The United States Court of Appeals for the Fourth Circuit has ruled CERCLA’s discovery rule applies to toll West Virginia’s statutes of limitations only where the plaintiff has a viable CERCLA claim.  Blankenship v. Consolidation Coal Company, et al., No. 15-2480 & 2482 (4th Cir., March 7, 2017). 

Section 9658 of CERCLA establishes a “federally required commencement date” (FRCD) for statutes of limitations, which acts to preempt state accrual rules if accrual under those rules would occur earlier than under the FRCD.  See 42 U.S.C. § 9658(a)(1). The FRCD is the date on which the plaintiff first knew or reasonably should have known that its damages were caused by a hazardous substance. 

The case stems from Consolidation Coal Company’s dewatering of its Buchanan Mine, which began in 1994.  The company complied with the public notice requirement and obtained state permits to authorize the dewatering.  The dewatering process consisted of pumping water to a nearby mine, described as an exhausted coal mine, owned by Island Creek Coal Company.  The dewatering concluded in 2004.

In 2011 and 2013 the Blankenships, who owned property near the exhausted coal mine, filed suit in federal court against Consolidation Coal Company, asserting claims for trespass, nuisance and negligence. The Blankenships demanded compensatory and punitive damages and sought injunctive relief.

Consolidated Coal Company filed for summary judgment, arguing that the Plaintiffs’ common law claims were barred under the state statutes of limitations, and that there was no discovery rule under Virginia law that could allow for tolling. The U.S. District Court for the Western District of Virginia agreed, and in so doing, rejected the Blankenships’ argument that CERCLA’s FRCD applied to toll the otherwise applicable statute of limitations.  

Although the case technically involved the release of hazardous substances, the Blankenships failed to present any evidence that their damages were actually caused by the contaminants in the excess mining water, as opposed to the presence of the water itself.  The Court of Appeals affirmed the District Court’s finding, holding that Plaintiffs were not making claims for damages caused or contributed to by exposure to a hazardous substance, or pollutant or contaminant, as Section 9658 requires, and, as such, CERCLA’s discovery rule did not apply.