Oregon Couple Can Pursue Mercury Case, Court Says

     (CN) – A federal appeals court in San Diego allowed an Oregon couple to pursue their claim that Sun Oil Company falsely assured them that their property was free of mercury.




     Sun Oil sold a disused mercury mine to Thomas and Marian McDonald in 1973, after the company’s employee allegedly told the McDonalds that there was no mercury in the calcine lying around the property. Calcine is a byproduct of processing mercury ore into mercury.
     In 2002, the Oregon Department of Environmental Quality determined that mercury had been released when the McDonalds moved the calcine around their property. The couple sued Sun Oil in 2003, and the district court granted summary judgment to the oil company.
     The appeals court affirmed, except on the negligence claim, finding that Oregon’s Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) grafts a discovery rule onto statutes of limitations.
     “(T)he term ‘statute of limitations’ in CERCLA is ambiguous and the legislative history of the section indicates that its meaning includes statutes of repose,” Judge Lyle Strom wrote.
     The court also found that the McDonalds’ claim is not based on any promise from Sun Oil to provide mercury-free calcine, “but rather on alleged failures to warn about the mercury in the calcine and to test the calcine,” whether there was an oral agreement or not.

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