In Dorothy J. Kowalski and Louis Kowalski, Jr. v. Goodyear Tire Rubber Company, 841 F. Supp. 104 (1994), the plaintiffs are using common law theories to claim damages. The plaintiffs are asserting negligence and strict liability claims to recover damages. The plaintiffs argued that Goodyear is liable for strict liability based on Restatement (Second) of Torts 519. Plaintiffs stated that Goodyear is liable under a negligence claim because the company owed a duty of care to Dorothy. The plaintiffs allege that Goodyear violated their duty to Dorothy and as a result, she suffered an injury that was foreseeable.
CERCLA is important to this case in order to counter Goodyears defense that the lawsuit is barred by the states statute of limitations. Under CERCLA 9658, a states statute of limitations can be preempted. Preemption of the statute of limitations under CERLA is only applicable when there is a release of a hazardous substance into the environment. The Court agreed with the ruling in State of Vermont v. Staco, Inc., 684 F. Supp. 822 (D. Vt. 1988), which stated that bringing hazardous substances into the home via clothing is considered a release of a hazardous substance into the environment. Under CERCLA 9658, the clock for statute of limitations would have started running when Dorothy knew or reasonably should have known that her cancer was caused by the release of ortho-toluidine. The three year limitation period imposed by N.Y.C.P.L.R. 214-c had not expired yet when Dorothy filed the lawsuit.
The most important factor with respect to the negligence claim is proving that Goodyear owed a duty of care to Dorothy. Plaintiffs must show that Goodyear owed a duty of care to Dorothy, and as a result of violating that duty, Dorothy suffered an injury that was reasonably foreseeable. Since Dorothys husband was exposed to ortho-toluidine at work and proper precautions were not in place to prevent him from bringing the ortho-toluidine home. Plaintiffs provided evidence showing the Goodyear understood there was a danger of third party exposure to ortho-toluidine from clothes and warned employees against bringing home work clothes. Plaintiffs claim that Dorothy was a foreseeable plaintiff because she was within the zone of danger. As a result, Goodyear had a duty to minimize her risk of harm.
According to Restatement (Second) of Torts 519, strict liability is applicable when a party causes harm to people as a result of engaging in an abnormally dangerous activity, even if that party exercised the utmost care. The weakness of the strict liability claim is that plaintiffs failed to show Goodyear is liable under the six factor test implemented in New York to determine if an activity is abnormally dangerous. The six factors are (1) a high degree of risk of harm to people (2) likelihood the harm will be great (3) inability to eliminate the risk by exercising reasonable care (4) extent to which the activity is not common (5) inappropriateness of activity based on location where activity is being carried out (6) extent to which its value to the community is outweighed by its dangerous attributes. According to the Court, the plaintiffs have only shown that great harm can result from the release of ortho-toluidine. It is not apparent if Goodyear could have eliminated the risk by exercising reasonable care. The Court also noted that when ortho-toluidine is released into the air, sewer system, or other sites, there was no evidence of any risk associated with those activities. The Court did not have enough evidence to determine if the benefits of engaging in the activity outweighed the danger. The Court also could not determine if the activity was a common usage or an appropriate activity for that particular location.
I agree with the court that ortho-toluidine spilled on clothes constitutes a release into the environment. According to 42 U.S.C. 9601(22), release is spilling, leaking, emitting, discharging or the escaping of a hazardous substance into the environment. Mr. Kowalskis clothes, skin and hair were contaminated with the ortho-toluidine at the Goodyear facility. Once Mr. Kowalski left the facility, his home environment was exposed to the hazardous substance. The ortho-toluidine was released into the environment on Mr. Kowalskis clothes and this exposure caused harm to Dorothy.
In Metropolitan Water Reclamation Dist. Of Greater Chicago v. North American Galvanizing Coatings, Inc., 473 F.3d 824 (7th Cir. 2007), Metropolitan was not entitled to contribution from North American under 42 U.S.C. 9613 because a PRP can only recover the cost of cleanup when the PRP is compelled to clean up due to civil action. As stated under 113(f), a claim for recovery of costs may be brought during or following any civil action under section 9606 or under section 9607(a) of this title. If the PRP commences clean up voluntarily, 113(f) cannot be used to recoup the costs of clean up from another party.
