Within the federal statutes which address the clean-up of hazardous materials at abandoned toxic waste sites is a provision which, at first blush, would seem to trump the statutes of limitations for every state in any toxic tort action alleging personal injury or property damage. That provision, known as the Federally Required Commencement Date (FRCD) 142 U.S.C. §9658., appears to mandate that any state statute of limitation will not begin to run until an injured party first knew or should have known that the injury was caused by the specific contaminant involved. Such a literal reading would potentially allow a personal injury or property claim to be brought years, if not generations, after an alleged injury, assuming there was no recognition of any causal connection between the injury and the chemical.
The FRCD, however, is a brief provision found in the large CERCLA regulatory scheme 2The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), Pub. L. No. 96-510, 94 Stat, 2767 (codified as amended at 42 U.S.C. §§9601-9675).. This body of law was intended to address the clean-up of chemical spills and the disposal of hazardous substances in the environment. CERCLA has nothing to do with personal injury or toxic tort actions. The legislative histories of CERCLA and the FRCD suggest a far more limited reach than the broad scope presented upon first reading. Courts have explored different interpretations of the FRCD, and several now recognize that a broad application is not appropriate.
This article will examine how the seemingly simple and direct language of the FRCD does not accurately reflect Congress’ true intent behind the statute. The FRCD’s proper scope may indeed be much more limited than a broad preemption of state statute of limitations. Moreover, should a court employ a broad interpretation, a host of unresolved constitutional issues will arise which deserve to be the subject of appellate, and perhaps even Supreme Court, review.
I. The Federally Required Commencement Date
The FRCD is contained in 42 U.S.C. §9658. That section was added to the 1980 CERCLA legislative framework as part of the 1986 Superfund Act 3Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub. L. No. 99-499., and specifically prevents a state statute of limitations from beginning to run on actions under state law for personal injuries or property damage “caused or contributed to by exposure to any hazardous substance…released into the environment from a facility” until “discovery of the causal relationship” between the injury and the exposure. 42 U.S.C. §9658(a)(1) and (b)(4)(A). It is not that the FRCD is a federal statute of limitations; rather, when applicable, it prevents a state statute of limitations from beginning to run until there is a discovery of a causal connection between an injury and a chemical. Only then will the state statute of limitations begin to run. The FRCD thus serves to delay, and not supersede, the state statute of limitations.
The relevant part of the statute reads as follows:
§9658. Actions under State law for damages from exposure to hazardous substances
(a) State statutes of limitations for hazardous substance cases
(1) Exception to State statutes
In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in a State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.
42 U.S.C. §9658(a)(1). The statute defines the federally required commencement date as the date the plaintiff knew (or reasonably should have known) that the “personal injury or property damages…were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. §9658(b)(4).
Most state statutes of limitations typically require that lawsuits based on exposure to chemicals be brought between two to four years of the date of diagnosis or awareness of an “injury.” Application of the FRCD, however, creates an open door to bring suit up to when there is an awareness of a causal connection between chemical exposure and injury. For example, a party may assert that he/she was first injured through exposure to chemicals decades ago, perhaps as a young child, but never realized the cause of the resultant injury. The recognition of the “wrongful cause” of the injury may come to one’s attention only years later. This recognition might come through the Internet, solicitations from lawyers, or reading about chemicals in articles published by various special interest groups or government agencies. Moreover, the estates of individuals who died years before, through executors, may acquire knowledge of a possible “causation” connection between chemical exposure and the injuries of the deceased, allowing suits to be brought decades after the injured party has died. Broad application of the FRCD would have drastic implications on the ability of an individual to bring suit for injuries which were suffered many years before. It is questionable, however, that this was the intent of Congress when it drafted the FRCD statute.
II. The History of the FRCD
The first place one would turn to discern the intent of Congress in enacting the FRCD is in the legislative history of CERCLA, of which the FRCD became a part. But in this instance, as many courts have noted, “CERCLA has acquired a well-deserved notoriety for vaguely-drafted provisions and an indefinite, if not contradictory, legislative history.” 4See, e.g.,
CP Holdings, Inc. v. Goldberg-Zoino & Associates, Inc., 769 F. Supp. 432, 435 (D.N.H. 1991), quoting United States v. Mottolo, 605 F. Supp. 898, 902 (D.N.H. 1985). This description rings true with respect to the FRCD as well. To understand the FRCD, it is important to examine the history of CERCLA.
