Petition for Writ of Certiorari — CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (No. 13-339)

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Supt erhe Court, U.S.

Fite D

Sep 13 2013

3 3 3 9 OFFICE OF THE OLESK

No. 13-___

IN THE

Supreme Court of the Anited States

CTS CORPORATION,

Petitioner,

PETER WALDBURGER, ET AL.,

Respondents.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

E. Thomison Holman Brian J. Murray

ADAMS HENDON CARSON Counsel of Record

CROW & SAENGER, P.A. Michael F. Dolan

72 Patton Avenue JONES DAY

Asheville, NC 28801 77 West Wacker Drive,

. Suite 3500

Richard M. Re Chicago, IL 60601

JONES Day (312) 782-3939

51 Louisiana Avenue, N.W.

Washington, D.C. 20001 bymurray@jonesday.com

SEPTEMBER 13, 2013

Counsel for Petitioner

Ser ee ne ee ee

QUESTION PRESENTED

For certain state-law tort actions involving envi-

ronmental harms, the Comprehensive Environmental

Response, Compensation, and _ Liability Act

(CERCLA) preempts the state statute of limitations’

commencement date and replaces it with a delayed

commencement date provided by federal law. Specif-

ically, 42 U.S.C. § 9658 provides that if “the applica-

ble limitations period for such an 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.” Jd. § 9658(a)(1). Section 9658, in

turn, defines “applicable limitations period”—1.e., the

state laws to which § 9658 applies—to “mean|] the

period specified in a statute of limitations during

which a civil] action referred to in subsection (a)(1) of

this section may be brought.” Jd. § 9658(b)(2).

In this case, the United States Court of Appeals for

the Fourth Circuit deepened a split in the state and

federal appellate courts by interpreting § 9658 to

preempt not just state statutes of imitations but also

state statutes of repose. A statute of limitations ex-

tinguishes a claimant’s right to pursue a cause of ac-

tion after a certain period of time following accrual,

whereas a statute of repose abolishes a cause of ac-

tion as to a particular defendant after a period of

time, regardless of whether the claim has accrued.

The question presented is: Did the Fourth Circuit

correctly interpret 42 U.S.C. § 9658 to apply to state

statutes of repose in addition to state statutes of limi-

tations?

PARTIES TO THE PROCEEDING

The plaintiffs in this case are Respondents 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 Rich-

ardson, David Bradley, Byron Hovey, Ramona Hovey,

Peter Tatum MacQueen, IV, Bethan MacQueen, Pa-

tricia Pinner, Tom Pinner, III, a/k/a Buddy Pinner,

III, and Madeline Pinner.

The defendant is Petitioner CTS Corporation.

CORPORATE DISCLOSURE STATEMENT

Petitioner CTS Corporation is a publicly held cor-

poration. It does not have any parent corporations.

GAMCO Asset Management, Inc., a wholly owned

subsidiary of GAMCO Investors, Inc., owns 10% or

more of CTS Corporation’s stock.

TABLE OF CONTENTS

QUESTION PRESENTED ..................:ccecce-eeees

PARTIES TO THE PROCEEDING ..................

TABLE OF AUTHORITIES ......................cccc00

ee EE stiptinnivncctenimiinnsaciniianiniinna

JURISDICTION

I. THE FOURTH CIRCUIT'S DECISION

DEEPENS A CONFLICT IN THE

STATE AND FEDERAL APPELLATE

I]. THE FOURTH CIRCUIT'S DECISION

RAISES AN IMPORTANT AND

RECURRING I =GAL ISSUE.................

Ii]. THE FOURTH CIRCUITS DECISION

CONFLICTS WITH THIS COURT'S

| _ SIRI SS ETON NR oar SN OER

IV. THIS CASE PRESENTS AN IDEAL

VEHICLE TO RESOLVE THE

QUESTION PRESENTED.....................

ET acicnscisisceiibsiitcindidsineisbpilianieeiientndansina

APPENDIX A: Opinion of the United States

Court of Appeals for the Fourth Circuit

STATUTORY PROVISION INVOLVED..........

STATEMENT OF THE CASE ...........00........00

REASONS FOR GRANTING THE PETITION

TABLE OF CONTENTS

(continued)

APPENDIX B: Opinion of the United States

District Court for the Western District

EERE Re i ae Ri 37a

APPENDIX C: Memorandum and Recommen-

dation of the United States District

Court for the Western District of North

RENEE Te eae RE lee EY RBM ea Ae Balas 40a

TABLE OF AUTHORITIES

Page(s)

CASES

A.S.1., Inc. v. Sanders,

835 F. Supp. 1349 (D. Kan. 1993)..................000 21

Abrams v. Ciba Specialty Chems. Corp.,

659 F. Supp. 2d 1225 (S.D. Ala. 2009).......... 19, 21

Altria Grp., Inc. v. Good,

I ia 27

Anderson v. United States,

669 F.3d 161 (4th Cir. 2011) ......cccccccceccceseseeeeeeees 19

Bates v. Dow Agrosciences LLC,

i cctes 27

Bolick v. Am. Barmag Corp.,

293 S.E.2d 415 (N.C. 1982) .................ccccccrees 23, 24

Bond v. United States,

a a ealinintaninaens 19

Burlington N. & Santa Fe Ry. Co. v. Poole

Chem. Co.,

419 F.3d 355 (5th Cir. 20085) .............cccccccseee passim

Cheswold Volunteer Fire Co. v. Lambertson

Constr. Co.,

489 A.2d 413 (Del. 1985) ........ccccccecesccseseceseeseeseees 24

Clark Cnty. v. Sioux Equip. Corp.,

753 N.W.2d 406 (S.D. 2008)

Coleman v. H.C. Price Co.,

No. 11-2937, 2013 WL 64613

I ae laa 21

Ernst & Ernst v. Hochfelder,

He SACRE 23

vil

TABLE OF AUTHORITIES

(continued)

Evans v. Walter Indus., Inc.,

579 F. Supp. 2d 1349 (N.D. Ala. 2008) .........

First United Methodist Church of Hyattsville

v. U.S. Gypsum Co.,

882 F.2d 862 (4th Cir. 1989) .................... 00

Fisher v. Ciba Specialty Chem. Corp.,

No. 03-0566, 2007 WL 2995525

I, Wn I, Th i ae

German ex rel. Grace v. CSX Transp., Inc.,

510 F. Supp. 2d 630 (S.D. Ala. 2007) ............

Gregory v. Ashcroft,

Se SR SE NE chiciitnicisnsisiinsincactnelenitbesitiastiie

Hillsborough Cnty. v. Automated Med. Labs.,

Inc.,

ee ee re Ci iainniaeeihstiinsias iittala

In re Erickson,

815 F.2d 1090 (7th Cir. 1987).....................66.

J.H. Westerman Co. v. Fireman's Fund Ins.

Bae Be Gs Rtn csctccints snccssssstncstnccee

James Ferrera & Sons, Inc. v. Samuels,

486 N.E.2d 58 (Mass. App. Ct. 1985)............

Kucana v. Holder,

Lamb v. Wedgewood S. Corp.,

302 S.E.2d 868 (N.C. 1983) ............. eee eeeeeeeees

McDermott Int], Inc. v. Wilander,

ee ee Ce ieticnccinnicscsnpncncsinvesescncsssnine

eile 23

Vill

TABLE OF AUTHORITIES

(continued)

McDonald v. Sun Oil Co.,

423 F. Supp. 2d 1114 (D. Or. 2006)............

McDonald v. Sun Oil Co.,

548 F.3d 774 (9th Cir. 2008) ......................

Mechler v. United States,

No. 12-1183, 2013 BL 205882

Se BI, BRE: Bik SII erercctcciccccchaveectonionsnnte

Medtronic, Inc. v. Lohr,

BR ee PP OR iicccscnsccinesssunnsennasomecenten

Molzof v. United States,

SE SNES I Cc irincenecstenesnesascietnteiemesioons

Moore v. Walter Coke, Inc.,

No. 2:11-cv-1391-SLB, 2012 WL 4731255

(N.D. Ala. Sept. 28, 2012).............0... eee.

Neblett v. Hanover Inspection Serv., Inc.,

No. COA06-1676, 2007 WL 2701349

(N.C. Ct. App. Sept. 18, 2007) ....................

Rapanos v. United States,

EE Be Fe Ge rrecevcncencncscessntepeersseesevens

Raygor v. Regents of the Univ. of Minn.,

Be CE Ce GR crcnsnccsesersessetmnvventwoowsetene

Rice v. Santa Fe Elevator Corp.,

Se Se i Rintascrtcriecesercinessicnesncnnienes

Rodriguez v. United States,

480 U.S. 522 (1987) (per curiam) ...............

Safeco Ins. Co. of Am. v. Burr,

| RR er en aee nano Cem

TABLE OF AUTHORITIES

(continued)

Simmons v. United States,

421 F.3d 1199 (11th Cir. 2005) (per curiam)...... 20

Tipton & Young Constr. Co. v. Blue Ridge

Structure Co.,

446 S.E.2d 603 (N.C. Ct. App. 1994) ......cccccceeeeeees 7

United States v. Charter Int7 O1l Co.,

BB F.BG GIO (iat Cae. 1GBDG) ...0c.cccccccesccccecccscccscoveses 19

United States v. Kubrick,

Ne ee eee i ciriiitincntanctrsntainisctvintaneancaccnciniian 24

Univ. Engg Corp. v. Perez,

451 So.2d 463 (Fla. 1984) (per curiam)............... 23

Waldburger v. CTS Corp.,

2013 WL 3455775 (4th Cir. July 10, 2013)......... 20

Wilson v. McLeod Oil Co.,

398 S.E.2d 586 (N.C. 1990) ...............ccccceeeeeeeeeeees 29

Wyoming v. Oklahoma,

Se NI: I I iiiacxceensebshedetieenenpnenieiamedeiactiin 20

STATUTES

a Ue MN icihciciccaiciticciiititinnsecepeeiieehiilaie 1

I ican et ipiedaicceeipenidndeceioaniela 20

i IIE sictinsiscennninimsinninnnonsicieninseaiueiiciaiiaiminiuiti 8

Be a I sini ceeicehecieiisaicsnceunniibainisigateneiionsieaiastaliial passim

N.C. Gen. Stat. § 1-52(16) ...............ccscccsssccsssece passim

OTHER AUTHORITIES |

Black’s Law Dictionary 1546 (9th ed. 2009).............. 9

54 C.J.S. Limitations of Actions § 4 (1987) ............ 23

TABLE OF AUTHORITIES

(continued)

Page(s)

H.R. Conf. Rep. No. 99-962, 2d Sess. 262,

reprinted in 1986 U.S.C.C.A.N. 3276 ........... 16, 26

Andrew P. Morriss & Roger E. Meiners, 7he

Destructive Role of Land Use Planning,

14 Tulane Envtl. L. J. 95 (2000).....................0.... 19

Restatement (Second) of Torts § 899 (1979)........... 24

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Fourth Circuit (Pet. App. la-36a) is reported

at ___F.38d__ The unreported decision of the Unit-

ed States District Court for the Western District of

North Carolina (Pet. App. 37a-39a) is available at

2012 WL 380053. The unreported memorandum and

recommendation of the magistrate judge (Pet. App.

40a-47a) is available at 2011 WL 7153937.

JURISDICTION

The Fourth Circuit issued its opinion reversing the

district court’s final judgment on July 10, 2013. Pet.

App. la. This Court’s jurisdiction rests on 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

The provision of the Comprehensive Environmen-

tal Response, Compensation, and Liability Act

(CERCLA) at issue in this case provides in full:

(a) State statutes of limitations for hazardous sub-

stance cases

(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 sub-

stance, 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 ear-

her 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 — Except as

provided in paragraph (1), the statute of limita-

tions 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 sub-

stance, or pollutant or contaminant, released into

the environment from a facility.

(3) Actions under section 9607 —- Nothing in

this section shall apply with respect to any cause

of action brought under section 9607 of this title.

(b) Definitions — As used in this section—

(1) Subchapter I terms — The terms used in

this section shall have the same meaning as when

used in subchapter I of this chapter.

(2) Applicable limitations period — The term

“applicable limitations period” means the period

specified in a statute of limitations during which a

civil action referred to in subsection (a)(1) of this

section may be brought.

(3) Commencement date — The term “com-

mencement date” means the date specified in a

statute of limitations as the beginning of the ap-

plicable limitations period.

(4) Federally required commencement date

(A) In general — Except as provided in sub-

paragraph (B), the term “federally required

commencement date” means the date the plain-

tiff knew (or reasonably should have known)

that the personal injury or property damages re-

ferred to in subsection (a)(1) of this section were

caused or contmbuted to by the hazardous sub-

stance or pollutant or contaminant concerned.

