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21 ELR 20677 | Environmental Law Reporter | copyright © 1991 | All rights reserved Keister v. Vertac Chemical Corp.No. LR-C-87-236 (E.D. Ark. November 14, 1990)The court holds that medical monitoring costs are not recoverable as necessary costs of response under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Former employees of a chemical plant have demonstrable levels of 2,3,7,8-TCDD dioxin in their blood, which they claim was caused by exposure to the chemical at the defendants' plant, and seek recovery of their medical monitoring costs of about $ 1,850 per year per person. The court holds that CERCLA's plain language and implementing regulations contemplate only the cleanup of toxic substances from the environment and not individual medical testing and monitoring. Furthermore, CERCLA's legislative history indicates that Congress did not intend to provide for a cause of action for medical expenses. The court notes that Congress specifically deleted such provisions from CERCLA § 107 and created the Agency for Toxic Substances and Disease Registry to address the need for medical testing arising out of a release of toxic substances. Counsel for Plaintiffs Gary Davis Counsel for Defendants Kevin Harrington, Emma V. Verdieck Forster, J.: As part of the Court's disposition of this mammoth case the magistrate reserved for judicial determination the Plaintiffs' claims for medical monitoring costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq. Plaintiffs Billy Honey and Freelyn Ray are former employees of both Hercules, Inc. and Vertac; Plaintiffs Robert Conard, Don Hood, Michael Pickens and Dorris Yardley were formerly employed by Defendant Vertac; Plaintiffs Jetta Bailey, Carolyn Honey and Willa Jordan are relatives of former employees who frequented the chemical plant during their relatives' tenure there. All of the Plaintiffs have demonstrable levels of 2,3,7,8-TCDD dioxin in their blood, which they maintain emanated from the chemical plants owned or operated by Defendants Hercules (1961-71) and Vertac (1972-87). During the trial of this case from August 9, 1990 to October 4, 1990, some proof was made that these Plaintiffs have undergone (and should continue to undergo for the indefinite future) medical monitoring procedures which will amount to approximately $ 1,850.00 per year per person. Hercules manufactured 2,4-D and 2,4,5-T at the herbicide manufacturing plant in Jacksonville, Arkansas beginning in 1961. In 1971, Hercules ceased operating the Jacksonville site and leased it to Transvaal, Inc. which later changed its name to Vertac Chemical Corporation. Vertac continued the manufacture of 2,4,5-T. It continued manufacturing 2,4-D until 1987 when increased operations completely and closed the plant. There was no proof that any Plaintiff had been on the plant site since 1987. The issue before the magistrate is whether the just-described medical monitoring costs are recoverable under CERCLA, Section 107 (42 U.S.C. § 9607). Both the Plaintiffs and Defendants cite authority for their respective positions, all from outside of this circuit. Cases exemplifying the opposite poles of interpretation are Brewer v. Ravan, 680 F. Supp. 1176 [18 ELR 20799] (M.D. Tenn. 1988) (claim for medical screening and testing costs to assess the effect of release or discharge on public health allowed) and Coburn v. Sun Chemical Corp., 28 Env't. Rep. Cas. (BNA) 1668 (E.D. Pa 1988) (costs of medical screening and/or future medical monitoring not "necessary costs of response" under Section 107 of CERCLA, 42 U.S.C. § 9607(a)(4)(B).1 In a comprehensive and erudite opinion, the United States District Court for the District of Minnesota2 addressed the issue sub judice as well as many of the issues decided by the jury in this case. Werlein, et al v. United States of America, et al, No. 3-84-996 (U.S.D.C. Minn., September 4, 1990 WL 126555. Judge Renner reviewed all applicable case law and legislative history, and concluded that the more persuasive position is that medical monitoring costs are not "necessary costs of response" under CERCLA. Judge Renner was particularly persuaded by the creation of the Agency for Toxic Substances and Disease Registry, 42 U.S.C. § 9604(i)(1). He reasoned thus: Clearly, Congress was not ignorant of the potential need for medical testing arising out of a release of toxic substances. It chose to delete the medical provisions from section 9607, and to address testing concerns via section 9604(i). This Court's power and jurisdiction are limited by the terms of congressional statutes. Here, the Court cannot locate any authority in section 9607 to allow as a response cost the type of medical monitoring that plaintiffs seek. Werlein, et al. v. United States of America, et al., No. 3-84-996 (U.S.D.C. Minn., September 4, 1990) 1990 WL 126555 at pp. 47-48. The magistrate adopts Judge Renner's superb opinion for this Plaintiffs are not recoverable under section 107 of CERCLA. From the evidence adduced at the trial of the case, the magistrate doth find and conclude the following: I. Hercules manufactured 2,4-D and 2,4,5-T at