                                  PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                   No. 15-2480


NEAL BLANKENSHIP; EMMA GAY BLANKENSHIP,

                 Plaintiffs - Appellants,

           v.

CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND
CREEK COAL COMPANY, a Delaware Corporation,

                 Defendants - Appellees,

           and

CONSOL ENERGY, INC., a Delaware Corporation,

                 Defendant.



                                   No. 15-2482


DIANNA L. GRAHAM; ANNA PEARL RATLIFF; IRA GORDON RATLIFF;
CONNIE RATLIFF,

                 Plaintiffs - Appellants,

           v.

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.



Appeals 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)


Argued: December 8, 2016                                      Decided: March 9, 2017


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King
and Judge Agee joined.


ARGUED: April Dawn Ferrebee, MASTERS LAW FIRM, LC, Charleston, West
Virginia; Terrence Shea Cook, T. SHEA COOK, PC, Richlands, Virginia, for Appellants.
James F. Neale, Jonathan Todd Blank, MCGUIREWOODS LLP, Charlottesville,
Virginia, for Appellees. ON BRIEF: Marvin W. Masters, MASTERS LAW FIRM, LC,
Charleston, West Virginia, for Appellants. 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.




                                          2
NIEMEYER, Circuit Judge:

        In 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

2003.

        More 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 relief.

        The 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.

        Challenging 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,

                                            3
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.

       For the reasons that follow, we affirm the judgments of the district court.


                                             I

       Because 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.

       The 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


                                             4
proposed change.” The application on public file at the Buchanan County Courthouse

further described the intent of the proposed operation to “transfer . . . mine water from the

Buchanan Mine to the Beatrice Mine via overland pipe” and provided the details of

where the operation was to take place.

       The Virginia Department of Mines, Minerals and Energy approved Consolidation

Coal’s application in March 1994, and Consolidation Coal then began pumping water

from the Buchanan Mine into the Beatrice Mine, completing its activities in 2003.

       During 2005 and 2006, numerous local newspaper articles reported the continuing

protests by local citizens over Consolidation Coal’s mining activities and repeatedly

referred to Consolidation Coal’s dewatering operation.

       In April 2013, about 19 years after Consolidation Coal began dewatering the

Buchanan Mine, Neal Blankenship and Emma Gay Blankenship, who own property over

a portion of the Beatrice Mine, commenced an action in state court against Consolidation

Coal, Island Creek Coal, and others. After voluntarily dismissing that action without

prejudice, they commenced this action in federal court on July 29, 2014, invoking

diversity jurisdiction and alleging state law claims of trespass, unjust enrichment,

negligence, nuisance, and waste.       They demanded over $500 million in damages,

$350,000 per instance of trespass in punitive damages, and injunctive relief.

       Dianna Graham, Anna Pearl Ratliff, Ira Gordon Ratliff, and Connie Ratliff, also

property owners over a portion of Beatrice Mine, commenced a separate action in state

court against Consolidation Coal, Island Creek Coal, and others, on May 31, 2011. After

voluntarily dismissing that action without prejudice, they commenced this action in

                                             5
federal court on January 30, 2013, again invoking diversity jurisdiction and alleging

trespass, unjust enrichment, negligence, nuisance, waste, and, in addition, conversion.

They demanded over $300 million in damages, punitive damages of $350,000 for each

trespass, and injunctive relief.

       In two orders dated October 26, 2015, the district court granted Consolidation

Coal’s and Island Creek Coal’s motions for summary judgment on the ground that the

plaintiffs’ claims were barred by Virginia’s statutes of limitations of three years for the

unjust enrichment claim and five years for the remaining claims. Relying on First United

Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862 (4th Cir. 1989), the

court rejected the plaintiffs’ argument that the state statutes of limitations had been

preempted by CERCLA, which provides a discovery rule in some circumstances for

when state statutes of limitations begin to run. Alternatively, the court concluded that

even if CERCLA preempted the state statutes of limitations, the CERCLA discovery rule

would not aid the plaintiffs because they reasonably should have known about their

claims more than five years before they filed their actions.

       From the district court’s judgments dated October 26, 2015, the plaintiffs in each

action appealed. By order dated December 10, 2015, we consolidated the two appeals.