(B) Special rules — In the case of a minor or

incompetent plaintiff, the term “federally re-

quired commencement date” means the later of

the date referred to in subparagraph (A) or the

following:

(i) In the case of a minor, the date on which

the minor reaches the age of majority, as de-

termined by State law, or has a legal repre-

sentative appointed.

(ii) In the case of an incompetent individual,

the date on which such individual becomes

competent or has had a legal representative

appointed.

42 U.S.C. § 9658.

STATEMENT OF THE CASE

A. This case concerns 42 U.S.C. § 9658, a unique

federal provision that engrafts a special federa/ com-

mencement date onto the running of state statutes of

limitations governing state causes of action. This

federal intrusion into state procedural law applies to

any state action for “personal injury, or property

damages’ that arises from a “hazardous substance, or

pollutant or contaminant, released into the environ-

ment from a facility.” Jd. § 9658(a)(1). For these

qualifying state-law actions, § 9658 preempts the

state commencement dates that would have other-

wise applied under the state statutes of limitations,

and provides a federal commencement date. Specifi-

cally, if the “applicable limitations period for such ac-

tion (as specified in the State statute of limitations or

under common law) provides a commencement date

which is earlier than the federally required com-

mencement date, such period shall commence at the

federally required commencement date in lieu of the

date specified in such State statute.” /d. And § 9658

defines the “applicable limitations period” that it co-

vers as the “period specified in a statute of limita-

tions during which” the qualifying state claims may

be brought. Jd. § 9658(b)(2).

The federal commencement date that § 9658 pro-

vides for these state-law claims is an “enhanced dis-

covery rule.” Pet. App. 34a. Like North Carolina,

most states have statutes of limitations that begin to

run when the plaintiffs “bodily harm” or “physical

damage” “becomes apparent or ought reasonably to

have become apparent to the” plaintiff. N.C. Gen.

Stat. § 1-52(16). In place of these triggering events,

§ 9658 delays the commencement of the state stat-

utes of limitations until “the plaintiff knew (or rea-

sonably should have known) that the personal injury

or property damages ... were caused or contributed

to by the hazardous substance or pollutant or con-

taminant concerned.” 42 U.S.C. 9658(b)(4)(A). Ac-

cordingly, this federal discovery rule does not trigger

the state statute of limitations until the plaintiff

knows of (or reasonably should have known of) both

the injury and the causal connection between the in-

jury and the alleged hazardous substance at issue.

B. According to the complaint’s allegations, over

several decades, CTS of Asheville, Inc., operated a

plant in Asheville, North Carolina, that manufac-

tured electronic components. Pet. App. 5la. As part

of the manufacturing process, CTS of Asheville used

and stored various toxic solvents at the plant. /d. In

1983, CTS of Asheville was dissolved, and Petitioner

CTS Corporation took over the plant’s operations un-

der its Asheville Division. Jd. at 52a. CTS Corpora-

tion operated the plant for two years, and eventually

sold the property in 1987. The buyer then sold the

unimproved portion of the property to a developer

that built houses on the mountainside overlooking

the former plant site. Pet. App. 53a-54a. Respond-

ents—a group of individuals that purchased houses

on or near the former CTS property—‘“contend that

their land and ground water is contaminated by the

toxic chemicals . . . that CTS Corporation left at the

Facility when it sold the property.” /d. at 41a.

In February 2011, Respondents brought a one-

count complaint against CTS Corporation alleging

that it had violated North Carolina’s nuisance law.

Id. at 55a-57a. Respondents sought monetary dam-

ages and a judgment requiring CTS Corporation to

engage in reclamation of the toxic solvents and reme-

diation of the environment around the former plant

site. /d. at 57a. CTS Corporation moved to dismiss

the complaint on the ground that North Carolina's

10-year statute of repose had eliminated Respond-

ents’ nuisance claim long before they brought this

sult.

A magistrate judge recommended that the district

court grant CTS Corporation’s motion to dismiss.

Pet. App. 40a. The magistrate initially noted that a

3-year statute of limitations governs North Carolina

nuisance claims, and begins to run once “bodily harm

to the claimant or physical damage to his property

becomes apparent or ought reasonably to have be-

come apparent to the claimant.” Pet. App. 43a (quot-

ing N.C. Gen. Stat. § 1-52(16)). A 10-year statute of

repose also applied to these claims, however, which

indicates that “no cause of action shall accrue more

than 10 years from the last act or omission of the de-

fendant giving rise to the cause of action.” Pet. App.

44a (quoting N.C. Gen. Stat. § 1-52(16)). Because

“[t}he last possible act or omission by Defendant CTS

Corporation that could give rise te a cause of action

occurred in 1987 when it sold the property,” the mag-

istrate reasoned, Respondents’ nuisance claim was

“barred by the statute of repose contained in N.C.

Gen. Stat. § 1-52(16).” Jd.

The magistrate rejected Respondents’ two argu-

ments for avoiding this statute of repose. The magis-

trate disagreed with Respondents’ contention that

the 10-year statute of repose violated the North Caro-

lina Constitution’s “open courts provision.” Pet. App.

44a. “North Carolina courts have upheld shorter

statute[s] of repose{] for other causes of action,” the

magistrate explained, and the 10-year limit is “not so

short as to effectively abolish all potential claims.”

Pet. App. 45a (citing Lamb v. Wedgewood S. Corp.,

302 S.E.2d 868 (N.C. 1983)).

More relevant here, the magistrate also rejected

Respondents’ position that § 9658 engrafts its feder-

ally mandated commencement date not simply onto

North Carolina’s 3-year statute of limitations but also

onto its 10-year statute of repose. Pet. App. 46a. Re-

lying on the Fifth Circuit’s decision in Burlington

Northern & Santa Fe Railway Co. v. Poole Chemical

Co., 419 F.3d 355, 362-63 (5th Cir. 2005), the magis-

trate reasoned that “[t]he clear language of the stat-

ute... 1s limited to a state’s statute of limitations,”

not a state’s statute of repose. Pet. App. 46a.

The magistrate noted the well-known substantive

differences between the two types of statutes. On the

one hand, “[a] statute of repose is a substantive limi-

tation, and is a condition precedent to a party’s rnght

to maintain a lawsuit.” Pet. App. 47a (quoting 7ip-

ton & Young Constr. Co. v. Blue Ridge Structure Co.,

446 S.E.2d 603, 605 (N.C. Ct. App. 1994)). On the

other, a statute of limitations is a “procedural device

that operates as a defense to limit the remedy availa-

ble from an existing cause of action.” /d. (quoting

First United Methodist Church of Hyattsville v. U.S.

Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989)).

The district court subsequently adopted the magis-

trate’s recommendation and entered final judgment

for CTS Corporation. Pet. App. 39a. The court de-

scribed the “magistrate judge’s analysis of CERCLA’s

preemption of state statutes of limitations, as op-

posed to statutes of repose” as “accurate and well-

reasoned.” Pet. App. 39a. And the court found the

Ninth Circuit’s contrary holding—that CERCLA

preempted both statutes of limitation and statutes of

repose—to be “flawed.” /d. (disagreeing with McDon-

ald v. Sun Oil Co., 548 F.3d 774, 778 (9th Cir. 2008)).

Section 9658's plain language applies only to state

statutes of lmitations, the court explained, so the

“McDonald court created an ambiguity where none

existed.” /d.

C. A divided panel of the Fourth Circuit reversed.

Pet. App. la. The majority held that “the discovery

rule articulated in § 9658 .. . preempts North Caroll-

na’s ten-year limitation” in N.C. Gen. Stat. § 1-52(16).

Pet. App. 2a. It began with a historical summary of

how § 9658 came to be. Congress passed CERCLA in

1980 against the backdrop of well-publicized envi-

ronmental disasters. Pet. App. 2a-3a. The majority

thus described CERCLA as “a remedial statute” de-

signed to abate hazardous-waste sites and to shift the

costs of cleanup to responsible parties. Pet. App. 3a-

4a. After CERCLA’s enactment, Congress “estab-

lished a study group to examine the ‘adequacy of ex-

isting common law and statutory remedies in provid-

ing legal redress for harm .. . caused by the release of

hazardous substances into the environment.” /d. at

4a (quoting 42 U.S.C. § 9651(e)(1)). The study group

determined that environmental claims have long la-

tency periods not suited for statutes of limitations

running from the time of the defendant’s last act or

from the plaintiff's exposure to harm. Pet. App. 4a-

5a. So, the study group recommended to the states

that they “adopt the rule that an action accrues

when the plaintiff discovers or should have discov-

ered the injury or disease and its cause,” and “repeal

. Statutes of repose which, in a number of states

have the same effect as some statutes of limitation in

barring [a] plaintiffs claim before he knows that he

has one.” Pet. App. 5a (quoting Superfund Section

301(e) Study Group, 97th Cong., Injuries and Dam-

ages from Hazardous Wastes-Analysis and Improve-

ment of Legal Remedies pt. 1, at 241 (Comm. Print

1982)). In 1986, the majority explained, Congress in-

tervened by passing § 9658 instead of waiting for the

states to amend their state laws. /d.

The majority next “review[ed] the concepts of limi-

tations and repose.” Pet. App. 9a. It noted that both

limit the amount of time that a :laintiff has to bring

suit. A statute of limitations “bars claims after a

specified period ... based on the date when the claim

accrued (as when the injury occurred or was discov-

ered),” and is designed to discourage plaintiffs from

sitting on their rights while evidence is lost. Pet.

App. 10a (quoting Black’s Law Dictionary 1546 (9th

ed. 2009) (emphasis added)). A statute of repose, by

contrast, “bar[s] any suit that is brought after a spec-

ified time since the defendant acted. . . even if this

period ends before the plaintiff has suffered a result-

ing injury” and before the claim accrues. /d. (quoting

Black’s Law Dictionary at 1546 (emphasis added)). A

statute of repose’s grant of substantive immunity is

designed to balance the interests of plaintiffs and de-

fendants by setting a time limit beyond which no lia-

bility exists. /d. The majority concluded that the 10-

year penod at issue in this case was a statute of re

pose under these general definitions, as the North

Carolina courts themselves had repeatedly held. Pet.

App. 10a-1la.

The majority then turned to § 9658's language. It

conceded that the district court could reasonably in-

terpret § 9658 not to reach statutes of repose because

it mentioned the phrase “statute of limitations” five

times and the phrase “statute of repose” zero times.

Pet. App. lla-12a. Yet the majority ultimately con-

cluded that the provision was ambiguous as to

whether Congress meant the phrase “statute of lim1-

tations” to encompass statutes of repose. Pet. App.

lla. The majority reasoned that the statute of repose

at issue here appears in a section of the North Caro-

lina Code entitled “Limitations, Other than Real

Property,” so it could be interpreted to fall within

§ 9658(a) because it was “specified in the State stat-

ute of limitations or under common law.” Pet. App.

l2a. The majority next noted that the statute of re-

pose could be interpreted to qualify under § 9658(b)’s

definition of “applicable limitations period” because it

was a “period,” “specified in a statute of limitations,”

“during which a civil action ... may be brought.” Jd.

Finally, because the statute of repose began to run at

the time of the defendant's last action, its “com-

mencement period” was earler than the federal

commencement date and could be interpreted to trig-

ger that delayed date. Pet. App. 12a-13a.

To avoid the appearance that it was “stretching to

find ambiguity in the text,” the majority provided two

additional rationales to support its interpretation

that the phrase “statute of limitations” could include

“statute of repose.” Pet. App. 13a. It noted that “a

historical analysis reveals that both scholars and

courts have often used the terms interchangeably.”

/d. Given this confusion, the majority found it proba-

ble that Congress intended for statute of limitations

to cover statutes of repose. /d. Additionally, the ma-

jority opined that there is a “lack of internal con-

sistency between § 9658's substantive provision

(§ 9658(a)(1)) and its’ definitional provision

(§ 9658(b)(2)). The substantive provision indicates

that it applies to an “applicable limitations period”

“as specified in the State statute of limitations or un-

der common law.” The definition of “applicable limi-

tations period,” by contrast, defines the phrase as

“the period specified in a statute of limitations” with-

out reference to the common law. Pet. App. 13a-14a.

The majority thus noted that § 9658 failed to man1-

fest a plain meaning when state common law (rather

than state statutory law) establishes the relevant

limitations period. /d.

The majority resolved this perce’ved ambiguity by

holding that § 9658 preempts the commencement

dates in state statutes of repose. It relied on three

factors. First, it cited the study group’s recommenda-

tions—which were “equally concerned with statutes

of repose and limitations, and with their effect of bar-

ring plaintiffs’ claims before they are aware of them.”

Pet. App. 14a. Second, it cited CERCLA’s “remedial”

nature, opting for a “broad interpretation” of “statute

of limitations” to further the statute’s remedial goals.

Id. at 15a. Third, it cited the Ninth Circuit’s McDon-

ald decision, noting that it was “unpersuaded” by the

Fifth Circuit’s contrary analysis regarding the plain

meaning of § 9658's text. /d. at 16a.

