Respondents Brief — CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (No. 13-339)

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RECOKW RAR 20 asi

— AND

EFS GCre.Ce Se Tet st aN

BRI No. 13-339

IN THE

Supreme Court of the Anited States

CTS CORPORATION,

Petitioner,

Vv.

PETER WALDBURGER, ET AL.,

Respondents.

On Wnit of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF FOR RESPONDENTS

Allison M. Zieve John J. Korzen

Public Citizen Litigation Counsel of Record

Group Wake Forest University

1600 20th Street NW School of Law

Washington, DC 20009 Appellate Advocacy Clinic

202-588-1000 Post Office Box 7206

Reynolda Station

Winston-Salem, NC 27109

(336) 758-5832

korzenjj@wfu.edu

Counsel for Respondents

March 2014

of Congress

vepaw Library

i

QUESTION PRESENTED

Whether 42 U.S.C. § 9658 preempts the ten-year

period of repose in N.C. Gen. Stat. § 1-52.

ss

TABLE OF CONTENTS

IES OF MIT EI vc scsesccncescsvccscccecerecescsnvcsoceseses i

Ne SE GF IE I wie cevessvecccscscenccovncsensionsesee iii

EET ae ee ae Ee l

STATUTORY PROVISIONS INVOLVED.................. 1

RIE 8 SEER ES REE eee eet eee eee OE 4

A. The terms “statutes of limitation” and

PMI nisiiniissnsinriidssshasoensnineenseiagnesia 4

Ce IIS DID cnsciciccsescccecesscsvoseseosscnsscons 5

C. North Carolina’s limitations statute .............. 11

Bs: Re IIs cccccnscinantissitahuinimsncsentineneianti 12

SUMMARY OF ARGUMENT ................::cccccssseceseseees 15

IT aciranstateiibiaccicetinitin aiaicinsiitsactaisilitababiinnsbeisindiinis 17

I. SECTION 9658 EXPRESSLY PREEMPTS

NORTH CAROLINA’S REPOSE PROVI-

SIs secserinpnncnenssisannnantenninannenupinntinnmeaniieneteeineesn 17

Il. SECTION 9658 IMPLIEDLY PREEMPTS

NORTH CAROLINA’S REPOSE PROVI-

SEEN ne ae ee ne 29

A. The State provision poses an obstacle

to CERCLA’s purposes and objectives............ 29

B. CTS and the government misread the

LA TOTO 33

Ill. CTS’S COUNTERARGUMENTS ARE

TTT HR CTE 36

SA EIEIID serniccninvassncsuvinssnsntenenentnesiavesnosescsnnnnesouen 44

TABLE OF AUTHORITIES

Cases Pages

Abrams v. Ciba Specialty Chemicals Corp.,

659 F. Supp. 2d 1225 (S.D. Ala. 2009).................. 41

Adams v. Nelson,

329 S.E.Bd 322 (N.C. 1986) .......ccccccccrcorccessccccceceece 11

Arizona vu. United States,

I i I in aceerinretinentasensnnoninnndiienion 36

Atchison, Topeka & Santa Fe Railway Co.

v. Buell,

REPS renters ara 32

Ballenger v. Crowell,

247 S.E.2d 287 (N.C. Ct. App. 1978) ........0..... cece 4

Bernick v. Jurden,

293 S.E.2d 405 (N.C. 1982) ............ccccccccsssssssseceeess 18

Black v. Littlejohn,

$25 S.E..2d 469 (N.C. 19665) ...................cccccecseeee 4,12

Boudreau v. Baughman,

368 S.E.2d 849 (N.C. 1988) ...................00.seceees 18, 22

Buckman Co. v. Plaintiffs’ Legal Committee,

gf ESS eres 29

Burgess v. United States,

| Ee ee ee 17

Burlington Northern & Santa Fe Railway Co.

v. United States,

gg TN eR 43

Chamber of Commerce v. Whiting,

ETE ene 17

Colorado v. Idarado Mine Co.,

916 F.2d 1486 (10th Cir. 1990) ....... eee eee 32

iv

Covalt v. Carey Canada Inc.,

860 F.2d 1434 (7th Cir. 1988) .............0. cece 40

CSX Transport, Inc. v. Easterwood,

Se I crcincsisciiceinenistinninisionsnnnsniinnsenen 17, 20

Danielson v. Cummings,

Se NE BP Ge BID se ccccccecncccssccnsascccsssonsests 11

Doe v. Doe,

O73 F.2d 237 (4th Cir. 19GB) .......cscccccccccesserscsssesees 12

Durham Manufacturing Co. v. Merriam

Manufacturing Co.,

294 F. Supp. 2d 251 (D. Conn. 2003).............. 20, 41

East Bay Municipal Utility District v.

United States Department of Commerce,

142 F.2d 479 (D.C. Cir. 1998) ..........cccccsscccccsscceees 32

Engine Manufacturers Ass’n v. South Coast

Air Quality Management District,

ee Se iercincisienssiceinonseenisenninctsnnninndiansn 36

Ernst & Ernst v. Hochfelder,

NE ee 5, 27

Federal Housing Finance Agency v.

UBS Americas, Inc.,

858 F. Supp. 2d 306 (S.D.N.Y. 2012),

aff'd, 712 F.3d 136 (2d Cir. 2013) .0........... cece 22

Federal Housing Finance Agency v.

UBS Americas Inc.,

712 F.3d 136 (2d Cir. 2013)...........s0cscccesssrressssssees 27

First United Methodist Church v. United

States Gypsum,

882 F.2d 862 (4th Cir. 1989) 0.0.0.0... cece cee eeeeeees 40

Freier v. Westinghouse,

303 F.3d 176 (2d Cir. 2002).........c.cccccccscessessees 31, 39

Gabelli v. SEC,

ge 30

Gonzalez v. United States,

I leat 38

Greco v. United Technologies Corp.,

890 A.2d 1269 (Conn. 2006) .............0000..ccccceeceeeeees 40

Hanford Downwinders Coalition, Inc.

v. Dowdle,

71 F.3d 1469 (9th Cir. 1995) .0..... ec c ec eeeeeeeeees 32

Harding v. K. C. Wall Products, Inc.,

BE A EP I: CIID cciccecivnsccnasssccsssndnctoninndinsne 5

Harris v. United States,

| ee ma naa e rE 38

Hillman v. Maretta,

Eee 29

Hines v. Davidowitz,

scene alcatt 29

Hinkle v. Henderson,

85 F.3d 298 (7th Cir. 1906) ....................0.cecceree. 4,31

Hodge v. Harkey,

631 S.E.2d 143 (N.C. Ct. App. 2006) .............. 11,18

In re Countrywide Financial Corp.

Mortgage-Backed Securities Litigation,

900 F. Supp. 2d 1055 (C.D. Cal. 2012).......000000000.... 5

Jinks v. Richland County,

Ee 22

Kelley v. EI. DuPont de Nemours & Co.,

Be ee ITD saincescninnsicnsstciinnncenniensennss 32

vi

Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson,

ee Es Be Ge iciccencssiiinniinittnemninnsiguusiiiiniaanas 4-5, 27

Landis v. Physicians Insurance Co.

