1 U.S. Environmental Protection Agency and the U.S. Centers For Disease Control, a Citizen's Guide To Radon, Opa-86-004 (Aug. 1, 1986) [hereinafter cited as A Citizen's Guide To Radon].

2 Id.

3 A study performed at Sweden's Karolinska Institute suggests that up to 40% of all cancer cases could be linked to radon. [May-Apr.] 16 Env't Rep. (BNA) NO. 40, at 1809 (Jan. 31, 1986). Sweden has also experienced high levels of radon with an estimated 35,000 homes affected by the gas. Cohen, Radon: Our Worst Radiation Hazard, Consumer's Research Mag., Apr. 1986, at 11, 13 [hereinafter cited as Radon: Our Worst Radiation Hazard].

4 Cohen, , Radon: Characteristics, Natural Occurrence, Technological Enhancement, and Health Effects, 4 Progress Nuclear Energy 1 (1979)CrossRefGoogle Scholar [hereinafter cited as Radon: Characteristics]; Murphy, The Colorless, Odorless Killer, Time, July 22, 1985, at 72. There are three isotopes of radon, all of which occur in nature and are daughters of a radioactive decay series. These daughters, 219 Rn, 220 Rn, and 222 Rn, all undergo radioactive decay. During this disintegration, they emit alpha particles. 222 Rn, which has a half-life of 3.8 days and releases three alpha particles within this relatively short period of time, poses the greatest health risk. Discussions of radon often refer only to this isotope.

5 Radon: Characteristics, supra note 4, at 2. A trace element is an element commonly found in minerals in concentrations of less than one percent. F. Press & R. Siever, Earth 628 (2d ed. 1978).

6 Radon: Characteristics, supra note 4, at 2.

7 Kirsch, , Behind Closed Doors: Indoor Air Pollution and Government Policy, 6 Harv. Envtl. L. Rev. 339, 345 (1982)Google Scholar.

8 J. Costa & V. Baker, Surficial Geology—Building With the Earth 136-37 (1981).

9 D.H. Speidel & A.F. Agnew, the Natural Geochemistry of our Environment 52 (1982).

10 Radon: Characteristics, supra note 4, at 2.

11 D.I. Poch, Radiation Alert 19 (1985).

12 J. Shapiro, Radiation Protection—A Guide for Scientists and Physicians 33-34 (2d ed. 1981).

13 G.I. Sackheim & R.M. Schultz, Chemistry For The Health Sciences 58 ﹛3d ed. 1977); R.H. Romer, Energy—An Introduction to Physics 58 (1976).

14 D.I.Poch, supra note 11, at 19.

15 Id. at 138; G.I. Sackheim & R.M. Schultz, supra note 13, at 58.

16 D.I. Poch, supra note 11, at 19; G.I. Sackheim & R.M. Schultz, supra note 13, at 58.

17 Radon: Characteristics, supra note 4, at 2.

18 Pennsylvania Department of Environmental Resources, Indoor Radon Gas Fact Sheet 1 (Jan. 11, 1985).

19 1952 Interim Report of a Health Study of the Uranium Mines and Mills by the Federal Security Agency, Public Health Services Division of Occupational Health and the Colorado State Deptartment of Public Health, quoted in Begay v. United States, 591 F. Supp. 991, 991-92 (D. Ariz. 1984); Radon: Characteristics, supra note 4, at 8-9.

20 Radon: Characteristics, supra note 4, at 9; Radon: Our Worst Radiation Hazard, supra note 3, at 11.

21 id.

22 Begay v. United States, 591 F. Supp. at 992.

23 Id.

24 Radon: Characteristics, supra note 4, at 9.

25 J. W. Gableman, Migration of Uranium and Thorium 1 (1977).

26 Radon: Characteristics, supra note 4, at 9; C.S. Hurlburt & C. Klein, Manual of Mineralogy 276 (19th ed. 1977). These states include New Mexico, Arizona, Utah, and Colorado. Id.

27 Radon: Characteristics, supra note 4, at 9.

28 Id.

29 Id.

30 See Begay v. Kerr-McGee Corp., 499 F. Supp. 1317 (D. Ariz. 1980). Indians alleged that they or their decedents were exposed to radon while working at the defendant's mine and consequently contracted cancer and other radiation related diseases. Plaintiffs brought suit under theories of negligence, strict liability and intentional tort. The court dismissed the case on the ground that the plaintiffs’ complaint was deficient because it alleged that the defendant failed to comply with the Arizona Workmen's Compensation Law instead of the Arizona Occupational Disease Disability Act. Leave to amend the complaint was granted.

In Brafford v. Susquehanna Corp., 586 F. Supp. 14 (D. Colo. 1984), an action was brought by a family against Susquehanna Corp. Before the Braffords purchased their home, the corporation had placed mill tailings from its mining industry around its foundation, causing radon gas to permeate the interior. The suit was based on theories of negligence, failure to warn and strict liability. The defendant's motion for partial summary judgment was denied.

31 Uranium mill tailings are sandy or silty radioactive waste materials of the uranium milling process. Flax, Radioactive Waste Management, 5 Harv. Envtl. L. Rev. 259, 261 n.12 (1981); Kindt, Radioactive Waste, 24 Nat. Resources J. 967, 972-73 (1984). From 1950 through 1966, in Grand Junction, Colorado, builders used tailings as land fill. As early as 1966, it was discovered that homes, factories, and other buildings constructed upon this fill often contained significant concentrations of radon gas. Comment, Radioactive Waste: A Failure in Government Regulation, 37 Alb. L. Rev. 97, 98-99 (1972); see American Mining Congress v. Thomas, 772 F.2d 617 (10th Cir. 1985). This case involves an unsuccessful challenge of EPA's standards for cleanup and disposal of uranium mill tailings. See generally Uranium Mill Tailings Radiation Control Act of 1978 (Umtrca), as amended, 42 U.S.C. §2022 and §§ 7901-7942 (1982) (requiring the EPA to promulgate standards to be applied to protect the public welfare from radioactive hazards associated with mill tailings at uranium processing sites); see also EPA Proposed Clean Air Act Standards to Control Radon-222 Emissions from Uranium Mill Tailings Plants, 51 Fed. Reg. 6382 (1986).

