Peter Waldburger v. CTS Corporation
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00039-GCM-DLH. [999146456]. [12-1290]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1290
PETER WALDBURGER; SANDRA RATCLIFFE; LEE ANN SMITH; TOM
PINNER, IV, a/k/a Bud Pinner, IV; HANS MOMKES; WILMA
MOMKES; WALTER DOCKINS, JR.; AUTUMN DOCKINS; WILLIAM CLARK
LISENBEE; DAN MURPHY; LORI MURPHY; ROBERT AVERSANO; DANIEL
L. MURPHY; LAURA A. CARSON; GLEN HORECKY; GINA HORECKY;
RENEE RICHARDSON; DAVID BRADLEY; BYRON HOVEY; RAMONA HOVEY;
PETER TATUM MACQUEEN, IV; BETHAN MACQUEEN; PATRICIA PINNER;
TOM PINNER, III, a/k/a Buddy Pinner, III; MADELINE PINNER,
Plaintiffs - Appellants,
v.
CTS CORPORATION,
Defendant - Appellee.
----------------------------------UNITED STATES OF AMERICA,
Amicus Supporting Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.
Graham C. Mullen,
Senior District Judge. (1:11-cv-00039-GCM-DLH)
Argued:
January 30, 2013
Decided:
July 10, 2013
Before DAVIS, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion.
Judge Floyd wrote
the majority opinion, in which Judge Davis joined. Judge Davis
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wrote a separate concurring
dissenting opinion.
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opinion.
Judge
Thacker
wrote
a
ARGUED: Emma A. Maddux, Third-Year Law Student, WAKE FOREST
UNIVERSITY, Winston-Salem, North Carolina, for Appellants. Earl
Thomison Holman, ADAMS, HENDON, CARSON, CROW & SAENGER, PA,
Asheville, North Carolina, for Appellee.
Daniel Tenny, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Supporting Appellee.
ON BRIEF: John J. Korzen, Director,
Hillary M. Kies, Third-Year Law Student, WAKE FOREST UNIVERSITY,
Winston-Salem, North Carolina, for Appellants.
Stuart F.
Delery, Acting Assistant Attorney General, Thomas M. Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne
Tompkins, United States Attorney, Charlotte, North Carolina, for
Amicus Supporting Appellee.
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FLOYD, Circuit Judge:
In
2009,
received
Appellants
unwelcome
concentrated
effects.
news:
levels
dichloroethane
David
of
(DCE),
Bradley
Their
and
well
trichloroethylene
both
solvents
Renee
Richardson
water
contained
(TCE)
that
have
and
cis-1,2-
carcinogenic
Not surprisingly, Bradley and Richardson, and twenty-
three other landowners (collectively, “the landowners”), brought
a nuisance action against Appellee CTS Corporation (CTS), the
alleged perpetrator.
Concluding that North Carolina’s ten-year
limitation on the accrual of real property claims barred the
suit, the district court granted CTS’s Rule 12(b)(6) motion to
dismiss.
Having reviewed the dismissal de novo, assuming that
the facts stated in the complaint are true, Lambeth v. Bd. of
Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005), we hold that the
discovery
rule
Environmental
articulated
Response,
in
§ 9658
Liability,
of
and
the
Comprehensive
Compensation
Act
(CERCLA), 42 U.S.C. §§ 9601-9675, preempts North Carolina’s tenyear limitation.
Thus, we reverse and remand.
I.
In
the
1960s
and
‘70s,
the
United
States
witnessed
the
repercussions of toxic waste dumping like it never had before.
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The
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Valley
of
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the
Drums 1
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and
Canal 2
Love
disasters
made
headlines, urging Congress to pass legislation that granted some
measure
of
redress.
CERCLA,
an
act
In
aimed
at
response,
in
promoting
1980,
efficient
responses to the fallout from hazardous waste.
Congress
and
passed
equitable
Burlington N. &
Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009).
Because Congress passed the legislation during the closing hours
of
its
ninety-sixth
session,
and
only
after
it
reached
a
compromise reflecting the “blending of three separate bills,”
CERCLA is often criticized for its lack of precision.
See,
e.g., State of New York v. Shore Realty Corp., 759 F.2d 1032,
1039–40 (2d Cir. 1985) (“In 1980, while the Senate considered
one early version of CERCLA, the House considered and passed
another.
eleventh
The version passed by both Houses, however, was an
hour
compromise
put
together
primarily
by
Senate
1
The Valley of the Drums is a twenty-three acre site near
Louisville, Kentucky, where a large number of waste-storing
drums were deposited in the 1960s.
The drums’ leakage and the
lack of regulation at the site caused an environmental disaster.
NPL Site Narrative for A.L. Taylor (Valley of the Drums), Envtl.
Prot. Agency (Sept. 8, 1983), http://www.epa.gov/superfund/
sites/npl/nar447.htm.
2
Love Canal is an area near Niagara Falls, New York.
In
the 1920s, it became a dumpsite for toxic chemicals. The extent
of the site’s contamination was brought to light in the mid1970s.
Eckardt C. Beck, The Love Canal Tragedy, Envtl. Prot.
Agency (Jan. 1979), http://www.epa.gov/history/topics/lovecanal/
01.html.
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leaders and sponsors of the earlier Senate versions.” (citations
omitted)); Artesian Water Co. v. New Castle Cnty., 851 F.2d 643,
648 (3d Cir. 1988) (“CERCLA is not a paradigm of clarity or
precision.
drafting
It
and
has
been
numerous
criticized
frequently
ambiguities
for
inartful
attributable
to
its
precipitous passage.”); see also Rhodes v. Cnty. of Darlington,
833 F. Supp. 1163, 1172–76 (D.S.C. 1992) (providing a thorough
recounting
of
CERCLA’s
history).
Regardless,
it
remains
undisputed that CERCLA is a remedial statute designed to (1)
“establish a comprehensive response and financing mechanism to
abate and control the vast problems associated with abandoned
and inactive hazardous waste disposal sites” and (2) “shift the
costs
of
cleanup
contamination.”
to
Metro.
the
parties
Water
responsible
Reclamation
Dist.
for
v.
N.
the
Am.
Galvanizing & Coatings, Inc., 473 F.3d 824, 826-27 (7th Cir.
2007)
(quoting
H.R.
Rep.
No.
96-1016,
pt.
1,
at
22
(1980),
reprinted in 1980 U.S.C.C.A.N. 6119, 6120) (internal quotation
marks omitted); see also Niagara Mohawk Power Corp. v. Chevron
U.S.A., Inc., 596 F.3d 112, 120 (2d Cir. 2010) (“Enacted in
response to New York’s Love Canal disaster, CERCLA was designed,
in part, to ‘[ensure] that those responsible for any damage,
environmental harm, or injury from chemical poisons bear the
costs of their actions.’” (footnote omitted) (quoting S. Rep.
No. 96-848, at 13 (1980)).
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Evidently wary about the effectiveness of the Act’s final
version,
examine
Congress
the
immediately
“adequacy
of
established
existing
common
a
study
law
and
group
to
statutory
remedies in providing legal redress for harm . . . caused by the
release
U.S.C.
of
hazardous
§ 9651(e)(1).
substances
The
Group
into
the
consisted
environment.”
of
twelve
42
members
designated by the American Bar Association, the American Trial
Lawyers Association, the Association of State Attorneys General,
and the American Law Institute.
