A CHEMICAL WASTE LIABILITY
PRIMER
John H . Skotnik
for
Professor Frank F . Skillern
March 1 , 1984
m i
m
TABLE OF CONTENTS
A CHEMICAL W A S T E L I A B I L I T Y PRIMER
Introduction
1
I . W h o D o Y o u Sue?
1
II.
H o w D o You Sue?
A . Theories
2
1. Nuisance
2
2. Negligence
3
3 . Trespass
3
k . Strict Liability
4
5 . Other T h e o r i e s
4
B . D a m a g e s and Their M e a s u r e
III.
IV.
1. Compensatory Damages
6
2. Punitive'Damages
7
W h e r e Do Y o u Sue?
8
Defenses
A . The U s u a l
9
B . The U l t i m a t e D e f e n s e
V.
10
W h a t A b o u t Super fund?
11
Footnotes
13
GfilQ 2
A CHEMICAL WASTE LIABILITY PRIMER
In a legal education, you learn that you can sue anyone.
However, "being successful and. m a k i n g a recovery is the true
measure.
Nowhere is this more important to remember than in
the field of environmental l a w .
Environmental law is quickly becoming one of the m o s t
1
interesting and complex areas of l a w .
This fact is literally
being forced upon the public by the continuing discoveries of
chemical dumps, close to population centers.
Sheer numbers of the dumps, estimated at 51>000 and growing
2
in 1979>
force the public and attorneys to come to grips with
the problems both practically and legally.
Costs of a single
relocation, n o t a clean-up, can be astounding.
A t Times B e a c h ,
M i s s o u r i , alone the relocation costs paid from Superfund (the
Comprehensive Environmental Response, Compensation and Liability
A c t , 42 U . S . C . A . 9 6 0 I et seq., also called CERCLA) w a s over
$33 m i l l i o n .
Consider that the Hazardous Response Trust Fund
4
of Superfund
is authorized a yearly appropriation of only
million.
Government systems designed to provide cleanup costs and
compensation funds are somewhat akin to victim compensation
programs in criminal l a w .
The former will run out of funds
and face the same problems of the latter.
Therefore, the need
for environmental suits by injured parties will grow in importance
in an effort to compensate for losses not covered by statute.
I . Who Do You Sue?
Basically, you sue the "person"-^ responsible for, o.r who
0 0 1 9.°
proximately caused your i n j u r i e s , whether to you personally or
to your p r o p e r t y .
Whether the defendant is one or m a n y and whether
you can determine who harmed y o u , m a y determine how y o u sue.
If chemical waste from a d j o i n i n g property injures the
plaintiff, he should seek to sue b o t h the current and previous
owners of such p r o p e r t y .
s
The R e s t a t e m e n t (Second) of Torts
s 366 m a k e s the current owner liable if he knew or should have
k n o w n of the danger of the w a s t e .
This should be valuable to the plaintiff in cases where
injury occurs today, b u t
the w a s t e w a s generated long a g o .
It w o u l d help also where the generator of the waste no longer
owns the property from which it came or where the generator
no longer exists.
I I . How Do You Sue?
A . Theories
Generally, if you are i n j u r e d , you m a y seek redress
under any suitable remedy a v a i l a b l e .
This remains true, provided
there is no express statutory r e m e d y or preclusion of r e m e d y .
1 . Nuisance
Nuisance m a y be the m o s t used theory of common law liability.^
It is classified into two forms, either public or
private.
A public nuisance is an unlawful act or omission
affecting an indefinite number of people at the same time, that
7
arises out of a violation of public r i g h t s .
A private nuisance i s , "an invasion of a person's interest
in the private use and enjoyment of land by any type of liaQ
b i l i t y forming conduct..."
Such is a tort against the person
and is actionable b y h i m .
2 . Negligence
Negligence is the failure of a person to use care or to
do that which an ordinary, r e a s o n aQ b l e , prudent person would
in the same or similar s i t u a t i o n .
P u t another w a y , negligence
i s , " . . . conduct which f a l l s below the standard established by
law for the protection of others against unreasonable risk of
harm."
W i t h negligence, the law recognizes that the person harmed
11
m a y b r i n g suit for damages caused by p o l l u t i o n .
This alone
would seem to limit recovery to provable or compensatory
d a m a g e s , so it is important to plead m o r e than m e r e n e g l i g e n c e .
A s will become clear l a t e r , the person who seeks to use
n e g l i g e n c e as a theory in his cause of action should allege
intent on the defendant's p a r t .
