Premises owners, product manufacturers, employers and other potential toxic tort defendants may find the Fifth Circuit’s recent Barnes v. Koppers, Inc., No. 06-60708 (5th Cir. June 30, 2008), statute of limitations ruling a mixed bag, but generally encouraging. When applicable, a discovery rule in CERCLA section 309 preempts the accrual date in state statutes of limitation for personal injury or property damage claims arising from certain environmental releases. In Barnes v. Koppers, the Fifth Circuit addressed whether section 309 preempted Mississippi’s three-year statute of limitations for negligence claims in a wrongful death lawsuit. Adopting a comparatively conservative interpretation, the Fifth Circuit tied the application of section 309 to exposures from releases actionable under CERCLA. The court concluded that section 309 “operates only where the conditions for CERCLA cleanup are satisfied.” It did clarify, however, that the section does not require an actual CERCLA claim be filed or be pending to apply. Barnes v. Koppers addresses a CERCLA provision increasingly relied on by plaintiffs to resurrect personal injury claims that would otherwise have expired under state statutes of limitation. As the Fifth Circuit noted, federal courts have reached widely different conclusions of the scope of preemption under section 309.

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