Id. § 9651(e)(2).
Among other
“[r]ecurring [i]ssues in [h]azardous [w]aste [l]itigation,” it
considered the effect that state limitations periods have on
causes of action related to hazardous waste, noting that (1)
injuries from such waste generally have “long latency periods,
sometimes 20 years or longer” and (2) if a state decrees that a
cause of action will accrue upon a defendant’s last act or a
plaintiff’s exposure to harm, the statute of limitations often
will fully run and defeat a lawsuit before a plaintiff is aware
of
his
injury.
Superfund
Section
301(e)
Study
Group,
97th
Cong., Injuries and Damages from Hazardous Wastes-Analysis and
Improvement of Legal Remedies pt. 1, at 28 (Comm. Print 1982).
Purposing to “remove unreasonable procedural and other barriers
to recovery in court . . . , including rules relating to the
time of accrual of actions,” id. at 240, the Group issued the
following recommendation: “that all states . . . clearly adopt
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the rule that an action accrues when the plaintiff discovers or
should have discovered the injury or disease and its cause,” id.
at 241.
Worth noting is that the Group did not confine its
concerns simply to statutes of limitation:
“The Recommendation
is
statutes
intended
which,
in
also
a
to
number
cover
of
the
states
repeal
have
of
the
same
of
effect
repose
as
some
statutes of limitation in barring [a] plaintiff’s claim before
he knows that he has one.”
Id.
Instead of waiting for individual states to amend their
respective statutes, in 1986 Congress chose to “address[] the
problem identified in the . . . study,” H.R. Conf. Rep. No. 99962,
at
261,
reprinted
in
1986
U.S.C.C.A.N.
3276,
3354,
enacting § 9658 of CERCLA:
(a) State statutes
substance cases
of
limitations
for
hazardous
(1) Exception to State statutes
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.
(2) State law generally applicable
7
by
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Except as provided in paragraph (1), the statute
of limitations established under State law shall
apply in all actions 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.
42
U.S.C.
§ 9658.
Per
the
section’s
definition
section,
“‘applicable limitations period’ means the period specified in a
statute of limitations during which a civil action referred to
in subsection (a)(1) . . . may be brought,” id. § 9658(b)(2),
“‘commencement date’ means the date specified in a statute of
limitations
as
the
beginning
of
the
applicable
limitations
period,” id. § 9658(b)(3), and “‘federally required commencement
date’ means the date the plaintiff knew (or reasonably should
have
known)
referred
that
to
contributed
in
to
by
the
subsection
the
contaminant concerned.”
statute
of
action
may
knowledge
personal
injury
hazardous
be
begins
his
substance
injury,
to
§ 9658
that
run
the
preempts
caused
or
or
Thus, if a state
period
prior
damages
pollutant
or
Id. § 9658(b)(4)(A).
provides
of
property
(a)(1) . . . were
limitations
brought
or
to
the
in
a
which
an
plaintiff’s
state
law
and
allows the period to run from the time of the plaintiff’s actual
or
constructive
knowledge.
And
if
a
minor
or
incompetent
plaintiff is involved, the period does not begin to run until
the plaintiff reaches majority or competency or “has a legal
representative appointed.”
Id. § 9658(b)(4)(B).
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II.
During the twenty-seven years since Congress passed § 9658,
the amendment has no doubt served the goal of preserving claims
that otherwise would have been defeated by state statutes of
limitations.
But it has also generated controversy.
We address
one such area of dispute here—namely, whether § 9658 preempts
state statutes of repose.
A.
The
site
at
issue
in
this
case
is
in
Asheville,
North
Carolina, where CTS formerly operated a fifty-four-acre plant. 3
CTS “manufactures” and “disposes of” electronics and electronic
parts, and from 1959 to 1985, it operated the Mills Gap Road
Electroplating Facility (the Facility) in Asheville.
At the
Facility, CTS stored notable quantities of TCE and manufactured
products using TCE, cyanide, chromium VI, and lead.
In
1987,
Associates.
CTS
sold
the
Facility
to
Mills
Gap
Road
CTS had promised realtors that the property “ha[d]
been rendered in an environmentally clean condition,” that “[t]o
the best of [its] knowledge, no on-site disposal or otherwise
3
CTS was formed in 1959 as CTS of Asheville, Inc. In 1983,
CTS of Asheville, Inc., dissolved, but CTS continued to operate
the Asheville plant as CTS Corporation, Asheville Division until
1985.
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wanton disposal methods were practiced at [the] facility,” and
that as soon as “the existing inventory of materials contained
in
drums
and
other
miscellaneous
equipment
within
the
plant
[was] removed from the premises, no threat to human health or
the environment [would] remain.”
Mills Gap Road Associates eventually sold portions of the
land to Bradley, Richardson, and others, and as noted above,
Bradley
and
Richardson
learned
subsequent
that their land was contaminated.
who
“live
in
nuisance claim.
been
and
the
vicinity
of
to
their
purchases
Thus, they joined with others
[their]
residence”
to
bring
a
The other property owners claim that they “have
continue
to
be
exposed
to
the
CTS . . . toxins
via
contact from air, land and water.”
The
landowners
cite
damages
such
as
“diminution
in
the
value of their real property” and fear “for their health and
safety and that of their family members.”
They request (1) a
“judgment against [CTS] requiring reclamation of the 1,000,000
pounds of the toxic chemical contaminants” that belong to the
corporation, (2) “remediation of the environmental harm caused
by [CTS’s] toxic chemicals,” and (3) “monetary damages in an
amount that will fully compensate them for all the losses and
damages they have suffered, or . . . will suffer in the future.”
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B.
In North Carolina, real property actions are subject to a
three-year statute of limitations per the “Limitations, Other
than Real Property” section of the General Statutes.
See N.C.
Gen.
301,
Stat.
§ 1-52;
(N.C. App. 1995).
damage
Crawford
Boyette,
464
S.E.2d
303
A real property action accrues when “physical
to
[a
claimant’s]
reasonably
to
have
52(16).
v.
property
become
becomes
apparent.”
apparent
N.C.
Gen.
or
ought
Stat.
§ 1-
Notably, however, a claimant’s actual or constructive
knowledge
of
accrual.
Nor does lack of such knowledge lend life to a claim
indefinitely.
damage
is
not
the
only
factor
that
regulates
Rather, § 1-52(16) prohibits a “cause of action
[from] . . . accru[ing] more than 10 years from the last act or
omission of the defendant giving rise to the cause of action.”
Id.
Accordingly, once ten years have passed since a defendant’s
last tortious act, claims for damages from such conduct become
nonexistent, regardless of whether a claimant had knowledge of
his harm within the ten-year window.
Here, the last act or omission of CTS occurred in 1987,
when it sold the Facility to Mills Gap Road Associates.
Thus,
when the landowners filed their nuisance action in 2011, CTS
moved
to
dismiss,
maintaining
that
North
Carolina’s
ten-year
limitation on the accrual of real property actions barred the
claim.