The plaintiff should allege
more specifically, malice or w i l f u l , wanton or reckless n e g l i g e n c e ,
which implies a conscious indifference on the defendant's p a r t .
N e g l i g e n c e of this sort should be plead as a theory of first
choice or at least as an a l t e r n a t i v e .
3 . Trespass
Trespass is an "... unlawful interference with one's person,
12
. . .
p r o p e r t y , or rights."
M o r e simply, it creates legal liability
for damages that result from entrance onto the land of someone
else.
Physical entry by a person is n o t n e c e s s a r y , pollution
3
f\m
"by air or physical contact with the land will suffice.
Trespass differs from m e r e negligence since it does n o t
require the plaintiff to show carelessness of the d e f e n d a n t .
H o w e v e r , like the w i l f u l , wanton or reckless n e g l i g e n c e , w h i c h
requires consciousness of the action, trespass requires the
plaintiff to show intent on the part of the d e f e n d a n t .
This
is very important as to- damages and to recovery, as trespass is
also a theory of c h o i c e .
4 . Strict Liability
Strict liability is liability regardless of fault or irrespective of n e g l i g e n c e , on the p a r t of the d e f e n d a n t .
This
theory is n o t favored in all states, b u t m a y apply if the state
regards the activities of the defendant as "ultrahazardous"
13
or "abnormally d a n g e r o u s " .
The defendant in these cases is m a d e to pay for all damages
which occur, even though he is n o t careless and even though
he does n o t act i n t e n t i o n a l l y .
He is allowed to continue in
h i s conduct because of
14 its presumed social utility;
be enjoined to stop.
he cannot
This theory m a y allow some recovery, but
it is weak because it constitutes its own d e f e n s e .
5 . Other Theories
a.
"Concert of action involves tortious conduct b y a
d e f e n d a n t who acts with others or pursuant to a common d e s i g n .
Defendants who are properly joined under this theory are each
jointly
. . . and15 severally liable to the plaintiff for all of his
injuries."
4
(101 %
b.
"Enterprise liability ... seeks to address the situation
16
where an industrywide practice m a y be harmful."
If it can
be shown-that the plaintiff w a s injured, as a result of a
groups' breach of duty to h i m , and he cannot identify who
caused i t , the burden of proof shifts to the d e f e n d a n t s .
All
of the possible defendants need n o t be joined, b u t among those
joined, each will be held strictly, jointly, and severally
liable, unless they can prove that they caused no h a r m .
c.
Alternative damages is a well recognized theory w h i c h
applies in a situation where two or m o r e defendants have acted
in a w a y which m a y have caused injury to the p l a i n t i f f , b u t i t
is n o t possible to 17decide w h i c h of the defendants' actions w a s
m
fact the c a u s e . '
In such cases, b o t h or all of the d e f e n d a n t s
are liable for the plaintiff's i n j u r i e s .
d.
M a r k e t - s h a r e liability is a theory which holds i t to be
unjust for a plaintiff to go w i t h o u t relief m e r e l y b e c a u s e , as
a result of a passage of time, which w a s n o t the plaintiff's
fault, i t is impossible for him to identify the specific
18
tortfeasor.
This theory shifts the risk of loss to the group
of potential defendants which created the type of problem and
it holds each liable in proportion to its m a r k e t share.
This
theory " . . . results in liability b e i n g imposed on m a n y companies
that had nothing to do with the p l a i n t i f f .
... it avoids the
harsh
result ofof action
joint and
and alternative
several liability,
which
exists 19
under
the concert
liability
theories."
5
(MM
B . Damages and Their Measure
1 . Compensatory Damages
A person injured b y chemical wastes is generally entitled
to receive damages in compensation for his l o s s .
The damages are
m e a s u r e d and based m o s t often on the plaintiff's demonstrable l o s s ,
including property damage and personal i n j u r y .
That is n o t to
say that a plaintiff c a n n o t recover for damages that are
20
incapable of exact m e a s u r e m e n t .
Damages, are often in compensation for permanent injury to
property.
The measure of damages there m a y be the difference
in value of the property before the injury and the value after
the i n j u r y .
Occasionally, the repair costs w i l l be the m e a s u r e
of d a m a g e s , if they are m o r e r e p r e s e n t a t i v e .
Damages m a y take into a c c o u n t the value of any crops or
other products of the l a n d , such as grass or t i m b e r .
This, of
course, m a y be a permanent injury or a temporary one for only
a season or set period of time.
