Full opinion text
ORDER ARCARA, District Judge. This ease was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on February 16, 1996. On June 10, 1997, defendants filed a motion for partial summary judgment. On March 11, 1998, Magistrate Judge Foschio filed a Report and Recommendation, recommending that: (1) defendants’ motion for partial summary judgment be granted in part and that the survival actions pertaining to decedents Anthony J. Marino, Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck be dismissed; (2) summary judgment be denied as to the survival actions of Mary Jane Farino, Robert L. Farino, Stephen C. Grandillo, Nelson M. Hirsch, Henry A. Kuczka, George Pagels and Leo N. Phillips; (3) the survival and wrongful death actions commenced on behalf of Evo T. Astor, Charles W. Batt, Rose E. Batt, Loraine E. Brezezicki, Gretchen A. Heaney, Joseph A. Inzinnia, Robert A. Martzolf, Vincent J. Mongiovi, Afred G. Mucha and Mary M. Sturm, decedents for whom no personal representative had been duly appointed prior the action being filed, be dismissed with leave to renew; (4) summary judgment as to the remaining wrongful death actions be denied; (5) summary judgment as to the punitive damages claims be granted in part and denied in part; and (6) summary judgment as to the claims for loss of consortium be denied. On April 24,1998, plaintiffs Irene M. Mari-no and Joseph J. Wiedenbeck filed objections to the Report and Recommendation. Defendants also filed objections to the Report and Recommendation on April 24, 1998. Oral argument on the objections was held on September 20,1998. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation: (1) defendants’ motion for partial summary judgment is granted in part and the survival actions pertaining to decedents Anthony J. Marino, Isabelle A. Wied-enbeck and Joseph J. Wiedenbeck are dismissed; (2) summary judgment is denied as to the survival actions of Mary Jane Farino, Robert L. Farino, Stephen C. Grandillo, Nelson M. Hursch, Henry A. Kuczka, George Pagels and Leo N. Phillips; (3) the survival and wrongful death actions commenced on behalf of Evo T. Astor, Charles W. Batt, Rose E. Batt, Loraine E. Brezezicki, Gret-ehen A. Heaney, Joseph A. Inzinnia, Robert A. Martzolf, Vincent J. Mongiovi, Afred G. Mucha and Mary M. Sturm, decedents for whom no personal representative had been duly appointed prior to the action being filed, are dismissed with leave to renew; (4) summary judgment as to the remaining wrongful death actions is denied; (5) summary judgment as to the punitive damages claims is granted in part and denied in part; and (6) summary judgment as to the claims for loss of consortium is denied. This case is referred back to Magistrate Judge Foschio for further proceedings. IT IS SO ORDERED. REPORT and RECOMMENDATION FOSCHIO, United States Magistrate Judge. JURISDICTION This case was referred to the undersigned by the Honorable Richard J. Arcara on February 16, 1996, for report and recommendation on all dispositive motions. It is presently before the court on Defendants’ motion for partial summary judgment (Doc. # 288), filed June 10,1997. BACKGROUND This action was commenced on January 10, 1995, by the filing of the first of seven essentially identical complaints on behalf of sixty-seven plaintiffs, suing on behalf of themselves or their respective decedents, in which Plaintiffs seek monetary damages including punitive damages from Defendants for injuries or deaths from various cancers which they contend were caused by exposure to hazardous and toxic substances from the Pfohl Brothers Landfill located in Cheekto-waga, New York (the “Landfill”). The death actions were filed by the widows, widowers, children or estate representatives of decedents. Plaintiffs allege that they or their decedents lived, worked or engaged in recreational activity in the vicinity of the Landfill and that Defendants either owned and operated the Landfill or were otherwise responsible for the generation or transportation of the hazardous substances to the Landfill. Plaintiffs’ claims are based on state law negligence, strict liability, gross negligence, loss of consortium, and wrongful death. The instant motion seeks summary dismissal of the survival actions and wrongful death claims asserted on behalf of twenty decedents, most of which would be time-barred under New York law. Plaintiffs urge that these claims are timely under the provision of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. 42 U.S.C. § 9601 et seq., (“CERC-LA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 100 Stat. 1613, specifically, § 309, 42 U.S.C. § 9658, which preempts the accrual date for state law toxic tort actions based on exposure to hazardous substances released into the environment by facilities as defined by CERCLA, permitting such claims to accrue upon the discovery of the cause of the injury. Defendants maintain that that CERCLA provision is inapplicable to the instant claims or that it is unconstitutional. On February 16, 1996, Defendants were granted a period of discovery limited to their statute of limitations defense. On June 11, 1997, Defendants filed a motion for partial summary judgment seeking dismissal of the survival and wrongful death actions on behalf of twenty decedents and the consortium claims on behalf of eight surviving spouses as time-barred under the applicable New York statutes of limitations and challenging the applicability and constitutionality of 42 U.S.C. § 9658. Plaintiffs responded on July 11, 1997 and Defendants replied on July 25, 1997. Oral argument was deemed unnecessary. For the reasons which follow, Defendants’ motion for partial summary judgment should be GRANTED in part, and DENIED in part. FACTS The 120 acre Pfohl Brothers Landfill (“the Landfill”), located in the northeastern corner of the town of Cheektowaga, New York, a suburban area adjacent to the City of Buffalo, is listed on the New York State Registry of Active Hazardous Waste Disposal Sites, indicating that the state considers the Landfill to be a public health threat. Many industrial wastes including hazardous substances were deposited into the Landfill between 1932 and 1969. Aero Lake is adjacent to the northwestern corner of the Landfill. Ellicott Creek runs within a few hundred feet of the Landfill and is fed by three tributaries which flow through the Landfill. Ellicott Creek empties into the Niagara River, an international waterway flowing between the United States and Canada. Plaintiffs in this action have filed claims based on state law negligence, strict liability, gross negligence, loss of consortium, and wrongful death for injuries or deaths to their respective decedents whose deaths they contend were caused by exposure to hazardous and toxic substances in the Landfill. Defendants are the alleged owners and operators of the Landfill; the Third-Party Defendants assertedly generated and transported the hazardous and toxic substances to the Landfill. According to Plaintiffs, Defendants’ negligence is based upon Defendants’ failure to take