The landowners countered, citing § 9658 of CERCLA as
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preemptive of North Carolina’s limitation.
rejected the landowners’ argument.
ten-year
limitation
is
a
statute
The magistrate judge
The court reasoned that the
of
repose
and
that
because
§ 9658 mentions only statutes of limitations, it is inapplicable
here.
Thus, it recommended dismissal, and the district court
adopted the recommendation.
III.
Before analyzing the decision below, we briefly review the
concepts of limitations and repose.
Statutes of limitations and
statutes of repose both operate as limits on the amount of time
that a plaintiff has to bring a claim.
A statute of limitations
is a “law that bars claims after a specified period . . . based
on the date when the claim accrued (as when the injury occurred
or
was
2009).
discovered).”
Black’s
Law
Dictionary
1546
(9th
ed.
As this Court has previously noted, such limitations
serve defendants by “encourag[ing] prompt resolution of disputes
by providing a simple procedural mechanism to dispose of stale
claims.”
First United Methodist Church of Hyattsville v. U.S.
Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989).
statute
of
repose
“bar[s]
any
suit
that
is
In contrast, a
brought
after
a
specified time since the defendant acted . . . even if this
period
injury.”
ends
before
the
plaintiff
has
suffered
a
resulting
Black’s Law Dictionary 1546 (9th ed. 2009).
12
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is
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concerned,
of
the
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“considerations
public
as
a
of
whole”
the
economic
are
at
best
play,
and
“substantive grants of immunity based on a legislative balance
of the respective rights of potential plaintiffs and defendants
[are] struck by determining a time limit beyond which liability
no longer exists.”
Here,
“brought
North
after
First United Methodist, 882 F.2d at 866.
Carolina’s
a
specified
ten-year
time
limitation
since
the
bars
lawsuits
defendant
acted,”
Black’s Law Dictionary 1546 (9th ed. 2009), without regard for
the
plaintiff’s
52(16).
knowledge
of
his
harm,
N.C.
Gen.
Stat.
§ 1-
As such, although North Carolina does not explicitly
identify the limitation as a statute of repose (or, for that
matter,
use
the
word
“repose”
anywhere
in
its
statutes),
think the court below properly categorized it as such.
we
Cf.
Robinson v. Wadford, 731 S.E.2d 539, 541 (N.C. Ct. App. 2012)
(referring to the ten-year limitation in § 1-52(16) as a statute
of repose); Tipton & Young Constr. Co. v. Blue Ridge Structure
Co., 446 S.E.2d 603, 604 (N.C. Ct. App. 1994) (same).
A.
Determining whether § 9658 affects the operation of North
Carolina’s
ten-year
interpretation.
limitation
When
we
is
interpret
an
exercise
statutes,
in
our
statutory
goal
is
to
effectuate Congress’s intent, United States v. Abdelshafi, 592
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F.3d 602, 607 (4th Cir. 2010), and we accomplish this by first
examining the text of the statute, Holland v. Big River Minerals
Corp.,
181
meaning
F.3d
of
the
597,
603
text
Cir.
plain,
“[a]bsent . . . clearly
contrary.”
(4th
we
expressed
1999).
If
accord
it
legislative
we
find
that
intent
the
meaning
to
the
Abdelshafi, 592 F.3d at 607 (quoting United States
v. Bell, 5 F.3d 64, 68 (4th Cir. 1993)) (internal quotation
marks omitted).
If we determine that its meaning is ambiguous,
however, we “look beyond the language of the statute to the
legislative history for guidance.”
Stiltner v. Beretta U.S.A.
Corp., 74 F.3d 1473, 1482 (4th Cir. 1996) (en banc).
Moreover,
we determine whether a statute’s language is plain “by reference
to
the
language
itself,
the
specific
context
in
which
that
language is used, and the broader context of the statute as a
whole.”
Co.,
Holland, 181 F.3d at 603 (quoting Robinson v. Shell Oil
519
U.S.
337,
341
(1997))
(internal
quotation
marks
omitted).
B.
Here, we interpret a statute that is ambiguous.
by
the
district
limitations.”
five times.
court,
§ 9658
uses
the
words
As noted
“statute
of
Indeed, the phrase and its plural form appear
See § 9658(a), (b)(2), (b)(3).
is the phrase “statutes of repose.”
14
Noticeably absent
Thus, a simple review of
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§ 9658’s language could reasonably lead to a conclusion that its
application
is
limited
only
to
statutes
of
limitations.
We
agree with the court below that the text is susceptible to this
interpretation.
But we also think that the text lends itself to
an alternate reading—one that includes repose limitations such
as North Carolina’s.
Per the text of § 9658, a state limitations period must
meet two conditions before the federally required commencement
date
applies
to
a
cause
of
action:
(1)
it
must
be
an
“applicable limitations period” that is “specified in the State
statute of limitations or under common law” and (2) it must
“provide[]
a
commencement
date
which
federally required commencement date.”
the
following
reasons,
we
think
is
earlier
than
the
Id. § 9658(a)(1).
North
Carolina’s
For
ten-year
limitation meets these conditions here.
First, the ten-year bar is located with the statutes of
limitations
periods
in
a
section
titled,
“Limitations,
than Real Property.”
N.C. Gen. Stat. § 1-52.
limitations
“specified
period
in
limitations or under common law.”
the
Other
As such, it is a
State
statute
of
See 42 U.S.C. § 9658(a)(1).
Second, it is (1) a “period,” (2) “specified in a statute of
limitations,”
(3)
“during
which
a
civil
action . . . may
be
brought”; thus, it comports with the definition of “applicable
limitations period.”
See id. § 9658(b)(2).
15
Finally, because
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the period begins to run when the defendant commits his last
act, rather than when the plaintiff has knowledge of harm, its
“commencement date . . . is earlier than the federally required
commencement
date.”
See
id.
§ 9658(a)(1).
Accordingly,
we
conclude that in spite of § 9658’s repeated use of the phrase
“statute
of
limitations,”
the
text
is
susceptible
to
an
interpretation that includes repose limitations such as North
Carolina’s.
In sum, we reckon § 9658’s text capable of at least
two interpretations, preventing it from being straightforwardly
categorized as “plain and unambiguous.”
Lest we seem to be stretching to find ambiguity in the
text, we make two additional observations.
“statute
of
limitations”
and
“statute
of
First, the terms
repose”
considerable development in their usage and meaning.
have
seen
Indeed, a
historical analysis reveals that both scholars and courts have
often used the terms interchangeably.
See McDonald v. Sun, 548
F.3d 774, 781 & n.3, n.4 (9th Cir. 2008) (collecting cases and
academic
articles
distinction
between
that
the
demonstrate
terms).
a
historical
Thus,
in
this
lack
of
context,
Congress’s choice to use “statute of limitations” is in no way
dispositive
as
to
statutes of repose.
whether
it
intended
§ 9658
to
apply
to
Rather, given the inconsistent manner in
which the term has been used, it is entirely probable that in
1986, when Congress added § 9658 to CERCLA, it intended “statute
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limitations”
limitation
to
we
that
include
are
Pg: 17 of 44
precisely
dealing
with
the
type
here.
of
ten-year
Second,
§ 9658
manifests a lack of internal consistency in its reference to an
“applicable limitations period.”