of Wisconsin,

628 N.W.2d 893 (Wis. 2001) .............cccccccceeeeeeeeeeees 24

Lawson v. Suwannee Fruit & Steamship Co.,

gt ol, Ce ee 17

McDonald v. Sun Oil Co.,

548 F.3d 774 (Oth Cir. 2008) ...............-ccccccccrccseeoee 29

Merck & Co. v. Reynolds,

Be Ce Ge ncciciiinstisintctenciisineiniiiaiieatuammmaal 27

Moore v. Winter Haven Hospital,

579 So. 2d 188 (Fla. Dist. Ct. App. 1991) ............. 27

Morgan v. Exxon Corp.,

ft YF fe ee 40

Mutual Pharmaceutical Co. v. Bartlett,

SED Be Ge, Be ee cinscecincnceccsutiiintiiueniiiicaniasibiiiaaas 38

National Credit Union Administration Board

v. Nomura Home Equity Loan, Inc.,

727 F.3d 1246 (10th Cir. 2013),

petition for cert. filed,

U.S. Nov. 8, 2013 (No. 13-576)..................000000 27-28

New York v. United States,

GE ee 38

PLIVA, Inc. v. Mensing,

te es ef | 38

Riegel v. Medtronic, Inc.,

ee ChE, Be Ge cecscntinnssctsnseisncideniiinaieanma 36, 38

vil

Rowan County Board of Education

v. United States Gypsum Co.,

ES 22

Schiavone v. Pearce,

ST EID, BOI occccccccnccocccccscncsosescesaccese 32

Shearin v. Lloyd,

I CME D onc ccnnsccscsensnccccocssncncescesses 4

Smiley v. Citibank (South Dakota), N.A..,

EE 23

South Florida Water Management

District v. Montalvo,

we | 32

Taniguchi v. Kan Pacific Saipan, Ltd.,

I sssneudeboconennens 25

Taske v. ACMAT Corp.,

No. CV 09 50243235, 2012 WL 1959233

(Conn. Super. Ct. May 7, 2012).......................2..04. 41

Uniroyal Chemical Co. v. Deltech Corp.,

160 F.3d 238 (5th Cir. 1998) ................ccccccesseeseeees 32

United States v. Aceto Agricultural

Chemicals Corp.,

872 F.2d 1373 (8th Cir. 1989) .................c00.....0.000. 32

United States v. Appel,

I ssc ccnecenscsanasiacsensonescocses 38

United States v. Bestfoods,

ac susnsoseenens 5

United States v. E.I. DuPont de Nemours & Co..,

| 32

United States v. Kayser-Roth Corp.,

EE, IIE cccncocsescncscccsssvesescessseseses 32

United States v. Morton,

gE areegne eee eeeennec meter kn 20

United States v. Navistar International

Transportation Corp.,

1523 F.3d FOB (7th Cir. 190) ............cccccccscccccccccesss 32

Wisconsin Department of Industrial, Labor &

Human Relations v. Gould Inc.,

a ee I ncrictecieininesiasniiticindincncicininaiabinitisiiianisia 36-37

Witherspoon v. Sides Construction Co.,

362 N.W.2d 35 (Neb. 1985) ...................ccsscssscesseees 27

Federal Statutory Materials

IS UF Diicaiiinicicsiiticiiiniieiaicinnainbishenpiiesstiatianigitsdilatiiteisiaid 25

15 U.S.C. § 78u-6(b)(iii)(1) (aa)... elec cece eeteeees 5, 23

18 U.S.C. § 1524A(b)(2)(D) o..cecescccecscecesseseesseseeeneen 5, 23

Se I piciessseiniesisenisinacicieiniesniniiapieitindinbiialaitad 23

ee es Oe cas csssissieintcsiicsnsstaicniteteaeineitnsniltalealiaitaiiila 6

a eee IE ietiiscesiccineniccsnessiennisisiacislenabeieasiateiiiaia 41

ee I seiisieciiininiieiisennteliceiisssitiiaminhiainsimmanal 6

423 U.S.C. § SEBL(OMS)P) .........00ccccecscresccrcseccsessnssees 6, 33

GE WBE, B TAREE AD anncececceccnssnscstoreornsnensonensces 6, 33

Oe | EET aa ET passim

i He icici itictiaciidiilisiteiendinimbaniale 15, 20, 22

ee se iisintnintiicnssntaiicstnitiniedscimmeiiiia passim

a es ED iiiseinicctnieuicintcclnineniniiiinmeiiblga 15, 21

es I iaiihistasinicemeciistesistcinsisaininidunitiitataaltiaiaales 14

1 en I sitciicicisesiniesersieisiiohacadnctcaneditian passim

ee iiiniietieiiistuiisciticeicicislitinisltcincdieeal 9,19

ee SD wikictedininiccinaniitinisinbianiiniiaiamiias 10, 25

ae ERR Rac ee 20

es Oe I D wiicittccrcncecncsnecsnititininnsicninitio 23

H.R. Conf. Rep. 99-962 (1986),

reprinted in 1986 U.S.C.C.A.N. 3276 ....... 10, 11, 29

131 Cong. Rec. 35647 (Dec. 10, 1985) ..................0222.. 35

I rncrnescnlncettinieieienpiiaietetietmiuationn 5

State Statutes

Alaska Stat. § 09.10.055(b)(1)(A) .00. 2. eee 40

I, Sas Hs SS caictiinccseriieccecevniccinsnconnonsices 20, 41

Comm. Geom. Stat. § GB-BT7C(D) «....cccccccccoscccnsescccsscccccsscs 40

Conn. Gen. Stat. § 562-GB4 ..........0...0000ccccccccseoes 20, 24, 41

| EE Senne ea Reef 19

RS ee 24, 41

General Statutes of North Carolina,

SS Se Una ae a De RS 28

I ah a tl 3, 11

ee ns I OE SPIE cpieindictorichnccsscincininbapeiioniti passim

i: Ee & S —) eee emer passim

I a Oe ae 24, 41

kL Se ee ee enna 19

Miscellaneous

54 C.J.S. Limitations of Actions § 4 (1987).......... 18, 19

Black’s Law Dictionary (5th ed. 1979)................. 24, 25

x

Brief for Intervenor United States,

Freier v. Trico Products Corp.,

Nos. 00-7724, 00-7728,

2000 WL 33996142 (2d Cir. Nov. 6, 2000) ... passim

Environmental Protection Agency,

EPA/635/R-09/011F, Toxicological

Review of Trichloroethylene 1-1 (2011)............... 13

Van R. Delhotal, Re-examining CERCLA

Section 309: Federal Preemption

of State Limitations Periods,

34 Washburn L.J. 415 (1995)... eee eeeeeeeeees 33

Francis E. McGovern, The Variety,

Policy and Constitutionality of

Product Liability Statutes of Repose,

30 Am. U. L. Rev. 579 (1961) ...............--sscseecccoeeseeee 4

Steven H. Gifis, Dictionary of

I ier cecaitrtenieninicitienenmieeiditiel 26

Wesley Gilmer, Jr.,

The Law Dictionary (1986) ..............ccccccceeseeeeeeeeees 27

George Gordon Coughlin,

pd tk ene 26

Injuries and Damages from Hazardous Wastes—

Analysis and Improvement of Legal Remedies;

A Report to Congress in Compliance

with Section 301(e) of the Comprehensive

Environmental Response, Compensation,

and Liability Act of 1980 (P.L. 96-510) by the “Su-

perfund Section 301(e) Study Group,”

S. Comm. On Env’t and Pub. Works,

97th Cong. 2d Sess. (Comm. Print 1982) ..... passim

Daniel Oran,

Oran’s Dictionary of the Law (1983) ...............-.... 26

Irving Shapiro,

The New Dictionary of Legal Terms (1984).........

Reply Brief of United States, Jinks v.

Richland County, No. 02-258,

2003 WL 547429 (U.S. Feb. 21, 2003)

INTRODUCTION

Congress passed CERCLA to ensure that parties

responsible for releasing hazardous wastes into the

environment from a facility would bear the costs of

cleaning up the environment. To further this goal,

section 9658 of CERCLA replaces the commencement

date of state limitations periods that begin before

plaintiffs “knew (or reasonably should have known)”

of their property damage with a “federally required

commencement date” that begins when plaintiffs

“knew (or reasonably should have known)” of their

property damage. The question here is whether the

“federally required commencement date” affects all

state limitations periods that begin before plaintiffs

knew or should have known of their harm, including

absolute repose periods. As demonstrated by both the

plain language and legislative purpose of section 9658,

the answer is yes.

STATUTORY PROVISIONS INVOLVED

Section 9658 of the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA),

42 U.S.C. § 9658, provides, in pertinent part:

Actions under State law for damages from expo-

sure to hazardous substances

(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 person-

al injury, or property damages, which are

caused or contributed to by exposure to any

hazardous substance, or pollutant or contami-

nant, released into the environment from a fa-

cility, if the applicable limitations period for

2

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 speci-

fied 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 person-

al injury, or property damages, which are

caused or contributed to by exposure to any

hazardous substance, or pollutant or contami-

nant, released into the environment from a fa-

cility.

(b) Definitions — As used in this section—

(2) Applicable limitations period — The term

“applicable limitations period” means the peri-

od 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

applicable 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

plaintiff knew (or reasonably should have

3

known) that the personal injury or property

damages referred to in subsection (a)(1) of

this section were caused or contributed to

by the hazardous substance or pollutant or

contaminant concerned.

North Carolina General Statutes, § 1-46, “Periods

prescribed,” provides:

The periods prescribed for the commencement

of actions, other than for the recovery of real

property, are as set forth in this Article.

North Carolina General Statutes, § 1-52, “Three

years,” provides, in pertinent part:

Within three years an action —

(5) For criminal conversation, or for any other

injury to the person or rights of another, not

arising on contract and not hereafter enumer-

ated.

