Fourth Circuit: Plaintiff Cannot Rely on CERCLA Discovery Rule to Save Tort Claims

Beveridge & Diamond PC

Declining to apply CERCLA’s discovery rule to preempt a state statute of limitations, the U.S. Court of Appeals for the Fourth Circuit upheld a district court decision to dismiss untimely state tort claims stemming from dewatering operations at a Virginia coal mine. See Blankenship v. Consolidation Coal Co., No. 15-02480 (4th Cir. Mar. 9, 2017).

The case arose from a dewatering operation that began in 1994, when Defendant coal mine operators received regulatory approval to pump water from their mine into an exhausted mine underneath Plaintiffs’ nearby property. Nearly 20 years later, Plaintiffs sued, alleging that the dewatering operation damaged their property interests in the exhausted mine and unjustly enriched Defendants by storing the water without paying Plaintiffs.  Plaintiffs only asserted Virginia common law claims, seeking damages for trespass and unjust enrichment.

Typically, the state statute of limitations applies to state law claims, but the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, creates an exception to state statutes of limitation where there is a CERCLA cause of action available. In such cases, the state statute of limitations does not begin to run until the plaintiff knew or reasonably should have known that the contaminant caused or contributed to the property damages. See 42 U.S.C. §§ 9658(a)(1), 9658(b)(4)(A).

Here, Plaintiffs’ alleged injuries occurred in 1994, well beyond Virginia’s five-year statute of limitations, so Plaintiffs argued that CERCLA’s discovery rule should toll the statute. The Fourth Circuit rejected that argument.  The court noted that the CERCLA exception only applies where a CERCLA cause of action is available.  The court held Plaintiffs had no CERCLA cause of action because Plaintiffs did not make any claims for recovery of clean-up costs, and the releases at issue were properly permitted.  To hold otherwise, the court reasoned, would expand the stated scope of CERCLA and alter the traditional relationship between state and federal law.

Furthermore, the court explained, even if the CERCLA discovery rule were to apply, the claims were still filed too late because Plaintiffs should have been aware of the damage to their interests long ago. The court noted a number of public activities that gave Plaintiffs constructive notice of Defendants’ dewatering, including four published notices in the local newspaper, the permit application filed in the local courthouse, at least seven articles in local newspapers discussing the dewatering operation, and the open construction of an above-ground pipeline.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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