Statutes of Repose Unaffected by CERCLA Requirement that State Law Incorporate Discovery Rule in Statutes of Limitation

by Davis Wright Tremaine LLP

On June 9, in CTS Corp. v. Waldburger, et al., No. 13-339, the U.S. Supreme Court held 7-2, that the Fourth Circuit erred in holding that CERCLA Section 9658 applied to the application of the North Carolina statute of repose, and held that the statute of repose barred state law nuisance claims. The majority included the four conservative members of the Court, Justice Kennedy, who wrote for the majority, and both Justice Kagan and Sotomayor, the latter three adding an argument to the majority that the conservative bloc would not adopt. Specifically, while all seven members of the majority accepted the argument based on “ordinary principles of statutory construction,” only Justices Kennedy, Kagan and Sotomayor added that the statutory construction arguments were buttressed by the principle that preemption provisions must be construed narrowly. Arguing for the conservative bloc, Justice Scalia added that the proper rule for construction of express preemption provisions is that given to provisions in general: “Their language should be given its ordinary meaning.”

CTS Corporation had stored hazardous chemicals at its electronics plant in North Carolina. Twenty-four years after it had ceased operations at that facility and sold the property, subsequent owners and adjacent landowners filed a state law nuisance action against the company in federal district court. The district court dismissed the action, relying on the State’s statute of repose, which required that any tort action be brought within 10 years of the last culpable act or omission. The Fourth Circuit Court of Appeals reversed, holding that CERCLA Section 9658 required that States apply a discovery rule to state law personal injury and property damage claims. While the wording and title of Section 9658 refer only to statutes of limitation, with no reference to statues of repose, the appellate court did not find that determinative. Finding the language ambiguous, the Fourth Circuit relied on the principle that remedial statutes should be read in a liberal manner.

In the Supreme Court, the majority accepted that the text of the statute itself was not determinative, notwithstanding the four references and heading that refer only to statutes of limitation and the absence of any reference at all to statutes of repose. However, they found contextual support for the position that Congress did not intend the provision to extend to statutes of repose. The majority noted that the provisions of Section 9658 were adopted in 1986 to implement recommendations to Congress on provisions of CERCLA, including changing state laws imposing restrictive statutes of limitation and statutes of repose, discussing them as distinct categories. Despite that, the section as adopted contained no reference at all to statutes of repose, suggesting that Congress understood there were two distinct types of limitations, and intended Section 9658 to apply to only the one it mentioned.

The majority also noted that the provisions of Section 9658 refer to the period within which a civil action under state law “may be brought.” Referring to the distinction between a limitation period which begins with discovery of an injury, and the statute of repose, which commences with the last culpable act, the majority noted that a statute of repose applies even where it would not have been possible to bring a cause of action due to the absence of knowledge of an injury. The majority also pointed out that Section 9658 allows equitable tolling, which traditionally applies only to statutes of limitation, and does not apply to statutes of repose.

In response, the dissenters, per Justice Ginsburg, asked, “What is a repose period, in essence, other than a limitations period unattended by a discovery rule?” and argued simply that the majority’s interpretation thwarts Congress’s clear intent to address state laws that prevent recovery for injuries with latency periods running for decades.

The practical effect of this decision is somewhat limited, at least at this point. Only a few states (including Oregon) have statutes of repose. And it is not the first time that the Supreme Court has taken Congress at its word(s) in interpreting the badly draft Superfund statute, rejecting practical interpretations by lower courts, e.g., on contribution litigation. However, the Court’s acceptance of this argument might encourage other state legislatures to consider adoption of such provisions to cut off litigation over decades-old environmental contamination. And Congress, in response, might be moved to revise this and other examples of in-artful, if not bad, legislative drafting in CERCLA.


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.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP 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.
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.