32 [May-Oct.] 17 Env't Rep. (BNA) No. 25, at 928 (Oct. 17, 1986); Murphy, supra note 4. See Oil, Chemical and Atomic Workers Int'l Union v. Zegeer, 768 F.2d 1480 (D.C. Cir. 1985). Suit was brought by uranium miners exposed to radon gas. The miners alleged that the Mine Safety and Health Administration (MSHA) “improperly withheld” or “unreasonably delayed” regulating action regarding radon exposure. The court dismissed plaintiffs’ petition for review but reserved plaintiffs’ right to renew their petition if, in the future, MSHA does not act with due diligence.

33 Fearing Radon Threat, Hundreds Phone Agencies in 2 States, N.Y. Times, Sept. 29, 1985, at 55, col. 1 [hereinafter cited as Fearing Radon Threat].

34 See, e.g., Begay v. Kerr-McGee Corp., 499 F. Supp. 1317 (D. Ariz. 1980) (action brought against uranium mining company for personal injury from exposure to radon at defendant's mining operations); American Mining Co. v. Thomas, 772 F.2d 640 (10th Cir. 1985) (defendants, including environmental groups, challenged the EPA's standards for stabilization and control of by-products at licensed commercial uranium and thorium processing sites); Ouivivra Mining Co. v. Epa, 728 F.2d 477 (10th Cir. 1984) (energy companies challenged the EPA regulation which established limits on radiation released from uranium fuel cycle operations); Oil, Chemical, and Atomic Workers Int'l Union v. Zegeer, 768 F.2d 1480 (D.C. Cir. 1985) (labor union alleged that the MSHA improperly withheld or unreasonably delayed regulation of workplace exposure to radon by miners); Umtrca, as amended, 42 U.S.C. §2022 and §§7901-7942 (1982).

35 In Florida, high radon concentrations have been discovered in homes located on lands formerly used for phosphate mining. G. Griggs & J. Gilchrist, the Earth and Land use Planning 392-93 (1977). Radon is released from the trace amounts of uranium present in phosphate rocks. Id.

Two New England states, New Hampshire and Maine, have recently begun state programs to reduce radon contamination in well water. Radon: a Problem in N.H. and Maine, Boston Globe, Dec. 1, 1985, at 85, col. 6 [hereinafter cited as Radon Problem]. Radon concentrations in drinking water are also a concern in the Berkshire Mountain area of Massachusetts and Connecticut. EPA: Radon in Water Supply is Cancer Risk, Boston Globe, Aug. 5, 1986, at 22, col. 6.

36 Boyertown is located in the eastern part of Pennsylvania, approximately one hundred miles northwest of Philadelphia.

37 Radioactive Gas Alters Lives of Pennsylvania™, N.Y. Times, Oct. 28, 1985, at A-10, col. 3.

38 Fearing Radon Threat, supra note 33, at 55, col. 1. It is estimated that approximately 21,000 homes situated on the Reading Prong in the state of Pennsylvania are at risk. Radioactive Gas in Soil Raises Concern in Three-State Area, N.Y. Times, May 19, 1985, at 52, col. 1 [hereinafter cited as Radioactive Gas]. The number of homes located on the Reading Prong in New York has yet to be determined. Fearing Radon Threat, supra.

39 Id.

40 Radioactive Gas, supra note 38, at 52, col. 4.

41 Murphy, supra note 4, at 72; Lilley, Indoor Radon is a Geologic Hazard, Geotimes Apr. 1986, at 5.

42 Radioactive Gas, supra note 38, at 52, col. 3. A working level is “any combination of short-lived radon daughters in one liter of air that will result in the emission of 1.3 X 10.5 MeV of potential alpha energy.” One working level month (WLM) is the amount of exposure to one WL of radon for 170 hours. J. Overbaugh, Discussion of the Lung Cancer Risk Resulting From Radon Exposure to the General Population 20, Table 1 (1984).

Concentrations of radon gas itself are measured in terms of picocuries per liter (pCi/1) of air. A picocurie is the decay of two radon atoms per minute in approximately one quart of air. Indoor Radon Gas Fact Sheet, supra note 18, at 2.

43 Podolosky, The Reporter—Public Health Radon Alert, Boston Mag., Sept. 1986, at 19; 0.02 one-hundreths of 1 WL is the equivalent of 4 picocuries per liter of air. A Citizen's Guide To Radon, supra note 1, at 10.

44 [May-Oct.] 17 Env't Rep. (BNA), NO. 25, at 928 (Oct. 17, 1986).

45 A Citizen's Guide To Radon, supra note 1, at 10.

46 Id.

47 Id. A concentration of 1 WL, is 1000 times greater than the average outdoor level, and is similar to the risk of smoking over four packs of cigarettes a day. This level is estimated to be capable of causing 440-770 lung cancer deaths out of a population of 1000. Id.

48 Lilley, supra note 41, at 5.

49 Radioactive Gas, supra note 38, at 52, col. 3.

50 Murphy, supra note 4, at 72, col. 1. Upon discovering extreme radon levels in their home, the Watras family vacated their residence. In July, 1985, a $32,000 Pennsylvania Electric Company (PECO)-sponsored cleanup operation was completed and the family returned. Id.

51 Radioactive Gas, supra note 38, at 52, col. 4.

The following values are the average indoor working level found in the various counties located on the Reading Prong: Lehigh—0.060 WL; Northampton—0.076 WL; Berks—0.069 WL, Bucks—0.059 WL. Letter from Bob Lewis, Pennsylvania Department of Environmental Resources, to Carolyn Shuko (Dec. 15, 1986). The average WL on the Reading Prong is 0.065 WL. Id. (compare with the EPA recommended limit of 0.02 WL).