(a) The Scope of CERCLA
Congress enacted CERCLA in 1980 in response to New York’s Love Canal disaster in the late 1970s. In the absence of controlling federal regulations, the Love Canal was declared a national emergency by the Carter Administration. 5In the late 1930s or early 1940s, the Hooker Chemical Company began dumping toxic wastes in an abandoned canal near Niagara Falls. In 1953, the canal was filled and sold to the Niagara Falls Board of Education to provide land for a new elementary school and playground. Families moved into the area, unaware that the large field behind their homes contained toxic waste. In 1978, the New York State and the federal government investigated the alleged pervasive health problems affecting residents and deterioration of buildings around the Love Canal. Ultimately, the area was declared a federal emergency by then-President Carter. Niagara Mohawk Power Corporation v. Chevron USA, Inc., 596 F.3d 112, 120 n.5 (2d Cir. 2010). Multiple lawsuits were filed to address responsibility for the chemicals dumped many years before into the abandoned canal. In large part because of Love Canal and a similar situation at Times Beach, Missouri, Congress enacted CERCLA in 1980 to address issues arising from buried hazardous wastes. The legislation had two primary goals: (1) enable the EPA to respond quickly and efficiently and expeditiously to toxic spills, and (2) establish a mechanism to hold responsible parties liable for clean-up. 6Commander Oil Corp. v. Barlo Equipment Corp., 215 F.3d 321, 327 (2d Cir. 2000), cert. denied, 531 U.S. 979, 121 S.Ct. 427, 148 L.Ed. 2d 436 (2000). The legislative framework envisioned by Congress required potentially “responsible parties”, and not the taxpayers, to shoulder the burden of environmental liability and clean-ups. The Act imposed strict liability on owners and operators of facilities at which hazardous substances had been disposed. To promote these objectives, Congress created a private cause of action for recovery of certain “response costs” which could be brought against various persons or entities who had contributed to the dumping of hazardous wastes at a site.
But personal injury was not a concern of the CERCLA legislation. The intent behind CERCLA was “not to make injured parties whole or create a general vehicle for toxic tort actions.” 7Riv
as v. Safety
-Kleen Corporation, 98 Cal. App. 4th 218, 234 (Cal. App. 2002). See also Daigle v. Shell Oil Co., 972 F.2d 1527, 1535-36 (10th Cir. 1992). The Act was written using specific terms with precise definitions regarding the cleanup of toxic chemicals. Rather, CERCLA was limited to situations where a claimant has established that the site in question was a CERCLA defined “facility,” that a “release” or a threatened release of a “hazardous substance” had taken place, and that the “responsible” party fell within the category of clearly defined liable parties. Noticeably absent among the categories of potential liable parties were manufacturers or distributors of products. 8Id., Rivas v. Safety
-Kleen Corporation, 98 Cal. App. 4th at 233.
Moreover, CERCLA was concerned with inactive hazardous waste sites. 9Becton v. Rhone-Poulenc, Inc., 706 So.2d 1134, 1137 (Ala. 1997). The Act’s legislative history specifically provided, “It is the intent of the Committee … to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites.” 10Id., Becton, 706 So.2d at 1137, quoting H.R. Rep. No. 961016, 96th Cong. 2d Sess. 17, 22 (1980), U.S. Cong. & Admin. News 1980, pp. 6119, 6124. This intent remained unchanged under the SARA modifications to CERCLA in 1986. 11Id., Becton, 706 So.2d at 1137-1138. So by its terms, CERCLA remained primarily concerned with improper disposal and dumping of hazardous chemicals by end-users and those with whom they contracted. Releases from useful consumer products in the structures of buildings, ambient air, surface water releases, and entities that manufactured and distributed useful, but potentially toxic, products were not subjects Congress set out to address when CERCLA and the definitional provisions it contains were enacted. 12Riv
as v. Safet
y-Kleen Corporation, supra, 98 Cal. App. 4th at 234. See also Ruffing v. Union Carbide Corporation, 746 N.Y.S.2d 798, 811 (N.Y. 2002); Vernon V
illage, Inc. v. Gottier, 755 F. Supp. 1142, 1150 (D. Conn. 1990).
