September 28, 2020

Volume X, Number 272

September 28, 2020

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New York Extends Statute of Limitations for Personal Injury Damages Caused by Contamination from Superfund Sites

On July 21, 2016, New York Governor Cuomo signed into law New York State Assembly Bill No. A09568, which amends the statute of limitations for filing actions to recover damages for personal injury caused by contamination from Superfund sites.  The legislation is a result of public concern about the discovery of water contamination in Hoosick Falls, New York, and  Flint, Michigan.

Specifically, the law modifies the statute of limitations for personal injury actions to commence once a site has been designated as a state or federal Superfund site. Actions must be brought within the latter of three years of the Superfund designation or three years of the date that the injury was, or reasonably should have been, discovered. Prior to this amendment, a person needed to file an action for personal injury damages caused by exposure to a toxic substance within three years of the time that an injury was, or reasonably should have been, discovered, whichever was earlier. Now, injured parties that were unaware that their illnesses were caused by exposure to contamination from a Superfund site may have more time to file suit. 

The new law may have unintended but far-reaching and long-term implications for many companies and potentially responsible parties (PRPs) linked to Superfund sites. The breadth of the law extends limitations periods for personal injuries related to Superfund sites that not only pose a threat to public health or the environment, but also to those sites that do not pose a significant threat, have already been properly closed and/or require no further action. Moreover, the law will extend the limitations period for personal injuries that were “caused by contact with or exposure to any substance … found within an area designated as a [S]uperfund site” (emphasis added), including those substances that are present at a site for reasons unrelated to the Superfund designation or were not identified as a concern for cleanup.

Individuals that were barred from bringing claims now may have another opportunity to seek relief.  PRPs involved at Superfund sites that were designated less than three years ago should be aware of their potential new exposure to these “revived” personal injury lawsuits. And, although the number of Superfund sites designated has decreased over the years, PRPs will want to proactively work with state and federal authorities to limit the sites that are ultimately listed.

The law is found in the newly added section 214-f of the New York Civil Practice Law and Rules.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 211

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About this Author

Megan R. Brillault Environmental Litigation Attorney Beveridge & Diamond New York, NY
Associate

Megan Brillault represents individuals, trade associations and businesses, including Fortune 500 companies, in complex civil and criminal environmental and toxic tort litigation, including class and mass actions.

Versed in the complexities of e-discovery, Megan helps clients implement cost-effective and fast-paced litigation solutions for all phases of discovery through post-trial proceedings. She also promotes diversity and inclusion within the firm and the legal community, working with the Leadership Council on Legal Diversity and various women's organizations.

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Sarah A. Kettenmann Environmental Attorney Beveridge & Diamond New York, NY
Associate

Sarah uses her knowledge of environmental law and the physical sciences to help clients solve complex problems in a conservation-minded manner.

She maintains a diverse environmental practice, which includes litigation matters involving toxic torts and products liability and class action litigation concerning environmental and regulatory claims. Her regulatory practice includes advising clients on compliance with, and enforcement of, land use restrictions and remediation, and due diligence for waste facility permits under federal and state statutes. She also counsels clients on procedural and substantive aspects of permitting and environmental impact review, and related strategic planning for project development. She further advises clients on Occupational Safety and Health Act (OSHA) and Toxic Substances Control Act (TSCA) compliance and enforcement. Sarah is a co-author of the Air Quality chapter in the Environmental Law and Regulation in New York treatise.

Before joining Beveridge & Diamond, Sarah clerked for the Hon. Chase T. Rogers, Chief Justice of the Connecticut Supreme Court, from June 2014 to July 2015. During her time at Pace Law School, Sarah served as a judicial extern for Judge Laura Taylor Swain in the United States District Court for the Southern District of New York (S.D.N.Y.). She interned in the Civil Division of the U.S. Attorney’s Office, S.D.N.Y., where she assisted with settlements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and under the Fair Housing Act to increase accessibility for people with disabilities. She also interned in the King’s County District Attorney’s Office and served as an environmental policy adviser and legal extern in the United Nations General Assembly, Permanent Mission of Saint Kitts & Nevis to the United Nations. She was as a research assistant in the Pace University Center for Environmental Legal Studies and acquisitions editor for Pace Environmental Law Review.

At Yale University, Sarah wrote her master's project on international legal frameworks for recovering electronic waste and also conducted field research on the impact of a proposed biofuels production plant in south Hawaii Island.

Prior to law school, Sarah participated in the first federally funded research expedition dedicated solely to examining the accumulation of plastic debris in the North Atlantic Ocean. Before that, she worked as a research associate for the Environmental Law Institute in Washington, D.C., where she assisted staff attorneys and senior attorneys on law and policy projects designed to strengthen environmental governance domestically and internationally.

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