McDonald v. Sun Oil: The Ninth Circuit's Constitutionally Questionable Expansion of CERCLA's Toxic Tort Discovery Rule

• Date: 01 March 2009

3-2009 NEWS & A NALYSIS 39 ELR 10197

When Congress enacted the Superfund Amendments

and Reauthorization Act (SARA) in 1986,1 it

included a provision to address what was perceived

as a signicant shortcoming in state law. Many states’ statutes

of limitation at the time began to run when a plainti was rst

injured, whether or not t he plainti was aware of the injury

or its cause.2 In the ca se of a long-latency disease, allegedly

caused by past exposure to hazardous substances, the limita-

tion period could expire long before the plainti was aware

that he or she even had a claim.3

Congress sought to address this shortcoming by using

SARA to add a federal “discovery rule” to the Comprehensive

Environmental Response, Compensation, a nd Liability Act

(CERCLA) of 1980.4 e new provision added to CERCLA,

in §309, ensured that state statutes of limitation would not

begin to run until “the date the plainti knew (or reason-

ably should have known) that the personal injury or property

damages . . . were caused or contributed to by the hazardous

substance or pollutant or contamina nt concerned.”5 is fed-

erally required commencement date ensured that a plainti

allegedly injured by exposure to hazardous substances would

not be procedura lly barred from bringing a claim before the

plainti was aware of his or her injury and its cause.

Section 309, however, does not explicitly address state-law

rules of repose. Rules of repose, like statutes of limitation, set

a time limit within which a plainti can bring a claim. Unlike

procedural statutes of limitation, though, rules of repose are

considered the “substantive doctrine of the State, eliminating

a cause of action, irrespective of its date of accrual.”6

On November 19, 2008, the U.S. Court of Appea ls for

the Ninth Circuit issued an opinion in McDonald v. Sun Oil

1. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

2. See, e.g., N.Y. C. P. L §214 (1970); P. C. S. A. §5524

(1985).

3. See, e.g., Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir. 1985); Steinhardt

v. Johns-Manville Corp., 430 N.E.2d 1297 (N.Y. 1981).

4. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

5. 42 U.S.C. §9658.

6. Moore v. Liberty Nat’l Ins. Co., 108 F. Supp. 2d 1266, 1274 (N.D. Ala. 2000).

Co.,7 holding that the federal discovery rule in CERCLA §309

preempted Oregon’s statute of repose for negligent injury to

person or propert y. e Ninth Circuit’s opinion, reviving a

plainti’s claims that otherwise would have been barred, con-

icts with the only other circuit court to have addressed this

issue.8 In holding that CERCLA §309 preempts a substantive

state rule of repose, the court’s opinion raise s serious consti-

tutional questions about due process for defendants a nd the

revival of long extinct claims.

I. Rules of Repose

Rules of repose are similar to statutes of limitation, but serve

a distinct purpose. A statute of limitation extinguishes an

injured party’s right to sue once a cause of action accrues (in

other words, it imposes a limit on the amount of time a plain-

ti has to sue once he or she is injured by a tortious act), while

a rule of repose extinguishes the right to sue after a period

of time following the completion of an allegedly tortious act,

regardless of whether a plainti has been injured or a plain-

ti’s injury is manifest.9 e rule of repose is thus broader

than a statue of limitations: “While a statute of limitations

generally is procedural and extinguishes the remedy rather

than the right, . . . repose is substantive and extinguishes both

the remedy and the actual action.”10

Most states have repose statutes covering a broad range of

actions that can implicate injury from haz ardous substa nces

within the scope of CERCLA §309, including actions for

injury occurring after completion of improvement to realty,11

7. No. 06-35683 39 ELR 20283 (9th Cir. Nov. 19, 2008).

8. at case, Burlington Northern & Santa Fe Railway Co. v. Skinner Tank Co., 419

F.3d 355 (5th Cir. 2005), is discussed further, infra.

9. See, e.g., P. Stolz Family Ltd. Partnership v. Daum, 355 F.3d 92, 102 (2d Cir.

2004); Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209, 1217-18 (11th Cir.

2001).

10.  A. J.  Limitation of Actions §32 (2000).

11. See A S. §09.10.055 (10-year limit); A.R.S. §12-552 (8-year limit);

A.C.A. §16-56-112 (4-year limit); C. C.C.P. §337.15 (10-year limit); C.R.S.

§13-80-104 (6-year limit); C. G. S. §52-584a (7-year limit);  D.

C. A. §8127 (6-year limit); D.C. S. §12-310 (10-year limit); F.

S. §95.11 (10-year limit); G. C §9-3-51 (8-year limit); H. R.

McDonald v. Sun Oil: The Ninth Circuit’s

Constitutionally Questionable Expansion

of CERCLA’s Toxic Tort Discovery Rule

by Peter E. Seley and Coral A. Shaw

Peter E. Seley is a partner in the Washington, D.C., oce of Gibson Dunn & Crutcher LLP, and co-chair of the rm’s

Environmental Litigation & Mass Tort Practice Group. Coral A. Shaw is an associate at Gibson Dunn & Crutcher LLP.