adequate precautionary measures to properly contain and prevent the hazardous substances deposited into the Landfill from escaping and migrating out of the Landfill and its surrounding area where Plaintiffs and their decedents resided. Plaintiffs allege exposure occurred through contact with the ambient air and ground water when their decedents lived, worked or engaged in recreational activity in the vicinity of the Landfill. Among the toxic substances allegedly deposited in the Landfill are polychlorinated biphenol (“PCB”) oils, acetone, trichloroeth-ane, 3-tricloroethane, perchloroethylene, trichloroethylene, tetraehloroephylene, coolant oil, paint treatment, waste cutting oils, de-greasing materials, hydraulic oil, waste paint, industrial wastes, fluorinated solvent waste, cobalt, mercury, toluene, vinyl toluene, benzene, xylene, methylene fluoride, lead, lead driers, calcium, cadmium, zinc oxide, curing sulfur, dry metal dust, sand blast grit, foundry wastes, pine tar pitch, pickling solutions, titanium tetrachloride, polyvinyl alcohol film wastes, polyvinyl chloride, naptha, mek, waste inks, heavy metal wastes, paint thinners, paint solvents, industrial solvents, zirconium sludge, phenolic sludges, and paint sludges such as zinc, tin, chrome, iron, nickel, copper, asbestos, phenol, and fly ash. Defendants who operated manufacturing facilities within the Western New York region and who it is alleged negligently released and disposed of hazardous substances into the Landfill include Westinghouse Electric Corporation during the years 1946 through 1969. General Motors Corporation from the 1950’s through 1968, Curtiss-Wright Corporation during the years 1947 through 1966, W.S. Tyler, Incorporated, as successor in interest to Hewitt-Robbins Corp., during the 1950’s and 1960’s, Laidlaw Waste Systems, Inc., individually, and as successor in interest to U.S. Rubber Reclaiming Co., Inc., during the 1950’s and 1960’s, Warner Lambert Company, through its subsidiary American Optical, during the 1950’s and 1960’s, American Standard, Inc., during the 1950’s and 1960’s. Howden Fan Company, during the 1950’s and 1960’s, Carborundum Company for the time period 1951 through 1967, E.I. Dupont deNemours, from 1955 through 1968, F.N. Burt Co. from 1959 through 1969, and Litton Industries, Inc., as successor in interest to Hewitt Robbins Corp., during the late 1950’s through the 1960’s. Defendants who it is alleged negligently transported and deposited hazardous substances into the Landfill include Waste Management, Inc., through its predecessor, Downing Container Services, from 1952 through the 1960’s, Browning-Ferris Industries, Inc., as successor in interests to Joe Ball Sanitation Services, Inc., Rapid Disposal Services, Inc., and Niagara Sanitation Company, Inc., during the 1950’s and 1960’s, and Dresser Industries, Inc., during the 1950’s and 1960’s. The instant motion seeks summary dismissal of the survival actions and wrongful death claims asserted as to twenty decedents, specifically Evo T. Astor, Charles W. Batt, Rose E. Batt, Lorraine R. Brzezicki, Mary Jane Farino, Robert L. Farino, Stephen C. Grandillo, Gretchen A. Heaney, Nelson M. Hirseh, Joseph A. Inzinna, Henry A. Kuczka, Anthony J. Marino, Robert A. Mart-zolf, Vincent J. Mongiovi, Alfred G. Mucha, George Pagels, Leo N. Phillips, Mary M. Sturm, Isabelle A. Wiedenbeck and Joseph J. Wiedenbeek, Sr. Dismissal of claims for loss of consortium brought in connection with the deaths of Astor, Kuczka, Marino, Martzolf, Mongiovi, Mucha, Pagels and Phillips is also sought. DISCUSSION Summary judgment of a claim or defense will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netbum, 930 F.2d 204, 209 (2d Cir.1991). The moving party for summary judgment bears the burden of establishing the nonexistence of genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party’s favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331, 106 S.Ct. 2548. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there - is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law!” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, supra, at 247-48, 106 S.Ct. 2505. Defendants have moved for partial summary judgment seeking dismissal of the claims of twenty decedents and eight surviving spouses on statute of limitations grounds, arguing such claims are time-barred because 42 U.S.C. § 9658 does not apply to the asserted causes of action, and, alternatively, that the statute is unconstitutional as it constitutes legislation beyond the scope of congressional power under the Commerce Clause and violates the Tenth Amendment of the United States Constitution. Defendants also seek dismissal under New York law of all survival and wrongful death actions which were commenced without a duly appointed personal representative. Defendants further assert that Plaintiffs’ loss of consortium claims must be dismissed as they are derivative of the underlying survival actions on which they are based and therefore are also time-barred. Finally, Defendants argue that the claims for punitive damages must be dismissed as such claims are both legally insufficient and their timeliness is dependent on the underlying time-barred wrongful death, survival actions, and loss of consortium claims. The court will therefore first determine whether Plaintiffs’ claims are time-barred under relevant state law and if so, whether 42 U.S.C. § 9658 is applicable and, to the extent applicable, its preemptive effect on New York law. If the state law is preempted, the court will determine the constitutionality of 42 U.S.C. § 9658. Finally, the court will address whether Defendants’ arguments regarding Plaintiffs’ failure to have properly appointed representatives requires dismissal and whether Plaintiffs’ loss of consortium and punitive damages claims may proceed. 1. Statute of Limitations The timeliness of a claim in federal court under diversity jurisdiction, 28 U.S.C. § 1332(a), is governed by the statute of limitations for the state in which the court sits. Guaranty Trust Co. v. York, 326 U.S. 99, 109-110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Personis v. Oiler, 889 F.2d 424 (2d Cir.1989). Accordingly, the court’s analysis begins with an examination of the statutes of limitations governing the timeliness of survival and wrongful death action's in New York which reveals that, in the instant ease, most of Plaintiffs’ claims are time-barred under the applicable New York state statutes of limitations. a. The Timeliness of Plaintiffs’ Claims under New York Law 1. Survival Actions In New York the traditional limitations period for personal injury torts, including survival actions, based on negligence, strict liability, gross negligence and loss of consortium is three years measured from the date of the injury, defined in toxic tort cases as the date of first exposure to the toxic substance. N.Y.Civ.Prac.L. & R. § 214(5) (McKinney, 1990) (“ § 214(5)”). Here, Plaintiffs seek recovery for their decedents’ injuries based on exposure to toxic substances that first occurred between