Subsection (a)(1) notes that
such a period is “specified in the State statute of limitations
or
under
common
law,”
but
the
definition
of
“applicable
limitations period” and “commencement date” make no reference to
common law.
Thus, to the extent that a limitations period is
established only under common law, § 9658 fails to manifest a
plain meaning applicable in such a circumstance.
C.
When the text of a statute is ambiguous, we “look to other
indicia of congressional intent such as the legislative history”
to interpret the statute.
CGM, LLC, v. BellSouth Telecomm’s,
Inc., 664 F.3d 46, 53 (4th Cir. 2011).
As explained in Part I,
supra, § 9658 was adopted by Congress to “address[] the problem
identified in the . . . study [group report],” H.R. Conf. Rep.
No. 99-962, at 261, reprinted in 1986 U.S.C.C.A.N. 3276, 3354.
The study group report was equally concerned with statutes of
repose
and
limitations,
and
with
their
effect
of
barring
plaintiffs’ claims before they are aware of them.
Moreover,
remedial.
Congress’s
purpose
in
enacting
CERCLA
was
Blake A. Watson, Liberal Construction of CERCLA Under
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the Remedial Purpose Canon: Have the Lower Courts Taken a Good
Thing Too Far?, 20 Harv. Envtl. L. Rev. 199, 286 (1996) (“CERLCA
is not only more remedial than most legislative enactments, it
is
arguably
the
most
statutes . . . .”).
remedial
of
all
federal
environmental
Indeed,
[t]he Act is distinctive in the spectrum of federal
environmental protection legislation in that the
principal focus is remedial and corrective rather than
regulatory.
CERCLA does not set standards for
prospective compliance by industry but essentially is
a tort-like backward-looking statute designed to
[clean up] expeditiously abandoned hazardous waste
sites and respond to hazardous spills and releases of
toxic wastes into the environment.
Id.
(quoting
William
Murray
Tabb
&
Linda
A.
Environmental Law: Cases & Materials 637 (1992)).
Malone,
Moreover,
§ 9658 resulted from Congress’s additional attempts to ensure
adequate remedies, and it furthers CERCLA’s remedial goals by
preempting
state
limitation
periods
that
causes of action when harms lie dormant.
“CERCLA,
as
all
remedial
statutes,
would
otherwise
bar
We have observed that
must
be
given
interpretation to effect its ameliorative goals.”
a
broad
First United
Methodist, 882 F.2d at 867.
When faced with a remedial statute, our interpretive charge
is
simple:
Employ
a
“standard
accomplish [Congress’s] objects.”
of
liberal
construction
[to]
Urie v. Thompson, 337 U.S.
163, 180 (1949); see also Niagara Mohawk Power Corp., 596 F.3d
at 132 (recognizing the need to liberally construe CERCLA to
18
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accomplish
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congressional
Pg: 19 of 44
objectives);
see
also
Axel
Johnson,
Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 416 (4th
Cir. 1999) (same).
In light of this charge, we reject a reading
of § 9658 that excludes application of its provisions to North
Carolina’s ten-year limitation.
Such an interpretation may seem
to be textually sound under one possible reading of the statute,
but
it
offers
too
narrow
an
approach
and
one
that
thwarts
Congress’s unmistakable goal of removing barriers to relief from
toxic wreckage.
Refusing to apply § 9658 to statutes of repose
allows states to obliterate legitimate causes of action before
they exist.
Because this is precisely the barrier that Congress
intended § 9658 to address, we will not read the statute in a
manner that makes it inapplicable in such a circumstance.
Doing
so cannot be termed an honest attempt to “effectuate Congress’s
intent.”
Accordingly,
we
hold
that
the
federally
required
commencement date in § 9658 preempts North Carolina’s ten-year
limitation on the accrual of real property claims.
In so holding, we join the view articulated by the Ninth
Circuit
in
McDonald
v.
Sun,
in
which
the
plaintiffs
found
themselves in circumstances remarkably similar to those of the
landowners in this case.
See 548 F.3d at 777-78, 783 (“[G]iven
the ambiguity of the term ‘statute of limitations at the time of
the adoption of § [9658], taken alongside the only evidence of
Congressional intent, it is evident that the term ‘statute of
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limitations’ in § [9658] was intended by Congress to include
statutes of repose.”).
Although the Fifth Circuit delineated an
opposing view in Burlington Northern & Sante Fe Railway Co. v.
Poole
Chemical
unpersuaded
knowledge
Co.,
its
by
of
419
reasoning.
their
statute of repose.
by
that
court,
claim
F.3d
355
prior
(5th
There,
to
Cir.
2005),
we
are
the
plaintiffs
had
expiration
Id. at 359-60, 364-65.
the
“case
[did]
not
of
the
state
Thus, as recognized
involve
the
delayed
discovery . . . which § 9658 was intended to address.”
Id. at
364-65.
D.
Our decision here will likely raise the ire of corporations
and other entities that wish to rest in the security of statutes
of repose, free from the threat of being called to account for
their contaminating acts.
They likely will cite the well-known
policies underlying such statutes and asseverate that we have
ignored them.
But we are not ignorant of these policies, nor
have we turned a blind eye to their importance.
Repose statutes do not exist simply to protect defendants;
they
also
ensure
that
cases
are
processed
efficiently.
See
United States v. Kubrick, 444 U.S. 111, 117 (1979) (“[S]tatutes
of repose . . . protect defendants and the courts from having to
deal with cases in which the search for truth may be seriously
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impaired
by
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the
disappearance
of
loss
of
Pg: 21 of 44
evidence,
witnesses,
fading
documents, or otherwise.”).
whether
memories,
by
death
or
disappearance
of
And although our decision removes
one potential time barrier to a plaintiff’s claim, it does not
relax
his
burden
necessary
of
evidence
proof.
will
In
cases
disappear
with
as
latent
time
harms,
passes,
and
intervening causes will complicate efforts to pin costs on one
party.
Even
without
the
hindrance
of
an
official
repose
statute, plaintiffs may not be able to establish a cause of
action or recover damages.
does
nothing
plaintiffs
to
bring
Furthermore, because our decision
diminish
claims
North
within
Carolina’s
three
requirement
years
of
that
discovery,
defendants will not necessarily be endlessly subjected to the
possibility of litigation.
than
that
contemplated
commissioned.
of
the
Finally, our stance goes no further
by
the
study
group
that
Congress
The Group foresaw that the “legislative balance
respective
rights
of
potential
plaintiffs
and
defendants,” First United Methodist, 882 F.2d at 866, reflected
in statutes of repose might in this circumstance need to tip in
favor of plaintiffs:
statute
of
affording
rights.”
Injuries
“The policy of repose expressed in the
limitations
the
plaintiff
Superfund
and
may
be
a
just
Section
Damages
from
outweighed
opportunity
301(e)
Study
Hazardous
21
by
the
policy
to
vindicate
Group,
97th
of
his
Cong.,
Wastes-Analysis
and
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Improvement of Legal Remedies pt. 2, at 14 (Comm. Print 1982).