However, when it enacted CERCLA in 1980, Congress did authorize a study to be conducted by a group of attorneys from four legal entities comprised of the American Bar Association, the American Trial Lawyers Association, the Association of States Attorneys General, and the American Law Institute. 13§42 U.S.C. 9651. This Study Group was broadly charged with the task of addressing a number of topics relating to the harm caused by the release of hazardous substances into the environment. Congress empowered the Study Group to address issues which went beyond the parameters of CERCLA, such as existing state causes of action for personal injury caused by exposure to chemicals, evidentiary burdens of plaintiffs, the existing scope of liability, existing remedies, and the perceived barriers to recovery posed by existing statutes of limitation. The Study Group was charged with submitting to Congress a report addressing the need for revisions in existing statutory or common law and whether the revisions should be in the form of federal statutes or through the development of a model code to be recommended for adoption by the states. 1442 U.S.C. §9651(e)(4).
(b) The Study Group Report of 1982
The Study Group completed its mission two years after CERCLA was enacted and its final report was the impetus for the FRCD. The Study Group addressed the areas recommended by Congress, including a review of existing state statutes of limitations. In its two volume report, however, the Study Group specifically limited the scope of its investigation and its recommendations to situations only where CERCLA applied, even though the enabling charge which created the Study Group focused upon issues outside the scope of CERCLA. The Study Group stated in its final report that “the remedies discussed in this report are legal remedies for personal injury…resulting from the spills of hazardous substances and disposal of hazardous wastes for which CERCLA provides clean-up and remedial activities.” 15Injuries and Damages from Hazardous Wastes – Analysis and Improvement of Legal Remedies: A Report to Congress in Compliance with Section 301(e) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P.L. 96-510) by the “Superfund Section 301(e) Study Group”, Sen. Comm. Print 97-12, Part 1, 97th Cong., 2d Sess. p.42 (1982). Hereinafter, this will be referred to as the Study Group Report. The Study Group specifically limited its inquiry and recommendations for remedies for personal injuries to releases of hazardous substances at CERCLA sites. 16Wagar v. BASF Corporation, 1990 WL 124069 (N.D.N.Y. 1990).
The Study Group did identify differences between various state statutes of limitations and recommended that the states remove those barriers in the context of state causes of action, which the Study Group recommended would become part of a proposed federal CERCLA compensation system. 17Study Group Report, supra, vol. 1, p. 255. The Study Group recommended “that all states that have not already done so, clearly adopt the rule that an action accrues when the plaintiff discovers or should have discovered the injury or disease and its cause.” 18Study Group Report, supra, vol. 1, p. 256. The Study Group commented that it was unfair to have a claim expire when the individual has not manifested any harm and therefore has no reason to file a suit. The Study Group did not, however, make any recommendations for legislation that it found necessary to address state statutes of limitations. Under its charge, the Study Group could have either implemented its recommendations through proposed changes to federal law or by devising a model act to be adopted by the states. The Study group, however, did neither. Nor did it make any reference to any federal preemption with respect to statutes of limitations generally or statute commencement dates. The recommendations it did make, however, were not addressed until 1986.
(c) The 1986 SARA Amendments
Based on the Study Group report, Congress modified and expanded CERCLA in 1986 in a series of amendments known as the Superfund Amendments and Reauthorization Act of 1986 (SARA). 19Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub. L.NL. 99-499, 100 Stat. 1613. Included in the SARA Amendments was Section 309, which contained the FRCD. Section 309 was a compromise provision; it initially appeared only in the House version of the bill and was not in the original Senate version of SARA. 20Barnes v. Koppers Inc., 534 F.3d 357, 365 (5th Cir. 2008).
