The 'Discovery' Rule Is No Longer Supreme: The Supreme Court Holds That State Statutes Of Repose Are Not Preempted By CERCLA

On June 9, 2014, the Supreme Court ruled in CTS Corp. v. Waldburger et al.1 that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or the "Superfund" law), which preempts state statutes of limitations for certain tort actions involving environmental harms, does not preempt state statutes of repose. 42 U.S.C. § 9658. The Court reversed the Fourth Circuit's decision that Section 9658 applies to both state statutes of limitations and state statutes of repose. While the Court's ruling does not affect CERCLA-based cleanups or natural resources damages claims, it has particular significance for claims brought under non-CERCLA alternative theories, where a CERCLA-based claim is unavailable. Such claims would include those subject to CERCLA's petroleum exclusion or exemption for federally permitted releases of hazardous substances, as well as claims for personal injury, medical monitoring, or diminution in property values.

BACKGROUND

Congress enacted CERCLA in 1980 to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Under CERCLA's Section 9658 framework, state statutes of limitations in covered actions are preempted. Congress included Section 9658's preemption provision because of the potentially long delay from the time that the release of contamination occurs and the time that a plaintiff discovers the resulting injury. The statute of limitations instead begins to run when a plaintiff discovers, or reasonably should have discovered, that the harm in question was caused by the contaminant.2

In CTS Corp., the Supreme Court faced the question of whether Section 9658 also preempts state statutes of ultimate repose. A statute of repose puts an outer limit on the right to bring a civil action measured from the date of the defendant's last culpable act or omission. Statutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability.3

In this case, defendant CTS Corporation operated an electronics plant in Asheville, North Carolina, from 1959 to 1985. CTS stored various chemicals on its property and sold the property in 1987. The buyer eventually sold portions of the property to individuals who, together with adjacent landowners, brought a state-law nuisance suit against CTS alleging...