provide that pollutants regulated under the new HAPs program are not subject to the PSD program. Id. § 7412(b)(6), ELR STAT. CAA § 112(b)(6).

53. Id. § 7479(3), ELR STAT. CAA § 169(3).

54. THAD GODISH, AIR QUALITY 172 (3d ed. 1997).

55. See Richard B. Stewart, The Role of the Courts in Risk Management, 16 ELR 10208 (Aug. 1986).

56. See generally Gaines, supra note 11, at 279-82 (discussing scientific uncertainties of risk assessment); Alyson C. Flournoy, Legislating in Action: Asking the Wrong Questions in Protective Environmental Decision Making, 15 HARV. ENVTL. L. REV. 327 (1991).

57. Oliver A. Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 ELR 10528 (Sept. 1991). As an illustration, early NAAQS for ozone, "to be set with 'an adequate margin of safety,' were subsequently relaxed after a reinterpretation of the data and disturbing, if undisclosed, influence from the White House." Id. at 10536.

58. Harold P. Green, The Role of Congress in Risk Management, 16 ELR 10220, 10221 (Aug. 1986).

59. Id.

60. See Adam Babich, Restructuring Environmental Law, 19 ELR 10057 (Feb. 1989).

61. Bruce A. Ackerman & Richard B. Stewart, Reforming EnvironmentalLaw, 37 STAN. L. REV. 1333, 1355 (1985).

62. Mank, supra note 18, at 290. The CAA Title IV Acid Rain program, which uses a market-based approach to reduce aggregate levels of sulfur dioxide emissions, is an example of a program that may concentrate emissions in a particular region (e.g., the Midwest) given the evolving dynamics of electricity deregulation.

63. See id.

64. Id. at 282.

65. See Richard A. Ginsburg, TSCA's Unfulfilled Mandate for Comprehensive Regulation of Toxic Substances — The Potential of TSCA § 21 Citizens Petitions, 16 ELR 10330 (Nov. 1986).

66. Mank, supra note 18, at 282.

67. See supra notes 14-25 and accompanying text (discussing shift to-ward technology-based standards in the control of air toxics).

68. See Brennan, supra note 27, at 26-27.

69. Id.

70. Notably, the very structure and enforcement of our environmental laws may create barriers to innovations in air toxic control technology. See generally Swift, supra note 45.

71. For example, a recent challenge to the newly promulgated MACT standard for medical waste incinerators alleges that EPA improperly set the standard based on the most stringent emission limits that have been included in permits instead of evaluating the most stringent emission control achieved by the best performing facilities. The MACT standard "was generally endorsed by industry groups who felt that it represented a fair compromise." Industry Groups to Side With EPA in Defense of Medical Waste Air Rule, INSIDE EPA, July 10, 1998, at 9.

72. See Swift, supra note 45, at 10208 (describing how even performance-based requirements have a tendency to lock in the technology that is used to demonstrate achievability).

73. See 63 Fed. Reg. 7155 (Feb. 12, 1998) (EPA's revised list of source categories and MACT promulgation schedule).

74. See Gaines, supra note 11, at 276-91 (discussing the synergy of uncertainty).

75. 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA § 112(f)(2)(A). In setting a standard to provide "an ample margin of safety to protect public health." EPA uses a two-step process. See 54 Fed. Reg. 38083 (Sept. 14, 1989). First, EPA determines a "safe" or "acceptable" risk level, based solely on health factors. Then, EPA sets the standard at a level that protects the public health with an ample margin of safety, considering relevant factors in addition to health such as costs and economic impacts of controls, technological feasibility uncertainties, and any other relevant factors.

76. See 42 U.S.C. § 7412(f)(2)(A), ELR STAT. CAA § 112(f)(2)(A); Mank, supra note 18, at 276.

77. Mank, supra note 18, at 276.

78. Congress sought to address the uncertainties that abound in risk assessment through the use of "more-study" provisions. For purposes of the residual risk program, the CAA required EPA and the National Academy of Sciences (NAS) to enter into an arrangement to review EPA's risk assessment methodology for the carcinogenic risks associated with air toxics and to suggest improvements. See 42 U.S.C. § 7412(o)(1), ELR STAT. CAA § 112(o)(1). The 1994 NAS report, Science and Judgment in Risk Assessment (National Research Council 1994), observed several common themes that were usually the basis of specific risk assessment criticisms, including: (1) the use of default assumptions; (2) availability of data; (3) uncertainty and variability; (4) inadequate assessment of multiple chemical exposures, multiple routes of exposure, and the potential for multiple adverse effects; and (5) insufficient steps taken to validate the methodologies used throughout the risk assessment process. Although statutorily directed to focus on carcinogenic risk, the NAS report has nonetheless been criticized for its failure to evaluate noncancer effects. See Mank, supra note 18, at 273.

