The use of air sampling data is frequently an important part of a toxic tort case. The West Virginia Supreme Court recently released an opinion in which it addressed a permitted use of air sampling data at the time of trial, even when an applicable federal agency rejected the use of air sampling.
Air sampling is the collection of air from a particular location so that the collected air can then be analyzed in a laboratory to measure the presence of certain materials. Air sampling is often obtained by capturing air in canisters set up by industrial hygienists.
In the recent West Virginia case, the plaintiffs claimed exposure to a chemical allegedly contained in treated wood. The parties acknowledged that federal statutes and regulations established standards to which the treated wood must have met. Further, the plaintiffs did not allege that the defendant failed to meet those federal standards. Instead, the plaintiffs asserted state law negligence claims related to the disposal of the treated wood.
The federal agency that set the above-referenced standards rejected the use of ambient air standards as the measure of acceptable emission levels during the manufacture of the treated wood. However, the West Virginia Supreme Court allowed the use of ambient air testing for other purposes. In particular, the Supreme Court stated that the ambient air testing could be used to establish a standard related to the disposal of the treated wood as long as the air testing was not used to challenge an emission level established under federal law.
The recent case is of interest in toxic tort matters as it provides an example of a possible use of air sampling data. If you would like any further details about this matter, please contact Steptoe & Johnson's Toxic Tort Team.
James J.A. Mulhall
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229 West Main Street
Clarksburg, WV 26301
304.624.8164
james.mulhall@steptoe-johnson.com
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