May 05, 2021

For whom CERCLA tolls

Ronnie A. Gosselin and Gina Angiolillo

In fall 2020, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s dismissal of a wrongful death action allegedly stemming from exposure to radioactive chemicals. Pinares v. United Technologies Corp. et al., 973 F.3d 1254 (11th Cir. 2021). In so doing, the Eleventh Circuit traced the legal constellation of public liability actions under the federal Price-Anderson Act (PAA) and Florida’s statute of limitations to find that the action was time-barred—rejecting the appellants’ claims that the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA) discovery-tolling provision could keep their claims alive.

The case: Facts and procedural posture

The underlying facts of the appeal are that Cynthia Santiago was diagnosed with terminal brain cancer in 2009 at age 13. She was one of an alleged cluster of pediatric brain cancer cases in the residential area of Palm Beach County, Florida, where she lived. In 2014, a few months after she turned 18, Cynthia filed suit against an aircraft and rocket engine manufacturer that had allegedly conducted research and development tests nearby. Soil contaminated with radioactive chemicals from the manufacturer’s site was allegedly used as fill for construction and development in Cynthia’s community, and runoff from the soil allegedly leached into the community’s water supply. In 2016, Cynthia passed away from her illness.

Upon Cynthia’s death, her parents became the plaintiffs and amended the suit to include allegations of wrongful death under state-law claims of negligence and trespass, and to assert damages under the PAA. In response, the manufacturer moved for summary judgment, arguing that the Santiagos’ claims were time-barred by Florida’s four-year statute of limitations. The trial court agreed, and the Santiagos appealed.

The appeal: Discovery tolling under CERCLA section 158

Although the Santiagos raised several tolling arguments before the district court, they appealed solely on the grounds that Florida’s statute of limitations had been tolled under section 158 of CERCLA. 42 U.S.C. § 9658. Per section 158, state law statutes of limitations are tolled until (1) “the date the plaintiff knew (or reasonably should have known) that” her “personal injury” was “caused or contributed to by” a “hazardous substance,” or (2) in “the case of a minor, the date on which the minor reaches the age of majority, as determined by State law.” Significantly, however, section 158’s tolling provision applies only to an “action brought under State law for personal injury.” The Eleventh Circuit found this limitation conclusive in affirming dismissal of the Santiagos’ claims.

The ruling: The PAA provides an exclusive federal cause of action; CERCLA section 158 inapplicable

The key to the Eleventh Circuit’s decision lies in the particular application of the PAA. The PAA and its amendments vest the federal courts with original jurisdiction over “any public liability action arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2210(n)(2) (emphasis added). As defined in the act, a “nuclear incident” would include exposures to the radioactive chemicals alleged in Cynthia’s case, and the Santiagos did not contest that theirs was a public liability action to which the PAA applied. Significantly for the Santiagos, however, the Eleventh Circuit has long held that, beyond a mere jurisdictional grant, the PAA in fact creates “an exclusive federal cause of action for radiation injury.” Roberts v. Fla. Power & Light Co., 146 1305, 1306 (11th Cir. 1998) (per curium) (emphasis added). As such, the Eleventh Circuit determined the federal PAA to be the sole avenue for recovery for the Santiagos’ claims.

Because the Santiagos’ action was thus one of public liability under the PAA—a federal, as opposed to state, law—the Eleventh Circuit held that CERCLA’s discovery-tolling provision of state law claims did not apply. In so ruling, the Eleventh Circuit rejected the argument that a public liability action might nevertheless be brought simultaneously under state and federal law because the PAA derives the “substantive rules for decision . . . from the law of the State in which the nuclear incident involved occurs,” 42 U.S.C. § 2014(hh), so as to qualify as an “action under State law” for purposes of CERCLA. Explained the court, “Congress directed that all public liability actions must be brought only under federal law” (emphasis added), and the express limitation on the application of state substantive law only where not “inconsistent with” federal law “underscores that those actions are federal in nature.”

Because Cynthia’s diagnosis in 2009 was deemed the operative trigger date in the absence of any discovery tolling, the Eleventh Circuit affirmed the district court’s conclusion that her suit in 2014 was untimely.

The takeaway: The Eleventh Circuit and beyond

The Eleventh Circuit’s decision in Pinares makes clear that practitioners should be alert for those claims that qualify as public liability actions under the PAA in evaluating the applicable statute of limitations and any asserted discovery tolling provisions; CERCLA section 158 cannot be assumed or counted on to provide relief. Indeed, Pinares itself follows a similar 2018 holding in Halbrook v. Mallinckrodt, LLC, 888 F.3d 971 (8th Cir. 2018), in which the U.S. Court of Appeals for the Eighth Circuit likewise held that CERCLA’s discovery tolling provision did not apply to a public liability action brought in Missouri under the PAA, explaining that Congress had “spoke[n] clearly” to create a federal cause of action. The decision is also in line with such other circuits as the Third and Seventh, which have in other contexts elaborated on the PAA’s position as a substantive federal, as opposed to state, law (see 1996’s In re TMI and 1994’s O’Conner v. Commonwealth Edison Co. decisions, respectively). Pinares reminds practitioners on all sides to carefully evaluate the effect of the PAA, and any other relevant federal statutes, on the applicable statute of limitations and any discovery tolling available under CERCLA.

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Ronnie A. Gosselin and Gina Angiolillo

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Ronnie Gosselin and Gina Angiolillo practice in Alston & Bird’s Environment, Land Use & Natural Resources Practice Group. They assist clients on various state and federal Superfund matters nationwide. Ronnie is based in Atlanta and Gina in Los Angeles.