the early 1900’s, Records of Leo N. Phillips, attached as Exhibit 1 to Affidavit of Laurie Styka Bloom, Esq., in Support of Liaison Group Defendants’ Consolidated Motion for Partial Summary Judgment (Doc. # 291) (“Bloom Affidavit”), filed June 10, 1997, and the late 1960’s. Records of Henry A. Kuczka, Bloom Affidavit, Exhibit 9. All the instant actions are thus untimely under § 214(5) as more than three years have passed since the date of first exposure to the alleged toxic substances and the filing of the claims by decedents’ representatives in 1995 and 1996. In response to complaints that the first exposure rule, judicially established in Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824 (N.Y.1936), barred many plaintiffs from commencing actions for injuries caused by latent effects of exposure to toxic chemicals and other hazardous substances before learning they were injured and the causes thereof, in 1986 the New York legislature enacted § 214-c of New York Civil Practice Law and Rules which created special accrual rules and limitations periods allowing more time for plaintiffs to file claims seeking damages for injuries and deaths attributed to exposure to such substances. Section 214-c(2) provides that a plaintiff who suffers a personal injury in a toxic tort case has three years from the date of the discovery of the injury to commence an action. N.Y.Civ.Prae.L. & R. 214-c (2) (McKinney 1990) (“ § 214-c(2)”). Here, Plaintiffs seek recovery based on injuries to them decedents, the earliest of which was discovered in 1961, Records of Evo T. Astor, Bloom Affidavit, Exhibit 6, and the latest of which was discovered in October 1993. Records of Nelson M. Hirsch, Bloom Affidavit, Exhibit 20. An examination of the relevant exhibits submitted on this motion reveals that, the filing of only Nelson M. Hirsch’s survival action on June 17, 1996 was timely under § 214-c(2), assuming that Hirseh’s discovery of his injury coincided with the diagnosis of Hirsch’s cancer in October 1993. See Records of Nelson M. Hirsch, Bloom Affidavit, Exhibit 20. Further, pursuant to N.Y.Civ.Prae.L. & R. § 214-c(4) (McKinney 1990 & Supp. 1997) (“ § 214-c(4)”), if the plaintiff discovers the cause of a toxic tort injury within five years of the discovery of the injury, the plaintiff may invoke the longer of (a) the three year period from the discovery of the injury or (b) a one year period from the discovery of the cause within which to commence an action. Here, all Plaintiffs assert that they discovered the cause of their decedents’ injuries in 1994 or 1995. Bloom Affidavit, Exhibits 1-20. As less than five years have passed between the asserted dates of discovery of the decedents’ injuries and the discovery of the causes of those injuries only as to the survival actions brought on behalf of the estates of Mary Jane Farino, Nelson M. Hirsch, Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck, Sr., Bloom Affidavit, Exhibits 17, 20, 19 and 16, respectively, only those survival actions meet the first requirement for timeliness under § 214-(c)(4). As stated, with the exception of Hirsch, none of the instant survival actions were filed within three years of the discovery of the fatal injuries. Accordingly, the survival actions are timely only if filed within one year of the discovery of the causes of such- injuries. However, as 1994 is the asserted date of discovery of the cause of the injuries pertaining to the survival actions for Isabelle A and Joseph J. Wiedenbeck Sr., (Bloom Affidavit, Exhibits 16 and 19), and as those survival actions were not filed until June 17, 1996, Case # 96-CV-395A(F) (Docket No.l), they were not filed within one year of the discovery of the alleged cause of death as required by the statute of limitations period under § 214-c(4), and, as such, are time-barred under New York law, regardless of whether 42 U.S.C. § 9658 applies. The survival action of Mary Jane Farino, filed January 10, 1995 is timely under § 214-c(4), assuming, as Plaintiffs allege, that the cause of Farino’s injury was discovered in 1995. Records of Mary Jane Farino, Bloom Affidavit, Exhibit 17. As the asserted date of discovery of the cause of decedent Hirsch’s injuries, is “in 1995,” depending on the precise date of such discovery, the relevant survival action, filed June 17, 1996, may be timely under § 214-c(4) as well as § 214-c(2). Records of Nelson M. Hirsch, Bloom Affidavit, Exhibit 20. However, even with the benefit of 42 U.S.C. § 9658, the survival action of Nelson M. Hirsch is untimely under § 214-c(4). See Discussion, infra, at 531-32. 2. Wrongful Death Claims The applicable statute of limitations for wrongful death actions under New York law is two years measured from the date of death. N.Y. Est. Powers & Trusts Law § 5-4.1 (McKinney 1997). Plaintiffs’ wrongful death claims pertain to the deaths of persons who died between 1963 and 1993, Bloom Affidavit, Exhibits 1-20, and Plaintiffs concede that all of the instant wrongful death actions, none of which were filed within two years from any of Plaintiffs’ respective decedents’ deaths, are untimely under N.Y. Est. Powers & Trusts Law § 5-4.1. Plaintiffs’ Memorandum of Law, at 1. b. The Purpose of the Federally Required Commencement Date As most of the survival actions and all the wrongful death actions are time-barred under New York law, Plaintiffs assert that the timeliness of their survival and wrongful death claims are governed by 42 U.S.C. § 9658, which creates neither a separate federal cause of action based on toxic torts within its terms nor a uniform statute of limitations related to such torts, but rather provides a uniform accrual date from which the applicable state period of limitations governing such tort actions is measured. 42 U.S.C. § 9658A(4)(b). Defendants argue that as 42 U.S.C. § 9658 refers only to actions for personal injury and property damage it is inapplicable to Plaintiffs’ otherwise time-barred survival and wrongful death actions. Liaison Group Defendants’ Memorandum of Law in Support of Consolidated Motion for Partial Summary Judgment (“Defendants’ Memorandum of Law”), filed June 10, 1997, at 21, 25. Section 9658 of Title 42 of the United States Code is part of the Comprehensive Environmental Response, Compensation and Liability Act, known as “CERCLA.” CERC-LA was enacted in response to the increasing threat to the national environment and public health represented by years of unsafe disposal of hazardous substances. Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 1254, 134 L.Ed.2d 121 (1996); B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996). As enacted on December 11, 1980, CERCLA contained many provisions to facilitate the expeditious cleanup of hazardous waste sites and to recover the accompanying costs from the responsible parties. See 42 U.S.C. §§ 9601, et. seq. For example, in addition to permitting actions by federal and state government agencies to remediate the unsafe storage and release of hazardous substances, 42 U.S.C. § 9613(g), CERCLA also authorizes actions by private individuals to accomplish its objectives. 