                                             II

       The district court held that the plaintiffs’ state law causes of action were barred by

Virginia’s statutes of limitations. It concluded that, under Virginia law, those statutes of

limitations began to run when the plaintiffs’ claims accrued and that their claims accrued


                                             6
when their injuries occurred. The court explained that, because Consolidation Coal

began pumping water from the Buchanan Mine into the Beatrice Mine under the

plaintiffs’ property in 1994, the plaintiffs’ alleged injuries occurred more than five years

before the plaintiffs commenced their actions in 2011 and 2013 and therefore the actions

were barred, as the longest applicable limitation period was five years, see Va. Code Ann.

§ 8.01-243(B), while the limitation period for the plaintiffs’ unjust enrichment claims was

three years, see id. § 8.01-246(4).

       Virginia law provides that, for “every action for which a limitation period is

prescribed, the right of action shall be deemed to accrue and the prescribed limitation

period shall begin to run from the date the injury is sustained in the case of . . . damage to

property.” Va. Code Ann. § 8.01-230 (emphasis added). And this has been construed to

mean that the limitation period begins whenever “any injury, however slight is caused

. . . , even though additional or more severe injury or damage may be subsequently

sustained.”   St. George v. Pariser, 484 S.E.2d 888, 890 (Va. 1997).            Unlike some

jurisdictions, Virginia does not have a discovery rule that causes statutes of limitations to

begin running when plaintiffs knew or should have known of their injury.                  See

Comptroller of Va. ex rel. Va. Military Inst. v. King, 232 S.E.2d 895, 900 (Va. 1977).

Thus, the plaintiffs’ lawsuits first filed in state court in 2011 and 2013 were clearly barred




                                              7
by Virginia’s statutes of limitations of three years for unjust enrichment and five years for

the plaintiffs’ other causes of action. *

       The plaintiffs do not take issue with these principles of Virginia law. They argue,

however, that CERCLA preempts Virginia law and modifies the date on which Virginia’s

statutes of limitations begin to run by applying a discovery rule, as set forth in 42 U.S.C.

§ 9658. Specifically, CERCLA’s discovery rule provides that the commencement date

for the running of a state statute of limitations is the date that “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). The plaintiffs argue that because they did not

discover the property damage that they alleged until late 2010 or early 2011, their

lawsuits commenced in 2011 and 2013 were timely.

       The district court rejected the plaintiffs’ argument because the plaintiffs failed to

allege facts giving rise to a CERCLA claim as required for CERCLA to preempt state

statutes of limitations. The court explained that the Beatrice Mine lies approximately

1,000 to 2,000 feet below the surface of the plaintiffs’ properties and that the plaintiffs

conceded that they had never sought, nor had plans to seek, to use the mine voids.

Moreover, the court observed that 9 to 13 percent of the water in the Beatrice Mine had

seeped there naturally and was not the result of Consolidation Coal’s pumping operation

       *  Under Virginia law, the plaintiffs have the benefit of the date they filed their
actions in state court — 2011 and 2013 — since they dismissed those actions voluntarily
and refiled their federal actions within six months of the voluntary dismissals. See Va.
Code Ann. § 8.01-229(E)(3).

                                             8
and therefore that it would not have been practicable even to consider using the mine

voids. Thus, the court concluded that “the plaintiffs have not asserted a CERCLA cause

of action, nor could they, because there is no evidence that they suffered any damages

caused by hazardous substances.” And without a CERCLA claim, the court reasoned,

plaintiffs cannot take advantage of CERCLA preemption and its discovery rule, citing

First United Methodist Church, 882 F.2d at 869.

       We agree with the district court’s conclusion. In an unusual manner, CERCLA

uses preemption to modify state statutes of limitations with respect to state causes of

action by imposing a federal discovery rule in some circumstances. It 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, released into the
       environment from a facility, if the applicable limitations period for such
       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) (emphasis added). And “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.

Id. § 9658(b)(4)(A) (emphasis added).

