Supreme Court: CERCLA Does Not Preempt State’s Statute Of Repose

Supreme Court: CERCLA Does Not Preempt State’s Statute Of Repose

WASHINGTON, D.C. — (Mealey's) A U.S. Supreme Court majority today reversed a Fourth Circuit U.S. Court of Appeals panel’s ruling reinstating a lawsuit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a company accused of contaminating groundwater, after finding that the act does not preempt a state’s statute of repose (CTS Corp. v. Peter Waldburger, et al., No. 13-339, U.S. Sup.; See 5/6/2014, Page 10). [ subscribers may access Supreme Court briefs and the opinion for this case]

Justice Anthony M. Kennedy wrote in the majority opinion that CERCLA Section 9658, [enhanced version available to subscribers], which addresses preemption, contains the term “statute of limitations” four times but does not contain the term “statute of repose.”  Justice Kennedy then noted that a 1982 Study Group Report written by a Senate Subcommittee on Environment and Public Works acknowledged the distinction between statutes of limitations and statutes of repose but urged Congress to repeal CERCLA’s preemption on statutes of limitations.  Justices Elena Kagan and Sonia Sotomayor joined fully in the decision.

Claims Revived

Peter Waldburger and other homeowners 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 trichloroethylene (TCE), on its Asheville, N.C., property.  CTS sold the site in 1987.

Judge Graham C. Mullen dismissed the plaintiffs’ claims, [enhanced version available to subscribers], 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.

A divided Fourth Circuit panel reinstated the claims, [enhanced version available to subscribers], 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.

CTS asked the Supreme Court to review the Fourth Circuit’s ruling.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel Anthony Alito Jr. and Clarence Thomas joined in all but one section of the ruling, Part II-D, and Justice Scalia wrote a separate opinion in which he concurred in part with the majority’s ruling and concurred with the judgment.

“I join in all but Part II-D of Justice Kennedy’s opinion. I do not join in that Part because I remain convinced that ‘[t]he proper rule of construction for express pre-emption provision is . . . the one that is customary for statutory provisions in general:  Their language should be given its ordinary meaning,’” Justice Scalia wrote, quoting Cippolone v. Liggett Group Inc. (505 U.S.  504 [1992]).

Chief Justice Roberts and Justices Alito and Thomas joined in Justice Scalia’s opinion.


Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she stated that CERCLA Section 9658 defines the commencement date of a claim as “the date specified in a statute of limitations as the beginning of the applicable limitations period.”  Justice Ginsburg then pointed out that under North Carolina law, a commencement date is determined by the occurrence of “the last act or omission of the defendant giving rise to the [claim].”

“In lieu of uniform application of the ‘federally required commencement date,’ §9658(b)(4), the Court allows those responsible for environmental contamination, if they are in the still small number of States with repose periods, to escape liability for the devastating harm they cause, harm hidden from detection for more than 10 years,” Justice Ginsburg wrote.  “Instead of encouraging prompt identification and remediation of toxic contamination before it can kill, the Court’s decision gives contaminators an incentive to conceal the hazards they have created until the repose period has run its full course.”

Justice Stephen G. Breyer joined in Justice Ginsburg’s opinion.


Brian J. Murray of Jones Day in Chicago represents CTS.

Joseph R. Palmore of the U.S. Department of Justice in Washington is counsel for the government, which was an amicus curiae for CTS.

John J. Korzen of Wake Forest University in Winston-Salem, N.C., represents Waldburger.

[Editor's Note:  Lexis subscribers may download the document here, (Opinion available. Document #08-140613-019Z.). The document(s) are also available at or by calling the Customer Support Department at 1-800-833-9844.]

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