52 Radioactive Gas, supra note 38, at 52, col. 4.

53 Murray Lindsay of Clinton, New Jersey, discovered radon levels in his basement that were four times the EPA's recommended limit, the equivalent of undergoing approximately 1,500 x-rays each year, Uehling.iJadon Gas: A Deadly Threat, Newsweek, Aug. 18,1986, at 60.

In Leed, Maine, Donna and Stephen Fairbanks found 1.7 million picocuries per liter of radon in their drinking water, which created the same risk of contracting cancer as that of smoking approximately seven packs of cigarettes a day. Uehling, supra, at 60; Radon Problem, supra note 35, at 98, col. 3.

Massachusetts recently joined other states and began testing for radon. Recent reports indicate that of the 136 measurements taken, 15.4% were greater than the EPA recommended limit of 0.02 WL. Podolosky, supra note 43, at 19.

54 In addition to Pennsylvania, New Jersey, and New York, high levels of indoor radon have been discovered in the states of New Hampshire, Maine, Florida, Idaho, Montana, North Carolina, South Carolina, Georgia, Texas, California, and Washington. Murphy, supra note 4, at 72.

In comparing radon as a radiation source to radiation from nuclear power sources, Gerald Nicholls, chief of the New Jersey Bureau of Radiation Protection stated: “[TJhere was a tremendous interest in Three Mile Island. But there are people in New Jersey who are getting more radiation from radon in a week than anybody ever got at Three Mile Island.” Uehling, supra note 53, at 60.

55 A Citizens Guide to Radon, supra note 1, at 1.

56 See infra, at p. 35, for adaptations to reduce radon concentrations.

57 While some assert that the problem is aggravated by the public's attempt to conserve energy by insulating their homes, this suggestion is disputed by Richard Sextro and other scientists at the Lawrence Berkeley Labortory in Berkeley, California, who have been studying radon-affected homes and have found no relationship between high radon levels and low ventilation. Stains, Stopping the Radon Scare, Family Handyman, Feb. 1986, at 20, 22. In support of this view, Bernard Cohen, physics professor at the University of Pittsburgh, asserts that the Watras and other radon-affected homeowners have high radon concentrations “not because they have energy-efficient houses but because they're in the wrong place.” Id. at 22.

58 W. Keeton, D. Dobbs, R. Keeton & R. Owen, Prosser and Keeton on the Law of Torts, § 30, at 164-65 (5th ed. 1984) [hereinafter cited as Prosser & Keeton].

59 See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 343-44, 162 N.E. 99, 100 (1928).

60 Id. Comment, Compensating Victims of Hazardous Wastes, 6 Glendale L. Rev. 125 (1983- 84).

61 Prosser & Keeton, supra note 58, § 29, at 162.

62 Indoor Radon Gas Fact Sheet, supra note 18, at 1.

63 See generally The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (L. Hand, J.), cert, denied, 287 U.S. 662 (1932); see also Borel v. Fiberboard Paper Prods. Corp., 493 F.2d 1076, 1089-90 (5th Cir. 1973), cert, denied, 419 U.S. 869 (1974) (all manufacturers are held to possess the knowledge and skill of an expert. It is the knowledge of the industry, not the knowledge of the individual manufacturer which is relevant); Prosser & Keeton, supra note 58, § 32, at 187.

64 David Pickman, spokesman for the EPA's Boston regional office, stated: “Radon is an unprecedented thing because it's a natural phenomenon. We don't know alot about it. We can't go to a polluter and make him pay for cleaning it up.“Radon Problem,supra note 35, at 85, col. 6. See, e.g., Wayne v. Tennessee Valley Authority, 730 F.2d 392, 395-96 (1984). This case involved radon gas as a potential health hazard resulting from phosphate and phospate by-product materials. The court held that, among other things, the producer of radonreleasing phosphate products did not fraudulently withhold knowledge of their hazardous nature.

The two most common methods of detecting abnormal levels of radon are the charcoal cannister and the alpha track detector. A Citizen's Guide to Radon, supra note 1, at 5. The charcoal cannister collects radon as a gas. Radon: Characteristics, supra note 4, at 4. The cannister remains in the household for a period of 3-7 days and is then brought to a laboratory for a radon count. A Citizen's Guide to Radon, supra note 1, at 5. The second device, the alpha track detector, remains in the household for a minimum of two to four weeks prior to laboratory analysis. Id. Rather than collect radon as a gas, this method collects radon daughters on filters or on negatively charged electrodes. Radon: Characteristics, supra note 4, at

64 These methods are relatively inexpensive, ranging in price from ten to twenty-five dollars per charcoal cannister and twenty to fifty dollars per alpha track detector. A Citizen's Guide to Radon, supra note 1, at 5

65 See generally H.B. Olin, Construction Principles, Materials, and Methods (American Institute of Architecture 1980).

66 Prosser & Keeton, supra note 58, § 33, at 195.

67 F.2d 737, 740 (2d Cir. 1932) (Hand, J.), cert, denied, 287 U.S. 662 (1932) (despite customary practice, tugboats not equipped with radios were held unseaworthy).

68 391 So. 2d 898 (La. Ct. App. 1980) (plaintiff sought recovery for injuries sustained in a natural gas blowout and fire during drilling operations. The court held that the jury finding of negligence on the part of the corporate president for failing to use safety devices was a reasonable conclusion despite evidence regarding customary practice).

69 Prosser & Keeton, supra note 58, § 33, at 194-95.

70 Comment, supra note 60, at 136-37; Prosser & Keeton, supra note 58, at 169-73.

71 J. Costa & V. Baker, supra note 8, at 116-17.

72 Id.

73 Id.

74 See generally R.V. Cooke & J.C. Dornkamp, Geomorphology in Environmental Management, an Introduction 272-307 (1974).

75 Note, Beshada v. Johns-Manville Products Corp.: The Function of State of the Art Evidence in Strict Products Liability, 10 AM. J.L. & MED. 93, 99 (1984)Google Scholar.

