New York’s Reaction to Municipal Water Contamination Cases: Provide an Alternate Statute of Limitations for Those Harmed

By Louis C. Formisano, Esq.

A troubling news topic of late is the rise in reported instances of contamination in municipal water supplies across the country. While the national media has focused much of its attention on the crisis in Flint, Michigan, local communities have also been significantly affected by similar cases of contamination to municipal water supplies. Recently, the community of Hoosick Falls, New York, learned that its municipal water supply had elevated levels of perfluorooctanoic acid (PFOA), a chemical once used to make Teflon. The source of PFOA was identified as being derived from a facility that was formerly operated by Saint-Gobain Performance Plastics and Honeywell International, where PFOA had been used for decades. In light of this finding, the New York State Department of Environmental Conservation (NYSDEC) designated the facility a Superfund site in January 2016, which allows the agency to investigate the contamination source and pursue responsible parties.

In reaction to the events in Hoosick Falls, proposed legislation was introduced in the New York State Legislature. The legislation aims to ensure that residents made sick by the contamination have a viable cause of action despite potentially being barred by the current statute of limitations. The current three-year statute of limitations for exposure to toxic substances begins to run when an injury is discovered or reasonably should have been discovered, whichever is sooner. Further, the present statute of limitations permits a party to commence an action within one year of the discovery of the cause of the injury so long as it is brought within five years of the injury being discovered, or reasonably should have been discovered. For those injured by PFOA contamination in Hoosick Falls decades ago, their claims are barred by the current statute of limitations.

In its most recent form, Bill S6824A gives a plaintiff the ability to commence an action within three years of an area being designated a Superfund site. While a plaintiff may have previously been barred by the current statute of limitations, this provision provides an outlet for those injured by contamination from an area later designated a state or federal Superfund site. For residents of Hoosick Falls made sick by contamination caused by PFOA, this proposed legislation will give them three years to file a lawsuit against responsible parties. In light of the legislative aim of applying this bill to the facility in Hoosick Falls that has previously been designated a Superfund site, it is expected to have retroactive application. Accordingly, other areas designated a Superfund site in the last three years will also be impacted by this bill.

As of June 2016, Bill S6824A has passed both the House and the Senate and has been sent to Governor Cuomo for review.

Louis C. Formisano, an associate with MARC in Florham Park, NJ, advises clients on a broad spectrum of environmental matters, such as contaminated property cleanups, liability and cost allocation. He also handles employment and commercial litigation matters.

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