Accordingly, we reaffirm our conclusion that North Carolina’s
ten-year limitation on the accrual of actions is preempted by
§ 9658 of CERCLA.
In so holding, we simply further Congress’s
intent that victims of toxic waste not be hindered in their
attempts to hold accountable those who have strewn such waste on
their land.
IV.
For the foregoing reasons, we reverse the district court’s
order and remand the case so that the litigation can proceed.
REVERSED AND REMANDED
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DAVIS, Circuit Judge, concurring:
“Of course, determining whether a regulation or statute is
ambiguous
presents
a
legal
question,
which
we
determine
de
novo.”
Humanoids Group v. Rogan, 375 F.3d 301, 306 (4th Cir.
2004).
To say, as our good colleague says in dissent, that the
majority’s legal conclusion that § 9658 is ambiguous must be
“supported by the plain language of the statute itself,” post,
at
26,
finds
authority.
no
support
in
Supreme
Court
or
Fourth
Circuit
“Plain language” analysis does no such work.
See
Watt v. Alaska, 451 U.S. 259, 266 (1981) (“[T]he plain-meaning
rule is rather an axiom of experience than a rule of law, and
does not preclude consideration of persuasive evidence if it
exists.”)
(citation
and
internal
quotation
marks
omitted).
Moreover, in any event, as the majority opinion makes clear,
“the meaning of statutory language, plain or not, depends on
context.”
Holloway
v.
(quotations
omitted).
faithful
this
pleased
to
to
United
Judge
important,
join
States,
Floyd’s
overarching
his
fine
23
526
U.S.
careful
1,
(1999)
analysis
principle,
opinion
7
and
in
I
is
am
full.
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THACKER, Circuit Judge, dissenting:
With all due respect to my friends in the majority, I must
dissent.
The majority essentially concludes § 9658 preempts two
categories
statutes
of
of
state
statutes:
repose.
unambiguous
were
preemptive
effect
However,
language
limitations
statutes
of
§
intended
of
9658
to
§
in
my
of
view
indicates
be
limitations
the
were
plain
and
statutes
only
preempted.
9658
and
of
Even
susceptible
if
to
the
two
interpretations, a presumption against preemption would counsel
that we should limit § 9658’s preemptive reach to statutes of
limitations without also extending it to statutes of repose.
The
relevant
legislative
history
underscores
this
plain
reading of the statute, and a plain reading of § 9658 aligns
with general, deferential principles of legislative compromise
that
counsel
against
a
liberal
reading
of
the
statute.
Accordingly, I would affirm.
I.
Although
this
case
arises
in
the
context
of
federal
preemption, at its core, it is about statutory interpretation.
The key issue is whether the phrase “statute of limitations” as
used in the 1986 amendments to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (“CERCLA”),
Act of Oct. 27, 1986, Pub. L. No. 99-499, 100 Stat. 1613 (“1986
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Amendments”), and codified in 42 U.S.C. § 9658, preempts North
Carolina’s 10-year statute of repose.
A.
Plain Meaning
As in all matters of statutory interpretation, our starting
point is an analysis of the statutory text.
F.3d 648, 651 (4th Cir. 2000).
Chris v. Tenet, 221
We must begin by asking “whether
the language at issue has a plain and unambiguous meaning . . .
.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
This
first step may also be our last: if the statutory language has a
plain
and
unambiguous
meaning,
according to its terms.”
“we
must
apply
the
statute
Carcieri v. Salazar, 555 U.S. 379, 387
(2009).
In
determining
unambiguous
whether
meaning,
“we
the
language
consider
the
has
a
language
plain
and
itself,
the
specific context in which that language is used, and the broader
context of the statute as a whole.”
Johnson v. Zimmer, 686 F.3d
224, 232 (4th Cir. 2012) (internal quotation marks omitted).
certain
terms
provisions,
ordinary,
they
are
“are
undefined
typically
contemporary,
common
quotation marks omitted).
25
in
the
relevant
interpreted
as
meaning.”
statutory
taking
Id.
If
their
(internal
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1.
Language of Section 9658
CERCLA § 9658 governs actions under state law for damages
from
exposure
to
hazardous
substances,
and
provides
that
generally, “the statute of limitations established under State
law shall apply . . . .”
42 U.S.C. § 9658(a)(2).
But the
statute also provides the following exception to this general
rule:
[I]f 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.
Id. § 9658(a)(1).
Of critical import here, the statute defines
the “applicable limitations period” as “the period specified in
a statute of limitations during which a civil action referred to
in
subsection
§ 9658(b)(2)
(a)(1)
of
(emphasis
this
section
supplied).
may
be
brought.”
Similarly,
the
Id.
statute
defines the state “commencement date” as “the date specified in
a
statute
of
limitations
as
the
beginning
of
the
applicable
limitations period.”
Id. § 9658(b)(3) (emphasis supplied).
“federally
commencement
required
date”
provides
an
The
enhanced
version of the traditional discovery rule and is defined as “the
date the plaintiff knew (or reasonably should have known) that
the personal injury or property damages . . . were caused or
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contributed
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by
§ 9658(b)(4). 1
the
Pg: 27 of 44
hazardous
substance
.
.
.
.”
Id.
Thus, § 9658 will preempt state law where a state
statute of limitations begins to run before it would have run
under the federally required commencement date.
The key question then is whether the meaning of § 9658, by
its
reference
unambiguous.
to
“statute
of
limitations,”
is
plain
and
The majority answers that question by concluding
that the phrase “statute of limitations” is ambiguous, and thus
encompasses both statutes of limitations and statutes of repose.
Ante at 16 (determining that “§ 9658’s text [is] capable of at
least
two
interpretations,
straightforwardly
The
majority’s
categorized
conclusion,
preventing
as
‘plain
however,
is
it
and
not
from
being
unambiguous.’”).
supported
by
the
from
the
plain language of the statute itself.
2.
Modern and Historical Context
The
difficulty
definitions
of
presented
“statutes
of
in
this
case
limitations”
springs
and
“statutes
of
repose” in use today versus their historical understanding.
1
As opposed to a more traditional discovery rule that
requires simply knowledge of the injury, the “federally required
commencement date” requires both knowledge of the injury and its
cause. Therefore, this dissent at times uses the term “enhanced
discovery rule” to refer to the rule as expressed in the
definition of “federally required commencement date.”
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Today, we understand a statute of limitations, on the one
hand, to be “a procedural device that operates as a defense to
limit the remedy available from an existing cause of action.”
First United Methodist Church of Hyattsville v. U.S. Gypsum Co.,
882
F.2d
862,
865
(4th
Cir.
1989);
see
also
Black’s
Law
Dictionary 1546 (9th ed. 2009) (defining statute of limitations
as “A law that bars claims after a specified period; specif., a
statute establishing a time limit for suing in a civil case,
based on the date when the claim accrued (as when the injury
occurred or was discovered).”).
limitations
“extinguishes
the
In other words, a statute of
right
to
cause of action after a period of time.”
prosecute
an
accrued
Burlington N. & Santa
Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 363 (5th Cir. 2005)
(internal
quotation
marks
omitted).
Statutes
of
limitations
typically begin to run either on the date of the plaintiff’s
injury, or on the date the injury is first discovered or should
have been discovered with reasonable diligence.