76 Prosser & Keeton, supra note 58.

77 Fear of cancer is a “non-idiosyncratic response to the knowledge that a person is at risk of contracting the disease” while “[a] phobia is an exaggerated, persistent, and often irrational fear.” Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d 517, 526 n.13 (Fla. Dist. Ct. App. 1985). The latter requires expert testimony and thus may be more difficult to prove. Id. In Eagle- Picher, plaintiff could recover for fear of cancer because plaintiff contracted asbestosis, thus satisfying the physical injury requirement of this claim under Florida law. Id. at 528-29.

78 See, e.g., Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir. 1986) (shipyard worker brought suit against asbestos manufacturer for an increased risk of cancer and mental distress due to fear of cancer associated with exposure to asbestos); Ayers v. Township of Jackson, 189 N.J. Super. 556, 461 A.2d 184 (Super. Ct. Law Div. 1983) (residents sued township for toxic waste leaching into well water on theories of an increased risk of cancer, cancerphobia, and costs of future medical surveillance); Devlon v. Johns-Manville Corp., 202 N.J. Super. 556, 492 A.2d 495 (Super. Ct. Law Div. 1985) (in a suit for injuries sustained as a result of asbestos exposure, workers could recover for both fear of cancer and for an increased risk of cancer, but the latter would be permitted only in the context of emotional harm and cost of medical surveillance); Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3rd Cir. 1985) (claim brought against asbestos manufacturer for intentional infliction of emotional distress based upon fear of contracting cancer as a result of exposure to asbestos ruled a valid cause of action).

79 Seltzer, Personal Injury Hazardous Waste Litigation: A Proposal For Tort Reform, 10 B.C. Envtl. Aff. L. Rev. 797, 826 (1982-83).

80 See, e.g., Westrom v. Kerr-McGee Chem. Corp., No. 82-C-2034 (N.D. 111. Oct. 4, 1983); Laswell v. Brown, 524 F. Supp. 847 (W.D. Mo. 1981),aff'd, 683 F.2d 261 (8th Cir. 1982); Mink v. University of Chicago, 460 F. Supp. 713 (N.D. 111. 1987); Sides v. Richard Mach. Works, Inc., 406 F.2d 445 (4th Cir. 1969); see also G.Z. Nothstein, Toxic Torts—Litigation of Hazardous Substances, § 23.07, at 695 (1984).

81 628 F. Supp. 1219 (Mass. 1986).

82 Id. at 1222-23.

83 Id. at 1226-27; Payton v. Abbot Labs, 386 Mass. 540, 437 N.E.2d 171 (1982); Barney v. Magenis, 241 Mass. 268, 135 N.E. 142 (1922); Bullard v. Central Vt. Ry., 565 F.2d 193 (1st Cir. 1977); Sullivan v. Old Colony St. Ry. Co., 197 Mass. 512, 83 N.E. 1091 (1908).

84 Anderson, 628 F. Supp. at 1231.

85 Jackson v. Johns-Manville Sales Corp., 727 F. Supp. 506 (1984), vacated for certification to the Miss. Sup. Ct., 750 F.2d 1314 (5th Cir. 1985) (en banc), certification declined, 469 So. 2d 99 (Miss. 1985), rev'd, 781 F.2d 394 (5th Cir. 1986) (en banc) (the court rejected the argument that cancer is a separate disease from asbestosis. In permitting recovery for the increased risk of cancer, the court held that as long as some effect appears, the plaintiff may recover for all probable future manifestations as well). In Brafford v. Susquehanna Corp., 586 F. Supp. 14 (Colo. 1984), a family sued for exposure to radon radiation due to the defendant's mill tailings which were placed in and around the foundation of their home prior to its purchase. The court held that physical injury must be present to recover for an increased risk of cancer; present cellular changes might satisfy this physical injury requirement. The defendant's motion for summary judgment was denied and the family would be permitted to show resultant injuries from exposure to these mill tailings and to sue for an increased risk of cancer.

86 765 F.2d 456 (5th Cir. 1985) (Dartez was a products liability act i brought by a former insulation worker against several manufacturers for injuries incurred from exposure to their asbestos products).

87 Id. at 466 (citing Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (footnote omitted) (5th Cir. 1985)).

88 Id.; Ayers v. Township of Jackson, 189 N.J. Super. 561, 461 A.2d 184 (Super. Ct. Law Div. 1983).

89 Mesothelioma is “a rare neoplasm derived from the lining cells of the pleura and peritoneum which grows as a thick sheet covering the viscera, and is composed of spindle cells or fibrous tissue which may enclose glandlike spaces lined by cuboidal cells… .” Stedman's Medical Dictionary 861 (5th Unab. Lawyer's ed. 1982).

90 Dartez, 765 F.2d at 466. In an even more far-reaching opinion, Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986), the court held that under the Jones Act, a seaman may recover for reasonable fear of contracting cancer, regardless of the degree of probability and without physical injury.

91 See Seltzer,supra note 79, at 812; see also G.Z. Nothstein,supra note 80, § 23.07, at 695. Although the length of the applicable statute of limitations may vary from state to state, most courts have recognized the latency period associated with illness from exposure to hazardous substances and have held that the statute does not begin to run until the plaintiff knows or should have known of the resultant injury. G.Z. Nothstein, supra § 13.05, at 374. It should be noted that the standard for when the plaintiff is held to have knowledge of the injury varies from state to state. Id. For example, the plaintiff may be held to have knowledge of the injury either when the disease manifests itself to the extent that a causal connection may be established, see, e.g., Karajala v. Johns-Manville, 523 F.2d 155 (8th Cir. 1975), or when the plaintiff actually suffers a harmful injury, either at the time of exposure or at a later time when the harm first develops, whether discoverable or not. See, e.g., Locke v. Johns-Manville, 221 Va. 951, 275 S.E.2d 900 (1981); Lindsey v. A. H. Robbins Co., 458 N.Y.S.2d 802, 91 A.D.2d 150 (App. Div. 1983). G.Z. Nothstein, supra § 13.05, at 374.

