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Barnes v. Koppers, Inc.

ELR Citation: 38 ELR 20169
Nos. No. 06-60708, (5th Cir., 06/30/2008)

The Fifth Circuit reversed a lower court decision holding the owner of a wood treatment plant negligent for releasing cancer-causing contaminants into the environment along with its award of $785,000 in damages in favor of the daughter of a neighboring homeowner who died of breast cancer. State law provides that a cause of action accrues when the plaintiff has knowledge of the injury, not knowledge of the injury and its cause. Because the homeowner learned of her injury in 1997, but the daughter did not file suit until 2003—well beyond the state's three-year statute of limitations—the claim is barred. And the Comprehensive Enviornmental Response, Compensation, and Liability Act (CERCLA) §309, a tolling provision that applies to some state-law tort actions stemming from exposure to hazardous substances, does not apply. This provision operates only where the conditions for CERCLA cleanup are satisfied. This does not mean that a CERCLA suit must be pending or that the plaintiff's state law injury claims have to be filed in conjunction with a CERCLA suit. But a plaintiff must prove that her claims arose from a "release" of "hazardous substances" into the "environment," as well as other case-specific preconditions establishing that the defendant's "facility" falls within CERCLA. Here, the plaintiff failed to offer evidence explaining how the plant's soot emissions gave rise to CERCLA coverage through the statutory terms used in §309.