In addition, by November 15, 1996, EPA was required to report to Congress on the risk to public health remaining, or likely to remain, after applications of the MACT standards and to offer legislative recommendations. See 42 U.S.C. § 7412(f)(1), ELR STAT. CAA § 112(f)(1). As a result of a citizen suit brought against the Agency for failing to meet the mandatory deadline, EPA recently entered into a proposed settlement agreement. See 62 Fed. Reg. 63712 (Dec. 2, 1997). Under the agreement, EPA must submit the final report to Congress by February 1, 1999. EPA recently published a notice of availability for its draft residual risk report. See 63 Fed. Reg. 19914 (Apr. 22, 1998). Although the draft report illustrates marginal improvements in EPA's risk assessment methodology, it fails to include any residual risk determinations.

79. Arnold W. Reitze Jr., Overview and Critique: A Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 ENVTL. L. 1549, 1554-57 (1991).

80. See Gutierrez v. Mobil Oil Corp., 798 F. Supp. 1280, 1285 (W.D. Tex. 1992).

81. As the Gutierrez court explains:

The only remedies provided by the Clean Air Act, pursuant to 42 U.S.C. § 7604, are to obtain enforcement of the standards promulgated pursuant to the Act or to have the court impose civil penalties against violators of such standards. Any civil penalties imposed under this section do not go to the plaintiffs; instead, these penalties must either go to the United States Treasury or be deposited in a special fund for beneficial mitigation projects …. [T]he Clean Air Act does not provide similar or comparable remedies to those sought by plaintiffs in common law actions for damages.

Id. (citations omitted).

82. 42 U.S.C. § 7604(e), ELR STAT. CAA § 304(e).

83. WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 113 (2d ed. 1994).

84. See RESTATEMENT (SECOND) OF TORTS §§ 821D, 822 (1977).

85. See id. § 826.

86. Id. § 827.

87. Id. § 828.

88. Id. § 821B.

89. See RODGERS, supra note 44, § 2.2; Capurro v. Galaxy Chem. Co., 2 ELR 20386 (Md. Cir. Ct. 1972).

90. 406 U.S. 109, 114 (1972).

91. See, e.g., Renkin v. Harvey Aluminum, 226 F. Supp. 169 (D. Or. 1963) (ordering adoption of air pollution controls); Village of Wilsonville v. SCA Servs., Inc., 426 N.E.2d 824, 11 ELR 20698 (Ill. 1981) (issuing an injunction against further operation of a hazardous waste site and ordering removal of all wastes and contaminated soil).

92. See, e.g., Vestal v. Gulf Oil Corp., 235 S.W.2d 440 (Tex. 1951) (recovery of personal injury and property damages from exposure to gasoline vapors).

93. RESTATEMENT (SECOND) OF TORTS § 822 (1977).

94. See Galaxy Carpet Mills, Inc. v. Massengill, 338 S.E.2d 428, 16 ELR 20849 (Ga. 1986) (particulate matter emissions from coal-fired boilers held to be a nuisance despite being operated in compliance with permit).

95. Indeed, in Renkin v. Harvey Aluminum, 226 F. Supp. 169 (D. Or. 1963), the court ordered adoption of pollution controls where the company failed to keep pace with technological advances. On the other hand, in Folmar v. Elliot Coal Mining Co., 272 A.2d 910, 913, 1 ELR 20182 (Pa. 1971), liability for nuisance was not imposed where the defendant did everything then known and economically feasible to abate air pollution from its coal cleaning plant.

96. RESTATEMENT (SECOND) OF TORTS § 158 (1965).

97. Id. § 165.

98. See Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 529, 15 ELR 20934 (Ala. 1979).

99. Negligence and strict liability for abnormally dangerous activities are commonly asserted as independent theories of liability.

100. See Bradley v. American Smelting & Ref. Co., 709 P.2d 782, 786, 16 ELR 20346 (Wash. 1985) (holding that defendant must have known with substantial certainty that its emissions would contaminate surrounding lands).

101. See Borland, 369 So. 2d at 526, 15 ELR 20934 (compliance with Alabama Air Pollution Control Act did not shield company from liability for damages caused by lead particulate and sulfoxide gas emissions).

