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High Court Agrees To Decide If CERCLA Preempts State’s Statute Of Repose

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Friday [enhanced version available to subscribers], agreed to take up a case to decide if the Fourth Circuit U.S. Court of Appeals erred in reviving claims brought by North Carolina landowners under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) against a company accused of contaminating groundwater with trichloroethylene (TCE) (CTS Corp. v. Peter Waldburger, et al., No. 13-339, U.S. Sup.; See August 2013, Page 9).

The high court will examine whether CERCLA can preempt North Carolina’s statute of repose.

The plaintiffs, led by Peter Waldburger, sued CTS Corp. in 2011 in the U.S. District Court for the Western District of North Carolina, claiming that the electronics manufacturer contaminated their groundwater as a result of storing chemicals, including TCE, on its Asheville, N.C., property.  CTS sold the site in 1987.

Judge Graham C. Mullen dismissed the plaintiffs’ claims, ruling that North Carolina’s statute of repose required them to bring their claims within 10 years of the company’s last alleged act or omission, regardless of whether the plaintiffs were aware of an injury.  The plaintiffs appealed.

Divided Panel

A divided panel of the Fourth Circuit [enhanced version available to subscribers], reinstated the plaintiffs’ claims, finding that under CERCLA, a state’s statutory limitations period cannot begin to run until a plaintiff becomes aware of an injury.  The majority was composed of Circuit Judges Henry Ford and Andre Davis.

Circuit Judge Stephanie Thacker dissented with the decision to revive the plaintiffs’ claims.

CTS is represented by Brian J. Murray of Jones Day in Chicago.  John J. Korzen of Wake Forest University in Winston-Salem, N.C., is counsel for the plaintiffs.

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