42 U.S.C. § 9607(a)(4)(B) (private individuals may sue for “any other necessary costs of response incurred by any other person consistent with the national contingency plan”); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1041-42 (2d Cir.1985) (CERCLA provides incentive to private parties to take lead role in cleaning up hazardous waste sites). Congress, however, also had intended that CERCLA provide a legal remedy for private claims based on injuries to persons and property damage attributed to the release of hazardous substances into the environment, although Congress was unable, at the time of CERCLA’s enactment in 1980, to agree on the form such legal redress should take. Superfund Section 301(e) Study Group, 97th Cong., 2d Sess., Injuries and Damages from Hazardous Wastes—Analysis and Improvement of Legal Remedies, 16 (Comm. Print 1982) (“Study Group Report”). Accordingly, § 301(e) of CERCLA, 42 U.S.C. § 9651(e), mandated that a study be conducted “to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment.” 42 U.S.C. § 9651(e)(1) (emphasis added). The study also was to particularly address: (A) the need for revisions in existing statutory or common law, and (B) whether such revisions should take the form of Federal statutes or the development of a model code which is recommended for adoption by the States. 42 U.S.C. § 9651(e)(4)(A) and (B). The results of that study were to be delivered to Congress for consideration in amending CERCLA to deal specifically with these questions. 42 U.S.C. § 9651(e)(4). The Study Group filed its report on July 1, 1982. Study Group Report, at 3. Congress did not, however, adopt any of the Study Group’s ten recommendations, which included an administrative claim procedure upon a federally created fund, and enhancement of the states own statutory remedies to provide for and facilitate the redress of personal injuries and property damage attributed to improper disposal of hazardous substances under 42 U.S.C. § 9651(e)(4)(B). Study Group Report, at 193-271. Instead, Congress responded to the Study Group Report’s finding that existing state private tort actions for personal injuries and property damage were effective mechanisms of legal redress, but for the fact that such actions were often time-barred as the relevant state statutes of limitations and related judicial decisions did not permit accrual of an action based on an injury with a long latency period such as cancer to be measured from the discovery of the cause of the injury. Study Group Report, at 21-22, 48. Accordingly, Congress enacted 42 U.S.C. § 9658, providing for a uniform accrual date from which to measure the running of the applicable periods of limitation for state law toxic torts actions. Specifically, the legislation provides that (1) In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute____ (2) Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. 42 U.S.C. 9658(a)(1) & (2). The “federally required commencement date” is defined as the date plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) were caused or contributed to by the hazardous substances or pollutant or contaminant concerned. 42 U.S.C. § 9658(b)(4)(A) (“the FRCD”). Defendants assert that the FRCD does not apply to the survival and wrongful death actions because they are not “actions for personal injuries” as that term appears in the FRCD. Plaintiffs maintain that both survival and wrongful death actions are within the ambit of the FRCD and that the FRCD preempts the accrual rule of the New York general statute of limitations and its wrongful death statute, which otherwise bar their claims. Plaintiffs’ Response to Defendants’ Consolidated Motion for Partial Summary Judgment (“Plaintiffs’ Memorandum of Law”), filed July 11,1997, at 1-2. A cause of action “accrues” for statutory limitations periods when “the plaintiff has ‘a complete and present cause of action’ ” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corporation of California, Inc., 522 U.S. 192, 118 S.Ct. 542, 549, 139 L.Ed.2d 553 (1997). Moreover, “a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund, supra (citing Reiter v. Cooper, 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (“While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at 'another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute”)). Accordingly, as a plaintiff cannot in good faith file suit to obtain relief until causality is known, see Fed.R.Civ.P. 11(b) (requiring that all actions and motions in federal court be made with the reasonable belief that such actions are legally warranted and not made for any improper purpose such as to harass or cause undue delay), an action does not accrue, and hence the relevant statute of limitations does not commence to run, absent knowledge, or a good faith belief as to the existence of each element of the tort including causality. c. The FRCD Applies to State Survival and Wrongful Death Actions Defendants, in their effort to demonstrate that the FRCD does not apply to survival or wrongful death actions, contend that the FRCD was not intended to permit knowledge of the cause of action to accrue to one other than the decedent and that construction of the FRCD to permit such accrual is against public policy. An essential element of both survival and wrongful death actions is that the decedent have died with a viable cause of action against the defendant for the infliction of the injury which caused the death. N.Y. Est. Powers & Trust Law §§ 11-3.2 (survival actions) and 5-4 (wrongful death actions). Here, the asserted FRCD with respect to the claims of each decedent is well after the date of death of each decedent whose claims are subject to the instant motion and who presumably died before it was possible to determine the causes of the decedents’ injuries and resulting deaths. Defendants argue that as the FRCD does not expressly provide that a survival or wrongful death action may accrue upon the discovery of the cause of a decedent’s fatal injury by one other than decedent, each decedent thus died without a viable cause of action. Defendants’ Memorandum of Law, at 27-28. Defendants further assert that permitting a survival or wrongful death action to accrue as of the decedent’s estate representative’s discovery of the cause of the injury is against public policy as such would create the possibility of an infinite limitations period, thus unfairly burdening Defendants by forcing them to defend stale claims long after the alleged exposures and deaths. Defendants’ Memorandum of Law, at 41; Defendants’ Reply Memorandum of Law, at 5-6. The court finds Defendants’ arguments are without merit for several reasons. 