92 Seltzer, supra note 79, at 812. Courts have been reluctant to compensate “at-risk” injuries because the characteristically long latency period of such injuries makes it difficult to connect the defendant's act with the late development of a disease or ailment. Prince, , Compensation for Victims of Hazardous Substance Exposure, 11 WM. Mitchell L. Rev. 657, 688 (1985)Google Scholar. Furthermore, not all people exposed to radioactive material will suffer future injuries. Id. at 689.

Dartez, mDartez v. Fiberboard Corp., for example, smoked one pack of cigarettes a day. 765 F.2d at 466-67. The court noted that if Dartez quit smoking, his risk of cancer would be reduced by approximately one-third. Id.

93 Prosser & Keeton, supra note 58, § 44, at 301.

94 Fearing Radon Threat, supra note 38, at 52, col. 1.

95 For courts which use similar reasoning to that adopted in Dartez, see supra note 88 and accompanying text.

96 Prosser & Keeton, supra note 58, § 99, at 695-97; A. Weinstein, A. Tureski, H. Plehler, & W. Donaher, Products Liability and the Reasonably Safe Product: A Guide For Management, Design, and Marketing, §§ 1.4-2.1, at 9-10 (1978) (hereinafter cited as Weinstein). This potential liability reaches to the retailer, wholesaler, distributor and manufacturer. Id.

97 R. Posner, Tort Law: Cases and Economic Analysis 516-17 (1982).

98 Id. at 517.

99 Id. at 516.

100 Id.

101 Id.

102 G.Z. Nothstein, supra note 80, § 11.11, at 318; Note, supra note 75, at 98-99.

103 Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099, 1099-1103 (1960); Faulk, “Absolute Liability“: Historical Perspectives and Political Alternatives, 37 OKLA. L. REV. 569, 570-72 (1984).

104 Weinstein, supra note 96.

105 Maynard, & Crisci, , The Duty to Warn in “Toxic Tort” Litigation, 8 J. Prod. Liab. 89, 90 (1985)Google Scholar; G.Z. Nothstein, supra note 80, § 11.11, at 318 (1984).

A chemical substance is hazardous if: 1) the substance is toxic, and 2) an individual has been exposed to the substance. Maynard & Crisci, supra, at 97.

106 Restatement (Second) Of Torts § 402A (1) (1965)

107 Prosser & Keeton, supra note 58, at 695.

108 See Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353 (E.D.Tex. \98l),rev'd, 681 F.2d 334 (5th Cir. 1982) (asbestos manufacturer cannot be held responsible for failing to warn of unknown and undiscoverable health hazards associated with asbestos product); but see Beshada v. Johns-Manville Product Corp., 909 N.J. 191, 447 A.2d 539 (1982) (asbestos manufacturer may be held liable for failing to warn of the health dangers that were unknown and undiscoverable when the product was placed on the market). For a detailed discussion of these opposing viewpoints, see Shubert, , Uncertainty in the Courts—Should Manufacturers Be Held Liable for Failing to Warn of Scientifically Undiscoverable Hazards﹜, 7 J. Prod. Liab. 107 (1984)Google Scholar.

109 Prosser & Keeton, supra note 58, at 697; Note, supra note 75, at 98.

110 Note, supra note 75, at 99 n.35.

111 Id. at 99.

112 During the energy crisis of the 1970s and even early into the 1980s, homeowners insulated their homes with UFFI to save energy and money. UFFI, however, emits formaldehyde gas—a gas known to be both an irritant and carcinogen—into the homes. Note, Urea Formaldehyde Foam Insulation: Defusing A Timebomb, 11 Am. J.L. & Med. 81 (1985)Google Scholar

113 See Caruso v. Celsius Insulation Resources, Inc., 101 F.R.D. 530 (M.D. Pa. 1984) (class action certification denied); Pearl v. Allied Corp., 566 F. Supp. 400 (E.D. Pa. 1984) (same).

114 Id.

115 566 F. Supp. 400 (E.D. Pa. 1983).

116 Id. at 401-04 (citing Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir. 1981)).

117 652 F.2dat 1172-73.

118 Id.

119 566 F. Supp. at 402.

120 Id. at 400.

121 Restatement (Second) of Torts § 519 (1976).

122 See Exner v. Sherman Power Constr. Co., 54 F.2d 510, 513 (2d Cir. 1931) (“in the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformly been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.“).

123 Restatement (Second) of Torts § 519 (1976).

124 Prosser & Keeton, supra note 58, § 75, at 534-36.

125 L.R. 3 H.L. 330, 338 (1868).

126 Id. at 332. The Rylands rule is accepted in most American jurisdictions. Prosser & Keeton, supra note 58, § 78, at 549. Seven states—Maine, New Hampshire, New York, Oklahoma, Rhode Island, Texas, and probably Wyoming, reject the principle at least by name. Id.

127 L.R. 3 H.L. at 341-42.

128 Id. (citing Smith v. Kendrick, 7 C.B. 515, 137 Eng. Rep. 205 (1849)).

129 7 C.B. 515, 137 Eng. Rep. 205 (1849).

130 482 F.2d 1007 (8th Cir. 1973). In American jurisdictions which have adopted the Rylands rule, the circumstances to which the rule is applied are similar to those required by the English rule. Prosser & Keeton, supra note 58, § 78, at 549.

131 482 F.2dat 1009-10.

132 Id. at 1007-08.

133 Id. at 1009-10.

134 Id. at 1010.

135 Id. at 1009.

136 Fearing Radon Threat, supra note 33, at 55, col. 1; see also Radioactive Gas, supra note 38.

137 241 Cal. App. 2d 823, 51 Cal. Rptr. 49 (1966).