102. See, e.g., Bradley, 709 P.2d 782, 16 ELR 20346.

103. See id; Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959), cert. denied, 362 U.S. 918 (1960) (gaseous and particulate fluorides from an aluminum smelter constituted trespass).

104. See RESTATEMENT (SECOND) OF TORTS § 281 (1965).

105. Id. § 282.

106. WILLIAM L. PROSSER, LAW OF TORTS § 32 (1971).

107. Sheila G. Bush, Can You Get There From Here?: Noncompliance With Environmental Regulations as Negligence Per Se in Tort Cases, 25 IDAHO L. REV. 469, 471 (1988-1989).

108. See, e.g., Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 16 ELR 20769 (Mo. App. 1986) ("[F]ederal emission standards are only guidelines, not absolute safety levels beyond which no injuries can occur.").

109. See RODGERS, supra note 44, § 2.7 ("[N]egligence case law hold[s] that conformity with an industry-wide custom is not necessarily a complete answer to a charge of lack of due care.").

110. See generally PROSSER, supra note 106, § 33.

111. RESTATEMENT (SECOND) OF TORTS § 519 (1977).

112. Id. § 520; Crawford v. National Lead Co., 784 F. Supp. 439, 19 ELR 21174 (S.D. Ohio 1989).

113. The term "toxic tort" first appeared in a judicial opinion in In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 737, 743 (E.D.N.Y. 1979), rev'd, 635 F.2d 987 (2d Cir. 1980).

114. Thomas W. Henderson, Toxic Tort Litigation: Medical and Scientific Principles of Causation, 132 AM. J. EPIDEMIOLOGY 869, 869 (1990). Among the more prevalent substances forming the basis for this litigation include: agent orange, are welding fumes, asbestos, benzene, polychlorinated biphenyls (PCBs), trichloroethylene (TCE), and vinyl chloride. To illustrate the magnitude of toxic tort litigation, over 100,000 claims have been filed over the last 20 years in state and federal courts by victims who have contracted one of the many asbestos-related diseases. Id.

115. See Public Health Implications of 1990 Air Toxics Concentrations Across the United States, 106 ENVTL. HEALTH PERSP. 5 (May 1998); New Studies Highlighting Exposure May Prompt Tough New Toxic Air Pollution Rules. AIR COMPLIANCE ALERT, Apr. 24, 1998, at 5.

116. Kristen Chapin, Toxic Torts, Public Health Data, and the Evolving Common Law: Compensation for Increased Risk of Future Injury, 13 J. ENERGY, NAT. RESOURCES & ENVTL. L. 129, 129-30 (1993).

117. Bill C. Wells, The Grin Without the Cat: Claims for Damages From Toxic Exposure Without Present Injury, 18 WM. & MARY J. ENVTL. L. 285, 287 (1994).

118. Id.

119. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 736, 25 ELR 20989 (3d Cir. 1994), cert. denied sub nom. General Electric Co. v. Ingram, 513 U.S. 1190 (1995).

120. See Dan Drazan, Special Juries in Toxic Tort Litigation, 19 ELR 10298 (July 1989).

121. See id.

122. Brennan, supra note 27, at 54.

123. Id.

124. 2 MICHAEL DORE, LAW OF TOXIC TORTS § 12.02 (1997) ("Some of the states adopting this exposure rule begin the accrual of the statute of limitations from the date of first exposure to the toxic substance, while others begin this period as of the date of the last toxic exposure." (footnote omitted)).

125. See Chapin, supra note 116, at 134.

126. There are two levels of causation that a plaintiff must satisfy: causation-in-fact and proximate causation. If a plaintiff accomplishes the arduous task of establishing that the defendant's conduct was a cause-in-fact of plaintiff's injury, the plaintiff must next prove that defendant's conduct was the proximate cause of such injuries. PROSSER, supra note 106, § 42. Unlike the fact of causation, proximate cause is essentially a legal policy question of "whether a defendant's conduct has been so significant and important a cause that the defendant should be legally responsible." Id. Essentially, to prove proximate causation, the plaintiff must show that it was, or should have been, reasonably foreseeable to defendant that its act or omission would create an unreasonable risk of harm to plaintiff.

127. Ora F. Harris Jr., Toxic Tort Litigation and the Causation Element: Is There Any Hope of Reconciliation?, 40 SW. L.J. 909, 910 (1986).

