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.