(16) Unless otherwise provided by statute, for

personal injury or physical damage to claim-

ant's property, the cause of action, except in

causes of actions referred to in GS. 1-15(c),

shall not accrue until bodily harm to the claim-

ant or physical damage to his property becomes

apparent or ought reasonably to have become

apparent to the claimant, whichever 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.

4

STATEMENT

A. The terms “statutes of limitation” and

“statutes of repose”

Traditionally, statutes of limitation began to run

from the wrongful act or omission complained of,

without regard to when the harmful consequences

were discovered. See, e.g., Shearin uv. Lloyd, 98 S.E.2d

508, 512 (N.C. 1957). As a result of the harsh results

possible from such a rule, jurisdictions began to adopt

versions of the “discovery rule” by which statutes of

limitation did not begin to run until a plaintiff had

discovered the harm. See, e.g., Ballenger v. Crowell,

247 S.E.2d 287, 293 (N.C. Ct. App. 1978). In response

to the discovery rules, some jurisdictions also placed

absolute time limits in their statutes of limitation on

when actions may be brought. See Hinkle v. Hender-

son, 85 F.3d 298, 302 (7th Cir. 1996) (“probably all

statutes of repose . . . are surgical strikes by the legis-

lature against the discovery rule”).

When section 9658 was enacted in the 1980s,

courts often used the term “statute of repose” to refer

to such a “portion of a statute of limitation that places

a cap or outer limit on a statute that begins to run

when a party discovers the existence of an injury or a

cause of action.” Francis E. McGovern, The Variety,

Policy and Constitutionality of Product Liability Stat-

utes of Repose, 30 Am. U. L. Rev. 579, 583 (1981) (em-

phasis added). Such portions of statutes of limitation

are “more precisely referred to as a period of repose.”

See Black v. Littlejohn, 325 S.E.2d 469, 474 (N.C.

1985).

Through the 1980s, this Court used the term

“statute of limitations” to refer to periods of repose.

See, e.g., Lampf, Pleva, Lipkind, Prupis & Petigrow v.

5

Gilbertson, 501 U.S. 350, 362 n.8 (1991) (referring to

three-year repose period as “a portion of an express

statute of limitations”); Ernst & Ernst v. Hochfelder,

425 U.S. 185, 210 (1976) (referring to “statute of limi-

tations” with discovery provision and three-year abso-

lute repose provision); see also Harding v. K. C. Wail

Prods., Inc., 831 P.2d 958, 967 (Kan. 1992) (stating

“the United States Supreme Court makes no distinc-

tion between statutes of limitations and statutes of

repose”).

Congress has never used the term “statute of re-

pose” or “repose” when referring to a period of repose

that caps the time within which an action may be

brought. To this day, Congress places such provisions

within “statutes of limitations” or other headings us-

ing the term “limitation.” See, e.g., 15 U.S.C. § 78u-

6(b)(iii)(1)(aa) (creating repose provision under head-

ing “Statute of limitations”); 18 U.S.C.

§ 1514A(b)(2)(D) (same); 42 U.S.C. § 2278 (same); 49

U.S.C. § 20109(d)(2)(ii) (same). See also In re Coun-

trywide Fin. Corp. Mortgage-Backed Sec. Litig., 900 F.

Supp. 2d 1055, 1063 n.5 (C.D. Cal. 2012) (“Congres-

sional statutes continue to use the term ‘statute of

limitation’ to encompass statutes of repose.”).

B. CERCLA section 9658

In 1980, Congress enacted CERCLA in response

“to serious environmental and health risks posed by

industrial pollution.” United States v. Bestfoods, 524

U.S. 51, 55 (1998). CERCLA was meant to ensure that

those “actually ‘responsible for any damage, environ-

mental harm, or injury from chemical poisons [may be

tagged with] the cost of their actions.’” Id. at 55-56

(quoting S. Rep. No. 96-848, at 13 (1980)).

6

Congress also established a twelve-member study

group to review “the adequacy of existing common

law and statutory remedies.” 42 U.S.C. § 9651(e). The

study group had three members each from four differ-

ent legal associations: the American Bar Association,

the American Law Institute, the Association of Amer-

ican Trial Lawyers, and the National Association of

State Attorneys General. Jd. § 9651(e)(2). The study

group’s members included a retired Chief Judge of the

New York Court of Appeals, two sitting and one for-

mer State Attorneys General, three law professors,

and several attorneys in private practice. See Injuries

and Damages from Hazardous Wastes—Analysis and

Improvement of Legal Remedies; A Report to Con-

gress in Compliance with Section 301(e) of the Com-

prehensive Environmental Response, Compensation,

and Liability Act of 1980 (P.L. 96-510) by the “Super-

fund Section 301(e) Study Group” at unnumbered in-

ner page (1982) (hereafter “Study Group Report”).

Congress directed the study group to evaluate “barri-

ers to recovery posed by existing statutes of limita-

tions” and “explicitly address the need for revisions in

existing statutory or common law.” 42 USC.

§§ 9651(e)(3)(F), (e)(4)(A).

The study group submitted its report to Congress

in July 1982. The Study Group Report repeatedly not-

ed that injuries from hazardous wastes have long la-

tency periods. Study Group Report at Reporter’s In-

troduction (“extended latency periods”), 8 (“15 to 20

years”), 16 (“long latency periods”), 17 (“latent inju-

ries”), 28 (“long latency periods, sometimes 20 years

or longer”), 31 (“long latency periods”), 55 (“ten-to-

forty year latency period”), 116 (“personal injuries are

often latent for many years”), 240 (“thirty years or

more”), 242 (“effects may not manifest themselves

7

until 20 or 30 years later”), 244 (“long latency peri-

ods”), 245 (“long latency periods”), A-3 (“15 to 20

year latency period”), B-1 (“The injuries caused by

hazardous waste disposal are often latent, or delayed

in manifesting themselves.”), L-17 (adverse health ef-

fects, including cancer, “may not appear until twenty

to forty years after exposure”), L-20 (“latency periods

of 20 to 30 years or more”).

Due to these long latency periods, the Study Group

Report concluded that “[clommencement of the run-

ning of the statute of limitations can be a barrier to

recovery.” Jd. at 28. A rule that statutes of limitation

begin to run when a plaintiff is exposed to hazardous

substances, rather than from discovery of harm, “will

defeat most actions before the plaintiff knows of his

injury.” Id. The study group determined that the bar-

rier to recovery posed by limitations periods could be

reduced if states adopted a discovery rule. Id. at 117.

Accordingly, under the heading “Statutes of Limita-

tion,” the Study Group Report recommended “that all

states that have not already done so, clearly adopt the

rule that an action accrues when the plaintiff discov-

ers or should have discovered the disease and its

cause.” Id. at 241. The Report specified that “(t]he

Recommendation is intended also to cover the repeal

of the statutes of repose which, in a number of states

have the same effect as some statutes of limitation in

barring plaintiff's claims before he knows that he has

one.” Id.

The Study Group Report also contained a “State-

by-State analysis” of existing “statutes of limitation”

in all 50 states, the District of Columbia, the Virgin

Islands, and Puerto Rico. Id. at Appendix B-6. In that

analysis, entitled “Statutes of Limitation applicable to

8

actions arising out of hazardous waste disposal,” the

study group consistently used the term “statute of

limitation,” whether referring to the period in which a

claim can be brought as measured from accrual or

from the occurrence of the event that caused the inju-

ry. See id. at B-6 to -10 (describing parts of Connecti-

cut, Kansas, and North Carolina statutes).

The study group criticized absolute repose provi-

sions. As to Connecticut’s statute of limitations, for

example, which includes the repose provision that “no

such action may be brought more than three years

from the date of the act or omission complained of,”

the study group stated:

The present law is not, however, completely fa-

vorable to victims of toxic waste induced per-

sonal injuries. In many such cases, the plaintiff

will not have sustained, nor would the prudent

person have discovered his injury within three

years after the culpable act.

Id. at B-7. Similarly, as to a repose provision in the

Kansas statute of limitations, the study group stated:

The statute would not protect a plaintiff with a

particularly slowly developing injury, because it

provides that “in no event shall the period be

extended for more than ten years beyond the

time of act giving rise to the cause of action.”

Id. at B-8.

