On July 21 2016, Governor Cuomo signed into law a bill creating a new statute of limitations in New York for personal injury claims arising from exposure to harmful substances. Unlike New York's existing statute of limitations for personal injury actions—which may run from the time of a plaintiff's injury, discovery of the injury, or discovery of the cause of the injury—this new statute of limitations is triggered by adding property to an existing list of priority sites requiring environmental clean-up. Thus, New York has created a limitations period based upon regulatory action designating property as a Superfund site. This Advisory discusses how this new provision has the potential to alter the timing of toxic tort claims.
Under the New York Civil Practice Law and Rules, the statute of limitations for a personal injury claim is typically three years from the date of injury. N.Y. CPLR § 214(5). This general rule, however, is subject to certain exceptions, including those contained in CPLR § 214-c. Subsection 2 of CPLR § 214-c creates a "discovery rule" for personal injury claims based on the latent effects of exposure to any substance. Under subsection 2, the general three-year period of § 214(5) 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 have been discovered by the plaintiff, whichever is earlier." CPLR § 214-c(2).
Subsection 2 includes its own exception in subsection 4 of § 214-c. Subsection 4 provides that "[w]here the discovery of the cause of the [latent] injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury . . . ." CPLR § 214-c(4); see also Giordano v. Market Am., Inc., 15 N.Y.3d 590, 597-98 (2010). Because subsection 4 provides an additional year to bring a personal injury claim if the cause is discovered within five years of discovery of the injury, at most a plaintiff may have six years from discovery of the injury or the time when the injury could have reasonably been discovered to bring a timely claim.
The New Legislation: CPLR § 214-f
Following a short but tumultuous journey through the New York Assembly and Senate, on June 16, 2016, the Senate approved a bill to add § 214-f to the CPLR. Motivated by the discovery of unregulated perfluorinated compounds in drinking water, this new provision addresses exposure to substances "contained within an area designated as a superfund site" and states, in its entirety:
§ 214-f. Action to recover damages for personal injury caused by contact with or exposure to any substance or combination of substance 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, whichever is latest.
CPLR § 214-f (emphasis added). Thus, § 214-f allows plaintiffs in some cases to pursue personal injury claims based upon exposure to substances found at Superfund sites within three years of the Superfund designation.
The Site Listing Process
Whether to designate an area a "Superfund site" is a decision made by a regulatory agency. Property is designated a federal Superfund site when the Environmental Protection Agency (EPA) adds it to the National Priorities List (NPL), which is a list that EPA is required to maintain by federal statute. 42 U.S.C. § 9605(a)(8)(B). The NPL has been described as a "rough list of priorities, assembled quickly and inexpensively." Carus Chem. Co. v U.S. EPA, 395 F.3d 434, 441 (D.C. Cir. 2005) (citation omitted). EPA determines whether to propose that sites be added to the NPL based on the threat they pose to human health or the environment. States are permitted to propose candidate sites to EPA and, at the request of a state, EPA "generally shall defer final listing of an eligible . . . site," provided that the state is taking voluntary action. 42 U.S.C. § 9605(h)(1). Before adding a site to the NPL, EPA must go through formal rule-making, including taking and responding to public comments. See generally 40 C.F.R. 300.
Similarly, in New York, areas are designated state Superfund sites when they are listed on the Inactive Hazardous Waste Site Registry. See N.Y. Environmental Conservation Law (ECL) § 27-1305. Before adding a site to the Registry, the New York State Department of Environmental Conservation (DEC) must give notice to the property owner. 6 NYCRR § 3375-2.7(b)(6). DEC must publish an updated list annually. ECL § 27-1305(1). Moreover, DEC typically defers listing properties that are undergoing privately funded clean-ups pursuant to New York's Brownfield program. 6 NYCRR § 3375-2.7(c).
When listing locations under either federal or state rules, it is not always possible to describe the site in precise geographical terms. When a site is listed, it is generally described as a geographical area suspected to have been impacted by a release of hazardous materials or wastes (usually the area within a disposal facility or industrial plant boundaries). However, the site is not necessarily coextensive with the boundaries of the facility or plant. Rather, the site consists of all contaminated areas within the property, plus any other locations where contamination from that property may have come to be located. Indeed, the purpose of listing a site is to establish priorities for further detailed evaluation. As a result, the precise extent of the site and the full nature of hazardous substances found there are typically not known at the time of listing.
The Impact of CPLR § 214-f
The sponsor's memorandum in support of this bill states that § 214-f is intended to respond to a perceived "inequity" that arises when "the statute of limitations to bring a personal injury action has run long before any contamination was ever discovered" by "creat[ing] a narrowly tailored legal mechanism to address instances where extraordinary circumstances negatively impact public health." However, the text of § 214-f leaves many questions regarding its scope and applicability unanswered. The New York legislature also introduced potential ambiguity by including what appears to be an erroneous citation to ECL § 27-1303. (ECL 27-1303 requires counties to identify suspected inactive hazardous waste disposal sites and report them to the State. ECL § 27-1305 is the provision that actually describes how the State investigates those sites and adds them to the Registry.) It does not appear that the legislature of any other state has previously used the regulatory decision to designate a Superfund site as a trigger for the limitations period for personal injury claims.
While the practical import of § 214-f remains to be seen, it is easy to anticipate several potentially significant consequences. In what is already a complex area of law, the ambiguity of the provision's text is likely to result in substantial litigation on the statute of limitations issue at Superfund sites in New York. In addition, § 214-f is likely to increase the number of claims by plaintiffs allegedly injured by historic exposure to substances on Superfund sites. Section 214-f also introduces significant potential for mischief and manipulation of federal and state Superfund processes. Only in time will the full impact of this novel legislation be understood.