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Tucker v. Southern Wood Piedmont Co.

ELR Citation: 24 ELR 21604
Nos. No. 93-9027, 28 F.3d 1089/39 ERC 1225/(11th Cir., 08/12/1994)

The court holds that under §309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Georgia's four-year statute of limitations for torts involving property damage began to run when the owners of land adjacent to a contaminated wood treatment site discovered the harm to their property. The court first notes that Georgia's statute of limitations would ordinarily bar the landowners' negligence, trespass, and nuisance claims because under state law, the cause of action accrued when the tort was committed, and the wood treatment facility ceased operations more than five years before the plaintiffs brought suit. Under the state's "continuing tort" doctrine, however, plaintiffs would be entitled to any damages that they can prove were caused by leakage of hazardous waste onto their property within the four years before they filed their case. The court holds that CERCLA §309, which requires courts to apply a discovery rule to the commencement of the limitations period for certain state-law suits involving hazardous substances, applies to the plaintiffs' claims. The court holds that defendants' "dual function" theory that the federal statute of limitations defines when an action may be brought, while the state statute defines the period for which damages can be recovered, is unsound. Neither case law nor the legislative history support that theory. The court holds that plaintiffs' action accrued when they discovered the wrongs of which they complain. The court assumes that plaintiffs filed suit within four years of discovery, and thus holds that there is no time bar to recovery of early damages.

Counsel for Plaintiffs
Ben L. Weinberg Jr.
Long, Weinberg, Ansley & Wheeler
999 Peachtree St. NE, Ste. 2700, Atlanta GA 30309
(404) 876-2700

Counsel for Defendants
William R. McCracken
505 Courthouse La., Augusta GA 30901
(706) 722-3748

Before ANDERSON and BIRCH, Circuit Judges, and ALBRITTON,* District Judge.