REGULATORY FOCUS Toxic victims compensation legislation
Michael R. Deland
As predicted, the Superfund study, "Injuries and Damages from Hazardous Waste—Analysis and Improvement of Legal Remedies," kindled heated debate among scientists, lawyers, and legislators. (See "Regulatory Focus," ES& T, October 1982, p. 553A). Due at least in part to the study, Toxic Victims Compensation Legislation (TVCL) is a prime priority of the new Congress. Observers note that TVCL has the potential to have greater financial impact on industry than any other environmental legislation ever considered by Congress. Given these stakes, it is not surprising that a wide range of groups is conducting additional studies. Controversial questions The first question is to determine the nature and extent of the problem. One EPA study estimates that 90% of the 56 million tons of hazardous waste generated annually has been disposed of "inadequately" in the past. A Cleveland couple inadvertently highlighted the problem by the seemingly innocuous task of digging for a new barbeque grill only to unearth nuclear waste in their backyard. Ultimately they had to remove more than 5000 lb of radioactive material from their property. However, industry representatives maintain that the problem has never been accurately defined. They point out that the Superfund study began with the premise that there was a problem. The participants admittedly proceeded in "a setting of factual and
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scientific uncertainty" and recognized that it was "impossible to determine the number of persons who have been injured or who could be injured by exposure to such sites." The study further found that "it will be impossible to produce an accurate estimate of the number of hazardous waste injuries likely to emerge until. . . scientific advances produce better information about the relationship between exposure and injury." This question of causation, or the scientific basis for linking particular chemicals with compensable diseases, is the issue of paramount concern to the chemical industry. The Chemical Manufacturers Association (CMA) is now developing its position on TVCL proposals. Its first priority is the "overriding concern that liabilities in the public compensation area should be allocated so that we pay for only those injuries which may be fairly attributed to us." Among the other questions on which CMA has already stated its position is the issue of an administrative remedy for toxic victims compensation. CMA asserts that any such system should result in "exclusive recovery" by "preempting] state and federal tort law in the field." Concurrently the Office of Management and Budget (OMB) has prepared a draft paper that enumerates three approaches to the liability question. The OMB draft suggests enactment of a federal statute that would codify state common law to provide "greater uniformity." Second, it discusses providing a personal injury compensation fund through Superfund and expanding Superfund liability to the original owner or operator of a facility. Finally, OMB examines setting statutory ceilings to limit potential liability. The OMB draft does not reach conclusions and calls for further examination of the strengths and weaknesses of each approach. In addition, the Government Research Corporation and the Environmental Law In-
© 1983 American Chemical Society
stitute have just completed comprehensive studies on TVCL. Still another group, the Congressional Research Service has been asked by Rep. Donald Albosta (D-Mich.) to initiate an indepth analysis. Legislative initiatives While studies proceed, legislation is being introduced in both Houses of Congress. Sen. George Mitchell (D-Maine) and Rep. John LaFalce (D-N.Y.) are reintroducing bills they filed last session. Sen. Robert Stafford (R-VT.) has stated that TVCL is among his top priorities and, given his position as chairman of the Committee on Environment and Public Works and as the ranking member of the Committee on Labor and Human Resources, he is uniquely situated to influence the outcome from both environmental and occupational health perspectives. Meanwhile, several states are considering various forms of TVCL legislation. For example, the Minnesota legislature passed a victims' recovery bill last year but it was vetoed by the governor, allegedly in response to intense lobbying by the chemical industry. The new governor has announced his support for the bill and the legislation is being reintroduced. The emotions generated by TVCL are high. Dow Chemical has announced that defeat of legislation that would create a "toxic tort" law is "our highest priority" while environmentalists, led by the Environmental Defense Fund, have pledged a "massive grassroots lobbying effort" in support of such legislation. TVCL is the most important new environmental legislation before Congress. If activity to date is an accurate indicator, it should receive the detailed scrutiny it deserves.
Deland writes this column monthly and is counsel to ERT, Concord, Mass.
Environ. Sci. Technol., Vol. 17, No. 3, 1983
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