1. The FRCD Does Not Require That a Decedent Personally Discover the Cause of the Fatal Injury Prior to Death Defendants oppose application of the FRCD to both survival and wrongful death actions on the basis that “the key requirement for invoking the FRCD statute (each decedent’s personal discovery of the cause of his or her injury) is decidedly and admittedly absent in these eases.” Defendants’ Memorandum of Law at 37-88 (emphasis added). Defendants read the FRCD too narrowly. By its terms, the FRCD is the “date plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. § 9658(b)(4)(A) (emphasis added). The issue therefore is one of statutory interpretation: did Congress mean to include only the physically injured person, ie., the person to who suffered the physical or bodily harm, in the term “plaintiff” as used in the FRCD, or does the term also include an injured party’s legal representative where the injuries result in death before the victim can institute a lawsuit based on his own behalf? For the reasons that follow, the court finds that the latter was Congress’ intent. Where a federal statute is concerned, unless the statute directs otherwise, the terms contained in such federal statute are determined in accordance with federal law. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (holding that definition of “negligence” as used in the Federal Employers’ Liability Act, 45 U.S.C. § 51 was to be determined based on federal law). The FRCD is a federal statute and it is axiomatic that “[t]he starting point in every case involving construction of a statute is the language itself.” Landreth Timber Co., v. Landreth, 471 U.S. 681, 684, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)). In interpreting a federal statute the court “must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law and to its object and policy.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (internal citations and quotations omitted) (determining that the legislative intent of ERISA, 29 U.S.C. §§ 1001 et seq., applied to state law claim seeking relief under that federal law). Further, the plain meaning of a statute controls unless “the literal application of the statute will produce a result demonstrably at odds with the intention of its drafters,” in which case the legislators’ intent rather than the strict language controls. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). A “plaintiff’ is commonly defined as “a person who brings an action: the party who complains or sues in a civil action and so named in the record. A person who seeks remedial relief for an injury to rights; it designates a complainant.” Black’s Law Dictionary, 1150 (6th ed.1990). A “plaintiff’ is also defined as “one who commences a personal action or lawsuit to obtain a remedy for an injury to his rights ... the complaining party in any litigation including demandants in real actions, the claimant in equity, and the libelant in divorce.” Webster’s Third New International Dictionary of the English Language Unabridged 1729 (1986). According to Fed.R.Civ.P. 17(a), “[e]very action shall be presented in the name of the real party in interest. An executor [or] administrator ... may sue in that person’s own name without joining the party for whose benefit the action is brought.” Fed.R.Civ.P. 17(a). The definition of the real party in interest as the plaintiff and including a representative of an estate has been widely applied in federal courts. See, e.g., Barrett v. United States, 689 F.2d 324, 330-32 (2d Cir.1982) (the estate is a plaintiff for purposes of applying discovery rule to a Federal Tort Claims Act claim); Estwick v. U.S. Air Shuttle, 950 F.Supp. 493 (E.D.N.Y.1996) (executor or administrator of estate of decedent permitted to maintain employment discrimination action on behalf of decedent); Tyx v. Secretary of Health and Human Services, 1986 WL 2601 *1 (W.D.N.Y.1986) (duly appointed administrator of an estate would be the real party in interest to maintain an action on decedent’s behalf). In Barrett, supra, the court permitted the representative of a decedent’s estate to bring survival and wrongful death actions on behalf of the decedent who died twenty-two years earlier without ever having obtained personal knowledge of the cause of his fatal injury on the basis that the defendant’s concealment of the decedent’s true cause of death warranted application of the diligence-discovery accrual standard. The court observed that prior to the defendant’s revelation of its actions to the plaintiff representative, the plaintiff had no reason to investigate the possibility that defendant’s actions caused her decedent’s death, and that decedent himself died without ever having the opportunity to assert his claims. Barrett, at 380-31. Not only does the plain meaning test indicate that the term “plaintiff’ includes a legal representative or beneficiary of the physically injured decedent, but the text of the FRCD as a whole indicates Congress carefully chose its phrasing to produce this broader meaning. It is significant that the term “personal injury,” as it appears in the FRCD, is not limited in scope to traditional state law legal terminology as Defendants assert. Defendants’ Reply Memorandum of Law, at 2-4. As there is no modifier to the term indicating an intention to exclude a third person, the object of the noun “plaintiff’ in the FRCD is simply “the” personal injury or property damage without any additional modifications or restrictions. 42 U.S.C. § 9658(b)(4)(A). Adoption of a narrow construction of the term “plaintiff,” limited to the person suffering the physical effects of the exposure as urged by Defendants, would preclude the representative of a decedent’s estate from being substituted as the plaintiff where the decedent initiates the toxic tort action during his life, yet dies while the action was pending. Defendants provide no reason to find that Congress intended such a result. With the discovery rule of the FRCD, the requirement that the decedent have a viable cause of action at death is satisfied although the decedent lacked personal knowledge that he had been injured. The existence of each element of the allegedly tortious conduct occurs at or prior to death regardless of whether the decedent died without knowing he was the victim of the tortious conduct. The question of accrual for purposes of the relevant statute of limitations thus depends on what either the decedent or the representative knew, not solely on what happened to the decedent. Given Congress’ intention in enacting legislation which sought to remedy what it viewed as the out-moded and arbitrary first (or last) exposure rule of accrual and the variants created by the majority of states as a substitute accrual test in toxic tort actions covered by CERCLA, the broader construction of the term “plaintiff’ to include a deceased victim’s representatives in survival and wrongful death actions within the FRCD is more consistent with Congress’ objective in enacting the FRCD to address the “harm to man” caused by exposure to hazardous substances and wastes by expanding the opportunity for legal redress in the courts. 