The legislative history for Section 309 consists of a scant three paragraphs. This record indicates Section 309 was intended to address the “problem” identified by the 1982 Study Group. Using CERCLA terminology, Congress asserted:
While State law is generally applicable regarding actions brought under State law for personal injury or property damage, which are caused or contributed by exposure to any hazardous substances, or pollutant or contaminant, released into the environment from a facility, a Federally-required commencement date for the running of State statutes of limitations is established. This date is the date the plaintiff knew, or reasonably should have known, that the personal injury referred to above was caused or contributed to by the hazardous substance or pollutant or contaminate concerned. 21Id., Legislative History, Id., PL 99-499, p.3354.
The reason given by Congress for the amendment was to address those situations where a state statute has “deprived” plaintiffs who were unaware of their injury before they could have “their day in court.”
22Id., Legislative History, Id., PL 99-499, p. 3354. The legislative history for Section 309 made no other reference to any other purpose - such as to effectuate any of the goals or intentions of CERCLA. In writing the statute, Congress specifically retained the requirements and the accompanying definitions that the exposure must result from a CERCLA governed “release” into the “environment” from a “facility,” as those terms were defined and used for purposes of a CERCLA-based recovery action.
23Ri
vas v. Safet
y-Kleen Corporation, supra, 98 Cal. App. 4th Ct. 236. There was no suggestion that Congress intended for Section 309 to preempt state court lawsuits for personal injury or property damage arising from exposure to toxic substances. Instead, the FRCD was clearly written in the context of the existing CERCLA framework. It became law in 1986.
III. Interpretation of the FRCD
Because of its broad language and limited legislative history, courts have been widely inconsistent in their application of the FRCD. Their analysis, however, may be categorized into three different approaches: (1) limiting the FRCD to only those cases where a CERCLA clean-up action has been brought; (2) a broad and all-encompassing application of the FRCD to any state court toxic tort case; and (3) limiting application of the FRCD only to those situations where the CERCLA definitional requirements have been met.
(a) CERCLA Clean-Up Requirement
At least one case has held that the FRCD applies only where a cause of action based on CERCLA has similarly been brought. In Knox v. AC&S, Inc.
24Knox v. AC&S, Inc., 690 F. Supp. 752 (S.D. Ind. 1988)., an Indiana district court concluded Section 9658 would apply only in situations “where a State cause of action exists in conjunction with a CERCLA cause of action”. 25Id., Knox, 690 F. Supp. at 758. The court noted, “The discovery statute of limitations added to CERCLA in the SARA Amendments is limited to personal injury or property damage causes of action under state law in situations where there is an underlying CERCLA action providing for cleanup and remedial activities.” 26Id., Knox, 690 F. Supp. at 757. Other cases suggest or stand for the same proposition. 27Electric Power Board
of Chattanooga v. Westinghouse Elec
tric Corp. 716 F. Supp. 1069 (E.D. Tenn. 1988), cert denied, 493 U.S. 1022, 110 S.Ct 724, 107 L.Ed. 2d 743 (1990), F
irst United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed 2d 1020 (1990); In re Hanford Nuclear Reservation Litigation, 780 F. Supp. 1551, 1574 n. 42 (E.D. Wash. 1991). As one court observed, “CERCLA seeks to provide funds for toxic clean-up and enforcement of federal and state laws regarding such disposal activities, but only when there is also an underlying cause of action under CERCLA.” 28Electric
Power Board of Chattanooga v. Westinghouse Electric Corp., 716 F.Supp 1069, 1081 (E.D. Tenn. 1988). The requirement of the CERCLA action approach, however, has been criticized and rejected by several courts. 29O’Connor v. Boeing N
orth American, Inc., 311 F.3d 1139 (9th Cir. 2002); Barnes v. Koppers Inc., 534 F 3d 357 (5th Cir. 2008); Kowalski v. The Goodyear Tire & Rubber Company, 841 F. Supp. 104 (W.D. N.Y. 1994); Becton v. RhonePoulenc, Inc., 706 So.2d 1134 (Ala. 1997); Evans v. Walter Industries, 579 F. Supp. 2d 1349, 1357 (N.D. Ala. 2008), rev’d on other grounds, 449 F.3d 1159 (11th Cir. 2006). Those cases point to the “plain language” of §9658 and the belief Congress truly intended to alter the statute of limitations rules applicable to state law claims, regardless of whether plaintiffs also asserted CERCLA claims. 30O’Connor v. Boeing North America, Inc., 311 F.3d 1139, 1149 (9th Cir. 2001).