In the latter situation, the
rental value of the property m a y be a valid measure of d a m a g e s .
Damage to persons is considerably more i n v o l v e d .
It can
include loss of earning capacity, loss of functions, pain and
suffering- p a s t , present, and f u t u r e , among others.
These can
often be measured based on actuarial data and similar i n f o r m a t i o n .
M e d i c a l expenses are compensable and for the m o s t p a r t are
readily m e a s u r e a b l e , even into the f u t u r e .
A n economist
m a y prove m o s t valuable in figuring damages in this c i r c u m s t a n c e .
6
m m s
2 . Punitive Damages
"Exemplary or punitive damages are generally defined
...
as damages w h i c h are given as an enhancement of compensatory
d a m a g e s , because of the w a n t o n , reckless, m a l i c i o u s , or oppressive
character of the acts complained of." 21
Punitive damages m u s t
be sought with compensatory damages, there is no independent
22
cause of action for punitive d a m a g e s .
This squares with a m o r e liberal rule of damages in cases,
w h e r e malice or similar elements are p r e s e n t .
Under this rule,
" . . . the wrongdoer will be held responsible for the injuries
which he has directly c a u s e d , though 23they lie beyond the limit
of n a t u r a l and apprehended results."
The plaintiff m u s t
specifically plead and prove this wantonness or m a l i c e if he
w a n t s punitive damages.
The importance of this will be clear
later.
The level of punitive damages depends on the defendant and
the injury i n v o l v e d .
O b v i o u s l y , w h a t is a painfully large sum
for a small owner operated company is nothing to a corporate
giant, so the punitive damages would have to be m a r k e d l y greater
to have the same detrimental effect on the g i a n t .
Punitive damages for injury to one's car w i l l n o t be as
justifiable or called for as they would be in the case of
permanently laying waste to 200,000 acres of choice farm l a n d .
C l e a r l y the need for punitive damages is greater in the latter
and would require a much higher sum to have the desired effect
on the d e f e n d a n t .
7
fio:
I I I . Where Do You Sue?
Very simply, you sue in state court.
24
R o d g e r s felt w a s u n c l e a r ,
What Professor
that is whether a citizen could
m a i n t a i n an action to recover m o n e y damages for environmental
injuries in federal court, has b e e n r e s o l v e d .
The Supreme
Court has essentially held that in areas " . . . in which the
federal government has enacted comprehensive regulatory programs
26
..."
n o federal common law is a v a i l a b l e .
This effectively
p r e c l u d e s m a i n t a i n i n g environmental actions in federal c o u r t s .
A violation of Resource Conservation and Recovery A c t of
I976 (RCRA) or Superfund requirements m a y give rise to liability
for costs and fines to the government, b u t
neither creates a
cause of action for damages for a injured plaintiff in federal
court.
"Furthermore, the federal courts are reluctant to imply
private
rights
of action
statutes
whereat Congress
27' F o r tfrom
has
created
none."
u n a t eremedial
l y , causes
of action
the state
28
level have b e e n p r e s e r v e d .
A l l of the causes of action mentioned earlier fit into the
courts at the state l e v e l .
Some states have enacted specific
statutues dealing with hazardous chemical w a s t e s .
Rhode Island
for instance, imposes liability for "... all damages, l o s s e s , or
injuries..." resulting from improper disposal of hazardous w a s t e ,
while North Carolina and Alaska provide strict
2g liability for
personal injuries in hazardous waste cases.
Even with
these, it should be assumed that one is n o t precluded from
m a i n t a i n i n g a separate cause of action under any applicable
tort theory w h i c h is available in the particular s t a t e .
A t the state level, one m u s t k e e p in mind the statute of
limitations.
When it is tolled and how long it lasts, v a r i e s
from state to state.30
I V . Defenses
A . The U s u a l
Obviously, the defendant w i l l seek to use anything he can
find in his own d e f e n s e .
In ultrahazardous activity under
strict liability, the defendant w i l l use the b a l a n c i n g of interests
of the public utility of his service versus the particular h a r m .
A s noted earlier, he is fairly safe with this defense, since he
31
cannot be enjoined to cease o p e r a t i o n s .
In other cases, the defendant m a y seek to use the "state
of the art" d e f e n s e .
That i s , he w i l l say that he w a s doing all
that he could under the current state of control technology.
Similarly, he m i g h t argue that he w a s m e e t i n g the current
standards or requirements under the l a w .