This case did not explicitly address what would happen if the landlord had been at fault to some extent, but the facts cited in Key Tronic Corp. v. U.S, 511 U.S. 809 (1994), addressed that issue somewhat. In Key Tronic, several parties were responsible for contaminating a landfill. Key Tronic sued the other liable parties under 113(f), after a settlement was reached with the EPA. Key Tronic also sued the other responsible parties under 107(a), for the cost of cleanup incurred prior to the lawsuit. For a hypothetical situation, where a landlord is partially responsible for hazardous waste contamination, the landlord could be held responsible for the cost of cleanup. If the tenant was subjected to civil action and paid for the cleanup, the tenant could recoup some of the cleanup expenses from the landlord under 113(f). If the tenant voluntarily cleaned up the hazardous waste, the tenant could possibly recoup the expenses through 107(a). In Cooper Industries, Inc. v. Availl Services, Inc., 543 U.S. 157 (2004), the Supreme Court implied that 107(a) could be used as an alternative remedy when 113(f) was not available. Based on the Metropolitan courts interpretation of the language used in 107(a), the tenant could use that section to recoup costs from the landlord.
The courts decision does not take away some of the EPAs leverage in obtaining settlements. Metropolitan decided to voluntary commence the clean up and fully absorbed the costs. In this case, the EPA did not have to get involved or reach a settlement since Metropolitan timely commenced cleanup. The EPA would need to be concerned about using leverage against a company if the company did not want to commence cleanup or if the company wanted to dispute any claims brought against it by the EPA. Those circumstances are not applicable to this situation.
Assignment 11-1
According to 40 C.F.R. 261.4(a)(1)(i), domestic sewage is not solid waste. Under 40 C.F.R. 261.4(a)(2), point source discharges subject to the CWA, are also not considered solid waste.
According to 40 C.F.R. 260.31(a), a variance from classification as a solid waste might be available to a party that is accumulating material speculatively without sufficient amounts being recycled to fit within the exemption, if the party demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year.
40 C.F.R. 261.3 states that a listed hazardous waste combined or treated with another substance would still be categorized as hazardous, even if it is no longer hazardous as a result of the mixture with other substances.
The definitions of scrap metal and by product under 40 C.F.R. 261.1 are important to understanding the sections in Exhibit 11-1 because the definitions will help you figure out if the by product or scrap metal constitute solid waste based on how they are used.
The first category listed in the F List in the C.F.R. is spent halogenated solvents used in degreasing.
The P List and U List are located in 40 C.F.R. 261.33.
40 C.F.R. 239 deals with determining the adequacy of a state permit program.
40 C.F.R. 258 sets the criteria for municipal solid waste landfills.
MSWLFs that are operated as dry tombs minimize the level of liquid in the landfill to slow biodegradation and reduce production of gas. A bioreactor is when the MSWLF uses liquid to increase biodegradation.
The political agenda behind the lawsuit in Grassroots Recycling Network, Inc. v. U.S. E.P.A., 429 F.3d 1109 (D.C. Cir. 2005), is that people are worried their property values will decrease if the states have authority to waive certain national criteria for sanitary landfills.
The standing requirement serves a beneficial purpose. The parties filing a lawsuit must have standing in order for the case to proceed. It prevents the courts from giving advisory opinions. It also helps maintain some sort of efficiency within the legal system, by making sure the courts spend time on cases where an actual or imminent injury has occurred to the party that initiated the lawsuit.
Assignment 12-1
The major assurance Candidate Conservation Agreements (CAA) provide to non-Federal property owners is that their conservation efforts will not result in future regulatory obligations in excess of those they agree to at the time they enter into the agreement.
Metcalfe County does not have any critical habitats for listed species.
The Karner blue butterfly is not listed as endangered or threatened in Kentucky.
Section 230.3 states an aquatic ecosystem means waters of the United States, including wetlands, that serve as a habitat for interrelated and interacting communities.
In Contoski v. Scarlett, 2006 U.S. Dist. LEXIS 56345, the presence of the eagle was a problem for the landowner because Contoski wants to possibly create a residential subdivision. Contoski cannot begin construction within 330 feet radius of the bald eagles nest. Contoski will remain in limbo with regards to his project until a final determination is made about delisting the eagle.
The ruling may not have been as favorable for the plaintiff if he challenged the listing of the eagle. The listing of the eagle is within the authority of the FWS. It is also up to the FWS to propose if a species should be considered for delisting. If Contoski tried to interfere in the FWS s authority regarding the listing, the court probably would have deferred to the decision of the agency. In this case, Contoski is merely requesting the FWS make a decision regarding a proposal the FSW initiated.
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