North Carolina Statute of Repose Preempted by Superfund Discovery Rule

by Spilman Thomas & Battle, PLLC

The United States Court of Appeals for the Fourth Circuit Court recently ruled that North Carolina’s statutes of repose and limitations is trumped by Superfund’s discovery rule, under which the limitation period for filing a claim begins only when the injury and its cause are known. Waldburger v. CTS Corp., 4th Cir., No. 12-1290, 7/10/13. Citing the Ninth Circuit’s opinion in McDonald v. Sun, 548 F.3d 774 (9th Cir. 2008), the Fourth Circuit held that Superfund’s reference to “statute of limitations” in § 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) includes statutes of repose.

In Waldburger, the landowners allege that the defendant contaminated their properties with trichloroethylene (TCE) and 1,2- dichloroethane (DCE) when the company owned and operated an electroplating facility in Asheville, North Carolina between 1959 and 1985. The Court found that CTS stored “notable quantities of TCE and manufactured products using TCE,” at the site. In 2011, the landowners sued CTS, alleging “diminution in the value of their real property” and fear “for their health and safety and that of their family members,” and seeking remediation and monetary damages.

The trial court dismissed the suit under North Carolina’s Gen. Stat. § 1 – 52(16), which prohibits a “cause of action [from] . . . accru[ing] more than 10 years from the last act or omission of the defendant giving rise to the cause of action” finding that the last act or omission of CTS occurred in 1987, when it sold the site to Mills Gap. The landowners appealed, arguing that CERCLA § 9658 preempts the North Carolina limitation. Section 9658 of CERCLA states:

(a) State statutes of limitations for hazardous substance cases

(1) Exception to State statutes

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

The Fourth Circuit held that the trial court erred when it ruled a nuisance claim brought by a group of landowners against CTS was time-barred under North Carolina’s 10-year statute of repose. Instead, the state’s statute of repose is preempted by CERCLA § 9658.

The Fourth Circuit joins the Ninth Circuit in its views on the relationship of the statutes, further adding to the split among circuit courts that have considered the issue. The Fifth Circuit has refused to find preemption in a similar situation involving a broken tank (rather than a latent harm) where the plaintiffs failed to file a complaint for more than a year after the tank ruptured. During that time, the statute of repose for a product liability claim in that state ran and expired. However, the differing case law may ultimately end up being based upon the distinction between latent versus known harm. Section 9658 is arguably directed only to latent harm.

Finding that § 9658 preempts state law, the Fourth Circuit first concluded that the North Carolina law is a statute of repose, rather than a statute of limitations. “North Carolina’s ten-year limitation bars lawsuits ‘brought after a specified time since the defendant acted,’ without regard for the plaintiff’s knowledge of his harm,” the appeals court said, citing the definition of statute of repose in Black’s Law Dictionary 1546 (9th ed. 2009). Nonetheless, the court decided, § 9658 was meant to apply to statutes of repose as well as statutes of limitation.

The court found that “the terms ‘statute of limitations’ and ‘statute of repose’ have seen considerable development in their usage and meaning,” and “that both scholars and courts have often used the terms interchangeably.” The court also found such a reading consistent with congressional intent. “Refusing to apply Sec. 9658 to statutes of repose allows states to obliterate legitimate causes of action before they exist. Because this is precisely the barrier that Congress intended Sec. 9658 to address, we will not read the statute in a manner that makes it inapplicable in such a circumstance,” the Fourth Circuit said.

While the circuits are currently split, the state of the law may not be as different as it appears at face value. However, it will be important to understand the state of the law in your individual circuit, and the type of harm (latent or known), in evaluating any obstacles or defenses in specific cases.

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.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.