138 Id.at 829, 51 Cal. Rptr. at 53.

139 2 F. Harper & F. James, the Law of Torts, § 14.4, at 795 (1956) [hereinafter cited as Harper & James].

140 205 Cal. 328, 270 P. 952 (1928).

141 Id.

142 Id. at 334, 270 P. at 955.

143 Id. at 330, 270 P. at 955.

144 Harper & James, supra note 139, § 14.4, at 796.

145 Radon: Characteristics, supra note 4, at 2.

146 For example, it would be impossible to hold a contractor liable for a lava flow whose ash fallout accumulated over the homeowner's property and caused respiratory ailments. See Shea-S & M Ball v. Massman-Kiewit-Early, 606 F.2d 1245 (D.C. Cir. 1979); Uniroyal, Inc., v. Hood, 588 F.2d 454 (5th Cir. 1979); Empire State Cattle Co. v. Atchison, 210 U.S. 1 (1908).

147 205 Cal. at 331-32, 270 P. at 954.

148 Id. at 331, 270 P. at 954.

149 Id. at 331, 270 P. at 953-4.

150 See generally H.B. Olin, supra note 65.

151 [May-Oct.] 17 Env't Rep. (BNA) NO. 25, at 928 (Oct. 17, 1986); Murphy, supra note 4, at 32.

152 Restatement (Second) of Torts § 520 (1976).

153 During the late 1960s, the implied warranty of habitability theory began to replace the strict doctrine of caveat emptor-let the buyer beware. Mallor, , Extension of the Implied Warranty of Habitability to Purchasers of Used Homes, 20 AM. BUS. LJ. 361, 368 (1982)CrossRefGoogle Scholar. Traditionally, courts applied this implied warranty theory only if the contract of sale was formed prior to the commencement of construction or at a stage where only a small portion of work had been completed.See, e.g., F & S Constr. Co. v. Berube, 322 F.2d 782 (10th Cir. 1963); Week v. A.M. Sunrise Constr. Co., 36 111. App. 2d 383, 184 N.E.2d 728 (1962); Hoye v. Century Builders, Inc., 52 Wash. 2d 830, 329 P.2d 474 (1958). A contract entered into after the completion of the house was considered a contract to purchase real estate, and therefore, no implied warranties existed. F & S Constr. Co., 322 F.2d at 784-85. Subsequently, courts have not adhered to this preconstruction-postconstruction distinction. See, e.g., Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972); Petersen v. Hubschman Constr. Co., 76 111. 31, 389 N.E.2d 1154, 27 111. Dec. 746 (1979); Redarowicz v. Ohlendorf, 92 111. 2d 171, 441 N.E.2d 324, 65 111. Dec. 411 (1982).

154 Shedd, , The Implied Warranty of Habitability, 8 Real Estate L.J. 291, 294 (1980)Google Scholar. See, e.g., City of Philadelphia v. Page, 373 F. Supp. 453 (E.D. Pa. 1974) (an implied warranty of habitability arises from the sale of a home); McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979) (purchasers of a new house brought an action against the builder alleging a breach of implied warranty of habitability because the house's well water was not potable); Rothberg v. Olenik, 128 Vt. 295, 262 A.2d 461 (1970) (homeowners brought suit against a builder for breach of implied warranty of habitability due to structural defects in the home).

Premises which are habitable are those free of serious defects which affect health and safety. BLACK's Law Dictionary 639 (5th ed. 1979).

155 The first case in which a homeowner has sued a contractor for indoor radon pollution is Nobel v. Marvin E. Kanze, Inc., Docket No. 83-50253 (Montgomery Cty. Ct. of Common Pleas, Civ. Div., 1983), a case still pending before the Pennsylvania court. The plaintiff, physician Joel J. Nobel, sued the contractor after discovering that dangerous levels of radon were accumulating in his home as a result of a faulty ventilation system. Nobel is attempting to recover under theories of assumpsit and trespass as well as breach of implied warranty of fitness. He is seeking twenty thousand dollars in damages, including radon detection and reduction costs, restoration costs, increased risk of developing cancer, severe emotional distress, future medical surveillance, and future loss of earnings and earning capacity.

156 696 P.2d 431 (Mont. 1985).

157 Id. at 433.

158 Id. at 433-34.

159 Id. at 434.

160 282 Or. 569, 580 P.2d 173 (1978).

161 197 Mont. 234, 642 P.2d 1028 (1982).

162 580 P.2d at 173.

163 Id. at 175.

164 Id. at 175-76.

165 642 P.2dat 1031-32.

166 Id. at 1031; see also Forbes v. Mercado, 283 Or. 291, 583 P.2d 552 (1978) (contractor liable for breach of implied warranty of merchantability because well water not potable); Wagoner v. Midwestern Dev., Inc., 83 S.D. 57, 154 N.W.2d 803 (1967) (damage to foundation due to underground springs could be a breach of implied warranty of habitability); House v. Thornton, 76 Wash. 2d 428, 457 P.2d 199 (1969) (breach of implied warranty of habitability due to damages in the foundation caused by ground instability); Loch Hill Constr. Co. v. Fricke, 284 Md. 708, 399 A.2d 883 (1979) (contractor breached implied warranty of habitability due to inadequate water supply).

167 642 P.2d at 1032.

168 Id.

169 696 P.2d at 434.