128. Id.

129. "Epidemiology is the statistical study of incidence, prevalence, and distribution of disease in human populations. Epidemiological studies examine high incidences of disease in a community and associate this disease rate with unusual exposures to environmental factors." Drazan, supra note 120, at 10300 (citations omitted).

130. See id.

131. See generally Randi J. Theodosopoulos, Puzzling Through the Preparation and Presentation of an Air Exposure Case, 7 ENVTL. CLAIMS J. 77 (1994-1995).

132. See Chapin, supra note 116, at 129.

133. ENVIRONMENTAL LAW HANDBOOK, supra note 30, at 6.

134. "[A] 1995 Justice Department study revealed that while plaintiffs prevailed in 60 percent of automobile tort cases, 41 percent of product liability cases and 30 percent of medical malpractice cases, 74 percent of toxic tort cases were won by plaintiffs." 1 MICHAEL DORE, LAW OF TOXIC TORTS § 2.02 (1997).

135. 42 U.S.C. § 9604(i)(1)(B), ELR STAT. CERCLA § 104(i)(1)(B).

136. Id. § 9604(i)(2)-(3), ELR STAT. CERCLA § 104(i)(2)-(3).

137. Id. § 9604(i)(6)(A)-(B), ELR STAT. CERCLA § 104(i)(6)(A)-(B); 40 C.F.R. part 90 (1997).

138. Ellen Relkin. The Sword or the Shield: The Use of Governmental Regulations, Exposure Standards and Toxicological Data in Toxic Tort Litigation, 6 DICK. J. ENVTL. L. & POL'Y 1, 5 (1997).

139. Brennan, supra note 27, at 50.

140. See 63 Fed. Reg. 16498. 16499 (Apr. 3, 1998).

141. For information on pilot projects proposed for 86 metropolitan areas, see EPA's EMPACT website via the Internet at http://www.epa.gov/empact.

142. Juries tend to accept actual monitoring data and measurements more readily than modeling performed specifically for a lawsuit. Furthermore, the more actual monitoring data that can be obtained, the more reliable the modeling becomes. Theodosopoulos, supra note 131, at 82.

143. Any state with an area that has been designated by EPA as nonattainment for one or more of NAAQS must submit a plan to EPA that includes detailed inventories of the pollutants emitted from stationary sources in the area. 42 U.S.C. § 7502(c), ELR STAT. CAA § 172(c). Title V of the CAA provides for states to implement a permitting program. See id. §§ 7661-7661f, ELR STAT. CAA §§ 501-507. Implicitly, sources subject to Title V must submit an emissions statement to permitting authorities in conjunction with the permit application.

144. Pub. L. No, 99-499, tit. III, 100 Stat. 1613 (1986).

145. Cal. Health & Safety Code §§ 25249.5 to .13 (1996). California's so-called Toxic Initiative requires that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual …."

146. 42 U.S.C. § 11023, ELR STAT. EPCRA § 313.

147. The TRI contains data reported by facilities that manufacture, process, or use any number of over 600 designated toxic chemicals. This information allows communities and individuals to determine the nature and scope of pollution being released in their areas. The TRI can be accessed via the Internet at http://www.epa.gov/opptintr/tri/index.htm.

148. The SFIP website, located at http://es.epa.gov/oeca/sfi/index.html, synthesizes environmental records from several data sources into a system that makes it easier for the public, private sector, and government to access facility-level environmental records on a sector basis. From national databases, the SFIP identifies permits and data records associated with facilities in the following five industrial sectors: (1) Petroleum Refining; (2) Iron and Steel; (3) Primary Nonferrous Metals; (4) Pulp Mills; and (5) Automobile Assembly. EPA plans to expand the amount of data fields in the project and possibly expand the project to include new sectors.

149. As part of EPA's national effort to improve public access to the agency's information resources, the Center for Environmental Information and Statistics (CEIS) now provides this "one-stop" source of data and information on environmental quality, status, and trends. The CEIS website can be found at http://www.epa.gov/ceis/.

150. Brennan, supra note 27, at 54.

151. DORE, supra note 124, § 12.04.

152. See, e.g., Zelezneck v. United States, 770 F.2d 20, 22-23 (3d Cir. 1985).

153. See, e.g., Rose v. A.C. & S., Inc., 796 F.2d 294, 296-98 (9th Cir. 1986).

154. Chapin, supra note 116, at 133.

155. Tamsen D. Love, Deterring Irresponsible Use and Disposal of Toxic Substances: The Case for Legislative Recognition of Increased Risk Causes of Action, 49 VAND. L. REV. 789, 809 (1996).