The last argument trails along the lines of, "I w a s just
f o l l o w i n g orders," and it f a i l s .
Fulfilling requirements m a y
satisfy a defendant's public duty, b u t it m a y violate a private
duty to the p l a i n t i f f .
In n e g l i g e n c e , n u i s a n c e , and trespass
a c t i o n s , it is no defense
32 that the defendant was complying with
permits or r e g u l a t i o n s .
D o u b t l e s s , there are other defenses available, b u t one m u s t
n o t forget he m a y be barred b y the statute of l i m i t a t i o n s .
9
The plaintiff m u s t also remember that he is precluded from
b r i n g i n g a successful action in federal courts in environmental
33
situations.
B . The Ultimate Defense
B a n k r u p t c y , under whatever chapter, seems the ultimate
defense in an environmental suit.
It is n o t really a true
defense and it does have some h o l e s in i t , b u t it is in vogue
for avoiding contracts and staying suits and
judgments.
Surely,, it will find its w a y farther into the environmental
law f i e l d .
Perhaps it w i l l n o t be a viable alternative
for
a corporate g i a n t , b u t smaller polluters m a y find it i n v i t i n g .
If the plaintiff in an environmental action finds that
his defendant has taken refuge in bankruptcy, w h a t w i l l happen?
It depends on when the d e f e n d a n t filed for b a n k r u p t c y .
If the plaintiff secured a favorable judgment b e f o r e n i n e t y
days prior to the defendant's f i l i n g , he should record
the
judgment to attach a judicial lien to the defendant's p r o p e r t y .
If the plaintiff does this, he w i l l be in the position of a
secured judicial lien creditor ahead of other priority c r e d i t o r s .
If he does n o t record the judgment and secure a l i e n , he will
be reduced
to the status of a general
unsecured creditor, last
3
in line for the debtor's m o n e y . ^
Even if the plaintiff-creditor
secures a l i e n , the defendant debtor m a y still be able o to
avoid
C
it, if the lien falls within an exemption of the code.
The plaintiff m a y see his defendant file for b a n k r u p t c y
before a suit can commence or before a judgment can be had
n i n e t y days prior to the f i l i n g .
In that case, the suit is
10
2
Ik
automatically stayed, or the judgment is stayed. 37
The plaintiff
is then out in the cold.
It would seem that b a n k r u p t c y could easily discourage the
plaintiff.
Y e t , there is h o p e .
A s noted earlier, it is
important for the plaintiff to plead a cause of action which
includes compensatory and punitive damages.
The punitive damages
are the k e y , since they necessitate the proof of w i l f u l , wanton
or r e c k l e s s , or m a l i c i o u s i n t e n t .
W i t h that p r o v e n , the debtor is n o t discharged b y b a n k r u p t c y
op
no m a t t e r w h a t chapter he filed u n d e r .
N o t e , a claim based
upon m e r e negligence is n o t enough, the "... creditor m u s t
demonstrate subjective conscious intent of the debtor to violate
39
the creditor's k n o w n r i g h t . . . " .
7
F u r t h e r , if the court does n o t
award punitive damages, even if the defendant-debtor is found
liable for them, the judgment is dischargeable.
The importance of timely filing of suit cannot be overemphasized.
The original cause of action should include asking
for punitive damages and p r o v i n g wilful n e g l i g e n c e .
Any
judgment
should be promptly r e c o r d e d , according to the relevant statute.
Of course, all of this w i l l go for n a u g h t , if the defendant is
alert to the date of filing of suit and is eligible and willing
to choose bankruptcy as h i s "defense".
V . What A b o u t Superfund?
Superfund m a y be useful to the federal government for
clean-up of chemical w a s t e s , b u t it is inadequate as far as
11
37
aiding the private citizen in an environmental s u i t .
It,
as w e l l as m o s t other environmental acts, is m e r e l y a political
42
football subject to yearly r e v i e w .
From the b e g i n n i n g , Superfund w a s emasculated and in no
way w a s it the comprehensive law that its name i m p l i e s .
It
contains no provision for citizens to recover damages from
waste d u m p e r s .
Its funding is inadequate
in light of the costs
43
of cleanup of the usual waste s i t e .
The law, C E R C L A , does contain the framework for a strong
aid to citizen suits.
I t establishes within the Public Health
Service an agency 44known as the A g e n c y for Toxic Substances and
Disease R e g i s t r y .
This w a s recommended by the section 301(e)
Study G r o u p , and has been called for b y some authors,
all
of whom seem to have overlooked it in the original l a w .
