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CERCLA's "Federally Required Commencement Date" Preempts State Statute Of Repose

Steven Siros   By Steven M. Siros, Partner, Jenner & Block

A Georgia federal district court recently found that CERCLA's "federally required commencement date" preempted a state statute of repose.  In In re Camp Lejeune, N.C. Water Contamination Litigation (Free Download), the plaintiffs, who allege that they were injured as a result of exposure to contaminated drinking water at Camp Lejeune, argued that CERCLA Section 9658(a) preempted a state statute of repose that would have barred plaintiffs' claims.

CERCLA Section 9658 provides that:

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.

CERCLA goes on to define the "federally required commencement date" with reference to when a plaintiff knew or should have known that his/her injuries were caused by the hazardous substance, pollutant or contaminant.

The court expressed concern that if it were to accept plaintiffs' argument, it would in effect be allowing CERCLA to resurrect a cause of action that did not exist at the time the case was brought.   The court specifically noted that "although under the Commerce Clause, Congress can supply a cause of action, it is not clear that Congress can breathe new life into an expired cause of action."  That being said, however, the court acknowledged that CERCLA was a remedial statute whose terms should be construed liberally.  As such, the court concluded that notwithstanding its misgivings, Congress had made a policy decision that in situations covered by CERCLA, plaintiffs should have an opportunity to know they have a case before any state limitations period precludes their claims.  Such a limitations period includes a state statute of repose according to the court.

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