The majority concluded by suggesting that its hold-

ing may “raise the ire” of “corporations and other en-

tities” that rely on statutes of repose, but explained

that it had not turned a “blind eye” to the policies

that these statutes vindicate. /d. After all, the ma-

jority noted, a plaintiff still must meet its burden of

proof on the merits, which will prove more difficult as

time passes. /d at 17a. And, while its holding effec-

tively eliminated the statute of repose by starting it

and the statute of limitations at the exact same time,

the 3-year period still apphed so “defendants will not

necessarily be endlessly subjected to the possibility of

litigation.” /d. Finally, the majority expressed again

that its holding comported with the study group’s

recommendations. /d.

Judge Davis, in a short concurrence, noted that

§ 9658's “plain language” need not establish an ambi-

guity if other tools of statutory interpretation proved

that an ambiguity existed. Pet. App. 18a.

Judge Thacker dissented. Pet. App. 19a-37a. Be-

ginning with § 9658's plain language, the dissent re-

jected the majority’s argument that the phrase “stat-

ute of limitations” was ambiguous in 1986 when Con-

gress adopted § 9658. The dissent recognized the

“modern vintage” of the differences between “statutes

of limitations” and “statutes of repose.” Pet. App.

24a. But this did not help the majority. Historically,

statutes of limitations were “considered, along with

other statutory time-bars, to provide repose to liti-

gants and were thus, generally, statutes of repose.”

Pet. App. 24a. In 1986, therefore, “the only possible

ambiguity may have been the meaning of ‘statute of

repose’ and whether that term had fully matured into

its modern definition.” Pet. App. 26a. There had, by

contrast, never been any ambiguity on the narrower

scope of the phrase “statute of lmitations’—the

phrase actually used by § 9658.

In addition, the dissent noted that the majority’s

holding made § 9658 unworkable. “Importantly, the

commencement date is defined as the beginning of

the period in which a civil action may be brought.”

Pet. App. 29a (citing 42 U.S.C. § 9658(b)(2)-(3)). But

statutes of repose hike North Carolina’s do not create

a beginning point when a claim may be brought; they

create an outer limit whether or not the claim could

have been brought before that limit runs. /d As

such, “[b]lecause North Carolina's statute of repose

does not create the beginning of the applicable limita-

tions period, § 9658 cannot graft neatly—or at all—

onto the North Carolina statute of repose so as to

preempt its enforcement.” /d.

While recognizing that the court need not look to

legislative history because the plain language must

control, the dissent also asserted that the relevant

legislative history supported its “conclusion that

Congress was aware that statutes of limitations were

a distinct category of time-bar sta’ utes and specifical-

ly chose only to preempt those statutes and not other

statutory time bars such as statutes of repose.” /d. at

29a. Specifically, the study group’s report on which

the majority had relied expressly distinguished be-

tween statutes of limitations and statutes of repose,

recommending changes to both types of statutes. Jd.

at 3la. That the very recommendations underlying

§ 9658 distinguished these two kinds of statutes il-

lustrates that Congress could not hav~ been confused

about their separate meanings. /7 at 32a.

The dissent bolstered this interpretation with two

canons of statutory interpretation. For one, the dis-

sent explained that “the role of legislative compro-

mise” should play a part in § 9658's interpretation.

Jd. at 32a. The study group recommended a host of

procedural reforms to state tort claims, but Congress,

through § 9658, adopted only the recommendation

concerning statutes of limitations. /d. at 34a. By do-

ing so, Congress struck “a balance between harmoniz-

ing certain procedural matters in toxic tort cases and

allowing states to continue to regulate their own sub-

stantive areas of law.” /d. at 34a-35a. The majority

frustrated this compromise (and the legislative in-

tent) by departing from the plain language and ex-

panding the reach of the statute.

For another, this case “arises in the context of fed

eral preemption,” so the long-standing presumption

against preemption should apply. /d. at 35a “Just as

[courts] presume ‘Congress does not cavalierly pre-

empt state-law causes of action|[,|’ [the courts] should

also presume that Congress does not cavalierly

preempt state substantive rights to be free from those

state-law causes of action.” Jd. (quoting Medtronic,

Inc. v. Lohr, 518 U.S. 470, 485 (1996)). This general

presumption weighed against giving § 9658 an overly

broad preemptive effect. Pet. App. 35a-36a.

Since issuing its decision, the Fourth Circuit has

stayed its mandate pending this Court’s disposition of

this petition for a writ of certiorari.

REASONS FOR GRANTING THE PETITION

The Court should grant CTS Corporation’s petition

for a writ of certiorari. First, the Fourth Circuit’s de-

cision deepens a split in the federal and state appel-

late courts over whether 42 U.S.C. § 9658 applies on-

ly to state statutes of limitations or also to state stat-

utes of repose. Second, the Fourth Circuit’s decision

raises a legal issue of great practical and intrinsic

importance. The question presented arises with

great frequency, often in cases where millions of dol-

lars are at stake. And the question presented is also

of intrinsic importance because it affects the federal-

state balance of power in an area of traditional state

regulation. Third, the Fourth Circuit's decision runs

contrary to the plain statutory text and so conflicts

with this Court’s settled principles of statutory inter-

pretation. The decision below also defies this Court’s

long-standing presumption against preemption by

construing a supposedly ambiguous federal statute to

invade a traditional area of state regulation. Fourth,

and finally, this case provides an ideal vehicle for re-

viewing this pure question of law, as it was decided

on a motion to dismiss, and there is no dispute that

the Respondents’ state claim would be eliminated

under North Carolina’s statute of repose unless

§ 9658 preempts that state statute.

I. THE FOURTH CIRCUITS DECISION DEEP-

ENS A CONFLICT IN THE STATE AND FED-

ERAL APPELLATE COURTS

The Court should grant CTS Cor--oration’s petition

for a writ of certiorari initially because several feder-

al and state appellate decisions have reached differ-

ent conclusions on the question whether 42 U.S.C.

§ 9658 preempts state statutes of repose.

A. On the one hand, the Fifth Circuit has held that

“the plain language of § 9658 does not extend to stat-

utes of repose.” Burlington N. & Santa Fe Ry. v.

Poole Chem. Co., 419 F.3d 355, 362 (5th Cir. 2005).

In that case, the plaintiff sued the defendant for

cleanup costs resulting from the 2003 rupture of a

chemical storage tank that had been previously in-

stalled in 1988. See id. at 358. Because the plain-

tiffs state claims were barred by Texas’s 15-year

statute of repose, the plaintiff argued that § 9658

preempted that statute. See id. at 361. The Fifth

Circuit rejected this argument, and affirmed the dis-

missal of the suit. Jd. at 362-65.

The court began with § 9658’s plain language, not-

ing that the text covered only statutes of limitations

and nowhere mentioned statutes of repose. /d. at

362. The “differences between statutes of limitations

and statutes of repose,” the court reasoned, “are sub-

stantive, not merely semantic.” Jd. A statute of limi-

tations “extinguishes the right to prosecute an ac-

crued cause of action after a period of time,” whereas

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.” /d. at 363. Thus, stat-

utes of limitations generally run from the date of the

plaintiffs injury and, as they are triggered by an in-

jury, generally toll this period until the plaintiff rea-

sonably should have learned of that injury. Jd. “In

contrast, awareness of injury is not a factor in deter-

mining when the time period of a statute of repose

starts to run,” as it is triggered by the defendant’s

underlying conduct, whether or not the plaintiff's

claim has accrued. Jd.

The Fifth Circuit next concluded that § 9658's

plain language must control because no other factors

illustrated an “express congressional intent to the

contrary.” Jd. at 364. According to the court,

“CERCLA’s legislative history indicates Congress in-

tended for § 9658 to preempt a state statute of limita-

tions that deprives a plaintiff who suffers a long-

latency disease caused by the release of a hazardous

substance of his cause of action, but not to preempt a

state statute of repose” that is not at all tied to the

plaintiff's injury. Jd. & nn.44-45 (citing H.R. Conf..

Rep. No. 99-962, 2d Sess. 262, reprinted in 1986

U.S.C.C.A.N. 3276, 3354). In light of this legislative

history, reading § 9658’s reference to “statutes of lim-

itations” according to its terms “comports with a fun-

damental principle of statutory construction—

common sense.” Surlington, 419 F.3d at 364.

The Supreme Court of South Dakota later adopted

the Fifth Circuit’s interpretation of § 9658. See Clark

Cnty. v. Sioux Equip. Corp., 753 N.W.2d 406, 417

(S.D. 2008). In Clark, the defendant installed a fuel-

storage system on the plaintiffs property. The de-

fendant completed the work in 1992, and the plaintiff

brought suit in 2006 to recover the cleanup costs of a

fuel leak several years earlier. See id. at 408-09. In

response to the defendant’s argument that the state

statute of repose had run, the plaintiff asserted that

CERCLA preempted it. Relying on Burlington, see

id. at 414-17, the South Dakota Supreme Court held

that “the plain text controls.” Jd. at 417. “[T]he plain

language of CERCLA only preempts state law when

the applicable ‘state statute of limitations’ provides a

commencement date that is earlier than the federally

required commencement date,” the court noted, and

“Congress failed to include substantively different

statutes of repose within this preemptive rule.” /d. at

417.

B. The Ninth Circuit subsequently departed from

the Fifth Circuit over whether § 9658 applies to state

statutes of repose. See McDonald v. Sun Oil Co., 548

F.3d 774, 779 (9th Cir. 2008). In McDonald, the de-

fendant sold property to the plaintiffs in 1976, and

the plaintiffs learned in 2001 that the property might

be contaminated with mercury. /d. at 778. The dis-

trict court granted the defendant’s motion for sum-

mary judgment on plaintiffs’ negligence claim, rely-

ing on the Fifth Circuit's Burlington decision to hold

that § 9658 does not apply to Oregon’s statute of re-

pose. See McDonald v. Sun Oil Co., 423 F. Supp. 2d

1114, 1127 (D. Or. 2006). The Ninth Circuit re-

versed, holding that “the term ‘statute of limitations’

in [§ 9658] is ambiguous and the legislative history of

the section indicates that its meaning includes stat-

utes of repose[.]” 548 F.3d at 797.

The Ninth Circuit found § 9658 ambiguous as to

whether the phrase “statute of limitations” includes

“statutes of repose” because “a number of cases con-

fused the terms or used them interchangeably” when

Congress adopted the provision in 1986. Jd. at 781.

As such, the Ninth Circuit criticized the Fifth Cir-

cuit’s plain-meaning approach because it “failed to

analyze the meaning of ‘statute of hmitations’ at the

time [§ 9658] was adopted.” Jd. at 782. The court

then turned to the legislative history, which

“show[ed] that Congress’s primary concern in enact-

ing [§ 9658] was to adopt the discovery rule in situa-

tions where a plaintiff may lose a cause of action be-

fore becoming aware of it[.]” Jd. at 783. Because this

predicament was “most likely to occur where statutes

of repose operate,” the court held that such statutes

should be included within § 9658 to further the sec-

tion’s underlying purpose. /d.

The Fourth Circuit’s fractured decision in this case

has deepened this split of appellate authority—with

the majority joining the Ninth Circuit’s side of the

debate and the dissent joining the side of the Fifth

Circuit and the Supreme Court of South Dakota. As

explained above, supra at 11, in addition to the Ninth

Circuit’s textual analysis and reliance on legislative

history, the Fourth Circuit also chose a liberal con-

struction of § 9658 because “Congress’s purpose in

enacting CERCLA was remedial.” Pet. App. 14a.

x~ x« * *

The Court need not take CTS Corporation’s word

for this substantial conflict in the appellate courts.

District judges have repeatedly recognized it as well.

As the District of Kansas recently noted, “[t]he cir-

cults ... are split on the issue of whether § 9658

preempts state statutes of repose.” Mechler v. United

States, No. 12-1183, 2013 BL 205882, at *8 (D. Kan.

Aug. 2, 2013). Likewise, the Southern District of Al-

abama has noted that “the Fifth Circuit in Burling-

ton and the Ninth Circuit in McDonald’ “disagreed

on the application of § 9658 to statutes of repose.”

Abrams v. Ciba Specialty Chems. Corp., 659

F. Supp. 2d 1225, 1238 (S.D. Ala. 2009). Only this

Court can now resolve this clear split of authority in

the lower courts.