170 Id.

171 Courts are split as to whether the theory of implied warranty of habitability extends to subsequent purchasers. Many jurisdictions refuse to extend this theory to purchasers not in privity with the builder-vendor. See, e.g., Scott v. First Inv., 556 F. Supp. 782 (W.D. Pa. 1983); Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977); Oliver v. City Builders, Inc., 303 So. 2d 466 (Miss. 1974); John H. Armbruster & Co. v. Hayden Company-Builder Developer, Inc., 622 S.W.2d 704 (Mo. App. 1981); Brown v. Fowler, 279 N.W.2d 907 (S.D. 1979). Other states have permitted remote purchasers to recover against a builder for breach of an implied warranty of habitability. See, e.g., Richards v. Powercraft Homes, Inc., 678 P.2d 427 (Ariz. 1984); Redarowicz v. Ohlendorf, 92 111. 2d 171, 441 N.E.2d 324, 65 111. Dec. 411 (1982); Elden v. Simmons, 631 P.2d 739 (Okla. 1981); Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex. 1983); McMillan v. Brune-Harpenau-Torbeck Builders, Inc., 8 Ohio St. 3d 3, 455 N.E.2d 1276 (1983).

172 42 U.S.C. §§7401-7642 (1982).

173 The Occupational Health and Safety Act (OSHA), 29 U.S.C. § 668(a), for example, regulates indoor air pollution but applies only to the workplace. Under the Toxic Substance Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976 & Supp. IV 1980), the EPA has authority to regulate “chemical substances” which are unreasonably injurious to health or environment; however, the EPA has limited regulations under TSCA to manufacturing and commercial substances. Kirsch, supra note 7, at 372-73. Finally, the Consumer Products Safety Act (CPSA), 15 U.S.C. §§ 2051-2083 (1982), permits the regulation of consumer products which emit indoor air pollutants (for example, stoves, insulation, and carpets), but its regulatory power consists of setting standards for manufactured products only, not natural substances. Kirsch, supra note 7, at 375.

The federal statute regulating radon as a by-product of the mining process is the Uranium Mill Tailings Radiation Control Act of 1978 (Umtrca), as amended, 42 U.S,C §§2022 & 7901-7942 (1982). This section requires the EPA to promulgate regulations for radioactive as well as non-radioactive hazards created by the mill tailings processed at both active and inactive sites.

The EPA has also published the Proposed Cleanup Standards for Inactive Uranium Processing Sites, which propose the “cleanup of open lands and buildings contaminated with residual radioactive material (mainly tailings) from inactive uranium processing sites.” 45 Fed. Reg. 27, 370 (1980).

174 42 U.S.C. § 7602(g) (Supp. Ill 1979).

175 42 U.S.C. §§ 7401-7642 (Supp. Ill 1979). The CAA does not define the term “ambient air” as including either indoor and/or outdoor air. However, in its regulations, the EPA has specifically and continuously confined the Act's scope to outdoor air. 40 C.F.R. § 35.501-1 (1981); 40 C.F.R § 50.1(e) (1981); see generally Kirsch, supra note 7, at 363-66. Concerning uranium mill tailings, the EPA recently proposed work standards under section 112 of the CAA to reduce health hazards of radon emission in the mining workplace. See [May-Apr.] 16 Env't Rep. (BNA) No. 44, at 2011 (Feb. 28, 1986).

176 F.P. Grad, Environmental Law 747 (1985).

177 Kirsch, supra note 7, at 364; LEgislative History of the Clean Air Act, Senate Rep. No. 638, Nov. 7, 1963 [To accompany S. 432], House Rep. No. 508, July 9, 1963 [To accompany H.R. 6518], Conference Rep. No. 1003, Dec. 5, 1963 [To accompany H.R. 6518], 1963 U.S. CODE CONG. & AD. News 1260-86, 88th Congress, 1st Sess. The House Bill was passed in lieu of the Senate Bill. The House Report and the Conference Report are set out.

178 Kirsch, supra note 7, at 364.

179 Id. at 365 n.202.

180 Id. at 363. The fundamental difference between indoor and outdoor air may be partially responsible for the EPA's refusal to regulate residential radon. Spengler, & Sexton, , Indoor Air Pollution: A Public Perspective, 221 SCIENCE 9 (1983)CrossRefGoogle Scholar. Outdoor air is air which the entire community breathes (a “public good“). Therefore, the individual's cost of removing outdoor pollutants would be large in comparison to the resulting benefits the individual would receive from such a clean-up because the individual's share of air breathed is quite small. Furthermore, refusal to take part in a community cleanup would not prevent such an individual from reaping the benefits of cleaner air. The government's rationale for regulating outdoor air thus stems from the fact that those injured by pollutants would not be compensated and any injuries would not deter the community polluters. Id.

On the other hand, the homeowner's costs and benefits of controlling indoor air pollution are confined to the individual's residence. If the homeowner pays for all costs of cleaning the air in his home, he will likewise receive all of the benefits. Control and quality of indoor air is generally individualized and thus, it may be argued that government intervention would not be cost-efficient. Id.

181 Radioactive Gas, supra note 39, at 52, col. 2.

182 EPA Proposes 5-Year Program Aimed at Radioactive Radon Gas, N.Y. Times, Oct. 10, 1986, at B-21, col. 2.

183 There have been several cases in which courts have held that EPA interpretation of the CAA will be upheld as long as it is reasonable. See, e.g., American Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), cert, denied, 455 U.S. 1034 (1982); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981); City of Seabrook, Tex. v. Epa, 659 F.2d 1349 (5th Cir. 1981), cert, denied, 459 U.S. 822.

184 The EPA is spending four million dollars on a national survey of radon contamination, to be completed in 1988; however, no regulations are planned. Taylor, Your House May Be A Death Trap, U.S. News & World Rep., Mar. 17, 1986, at 64.

185 Radon—No Threat to Sneeze At, U.S. News & World Rep., Aug. 25, 1986, at 10.

186 Telephone interview with Daniel J. Egan, Health Physicist for the Federal EPA Office of Air and Radiation (Feb. 11, 1987).

187 Id.

188 Id.

189 See generally A Citizen's Guide To Radon, supra note 1.

190 Telephone interview with Daniel J. Egan, Health Physicist for the Federal EPA Office of Air and Radiation (February 11, 1987).

191 To obtain funds, Pennsylvania is encouraging federal support through guidance programs and fundings. [May-Apr.] 16 Env't Rep. (BNA) NO. 44, at 2012 (Feb. 28, 1986).