Although six of the twelve study group members

submitted separate comments disagreeing with cer-

tain aspects of the Study Group Report, not one disa-

greed with the need for a liberal discovery rule. See

id., Part 1, Comments. Indeed, the Report stated:

9

There has been general agreement that the dis-

covery rule should apply to claims for injuries

growing out of exposure to hazardous wastes

because of long latency periods common for

such injuries. Thus, the statute of limitations

for such a claim should begin to run only when

the injured party knows, or should know in the

exercise of reasonable discretion, that he has

suffered an injury.

Id. at L-1.

In response to the Study Group Report, in 1986

Congress amended CERCLA by enacting 42 U.S.C.

§ 9658, entitled, “Exception to State statutes.” Sub-

section (a) contains an express preemption clause,

which may apply to “any action . . . under State law

for personal injury, or property damages . . . caused or

contributed to or by exposure to any hazardous sub-

stance, or pollutant or contaminant, released into the

environment from a facility.” 42 U.S.C. § 9658(a)(1).

In such actions, if the “applicable limitations period

... provides a commencement date .. . earlier than

the federally required commencement date, [then]

such period shall commence at the federally required

commencement date.” Id.

Congress defined “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.” 42 U.S.C. § 9658(b)(2).

“Commencement date” is defined as “the date speci-

fied in a statute of limitations as the beginning of the

applicable limitations period.” 42 U.S.C. § 9658(b)(3).

The “federally required commencement date” is a dis-

covery rule defined as “the date the plaintiff knew (or

reasonably should have known) that the personal in-

10

jury or property damages . . . were caused or contrib-

uted to by the hazardous substance or pollutant or

contaminant concerned.” 42 U.S.C. § 9658(b)(4).

Combining these definitions, the federally required

commencement date applies in any action when the

period in a state statute of limitations in which the

action may be brought begins before the plaintiff

knew or should have known that his injury was

caused or contributed to by a hazardous substance

covered by CERCLA.

The accompanying House Conference Report stat-

ed that section 9658 “provides for a Federal com-

mencement date for State statutes of limitations

which are applicable to harm which results from ex-

posure to a hazardous substance.” H.R. Conf. Rep. 99-

962 (1986), reprinted in 1986 U.S.C.C.A.N. 3276,

3354. Echoing the Study Group Report’s concerns and

ianguage, the House Conference Report stated that:

In the case of a long-latency disease, such as

cancer, a party may be barred from bringing

his lawsuit if the statute 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 hazardous

substance or pollutant or contaminant con-

cerned.

The study done pursuant to Section 301(e)

of CERCLA by a distinguished panel of lawyers

noted that certain State statutes deprive plain-

tiffs of their day in court. The study noted that

the problem centers around when the statute of

limitations begins to run rather than the num-

ber of years it runs.

11

This section addresses the problem identi-

fied in the 301(e) study. . . . [A] Federally-

required commencement date for the running

of State statutes of limitations is established.

Id.

C. North Carolina’s limitations statute

Article 5 of the North Carolina General Statutes,

entitled “Periods Prescribed,” sets forth “[t]he peri-

ods prescribed for the commencement of actions, oth-

er than for the recovery of real property.” N.C. Gen.

Stat. § 1-46. Section § 1-52, entitled “Three Years,”

states a three-year statute of limitations for breach of

contract, torts, and certain other causes of action. See

Adams v. Nelson, 329 S.E.2d 322, 325 (N.C. 1985)

(noting Court of Appeals applied “G.S. 1-52, the stat-

ute of limitations for breach of contract actions”);

Danielson v. Cummings, 265 S.E.2d 161, 162 (N.C.

1980) (defendants asserted “the action was barred by

the three-year statute of limitations, G.S. 1-52”). Sub-

section 16 of section 1-52 sets forth a discovery rule

that causes of action for personal injury or property

damage do not accrue until bodily harm or physical

property damage becomes apparent or reasonably

ought to have become apparent, “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.” Subsection 16 thus fixes a ten-

year period in which causes of action for bodily harm

or physical property damage “may be brought.”

Hodge v. Harkey, 631 S.E.2d 143, 145 (N.C. Ct. App.

2006). The ten-year period begins to run at the last

act or omission of the defendant, not at the discovery

of harm. Id. at 146.

12

While lower courts have referred to provisions

such as subsection 16 as a “statute” of repose, “[t]his

outer limit is more precisely referred to as a period of

repose.” See Black, 325 S.E.2d at 474 (emphasis add-

ed); see also Doe v. Doe, 973 F.2d 237 (4th Cir. 1992)

(repeatedly referring to the second sentence in sub-

section 1-52(16) as a “10-year period of repose”).

D. Proceedings below

Petitioner CTS Corporation (CTS) is a successor to

CTS of Asheville, Inc., which manufactured electronic

parts at the Mills Gap Road Electroplating Facility, in

the Skyland community of Buncombe County, North

Carolina. Pet. App. 5la-52a; Fourth Cir. Jt. Appx. 21.

The corporation used various toxic solvents, including

trichloroethylene (TCE), cyanide, chromium VI, and

lead. Pet. App. 51a. CTS operated the facility until

November 1985. Pet. App. 53a. In 1986 or 1987, CTS

placed the facility and surrounding land for sale, rep-

resenting that the site “has been rendered in an envi-

ronmentally clean condition.” Jd. In December 1987,

CTS sold 54 acres of the industrial site to a general

partnership and provided specific warranties that the

property was free of environmental contamination. Jd.

53a-54a.

Respondents are individuals who live on or near

the property formerly owned by CTS and who have

been and continue to be exposed to toxins left behind

by Respondents via contact from water, air, and land.

Id. 54a, 56a. On November 23, 2009, the United

States Environmental Protection Agency (EPA) ad-

vised Respondents David Bradley and Renee Richard-

son that their well water contained startlingly high

levels of TCE and was not fit for human consumption.

Id. 55a-56a. TCE is a manmade solvent that is persis-

13

tent, highly mobile, and carcinogenic. See, e.g., Fourth

Cir. Jt. Appx. 174; Environmental Protection Agency,

EPA/635/ R-09/011F, Toxicological Review of Trichlo-

roethylene 1-1, 4-635 to 4-637 (2011). The EPA has

concluded that the groundwater contamination is at

least partially due to CTS. Fourth Cir. Jt. Appx. 174.

Although the EPA and CTS entered into an “Admin-

istrative Order on Consent for Removal Action” in

late 2003 to early 2004, id. 190-221, there has never

been a removal action or a remediation of the site.

On February 22, 2011, less than two years after

the EPA notification, Respondents sued CTS for nui-

sance in the United States District Court for the

Western District of North Carolina, invoking the

court’s diversity jurisdiction. Pet. App. 48a. CTS

moved to dismiss under Federal Rule of Civil Proce-

dure 12(b)(6), arguing that N.C. Gen. Stat. § 1-52(16)

barred Respondents’ complaint. Fourth Cir. Jt. Appx.

37, 41-42. In response, Respondents contended that

their action was timely, based in part on 42 U.S.C.

§ 9658. Id. 118-19, 258-62.

Finding that the last act or omission of CTS oc-

curred in 1987, Pet. App. 44a, the magistrate judge

recommended that the action be dismissed, reasoning

that section 9658 preempts only the “state accrual

date in environmental cases,” id. 46a, and also that

statutes of limitation and statutes of repose are two

distinct types of statutes, one procedural and one sub-

stantive. Id. 47a. The district court then granted

CTS’s motion to dismiss, in a short opinion conclud-

ing that the plain language of section 9658 applies on-

ly to state “statutes of limitations, not statutes of re-

pose.” Jd. 37a-38a.

14

The Fourth Circuit reversed, holding that the dis-

covery rule articulated in section 9658 preempts

North Carolina’s ten-year limitation. Id. 2a. With one

judge dissenting, the court stated that section 9658

could be read to apply only to statutes of limitation

because it does not use the term “statutes of repose,”

id. 12a; however, applying the plain language of sub-

section 9658(a)(1) and the definitions in subsection

.9658(b), section 9658 can also be read to preempt the

ten-year limitation provision in N.C. Gen. Stat. § 1-

52(16). Id. 12a-13a. The court noted that the use and

meaning of the terms “statute of limitations” and

“statute of repose” had developed considerably over

the years and that historically the terms had often

been used interchangeably. Id. 13a.