Il. THE FOURTH CIRCUIT'S DECISION RAISES

AN IMPORTANT AND RECURRING LEGAL

ISSUE

The Court should also grant CTS Corporation’s pe-

tition because it raises an important and recurring

legal issue. To begin with, the stakes are often high

in environmental tort cases, with millions of dollars

routinely at issue. See, e.g., Burlington, 419 F.3d at

358 (noting that the alleged cleanup cost was $2.1

million); see also United States v. Charter Int7 O1l

Co., 83 F.3d 510, 512 (1st Cir. 1996) (“Multiples of

millions of dollars are involved in [CERCLA] settle-

ments and the stakes are high, both for the public

and for the parties involved”); Andrew P. Morriss &

Roger E. Meiners, The Destructive Role of Land Use

Planning, 14 Tulane Envtl. L. J. 95, 124-25 & n.108

(2000) (citing cases for the proposition that “each

year some of the largest tort judgments in the nation

are against invaders of private property” in environ-

mental suits). And because governments can be

CERCLA defendants, the question presented also

impacts the public fisc. See Anderson v. United

States, 669 F.3d 161, 165 (4th Cir. 2011); Simmons v.

United States, 421 F.3d 1199, 1202 (11th Cir. 2005)

(per curiam); see a/so Br. of United States as Amicus

Curiae in Support of Appellee at 2, Waldburger v.

CTS Corp., 2013 WL 3455775 (4th Cir. July 10, 2013)

(No. 12-1290). Thus, many millions of dollars turn on

the pure question of law presented here.

The question presented also implicates the balance

of power between the federal government and the

states. The “federalist structure of joint sovereigns

preserves to the people numerous advantages.”

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991); see

Bond v. United States, 131 S. Ct. 2355, 2364-65

(2011). But, given the Supremacy Clause, “Congress

may legislate in areas traditionally regulated by the

States,” which is “an extraordinary power in a feder-

alist system,” one that this Court “must assume Con-

gress does not exercise lightly.” Gregory, 501 U.S. at

460. As such, the Court has repeatedly granted cer-

tiorari to determine whether federal laws were un-

ambiguously meant to intrude on state prerogatives.

See, e.g., Raygor v. Regents of the Univ. of Minn., 534

U.S. 533, 544-45 (2002) (deciding whether 28 U.S.C.

§ 1367(d) should be interpreted to toll state statute of

limitations against state actors); Gregory, 501 U.S. at

464-70 (deciding whether ADEA covers state judges);

cf Wyoming v. Oklahoma, 502 U.S. 437, 451 (1992)

(exercising discretion to accept original jurisdiction

because case “implicates serious and important con-

cerns of federalism” (citation omitted)).

This case raises similar federalism concerns. Sec-

tion 9658 undoubtedly invades the states’ traditional

authority to establish the limits that govern their

own tort actions. Cf Raygor, 534 U.S. at 544 (“allow-

ing federal law to extend the time period in which a

state sovereign is amenable to suit in its own courts

at least affects the federal balance in an area that

has been a historic power of the States”). The Fifth

Circuit’s interpretation of § 9658 amounts to a minor

encroachment by only delaying the beginning of the

state statutes of limitations. The Fourth Circuit's

“liberal construction” of § 9658, by contrast, dramati-

cally increases the scope of this intrusion by effective-

ly eviscerating state statutes of repose. See N.C.

Gen. Stat. § 1-52. If § 9658 applies to start both the

statute of limitations and the statute of repose at the

same time (as the Fourth Circuit held), then the

statute of limitations always will have run well be-

fore the statute of repose, thereby making the latter a

nullity. Whether right or wrong, the decision’s im-

pact on traditional state prerogatives cannot be

doubted and justifies the Court’s review.

Finally, the question presented arises frequently.

The district courts, for example, consider this issue

often and are even more divided than the appellate

courts. In addition to the district court and magis-

trate below, see Pet. App. 38a, 47a, several courts

have adopted the Fifth Circuit’s view that § 9658

simply does not reach statutes of repose. See Clark,

753 N.W.2d at 415 (noting at the time that “[a]ll re-

cent federal district courts agree[d]” with the Fifth

Circuit); see, e.g., Coleman v. H.C. Price Co., No. 11-

2937, 2013 WL 64613, at *2-3 & n.3 (E.D. La. Jan. 4,

2013) (finding that § 9658 does not preempt statute of

repose); McDonald, 423 F.Supp. at 1127 (same).

Others have taken the Ninth Circuit’s approach. See

Mechler, 2013 BL 205882, at *8-9; A.S.J, Inc. v.

Sanders, 835 F. Supp. 1349, 1358 (D. Kan. 1993).

indeed, district courts in Alabama have repeatedly

disagreed over whether § 9658 applies to the very

same statute of repose. Compare Evans v. Walter

Indus., Inc., 579 F. Supp. 2d 1349, 1358-64 (N.D. Ala.

2008) (holding that § 9658 does not preempt Ala-

bama’s statute of repose); German ex rel. Grace v.

CSX Transp., Inc., 510 F. Supp. 2d 630, 633-34 (S.D.

Ala. 2007) (same); with Moore v. Walter Coke, Inc.,

No. 2:11-cv-1391-SLB, 2012 WL 4731255, at *9-13

(N.D. Ala. Sept. 28, 2012) (holding that § 9658

preempts Alabama’s statute of repose); Abrams, 659

F. Supp. 2d at 1231-39 (same); Fisher v. Crba Spe-

cialty Chem. Corp., No. 03-0566, 2007 WL 2995525,

at *15 (S.D. Ala. Oct. 11, 2007) (same). Despite the

frequency with which this legal issue arises, the typi-

cally massive financial stakes involved often force

settlement, thereby preventing many cases from

reaching the courts of appeals.

In sum, both the importance of the question pre-

sented and the frequency with which it arises confirm

that certiorari should be granted in this case.

Ill. THE FOURTH CIRCUITS DECISION CON-

FLICTS WITH THIS COURT'S CASE LAW

The Court should also grant certiorari because the

Fourth Circuit’s decision conflicts with numerous

principles that this Court has directed lower courts to

follow when interpreting federal statutes.

First, the Fourth Circuit’s holding that the phrase

“statute of limitations” is ambiguous conflicts with

the “cardinal rule of statutory construction” that

plain statutory terms should carry their plain mean-

ings. Molzof v. United States, 502 U.S. 301, 307

(1992); see, e.g., Safeco Ins. Co. of Am. v. Burr, 551

U.S. 47, 58 (2007) (interpreting the term “willful”);

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342

(1991) (Qnterpreting the term “seaman”). This bed-

rock principle has special force when the statutory

term at issue is a legal term of art with a well-settled

definition. See, e.g., Ernst & Ernst v. Hochfelder,

425 U.S. 185, 199 (1976). “In the absence of contrary

indication, [the Court] assume|[s] that when a statute

uses ... a term [of art], Congress intended it to have

its established meaning.” McDermott Int?, 498 U.S.

at 342.

Yet the Fourth Circuit identified no legal authority

indicating that the phrase “statute of limitations”

had a legal meaning encompassing a statute of repose

when Congress enacted § 9658 in 1986. Rather, the

phrases “statute of limitations” and “statute of re-

pose” were distinct terms of art that distinguished

distinct types of provisions. Indeed, the case law re-

peatedly used the phrase “statute of repose” to dis-

tinguish statutes of limitations from statutes “that

begin ‘to run at a time unrelated to the traditional

accrual of the cause of action.” Bolick v. Am. Barmag

Corp., 293 S.E.2d 415, 418 (N.C. 1982); see JH.

Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d

116, 119 (D.C. 1985) (“A statute of repose differs from

an ordinary statute of limitations in that the speci-

fied time period begins to run not from the date on

which a right of action accrues, but from another as-

certainable date.”); James Ferrera & Sons, Inc. v.

Samuels, 486 N.E.2d 58, 60 (Mass. App. Ct. 1985)

(“There is a marked difference between a statute of

hmitations and a statute of repose.”); Univ. Engg

Corp. v. Perez, 451 So.2d 463, 465 (Fla. 1984) (per

curiam) (“A statute of repose should be distinguished

from a statute of limitations.”); Cheswold Volunteer

Fire Co. v. Lambertson Constr. Co., 489 A.2d 413,

421 (Del. 1985) (“As a statute of repose is not a stat-

ute of limitations within the meaning of Superior

Court Civil Rule &(c), it need not be pleaded affirma-

tively.”). The consensus view established by these

cases was reflected in a well-known treatise: “Unlike

an ordinary statute of limitations which begins run-

ning upon accrual] of the claim, the period specified in

a statute of repose begins when a specific event oc-

curs, regardless of whether a cause of action has ac-

crued or whether any injury has resulted.” 54 C.J.S.

Limitations of Actions § 4, at 20-21 (1987) (emphases

added). Even the study group whose recommenda-

tions formed the basis for § 9658 recognized the dis-

tinctions between the two types of statutes. Pet. App.

3la. Notably, however, § 9658 repeatedly identifies

only statutes of limitations, not statutes of repose, as

falling within its reach. The statute should have

been interpreted accordingly. See McDermott, 498

U.S. at 342.

To reach its contrary conclusion that the phrases

statute of limitations and statute of repose are fungi-

ble, the Fourth Circuit suggested that “a historical

analysis reveals that both scholars and courts have

often used the terms interchangeably.” Pet. App.

13a. That is not so. As the dissent noted, Pet. App.

24a, courts had historically viewed “statute of repose”

as the catch-all phrase covering different types of

time bars, including statutes of limitations. See

Bolick, 293 S.E.2d at 417 (noting that “the term

‘statute of repose’ has traditionally been used to en-

compass statutes of limitation”); see, eg., United

States v. Kubrick, 444 U.S. 111, 117 (1979) (referring

to a statute of limitations as a statute of repose). But

simply because the phrase statute of repose could be

interpreted to cover statutes of limitations does not

justify the Fourth Circuit’s converse holding that the

phrase statute of limitations could be interpreted to

cover statutes of repose.

In ali events, in the decade immediately preceding

§ 9658’s enactment, courts had repeatedly used the

phrase “statute of repose” in its narrower sense to de-

fine the flurry of state laws that tied the running of

the applicable time limit to the defendant’s actions

rather than the claim’s accrual. See Lamb vy.

Wedgewood South Corp., 302 S.E.2d 868, 872 (N.C.

1983) (“This statute, lke many others enacted

throughout the nation, is a ‘statute of repose,’ which

this Court has recognized constitutes a substantive

definition of, rather than a procedural limitation on,

rights.”); see also Restatement (Second) of Torts § 899

cmt. g (1979) (“In recent years special ‘statutes of re-

pose’ have been adopted in some states covering par-

ticular kinds of activity... .”). Thus, far from consid-

ering this background context in which Congress en-

acted § 9658, the Fourth Circuit ignored it.

Second, after improperly finding an ambiguity in

the phrase “statute of limitations,” the Fourth Circuit

improperly resolved that ambiguity by relying on

CERCLA’s general purposes. As this Court has re-

peatedly indicated, however, “no law pursues its

purpose at all costs, and . . . the textual limitations

upon a law’s scope are no less a part of its ‘purpose’

than its substantive authorizations.” Kucana v.

Holder, 558 U.S. 233, 252 (2010) (citing Rapanos v.

United States, 547 U.S. 715, 752 (2006) (plurality

opinion)). In other words, “[djeciding what competing

values will or will not be sacrificed to the achieve-

ment of a particular objective is the very essence of

legislative choice—and it frustrates rather than effec-

tuates legislative intent simplistically to assume that

whatever furthers the statute’s primary objective

must be the law.” Hodriguez v. United States, 480

U.S. 522, 526 (1987) (per curiam); cf Jn re Erickson,

815 F.2d 1090, 1094 (7th Cir. 1987) (Easterbrook, J.)

(“Finding the meaning of a statute is more like calcu-

lating a vector (with direction and length) than it is

like identifying which way the underlying ‘values’ or

‘purposes’ point (which has direction alone).”).

As the dissent explained, Pet. App. 35a, the Fourth

Circuit made exactly this mistake. The majority

adopted the interpretation that allegedly furthered

CERCLA’s “remedial” purpose, noting that the Fifth

Circuit’s reading of statute of limitations “offers too

narrow an approach and one that thwarts Congress’s

unmistakable goal of removing barriers to relief from

toxic wreckage.” Pet. App. 15a. But it is unmistaka-

bly clear that Congress did not seek to remove all of

the state procedural barriers that the study group

suggested should be removed, because it did not

adopt most of them. See Pet. App. 32a. For example,

the study group recommended modified evidentiary

presumptions and liberal joinder rules—yet those

proposals were not adopted. See rhid. So the Fourth

Circuit was wrong to suggest that “whatever furthers

[§ 9658’s] primary objective must be the law.” Aodri-

guez, 480 U.S. at 526. Indeed, as the Fifth Circuit

explained, see Burlington, 419 F.3d at 364 nn.44-45,

the legislative history suggests that Congress was

concerned only with some state statutes of limita-

tions that begin to run on the plaintiffs injury rather

than the plaintiffs discovery of the injury: “In the

case of a long-latency disease, such as cancer, a party

may be barred from bringing his lawsuit if the stat-

ute of limitations begins to run at the time of the first

injury—rather than from the time when the party

‘discovers’ that his injury was caused by the hazard-

ous substance or pollutant or contaminant con-

cerned.” H.R. Conf. Rep. No. 99-962, 2d Sess. 262,

reprinted tn 1986 U.S.C.C.A.N. 3276, 3354.