(b) The Broad Approach
A contrary approach has been to apply the FRCD in a broad manner to state toxic tort claims, typically with little analysis as to why it should apply. 31One example is the case Scarlett & Associates, Inc. v. Briarcliff Center Partners, LLC, 2009 WL 3151089 (N.D. Ga. 2009). In that case, the district court simplistically held that “because the alleged property damage in this case involves environmental contamination, Georgia’s four-year statute of limitations is subject to the discovery rule set forth in Section 9658.” Id. at p. 12. Similarly, in Evans v. Walter Industries, Inc., 579 F. Supp. 2d 1349 (N.D. Ala. 2008), the court observed that Section 9658 preempts the Alabama statute of limitations to the extent that the Alabama statute of limitations provides a “commencement date” earlier than when the plaintiffs knew or should have know of the property damage caused by the hazardous substances. The court concluded that CERCLA did not alter Alabama limitations; it only imposed the FRCD to trigger the commencement of that period. See also Parker v. Scrap Metal Processors, Inc., 386 F3d 993 (11th Cir. 2004); Soo Line Railroad Company
v. B.J. Carney & Co., 797 F. Supp. 1472 (D. Minn. 1992); Lessord v. General Electric Co., 258 F.Supp 2d 209 (W.D. N.Y. 2002). For example in Tucker v. Southern Wood Piedmont Company, 32Tucker v. Southern Wood Piedmont Company, 28 F.3d 1089 (11th Cir. 1994). the Eleventh Circuit Court of Appeals applied the FRCD to a property owner’s negligence claim with little analysis of the history of the Act. The court reasoned that to not accept the FRCD “would run counter to the purpose of CERCLA and its amendments, which was to deal with the inadequacies of many tort systems regarding the delayed discovery of the effect of a release of a toxic substance.” 33Id., Tucker v. Southern Wood, 28 F.3d at 1093. Looking at the plain language of §9658, such a conclusion is not surprising, particularly without an analysis of the FRCD’s narrow legislative history. 34See, e.g., Kowalski v. The Goodyear Tire & Rubber Comp. 841 F. Supp. 104 (W.D. N.Y. 1994).
(c) Meeting the CERCLA Definition Requirements
A third and increasingly more common approach used by courts is to require the party seeking to assert the FRCD to establish that the CERCLA definitions utilized in the statute are met, both from a pleading and evidentiary standpoint. Defined terms utilized in the statute include “facility,” “release,” “environment,” and “hazardous” substance. These terms have precise, technical meanings under 42 U.S.C. §9601. Under this approach, these terms become substantive requirements which plaintiffs bear the burden of establishing. 35Angle v. Koppers Inc., ____ S. 3d. ____, 2010 WL 2106043 (Miss. 2010) The FRCD will not apply should a plaintiff fail to establish any of these proof requirements.
Covalt v. Carey Canada Inc.
36Covalt v. Carey Canada Inc., 860 F.2d 1434 (7th Cir. 1988). is an example of a case that limited the application of Section 309 to an instance in which the plaintiff has met the “underlying CERCLA” requirements. The Seventh Circuit in Covalt noted the use of various CERCLA terms in the scope of Section 9658 and asserted that terms such as “release”, “into the environment”, “facility” have specific meanings under CERCLA and that the use of these terms of art should not be ignored. The court observed that “it is hard to believe that [these CERCLA terms are] empty phrase[s].” 37Id., Covalt v. Carey Canada Inc., 860 F.2d at 1437. Covalt’s ultimate holding was based on application of the CERCLA definitions to the facts presented to the court.
More recently, the Fifth Circuit Court of Appeals in Barnes v. Koppers Inc.