As Bernard Lucey, chief of New Hampshire's Water Supply Division stated, “We don't have the resources to conduct surveys or assemble massive teams of experts.” Uehling, supra note 53, at 61. While Pennsylvania, New Jersey, and Illinois are attempting to set up more elaborate state programs, other states including New Mexico, Idaho, Maine, and New Hampshire are able to fund only very small programs. Id.

192 In fiscal year 1986, radon gas was listed as a low priority in the EPA budget proposal and consequently, radon research was not funded. [May-Apr.] 16 Env't Rep. (BNA) No. 12, at 482 (July 19, 1985). Despite the grave health risks radon poses, it was listed as “low priority” due to the view that the EPA lacks regulatory authority. [May-Apr.] 16 Env't Rep. (BNA) No. 3, at 129 (May 17, 1985.)

193 Pub. L. No. 96-510, 94 Stat. 2767 (codified at 42 U.S.C. §§ 9601-9605 (1982 & Supp. Ill 1985)).

194 42 U.S.C. § 9601 (1983 & Supp. Ill 1985).

195 42 U.S.C. § 9604.

196 42 U.S.C. § 9605.

197 Id.

198 Current proposed radon programs are mostly prospective as funding is limited to the prevention of radon concentration. Costs relating to the mitigation of radon in affected homes must be borne by the homeowner under these programs. [May-Apr.] 16 Env't Rep. (BNA) No. 42, at 1891 (Feb. 14, 1986).

199 Although radon concentrations in homes can be mitigated relatively easily and can be reduced by installing equipment at a cost of approximately three hundred dollars, a stigma attached to those residences contaminated with radon, due to the fear that the property had decreased in value. [May-Apr.] 16 Env't Rep. (BNA) No. 13, at 129 (May 17, 1985).

200 In Montana, indoor air radiation levels found in houses built on mill tailing fill were so high that the U.S. Department of Housing and Urban Development now requires radon testing prior to granting federal housing loans. U.S. General Accounting Office, Indoor Air Pollution: an Emerging Health Problem, Pub. No. CED-80-111 (1980).

Fraud is another issue which may be raised as a result of the requirement of radon testing prior to selling a home not already inspected for radon. Fearful of a drastic decrease in the value of their homes, contractors and homeowners may manipulate tests by placing radon detectors in well-ventilated areas or in upper floors where radon is less concentrated. Galen, Lawyer's Grapple With Radon Issue, NAT'L L.J., July 21, 1986, at 10, col. 1. Thus, litigation involving fraud in radon testing may result.

Despite manipulation of test results, concentrations may vary according to meteorological changes such as season and time of day. Radon: Characteristics, supra note 4, at 7. Therefore, in an effort to control such external forces, states should perform confirmation tests when potential purchasers so request. Galen, supra.

201 Some banks in New Jersey and Pennsylvania are requiring radon testing prior to granting mortgages. Taylor, supra note 183, at 64.

202 As a global average, radon is emitted from the ground at approximately six atoms per second from each square inch of soil. Radon: Our Worst Radiation Hazard, supra note 3, at 12.

203 See supra note 64.

204 [May-Apr.] 16 Env't Rep. (BNA) NO. 42, at 1892 (Feb. 14, 1986); [May-Oct.] 17 Env't Rep. (BNA) No. 25, at 929 (Oct. 17, 1986); Letter from Bob Lewis, Pennsylvania Department of Environmental Resources, to Carolyn Shuko (December 15, 1986). Initially, personnel from the Department of Environmental Resources went door to door offering free radon testing to Pennsylvania residents. Recently, Pennsylvania established the “Alpha-Track Mail Program” under which state residents are sent radon detectors on a voluntary basis.

205 By reviewing the United States Geologic Survey (USGS) bedrock maps, hired geologists can make a quick assessment of the area's potential for radon accumulation. Not only radon concentrations, but also any other potential health hazards in the air or soil, will be detected early. Cf. supra note 64.

206 [May-Apr.] 16 Env't Rep. (BNA) No. 44, at 2011 (Feb. 28, 1986); [May-Apr.] 16 Env't Rep. (BNA) No. 42, at 1891 (Feb. 14, 1986).

The Swedish government is developing a program to remove high concentrations of radon gas at a cost of approximately $1,000 per house. Radon: Our Worst Radiation Hazard, supra note 3, at 13.

207 Pennsylvania is proposing a low interest loan program for homeowners wishing to eliminate radon concentrations. [May-Apr.] 16 Env't Rep. (BNA) No. 25, at 1067 (Oct. 18, 1985). The class of people entitled to receive such loans could be expanded to include contractors.

208 In anticipation of disclosure requirements, some lawyers are inserting “radon inspection” clauses into real estate contracts. Galen, supra note 200, at 10; [May-Oct.] 17 Env't Rep. (BNA) No. 25, at 929 (Oct. 17, 1986). Prospective buyers have the right to have property tested in order to be informed of any high levels of radon, and in order to permit the seller to mitigate radon concentrations exceeding the maximum limits established by the parties. In some cases, buyers may cancel the contract if the seller does not reduce radon levels. Id.

209 1985 Mass. Acts ch. 728, §§ 1-15 (effective July 1, 1986).

210 Id. at § 1.

211 “A seller or landlord of a residential dwelling shall take reasonable steps to determine whether UFFI is present in the dwelling.” Mass. Admin. Code 105 § 651.010 (effective Sept. 25, 1986). These regulations include a number of forms for UFFI disclosure. For example, one model form states:

212 Stains, supra note 57, at 22. Radon may be reduced 3% by opening two basement windows and placing a fan in one of them, thereby ventilating the basement. Id.

213 [May-Oct.] 17 Env't Rep. (BNA) NO. 25, at 928 (Oct. 17, 1986).

214 [May-Apr.] 16 Env't Rep. (BNA) No. 25, at 1046 (Oct. 18, 1985).