NEAL BLANKENSHIP; EMMA GAY BLANKENSHIP, Plaintiffs - Appellants,
CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants-Appellees, and CONSOL ENERGY, INC., a Delaware Corporation, Defendant. DIANNA L. GRAHAM; ANNA PEARL RATLIFF; IRA GORDON RATLIFF; CONNIE RATLIFF, Plaintiffs - Appellants,
CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants-Appellees, and CNX GAS COMPANY, LLC, a Virginia Limited Liability Company; CONSOL ENERGY, INC., a Delaware Corporation, Defendants.
Argued: December 8, 2016
from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:14-cv-00048-JPJ-PMS; 1:13-cv-00011-JPJ-PMS)
Dawn Ferrebee, MASTERS LAW FIRM, LC, Charleston, West
Virginia; Terrence Shea Cook, T. SHEA COOK, PC, Richlands,
Virginia, for Appellants.
F. Neale, Jonathan Todd Blank, MCGUIREWOODS LLP,
Charlottesville, Virginia, for Appellees.
W. Masters, MASTERS LAW FIRM, LC, Charleston, West Virginia,
Larissa LPC Sneathern, Charlottesville, Virginia, Tennille J.
Checkovich, Lena L. Busscher, MCGUIREWOODS LLP, Richmond,
Virginia; David Grant Altizer, Mandy Varney French, ALTIZER,
WALK AND WHITE PLLC, for Appellees.
NIEMEYER, KING, and AGEE, Circuit Judges.
Niemeyer wrote the opinion, in which Judge King and Judge
NIEMEYER, CIRCUIT JUDGE.
March 1994, Consolidation Coal Company obtained the necessary
government permit to "dewater" its Buchanan Mine,
an underground coal mine in Buchanan County, Virginia. It
then began to pump the water from its mine into the nearby
Beatrice Mine, an exhausted coal mine owned by Island Creek
Coal Company, which authorized Consolidation Coal to do so.
Consolidation Coal completed its dewatering operation in
than 15 years after Consolidation Coal began its dewatering
operation, the plaintiffs, who own property over portions of
the Beatrice Mine, commenced two different but parallel
actions in 2011 and 2013 against Consolidation Coal, Island
Creek Coal, and others, asserting state causes of action for
trespass, negligence, nuisance, and related torts. The
complaints alleged that, by filling the Beatrice Mine with
water, Consolidation Coal damaged the plaintiffs'
property interests in the exhausted Beatrice Mine and
unjustly enriched itself. They demanded hundreds of millions
of dollars in damages, punitive damages, and injunctive
district court granted the defendants' motions for
summary judgment on the ground that Virginia's statutes
of limitations governed and barred the plaintiffs' claims
and that the plaintiffs could not, as they argued, benefit
from the discovery rule provided by the Comprehensive
Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. §§ 9601-9675.
the district court's rulings, the plaintiffs mainly
contend on appeal that CERCLA's discovery rule preempts
Virginia's statutes of limitations and, as a result,
Virginia's statutes of limitations began to run when the
plaintiffs knew or should have known of their alleged injury.
42 U.S.C. § 9658. The plaintiffs assert that, because
they did not learn of their claims until late 2010 or early
2011, their actions filed in 2011 and 2013 were timely.
reasons that follow, we affirm the judgments of the district
Consolidation Coal's mining operations in the Buchanan
Mine were being hampered by the accumulation of water,
Consolidation Coal sought to pump the water from the mine
into the nearby Beatrice Mine, which had been exhausted in
1972. To undertake this "dewatering" operation, it
reached an agreement with Island Creek Coal, which owned the
Beatrice Mine. It also applied for a revision to its existing
mining permit from the Virginia Department of Mines, Minerals
and Energy, a division of the Department of Mined Land
Reclamation, and gave formal notice to the U.S. Department of
Labor's Mine Safety and Health Administration. After
submitting its application, it published four notices of its
application in a local newspaper and filed the actual
application for public view at the local courthouse, as
required by law.
notice that Consolidation Coal published informed the public
of its intent "to Establish a New Mine Dewatering Pump
System for Coal Surface Mining/NPDES Permit"; advised
the public that the application was on file for public view
at the Buchanan County Courthouse; and invited "any
person whose interests [were] or [might] be adversely
affected . . . [to] submit written comments or objections
concerning the proposed change." The application on
public file at the Buchanan County Courthouse further
described the intent of the proposed operation to
"transfer . . . mine ...