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Practice Tip: The Rule Against (Liability in) Perpetuity
On Jan. 10, 2014, the United States Supreme Court granted certiorari in Waldburger v. CTS Corp., 723 F.3d 434 (4th Cir. 2013), cert. granted, 134 S. Ct. 896 (U.S. Jan. 10, 2014) (No. 13'339), to determine whether Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts state statutes of repose with regard to certain state-law civil actions based on environmental harms. Section 9658 of CERCLA provides:
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 ' if “the applicable limitations period for such an 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.
42 U.S.C. ' 9658(a)(1).
Moreover, the “federally required commencement date” is defined as the date the “plaintiff knew (or reasonably should have known) that the personal injury or property damages ' were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. ' 9658(b)(4)(A). Thus, in cases in which Section 9658 is deemed applicable, the statutory provision creates a federal “discovery rule” that expressly preempts the various states' statutes of limitations. The Supreme Court, however, must resolve whether such preemption also extends to state statutes of repose despite the absence of such a provision in Section 9658.
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