New York Broadens Personal Injury Statute of Limitations for Waste Sites

On July 21, 2016, Governor Andrew Cuomo of New York signed legislation extending the statute of limitations in New York for personal injury claims related to pollution at superfund sites. The legislation was a response to the concerns of residents of Hoosick Falls, New York whose groundwater was contaminated with PFOA, a chemical compound previously used at manufacturing facilities in Hoosick Falls for several decades. Although the new legislation was specifically tailored to assist residents at Hoosick Falls in bringing PFOA-related personal injury cases, it is likely that the law will have an impact far beyond Hoosick Falls.

7-28The new law resurrects previously time-barred claims. Any time a site is designated a superfund site, potential plaintiffs will now have a new three-year window to bring a personal injury action related to the site. Corporate entities that have been identified as responsible parties at inactive hazardous waste disposal sites may find themselves at increased risk for alleged toxic exposures that may have occurred decades ago. The new law has the potential to generate an enormous windfall for the plaintiff bar.

Prior to the new enactment, New York already had an expansive statute of limitations for toxic tort claimants in latency cases. The period in such cases is computed from the “date of discovery of the injury by the plaintiff or from the date, when through the exercise of reasonable diligence, such injury should had been discovered, which ever is earlier.”

The new statute, codified as CPLR 214-f, supersedes this discovery trigger.

Action to recover damages for personal injury caused by contact with or exposure to any substance or combination of substances found within an area designated as a superfund site. Notwithstanding any provision of law to the contrary, an action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site pursuant to either Chapter 103 of Section 42 of the United States Code and/or Section 27-1303 of the environmental conservation law, may be commenced by the plaintiff within the period allowed pursuant to section two hundred fourteen-c of this article or within three years of such designation of such an area as a superfund site, which ever is latest.

The plaintiff may have known about the contamination and alleged illness for years, but no matter. The statute begins anew once the designation takes place.

It is well known that a federal or state site may be designated as a superfund site decades after alleged contamination has taken place. CPLR 214-f may require corporate defendants identified as potentially responsible parties (PRPs), even if de minimis, at newly listed superfund sitesto defend personal injury cases alleging decades-old exposures. The Hoosick Falls litigation will likely target: (1) a single chemical compound, PFOA, (2) used by a small group of defendants, (3) identified in drinking water, and (4) specific diseases that the epidemiologic literature associates with PFOA exposure. As enacted, however, the law may encourage plaintiff lawyers to plead “chemical soup” mass tort toxic tort claims against multiple defendants involving multiple chemical substances and alleging that this “chemical soup” caused a broad range of diseases.

New York ECL 27-1303, which is specifically referenced in the new law, emphasizes the role of New York counties in identifying inactive hazardous waste disposal state sites within their boundaries and submitting annual reports to the NYDEC describing the location of each suspected site and the reasons for such suspicion. Unlike the designation of a superfund site at the federal level, the designation of a superfund site at the state level is a much more localized process that can be subject to political manipulation.

The sponsors of the legislation were clearly influenced, not only by the discovery of water contamination in Hoosick Falls, but the serious problems in Flint, Michigan as well.

The recent discovery of water contamination in Hoosick Falls, New York and Flint, Michigan has raised great alarm across our country and our state. These instances of contamination have been sited as a potential cause of many previously unexplained illnesses suffered by members of those communities. In many cases, the statute of limitations to bring a personal injury action has long since run before any contamination was every discovered. This bill seeks to address this in equity and give those who have been sickened legal recourse to be made whole.”

Although the sponsors claim that their bill would “create a narrowly tailored legal mechanism to address instances where extraordinary circumstances negatively impact public health,” this legislation is anything but narrow. The statute permits recovery “for injury caused by contact with or exposure to any substance or combination of substances.” Plaintiff may argue that the new law applies to any substance at any CERCLA site regardless of whether that substance is subject to regulation under the statute. For example, CERCLA specifically excludes petroleum contamination. Is a company that disposed of petroleum products at a waste site, which is not a proper substance for CERCLA regulation, a proper target of a personal injury action under CPLR 214-f?

Does CERCLA’s “Act Of God” Defense Apply In Climate Change Litigation

In a decision issued on May 2, 2014, the Second Circuit held, in Cedar & Washington Assocs. LLC v. Port Auth. of N.Y. & N.J, 2074 BL 123476,2d Cir., No. 10- 4197, that the "act of war" affirmative defense relieved World Trade Center owners and lessees and airlines of Superfund liability for dust that infiltrated a building a block away after the collapse of the Twin Towers on 9/11.

The Second Circuit held that CERCLA was "not intended to create liability for the dispersal of debris and wreckage from a catastrophe that was indistinguishable from military attack in purpose, scale, means, and effect"

Dicta in the Second Circuit’s ruling may have implications for environmental claims relating to climate change? With all of the pollution caused by storm events, which seems to be increasing year by year, will this decision provide a defense to a chemical manufacturer, whose product was released into a waterway because of a hurricane?   In its ruling, the court analogized 9/11, an act of war, to a tornado, an act of God. 

CERCLA provides three defenses to strict liability for releases of hazardous substances. The potentially responsible party (PRP) must prove that the release was "caused solely" by (1) an act of God, (2) an act of war, or (3) an act of a third party.

In exonerating the 9/11 defendants on the basis of the "act or war" defense, the court determined that the attacks were the "sole cause" of the alleged release, comparing the situation to the application of CERCLA’s "act of God" affirmative defense to a tornado.  In her article in the Bloomberg BNA Toxics Law Reporter on May 8, 2014 (29 TXLR 407) titled "Superfund Suit Against WTC Parties Fails; Could Impact Claims Related to Climate Change", Perry Cooper examines language in the Second Circuit’s decision that may be potentially useful in establishing an "act of God" defense in climate change litigation. 

"It would be absurd to impose CERCLA liability on the owners of property that is demolished and dispersed by a tornado", the court said.  "A tornado, which scatters dust and all else, is the ‘sole cause’ of the environmental damage left in its wake notwithstanding that the owners of flying buildings did not abate asbestos, or that farmers may have added chemicals to the soil that was picked up and scattered." 

Hopefully,  no CERCLA trial court will ever be asked to evaluate whether, in the wake of  a terrorist attack that results in the  release of hazardous substances, a defendant can avail itself of the "act of war" defense. However, it is likely that Cedar & Washington Assocs LLC will be cited for the proposition that releases occasioned by  severe unforeseeable storm events should be considered acts of God.