42 U.S.C. § 9651; Study Group Report at 16. Although, as discussed, state law is not controlling on this issue. Defendants’ contention that the awareness of the injury and cause as a prerequisite to a survival action must be acquired by the decedent to accrue an action is also contrary to New York law. For example, in Rothstein v. Tennessee Gas Pipeline Co., 204 A.D.2d 39, 616 N.Y.S.2d 902 (App.Div.2d Dep’t.1994), aff'd, 87 N.Y.2d 90, 637 N.Y.S.2d 674, 661 N.E.2d 146 (N.Y. 1995), the fact that the decedent never personally obtained knowledge of the cause of the injury or even the fact of the injury itself, which was first discovered in exploratory surgery during which decedent died, did not prevent the decedent’s widow, as the representative of his estate from filing valid survival and wrongful death actions on behalf of decedent’s estate and herself, Rothstein, supra, 204 A.D.2d 39, 616 N.Y.S.2d 902. Thus, even New York’s survival or wrongful death action statutes do not require that a decedent die possessed of personal knowledge of the cause, of his fatal injury, nor bar commencement of such action where knowledge of the cause accrued only to the representative and beneficiaries of the decedent’s estate after death. See, e.g., Annunziato, v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (App. Div.2d Dep’t.1996) (implying that where decedents died in 1988 and 1990 without ever personally knowing the cause of their injuries, and representatives of decedents’ estates discovered such causes in 1992, survival action filed in 1993 based on knowledge of representatives may be timely under N.Y.Civ.Prac.L. & R. § 214-c(4)); Greene v. Abbott Laboratories, 148 A.D.2d 403, 539 N.Y.S.2d 351 (App.Div.1st Dep’t.1989) (recognizing that action may accrue for purposes of § 214-e upon discovery of cause of injury by one other than decedent). Accordingly, the fact that the decedent did not personally discover the cause of his fatal injury prior to death does not preclude maintenance of a survival or wrongful death action by the representative of a decedent’s estate. 2. Public Policy Supports Application of the FRCD to Survival and Wrongful Death Actions Defendants maintain that to avoid the creation of an open-ended statute of limitations for toxic torts, public policy argues against a construction of the FRCD that modifies the applicable New York statute of limitations by measuring its accrual date from the discovery of the decedent’s cause of injury by someone other than the decedent. Defendants’ Memorandum of Law, at 41; Liaison Group Defendants’ Reply Memorandum of Law in Support of Consolidated Motion for Partial Summary Judgment (“Defendants’ Reply Memorandum of Law”), at 5. In Defendants view, potential defendants in toxic tort eases would be unfairly burdened with defending old claims in situations where the information establishing injury and cause may be handed from one legal representative who may resign, to a new representative, Defendants’ Memorandum of Law, at 41, or by collusion of a decedent’s descendants to manipulate the running of the statute of limitations by selecting as an estate representative one who had only recently discovered the cause of an injury, despite the earlier knowledge of such cause by other heirs. Defendants’ Reply Memorandum of Law, at 6. Defendants also complain that none of the Plaintiffs suing in a representative capacity can know or prove that their decedents had not discovered the cause of their injuries prior to their respective deaths, triggering the limitations period under § 214-e(4). Defendants’ Reply Memorandum of Law, at 6. Such arguments cannot be sustained under careful scrutiny because they overlook the fact that the FRCD is defined as “the date plaintiff knew (or reasonably should have known)” the cause of the personal injuries. 42 U.S.C. § 9658(b)(4)(A). Such factual knowledge will therefore be attributed to either the decedent or his representative. In New York, for example, if the information was reasonably available for either the decedent or for one prospective estate representative to discover the cause of the decedent’s injury, the applicable limitations statutes are read as imputing such information to all prospective estate representatives, who are then presumed to have constructive knowledge of the facts upon which such cause is based. See Matter of New York County DES Litigation, 89 N.Y.2d 506, 655 N.Y.S.2d 862, 678 N.E.2d 474 (N.Y.1997) (finding that as nothing in the history of § 214-c suggests that the New York Legislature intended to make the running of the applicable statute of limitations dependent on a plaintiffs subjective knowledge of the cause of his condition and that knowledge of the cause of a toxic tort injury may be imputed to a plaintiff once the technical knowledge of the scientific and medical communities exists to establish the cause of such injury); Annunziato, supra. Thus, once any legal representative, i.e., a plaintiff, is cast with the discovery contemplated by the FRCD, such fact cannot be escaped by any succeeding representative. Defendants’ opposition also fails to address the practical fact that such a representative acting as a plaintiff has no interest in delaying suit as such delay would only serve to increase the burdens of establishing already difficult issues of causality. An additional answer to Defendants’ fear of endless exposure to suit under the FRCD is that the FRCD does not displace a state’s prerequisites to suit. For example, in New York once sufficient information is available to establish the FRCD for a claim, failure to name the personal representative of an estate will not prevent the running of the statute for such claim. See Baez v. New York City Health and Hospitals Corp., 80 N.Y.2d 571, 592 N.Y.S.2d 640, 607 N.E.2d 787, 788 (N.Y.1992) (holding statute of limitations not tolled based on infancy where will designated plaintiff as executor of estate and such plaintiff could have timely sought appointment as personal representative of decedent’s estate to commence action on infant’s behalf.). Such a tolling of the FRCD would result in an overly generous accrual mechanism not found elsewhere within New York law and the FRCD by its terms does not displace such prerequisites. This finding comports with general state rules providing that where an injured party dies knowing the cause of his injury, but before the applicable statute of limitations had expired, the survival action may be commenced if a representative of the estate is timely appointed and the action timely commenced, ie., within the three year limitations period under § 214-c(2). Revival was not recognized at common law, Seeley v. Dallao Restaurant, 288 A.D.2d 497, 656 N.Y.S.2d 679 (App.Div.2d Dep’t.1997) (holding that personal injury action sounding in common law negligence should not have been reinstated under revival provision of a statute, N.Y.Gen.Mun.Law § 205-e(2) (McKinney 1997)). The court finds no indication in the language or context of the FRCD supporting an interpretation that where a decedent dies possessed of the knowledge contemplated by the FRCD, Congress intended to revive a toxic tort claim that was extinguished by death without timely appointment of a representative within the applicable period of limitations to timely file such claim. The FRCD expresses no