Because the text of section 9658 could be read as

either including or excluding “statutes of repose,” the

court of appeals then looked to other indicia of con-

gressional intent. Jd. 14a. The court noted that Con-

gress adopted section 9658 to address the problem

identified in the Study Group Report, which was

“equally concerned with statutes of repose and limita-

tions, and with their effect of barring plaintiffs’ claims

before they are aware of them.” Jd. The court also

noted that CERCLA is remedial, that section 9658 re-

sulted from Congress’s specific concern with ensuring

adequate remedies, and that section 9658 furthers the

Act’s remedial goals by preempting state limitations

periods that would bar causes of action for latent

harms. Id. 14a-16a. The court concluded that inter-

preting section 9658 to exclude North Carolina’s ten-

year statute of repose would “obliterate legitimate

causes of action before they exist. . . . precisely the

barrier that Congress intended § 9658 to address.” /d.

15a. Such a reading would thwart Congress’s goal of

15

removing barriers to relief from hazardous substanc-

es. Id.

SUMMARY OF ARGUMENT

I. The plain wording of section 9658 expressly

preempts the North Carolina repose provision. Sec-

tion 9658 preempts an “applicable limitations period”

that provides an earlier “commencement date” than

the “federally required commencement date.” The re-

pose provision meets the definition of “applicable lim-

itations period” because it provides “the period speci-

fied in a statute of limitations during which a civil ac-

tion .. . may be brought.” Generally speaking and un-

der North Carolina law, repose provisions define the

period within which an action may be brought. The

repose provision is also specified within a statute of

limitations. The repose provision’s “commencement

date,” defined as the “beginning” of the period, is

when the defendant last acted or failed to act. That

commencement date is earlier than the “federally re-

quired commencement date,” defined as when the

plaintiff knew or should have known that the proper-

ty damage was caused or contributed to by the haz-

ardous substance.

The structure of section 9658(a) supports this con-

clusion. State limitations periods that have an earlier

commencement date are preempted-under paragraph

(1), while those that do not continue to apply under

paragraph (2). Congress’s approach demonstrates that

it did not carve out repose provisions and leave plain-

tiffs in some states with a less favorable commence-

ment date.

II. Section 9658 also impliedly preempts the North

Carolina repose provision. Congress enacted section

9658 to prevent plaintiffs injured by exposure to haz-

16

ardous substances released into the environment from

a facility from being deprived of their day in court by

state statutes that run before the plaintiffs discover

the cause of their latent harm. That purpose can be

frustrated by either a limitations period without a dis-

covery rule or by a repose period. Both can have the

effect of barring plaintiffs’ claims before they know

they have them, as the study group noted. The study

group repeatedly expressed concern about the prob-

lem of latent harm from hazardous substances and

the importance of a discovery rule, and in enacting

section 9658, Congress agreed that individuals with

latent harm should not be deprived of relief by limita-

tions periods that begin before discovery.

A uniform trigger date for all state limitations pe-

riods would apply equally where environmental con-

tamination crosses state lines and eliminate the in-

centive for states to pass more restrictiv» limitations

periods to compete for hazardous waste producers.

The remedial statutes rule supports reading section

9658 to reach repose provisions, and all the circuits

but one have applied that rule in construing CERCLA.

Section 9658 is the epitome of a remedial statute, be-

cause Congress directed the study group to evaluate

barriers to recovery and address the need for revisions

in statutory and common law, and then acted on the

study group’s identification of statutes of limitation

that begin to run before latent harm is discovered as

the primary barrier to recovery. CTS and the govern-

ment misread the legislative history and the legisla-

tive compromise underlying section 9658, which fully

support preemption of all limitations periods with a

commencement date earlier than the federally re-

quired commencement date.

17

Ill. CTS’s remaining arguments are unpersuasive.

The presumption against preemption does not apply

here. The avoidance canon was not raised or reached

below, and there is, in any event, no serious concern

as to section 9658’s constitutionality. Recognizing

preemption in this case will affect only claims involv-

ing the release of hazardous substances into the envi-

ronment from a facility. It appears that no state has

enacted a “statute of repose” specific to such claims,

and that only five states have catch-all repose periods

that could apply to such claims. Finally, the govern-

ment’s argument that CERCLA’s remedial aim does

not extend to tort actions goes against the statute’s

plain wording and legislative history, and is contra-

dicted by the government’s position in a prior similar

case.

ARGUMENT

I. SECTION 9658 EXPRESSLY PREEMPTS

NORTH CAROLINA’S REPOSE PROVISION.

A. The text of section 9658(a)(1), entitled “Excep-

tion to State statutes,” provides the best evidence of

its preemptive scope. See, e.g., CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664 (1993); Chamber of

Commerce v. Whiting, 131 S. Ct. 1968, 1977 (2013).

Section 9658(a)(1) displaces an “applicable limitations

period” that provides an earlier “commencement

date” than the “federally required commencement

date,” as CERCLA defines those three terms. See su-

pra p.2. See also Burgess v. United States, 553 U.S.

124, 129-30 (2008) (“Statutory definitions control the

meaning of statutory words . . . in the usual case.”)

(quoting Lawson v. Suwannee Fruit & S.S. Co., 336

U.S. 198, 201 (1949)). Applying CERCLA’s defini-

18

tions, section 9658 preempts the North Carolina re-

pose provision.

First, CERCLA defines the “applicable limitations

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

tions during which a civil action . . . may be brought.”

42 U.S.C. § 9658(b)(2). Repose provisions by their

very nature define the period when an action “may be

brought.” 54 C.J.S. Limitations of Action § 4, at 20-21

(1987) (“statute of repose . . . limits the time within

which an action may be brought”) (emphasis added).

More specifically, here, the North Carolina repose

provision establishes a ten-year period in which an

action for property damages may be “brought.” See,

e.g., Boudreau v. Baughman, 368 S.E.2d 849, 857

(N.C. 1988) (“If the action is not brought within the

specified period,” a plaintiff has no cause of action)

(emphases added); Bernick v. Jurden, 293 S.E.2d 405,

413 (N.C. 1982) (“a statute of repose . . . places a cap

or outer limit on the time period within which a prod-

ucts liability action may be brought”) (emphases add-

ed); Hodge, 631 S.E.2d at 145 (“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.”)

(emphasis added). Furthermore, the North Carolina

repose provision is a “period specified in a statute of

limitations;” in fact, it is a subsection of a statute of

limitations provision, N.C. Gen. Stat. § 1-52. Section

1-52 is located in Chapter 1 (“Civil Procedure”), Sub-

chapter 2 (“Limitations”), and Article 5 (“Limitations,

Other Than [Recovery of] Real Property”) of the

North Carolina General Statutes.

Second, CERCLA defines “commencement date”

as “the date specified in a statute of limitations as the

19

beginning of the applicable limitations period.” 42

U.S.C. § 9658(b)(3). (emphasis added). Repose provi-

sions fit smoothly into this definition, as they have a

“beginning” tied to a specific event. See, e.g., 54 C.J.S.

Limitations of Action, § 4, at 20-21 (“the period con-

tained in a statute of repose begins when a specific

event occurs, regardless of whether a cause of action

has accrued or whether any injury has resulted”)

(emphasis added). Here, the “beginning” of the repose

period is “the last act or omission of the defendant

giving rise to the cause of action.” N.C. Gen. Stat. § 1-

52(16). Indeed, states with similar repose provisions

expressly tie the term “commence” to the defendant’s

act. See Kan. Stat. Ann. § 60-513 (“in no event shall

an action be commenced more than 10 years beyond

the time of the act giving rise to the cause of action”);

Or. Rev. Stat. § 12.115(1) (“In no event shall any ac-

tion .. . be commenced more than 10 years from the

date of the act or omission complained of.”).

CTS argues that repose provisions do not have a

“commencement date” because “it simply is not true

that ‘a civil action . .. may be brought’ when a statute

of repose begins to run.” Pet. Br. 23; see also Pet. Br.

24, 43. CTS’s mistake, however, is in confusing lan-

guage from the definition of “applicable limitations

period,” with the definition of “commencement date.”

The phrase “a civil action . .. may be brought” is from

the definition of “applicable limitations period,” not

from the definition of “commencement date.” See 42

U.S.C. §§ 9658(b)(2)-(3). Thus, CTS’s argument that

the definition of “commencement date” “would not

make sense” (Pet. Br. 23) as applied to a repose period

fails because the argument is not in fact based on the

definition of “commencement date.” In addition, CTS

excerpts the language “a civil action .. . may be

20

brought” from the “applicable limitations period” def-

inition, which, as explained above, read in full com-

fortably applies to repose provisions. See also United

States v. Morton, 467 U.S. 822, 828 (1984) (“We do

not, however, construe statutory phrases in isolation;

we read statutes as a whole.”).