U n f o r t u n a t e l y , funding for the R e g i s t r y is n o t mentioned in
CERCLA.
A s a w h o l e , the Superfund is a m i s n o m e r , useless to the
private citizen.
The private plaintiff is left with only state
common law to seek recompense for chemical waste damage and
injury.
Even that m a y n o t b e enough, since the same federal
government that denied him a federal cause of action has created
an escape for the defendant who m a y be found liable in state a c t i o n s .
Environmental plaintiffs m u s t operate in the real w o r l d .
A s such, they m u s t be familiar with their state's statutes and
common l a w .
The federal courts are n o t available and federal
statutes are w o r t h l e s s , at the environmental l e v e l .
12
«(>?ft4
FOOTNOTES
1.
Dusberger, Trends in Environmental L a w , 57 Chi-Kent L . R e v . 161,
2.
=
=
189 (Wntr I 9 8 I ) .
~ ~
Environmental Reporter-Current Developments (BNA) 905 (8-3-79).
3.
7.
8.
9.
Environmental Reporter-Current Developments (BNA) 1886 (2-25-83).
4~2 U . S . C . s 9631(b)(2) (1980).
4-2 U . S . C . 1 9 6 0 I (21) ( I 9 8 0 ) .
Hall, The Problem of Unending Liability for Hazardous Waste
Management, 38 B u s . L a w . 5 9 3 , 608 (Feb I 9 8 3 ) .
Black's Law Dictionary 9 6 T (5th e d . I979).
Id.
I d . at 9 3 0 .
10.
11.
12.
See, e.g., H a l l , supra note 6, at 6 0 7 .
I d . at 608.
See note 7 supra, at 1347.
13.
14.
15.
16.
17.
18.
F . Grad, Treatise on Environmental L a w , 4A-175 ( I 9 8 3 ) .
J . Landau & P . Rheingold, The Environmental Law Handbook, 33 (I971) .
e . g T , Hall*~supra n o t e 6 , "at 6 1 0 .
~
~
I d . at 611.
I d . at 610.
Sindell v . A b b o t t Lab., 26 C a l . 2d 588, 607 P.2d 924, cert.
denied 449 U . S . 912 ( I 9 8 O ) .
19.
20.
21.
22.
See, e.g., H a l l , supra note 6, at 6 1 2 .
61A A m . J u r . 2d Pollution Control 1 552 ( I 9 8 I ) .
22 A m . J u r . 2d Damages 1 236 ( I 9 8 3 ) .
Id."
~
23.
24.
25.
I d . at §82.
W . Rodgers, J r . , Environmental Law, 84 ( I 9 7 7 ) .
California v 7 Sierra Club, 451 U . S . 287 ( I 9 8 I ) ; City of Milwaukee
v . Illinois, 451 U . S . 304 ( I 9 8 I ) ; EPA v . National Sea
Clammers Association, 453 U.S. 1 ( I 9 8 I ) .
F . Skillern, Environmental Protection: The Legal Framework,
~ 58 (l983~Supp.) .
See, e.g., Hall, supra note 6, at 606.
6 ..
26.
27.
Footnotes Continued
28.
2
9•
Id,
30.
3l«
32.
33.
34.
R - I . G e n . Laws 1 23-19-1 (1979)i N . C . Gen. Stat. 11 143-215.77,
215-93 (1978); Alaska S t a t , s 46.03.822 ( I 9 8 I ) .
F . Grad, supra note I 3 , at 3-A-153-159.
J . Landau & P . Rheingold, supra note 14.
"SeeT e.g., Hal 1*7* supra note 6 , at 608.
See note 25 supra.
11 u . s . c . I 507 ( 1 9 8 3 ) .
35.
36.
Id.
I d . s522 (f) (1) .
37.
38.
Id. s 362.
Id. 1 5 2 3 ( a ) ( 6 ) .
39.
40.
41.
42.
43.
44.
9A A m . J u r . 2d Bankruptcy 1 805 (1983).
Id~
Environmental Reporter-Current Developments (BNA) 742 (10-1-82).
I d . at 1518 (1-7-83)•
See note 3 supra.
42 U . S . C . I 96o4(i) ( I 9 8 0 ) .
45.
Glotta & Sherman, Learning from the Lessons of the Asbestos Tragedy;
A Reform Proposal, Trial 19( 11) 68,72, (November I 9 8 3 ) .
Oft?ftfi