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

Date01 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
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.
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.
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 CERCLAs 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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT