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Vapor Intrusion: Toxic Torts

Jeffrey M. Judd
Partner
525 Market Street, 36th Floor
San Francisco, CA 94105

415-848-3221 (direct)
juddj@howrey.com
 “Environmental” vs. “Toxic Torts” Litigation
Environmental litigation addresses the legal effect of
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contamination on soil, water, air, and plant and animal

resources

Toxic Tort litigation addresses the legal effect of

environmental contamination on humans

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 Anatomy of a Toxic Tort Action
Contamination of
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soil or
groundwater

Environmental Intervening Event

Action (Assessment, (migration,
remediation, closure) redevelopment)

Vapor Intrusion

Regulatory action AG Action Toxic Tort

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 Common Threads Between Environmental
and Toxic Tort Suits
Causes of action
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ƒ Negligence
ƒ Trespass
ƒ Nuisance
ƒ Strict Liability
Damages/Claims for Relief
ƒ Compensatory Damages
ƒ Punitive/Exemplary Damages
ƒ Injunction/mitigation
ƒ Diminution/Stigma
Defenses – Statute of limitations

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 Toxic Tort Causes of Action
Negligence
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ƒ Duty to take reasonable precautions to avoid injury to

another
ƒ Breach of duty
ƒ Injury
ƒ Proximate/Actual Causation
ƒ Effect of safety statute/regulation – negligence per se

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 Toxic Tort Causes of Action
Nuisance
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ƒ Invasion of private use and enjoyment of land

ƒ Intentional and unreasonable or
ƒ Negligent or reckless or
ƒ Actionable under rules governing liability for abnormally dangerous
conditions or activites (i.e., strict liability)
ƒ If a trespass is found, damages will be awarded
ƒ Nominal
ƒ Compensatory
ƒ Punitive/exemplary

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 Toxic Tort Causes of Action
Trespass
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ƒ Causing a thing or substance to go on or contaminate property

ƒ Without justification or permission
ƒ With intent to act so as to cause invasion
ƒ If a trespass is found, damages will be awarded
ƒ Nominal
ƒ Compensatory
ƒ Punitive/exemplary

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 Toxic Tort Causes of Action – Statutory
Causes
RCRA Injunctive Relief (42 U.S.C. 6972(a)(1)(B)
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ƒ Past/present generator, transporter, TSD owner/operator

ƒ Has contributed/is contributing to (i.e., active, not passive)
ƒ Past/present handling, storage, treatment, transport,
disposal
ƒ Of any solid or hazardous waste that
ƒ May present an imminent and substantial endangerment to
health or the environment
ƒ See, e.g., Interfaith Comm’ty Org. v. Honeywell Int’l, Inc., 188 F. Supp. 2d at 503 (D.N.J.
2002) (actual harm not required, that substantial endangerment may exist is sufficient)
ƒ Meghrig v. KFC Western, Inc., 516 U.S. 557 (1992) (imminence “implies that there must be
a threat which is present now, although the impact of the threat may not be felt until later”

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 Toxic Tort Causes of Action – Statutory
Causes
CERCLA section 107(a) (42 U.S.C. sec. 9607(a))
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ƒ Property is a CERCLA “facility”

ƒ “release” of a “hazardous substance”
ƒ Defendant is a PRP/“covered person”
ƒ Plaintiff seeks “costs of response”
ƒ Plaintiff is not a liable under CERCLA

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 Examples of Toxic Tort VI Cases
Belmont High School (Belmont Learning Center), Los
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Angeles Unified School District

Endicott, NY – Blaine, et al. v. IBM
Greenpoint, Brooklyn, NY (see
www.epa.gov/region02/superfund/npl/newtowncreek/ne
wtowncreek_review.pdf)
Montgomery County, PA – Ball v. Bayard Pump & Tank
Co., Penn. Court of Common Please No. 95-6438 (jury
trial verdict)
Ft. Edwards, NY – Aiken, et al. v. General Electric Co.,
No. 505023, Memo and Order (3d Dept, Supreme Court
Appellate Division, December 4 2008).

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 Toxic Tort Claims
Why not a class action?
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Medical monitoring claims

Emotional distress (“cancerphobia”)
Causation Issues
Injury Issues
Expansive roster of potential claimants
ƒ Employees
ƒ Tenants
ƒ Contractors
ƒ HOAs

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 Toxic Tort Claims
Potential defendants include
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ƒ Developers
ƒ Builders
ƒ Up-gradient owners, operators, generators
ƒ TSD operators
ƒ Remediation contractors

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 Plaintiffs’ Strategic Considerations
Jurisdiction/Venue
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ƒ Judge/jury considerations
ƒ Applicable law
ƒ Federal ancillary jurisdiction over state law claims
Availability of damages
ƒ Limitations on damages
Coat-tailing/enlisting regulators
ƒ AG actions – the New York experience
ƒ EPA orders

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 Defendants’ Strategic Considerations
Removal under CAFA mass action provisions (28
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U.S.C. sec. 1332(d))

ƒ 100 or more plaintiffs
ƒ Common questions of law or fact between the plaintiffs’ claims
ƒ “Minimal diversity” (at least one P is diverse from one D)
ƒ Aggregated claims greater than $5 million
ƒ At least one plaintiff’s claim exceeds $75,000
ƒ Case removable w/I 30 days after basis for removal determined
(no 1-year deadline applies)
ƒ Abrego Abrego v. Dow Chemical Co., 443 F.3d 676 (9th Cir.
2006); Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.
2007)

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 Defendants’ Strategic Considerations
Avoiding a toxic tort action
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ƒ Prompt assessment and cleanup

ƒ Minimizing anxiety
ƒ Hiring owners’ experts
ƒ The IBM mitigation offer
ƒ Managing public disclosure—the crisis management model
ƒ Indoor air testing issues
ƒ Modeling
ƒ Mitigation/prophylactic measures
ƒ Cooperation with governing agencies

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 Defendants’ Strategic Considerations
The expert case
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ƒ Daubert & Frye considerations

ƒ Causation and injury issues
Standards
ƒ Occupational exposures and PELs
ƒ EPA risk assessments – the TCE saga
ƒ Conflict and uncertainty
“Safe-unsafe” vs. Relative Risk

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 Contact Information
Jeffrey M. Judd
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Howrey LLP
525 Market Street, 36th Floor
San Francisco, CA 94105
Direct dial: 415-848-3221
Email: juddj@howrey.com
Link to bio: http://www.howrey.com/juddj/

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