A
statute
of
repose,
on
the
other
See id.
hand,
“creates
a
substantive right in those protected to be free from liability
after a legislatively-determined period of time.”
First United
Methodist, 882 F.2d at 866; see also Black’s Law Dictionary 1546
(9th
ed.
2009)
(defining
statute
of
repose
as
“[a]
statute
barring any suit that is brought after a specified time since
the defendant acted (such as by designing or manufacturing a
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product),
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even
if
this
period
Pg: 29 of 44
ends
suffered a resulting injury.”).
before
the
plaintiff
has
A statute of repose “abolishes
the cause of action after the passage of time even though the
cause of action may not have yet accrued.”
Burlington, 419 F.3d
at 363 (internal quotation marks omitted).
Statutes of repose
typically begin to run after “the occurrence of some event other
than the injury which gave rise to the claim[,]” McDonald v. Sun
Oil Co., 548 F.3d 774, 779 (9th Cir. 2008) (internal quotation
marks omitted), such as an act by a defendant or the manufacture
of a product, see Burlington, 419 F.3d at 363.
The motivations behind statutes of limitations and statutes
of repose are different as well.
limitations
are
motivated
by
For example, “[s]tatutes of
considerations
of
fairness
to
defendants and are intended to encourage prompt resolution of
disputes by providing a simple procedural mechanism to dispose
of stale claims.”
Thus,
they
defendant
Statutes
can
be
First United Methodist, 882 F.2d at 866.
equitably
fraudulently
of
repose
are
tolled
conceals
a
motivated
where,
for
plaintiff’s
by
example,
injury.
“considerations
a
Id.
of
the
economic best interests of the public as a whole” and reflect “a
legislative
balance
of
the
respective
rights
of
potential
plaintiffs and defendants struck by determining a time limit
beyond which liability no longer exists.”
29
Id.
Thus, unlike
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statutes
of
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limitations,
Pg: 30 of 44
statutes
grants of immunity from liability.
of
repose
are
substantive
Id.
But this clear distinction between statutes of limitations
and statutes of repose is of modern vintage.
Historically, the
phrase “statute of repose” encompassed a broad range of time-bar
statutes
that
limited
litigation,
and
“provided
‘repose,’ to potential litigants . . . .”
peace,
or
Wenke v. Gehl Co.,
682 N.W.2d 405, 423 (Wis. 2004); see also id. (“Early treatise
writers and judges considered time bars created by statutes of
limitations,
repose.
escheat
and
adverse
possession
as
periods
of
As the courts began to modify statutory limitations by
applying
the
‘discovery
rule,’
enacting
absolute
statutes
(quoting
Reynolds
v.
of
Porter,
legislatures
repose.”
760
P.2d
responded
(emphasis
816,
by
omitted)
819–20
(Okla.
1988))).
Indeed, the earliest reference to “statutes of repose” in
this circuit appears in Bartlett v. Ambrose, 78 F. 839, 842 (4th
Cir. 1897), in which we cited the Supreme Court’s language in
Pillow v. Roberts, 54 U.S. 472, 13 How. 477 (1851), proclaiming,
“[statutes of limitations] are statutes of repose, and should
not be evaded by a forced construction.”
Put
simply,
limitations
were
what
we
today
historically
would
considered,
call
along
statutes
with
of
other
statutory time-bars, to provide repose to litigants and were
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generally,
statutes
Pg: 31 of 44
of
repose.
These
overlapping
definitions, however, have evolved into the distinct definitions
we have today.
3.
“Statute of Limitations” in 1986
Using the dictionary definition of “statute of limitations”
available to Congress in 1986, it is clear that there is no
ambiguity as to the meaning of that term at the time § 9658 was
enacted.
The
Fifth
Edition
of
Black’s
Law
Dictionary
(the
“Fifth Edition”), the most recent edition available to Congress
in 1986 at the time CERCLA was amended to include § 9658, had
not
yet
“statutes
adopted
of
the
separate,
limitations”
and
modern
definitions
“statutes
of
repose,”
for
but
both
was
nonetheless in accord with our modern understanding where it
mattered.
The
Fifth
Edition
of
Black’s
Law
Dictionary
defined
“statute of limitations” as follows:
A statute prescribing limitations to the right of
action on certain described causes of action or
criminal prosecutions; that is, declaring that no suit
shall be maintained on such causes of action, nor any
criminal charge be made, unless brought within a
specified period of time after the right accrued.
Statutes of limitation are statutes of repose, and are
such legislative enactments as prescribe the periods
within which actions may be brought upon certain
claims or within which certain rights may be enforced.
In criminal cases, however, a statute of limitation is
an act of grace, a surrendering by sovereign of its
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right to prosecute.
“statutes of repose.”
Pg: 32 of 44
Also sometimes referred to as
Black’s Law Dictionary 835 (5th ed. 1979). 2
This definition is
clearly restricted to time limitations that begin to run after
the right to bring the cause of action accrues, that is, after
the
injury
or
its
determined
period
otherwise
of
accrues.
discovery,
time,
It,
as
opposed
regardless
thus,
of
to
after
whether
confirms
that
a
the
preaction
statutes
of
limitations were but a subset of statutes of repose and were
therefore “sometimes referred to as ‘statutes of repose.’”
Notably,
this
definition
does
not
adopt
the
Id.
inverse
proposition that all statutes of repose are also statutes of
limitation.
Therefore, based on the definition available to
Congress at the time of the 1986 Amendments, it is clear that
Congress
necessarily
did
not
intend
to
include
statutes
of
repose as within the definition of “statutes of limitations.”
At the time of the enactment of § 9658 in 1986, then, the
only possible ambiguity may have been the meaning of “statute of
repose” and whether that term had fully matured into its modern
definition.
But
Congress
chose
2
not
to
include
“statute
of
As noted, we now define a statute of limitations as “[a]
law that bars claims after a specified period; specif., a
statute establishing a time limit for suing in a civil case,
based on the date when the claim accrued (as when the injury
occurred or was discovered).” Black’s Law Dictionary 1546 (9th
ed. 2009).
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repose” in § 9658, and thus we need not trouble ourselves with
what Congress may have thought it meant. 3
B.
The North Carolina Statute
After
discerning
the
plain
meaning
of
§
9658,
we
must
decide whether that plain meaning preempts the application of
North Carolina General Statute § 1-52(16) to Appellants’ state
law claim.
As explained, in 1986, statutes of limitations were
understood to be statutes that limited the right to maintain an
action based on when the injured party accrued the right.
Carolina’s
three-year
statute
of
limitations
restriction and is preempted by § 9658.
is
just
North
such
a
North Carolina’s 10-
year statute of repose is not; therefore, it survives beyond the
1986 Amendments.
North Carolina General Statute § 1-52(16) contains both a
statute
sentence
of
of
limitations
§
and
1-52(16)
a
statute
provides
a
of
repose.
three-year
The
first
statute
of
limitations for personal injuries and property damages based on
a traditional form of the discovery rule.