       While the district court held, and the defendants maintain, that the preemptive

force of § 9658 applies only if the defendants’ conduct could give a plaintiff a CERCLA

cause of action, the plaintiffs contend that § 9658 preempts even where CERCLA does


                                            9
not itself provide a cause of action. We have, however, previously resolved this issue

contrary to the plaintiffs’ position, holding that the preemptive force of § 9658 applies

only if CERCLA provides a cause of action to the plaintiff, whether or not asserted. See

First United Methodist Church, 882 F.2d. at 869; see also Barnes ex rel. Estate of Barnes

v. Koppers, Inc., 534 F.3d 357, 365 (5th Cir. 2008) (“[W]e conclude that § 9658 operates

only where the conditions for a CERCLA cleanup are satisfied”).

      In First United Methodist Church, the plaintiff contended that § 9658 preempted

Maryland’s statute of limitations for a state cause of action for the removal of asbestos

found in a church ceiling.     We rejected this contention, concluding that because

CERCLA does not provide a cause of action for asbestos removal, § 9658’s discovery

rule was inapplicable. We explained that to preempt state statutes of limitations in this

context would be “to stretch [CERCLA] far beyond its intended reach,” observing that

“Congress could not have intended for § 9658 to preempt state law in an area” outside of

CERCLA’s scope. First United Methodist Church, 882 F.2d at 867-69. We reasoned

that “[t]o conclude otherwise would be contrary to the principles of comity which

demand that in our federal system, state law not be preempted unless it is the clear and

manifest purpose of Congress.”      Id. at 869 (internal quotation marks and citation

omitted).

      This principle is important. Were we to interpret § 9658 to preempt state law in a

case involving harms for which CERCLA itself provides no remedy, we would not only

be departing from the stated scope of CERCLA, we would be distorting the traditional

relationship between state and federal law, which limits federal preemption to when

                                           10
Congress has clearly provided for it. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996) (explaining that the presumption against preemption of state law causes of action

rests on the fact that the States are “independent sovereigns in our federal system”). It is

not surprising, therefore, that most of the other courts to have considered the preemptive

force of § 9658 have drawn the same conclusion that we did in First United Methodist

Church. See, e.g., Barnes, 534 F.3d at 364; Covalt v. Carey Canada, Inc., 860 F.2d

1434, 1436-37 (7th Cir. 1988); Elec. Power Bd. Of Chattanooga v. Westinghouse Elec.

Corp., 716 F. Supp. 1069, 1079-80 (E.D. Tenn. 1988), aff’d, 879 F.2d 1368 (6th Cir.

1989); Angle v. Koppers, Inc., 42 So. 3d 1, 8 (Miss. 2010); Greco v. United Techs. Corp.,

890 A.2d 1269, 1286 (Conn. 2006).

       The relevant question for applying § 9658 thus reduces to whether the facts of the

plaintiffs’ complaints give rise to claims that could be asserted under CERCLA. We

conclude that they do not for at least two reasons: (1) Parties may not bring a CERCLA

claim when they have not stated a basis for recovery of response and remediation costs

with respect to a hazardous waste site; and (2) in any event, they may not bring a

CERCLA claim for releases of hazardous substances that are federally permitted.

       Addressing the first reason, we conclude that the plaintiffs have failed to allege

facts suggesting a possible CERCLA claim and therefore that they are unable to assert

that CERCLA preempts the limitations for state causes of action. While the plaintiffs

allege, in various ways, that placing water in the voids left in the Beatrice Mine damaged

their property interests by reducing the value of those interests, their allegations do not

support any claim for the recovery of clean-up costs. In their complaints, they describe

                                            11
how filling the mine voids with water reduced the value of their property and precluded

them from further developing it. And in the same vein, they allege that the water from

the Buchanan Mine obstructed their reasonable use of the mine’s voids. The Graham and

Ratliff plaintiffs allege further a possible loss of methane gas that may have remained in

the Beatrice Mine, as the pumped-in water may have displaced the gas to portions of the

mine not under their property. The plaintiffs also claim that Consolidation Coal was

unjustly enriched by storing the water pumped from its Buchanan Mine without paying

the plaintiffs for the storage space. But none of these alleged harms can form the basis of

a CERCLA claim.