Third, even if the phrase “statute of limitations”

were ambiguous, the Fourth Circuit erred by ignoring

the “presumption against preemption” when resolv-

ing that ambiguity. See, e.g., Hillsborough Cnty. v.

Automated Med. Labs., Inc., 471 U.S. 707, 715

(1985); Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947). That presumption against preemption “is

consistent with both federalism concerns and the his-

toric primacy of state regulation of matters of health

and safety.” Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996). Under the presumption, “when the text

of a pre-emption clause is susceptible of more than

one plausible reading, courts ordinarily ‘accept the

reading that disfavors pre-emption.” A/tria Grp.,

Inc. v. Good, 555 U.S. 70, 77 (2008) (quoting Bates v.

Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).

Here, as the dissent observed, the “ability of a state

to create a substantive right to be free from liability

under its own state tort law is unquestionably a tra-

ditional field of state regulation.” Pet. App. 35a; see,

e.g., Raygor, 534 U.S. at 544; Hillsborough Cnty., 471

U.S. at 715. Section 9658 thus triggers the presump-

tion against preemption, and the Fourth Circuit

should have construed any ambiguity to avoid

preemption. See Altria, 555 U.S. at 77. But the ma-

jority did exactly the opposite. It relied on CERCLA’s

remedial purpose to interpret all ambiguities in favor

of preemption. When doing so, moreover, the Fourth

Circuit did not even mention the presumption

against preemption or offer an explanation why that

presumption somehow does not apply here. Pet. App.

7a-16a. By flipping the presumption on its head, the

Fourth Circuit again departed from this Court’s prec-

edents on interpreting federal statutes.

IV. THIS CASE PRESENTS AN IDEAL VEHICLE

TO RESOLVE THE QUESTION PRESENTED

Finally, this case presents an ideal vehicle for re-

solving the question presented. As an initial matter,

there is no dispute that the question presented is

outcome dispositive on the facts alleged in the com-

plaint. While disagreeing on whether § 9658 reaches

state statutes of repose, the lower courts have uni-

versally agreed that N.C. Gen. Stat. § 1-52(16) would

bar Respondents’ nuisance claim if § 9658 did not

otherwise preempt that statute. Pet. App. 9a, 19a,

38a, 44a. That statute of repose runs from “the last

act or omission of the defendant giving rise to the

cause of action.” N.C. Gen. Stat. § 1-52(16). And the

complaint makes clear that CTS Corporation’s last

conceivable act occurred in 1987—when it sold the

relevant property—well over two decades before Re-

spondents filed this suit in 2011. Pet. App. 53a-55a.

Accordingly, Respondents suit may proceed only if

the Fourth Circuit correctly interpreted § 9658 to

preempt N.C. Gen. Stat. § 1-52(16).

There is also no dispute that N.C. Gen. Stat. § 1-

52(16) is a statute of repose rather than a statute of

limitations. Every judge to have considered this

question in this case has reached that conclusion.

Pet. App. 10a, 19a, 38a, 44a. The North Carolina

courts also agree. See, e.g., Wilson v. McLeod Oil Co.,

398 S.E.2d 586, 597 (N.C. 1990) (finding claims to be

barred “by the statute of repose found in § 1-52(16)”

(emphasis added)); Neb/ett v. Hanover Inspection

Serv., Inc., No. COA06-1676, 2007 WL 2701349, at *4

(N.C. Ct. App. Sept. 18, 2007) (same). So the Court

need not worry about preliminary questions over

whether the state statute under review falls on the

“statute of repose” or “statute of limitations” side of

the line. Rather, the Court can concern itself solely

with the question whether § 9658 covers both kinds

of statutes or reaches only statutes of limitation.

Additionally, the procedural posture of this case—a

final judgment after the grant of a motion to dis-

miss—allows the Court to resolve the question in an

efficient manner without having to confront any dis-

puted issues of fact or side legal issues. Respondents’

complaint runs only nine pages. And their appeal in

the Fourth Circuit addressed only the legal question

presented in this case.

For these reasons, the Court could not ask for a

better vehicle to resolve the important legal question

presented on which the federal and state appellate

courts have split. The question is outcome determi-

native on the facts alleged, it arises at a stage with a

small record, and it is the sole issue presented.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

E. Thomison Holman Brian J. Murray

ADAMS HENDON CARSON Counsel of Record

CROW & SAENGER, P.A. Michael F. Dolan

72 Patton Avenue JONES DAY

Asheville, NC 28801 77 West Wacker Drive,

Richard M. Re Suite S508

51 Louisiana Avenue, N.W. (312) 782-3939

Washington, D.C. 20001 bymurray@jonesday.com

SEPTEMBER 13, 2013

Counsel for Petitioner

APPENDIX

APPENDIX A

United States Court of Appeals,

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,

Vv.

CTS CORPORATION, Defendant—Appellee.

United States of America, Amicus Supporting

Appellee.

Argued Jan. 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 wrote a_ separate

concurring opinion. Judge Thacker wrote a

dissenting opinion.

FLOYD, Circuit Judge:

In 2009, Appellants David Bradley and Renee

Richardson received unwelcome news: Their well

water contained concentrated levels of

trichloroethylene (TCE) and cis—1, 2—dichloroethane

(DCE), both solvents that have carcinogenic effects.

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 Commis,

407 F.3d 266, 268 (4th Cir. 2005), we hold that the

discovery rule articulated in §9658 of the

Comprehensive Environmental Response, Liability,

and Compensation Act (CERCLA), 42 U.S.C.

§§ 9601-9675, preempts North Carolina’s ten-year

limitation. Thus, we reverse and remand.

In the 1960s and ’70s, the United States witnessed

the repercussions of toxic waste dumping like it never

had before. The Valley of the Drums! and Love

' 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/npV/nar447.htm.

Canal]? disasters made headlines, urging Congress to

pass legislation that granted some measure of

redress. In response, in 1980, Congress passed

CERCLA, an act aimed at promoting efficient and

equitable responses to the fallout from hazardous

waste. 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. The version passed by both Houses,

however, was an eleventh hour compromise put

together primarily by Senate 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. It has been criticized

frequently for inartful drafting and numerous

ambiguities 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

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 mid-1970s.

Eckardt C. Beck, The Love Canal] Tragedy, Envtl. Prot.

Agency (Jan. 1979), http://www.epa.gov/history/topics/lovecanal/

O1.html.

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 to the parties

responsible for the contamination.” Metro. Water

Reclamation Dist. v. N. 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) Gnternal 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

‘fensure] 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)).

Evidently wary about the effectiveness of the Act’s

final version, Congress immediately established a

study group to examine the “adequacy of existing

common law and statutory remedies in providing

legal redress for harm ... caused by the release of

hazardous substances into the environment.” 42

U.S.C. § 9651(e)(1). The Group consisted of twelve

members designated by the American’ Bar

Association, the American Trial Lawyers Association,

the Association of State Attorneys General, and the

American Law Institute. Jd. § 9651(e)(2). Among

other “[rjecurring [i]Jssues in [h]azardous [wlaste

{I}itigation,” it considered the effect that state

limitations periods have on causes of action related to

hazardous waste, noting that (1) injunes 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 Jast 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 umreasonable procedural and other

barriers to recovery in court ..., including rules

relating to the time of accrual of actions,” sd. at 240,

the Group issued the following recommendation:

“that all states ... clearly adopt 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 intended also to cover the

repeal of statutes of repose which, in a number of

states have the same effect as some statutes of

limitation in barring [a] plaintiffs claim before he

knows that he has one.” /d.

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. 99-962, at 261, reprinted in 1986

U.S.C.C.A.N. 3276, 3354, by enacting § 9658 of

CERCLA:

(a) State statutes of limitations for hazardous

substance cases

(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

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) that the personal

injury or property damages referred to in subsection

(a)(1) ... were caused or contributed to by the

hazardous substance or pollutant or contaminant

concerned.” Jd § 9658(b)(4)(A). Thus, if a state

statute of limitations provides that the period in

which an action may be brought begins to run prior

to a plaintiffs knowledge of his injury, § 9658

preempts the state law and allows the period to run

from the time of the plaintiffs 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.” /d. § 9658(b)(4)(B).

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.

The site at issue in this case is in Asheville, North

Carolina, where CTS formerly operated a fifty-four-

acre plant.2. 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, CTS sold the Facility to Mills Gap Road

Associates. CTS had promised realtors that the

property “ha[d] been rendered in an environmentally

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.

clean condition,” that “[t]o the best of [its] knowledge,

no on-site disposal or otherwise 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 to their purchases that their land was

contaminated. Thus, they joined with others who

“live in the vicinity of [their] residence” to bring a

nuisance claim. ‘The other property owners claim

that they “have been and 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.”

In North Carolina, real property actiors 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. Stat. § 1—52;

Crawford v. Boyette, 464 S.E.2d 301, 303 (N.C. App.

1995). A real property action accrues when “physical

damage to [a claimant’s] property becomes apparent

or ought reasonably to have become apparent.” N.C.

Gen. Stat. § 1-52(16). Notably, however, a claimant’s

actual or constructive knowledge of damage is not the

only factor that regulates accrual. Nor does lack of

such knowledge lend life to a claim indefinitely.

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.” Jd. 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 preemptive of North Carolina’s

limitation. The magistrate judge rejected the

landowners’ argument. The court reasoned that the

ten-year limitation is a statute 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.

Il.

Before analyzing the decision below, we briefly

review the concepts of limitations and _ repose.

Statutes of limitations and statutes of repose both

10a

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 discovered).” Black's Law

Dictionary 1546 (9th ed. 2009). 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). In contrast, a statute of repose

“bar[s] any suit that is brought after a specified time

since the defendant acted .. . even if this period ends

before the plaintiff has suffered a resulting injury.”

Black’s Law Dictionary 1546 (9th ed. 2009). Where

repose is concerned, “considerations of the economic

best interests of the public as a wh»le” are at play,

and “substantive grants of immun) » based on a

legislative balance of the respective mghts of

potential plaintiffs and defendants [are] struck by

determining a time limit beyond which liability no

longer exists.” First United Methodist, 882 F.2d at

866.

Here, North Carolina’s ten-year limitation bars

lawsuits “brought after a specified time since the

defendant acted,” Black’s Law Dictionary 1546 (9th

ed. 2009), without regard for the plaintiffs knowledge

of his harm, N.C. Gen. Stat. § 1—52(16). As such,

although North Carolina does not explicitly identify

the hmitation as a statute of repose (or, for that

matter, use the word “repose” anywhere in its

statutes), we think the court below _ properly

categorized it as such. Cf Robinson v. Wadford, 731

S.E.2d 539, 541 (N.C. Ct. App. 2012) (referring to the

lla

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).

Determining whether § 9658 affects the operation

of North Carolina’s ten-year limitation is an exercise

in statutory interpretation. When we interpret

statutes, our goal is to effectuate Congress’s intent,

United States v. Abdelshafi, 592 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 F.3d 597, 603 (4th Cir. 1999). If we find

the meaning of the text plain, we accord it that

meaning “[ajbsent ... clearly expressed legislative

intent to the contrary.” 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.”

Holland, 181 F.3d at 603 (quoting Robinson v. Shell

Oil Co., 519 U.S. 337, 341, (1997)) (internal quotation

marks omitted).

Here, we interpret a statute that is ambiguous. As

noted by the district court, § 9658 uses the words

“statute of limitations.” Indeed, the phrase and its

plural form appear five times. See § 9658(a), (b)(2),

12a

(b)(3). Noticeably absent is the phrase “statutes of

repose.” Thus, a simple review of § 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 is earlier

than the federally required commencement date.” /d.

§ 9658(a)(1). For the following reasons, we think

North Carolina’s 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,

Other than Real Property.” N.C. Gen. Stat. § 1—52.

As such, it is a limitations period “specified in the

State statute of limitations or under common law.”

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). Finally,

because 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

l3a

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. First,

the terms “statute of limitations” and “statute of

repose” have seen considerable development in their

usage and meaning. 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. that

demonstrate a historical lack of distinction between

the terms). Thus, in this context, Congress's choice to

use “statute of limitations” is in no way dispositive as

to whether it intended § 9658 to apply to statutes of

repose. 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 of limitations” to

include precisely the type of ten-year limitation that

we are dealing with here. 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

l4a

manifest a plain meaning applicable in such a

circumstance.

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 Telecomms, 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, Congress’s purpose in enacting CERCLA

was remedial. 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, 286

(1996) (““CERLCA is not only more remedial than

most legislative enactments, it is arguably the most

remedial of all federal environmental statutes... .”).

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.

lda

Id. (quoting Wiliam Murray Tabb & Linda A.