38Barnes v. Koppers Inc., 534 F.3d 357, 365 (5th Cir. 2008). engaged in an extensive review of the legislative history of Section 9658 and concluded that the FRCD applied only when the CERCLA definitions contained within it are met by the party seeking the benefit of the FRCD preemption. The court held that Section 9658 operates only where the conditions for CERCLA clean-up are satisfied. The Fifth Circuit rejected the Knox approach which required an underlying CERCLA action, observing, “[T]his does not mean that … a CERCLA suit must be pending or that the plaintiff’s state law injury claims have to be filed in conjunction with a CERCLA suit.” 39Id., Barnes v. Koppers, 534 F.3d at 365. But the court concluded that a plaintiff must—as the proponent of a preemptive defensive statute (the FRCD) used in opposition to what would appear to be a case-ending state statute of limitation—bear the burden to prove that he/she is entitled to the benefit of the FRCD. Under Barnes, a plaintiff must prove that her claims arose from a “release” of “hazardous substances” into the “environment”, as well as other case-specific preconditions establishing that the defendant’s “facility” falls within the scope of CERCLA. Other courts have reached similar conclusions. 40See, e.g., Becton v. RhonePoulenc, Inc., 706 So.2d 1134 (Ala. 1997); Ruffing v. Union Carbide Corporation, 746 N.Y.S. 798 (N.Y. 2002).
(d) Unresolved Issues
Two other issues relating to the FRCD remain unresolved. The first question is whether the FRCD applies to wrongful death actions. The Florida Court of Appeals recently concluded that the FRCD did not encompass wrongful death claims. 41Lee v. CSX Transportation, Inc., 958 So.2d 578 (Ct. App. FL. 2007). The Florida Court in Lee viewed wrongful death claims as a separate and distinct category of claim under common law, not simply a subcategory of “personal injury” claims. The court concluded that the remedial purposes underlying Section 9658 were not a sufficient basis for expanding its scope beyond the distinctions between actions for personal injury and actions for wrongful death. 42Id., Lee v. CSX Transportation, Inc., 958 So. 2d at 587. See also O’Conner v. Boeing North American, Inc., 311 F.3d 1139 (9th Cir. 2002). Yet, other courts have held that Congress intended no distinction between lawsuits involving death from those involving only personal injury, and indeed that such distinctions make no sense. 43See, e.g., Freir
v. Westinghouse Electric Corp., 303 F.3d 176 (2d Cir. 2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1899, 155 L.Ed. 2d 824 (2003); In re Pfohl Brothers Landfill Litigation, 26 F. Supp. 2d 512 (W.D. N.Y. 1998), vacated by Freir v. Westinghouse Electric Corp., 303 F.3d 176 (2d Cir. 2002), cert. denied, 438 U.S. 998, 123 S.Ct. 1899, 155 L.Ed. 2d 824 (2003).
A second topic of controversy is the extent to which the FRCD impacts state statutes of repose. Section 9658 and the FRCD speak in terms of “state statute of limitations”, and do not mention statutes of repose. Yet the Study Group called for a discovery rule in the context of both statutes of limitations and statutes of repose. 44Study Group Report, supra, vol. 1, p. 256 (“the recommendation is intended also to cover the repeal of statues of repose…”). The fact §9658 has no explicit reference to statutes of repose has thus been the basis for courts concluding that the FRCD does not preempt state statutes of repose, 45See e.g., German v. CSX Transportation, Inc., 510 F. Supp. 2d 630 (S.D. Ala. 2007); First United Methodist Church of Hyattsville v. United States Gypsum Corp., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 1107 L.Ed. 2d 1020 (1990); Burlington Northern & Santa Fe Railway Company v. Poole Chemical Company, Inc., 419 F.3d 355 (5th Cir. 2005). leading some courts to conclude that the FRCD does not preempt state statutes of repose. 