Thursday, July 11, 2013

Waldburger v. CTS Corporation

Jul 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 12-1290. Appealed from the United States District Court for the Western District of North Carolina, at Asheville. In this split decision, the majority explains that in 2009, Appellants David Bradley and Renee Richardson received unwelcome news: Their well water contained concentrated levels of trichloroethylene (TCE) and cis-1,2-dichloroethane (DCE), both solvents that have carcinogenic effects. Not surprisingly, Bradley and Richardson, and twenty-three other landowners (collectively, the landowners), brought a nuisance action against Appellee CTS Corporation (CTS), the alleged perpetrator. Concluding that North Carolina's ten-year limitation on the accrual of real property claims barred the suit, the district court granted CTS's Rule 12(b)(6) motion to dismiss.
    The Appeals Court said, "Having reviewed the dismissal de novo, assuming that the facts stated in the complaint are true, Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005), we hold that the discovery rule articulated in § 9658 of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA), 42 U.S.C. §§ 9601-9675, preempts North Carolina's ten-year limitation. Thus, we reverse and remand."
    The majority says further, "Our decision here will likely raise the ire of corporations and other entities that wish to rest in the security of statutes of repose, free from the threat of being called to account for their contaminating acts. They likely will cite the well-known policies underlying such statutes and asseverate that we have ignored them. But we are not ignorant of these policies, nor have we turned a blind eye to their importance. . . Accordingly, we reaffirm our conclusion that North Carolina's ten-year limitation on the accrual of actions is preempted by § 9658 of CERCLA. In so holding, we simply further Congress's intent that victims of toxic waste not be hindered in their attempts to hold accountable those who have strewn such waste on their land. For the foregoing reasons, we reverse the district court's order and remand the case so that the litigation can proceed."

    In a lengthy dissenting opinion, one Justice indicates, "The majority essentially concludes § 9658 preempts two categories of state statutes: statutes of limitations and statutes of repose. However, in my view the plain and unambiguous language of § 9658 indicates only statutes of limitations were intended to be preempted. Even if the preemptive effect of § 9658 were susceptible to two interpretations, a presumption against preemption would counsel that we should limit § 9658's preemptive reach to statutes of limitations without also extending it to statutes of repose."
    On this subject, the majority indicates, ". . .we join the view articulated by the Ninth Circuit in McDonald v. Sun, in which the plaintiffs found themselves in circumstances remarkably similar to those of the landowners in this case. See 548 F.3d at 777-78, 783 ('[G]iven the ambiguity of the term "statute of limitations at the time of the adoption of § [9658], taken alongside the only evidence of Congressional intent, it is evident that the term 'statute of limitations' in § [9658] was intended by Congress to include statutes of repose.'). Although the Fifth Circuit delineated an opposing view in Burlington Northern & Sante Fe Railway Co. v. Poole Chemical Co., 419 F.3d 355 (5th Cir. 2005), we are unpersuaded by its reasoning. . ."
    Access the complete opinion and dissent (click here). [#Remed, #CA4]