Malone, Environmental Law: Cases & Materials 637

(1992)). 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 would

otherwise bar causes of action when harms lie

dormant. We have observed that “CERCLA, as all

remedial statutes, must be given a_ broad

interpretation to effect its ameliorative goals.” First

United Methodist, 882 F.2d at 867.

When faced with a _ remedial statute, our

interpretive charge is simple: Employ a “standard of

liberal construction [to] accomplish [Congress’s]

objects.” 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 accomplish congressional

objectives); see also Axel] Johnson, Inc. v. Carroll

Carolina O1l 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.”

l6a

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]liven 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 hmitations’ 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 Co., 419 F.3d 355 (5th Cir.2005),

we are unpersuaded by its reasoning. There, the

plaintiffs had knowledge of their claim prior to

expiration of the state statute of repose. Jd. at 359—

60, 364-65. Thus, as recognized by that court, the

“case [did] not involve the delayed discovery ...

which § 9658 was intended to address.” /d. at 364-

65.

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.

17a

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

impaired by the loss of evidence, whether by death or

disappearance of witnesses, fading memories,

disappearance of documents, or otherwise .”). And

although our decision removes one potential time

barrier to a plaintiffs claim, it does not relax his

burden of proof. In cases with latent harms,

necessary evidence will disappear as time 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.

Furthermore, because our decision does nothing to

diminish North Carolina’s requirement that plaintiffs

bring claims within three years of discovery,

defendants will not necessarily be endlessly subjected

to the possibility of litigation. Finally, our stance

goes no further than that contemplated by the study

group that Congress commissioned. The Group

foresaw that the “Jegislative balance of the 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: “The policy of repose

expressed in the statute of limitations may be

outweighed by the policy of affording the plaintiff a

just opportunity to vindicate his rights.” Superfund

Section 301(e) Study Group, 97th Cong., Injuries and

Damages from Hazardous Wastes—Analysis and

Improvement of Legal Remedies pt. 2, at 14 (Comm.

18a

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

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 no support in Supreme Court

or Fourth Circuit authority. “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. United States, 526 U.S. 1, 7 (1999)

(quotations omitted). Judge Floyd’s careful analysis

is faithful to this important, overarching principle,

and | am pleased to join his fine opinion in full.

19a

THACKER, Circuit Judge, dissenting:

With all due respect to my friends in the majority,

] must dissent. The majority essentially concludes

§ 9658 preempts two categories of state statutes:

statutes of limitations and statutes of repose.

However, in my view the plain and unambiguous

language of §9658 indicates only statutes of

limitations were intended to be preempted. Even if

the preemptive effect of § 9658 were susceptible to

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.

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 Amendments”), and

codified in 42 U.S.C. § 9658, preempts North

Carolina’s 10-year statute of repose.

Plain Meaning

As in all matters of statutory interpretation, our

starting point is an analysis of the statutory text.

20a

Chris v. Tenet, 221 F.3d 648, 651 (4th Cir. 2000). We

must begin by asking “whether the language at issue

has a plain and unambiguous meaning g

Robinson v. Shell Oi] 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, “we

must apply the statute according to its terms.”

Carcieri v. Salazar, 555 U.S. 379, 387 (2009).

In determining whether the language has a plain

and unambiguous meaning, “we consider the

language 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). If certain terms are undefined in the

relevant statutory provisions, they “are typically

interpreted as taking their ordinary, contemporary,

common meaning.” /d. (internal quotation marks

omitted).

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

heu of the date specified in such State statute.

2la

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 (a)(1) of

this section may be brought.” Jd. § 9658(b)(2)

(emphasis supplied). Similarly, the statute defines

the state “commencement date” as “the date specified

in a statute of limitations as the beginning of the

apphcable limitations period.” Id. § 9658(b)(3)

(emphasis supplied). The “federally required

commencement date” provides an 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 contributed by the

hazardous substance ....” Jd. § 9658(b)(4).!. 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 to “statute of limitations,” is

plain and unambiguous. 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, preventing it

from being straightforwardly categorized as ‘plain

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.”

22a

and unambiguous.’ ”). The majority’s conclusion,

however, is not supported by the plain language of

the statute itself.

Modern and Historical Context

The difficulty presented in this case springs from

the definitions of “statutes of limitations” and

“statutes of repose” in use today versus their

historical understanding.

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).”). In other words, a statute of

limitations “extinguishes the right to prosecute an

accrued cause of action after a period of time.”

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 plaintiffs

injury, or on the date the injury is first discovered or

should have been discovered with reasonable

diligence. See id.

A statute of repose, on the other 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

23a

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 product), even if this period ends

before the plaintiff has suffered a resulting injury.”).

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.” Surlington, 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. For example,

“‘Is]tatutes of limitations are motivated’ by

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.” First United Methodist, 882

F.2d at 866. Thus, they can be equitably tolled

where, for example, a defendant fraudulently

conceals a plaintiffs injury. /d. Statutes of repose

are motivated by “considerations 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 hability no

longer exists.” Jd Thus, unlike statutes of

limitations, statutes of repose are substantive grants

of immunity from liability. Jd.

24a

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 peace, or ‘repose,’ to

potential litigants....". 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, escheat and

adverse possession as periods of repose. As the

courts began to modify statutory limitations by

applying the ‘discovery rule,’ legislatures responded

by enacting absolute statutes of repose.” (emphasis

omitted) (quoting Reynolds v. Porter, 760 P.2d 816,

819-20 (Okla. 1988))).

Indeed, the earliest reference to “statutes of

repose” in this circuit appears in Bart/ett 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, what we today would call statutes of

limitations were historically considered, along with

other statutory time-bars, to provide repose to

litigants and were thus, generally, statutes of repose.

These overlapping definitions, however, have evolved

into the distinct definitions we have today.

“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

25a

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 adopted the separate,

modern definitions for both “statutes of limitations”

and “statutes of repose,” but 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 rnght 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 right to prosecute.

Also sometimes referred to as “statutes of repose.”

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

“ 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).

26a

discovery, as opposed to after a predetermined period

of time, regardless of whether the action otherwise

accrues. It, thus, confirms that statutes of

limitations were but a subset of statutes of repose

and were therefore “sometimes referred to as

‘statutes of repose.” Jd.

Notably, this definition does not adopt the 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 not to include “statute of repose” in

§ 9658, and thus we need not trouble ourselves with

what Congress may have thought it meant.

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

* 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)).

27a

§ 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. North Carolina’s three-year

statute of limitations is just such a restriction and is

preempted by § 9658. 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 of limitations and a statute of

repose. The first sentence of § 1—52(16) provides a

three-year statute of limitations for personal injuries

and property damages based on a traditional form of

the discovery rule. N.C. Gen. Stat. § 1—52(16)

(“Within three years an action ... for personal injury

or physical damage to claimant’s property, the cause

of action . . . shal] 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 10-year 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.” /d. § 1-52(16).

But only the three-year provision specifies a time

period to bring a cause of action after the right has

accrued by operation of the discovery rule. The 10—

year 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

28a

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”). Therefore, only the three-year provision

may be considered in order to determine North

Carolina’s “applicable limitations period.” See 42

U.S.C. § 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 the benefit of the federally

required commencement date found in § 9658(b)(4).

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 to North Carolina’s

statute of repose is untenable. A simple attempt to

map § 9658 onto the North Carolina statute of repose

illustrates the point. To trigger § 9658(a)(1), the

state “commencement date” must be “earlier than the

federally required commencement date.” 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

29a

the beginning of the period in which a civil action

may be brought. See id. § 9658(b)(2)-(3).4 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. Because North

Carolina’s statute of repose does not create 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.

Legislative History

Given the plain meaning of the statute, we need

not look to legislative history. But, even if we did,

the legislative history of § 9658 also clearly supports

the 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 part of the initial enactment of CERCLA in

1980, Congress commissioned a study group of expert

lawyers “to determine the adequacy of existing

common law and statutory remedies in providing

legal redress for harm to man and the environment

caused by the release of hazardous substances into

the environment... .” CERCLA, Pub. L. No. 96—510,

§ 301(e)(1), 94 Stat. 2767 (1980). The study group

4 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).

30a

responded with a_ detailed report = and

recommendations for improving remedies under

CERCLA. See Superfund Section 301l(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 30l(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

to statutes of limitations, in its entirety, was as

follows:

A small number of states still follow the so-

called 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 discovers his hurt. The Study Group

recommends that all states that have not

3la

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

plaintiffs 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 hmitations.

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 plaintiffs 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 “federally required

commencement date.” 42 U.S.C. § 9658(b)(4)(A).5

®* The “federally required commencement date” is defined, in

relevant part, as “the date the plaintiff knew (or reasonably

32a

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 recommended to

Congress not only that the aforementioned enhanced

discovery rule should be applied to state statutes of

limitations, but also recommended that state statutes

of repose be repealed. 301(e) Report at 241 (“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 plaintiffs 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.

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

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).

33a

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, Libera/

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 in nature’

and ‘entitled to a liberal construction’ nevertheless

‘does not justify ignoring plain words of limitation.”)

(quoting MacEvoy Co. v. United States, 322 U.S. 102,

107 (1944)); rd. at 301 (“[T]he remedial purpose canon

has diminished utility when the interpretive issue

focuses on provisions of CERCLA that are the

product of compromise. Such compromises can be

found in both CERCLA’s text and its enactment

history.”).®

In passing the 1986 Amendments, Congress did

not arm toxic tort plaintiffs with every possible

advantage nor remove every obstacle from their path

to recovery. Rather, the 1986 Amendments reflected

the process of legislative compromise based, in part,

on the 301(e) Report’s analysis and

recommendations. As mentioned, the 301(e) Report

6 Even if CERCLA, as enacted in 1980, was the product of an

1ith-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.

34a

was commissioned to evaluate existing statutory 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 implement’ every

recommendation supplied by the 301(e) Report. 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.

301l{e) Report, 240-51. The 301(e) Report

recommended states adopt an enhanced discovery

rule, id. at 241; repeal statutes of repose, id.; adopt

liberal joinder rules for plaintiffs, id. at 242; adopt a

system of joint and several lability with a de minimis

exception, sd. 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, 7d. at 245. Congress could have drafted the

1986 Amendments to implement any or all of the

301(e) Report’s recommendations by preempting

state law wherever it fell short of the 301(e) Report’s

recommendations. But the on/y revision affecting

state law Congress chose to implement in the section

exphicitly 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). Notably,

Congress was given the opportunity to repeal

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

35a

cases and allowing states to continue to regulate

their own substantive areas of law. It is the

prerogative of Congress to strike that balance. See

Hanford Downwinders Coalition, Inc. vy. 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).

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? 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

a preemption clause {,]” such as § 9658, “do not

automatically escape the presumption § against

preemption.” /d. Rather, “[wljhere the text of a

preemption clause is open to more than one plausible

reading, courts ordinarily ‘accept the reading that

disfavors pre-emption.’ “ /d. 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 liability under its own state tort

law is unquestionably a traditional field of state

regulation. Therefore, the general presumption

against preemption likewise weighs against giving

36a

§ 9658 overly broad preemptive effect. See Barnes ex

rel. Barnes v. Koppers, Inc., 534 F.3d 357, 363 (5th

Cir. 2008) (discussing the preemptive effect of § 9658

and noting that “fiJf the extent of Congress's

preemptive intent is unclear, the presumption favors

a finding of lmited 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. But where Congress by plain and

unambiguous language has 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, | would

affirm the decision of the district court.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH

CAROLINA

ASHEVILLE DIVISION

WALDBURGER, et al., No. 1:11CV39

)

Plaintiffs. ) Judge

: ; Graham C. Mullen

)

CTS CORPORATION,

Defendant. )

Feb. 6, 2012

ORDER

This matter is before the court upon the

memorandum and recommendation of United States

Magistrate Dennis L. Howell, filed October 4, 2011.

The parties were advised that pursuant to 28 U.S.C.

§ 636(b)(1)(C), written objections to the memorandum

and recommendation must be filed within 14 days

after service of the memorandum. The Plaintiffs

timely filed an objection to the memorandum and

recommendation on October 21, 2011, and the

Defendant submitted a response to the objection on

November 7, 2011.

