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Lecture #8 Totic Torts & RCRA/CERCLA
Julie King Baylor University Environmental Law
Undergraduate 4

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***generally refer to a common law cause of action to seek recovery when one party has been injured by another
***can be intentional or negligent
Toxic torts
***a growing area of legal liability for injuring others by releasing toxic substances is generally referred to as toxic torts
***a variety of legal theories are used in toxic tort cases
***most common theories are negligence and strict product liability
***plaintiff will often file a complaint alleging both of these causes of action
***legal causes of action have elements that must be proven
***negligence elements
*defendant owed a duty of care to the plaintiff
*defendant failed to meet this duty of care
*failure caused injury to the plaintiff
*plaintiff suffered a compensable injury
***in toxic tort cases, defendant has a duty to warn plaintiffs/general public of known or knowable dangers resulting from specific uses of the product
Strict product liabilty
***a form of strict liability applicable when consumers are injured by products containing toxic substances
***theory of strict product liability
*one who sells any product in a defective condition, unreasonably dangerous, to the user or consumer or to his property is subject to liability for the physical harm caused if
**the seller is engaged in the business of selling such a product
**it is expected to reach the consumer without substantial change in the condition in which it is sold
***when does a product become unreasonably dangerous?
*varies by state court interpretation
*consumer expectations test--if more dangerous than the reasonable consumer would expect it to be, then it is unreasonably dangerous
*feasible alternatives test--were there other, less dangerous, feasible alternatives available?
***in any legal theory of liability for injury by toxic substances, the plaintiff must establish that the defendant's conduct/product caused the plaintiff harm
***proof is difficult--difficult to link the toxic substance definitively with the physical problem plaintiff suffered
***enterprise or market share theory
***compensatory damages--compensate the plaintiff for medical bills, lost wages, pain and suffering, and are designed to put the plaintiff back in the position they would have been in if they had never been exposed to the toxic substance
***punitive damages--punish the defendant when their conduct was "extremely egregious" or "willful and wanton"
***punitive damages deter others and encourage compliance with testing
Fischer vs. Johns-Manville Corporation
***asbestos case
***trial court awarded the plaintiff damages for exposure 40 years earlier
***appellate court found that Johns-Manville's conduct "knowingly and deliberately" subjected the plaintiff and other asbestos workers to serious health hazards with disregard for their safety and well-being
***six minerals are defined by the EPA as "asbestos," including chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite
***asbestos and all commercial forms fo asbestos are known to be human carcinogens based on sufficient evidence of carcinogenicity in humans
***because of its fiber strength and heat resistant properties, asbestos has been used for a wide range of manufactured goods, mostly in building materials, friction products, heat-resistant fabrics, packaging, gaskets, and coatings
***when asbestos-containing materials are damaged or disturbed by repair, remodeling, or demolition activities, microscopic fibers become airborne and can be inhaled into the lungs, where they cause significant health problems
Waste control and management
***landfills are the primary waste management tool
***waste in landfills may become hazardous or migrate to groundwater, surface water, or air
***alternatives are reduce, reuse, and recycle waste
***by 2010, recycling rate increased 34.1%, EPA goal is 35%
Resource Conservation and Recovery Act (RCRA)
***RCRA establishes the framework for a national system of solid waste control
***addresses hazardous and nonhazardous waste
***solid waste includes solids, liquids, and gases under RCRA
***Under 1984 Hazardous and Solid Waste Amendments (HSWA), each state is required to prepare a solid waste management plan and also implement a permit program for solid waste management facilities that receive hazardous waste
Hazardous waste
***RCRA specifies solid waste will be considered hazardous waste if
*it causes or significantly contributes to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or
*it poses a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed
***identified either by characteristic or by listing
***generator is responsible for determining whether it is producing solid waste and whether that waste has a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity
***solid wastes are also considered hazardous if EPA has listed them on 1 of 4 lists developed to identify hazardous waste
***under RCRA, hazardous waste needs to be tracked from the point of generation (cradle) to its ultimate fate (grave)
***waste generator is responsible for identifying whether a material is a waste and whether it is hazardous and must ensure that the waste is handled appropriately even after it leaves the facility
***waste being sent off-site must be listed on a waste manifest, the manifest goes with the transporter
***waste manifests are provided by the transporter to the waste treatment, storage, or disposal facility (TSDF)
***all hazardous waste TSDFs are required to obtain a permit; new TSDFs must obtain permit before they begin operating
***permitting process is complex and allows for public review--leads to Not in My Backyard (NIMBY) syndrome
Solid waste
***definition of solid waste has expanded over time
***EPA has exempted 3 kinds of materials from the definition of solid waste based on its subsequent use
*directly in a production product
*as a direct substitution for a commercial product
*if it is returned to the production process as a feedstock
*in all three cases, the material must be used without reclamation
RCRA violations
***criminal liability--must prove that the violator committed the act knowingly; not required for civil liability
***criminal sanctions can result in fines and imprisonment
***EPA also may pursue civil action to obtain compliance with RCRA--including injunctive relief, fines, and daily penalties for noncompliance
***Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) was passed in 1980
***provides mechanisms for reacting to emergency situations and to chronic hazardous material releases
***Superfund Amendments and Reauthorization Act of 1986 (SARA) includes 3 subtitles:
*Subtitle A--emergency planning
*Subtitle B--hazardous chemical reporting
*Subtitle C--public access to facility information
***state and local govts. are required to develop emergency response and preparedness plans
***every state must have an emergency response commission
***each local planning committee is required to prepare comprehensive emergency response plans
***Toxic Release Inventory (TRI) is made available on EPA's web site to give the public information about risk from chemicals
Contaminated sites
***before CERCLA, the federal govt. could not do much about responding to a hazardous material spill or a site contaminated with hazardous material
***under CERCLA, there are removal actions to stabilize or clean up a hazardous site and remedial actions to provide permanent remedies
***the Hazardous Substances Response Trust Fund, or Superfund, was established in 1980 to finance emergency response and remedial response activities
***the fund was intended to be a rotating fund--funds incurred in cleanup would be recovered from responsible parties (potentially responsible parties--PRPs)
National Priorities List
***under CERCLA, contaminated sites are scored on the basis of potential exposure to surface water, groundwater, air, and soil
***sites scoring high enough are listed on the National Priorities List (NPL)
***only NPL sites are eligible for remedial action
***EPA is not obligated to clean up sites in any particular order
***liability of PRPs is retroactive, so that companies are responsible for their hazardous substances regardless of the time of disposal (or whether they were in compliance at the time of the disposal)
***courts have extended the Superfund liability broadly to ensure that Superfund is replenished
***CERCLA does not replace common liability under toxic tort laws
***new industry is reluctant to site facilities in preexisting industrial sites because of the wide net of liability under CERCLA
***EPA has encouraged redevelopment of contaminated sites through its Brownfield Economic Redevelopment Initiative
***EPA may agree to a covenant not to sue a prospective developer to allay liability concerns
Underground Storage Tank Program
***most Underground Storage Tanks (USTs) in the U.S. are gasoline tanks, sometimes other flammable industrial chemicals
***leaks in USTs can contaminate groundwater
***EPA specifically regulates USTs and in 1998, completed a comprehensive review of UST Regulations
***the Energy Policy Act of 2005 included the Underground Storage Tanks Compliance Act, which strengthened control of USTs
***amendments include periodic inspections of tanks, training requirements for operators, and protections for drinking water
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