Third, CERCLA defines the “federally required

commencement date” as “the date the plaintiff knew

(or reasonably should have known) that the property

damages . . . were caused or contributed to by the

hazardous substance.” 42 U.S.C. § 9658(b)(4)(A). The

North Carolina “commencement date” of 1987 is ear-

lier than this “federally required commencement

date” of 2009.

The plain language of section 9658, which includes

specific definitions of the preemptive scope of subsec-

tion (a)(1), covers the North Carolina repose provision

in this case. Because the state commencement date

under the applicable limitations period is earlier than

the federally required commencement date, the feder-

ally required commencement date applies here. See

also Durham Mfg. Co. v. Merriam Mfg. Co., 294 F.

Supp. 2d 251, 278 (D. Conn. 2003) (the federally re-

quired commencement date of section 9658 would

clearly preempt Conn. Gen. Stat. §§ 52-577 and 52-

584 because their limitations periods begin to run

from the date of the act or omission).

B. The structure of section 9658 further shows

that section 9658(a)(1) preempts the North Carolina

repose provision. See CSX Transp., 507 U.S. at 664

(“Evidence of pre-emptive purpose is sought in the

text and structure of the statute at issue.”).

Section 9658(a) applies broadly to “any action

brought under State law for personal injury, or prop-

21

erty damages, which are caused or contributed to by

exposure to any hazardous substance, or pollutant or

contaminant, released into the environment.” Para-

graphs (a)(1) and (a)(2) together address two possibili-

ties as to a “commencement date.” First, paragraph

(a)(1) applies to “any action” in which the state “limi-

tations period” would provide a “commencement

date” that is “earlier than the federally required

commencement date.” In those cases, the federally

required commencement date applies. Second, para-

graph (a)(2), which applies to all cases “[e)xcept as

provided in paragraph [a](1),” provides that the state

“statute of limitations” applies. That is, section

9658(a) comprehensively addresses all state limita-

tions periods, both those with commencement dates

earlier than the federally required commencement

date (paragraph 1), and those that do not have an ear-

lier commencement date (paragraph 2). The statute is

thus crafted to give plaintiffs the benefit of whichever

limitations period is better for them. Paragraphs 1

and 2 together suggest that Congress intended com-

prehensively to address the applicable period during

which a claim could be brought. CTS’s reading, which

would create a third, unaddressed category, would

leave injured landowners in a few states (those with

applicable repose provisions) in a worse position than

those in the others. Paragraphs 1 and 2 together

strongly suggest that Congress did not intend this

carve out.

Looking beyond the statutory text, the govern-

ment speculates that Congress may have excluded re-

pose periods from section 9658 because a “statute of

repose” is a “substantive” “condition precedent” un-

der North Carolina law. U.S. Br. 27. Yet the govern-

ment acknowledges that the substantive condition

22

precedent is “a time period in which suit must be

brought.” Jd. (quoting Boudreau, 368 S.E.2d at 857).

That language parallels the definition of “applicable

limitations period” in section 9658, and this parallel

supports the plain language reading that section

9658(a) encompasses repose provisions. See 42 U.S.C.

§ 9658(b)(2).

Additionally, even where state-law limitations pe-

riods are treated as substantive law, they are subject

to preemption by federal law. See, e.g., Jinks v. Rich-

land Cnty., 538 U.S. 456, 464-65 (2003) (“Assuming

for the sake of argument that a principled dichotomy

can be drawn .. . between federal laws that regulate

state-court ‘procedure’ and laws that change the ‘sub-

stance’ of state-law rights of action, we do not think

that state-law limitations periods fall into the catego-

ry of ‘procedure’ immune from congressional regula-

tion.”); Fed. Hous. Fin. Agency v. UBS Americas, Inc.,

858 F. Supp. 2d 306, 316 n.7 (S.D.N.Y. 2012) (relying

on Jinks to reject the argument that a federal statute

could not “displace state statutes of repose” because

they are substantive); affd, 712 F.3d 136 (2d Cir.

2013); Reply Br. of United States, Jinks v. Richland

Cnty., No. 02-258, 2003 WL 547429, at *7 (U.S. Feb.

21, 2003) (contending that Congress may preempt

state limitations periods that are inconsistent with

valid federal enactments and policies). Thus, the

characterization of a repose provision as substantive

law should not affect the outcome here. See also Ro-

wan Cnty. Bd. of Educ. v. U.S. Gypsum Co., 418

S.E.2d 648, 657 (N.C. 1992) (“despite the fact that

statutes of repose differ in some respects from stat-

utes of limitations, they are still time limitations”);

Boudreau, 368 S.E.2d at 862 (Webb, J., dissenting)

(“Whatever differences we may find in statutes of lim-

23

itation and statutes of repose, the purpose of both of

them is to bar claims which are not filed within cer-

tain times. The majority has not said why there

should be a different treatment of them because we

call one statute substantive and the other procedural.

I do not see why we should.”).

C. CTS’s arguments based on the text of section

9658 are unavailing. First, CTS highlights that sec-

tion 9658 does not use the terms “statute of repose”

or “repose.” Pet. Br. 20, 25. But because the defini-

tions in subsection 9658(a) encompass repose provi-

sions, including the word “repose” was unnecessary.

Furthermore, there is no textual support for CTS’s

argument that Congress—despite never having used

the term “statutes of repose” in any statute—

recognized a dichotomy between “statutes of limita-

tion” and “statutes of repose” and in CERCLA in-

tended to include one and not the other. See Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735, 746

(1996) (rejecting petitioner’s dichotomy between “in-

terest” and “penalty” where statute used only “inter-

est”).

In addition, although Congress has enacted provi-

sions of absolute repose numerous times, it has never

used the terms “statute of repose” or “repose” to do

so. Congress has instead used “statute of limitations”

or other phrases including “limitations” when enact-

ing repose provisions. See, e.g., 15 U.S.C. § 78u-

6(b)(iii)(1)(aa) (creating repose provision under head-

ing “Statute of limitations”); 18 U.S.C.

§ 1514A(b)(2)(D) (same); 42 U.S.C. § 2278 (same); 49

U.S.C. § 20109(d)(2)(ii) (same). Similarly, although

there is no dispute that the North Carolina statute

establishes a period of repose, it does not use the term

24

“repose.” See N.C. Gen. Stat. § 1-52. Nor do the few

other state statutes of limitations with general repose

provisions that might apply to tort claims based on

releases of hazardous substances. See Conn. Gen.

Stat. § 52-584 (repose provision contained in chapter

entitled “Statute of Limitations” and not using term

“repose”); Kan. Stat. Ann. § 60-513(b) (repose provi-

sion contained in article entitled “Limitation of Ac-

tions” and not using term “repose”); Or. Rev. Stat. §

12.115 (repose provision contained in chapter entitled

“Limitation of Actions and Suits” and not using term

“repose”). Because “the phrase ‘statute of repose’ is

judicial terminology and is not featured in legislative

lingo,” Landis v. Physicians Ins. Co. of Wis., 628

N.W.2d 893, 907 (Wis. 2001), Congress’s choice to use

“limitations,” and not “repose,” is unremarkable and

consistent with an intent to preempt repose periods

such as North Carolina’s, as applied to claims con-

cerning injury from hazardous waste.

Second, CTS argues that section 9658 establishes

an “accrual” provision, Pet. Br. 26, and the govern-

ment similarly argues that the section alters only “ac-

crual.” See U.S. Br. 24. Traditionally, however, “ac-

crual” referred to the starting point for all limitations

periods. See, e.g., Black’s Law Dictionary 835 (5th ed.

1979). Moreover, as discussed above, section 9658

does not use the term “accrual;” it uses the term

“commencement date,” defined as the “beginning” of

the applicable limitations period.

Third, CTS’s argument that section 9658

preempts only “one state-law time period,” Pet. Br.

24-25, begs the question. The dispute here is how to

define that time period. Although CTS would have it

otherwise, the repose period is plainly part of the

25

“state-law time period” in which claims can be

brought under North Carolina law. Moreover, the

substitution that CERCLA effects is a substitution of

the “commencement date,” not of a time period.

Again, the North Carolina repose provision commenc-

es with “the last act or omission of the defendant,”

which is “a commencement date” that is earlier than

“the federally required commencement date” set forth

in section 9658(b)(4). Accordingly, CTS’s focus on the

singular “time period” argument does not help to elu-

cidate the meaning of section 9658. See also 1 U.S.C.

§ 1 (in statutes, the singular includes the plural).

Fourth, although CTS suggests otherwise (Pet. Br.

