Across the United States, families are getting ready to start their day. The kids are waking up and brushing their teeth, the toast is being buttered, and the newspaper is being retrieved from the curb. However, in some communities this scene is playing out against the backdrop of a toxic legacy dating back to the American industrial revolution. In the South Valley of Albuquerque, New Mexico, families are waking up to the smell of gasoline and the sound of idling trains. Around the harbor in New Bedford, Massachusetts, families are unable to sit down to a locally sourced seafood dinner. And in Rockford, Michigan, families are driving to Wal-Mart to purchase yet another case of bottled water because their wells are still unusable. Any of these families, however, wishing to receive regular medical screenings for diseases caused by exposure to toxic or hazardous substances will need to pay for those screenings themselves. Despite a well-articulated and enforced “polluter pays principle,” the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide private recovery for preventive medical care. This article explores the federal judicial decisions that have deprived communities of an ability to protect themselves from the long-term, often latent, health effects of toxic exposure; provides a broad survey of various state common law approaches; and suggests possible avenues to address this problem without fundamentally changing the regulatory or enforcement scheme of CERCLA.

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