intent to revive such claims where such a failure to comply with state law occurred. Compare New York one year window for filing time-barred claims under revival laws involving specified toxins or hazardous devices: 1986 N.Y.Laws ch. 682, §§ 4, 12 (diethylstilbrestrol, tungsten-carbide, asbestos, chlordane and polyvi-nylchloride); 1998 N.Y.Laws ch. 419, § 1 (silicone breast implants and Daikon shields). Defendants also argue that permitting a decedent’s representative to use the discovery accrual rule in a toxic tort case and bring survival or wrongful death claims could create an “absurd result” whereby a distant descendant, upon discovery of the causes of his ancestor’s injury, could timely commence suit generations after the death of the decedent. Defendants’ Reply Memorandum of Law, at 5-6. But the passing of significant time between death and the commencement of an action is not, in itself, absurd. In fact, several courts have applied the discovery rule in toxic tort cases, permitting survival actions and wrongful death cases to be maintained by the representative of an estate where the decedent never learned of the cause of the fatal injury. Barrett, supra; Rothstein, supra; White v. Johns-Mansville Corp., 103 Wash.2d 344, 693 P.2d 687 (Wash.1985) (survival and wrongful death actions); See, generally, Judy E. Zelin, J.D., Annotation, Time of Discovery as Affecting Running of Statute of Limitations in Wrongful Death Action, 49 A.L.R.4th 972, §§ 4, 5 and 8 (1986) (wrongful death actions). As discussed, using New York law as an example, despite potentially long periods of time passing since exposure to a toxic substance, an action including a survival action may still be timely commenced provided it is filed within three years of the discovery of the resulting injury. § 214-c(2). As to wrongful death actions, in New York such actions may be maintained only by a distributee of decedent, defined as one who is entitled to intestate rights in a decedent’s estate, N.Y.Est. Powers & Trusts Law § 1-2.5 (McKinney 1981). Contrary to Defendants’ fear of unending liability if the FRCD is applied to wrongful death actions, it has long been the law in New York that the death of such distributee results in abatement of a wrongful death action where no action was commenced by the decedent’s dis-tributee during life, and such deceased plaintiff is not survived by another distributee of the first decedent. See Hernandez v. New York City Health and Hospitals Corp., 78 N.Y.2d 687, 578 N.Y.S.2d 510, 585 N.E.2d 822, 825 (N.Y.1991) (citing Meekin v. Brooklyn Heights R. Co., 164 N.Y. 145, 58 N.E. 50 (N.Y.1900) (wrongful death action brought by father as distributee of deceased daughter would have abated upon death of father absent existence of other distributees of daughter)). Thus, the potential toxic tort action cannot continue beyond the lifetime of a decedent’s distributees alive at the decedent’s death. Refusing to recognize the FRCD’s effect in preserving the right of a representative or beneficiary of a decedent’s estate to pursue a survival or wrongful death action based on a toxic exposure also creates an anomaly when compared to the fact that under CERCLA a former owner of real property may be held liable for the costs of removal and cleanup of hazardous substances deposited onto that property while the owner was in fee regardless of how much time has elapsed and that the property may have since been sold or transferred. 42 U.S.C. 9607(a). Moreover, accepting Defendants’ argument that the FRCD does not pertain to survival and wrongful death actions results in an incongruity where a hazardous substance causes property damage claims which, in New York, survive a decedent’s death and may be brought by the representative of the decedent’s estate. N.Y.Est. Power & Trust Law § ll-3.2(b) (McKinney 1997). Additionally, such action accrues under the FRCD upon the discovery that real property has been contaminated by hazardous substances or waste, despite the lapse of time since such substance or waste was released into the environment and the lack of knowledge of the potential claim by the decedent owner. As the FRCD applies to the property damage claim, the discovery of the cause of the damage by the representative of the estate would accrue the action for statute of limitations purposes. Acceptance of Defendants’ exclusion of survival and wrongful death actions from the FRCD results in more beneficial treatment of property damage claims than for toxic torts involving people. The court thus finds that no public policy considerations would be impaired by a construction of the FRCD under which survival and wrongful death actions may be maintained where knowledge of the cause of the decedent’s injuries accrues to the representative of the estate after decedent’s death. Nor does such finding create, as posited by Defendants, an open-ended statute of limitations for potential toxic tort defendants in cases where toxic tort victims have died. Most significantly, as discussed, the plain meaning of Congress’ use of the term plaintiff between the FRCD and its context supports this interpretation and avoids any inconsistency in the treatment of property damage claims and harm to human beings in such cases. In the case at bar, all the instant claims, with the possible exception of the survival action of Mary Jane Farino and the survival and wrongful death actions on behalf of Nelson M. Hirsch, are barred under New York law. Accordingly, it is necessary to examine the effect of the FRCD on the viability of the instant survival and wrongful death claims other than for these Plaintiffs. d. The FRCD’s Effect on Plaintiffs’ Survival Actions under New York Law A survival action is an action for injury to a decedent’s person or property which survives and may be maintained by the representative of decedent’s estate, on behalf of the decedent. N.Y.Est. Powers & Trust Law §§ 11-3.1 and ll-3.2(b) (McKinney 1997); Ratka v. St. Francis Hospital, 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027, 1030 (N.Y.1978). Any damages recovered in such action belong to the decedent’s estate and are distributed in accordance with decedent’s will or the laws of intestacy. N.Y.Est. Powers & Trust Law § 11-3.3 (McKinney 1967). It remains the law that personal injury actions in New York are subject to a three year period of limitations measured from the date of the infliction of the injury. N.Y.Civ. Prac.L. & R. § 214(5) (McKinney 1990). In the case of toxic torts, the date of first exposure to the hazardous substance would be the infliction of the injury under § 214(5). Schmidt, supra. However, under the discovery rule, § 214-c(2), enacted in 1986, a three year statute of limitations applies to actions in which recovery is sought “for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances,” measured from the date of the discovery of the injury or damage. N.Y.Civ.Prac.L. & R. § 214-c(2) (McKinney 1990). Additionally, where the prospective plaintiff discovers his injury but is unaware of the cause until more