Supreme Court to Consider Preemptive Effect Of Discovery Rule on Statutes of Repose

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By Peter Hayes

Jan. 10 --The U.S. Supreme Court has agreed to review whether the superfund law's discovery rule--under which the limitations period for filing a claim begins only when the injury and its cause are known--trumps state statutes of repose as well as limitations (CTS Corp. v. Waldburger, U.S., No. 13-339, petition for certiorari granted 1/10/14).

The court granted certiorari Jan. 10, agreeing to consider a July 2013 ruling by the U.S. Court of Appeals for the Fourth Circuit that a North Carolina statute of repose is preempted by Sec. 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act .

The Fourth Circuit held that the reference to ''statute of limitations'' in Section 9658 includes statutes of repose. As a result, the court said, a trial court erred when it found a nuisance claim brought by a group of landowners against CTS Corp. was time-barred under North Carolina's 10-year statute of limitations.

The Fourth Circuit joined the Ninth Circuit in finding state statutes of repose preempted, thus deepening a split among the federal appeals courts on the issue.

The Fifth Circuit's decision in Burlington Northern & Sante Fe Railway Co. v. Poole Chemical Co., 419 F.3d 355 (5th Cir. 2005), found no preemption of a statute of repose, but the Fourth Circuit found that case distinguishable.

Sec. 9658 of CERCLA states:

(a) State statutes of limitations for hazardous substance cases

(1) Exception to State statutes

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.


While Sec. 9658 doesn't include the word “repose,” the Fourth Circuit said “the terms 'statute of limitations' and 'statute of repose' have seen considerable development in their usage and meaning,” and “that both scholars and courts have often used the terms interchangeably.”

The Fourth Circuit concluded the North Carolina law was a statute of repose because it “bars law suits 'brought after a specified time since the defendant acted,' without regard for the plaintiff's knowledge of his harm.”

The Ninth Circuit ruled on the issue in 2008 in McDonald v. Sun, 548 F.3d 774 (9th Cir. 2008) ( 2008 BL 257558)

TCE, DCE Contamination

In the Waldbauer case, the landowners alleged that CTS contaminated their properties with trichloroethylene (TCE) and 1,2- dichloroethane (DCE) when the company owned the land decades ago. Between 1959 and 1985, CTS operated an electroplating facility in Asheville, N.C.

According to the court, CTS stored ''notable quantities of TCE and manufactured products using TCE,'' at the site. In 1987, CTS sold the facility to Mills Gap Road Associates, and Mills Gap later sold portions of the land to several parties, who subsequently learned their land was contaminated.

In 2011, the landowners sued CTS, alleging ''diminution in the value of their real property'' and fear “for their health and safety and that of their family members,'' and seeking remediation and monetary damages. The trial court dismissed the suit under North Carolina's Gen. Stat. § 1-52(16), which prohibits a “cause of action [from] . . . accru[ing] more than 10 years from the last act or omission of the defendant giving rise to the cause of action.'' The court concluded the last act or omission of CTS occurred in 1987, when it sold the site to Mills Gap. The landowners appealed, arguing that Section 9658 preempts the North Carolina limitation.

To contact the reporter on this story: Peter Hayes at

To contact the editor responsible for this story: Martina S. Barash at

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