3
N.C. Gen. Stat. § 1-
Indeed, the study group commissioned by Congress to
provide
recommendations
for
the
1986
Amendments
clearly
understood statutes of repose to be different and distinct from
statutes of limitations, as discussed infra, and other treatises
recognized the distinction at least as early as 1987.
See
Black’s Law Dictionary 1546 (9th ed. 2009) (quoting 54 C.J.S.
Limitations of Actions § 4 (1987)).
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52(16) (“Within three years an action . . . for personal injury
or
physical
damage
to
claimant’s
property,
the
cause
of
action . . . shall not accrue until bodily harm to the claimant
or physical damage to his property becomes apparent or ought
reasonably to have become apparent to the claimant, whichever
event first occurs.”).
Section 1-52(16) also clearly provides a substantive 10year statute of repose that declares “no cause of action shall
accrue more than 10 years from the last act or omission of the
defendant giving rise to the cause of action.”
Id. § 1-52(16).
But only the three-year provision specifies a time period
to
bring
operation
a
cause
of
the
of
action
after
discovery
rule.
the
right
The
has
10-year
accrued
by
provision
specifies a time restriction regardless of whether the right to
bring the cause of action could have otherwise accrued.
Thus,
only the former three-year provision falls within the definition
of “statute of limitations” available to Congress in 1986.
See
Black’s Law Dictionary 835 (5th ed. 1979) (defining “statute of
limitations” as “[a] statute . . . declaring that no suit shall
be maintained . . . unless brought within a specified period of
time after the right accrued”).
provision
Carolina’s
may
be
considered
“applicable
Therefore, only the three-year
in
limitations
34
order
to
period.”
determine
See
42
North
U.S.C.
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§ 9658(b)(2) (defining “applicable limitations period” as “the
period specified in a statute of limitations”).
Section 9658 preempts state law where state law does not
accord
plaintiffs
commencement
the
date
benefit
found
in
of
the
federally
§ 9658(b)(4).
required
Because
North
Carolina’s three-year provision imposes the earlier, traditional
discovery rule to commence the applicable limitations period,
and
not
the
commencement
date
mandated
by
§
9658,
§ 9658
preempts North Carolina’s statute of limitations, but not its
statute of repose.
In
contrast,
although
§
9658
is
clearly
applicable
to
preempt the running of North Carolina’s statute of limitations,
any
application
untenable.
A
to
North
simple
Carolina’s
attempt
to
map
statute
§
9658
of
onto
Carolina statute of repose illustrates the point.
§ 9658(a)(1),
than
the
the
state
federally
“commencement
required
date”
commencement
repose
must
date.”
the
is
North
To trigger
be
“earlier
42
U.S.C.
§ 9658(a)(1) (“[I]f 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 . . . .”).
Importantly, the commencement date is defined as the beginning
of the period in which a civil action may be brought.
35
See id.
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§ 9658(b)(2)–(3). 4
Pg: 36 of 44
But the North Carolina statute of repose does
not provide a beginning or “commencement date” as that term is
defined.
Rather, it provides an outer limit, after which no
cause of action may accrue.
repose
does
not
create
Because North Carolina’s statute of
the
beginning
of
the
applicable
limitations period, § 9658 cannot graft neatly –– or at all ––
onto the North Carolina statute of repose so as to preempt its
enforcement.
C.
Legislative History
Given the plain meaning of the statute, we need not look to
legislative
history.
history
§
of
9658
But,
also
even
clearly
if
we
supports
did,
the
the
legislative
conclusion
that
Congress was aware that statutes of limitations were a distinct
category of time-bar statutes and specifically chose only to
preempt those statutes and not other statutory time bars such as
statutes of repose.
As
a
Congress
determine
part
of
the
commissioned
the
adequacy
initial
a
study
of
enactment
of
group
of
expert
common
law
existing
4
CERCLA
in
lawyers
and
1980,
“to
statutory
The North Carolina statute of limitations establishes the
beginning of that period as the point at which “bodily
harm . . . or physical damage . . . becomes apparent or ought
reasonably to have become apparent . . . .”
N.C. Gen. Stat.
§ 1-52(16).
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remedies in providing legal redress for harm to man and the
environment caused by the release of hazardous substances into
the
environment
.
.
.
.”
CERCLA,
§ 301(e)(1), 94 Stat. 2767 (1980).
with
a
remedies
detailed
under
report
CERCLA.
and
Pub.
L.
96-510,
The study group responded
recommendations
See
No.
Superfund
for
Section
improving
301(e)
Study
Group, 97th Cong., Injuries and Damages from Hazardous Wastes––
Analysis and Improvement of Legal Remedies (Comm. Print 1982)
(the “301(e) Report”).
The
301(e)
Report
contained
ten
categories
of
recommendations, the ninth of which included recommendations for
“Statutes
of
Limitations.”
The
301(e)
Report
outlined
the
rationale for implementing an enhanced discovery rule in CERCLA
actions, id. at 28–30, and provided its recommendation, id. at
240–41.
The
301(e)
Report’s
recommendation
with
regard
statutes of limitations, in its entirety, was as follows:
A small number of states still follow the socalled traditional rule that the cause of action
accrues from the time of exposure.
Another small
number of states has not as yet clearly adopted either
the traditional or the discovery rule. Since many of
the
hazardous
wastes
are
carcinogens,
mutagens,
teratogens or substances with delayed impact on
different organs or the central nervous system, the
latency period for the appearance of injury or disease
is likely to be extended for thirty years or more. In
states that have not clearly adopted the discovery
rule (i.e., that the cause of action accrues from the
time the plaintiff discovered or reasonably should
have discovered the injury or disease) the cause of
action will usually be time barred when the plaintiff
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discovers his hurt.
The Study Group recommends that
all states that have not already done so, clearly
adopt the rule that an action accrues when the
plaintiff discovers or should have discovered the
injury or disease and its cause.
The Recommendation
is intended also to cover the repeal of the statutes
of repose which, in a number of states have the same
effect as some statutes of limitation in barring
plaintiff’s claim before he knows that he has one.
Id.
Two key takeaways can be culled from the 301(e) Report’s
recommendation: (1) an enhanced discovery rule should apply to
statutes of limitations; and (2) statutes of repose are separate
and distinct from statutes of limitations.
First, the 301(e) Report clearly informed Congress that an
enhanced discovery rule should apply to statutes of limitations
in all states for injuries caused by hazardous substances.
In
essence, the 301(e) Report took the position that a plaintiff’s
statute
of
limitations
should
not
begin
to
run
until
the
plaintiff both discovers or should have discovered the injury,
and realizes that his or her injury was caused by the hazardous
substance.
301(e) Report at 241 (“The Study Group recommends
that all states that have not already done so, clearly adopt the
rule
that
an
action
accrues
when
the
plaintiff
discovers
or
should have discovered the injury or disease and its cause.”).
Congress agreed.
In enacting § 9658, Congress implemented this
exact formulation of the discovery rule in its definition of the
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“federally
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required
Pg: 39 of 44
commencement
date.”
42
U.S.C.
§
9658(b)(4)(A). 5
Second,
the
301(e)
Report
put
Congress
on
notice
that
statutes of limitations are distinct time-bars, separate from
statutes of repose, even if they have the same effect.