than three years after discovery of such injury, thus rendering the action untimely under § 214-c(2), an action may still be timely if commenced within the one year limitations period under § 214-c(4), measured from the discovery of the cause of the injury or damage provided that the plaintiff establishes “that the state of medical or scientific knowledge was such that causation of his injury could not have been identified within the three-year period prescribed [under § 214-e(2) ].” Practice Commentary to N.Y.Civ.Prac.L. & R. § 214-c(4), p. 634-35 (McKinney 1990). A transitional rule, N.Y.Civ.Prac.L. & R. § 214-c(6) (McKinney 1990) (“ § 214^c(6)”), further provides that the new toxic tort accrual and limitations rules shall be applicable to acts, omissions or failures occurring prior to, on or after July first, nineteen hundred eighty-six, except that this section shall not be applicable to any act, omission or failure: (a) which occurred prior to July fust, nineteen hundred eighty-six, and (b) which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date, and (c)an action for which was or would have been barred because the applicable period of limitations had expired prior to such date. N.Y.Civ.Prac.L. & R. § 214-c(6). A clear reading of § 214-c(6) indicates that toxic tort actions which meet all three enumerated criteria thereunder, are not given the benefit of the longer toxic tort limitations periods as provided for by §§ 214-c(2) and (4). The FRCD, however, is retroactively applicable to actions brought after December 11, 1980, the date of CERCLA’s enactment. CERCLA, Title II, § 203(b), 100 Stat. 1696. The FRCD thus preserved any claims for which the cause of the injury had yet to be discovered as of December 11,1980. See Kowalski v. Goodyear Tire and Rubber Co., 841 F.Supp. 104, 108 (W.D.N.Y.1994) (holding toxic tort action filed in 1992 timely under § 214-c given the preemptive effect of the FRCD where exposure occurred over twenty-five year period, cancer was diagnosed in 1984, but the cause was not determined until 1990). As the instant claims were all commenced in either 1995 or 1996, assuming the cause of such injuries was discovered, as asserted, in 1994 or 1995, the claims would not have been barred under the FRCD. Thus, the claims do not fall within the third criteria under § 214-c(6), and thereby gain the benefit of the longer accrual rales based on discovery, available under § 214-c. Where federal law preempts state law it does so only to the extent that the state law is inconsistent with the federal law. See Aetna Life Insurance Co. v. Borges, 869 F.2d 142, 148 n. 8 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (refusing to apply federal ERISA where state law was not inconsistent with federal law). By its terms, the FRCD specifically preempts state law only insofar as “the applicable limitations period for such action (as specified in the State statute of limitations or under Common law) provides a commencement date which is earlier than the federally required commencement date.” 42 U.S.C. § 9658(a). Generally, there is no need for the FRCD’s preemptive effect to save claims time-barred under § 214-c(2) as the New York Legislature has provided that in the normal course of toxic tort litigation, if the otherwise applicable period of limitations has run under § 214-c(2), a plaintiffs sole recourse would be to invoke the “discovery of the cause of the injury” accrual rule, § 214-c(4), by demonstrating that it was not possible to determine the cause of his injury within the limitations period for § 214-c(2), the “discovery of the injury rule.” § 214-c(4); Matter of New York County DES Litigation, 89 N.Y.2d 506, 655 N.Y.S.2d 862, 678 N.E.2d 474, 477 (N.Y.1997). Defendants assert that the FRCD is inapplicable to personal injury claims in New York because § 214-e(4) and the FRCD provide for identical accrual dates, and thus, in Defendants’ view, preemption is unnecessary. Defendants’ Memorandum of Law, at 25 Although under both the FRCD and § 214-c(4), the time in which to commence an action is measured from the date the plaintiff knew or should have known the cause of his injury, the FRCD and § 214-e(4) are nevertheless inconsistent to the extent that § 214-c(4) permits the action only where the cause of the injury is discovered within the five years of the discovery of the injury. See N.Y.Civ.Prac.L. & R. § 214-c(4). Thus, because the availability of the one year limitations period under § 214-c(4) is limited to situations where the cause of the injuries is discovered within five years of the discovery of the injury, § 214-c(4) provides for an earlier accrual date than permitted by the FRCD under which the accrual of the potential claim is temporally unrestricted. Compare 42 U.S.C. 9658(b)(4)(A), supra, at 12. Accordingly, to render § 214-c(4) consistent with federal law, the FRCD’s preemptive effect applies to § 214-c(4) to nullify only the maximum five year period within which the statute of limitations under § 214-c(4) applies in a case within the FRCD’s terms. As the FRCD does not affect the actual limitations periods established by state law, the one year period provided by § 214-c(4) will attach to the claim upon discovery of the cause of the injury, as the FRCD permits, regardless of how much time has elapsed since the discovery of the injury. Therefore, the FRCD’s preemptive effect does not displace the one year period established by § 214-e(4). However, Plaintiffs’ assertion that they discovered the causes of their respective decedents’ injuries in 1994 or 1995 is significant. Bloom Affidavit, Exhibits 1-20. In opposing Defendants’ motions with regard to the earlier motions to compel discovery, it was asserted by Plaintiffs that the FRCD was December 19,1994, on which the preliminary findings of the environmental consultants’ reports and studies commissioned by a local law firm were shared with Plaintiffs at a meeting with a member of the firm. Plaintiffs’ Responding Affidavit to Defendants’ Motion to Compel Discovery (Doc. # 134), filed June 7, 1996, at p. 8, ¶ 19. Thus, the information was available on December 19, 1994 for all Plaintiffs to learn the cause of their decedents’ injuries. See Discussion, supra, at 24-27. Accordingly, December 19, 1994 is the latest possible FRCD for any of these claims whose timeliness depends on the FRCD because they are otherwise time-barred under New York law. Defendants further argue that even if the court finds that the FRCD preempts the specific accrual rules established by § 214-e, as § 214-e applies only to those acts which occurred on or after July 1, 1986, Defendants’ Memorandum of Law, at 15-16, no Plaintiff for whom the injury was discovered prior to July 1, 1986, and for which injury more than three years had elapsed between the date of exposure and July 1, 1986, can invoke any part of § 214-c, and thus the FRCD, to demonstrate the required timeliness of such claim. Defendants’ Memorandum of Law, at 15-16. Defendants’ argument is based on N.Y.Civ.Prac.L. & R. § 214-c(6) which restricts