The EPA's HPV Challenge Program: A Tort Liability Trap?

Abstract

The HPV Challenge Program intends to narrow the public toxicity information gap by challenging the chemical industry to perform certain testing voluntarily to generate previously unavailable baseline health and environmental effects data for HPV chemicals. Companies that manufacture or import the chemicals included in the program were requested to take responsibility for their testing voluntarily.

This Article argues that voluntary sponsors of chemical testing under the HPV Challenge Program are exposed to significant potential common law tort liability. Specifically, such liability exposure arises under Section 324A of the Restatement (Second) of Torts, an offshoot of the "Good Samaritan" doctrine that holds "volunteers" liable for negligent performance of an undertaking causing injury to third parties. As detailed in Part III, in the 1998 decision of Dow Chemical Co. v. Mahlum, the Nevada Supreme Court upheld liability imposed on a parent chemical company that voluntarily had undertaken safety testing on chemical substances for a subsidiary manufacturing company. The court found the performance of this voluntary undertaking negligent. Accordingly, a third-party purchaser of the subsidiary's products could recover against the parent chemical company for injuries suffered through use of those products solely on the basis of the voluntary, yet negligently performed, chemical testing.

Similar tort liability may attach to companies voluntarily undertaking chemical testing through the HPV Challenge Program. Among others, individuals in a position to claim injury by decisions made in reliance on information disclosed through the program may have a cognizable cause of action. Importantly, the EPA's stated intention for the HPV Challenge Program is to provide the public with access to the information generated so that citizens can utilize the information to make basic decisions regarding their daily lives. Third-party reliance upon the information generated by the HPV Challenge Program is a basic purpose of the program pursuant to the philosophy of the Chemical Right-to-Know initiative.

Part II of this Article outlines the pertinent components of the HPV Challenge Program. Part III analyzes common law tort liability for "negligent" chemical testing under the Good Samaritan doctrine and the precedent of the Mahlum decision. Part IV argues that voluntarily testing specific chemicals through the HPV Challenge Program exposes companies to such potential tort liability. Part V concludes with a discussion of the policy implications for the EPA as a result of this unintended consequence. This discussion considers the potentially adverse effect of this unintended consequence on future use of collaborative policy tools by the EPA. This Article concludes that such considerations may justify EPA efforts to secure immunity from such liability for voluntary program participants.

Keywords: High-Production-Volume Challenge Program, HPV Challenge Program, Environmental Information, Restatement of Torts section 324A, Good Samaritan doctrine, Dow Chemical Co. v. Mahlum