46See e.g., German v. CSX Transportation, Inc., 510 F. Supp. 2d 630 (S.D. Ala. 2007); First United Methodist Church of Hyattsville v. United States Gypsum Corp., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 1107 L.Ed. 2d 1020 (1990); Burlington Northern & Santa Fe Railway Company v. Poole Chemical Company, Inc., 419 F.3d 355 (5th Cir. 2005). As one court has noted, “to infer that Congress, by enacting CERCLA, intended to preempt state statutes of repose…is to stretch the statute far beyond its intended reach.” 47First United Methodist Church of Hyattsville v. United States Gypsum Company, 882 F.2d 862, 867 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed. 2d 1020 (1990). Other courts, however, draw no distinction between the two concepts. 48See A.S.I., Inc. v. Sanders, 835 F. Supp. 1349, 1358 (D. Kan. 1993) (collecting cases that have treated statutes of limitations and statutes of repose identically for §9658 preemption). See also Fisher v. Ciba Specialty Chemicals Corporation, 2007 W.L. 2995525 (S.D. Ala. 2007). The fact that the term “statute of repose” is not found in Section 9658 is described by one court as an “ambiguity” which justifies reliance on use of statutory construction. 49McDonald v. Sun Oil Company, 548 F.3d 774, 781 (9th Cir. 2008), cert. denied, ____ U.S. ____, 129 S.Ct 2825, 174 L.Ed 2d 552 (2009). Those same courts then reason that “older case-law and treatises use the phrases…interchangeably.” 50Id., McDonald v. Sun Oil
Company, 548 F.3d at 781. Many courts have avoided addressing the issue, holding that Section 9658 does not preempt state law, relying on a variety of reasons without addressing the issue. 51Fischer v. Ciba Specialty Chemicals Corporation, 2007 W.L. 2995525 (S.D. Ala. 2007); Buggsi, Inc. v. Chevron U.S.A., Inc., 857 F. Supp. 1427 (D. Ore. 1994); Electric Power Board of Chattanooga v. Westinghouse Elec., Corp., 716 F. Supp. 1069 (E.D. Tenn. 1988), cert. denied, 493 U.S. 1022, 110 S.Ct. 724, 107 L.Ed 2d 743 (1990); Knox v. AC&S, Inc., 690 F.Supp 757 (S.D. Ind. 1988).
IV. Constitutional Issues
Finally, should application of the FRCD cause a delay in a state statute of limitations or repose from running, thus rescuing a case which would be otherwise barred, constitutional questions arise asking whether Congress, in the context of regulating abandoned toxic waste sites, had exceeded its authority by preempting the running of the state’s statutes of limitations. Only a few cases have addressed this topic.
The constitutionality of the FRCD was initially addressed shortly after Congress enacted the legislation. In Bolin v. Cessna Aircraft Company
52Bolin v. Cessna Aircraft Co., 759 F. Supp. 692 (N.D. Kan. 1991)., the District Court in Kansas concluded that the FRCD did not violate either the Tenth Amendment or the Commerce Clause. Relying upon Garcia v. San Antonio Metro Transit Authority, 53Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed 1016 (1985). the court rejected the Tenth Amendment challenge by observing that “States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity”. 54Bolin v. Cessna
Aircraft, supra., at 759 F. Supp. at 706. The court then rejected the Commerce Clause challenge by reasoning that the FRCD was an integral part of CERCLA’s regulatory scheme. The court accepted the premise that §9658 was a rational means of regulating the release of hazardous substances. Reasoned the court, “By leaving intact state remedies, Congress has allowed the victims of environmental harm to maintain common law causes of action as an additional tool against the effects of hazardous substances.” 55Bolin v. Cessna
Aircraft, supra., 759 F. Supp. at 708.