the herbicide manufacturing plant in Jacksonville, Arkansas beginning in 1961. Hercules left the plant in 1971, at which time it leased the plant to Transvaal, Inc., which later changed its name to Vertac Chemical Corporation (hereinafter, both Transvaal, Inc. and Vertac Chemical Corporation will be referred to as "Vertac"). Vertac purchased the plant from Hercules in 1976. II. Vertac manufactured both 2,4,5-T and 2,4-D, among other things, at the plant. Vertac ceased manufacturing 2,4,5-T in 1979. It continued manufacturing 2,4-D until 1987 when it ceased operations completely and closed the plant. The plant has not operated since. III. Some undetermined amounts of 2,3,7,8 Tetrachlorodibenzo-p-dioxin, 2,4-Dichlorophenoxyacetic acid, 2,4,5-Trichloro-phenoxy-acetic acid, 2,4,5-Trichlorophenol, and other chemicals escaped from Defendant Hercules into the environment during the time that it owned and operated the Jacksonville, Arkansas plant from 1961-1971. The losses resulted from leaks, spills, and blow outs from the processing of chemicals to produce herbicide products, transfer of chemicals into a waste basis and cooling pond, disposal of waste materials, including toluene and methanol still bottoms, into trenches, and storage of waste materials on the plant site. Likewise, some undeterminable amounts of 2,3,7,8 Tetrachlorobenzo-p-dioxin, 2,4-Dichlorophenoxyacetic and, 2,4,5-Trichloro-phenoxyacetic acid, 2,4,5-Trichlorophenol, and other chemicals escaped from Defendant Vertac into the environment during the time that it leased the plant from Hercules from 1971-1976 and during the time that it owned and operated the plant from 1976 to 1987. The losses resulted from leaks, spills, and blow outs from the processing of chemicals to produce herbicide products, transfer of chemicals into a waste basin and cooling pond, disposal of waste materials, including toluene and methanol still bottoms, into trenches, and storage of waste materials on the plant site. IV. Plaintiffs Billy Honey and Freelyn Ray are former employees of both Hercules, Inc. and Vertac; Plaintiffs Robert Conard, Don Hood, Michael Pickens and Dorris Yardley were formerly employed by Defendant Vertac; Plaintiffs Jetta Bailey, Carolyn Honey and Willa Jordan are relatives of former employees who frequented the chemical plant during their relatives' tenure there. All of the Plaintiffs have demonstrable levels of 2,3,7,8-TCDD dioxin in their blood, which they maintain emanated from the chemical plants owned or operated by Defendants Hercules (12961-71) and Vertac (1972-87). During the trial of this case from August 9, 1990 to October 4, 1990, some proof was made that these Plaintiffs have undergone (and should continue to undergo for the indefinite future) medical monitoring procedures which will amount to approximately $ 1,850.00 per year per person. V. The jury found that Plaintiffs have no presently existing physical injuries, illnesses or ailments caused by their exposure to chemicals from the plant. I. The Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"), provides for the recovery, by private parties, of "necessary costs of response incurred [by that party] consistent with the National Contingency Plan." II. The plain language of CERCLA, including the definitions of "response," "removal," and "remedial action" contemplate only the clean-up of toxic substances from the environment and not medical testing and monitoring of individuals. III. The legislative history of CERCLA indicates that Congress did not intend to provide for a cause of action for medical expenses and, in fact, Congress specifically deleted such provisions from the statute. See, e.g., S.1480, 96th Cong. 2d Sess. §§ 4(a)(2)(A)-(G); H.R. 7020, 96th Cong. 2d Sess. § 3071(b); 126 Cong. Rec. S1494 (Daily Ed. Nov. 24, 1980) (remarks of Sen. Randolph); A. Gore, Jr., Additional Views for "Superfund" Report, reprinted in 1980 U.S. Code Cong. & Admin. News 6139, 6141; 126 Cong. Rec. H11791 (Daily Ed. Dec. 3, 1980) (remarks of Rep. Broyhill). IV. Federal regulations promulgated by the Environmental Protection Agency under CERCLA (the "National Contingency Plan" or "NCP") do not include references to costs of medical monitoring or testing as recoverable costs of "removal" or "remedial action." 40 C.F.R. §§ 300.65, 300.68, 300.71. V. Medical detection and monitoring costs such as those sought by Plaintiffs are not "necessary costs of response" recoverable under CERCLA. See Coburn, C.A. No. 88-0120 (E.D. Pa. Nov. 9, 1988) (Lexis 12548 at 9). The Clerk is directed to enter judgment on behalf of the Defendants consistent with the jury verdict and the foregoing opinion, findings and conclusions. IT IS SO ORDERED this 14th day of November, 1990. 1. Following rendition of his opinion in Coburn, Judge Werner certified the issue of characterization of the medical screening and future monitoring costs to the United States Court of Appeals for the Third Circuit. 28 U.S.C. § 129(b). The Court of Appeals denied the appeals. 2. The Honorable Robert G. Renner, United States District Judge. 21 ELR 20677 | Environmental Law Reporter | copyright © 1991 | All rights reserved |