After an independent and thorough review of the

magistrates memorandum, Plaintiffs’ objections

thereto, and a de novo review of the record, the court

concludes that the recommendation to grant

Defendant’s Motion to Dismiss is correct and in

38a

accordance with law. The court specifically notes

that the magistrate judge’s analysis of CERCLA’s

preemption of state statutes of limitations, as

opposed to statutes of repose, is accurate and well-

reasoned. The court has reviewed the Ninth Circuit’s

holding to the contrary in McDonald v. Sun Oil Co.,

548 F.3d 774, 782 (9th Cir.2008), in which the court

held that CERCLA preempted the applicable statute

of repose. The court finds the reasoning of that court

to be flawed. The plain language of Section 9658 of

CERCLA applies only to state statutes of limitations,

not statutes of repose. If the language of a statute is

clear, the Fourth Circuit has stated that “[o]ur

inquiry into Congress’ intent is at an end, for if the

language is plain and the statutory scheme is

coherent and consistent, we need not inquire

further.” William v. Gonzales, 499 F.3d 329, 333 (4th

Cir. 2007). It appears that the McDona/d court

created an ambiguity where none existed. Plaintiffs

also rely on the Georgia district court’s decision in Jn

re: Camp Lejeune, North Carolina’ Water

Contamination Litigation, 1:11—md—02218

(September 29, 2011, N.D.Ga.), in support of their

argument that CERCLA should preempt the statute

of repose in this case. However, the court finds this

case to be unpersuasive, particularly since the Camp

Lejeune court did not hold that statutes of repose

were necessarily preempted by § 9658, only that they

could be based on the “factual circumstances of each

plaintiffs claim.” Camp Lejeune, p. 23.

Accordingly, the findings and conclusions of the

magistrate are accepted and Defendant’s Motion to

Dismiss is GRANTED.

39a

iT IS THEREFORE ORDERED that the

memorandum and recommendation of the magistrate

is hereby AFFIRMED.

Signed: February 6, 2012

/s/ Graham C. Mullen

Graham C. Mullen

United States District Judge

40a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH

CAROLINA

ASHEVILLE DIVISION

1:llev39

WALDBURGER, et al., )

)

Plaintiffs. ) MEMORANDUM AND

) RECOMMENDATION

)

CTS CORPORATION,

Defendant. )

Pending before the Court is Defendant’s Motion to

Dismiss [# 7]. Plaintiffs brought this action against

Defendant CTS Corporation asserting a single count

of nuisance arising out of the alleged contamination

of Plaintiffs’ property. Defendant now moves to

dismiss the Complaint. The Court Recommends that

the District Court GRANT the motion [# 7].

I. Background

CTS of Asheville, Inc. was formed in 1959 to

manufacture electronics. (Pls.’ Compl. 44 5 & 7.) CTS

of Asheville operated a facility in the Asheville area

called the Mills Gap Road Electroplating Facility (the

“Facility”). Ud. 99.) As part of the process of

manufacturing electronics, CTS of Asheville used

various toxic solvents, including trichloroethylene

4la

(“TCE”) at the Facility. (Jd. 4§ 8-9.) CTS of Asheville

also stored TCE at the Facility. (Jd. § 10.)

CTS of Asheville was dissolved in 1983. (/d. § 14.)

The Facility, however, continued operating for

another two years as Defendant CTS Corporation,

Asheville Division. (Ud 915.) Defendant CTS

Corporation ceased operating the Facility in 1985.

(/d. § 19.) In 1987, CTS Corporation sold 54 acres of

the industrial site where the Facility was located to a

partnership, Mills Gap Road Associates. (/d. §| 23.)

Plaintiffs are all either land owners of property

that was formally part of the industrial site CTS

Corporation sold to Mills Gap Road Associates or

property that is near the former industrial site. (/d.

| 29.) Plaintiffs contend that their land and ground

water is contaminated by the toxic chemicals,

including TCE, that CTS Corporation left at the

Facility when it sold the property. (/d. 4 29-30.)

These chemicals have leached into the air and water.

(/d. 4 33.) In fact, two of the Plaintiff were advised

by the EPA in 2009 that their well water contained

levels of TCE that were not fit for human

consumption. (/d. ¥4] 34-35.)

Subsequently, Plaintiffs brought this action for

nuisance against Defendant CTS Corporation.

Plaintiffs demand monetary damages, as well as a

judgment requiring reclamation of the _ toxic

chemicals and remediation of any environmental

harm caused by these chemicals. Defendant now

moves to dismiss the Complaint on the ground that

the claims are barred by the applicable statute of

repose.

42a

II. Legal Standard

The central issue for resolving a Rule 12(b)(6)

motion is whether the complaint states a plausible

claim for relief. See Francis v. Giacomelli, 588 F.3d

186, 189 (4th Cir. 2009). In considering a defendant's

motion to dismiss, the Court accepts the allegations

in the complaint as true and construes them in the

light most favorable to plaintiff. Memet Chevrolet,

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253

(4th Cuir.2009); Giacomelli, 588 F.3d at 190-92.

Although the Court accepts well-pled facts as true, it

is not required to accept “legal conclusions, elements

of a cause of action, and bare assertions devoid of

further factual enhancement... .”

Consumeraffairs.com, 591 F.3d at 255; see also

Giacomelli, 588 F.3d at 189.

The complaint need not contain “detailed factual

allegations,” but must contain sufficient factual

allegations to suggest the required elements of a

cause of action. Bel/ Atlantic Corp. v. Twombly, 550

U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007); see

also Consumeraffairs.com, 591 F.3d at 256. “[A]

formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555, 127

S.Ct. at 1965. Nor will mere labels and legal

conclusions suffice. Jd. Rule 8 of the Federal Rules

of Civil Procedure “demands more than an

unador:.ed, the defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Igbal, 556 U.S. ___, 129 S.Ct.

1937, 1949 (2009).

The complaint is required to contain “enough facts

to state a claim to relief that is plausible on its face.”

Twombly, 550 U .S. at 570, 127 S.Ct. at 1974; see also

Consumeraffairs.com, 591 F.3d at 255. “A claim has

43a

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” Jgbal, 556 U.S.__, 129 S.Ct. at

1949; see also Consumeraffairs.com, 591 F.3d at 255.

The mere possibility that the defendants acted

unlawfully is not sufficient for a claim to survive a

motion to dismiss. Consumeraffairs.com, 591 F.3d at

256; Giacomelli, 588 F.3d at 193. Ultimately, the

well-pled factual allegations must move a plaintiffs

claims from possible to plausible. 7wombly, 550 U.S.

at 570, 127 S.Ct. at 1974; Consumeraffairs.com, 591

F.3d at 256.

Ill. Analysis

In order to prevail on their claim for nuisance

under North Carolina law, Plaintiffs must

demonstrate “an unreasonable interference with the

use and enjoyment of their property.” Jordon v.

Foust Oil Co., Inc., 447 S.E.2d 491, 498 (N.C. Ct. App.

1994). The three year statute of limitations set forth

in N.C. Gen. Stat. § 1-52 applies to a claim of

nuisance. Wilson v. McLeod Oil Co., 398 S.E.2d 586,

511 (N.C. 1990); Robertson v. City of High Point, 497

S.E.2d 300, 302 (N.C. Ct. App. 1998); Crawford v.

Boyette, 464 S.E.2d 301, 303 (N.C. Ct. App. 1995);

James v. Clark, 454 S.E.2d 826, 830 (N.C. Ct. App.

1995). In addition, N.C. Gen. Stat. § 1—52(16)

provides that:

Unless otherwise provided by statute, 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

44a

event first occurs. Provided that 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.

The provisions of N.C. Gen. Stat. § 1—-52(16),

including the ten year statute of repose, apply to

nuisance actions asserting personal injury or physical

damage to a plaintiffs property. See Wilson, 398

S.E.2d at 513; Hodge, 631 S.E.2d at 14445;

Crawford, 464 S.E.2d at 303-4. “The plain language

of the statute indicates that in cases involving

property damage, no cause of action may be brought

more than ten years after the defendant’s last act or

omission.” Hodge, 631 S.E.2d at 145. “A complaint

which seeks to impose liability upon a previous

landowner or operator for adjoining’ land

contamination constitutes an action for physical

damage to claimant’s property, and is thus governed

by N.C. Gen.Stat. § 1—52(16).” Jd.

Here, Plaintiffs seek to impose liability on

Defendant CTS Corporation, as the former

landowner, for the contamination of its former land

and the adjoining land. The last possible act or

omission by Defendant CTS Corporation that could

give rise to a cause of action occurred in 1987 when it

sold the _ property. Because Defendant CTS

Corporation’s last act or omission occurred more than

ten years before Plaintiffs filed this action, Plaintiffs

claims are barred by the statute of repose contained

in N.C. Gen. Stat. § 1-52(16). See Wilson, 398 S.E.2d

at 597; Hodge, 631 S.E.2d at 145.

Plaintiffs, however, contend that N.C. Gen. Stat.

§ 1-52(16) is unconstitutional under the open courts

provision of the North Carolina Constitution. Article

45a

I, section 18 of the North Carolina Constitution

provides that:

Courts shall be open. All courts shall be open;

every person for an injury done him in his lands,

goods, person, or reputation shall have remedy by

due course of law; and right and justice shall be

administered without favor, denial, or delay.

Although neither the North Carolina Supreme Court

nor the Court of Appeals has ever directly addressed

whether the ten year statute of repose contained in

N.C. Gen. Stat. § 1—52(16) is constitutional as apphed

to a nuisance claim based on the contamination of

land, North Carolina courts have upheld shorter

statute of reposes for other causes of action. See

Lamb v. Wedgewood S. Corp., 302 S.E.2d 868 (N.C.

1983) (upholding six year statute of repose contained

in N.C. Gen. Stat. § 1-50(5)); Tetterton v. Long Mfg.,

332 S.E.2d 67, 70-75 (1985) (upholding the six year

statute of repose contained in N.C. Gen. Stat. § 1-

50(6)); Garrett v. Winfree, 463 S.E.2d 411, 416—-17

(N.C. Ct. App. 1995) (upholding constitutionality of

N.C. Gen. Stat. § 1—15(c)). Based on the reasoning of

the North Carolina Supreme Court in Lamb, the

Court is convinced that the ten year statute of repose

contained in N.C. Gen. Stat. § 1-52(16) is not

unconstitutional under the open courts provision of

the North Carolina Constitution. The ten year

statute of repose is not so short as to effectively

abolish all potential claims. See Lamb, 302 S.E.2d at

882 n. 7; Tetterton, 332 S.E.2d at 72-73.!

1 The statute of repose, however, would likely not apply to a

latent disease like cancer that a Plaintiff later contracts as a

result of exposure to toxic chemicals in their drinking water.

See Jones v. United States, 751 F.Supp.2d 835, 840-842

46a

Accordingly, the Court finds that the application of

the statute of repose to Plaintiffs’ claim is not

unconstitutional under the open courts provision of

the North Carolina Constitution.

Finally, the statute of repose contained in N.C.

Gen. Stat. § 1—-52(16) is not preempted by the

Comprehensive Environmental Response

Compensation and Liability Act. Section 9658

provides that in cases brought under state law for

property damage caused by exposure to any

hazardous substance or contaminant released from a

facility, the federal commencement date for the

accrual! of the statute of limitations shall apply. 42

U.S.C. § 9658(a)(1). Thus, CERCLA preempts the

state accrual date in environmental cases. J/d.; see

also Minnesota ex rel. Northern Pacific Ctr., Inc., 723

F. Supp. 2d 1123, 1128 (D. Minn. 2010); Kowalski v.

Goodyear tire & Rubber Co., 841 F.Supp. 104, 107

(W.D.N.Y. 1994). The clear language of the statute,

however, is limited to a state’s statute of limitations.

See 42 U.S.C. §§ 9658(b)(2) & (3); Burlington

Northern & Sante Fe Ry. Co. v. Poole Chem. Co., Inc.,

419 F.3d 355, 362-63 (5th Cir. 2005) (holding that

the plain language of Section 9658 does not apply toa

statute of repose); Evans v. Walter Indus., Inc., 579

F. Supp. 2d 1349, 1364 (S.D. Ala. 2008) (same); but

see McDonald v. Sun Oil Co., 548 F.3d 774, 782 (9th

Cir. 2008) (holding that Section 9658 did not preempt

the applicable statute of repose).

(E.D.N.C. 2010). Plaintiffs, however, concede that they are not

asserting any claims for personal injury. (Pls.’ Resp. Def.’s Mot.

Dismiss at p. 12). Accordingly, the Court need not address this

issue.

47a

A statute of limitations and a statute of repose are

two distinct types of statutes. Jd. at 865-66. “A

statute of repose is a substantive limitation, and is a

condition precedent to a party’s right to maintain a

lawsuit.” Tipton & Young Const. Co., Inc. v. Blue

Ridge Structure Co., 446 S.E.2d 603, 605 (N.C. Ct.

App. 1994); see also Dawson v. N.C. Deptt of Envt

and Naturai Res., 694 S.E.2d 427, 430 (N.C. Ct. App.

2010). In contrast, a statute of limitations is 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). Because the plain language of

Section 9658 provides that it only preempts a state

statute of limitations, the Court finds that the statute

does not preempt the statute of repose contained in

N.C. Gen. Stat. § 1-52(16). See id. (“[W]hen the

language of a statute is clear, there is no need to rely

on its legislative history.”). Accordingly, Plaintiffs’

claim for nuisance is barred by the applicable statute

of repose and Plaintiffs’ Complaint is subject to

dismissal. The Court, therefore, RECOMMENDS

that the District Court GRANT the Motion to

Dismiss [# 7] and dismiss the Complaint in its

entirety.

