What is the new New York State Superfund Date of Discovery Rule?

New opportunity for relief for claimants exposed to hazardous substances at superfund sites

Last week, New York Governor Andrew Cuomo signed into law a change to statute of limitations rules to allow plaintiffs three years following the designation of an area as a state or federal superfund site to file hazardous material exposure claims. Prior to this change in law, such claims were required to be filed within three years of discovery of the impact or injury.

The new rule is good news for potential claimants, as it will generally allow applicable plaintiffs additional time to bring their exposure claims. The law has a “whichever is latest" formulation, which means that claims can be brought for three years following discovery of the condition or injury caused by the exposure or for three years following the naming of the relevant site as a superfund site, whichever is later. Previously, the law only allowed such claims to be brought for three years following discovery of the condition or injury (and this remains the case where the area where the exposure occurred is not named a superfund site). Explanatory language provided with the bill by the New York State Assembly indicated that the change in rules was meant to provide the opportunity for relief to claimants who became ill more than three years ago who did not know at the time they became ill that they had been exposed to hazardous substances, noting that “in many cases, the statute of limitations to bring a personal injury action has long since run before any contamination was ever discovered.”

The new superfund date of discovery law was inspired in part by the recently discovered perfluorooctanoic acid (PFOA) contamination in Hoosick Falls, New York, and the bill’s explanatory language acknowledges “many previously unexplained illnesses” among Hoosick Falls residents who “had no idea they had been exposed to any hazardous toxins until years after they had become sick.” Governor Cuomo designated the village of Hoosick Falls as a state superfund site in January 2016 and state regulators have been negotiating with (and in June 2016 signed consent decrees with) Honeywell and Saint-Gobain, two local manufacturers, regarding liability. The change in law removes a hurdle to personal injury claims arising out of the contamination.

Last week’s law has implications for the already tenuous nature of statutes of limitation in the environmental context. In general, the moment a statute of limitations begins to run on an environmental exposure claim can be difficult to pin down as it often hinges on the date the injury was discovered. Moreover, each instance of exposure may be an opportunity for liability to arise anew. Therefore, there is no easy way for polluters or property owners, lessors or operators to be certain that no claims will arise from past pollution incidents. The new rule adds a wrinkle in that, if a site is named a superfund site, past instances of pollution or exposure may give rise to new three-year windows for old claims to be filed. While there is no strong indication at this point that property owners will change their behavior as a result of the change in law, it is possible that some owners of very contaminated sites may see this change as an incentive to clean up contaminated sites to avoid risk of being designated as a superfund site.