       CERCLA was enacted in 1980 for the limited purpose “to promote the timely

cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts [are]

borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v.

United States, 556 U.S. 599, 602 (2009) (internal quotation marks and citation omitted);

see also 42 U.S.C. § 9607(a) (for contamination on private property, establishing liability

only for the costs of cleaning up hazardous waste sites and for health assessment). Not

only have the plaintiffs conceded that they have not “incurred any cleanup costs,” but the

facts they have alleged would not allow the district court to conclude that their claims

include or could include costs to clean up a hazardous waste site. Instead, they only seek

trespass-type damages for aqueous interference with their interests and unjust enrichment

damages for the storage of water.       Such a suit is far removed from the concerns

motivating CERCLA and therefore cannot support a claim for CERCLA preemption.



                                            12
       Because § 9658 “operates only where the conditions for a CERCLA cleanup are

satisfied,” Barnes, 534 F.3d at 365, and the plaintiffs’ claims are state-law claims for

damages that “stretch far beyond [CERCLA’s] intended reach,” First United Methodist

Church, 882 F.2d at 867, § 9658 does not preempt Virginia’s statutes of limitations to

give the plaintiffs the benefit of the CERCLA discovery rule.

       Addressing the second reason that also precludes CERCLA preemption, the only

releases underlying the plaintiffs’ claims are the transfers of water from the Buchanan

Mine to the Beatrice Mine. Those transfers, however, were permitted by a revision in

March 1994 to Consolidation Coal’s existing mining permit, and therefore those transfers

cannot be the basis of a CERCLA claim. See 42 U.S.C. § 9607(j) (excluding CERCLA

liability for any “federally permitted release”).

       Before it began its dewatering operation, Consolidation Coal applied for a revision

to its mining permit “to dewater the North Gob seal area of the Buchanan No. 1 Mine by

pumping from a dewatering bore hole and discharging the water in a Beatrice Mine

borehole.” And the approved public notice alerted the public to a “Revision [to mining

Permit No. 1400047] to Establish a New Mine Dewatering Pump System for Coal

Surface Mining/NPDES Permit under Chapter 19, Title 45.1 Code of Virginia.” Finally,

in its letter of March 7, 1994, the Virginia’s Department of Mines, Minerals and Energy

approved the permit revision, stating, “Your operation under Permanent Program Permit

Number 1400047 has been revised as requested.”

       While the permit revision under which Consolidation Coal transferred the water

from its mine to the Beatrice Mine was issued by the Virginia Department of Mines,

                                              13
Minerals and Energy, the permit nonetheless served as a federally authorized permit

under federal law. The Clean Water Act allows the EPA to enable state agencies to issue

National Pollutant Discharge Elimination System (“NPDES”) permits, which authorize

the discharge of pollutants. 33 U.S.C. § 1342(b). And the Virginia Department of

Mines, Minerals and Energy is specifically designated to issue these permits and did so in

this case. 9 Va. Admin. Code 25-31-940.

       Because Consolidation Coal’s water transfer was permitted by a state agency that

had been delegated authority by federal law, it amounted to a federally permitted transfer

and could not serve as a basis for a cause of action under CERCLA. See 42 U.S.C.

§ 9607(j).


                                           III

       Even were the plaintiffs to have the benefit of § 9658’s discovery rule, they still

could not satisfy the applicable statutes of limitations. Section 9658 provides that the

“commencement date” when statutes of limitations begin to run is “the date the plaintiff

knew (or reasonably should have known) that the . . . property damages . . . were

caused.” 42 U.S.C. § 9658(b)(4)(A) (emphasis added). We conclude, based on the

extensive record of publicity about Consolidation Coal’s activities in this case, that the

plaintiffs reasonably should have known of their damages more than five years before

they commenced their actions in 2011 and 2013.

       As required by law, Consolidation Coal published notice of its application for a

revision of its mining permit to allow the dewatering of its Buchanan Mine in the


                                           14
Richlands News-Press for four consecutive weeks, beginning November 4, 1993. The

notice provided:

       Consolidation Coal Company . . . is applying to the Virginia Division of
       Mined Land Reclamation for Revision to Permit No. 1400047 in order to
       establish a dewatering pump system for the Buchanan Mine.

