WASHINGTON, D.C. — (Mealey’s) Attorneys for CTS Corp. and the U.S. Department of Justice told the U.S. Supreme Court April 23 that a Fourth Circuit U.S. Court of Appeals ruling reinstating a lawsuit brought by landowners asserting claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) should be reversed because the claims are untimely (CTS Corp. v. Peter Waldburger, et al., No. 13-339, U.S. Sup. [lexis.com subscribers may access Supreme Court briefs for this case]).
(Transcript available. Document #15-140506-107T.)
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 trichloroethylene (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.
A divided panel of the Fourth Circuit reinstated the 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 filed a petition for writ of certiorari on Sept. 13, 2013. The high court granted the petition on Jan. 10.
Brian J. Murray of Jones Day in Chicago, who represents CTS, pointed out that only four states have statutes of repose and that under North Carolina law, the statute of repose is an element of a cause of action.
“In other words, unless you plead and prove this element of the North Carolina cause of action, you’re out of court,” Murray told the court. “Had Congress gone so far as to remove that element, I think you’re in dangerous constitutional territory.”
Murray asserted that CERCLA Section 9658 only changes the date on which a statute of limitations begins to run and that the statute does not modify statutes of repose.
“Here, the statute of repose is in no way tied to anything having to do with the plaintiff,” Murray said. “It is an end date which begins with the defendant’s last act or omission and ends 10 years later and is the end of the cause of action.”
Joseph R. Palmore of the U.S. Department of Justice in Washington, an amicus curiae for CTS, told the justices that Section 9658 “surgically modifies State law in one, limited respect … by changing the commencement date for the time period in which a civil action may be brought.”
Justice Ruth Bader Ginsburg then asked Palmore if Section 9658 would ever be invoked if each state had only a statute of repose.
“I’m not sure why a state would do that,” Palmore answered. “The Federal statute would still work in that setting, but that wasn’t the record before Congress.”
When asked by Justice Elena Kagan about when he believed the commencement date of the action was, Palmore said 2009, when the respondents learned from the Environmental Protection Agency that their well water was contaminated.
Plaintiffs’ counsel John J. Korzen of Wake Forest University in Winston-Salem, N.C., began by arguing that Section 9658 is intended to preserve claims for latent harm from environmental releases.
“Congress was trying to preserve claims, and used defined terms that do preserve claims … no matter what you call the type of period,” Korzen said. “Congress was trying to preserve claims for long latency illness. That’s very apparent.”
In his rebuttal, Murray concluded that when enacting Section 9658, Congress only altered the commencement date for an action under CERCLA.
“What Congress did here makes absolute sense and the narrow and surgical way in which they did it, given that they were acting in a traditional field of State law supremacy, makes all the sense in the world,” Murray said.
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