28-29), contemporaneous dictionaries show that, in

1986, “statute of limitations” did not have a narrower

meaning that excluded “statutes of repose.” Rather,

the dictionaries show that “statute of limitations” had

a broad definition that encompassed “statute of re-

pose,” which was not yet separately defined. The

then-current edition of Black’s Law Dictionary, for

example, under the entry “Limitations,” defined

“statute of limitations” as:

Statutes of limitation are statutes of repose,

and are such legislative enactments as pre-

scribe the periods within which actions may be

brought upon certain claims or within which

certain rights may be enforced. .... Also some-

times referred to as “statutes of repose.”

Black’s (1979), supra, at 835. See also Taniguchi v.

Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012)

(consulting “(t]he then-current edition of Black’s Lau

Dictionary”). Further, not only did Black’s definition

twice conflate the two terms, Black’s contained no

separate definition for “statute of repose.” Rather,

26

under “Repose statutes,” Black’s simply stated: “See

Limitation (Statute of limitation).” Black’s, supra, at

1169. Notably, in drafting section 9658, Congress used

similar wording as Black’s when it defined “applicable

limitations period,” suggesting that Congress likewise

made no distinction between “statutes of limitation”

and “statutes of repose.” Compare id. at 835, with 42

U.S.C. § 9658(b)(2) (defining “applicable limitations

period” as the “period [during which actions} “may be

brought”).

Other contemporaneous dictionaries also defined

“statute of limitations” to include all limitations peri-

ods and contained no separate definition for “repose”

or “statute of repose.” See Irving Shapiro, The New

Dictionary of Legal Terms 216 (1984) (defining “stat-

ute of limitations” as “[ljegislative enactment limiting

time within which specified action or prosecutions

must be instituted” and containing no definition of

repose); Steven H. Gifis, Dictionary of Legal Terms

412 (1983) (defining “statute of limitations” as “any

law that fixes the time within which parties must take

judicial action to enforce rights or else be thereafter

barred from enforcing them” and containing no defli-

nition of repose) (emphasis added); Daniel Oran,

Oran’s Dictionary of the Law 250-51, 403 (1983) (de-

fining “Limitation” with a cross-reference to that def-

inition under “Statute of limitations” and containing

no definition of repose); George Gordon Coughlin,

Dictionary of Law 163 (1982) (defining “statute of

limitations” as “[l]imits fixed by statutes as to the

time within which lawsuits may be started” and con-

taining no definition of repose). In contrast to these

five dictionaries, CTS argues that one dictionary “dis-

tinguish[ed] statutes of limitation and statutes of re-

pose.” Pet. Br. 28. That dictionary, however, defined

27

“statute of repose” by noting that a “statute of re-

pose” is “sometimes called hybrid statute of limita-

tions.” Wesley Gilmer, Jr., The Law Dictionary 309

(1986) (emphasis added).

Fifth, CTS has it backwards when arguing that

“statute of repose” was historically an umbrella term

encompassing statutes of limitation. Pet. Br. 18, 29,

45-47. This Court, for example, has used the term

“statute of limitations” to describe repose provisions.

See, e.g., Merck & Co. v. Reynolds, 559 U.S. 663

(2010) (describing unqualified ban on_ securities

claims five years after violation as part of “[t]he appli-

cable statute of limitations”); Lampf, 501 U.S. at 362

n.8 (referring to three-year repose period as “a por-

tion of an express statute of limitations”); Ernst &

Ernst, 425 U.S. at 210 (referring to “statute of limita-

tions” with discovery provision and three year abso-

lute repose provision).

Many other courts have concluded specifically that

statute of limitations is the broader term for limita-

tions periods, with “statute of repose” a subcategory.

See Nat’l Credit Union Admin. Bd. v. Nomura Home

Equity Loan, Inc., 727 F.3d 1246, 1266 (10th Cir.

2013) (“The majority of the case law treats repose pe-

riods as a subcategory of statute of limitations.”), peti-

tion for cert. filed, U.S. Nov. 8, 2013 (No. 13-576); Fed.

Hous. Fin. Agency v. UBS Americas, 712 F.3d 136,

143 (2d Cir. 2013) (“the courts—including the Su-

preme Court and this Court—have long used the term

‘statute of limitations’ to refer to statutes of repose”);

Moore v. Winter Haven Hosp., 579 So. 2d 188, 190

(Fla. Dist. Ct. App. 1991) (“a statute of repose is a

form of a statute of limitations”); Witherspoon uv.

Sides Constr. Co., 362 N.W.2d 35, 41 (Neb. 1985) (“A

28

statute of repose is a type of a statute of limita-

tions.”). As CTS and the government acknowledge, a

“statute of repose” is “[uJnlike an ordinary statute of

limitations” (Pet. Br. 29 (emphasis added); U.S. Br.

27), further showing that “statute of repose” is a sub-

set of the broader category of statutes of limitations.

See Nat’l Credit Union Admin. Bd., 727 F.3d at 1266.

The West “Key Number System” similarly reveals

that “statute of limitations” is the umbrella term. Be-

gun more than a century ago by the founder of West

Publishing, the West “Key Number System” organiz-

es the law into various topics—one could say umbrel-

las. Topic number 241 is “Limitation of Actions.”

Within the topic “Limitations of Actions” are five

main subtopics. The first of the main subtopics is

“Statutes of Limitation.” There is no topic or subtopic

for repose provisions. Case law rules regarding repose

provisions are simply indexed under the topic “Limi-

tation of Actions” and the subtopic “Statutes of Limi-

tation.”

Not to omit LexisNexis, in the index to the Gen-

eral Statutes of North Carolina, which LexisNexis

publishes, the umbrella heading “Statute of Limita-

tions” includes more than 260 subtopics, including

“Repose, Statute of.” See General Statutes of North

Carolina, General Index J to Z, at 1227-34. Under

“Statute of Repose,” in contrast, are only 3 subtopics

and a cross-reference to “Statute of limitations gener-

ally, See STATUTE OF LIMITATIONS.” Id. at 1233.

In short, “statute of limitations” has been the umbrel-

la term, while “statute of repose” has been the nar-

rower term.

29

Il. SECTION 9658 IMPLIEDLY PREEMPTS

NORTH CAROLINA’S REPOSE PROVISION.

Section 9658 also impliedly preempts North Caro-

lina’s repose provision because that provision “‘stands

as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.’” Hill-

man v. Maretta, 133 S. Ct. 1943, 1950 (2013) (quoting

Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). See also

Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S.

341, 352 (2001) (presence of express preemption pro-

vision did not prevent working of ordinary implied

preemption principles).

A. The State provision poses an obstacle to

CERCLA’s purposes and objectives.

Section 9658 was enacted to prevent plaintiffs in-

jured by exposure to hazardous substances released

into the environment from a facility from being de-

prived of their day in court by state statutes that run

before the plaintiffs discover the cause of their latent

harm. H.R. Conf. Rep. No. 99-962 (1986), reprinted in

1986 U.S.C.C.A.N. 3276, 3354. As the study group

recognized, that purpose can be frustrated by either a

statute of limitations without a discovery rule or by a

statute of repose. Moreover, the problem of plaintiffs

being deprived of their day in court “is probably most

likely to occur where statutes of repose operate.”

McDonald v. Sun Oil Co., 548 F.3d 774, 783 (9th Cir.

2008). As the court below observed, “Refusing to ap-

ply § 9658 to statutes of repose allows states to oblite-

rate legitimate causes of action before they exist,”

which is “precisely the barrier that Congress intended

§ 9658 to address.” Pet. App. 15a. “Doing so cannot be

termed an honest attempt to ‘effectuate Congress’s

intent’.” Id.

30

A statute of limitations without a discovery rule

and a “statute of repose” can have the exact “same

effect” of barring plaintiffs’ claims before they know

they have them. Study Group Report at 241. Indeed, a

statute of limitations without a discovery rule and a

“statute of repose” can begin to run at the same

time—when the defendant last acts or fails to act. The

Study Group Report commissioned by Congress re-

peatedly expressed concern with the problem of latent

harm from hazardous substances and the importance

of a discovery rule. See Study Group Report at 8, 16-

17, 28, 31, 55, 116, 240, 242, 244-45, A-3, B-1, L-17, L-

20. And Congress agreed with the study group that

individuals with latent harm from hazardous sub-

stances should not be deprived of relief by limitations

periods that begin before they discover their harm.

See H.R. Conf. Rep. 99-962 (1986), reprinted in 1986

U.S.C.C.A.N. 3276, 3354.

