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51 Ins. Counsel J. 218 (1984)
Hazardous Wastes and Toxic Torts: Handling Litigation and Insurance Coverage Issues

handle is hein.journals/defcon51 and id is 220 raw text is: INSURANCE COUNSEL JOURNAL - April, 1984 HAZARDOUS WASTES AND TOXIC TORTS: HANDLING LITIGATION AND INSURANCE COVERAGE ISSUES' G. MARC WHTEHFAD Minneapolis, Minnesota I. INTRODUCTION Litigation of cases involving hazardous wastes and toxic torts requires considera- tion of concerns which are quite different than those confronted in products liability and other personal injury litigation. The nature of the claims, the context in which they arise, the public interest and private concerns at stake, and the unusual regula- tory framework all combine to create spe- cial problems which are ignored only at great risk to the litigant. It is the purpose of this presentation to assist defense law- yers and claims managers in identifying and responding appropriately to these issues. II. LEGAL AND REGULATORY FRAMEWORK Numerous statutory and common law provisions provide bases for liability for claims of environmental impairment. Many of these interrelate in any particular piece of litigation. A. Federal Legislation A variety of federal statutes affect the liability of entities manufacturing, gener- ating, handling, or disposing of hazardous substances.' The main federal enactments are the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund)2 and the Resource Conserva- tion and Recovery Act (RCRA),3 partic- ularly subtitle C establishing the hazardous waste management program. These stat- utes cover health and environmental haz- ards created by past hazardous waste dis- 0© G. Marc Whitehead. Reprinted with per- mission. 'For an excellent summary, see Hall, The Prob- lem of Unending Liability for Hazardous Waste Management, 38 Bus. LAW. 593 (1983). 242 USC §§ 9601-9657 (Supp 1981). 342 USC §§ 6901-6987 (1976 & Supp 1977-1981). of Trial Advocates. Lawyers Association. G. MARC WHTEHEAD is a partner in the firm of Popham, Haik, Schnob- rich, Kaufman & Doty, Ltd. in Minneapolis, Minnesota. He is a gradu- ate of Princeton Univer- sity and Yale Law School. Vice-Chairman, Environ- mental Litigation Coin- mittee of the IAIC. Chair- man, Environmental Liti- gation Committee of the ABA Litigation Section. Member, American Board Member, Minnesota Defense posal activities, and apply as well to present and future releases of hazardous substances into the environment. Other statutes such as the Toxic Sub- stances Control Act (TOSCA),4 the Federal Water Pollution Control Act,5 the Clean Air Act,6 and others provide a detailed re- sponse to specific problems. B. Clean-Up And Remedial Action Superfund and RCRA provide the statu- tory basis for the government's claims for clean-up liability and remedial action. These acts contain numerous notification, reporting and monitoring requirements. The EPA by regulation has defined what wastes are hazardous for regulatory pur- poses7 but that determination is not in- tended to be definitive as regards personal injury litigation. 1. The EPA maintains that clean-up lia- bility is joint and several for all involved parties.8 2. Liability for clean-up costs is strict liability. 415 USC §§ 2601-2629 (1982). 533 USC §§ 1251-1376 (1976 & Supp IV 1980). 642 USC §§ 7401-7642 (Supp IV 1980). 742 USC §§ 6921-6931 (1976 & Supp 1977-1981). $See Hall, supra note 1, at 595. Page 218

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