In a case that may make it more difficult for plaintiffs to maintain years-old toxic tort cases in Louisiana, a state appellate court ruled that a 1983 chemical spill did not constitute a “continuing tort.”  See Ned v. Union Pac. Corp., Nos. 14-1310, 14-1311, (La. App. 3d Cir. Apr. 15, 2015).  In affirming the trial court’s decision granting summary judgment to Defendants, the court rejected Plaintiffs’ argument that the continued presence of perchloroethylene (PCE) released in a 1983 chemical spill was a “continuing tort” that tolled the state’s statute of limitations.   Id. at *11.  The court also rejected Plaintiffs’ argument that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempted the state’s statute of limitations. 

The case arose from an April 20, 1983 spill of 11,000 gallons of PCE from an open valve in a parked railcar near the Fisherville neighborhood in Lake Charles, Louisiana.  Plaintiffs alleged the continued presence of PCE constituted an ongoing tort and therefore Louisiana’s one-year statute of limitations did not bar their claims.  

The appeals court cited prior Louisiana decisions, in which courts found releases from leaking underground storage tanks and an unlined waste disposal pit were one-time releases and not continuous torts.  Here, the court found the 1983 PCE release was akin to the releases in those earlier cases; there was no ongoing unlawful conduct that allowed Plaintiffs to rely on the continuing tort theory to avoid Louisiana’s statute of limitations. 

Plaintiffs also argued CERCLA displaces Louisiana’s statute of limitations.  The Court disagreed, holding the CERCLA provision at issue, 42 USC § 9658, was designed to preempt state statutes of limitations barring claims for long-latent injuries.  Because claims are triggered under both state law and CERCLA when a plaintiff knows or reasonably should know of the injury, and Plaintiffs did not convince the court of any inconsistencies between the accrual of state and federal claims, the Court rejected Plaintiffs’ displacement argument.