Toxic & Hazardous Substances
Attorneys whose practice includes toxic torts litigation bring legal actions against companies or individuals for injuring people or harming property through the production, storage, transport, or sale of certain harmful substances.
Serious concern for the environment began with the 1962 publication of Rachel Carson's famous book Silent Spring which detailed the hazards of the pesticide DDT. The movement rapidly evolved and the first "Earth Day" was held in April 1970 with comprehensive legislation following soon thereafter.
Most laws regulating toxic substances are passed at the Federal rather than the state level. Congress (House & Senate) passes an "enabling act" that requires or "enables" the appropriate Federal agency to regulate certain types of substances. The enabling acts can be found in the United States Code Annotated (USCA). The various Federal agencies then make detailed rules that regulate toxic substances. These rules are published in the Code of Federal Regulations (CFR).
Some of the primary Federal environmental laws (enabling acts) include:
Environmental Community Right to Know Act
This law requires companies to report whether they have one of 640 listed toxic substances stored at their facility. Additionally, any company that releases one of these 640 substances (either intentionally or accidentally) must report such release to authorities. The law also requires that companies storing any of these substances develop emergency plans in case of a spill.
National Environmental Policy Act
NEPA, passed in 1970, is considered the first major "environmental" law. NEPA requires any "major Federal project" that "significantly impacts on the human environment" to undergo an environmental impact analysis to determine the project's influence on the environment.
Occupational Safety & Health Act
The OSH Act was passed to protect employees in the workplace. The law is triggered if there is a "significant risk of a material health impairment" to an employee.
Toxic Substances Control Act
TSCA banned nine known toxic substances. The Environmental Protection Agency is allowed to ban additional substances if the agency can prove that the risks associated with the substance are "unreasonable."
Federal Insecticide, Fungicide, & Rodenticide Act
FIFRA requires producers of any new insecticide, fungicide, or rodenticide to prove that the risks associated with the new product do not exceed the benefits.
Federal Food, Drug, & Cosmetic Act
FFDCA requires the Food & Drug Administration to monitor food, drug, and cosmetic safety.
Resource Conservation & Recovery Act
RCRA, enacted in 1976, regulates the handling, transporting, storing and disposing of hazardous solid waste. The goal of RCRA is not to prohibit the production of hazardous materials but rather to make sure such materials are handled properly.
Comprehensive Environmental Response, Compensation, and Liability Act
CERCLA was enacted in 1980 to deal with landfills and other contaminated sites. Congress created a "superfund" to pay for the massive cost of cleaning these sites.
While environmental law has come a long way over the past three decades, there is significant disagreement over the danger that toxic substances continue to pose to human beings. Many expert commentators cannot even agree on the definition of "toxic." Industry lobbyists point out that nearly every substance known to man can be toxic. They argue that it is the dose, or "amount of exposure," to a substance that matters, not the substance itself. For instance, even pure mountain drinking water may be toxic as one can drown in it! Most attorneys define a toxic substance as one that can cause serious medical or environmental problems in relatively low doses or exposure levels.
Since World War II over 70,000 different synthetic chemicals have been developed for use in foods, cosmetics, fertilizers, pesticides, and other products. While Federal agencies such as the U.S. Department of Agriculture (USDA), Occupational Safety & Health Administration (OSHA) and the Environmental Protection Agency (EPA) have attempted to monitor and evaluate these chemicals, only a small fraction (less than 15%) have been extensively studied. Complicating matters, over 1,000 new chemical substances are developed each year. Additionally, even if a substance is safe in the short term, what is the effect of long-term exposure? Even naturally occurring substances can be toxic, such as lead, arsenic and radon. In other words, uncertainty abounds.
The consequences of toxic exposure can include irritation, mutation, birth defects, cancer, cardiovascular problems, respiratory problems, neurological disorders, and even death. Men and women born in the 1940's have a 35% greater chance of contracting cancer than their grandparents. Women who live very near certain types of chemical plants have a 70% greater chance of getting breast cancer than those who do not.
Over 10 billion pounds of toxic substances are released into the environment each year. These substances could find their way into your backyard, harming you and your children (not to mention your property's value). Unfortunately, such contamination is often very difficult to detect, and your first indication may come with a decline in your health.
As the presence of toxic substances has increased over the last several decades, so have lawsuits alleging injuries, illnesses, and deaths caused by such substances. Many of these toxic substances have impacted large populations of people, as in the now infamous Love Canal and Three Mile Island disasters.
If you sue for injuries caused by a toxic substance, you will have to prove that the Defendant had a duty to treat you in a certain manner, breached that duty, and that the breach caused your injury. Causation may be quite difficult to prove as an injury may have many causes. For instance, if a smoker sues the manufacturer of asbestos for causing his lung cancer, the asbestos manufacturer will argue that the cigarettes caused the cancer, not the toxic asbestos.