156. Id. at 810.

157. Id. at 809-10; Rabb v. Orkin Exterminating Co., 677 F. Supp. 424 (D.S.C. 1987).

158. DORE, supra note 134, § 7.07[2].

159. See generally Wells, supra note 117, at 309-19.

160. Id. at 315.

161. Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 19 ELR 20404 (6th Cir. 1988); Brafford v. Susquehanna Corp., 586 F. Supp. 14 (C.D. Colo. 1984); Love, supra note 155, at 807.

162. Love, supra note 155, at 808.

163. Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993).

164. Dartex v. Fiberboard Corp., 765 F.2d 456 (5th Cir. 1985).

165. See generally Wells, supra note 117, at 294-310.

166. See Ayers v. Township of Jackson, 525 A.2d 287, 17 ELR 20858 (N.J. 1987).

167. In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 851 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991).

168. DORE, supra note 134, § 7.05[1].

169. Wells, supra note 117, at 294.

170. Gail L. Wurtzler, Proximal Fear, ARIZ. J. (Envtl. L. supp.). July 1998, at 14.

171. Id.; DORE, supra note 134, § 7.09.

172. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1212-13, 19 ELR 20404 (6th Cir. 1988); Allen v. Uni-First Corp., 558 A.2d 961 (Vt. 1988).

173. See Andrew N. Davis & Santo Longo, Stigma Damages in Environmental Cases: Developing Issues and Implications for Industrial and Commercial Real Estate Transactions, 25 ELR 10345 (July 1995).

174. 33 Cal. 2d 80, 199 P.2d 1 (1948).

175. DORE, supra note 124, § 6.04; Harris, supra note 127, at 931.

176. Harris, supra note 127, at 939.

177. Id.

178. Id.

179. RESTATEMENT (SECOND) OF TORTS § 433A (1977).

180. Michie v. National Steel Corp., 495 F.2d 213 (6th Cir. 1974), cert. denied, 419 U.S. 997 (1974).

181. Affidavit of Lawrence G. Miller, M.D., M.P.H., Baker v. Motorola, Inc. (No. CV 92-02603) (Sup. Ct. Ariz., filed Feb. 10, 1994).

182. States that have retained the traditional rule of joint and several liability include: Alabama, Arkansas, Delaware, Maine, Maryland, Massachusetts, North Carolina, Pennsylvania, Rhode Island, South Carolina, Virginia, and West Virginia.

183. Jean M. Eggen, Understanding State Contribution Laws and Their Effect on the Settlement of Mass Tort Actions, 73 TEX. L. REV. 1701, 1717-18 (1995).

184. Id.

185. See Amold. W. Reitze Jr., The Legal Control of Indoor Air Pollution, 25 B.C. ENVTL. AFF. L. REV. 247 (1998); C.A. Hanrahan & J. Beires, Indoor Air Quality in the Office Environment: An Expanding Area of Toxic Tort Litigation, 9 TOXICS L. REP. (BNA) 142 (July 6, 1994).

186. DORE, supra note 124, § 3.08[1].

187. Wade v. Johnson Controls, Inc., 693 F.2d 19 (2d Cir. 1982).

188. See 29 C.F.R. § 1910.1000 et seq. (1997).

189. See Pedraza v. Shell Oil Co., 942 F.2d 48 (1st Cir. 1991), cert. denied, 502 U.S. 1082 (1992).

190. DORE, supra note 124, § 9.01.

191. RESTATEMENT (SECOND) OF TORTS § 908 (1977).

192. Orjias v. Louisiana-Pacific Corp., 31 F.3d 995, 1013 (10th Cir. 1994), cert. denied, 513 U.S. 1000.

193. Id.

194. 500 F. Supp. 984, 989 (1980).

195. "[T]he obligation of the enterprise extends not only to observation of property in the surrounding region but also to initiation and completion of unbiased scientific studies designed to detect the potential adverse effects of the substances emitted." Id. at 990.

196. Id. at 989.

197. Id. at 1022.

198. Id. at 1022-23

199. See Drazan, supra note 120, at 10301.

200. See, e.g., Lemler v. Nevada Cement Co., 2 ELR 20176 (D. Nev. 1971) (assessing $ 1,865,298.31 in damages, including $ 1.4 million in punitive damages, against a cement factory that knowingly operated in a manner that permitted 27,000 pounds of cement dust to be released into the air each day).

201. Rietze, supra note 79, at 1562.

202. See, e.g., FED. R. CIV. P. 26; ARIZ. R. CIV. P. 26.1.

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