REGULATORYFOCUS A compensation fund for hazardous waste injuries
Michael R. Deland A "Superfund study" just presented to Congress urging the establishment of a fund to provide for "no-fault compensation" for hazardous waste injuries is generating enough interest to guarantee it will be carefully considered by the next Congress. The release of the study could not have been more timely, following closely the announcement of the filing for bankruptcy by the Manville Corporation, the world's largest asbestos mining and manufacturing company. In its filing, Manville cited the burden of more than 16 500 asbestos-related lawsuits; and company consultants estimated that an additional 32 000 suits might be filed in the future. The company treasurer estimated that the litigation could result in awards ranging from $2 billion to many times that amount over the next 20 years. The Superfund study The report to Congress, entitled "Injuries and Damages from Hazardous Wastes—Analysis and Improvement of Legal Remedies," is almost 300 pages long, supported by a 400-page appendix. It was mandated by S. 301(e) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("Superfund") and conducted, as required by the statute, by an independent, blue-ribbon panel composed of 12 nationally known attorneys. The study group "reporter," professor Frank Grad of Columbia Law School,
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describes the hazardous waste problem as presenting "the legal system with a task which is unprecedented in its scientific and medical complexity and in its potential for major health and economic impact." The study group found that available remedies are inadequate in view of the substantial number of claims that may arise and the factual and legal complexities that will be involved in their litigation. The prime, "almost overwhelming," barrier to recovery is to prove the causal connection between exposure and injury. This is particularly difficult given that adverse health effects from many toxic substances may not appear for 15 or 20 years or even longer following exposure. The study further found that there are no federal statutes that provide remedies for personal injury due to hazardous waste in nonoccupational settings. Notwithstanding the sweeping nature of these findings, the report's recommendations caught many in the scientific and legal communities by surprise. The study proposes two separate remedies. The "Tier One" remedy would provide for a federal program of no-fault compensation for hazardous waste injuries to be managed by the individual states. The compensation fund would be patterned after Superfund and be established by contributions from or taxes on the producers of hazardous or toxic chemicals and crude oil and by a tax on the deposit of hazardous waste. The compensation plan would be analogous to Worker's Compensation and would provide full recovery for a person's medical expenses and recovery or approximately two-thirds of a person's loss of earnings, as well as death benefits for close surviving dependents. Among the controversial features of the Tier One proposal are that it reduces a claimant's burden of proof by establishing two kinds of "rebuttable
© 1982 American Chemical Society
presumptions." The first focuses on the issue of causation and the second includes issues such as the nature and extent of the disease or injury. In the interest of speeding the disposition of the claims, a majority of the study group also decided to leave it to the compensation agency to arbitrate proof of claims, rather than permit the parties allegedly responsible to participate in adversary proceedings. The granting or denial of a compensation award and its amount would then be subject to judicial review in the appropriate state courts. The "Tier Two" remedy would enable a claimant to proceed concurrently with a personal injury claim under existing tort law with the caveat that the Tier One compensation award be repaid out of any payment obtained from a Tier Two lawsuit. Ramifications of the report In 1981 Sen. George Mitchell (D-Maine), feeling strongly that "existing remedies are not adequate," introduced legislation (S. 1486) that would provide a cause of action for compensation for injured parties. The senator, concurring in the report's finding, plans to reintroduce his bill early in the next session. Meanwhile, in the House, Rep. Albert Gore (DTenn.) solicited testimony from members of the study group and called on industry to prepare its own proposals for a fund, stating "now is the time for discussion to begin." The prestige and independence of the study group's individual members, when combined with the thoroughness of their report, give the study instant credibility and ensure that it will be a catalyst for heated congressional debate. Deland writes this monthly column and is counsel to ERT, Concord, Mass.
Environ. Sci. Technol., Vol. 16, No. 10, 1982 553A