                                         * * *

      A copy of the application materials will be available for inspection and
      public comment at the Buchanan County Courthouse. Any person whose
      interests are or may be adversely affected by the proposed change . . . may
      within 30 days of the (date of 4th publication) submit written comments or
      objections concerning the proposed change.

The application itself was filed in the Buchanan County Courthouse, and it remained

there for public view from November 1, 1993, through January 20, 1994.                 The

application, which gave further detail of the proposed operation, stated that Consolidation

Coal was seeking a revision to its permit for the “transfer of mine water from the

Buchanan Mine to the Beatrice Mine via overland pipe” and included detailed

descriptions of the location and a map. The Virginia Department of Mines, Minerals and

Energy specifically determined that Consolidation Coal’s publications satisfied all

applicable requirements.

       Moreover, following issuance of the permit revision in March 1994, Consolidation

Coal began openly constructing a pipeline above ground for the transfer.

      In addition to Consolidation Coal’s publication of the notice and the permit

application and its open implementation of the dewatering operation, its dewatering

operation was discussed in numerous local newspaper articles reporting generally on

Consolidation Coal’s mining activities, the opposition to them, and the resolutions

                                            15
against them adopted by public bodies. Specifically, articles discussing the dewatering

operation were published in The Virginia Mountaineer in Buchanan County on

November 17, 2005; December 8, 2005; December 15, 2005; January 19, 2006; June 1,

2006; and October 5, 2006, and in another newspaper, The Voice, on January 27, 2006.

       While the plaintiffs concede that Consolidation Coal’s dewatering activities were

knowable, they assert that they did not view the public notices and did not subscribe to

the relevant newspapers.     They suggest that their “states of mind are decisive” in

determining when CERCLA’s commencement date for statutes of limitations were

triggered. This argument, however, reflects a misunderstanding of the discovery rule set

forth in § 9658. That provision makes clear that the clock begins to run not only when

plaintiffs actually knew of the dewatering activities but also when plaintiffs reasonably

should have known of them.

       We conclude that the level of public notice and publicity that occurred with

respect to Consolidation Coal’s dewatering activities should reasonably have informed

the plaintiffs of those activities more than five years before the plaintiffs commenced

their lawsuits. Thus, even under the discovery rule in § 9658, the plaintiffs’ claims would

be barred by Virginia’s statutes of limitations.


                                             IV

       Finally, the plaintiffs argue that the statutes of limitations should be tolled under

Virginia law because Consolidation Coal concealed its dewatering activities. They claim

that the defendants “intended to secretly dispose of their contaminated wastewater into


                                             16
the [plaintiffs’] underground mine void such that the Plaintiffs were deprived of any

knowledge or means to know of the Defendants’ wrongdoings.”

          To be sure, Virginia law provides for tolling in “extraordinary circumstances”

such as when “fraud prevents a plaintiff from asserting its claims” or when the defendant

takes an affirmative act that deprives the plaintiff of the ability to assert the cause of

action in the appropriate time. Birchwood-Manassas Assocs., LLC v. Birchwood at Oak

Knoll Farm, LLC, 773 S.E.2d 162, 164 (Va. 2015); see also Va. Code Ann. § 8.01-

229(D). But in light of the record in this case, the plaintiffs’ argument for invoking

tolling on this basis borders on the frivolous. Consolidation Coal openly and publicly

sought permission for its dewatering operations and published notice of its activities as

required by law. It also openly constructed the dewatering pipeline over land and into

Island Creek Coal’s mine. Such conduct is hardly consistent with an intent “to secretly

dispose of their contaminated wastewater” in order to deprive the plaintiffs of knowledge

about their activities.


                                                V

          Apart from their challenge to the district court’s limitations rulings, the plaintiffs

challenge the court’s denial of their request for injunctive relief. Because, however, the

causes of action that provide the basis for any claimed relief are barred, the plaintiffs’

request for injunctive relief is also barred. Injunctive relief is a remedy, not a cause of

action.

                                             * * *


                                                17
For the foregoing reasons, the judgments of the district court are

                                                                     AFFIRMED.




                                     18