The
301(e)
Report
aforementioned
recommended
enhanced
to
Congress
discovery
rule
not
only
that
the
should
be
applied
to
state statutes of limitations, but also recommended that state
statutes
of
repose
Recommendation
is
be
repealed.
intended
also
301(e)
to
Report
cover
the
at
241
repeal
(“The
of
the
statutes of repose which, in a number of states have the same
effect as some statutes of limitation in barring plaintiff’s
claim before he knows that he has one.”).
By the plain language
of § 9658, Congress disagreed.
Based on the 301(e) Report, Congress was clearly on notice
that statutes of repose, separate and distinct from statutes of
limitations, could prohibit recovery by certain plaintiffs, and
yet chose to leave § 9658 completely replete of any reference to
such statutes.
5
The “federally required commencement date” is defined, in
relevant part, 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).
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D.
Legislative Compromise
The majority notes that CERCLA is a remedial statute and
thus deserves broad construction to accomplish its objectives.
Ante at 17.
This is true.
But the plain meaning of the statute
and the role of legislative compromise restrain the application
of the remedial canon of statutory interpretation.
See 3550
Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355,
1363 (9th Cir. 1990) (noting that even if courts give CERCLA a
“broad
interpretation
to
accomplish
its
remedial
goals[,]”
courts must nonetheless “reject a construction that [CERCLA] on
its face does not permit, and the legislative history does not
support.”);
Blake
A.
Watson,
Liberal
Construction
of
CERCLA
under the Remedial Purpose Canon: Have the Lower Courts Taken a
Good Thing too Far?, 20 Harv. Envtl. L. Rev. 199, 300–01 (1996)
(“It has been firmly established that the fact that a statute is
‘highly
remedial
construction’
in
nature’
nevertheless
and
‘does
‘entitled
not
justify
to
a
liberal
ignoring
plain
words of limitation.’”) (quoting MacEvoy Co. v. United States,
322 U.S. 102, 107 (1944)); id. at 301 (“[T]he remedial purpose
canon has diminished utility when the interpretive issue focuses
on
provisions
of
CERCLA
that
are
40
the
product
of
compromise.
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Such compromises can be found in both CERCLA’s text and its
enactment history.”). 6
In passing the 1986 Amendments, Congress did not arm toxic
tort plaintiffs with every possible advantage nor remove every
obstacle
from
Amendments
based,
their
path
reflected
in
part,
to
recovery.
process
on
the
As
recommendations.
commissioned
the
to
of
mentioned,
evaluate
301(e)
Rather,
legislative
Report’s
the
existing
1986
compromise
analysis
and
Report
was
301(e)
statutory
the
and
common
law
remedies for environmental harms caused by hazardous substances
and to provide corresponding recommendations.
CERCLA, Pub. L.
No. 96-510, § 301(e)(1), (4), 94 Stat. 2767 (1980).
But
Congress
did
not
supplied by the 301(e) Report.
implement
every
recommendation
In fact, quite to the contrary.
For example, in its “Ninth Recommendation,” the 301(e) Report
recommended a variety of changes to actions arising under state
law.
301(e)
states
adopt
statutes
of
Report,
an
240–51.
enhanced
repose,
id.;
The
discovery
adopt
6
301(e)
rule,
liberal
Report
id.
at
joinder
recommended
241;
repeal
rules
for
Even if CERCLA, as enacted in 1980, was the product of an
11th-hour compromise and, thus, also lends itself to a liberal
construction for that reason as the majority seems to imply,
ante at 4, 17–19, the provision at issue in this case, § 9658,
was passed years later in 1986 after careful study and
deliberation.
The circumstances surrounding § 9658’s passage
certainly do not invite departure from its plain language.
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plaintiffs, id. at 242; adopt a system of joint and several
liability with a de minimis exception, id. at 243; adopt liberal
joinder rules for defendants, id. at 244; implement their own
evidentiary
presumptions,
id.
at
245;
and
adopt
a
theory
of
strict liability for hazardous waste activities, id. at 245.
Congress could have drafted the 1986 Amendments to implement any
or
all
state
of
law
the
301(e)
wherever
recommendations.
Report’s
it
But
fell
the
recommendations
short
only
of
the
revision
by
preempting
301(e)
affecting
Report’s
state
law
Congress chose to implement in the section explicitly covering
state procedural reform was the enhanced discovery rule via the
federally required commencement date.
See 1986 Amendments, Pub.
L. No. 99-499, § 203, 100 Stat. 1613 (1986).
was
given
the
opportunity
to
repeal
Notably, Congress
statutes
of
repose,
but
chose not to.
That § 9658 reaches state statutes of limitations but not
statutes of repose strikes a balance between harmonizing certain
procedural matters in toxic tort cases and allowing states to
continue to regulate their own substantive areas of law.
the prerogative of Congress to strike that balance.
It is
See Hanford
Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1484 (9th
Cir.
1995)
(concluding
that
even
when
the
application
of
a
CERCLA provision leads to “harsh results[,]” courts should not
disrupt Congress’s balancing of the interests involved).
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E.
Presumption Against Preemption
While at its most elemental this case concerns a matter of
statutory interpretation, that task arises in the context of
federal
preemption.
“Courts
generally
apply
a
presumption
against preemption in fields the states traditionally regulate.”
Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 330 (4th
Cir. 2006).
Just as we presume “Congress does not cavalierly
pre-empt state-law causes of action[,]” Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996), we should also presume that Congress
does not cavalierly preempt state substantive rights to be free
from those state-law causes of action.
Even “[f]ederal laws
containing
as
a
preemption
clause[,]”
such
§ 9658,
“do
automatically escape the presumption against preemption.”
not
Id.
Rather, “[w]here the text of a preemption clause is open to more
than
one
plausible
reading,
courts
reading that disfavors pre-emption.’”
ordinarily
‘accept
the
Id. at 335 (quoting Bates
v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).
Here, the ability of a state to create a substantive right
to
be
free
from
unquestionably
a
liability
under
own
state
field
traditional
its
of
state
tort
law
is
regulation.
Therefore, the general presumption against preemption likewise
weighs
against
giving
§ 9658
overly
broad
preemptive
effect.
See Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357, 363
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(5th Cir. 2008) (discussing the preemptive effect of § 9658 and
noting that “[i]f the extent of Congress’s preemptive intent is
unclear,
the
presumption
favors
a
finding
of
limited
preemption.”); see generally Marsh v. Rosenbloom, 499 F.3d 165,
178 (2d Cir. 2007) (concluding CERCLA did not preempt certain
Delaware statutes in part because arguments in favor of greater
monetary
recovery
“alone
are
insufficient
to
justify
displacement of state law”).
II.
CERCLA and the 1986 Amendments clearly put a thumb on the
scales in favor of assisting plaintiffs who may have suffered
injuries due to toxic substances.
and
unambiguous
language
has
But where Congress by plain
indicated
how
much
pressure
it
wishes to apply in that regard, it is not the duty of this court
to press harder and shift that balance.
Rather, it is the
prerogative of Congress to strike that legislative compromise.
In sum, because I believe the plain language of § 9658
preempts North Carolina’s statute of limitations, but not its
statute of repose, I would affirm the decision of the district
court.
44
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