The only United States Court of Appeals to directly address the constitutionality of the FRCD is the Second Circuit Court of Appeals, which has done so in a somewhat conflicting manner. In 1997, the court declined to address the constitutionality of Section 9658 and the FRCD, but observed that the statute was “of questionable constitutionality.” 56ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 360 n.5 (2d Cir. 1997). Five years later, however, another panel of the Second Circuit addressed the issue and reached the opposite conclusion. In Freir v. Westinghouse Elec. Corp., 57Frier v. Westinghouse Electric Corp., 303 F.3d 176 (2d Cir. 2002), cert. denied, 538 U.S. 998, 123 S.Ct 1800, 155 L.Ed 2d 824 (2003). the Second Circuit rejected challenges under both the Commerce Clause and the Tenth Amendment. The court first addressed the argument that while CERCLA may be within Congress’s powers under the Commerce Clause, the FRCD was not. The court reasoned that the FRCD “provides an inducement” to companies to clean up waste sites, for it exposes them to longer periods of liability. 58Id., Freir, 303 F.3d at 203. The court rationalized without authority or reference that “the longer the period of liability, the more likely it is that a responsible company will bear the expense of the harms it has caused.” 59Id., Freir, 303 F.3d at 203. This provided a sufficient basis to justify the reasonableness of the FRCD under the Commerce Clause. The court then proceeded to deny the Tenth Amendment claim, observing that the FRCD required no action by any state executive or legislative official. Because the FRCD required only the application of a federal law by the Courts of a state-law claim, the court held there was no violation of the Tenth Amendment. 60Id., Freir, 303 F.3d at 205.
The Second Circuit’s rationale in Freir to justify the Commerce Clause challenge is, however, contrary to the express intent behind the FRCD. Congress never intended the FRCD to make CERCLA more effective or to encourage responsible parties to cleanup voluntarily abandoned waste sites. No such goals or intentions were expressed within the FRCD’s legislative history. Rather, the sole concern expressed by Congress to justify the FRCD was on behalf of the potential plaintiff whose toxic tort claim has been extinguished before that injured party was aware that an injury had taken place. Whether that factor alone justifies the complete preemption of existing state statutes of limitations has never been addressed.
The Supreme Court of Alabama likewise expressed reservations about the broad reach of the FRCD in a 1997 decision. 61Becton v. RhonePoulenc, Inc., 706 So.2d 1134 (Ala. 1997). The court observed, “the potential ability of CERCLA’s discovery rule to retroactively revive state-law-based claims for harm to persons or property from hazardous waste, which claims had previously expired under otherwise controlling state statutes of limitations, would seem to create several federalism issues as state government and federal government clash over which has the prerogative to control various facets of environmental policy… The rebirth of federalism may call into question the constitutionality of §9658.” 62Id., Becton, 706 So.2d at 1147.
Finally, prior to Freir a district court in the Second Circuit reached a similar decision about the FRCD’s constitutionality, using the same rationale that was ultimately utilized in Freir. The Western District of New York in In re Pfohl Brothers Landfill Litigation
63In re Pfohl Brothers Landfill Litigation, 26 F. Supp. 2d 512 (W.D. N.Y. 1998); 68 F. Supp. 2d 236 (W.D. N.Y. 1999); reversed on other grounds, 303 F.3d 176 (2000), cert. denied, 538 U.S. 998, 123 S.Ct. 1899, 155 L.Ed 2d 824 (2003). rejected challenges under the Commerce Clause and the Tenth Amendment.
No case has yet to address the potential due process deprivation under the Fifth or Fourteenth Amendments. In instances where a statute of repose, often described as a “substantive” right, has been eliminated, Fifth Amendment issues arise because of the imposition of retroactive liability depriving the defendant of state law protections. No case has yet to address this issue.
In short, only a handful of courts have addressed the constitutional issues raised by the FRCD. Whether this ancillary statute to the CERCLA scheme is constitutional, assuming it is applicable to the facts of the particular personal injury lawsuit, remains to be decided.
V. Conclusion
The FRCD creates a discovery rule establishing that a state statute of limitations in a toxic tort case does not begin to run until the individual is aware of the causal relationship between injury and the chemicals at issue. A review of the legislative scheme which generated this statute, however, shows that the statute was drafted within the limited context of CERCLA. How the statute should be addressed and what limitations should be placed upon it have been the subject of conflicting holdings by the courts.
All of this suggests that the broad scope of the FRCD as written does not necessarily translate into defeating a motion based on the state’s statute of limitations. There is more to the FRCD than meets the eye. Ultimately, the scope and constitutionality of the FRCD will have to be further addressed by more courts and perhaps ultimately by the United States Supreme Court.