IV. Conclusion

The Court RECOMMENDS that the District Court

GRANT the Motion to Dismiss and dismiss the

Complaint in its entirety.

Signed: October 4, 2011

/s/Dennis L. Howell

Dennis L. Howell

United States Magistrate Judge

48a

APPENDIX D

IN THE UNITED STATES COURT FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Péter Waldburger

Asheville, NC

Sandra Ratcliffe

Asheville, NC

Lee Ann Smith

Arden, NC

Tom “Bud” Pinner, IV and

Patricia Pinner

Asheville, NC

Tom “Buddy” Pinner, III and

Madeline Pinner

Asheville, NC

Hans and Wilma Momkes

Asheville, NC

Walter Dockins, Jr. and

Autumn Dockins

Skyland, NC

William Clark Lisenbee

Asheville, NC

Dan and Lori Murphy

Asheville, NC

Robert Aversano

Asheville, NC

Daniel L Murphy

Asheville, NC

Case No. 1:1lcv39

COMPLAINT

49a

Laura A Carson

Asheville, NC

Glen and Gina Horecky

Asheville, NC

Renee Richardson and David

Bradley

Asheville, NC

Byron and Ramona Hovey

Asheville, NC

and

Peter Tatum MacQueen, [IV and

Bethan MacQueen

Asheville, NC

Plaintiffs,

vs.

CTS CORPORATION

c/o Its Statutory Agent

RICHARD G CUTTER

ELKHART, IN

Defendant.

Now come the Plaintiffs, Peter Waldburger,

Sandra Ratcliffe, Lee Ann Smith, Tom “Bud” Pinner,

IV, Patricia Pinner, Tom “Buddy” Pinner, III,

Madeline Pinner, Hans Momkes, Wilma Momkes,

Walter Dockins, Jr., Autumn Dockins, William Clark

Lisenbee, Dan Murphy, Lori Murphy, Robert

Aversano, Daniel Murphy, Laura A Carson, Glen

Horecky, Gina Horecky, Byron Hovey, Ramona

Hovey, Renee Richardson, David Bradley, Bethan

MacQueen and Peter Tatum MacQueen, IV

50a

(hereinafter “Plaintiffs”) by and through counsel, and

for their complaint allege and aver as follows:

I. PARTIES AND DI N

1) At all times herein mentioned Plaintiffs were

and now are residents of Buncombe County and the

State of North Carolina.

2) At all times’ relevant Defendant, CTS

CORPORATION, (hereinafter “CTS Corp.”) was a

corporation organized and existing under the laws of

the State of Delaware, with its principal place of

business Elkhart, Indiana, and was licensed to do

business in the State of North Carolina.

3) Jurisdiction exists pursuant to 28 U.S.C. 1332

in that there is diversity of citizenship between the

Plaintiffs and the Defendant, and the amount in

controversy is in excess of SEVENTY FIVE-

THOUSAND DOLLARS ($75,000.00), exclusive of

interest and costs.

4) Pursuant to 28 U.S.C. § 1391l(a)(2) and (3),

venue is proper in this Court, because a substantial

part of the events or omissions giving rise to the

claim occurred in North Carolina, and because the

Court has personal jurisdiction over the defendant in

this district.

I. FACTUAL ALLEGATIONS

5) CTS of Asheville, Inc. (“The corporation”) was

a corporation existing under the laws of the State of

North Carolina formed on or about April 16, 1959

and was dissolved on December 29, 1983.

6) A true and correct copy of the Articles of

Incorporation of CTS of Asheville, Inc. is attached

hereto and incorporated by reference as Exhibit “1.”

5la

7) One of the expressed purposes for forming CTS

of Asheville, Inc., as stated in the Articles of

Incorporation was:

To manufacture, construct, fabricate, produce, buy,

purchase, acquire, deal in, sell and otherwise

dispose of, both at wholesale and retail, electronics,

electromechanical, electrical, _—sradio, radar,

telephone, television, and all kinds of parts,

articles, devices, supphes, accessories, attachments

and merchandise.

Exhibit “1” at paragraph 3(a).

8) As part of the operations of CTS of Asheville,

Inc. various toxic solvents, including by not limited to

trichloroethylene (TCE), cyanide, chromium VI, and

lead were used in the manufacturing process for the

electrical and electronic components that were

manufactured by the corporation.

9) Prior to 1986, CTS of Asheville of Asheville,

Inc. used the all of the above listed chemicals and

other volatile organic compounds in its operations at

the Mills Gap Road Electroplating Facility.

10) As of 1981, CTS of Asheville, Inc. stored

495,000 gallons of trichloroethylene at the Mills Gap

Road facility and had shipped no trichloroethylene off

site for processing.

11) A true and correct copy of CTS of Asheville,

Inc.’s “1981 Hazardous Waste Generators Annual

(Part A) Report” signed by Norman Lewis on

February 4, 1982 is attached hereto and incorporated

by reference as Exhibit “2.”

12) In 1982, CTS of Asheville, Inc. reported a

decrease in its storage of trichloroethylene at the

Mills Gap Road facility to 330,000 gallons and

52a

claimed to have shipped an additional 5,070,000

pounds of trichloroethylene to “Armegdon [sic]

Chemical” in Durham, North Carolina. Exhibit “3.”

13) A true and correct copy of CTS of Asheville,

Inc.’s “Hazardous Waste Generators Annual [for

calendar year 1982] (Part A) Report” signed by

Norman Lewis on February 22, 1983 is attached

hereto and incorporated by reference as Exhibit “3.”

14) On December 29, 1983, CTS of Asheville, Inc.

was dissolved as a North Carolina corporation.

Attached as Exhibit “4” and incorporated by reference

is a true and correct copy of the Articles of

Dissolution filed by CTS of Asheville, Inc. with the

North Carolina Secretary of State.

15) After the dissolution of CTS of Asheville, Inc.,

the corporation continued to operate as CTS Corp.,

Asheville Division. A true and correct copy of CTS

Corp., Ashville Division’s “Hazardous Waste

Generators Annual (Part A) Report” signed by Ronnie

Lewis on February 10, 1984 is attached hereto and

incorporated by reference as Exhibit “5.”

16) In 1983 the total amounts of trichloroethylene

stored or shipped by CTS of Asheville, Inc. and/or

CTS Corp., Inc. were greatly reduced. By February

10, 1984, CTS Corp., Asheville Division, reported

having only 3960 pounds of trichloroethylene on

hand, and only’ shipped 4,630 pounds of

trichloroethylene to Environmental Recycling in 1983

(formally Armageddon Chemical of Durham, North

Carolina).

17) In its various filings with the State of North

Carolina, CTS Corp. and/or its former subsidiary CTS

of Asheville, Inc. have failed to account for over

53a

1,000,000 pounds of the spent halogenated solvent,

trichloroethylene.

18) The chemicals CTS Corp. left on the site of its

electroplating facility were the personal property of

CTS, Corp.

19) CTS Corp. ceased operating the Mills Gap

Road Electroplating Facility on or about November 1,

1985.

20) In late 1986 or early 1987, CTS Corp. began an

effort to try to sell the real property it owned and

formerly operated as the Mills Gap Road

Electroplating Facility.

21) As part of its efforts to sell the Mills Gap Road

Electroplating Facility and surrounding land, CTS

Corp. represented to realtors and the community that

the site “has been rendered in an environmentally

clean condition.”

22) A true and correct copy of Marvin Gobles, P.E.

letter to Stan Greenberg of January 27, 1987 is

attached hereto and incorporated by reference as

Exhibit “6.”

23) On or about June 25, 1987 CTS Corp. agreed to

sell the 54 acres of the Mills Gap Road industrial site

to a partnership, Mills Gap Road Associates. Mills

Gap Road Associates, a general partnership, agreed

to purchase the 54 acre site from CTS Corp. As part

of the agreement CTS Corp provided specific

warranties stating the lack of environmental

contamination on the property.

24) A true and correct copy of the “Contract of Sale

of Realty” between CTS Corp and Mills Gap Road

Associates is attached hereto and incorporated by

reference as Exhibit “7.”

54a

25) CTS Corp., as part of the “Contract of Sale of

Realty” specifically warranted as follows:

Seller [CTS Corp.] warrants that the Property will

be the subject of an environmental audit, the

results of which will be provided to the Buyer. If

the results of the environmental! audit indicate the

presence of contaminants on or under the Property,

in amounts that would exceed any applicable

governmental rules or regulations, Buyer shall

have the option of terminating this Contract

without any further liability if the Seller decides

not to undertake to remedy the _ identified

contamination.

Exhibit “7.” at 2, 4 5.

26) The sale of the land was finalized on

December 23, 1987.

27) Mills Gap Road Associates only purchased the

real property formally owned by CTS Corp. and

various plant machines. Mills Gap Road Associates

did not purchase any toxic chemicals from CTS, Corp.

28) The partnership never purchased, nor did it

intend to purchase, any of the spent halogenated

solvent, trichloroethylene, created and owned by CTS

Corp. CTS Corp. left its personal property, over

1,000,000 pounds of spend halogenated dangerous

toxic chemicals at the Mills Gap Road site.

29) Plaintiffs are either residents of the property

formally owed by CTS of Asheville, Inc. and Mills

Gap Road Associates, or are land owners near the

former CTS of Asheville, Inc. site whose ground

water and land is being contaminated by the various

toxic substances owned by CTS, Corp.

55a

30) By 2002, Defendant CTS Corp. received actual

notice that the toxic substances it left at its former

Mills Gap Road facility were leaching out and

contaminating the ground water in the vicinity and

seeping on to the property of the abutting land

owners as well as releasing toxic fumes into the air.

31) Through the present CTS Corp. has been and

continues to be aware that its toxic substances

continue to leach into the ground water and air

surrounding its former Mills Gap Road facility and

continue to contaminate the environment including

the land owned and occupied by the Plaintiffs.

32) Plaintiffs reallege and reaver each and every

allegation set forth in the foregoing paragraphs as if

fully rewritten herein.

33) The toxic chemicals abandoned by CTS Corp.,

have begun to leach out into the air and water in the

surrounding community and are continuing to

contaminate the air, land and water in the vicinity of

Mills Gap Road.

34) On November 23, 2009, Plaintiffs David

Bradley and Renee Richardson were advised by the

United States Environmental Protection Agency,

Region 4 that their well contained TCE and DCE (cis-

1,20dicholroethene). Specifically the letter stated:

TCE was initially detected at a concentration of

842 micrograms per liter (ug/L); cis-1,2-

dicholoroethene (DCE) was also detected at a

concentration of 65.8 ug/L. The concentration of

TCE in the sample was too high for calibration of

the instrument and thus was designated with a

56a

qualifier of “E,” meaning “exceeds calibration

range.”

Letter from EPA to David Bradley dated

November 23, 2009, attached hereto and incorporated

by reference as Exhibit “8.”

35) The well water supplied to the Richardson and

Bradley was not fit for human consumption. Indeed

the EPA could not even determine the _ true

concentration of the toxins in the water. The EPA

informed the family,

The probable result is that the concentrations of

the TEC in this diluted sample are likely biased

low. Regardless of the vanability in concentration,

all of these results are able the RAL [“Removal

Action Level”] and MCL [“Maximum Contaminant

Level”], supporting the need for EPA to supply an

alternate drinking water supply to you and your

family.

Exhibit “8” at 1.

36) The other Plaintiffs in this action live in the

vicinity of the Richardson and Bradley residence. All

of the Plaintiffs have been and continue to be exposed

to the CTS Corp. toxins via contact from air, land and

water.

37) The actions for CTS Corp. constitute a

continuous nuisance under the law of North Carolina.

38) Plaintiffs have been and are continuing to be

harmed by the nuisance created by CTS Corp. for

reasons including but not limited to the diminution in

the value of their real property. In addition the

Plaintiffs are afraid for their health and safety and

that of their family members.

57a

WHEREFORE: the Plaintiffs demand judgment

against the Defendant requiring reclamation of the

1,000,000 pounds of toxic chemical contaminants

belonging to CTS OCorp., remediation of the

environmental harm caused by the CTS Corp.’s toxic

chemicals as well as monetary damages in an amount

that will fully compensate them for all the losses and

damages they have suffered, or and will suffer in the

future as allowed by the applicable law; for trial by a

jury; and for costs, fees and other further relief that

the Court may deem just and proper.

/s/ Joseph L. Anderson

Attorney for Plaintiffs

ANDERSON PANGIA & ASSOC., PLLC

Washington, D.C. Office:

1717 N Street N.W.

Washington, D.C. 20036

Telephone: (800) 735-4062

Fax: (202) 955-9444

North Carolina Office:

2615 Sparkling Place

Winston Salem, NC 27103

Telephone: (800) 735-4062

Fax: (866) 489-2916

E-mail: janderson@andersonpangia.com

N.C. State Bar No. 19533

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.