“{DJiscovery rule[s] exist[] in part to preserve the

claims of victims who do not know they are injured

and who reasonably do not inquire as to any injury.

Usually when a private party is injured, he is immedi-

ately aware of that injury and put on notice that his

time to sue is running. But when the injury is self-

concealing, private parties may be unaware that they

have been harmed.” See Gabelli v. SEC, 133 S. Ct.

1216, 1222 (2013). In enacting section 9658, Congress

responded to the study group’s concern that claims

based on latent harm from hazardous wastes released

into the environment from a facility call for such a

discovery rule. CTS does not disagree. Pet. Br. 52.

Construing section 9658 to apply to limitations peri-

ods that in-lude repose periods furthers this statutory

purpose. Not only do repose provisions have the same

effect as statutes of limitation without discovery rules,

31

they were enacted as a reaction to discovery rules.

Hinkle, 85 F.3d at 302 (“probably all statutes of re-

pose .. . are surgical strikes by the legislature against

the discovery rule”).

Uniform preemption of less favorable commence-

ment dates is especially appropriate because hazard-

ous wastes released into the environment can cross

state lines, and victims of the same environmental re-

lease in neighboring states might be subject to differ-

ing commencement dates, with those in a state with a

repose provision potentially barred before they even

knew of their harm, depending on their forum state’s

choice of law rules. Uniformity is also appropriate be-

cause states might otherwise have an incentive to pass

more restrictive provisions to compete for hazardous

waste producers, further frustrating Congressional

intent to provide victims of latent harm their day in

court. In fact, the government made this very point in

Freier v. Westinghouse, 303 F.3d 176 (2d Cir. 2002).

See Brief for Intervenor United States, Freier v. Trico

Prods. Corp., Nos. 00-7724, 00-7728, 2000 WL

33996142, at *15 (2d Cir. Nov. 6, 2000) (hereafter

“U.S. Freier Br.”) (“A uniform limitations trigger .. .

prevent(s] States from seeking to adjust this element

of their law in order to attract investment.”). Such

competitive legislation would frustrate the statutory

goal that responsible parties bear the costs of clean-

up.

In Freier, the government, which intervened to

support individual plaintiffs pursuing tort claims, ar-

gued that the “federally required commencement

date” creates a “uniform trigger” that overrides earli-

er state commencement dates. Id. at 1, 15, 26-27. Fur-

ther, the government noted that “it is difficult to jus-

32

tify insistence on rigid application of limitations laws

to the personal injury and property damage claims af-

fected by the (federally required commencement

date}.” Id. at 37. In ight of CERCLA, any “reasonable

expectation of repose State court defendants might

have had has been altered already. . . . [and therefore]

it seems anomalous to give defendants special protec-

tion from personal injury claims.” Id.

Consistent with the government’s argument in

Freier, the court below relied in part on the remedial

nature of CERCLA and the rule that remedial stat-

utes are broadly construed. Pet. App. 14a-l5a; see

Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557, 562

(1987). Likewise, nearly every circuit has referred to

the rule with approval in construing CERCLA. See

United States v. Kayser-Roth Corp., 910 F.2d 24, 26

(ist Cir. 1990); Schiavone v. Pearce, 79 F.3d 248, 253

(2d Cir. 1996); United States v. E.J. DuPont de

Nemours & Co., 432 F.3d 161, 185 (3d Cir. 2005);

Uniroyal Chem. Co., v. Deltech Corp., 160 F.3d 238,

242 (5th Cir. 1998); Kelley v. EJ. DuPont de Nemours

& Co., 17 F.3d 836, 843 (6th Cir. 1994); United States

v. Navistar Int’l Transp. Corp., 152 F.3d 702, 707 n.5

(7th Cir. 1998); United States v. Aceto Agr. Chems.

Corp., 872 F.2d 1373, 1383 (8th Cir. 1989); Hanford

Downwinders Coalition, Inc., v. Dowdle, 71 F.3d 1469,

1481 (9th Cir. 1995); Colorado uv. Idarado Mine Co.,

916 F.2d 1486, 1492-93 (10th Cir. 1990); South Fila.

Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 409 (11th

Cir. 1996). But see East Bay Mun. Util. Dist. v. U.S.

Dept. of Commerce, 142 F.2d 479, 484 (D.C. Cir. 1998)

(questioning remedial statutes canon).

If ever a statute were “remedial,” it is section

9658, which was enacted after Congress appointed the

33

study group to evaluate “barriers to recovery posed by

existing statutes of limitations” and “address the need

for revisions in existing statutory or common law.” 42

U.S.C. §§ 9651(e)(3)(F), (e)(4)(A). The study group

identified statutes of limitation that begin to run be-

fore latent harm is discovered as the primary barrier

to recovery, and Congress acted to prevent plaintiffs

with latent harm from being deprived of their day in

court. Construing section 9658 not to preempt repose

provisions would frustrate that remedial purpose. See

Van R. Delhotal, Re-examining CERCLA Section 309:

Federal Preemption of State Limitations Periods, 34

Washburn L.J. 415, 457 (1995) (section 9658 “must

apply to statutes of repose as well as statutes of limi-

tations. It simply defeats congressional intent to hold

otherwise... .”).

B. CTS and the government misread the

legislative history.

CTS and the government misread the legislative

history in several ways. First, they wrongly state that

the Study Group Report “repeatedly distinguished be-

tween statutes of limitation and statutes of repose,”

made two separate recommendations regarding stat-

utes of limitation and statutes of repose, and noted

that North Carolina had adopted a statute of repose.

Pet. Br. 33, 34; U.S. Br. 25, 26, 33. In fact, the Report

used the term “statutes of repose” to describe repose

provisions just once in more than 700 pages, on the

single page cited by CTS as an “example.” Pet. Br. 33

(citing Study Group Report at 241). There, the Report

stated that “statutes of repose .. . in a number of

states have the same effect as some statutes of limita-

tion in barring plaintiffs claim before he knows he

has one.” Study Group Report at 241. That statement

34

is indeed accurate because, as noted above, the period

of both a statute of limitations without a discovery

rule and a repose provision can run before a plaintiff

is even aware of his harm.

In addition, while the Study Group Report twice

summarized North Carolina’s applicable statute of

limitations, including its repose provision, it did not

use the term “repose.” Study Group Report at B9-10,

B63. Instead, the Report included the North Carolina

provision and similar repose provisions in other states

in its analysis of “statutes of limitation” in the appen-

dix entitled “Statutes of limitation applicable to ac-

tions arising out of hazardous waste disposal.” Jd. at

B-1, B6-8 (summarizing Connecticut and Kansas

statutes).

Reflecting the treatment of repose periods as pro-

visions within state statutes of limitations, the Study

Group Report made a single recommendation with re-

spect to the period of time within which suit may be

brought. In a subsection entitled “Statute of limita-

tions,” it recommended that:

all states that have not already done so, clearly

adopt the rule that an action accrues when the

plaintiff discovers or should have discovered

the injury or disease and its cause. The Rec-

ommendation is intended to also cover the re-

peal of the statutes of repose which, in a num-

ber of states have the same effect as some stat-

utes of limitations in barring plaintiffs claim

before he knows that he has one.

Id. at 241. In response, Congress did not wait for the

states to act. It enacted a provision mandating a fed-

eral discovery rule. That provision, section 9658,

preempts all state limitations that provide a “com-

35

mencement date which is earlier than the federally

required commencement date.”

Finally, CTS and the government quote Repre-

sentative Glickman out of context in arguing that sec-

tion 9658 represents a legislative compromise against

preemption of “substantive” law and tort damages.

Pet. Br. 50; U.S. Br. 32. In the quoted passage, Repre-

sentative Glickman was speaking out againsi an

amendment that would have created a federal cause of

action. See 131 Cong. Rec. 35647 (Dec. 10, 1985). As

to section 9658 preemption of state limitations peri-

ods, however, Representative Glickman supported a

uniform discovery rule in cases of latent harm from

exposure to hazardous substances, stating:

[Cjurrently residents of some States have no

right to sue for damages arising from hazard-

ous substances because the State statute of lim-

itations applicable to their claim has already

passed before they even know they have been

injured.

[U]nder this provision, all persons, regardless

of which State they live in, will be able to sue for

damages when they know they have been dam-

aged. This is of particular importance because

of the long latency period for many injuries re-

sulting from exposure to hazardous substances.

Id. at 35640 (emphasis added). Similarly, Representa-

tive Snyder noted with approval section 9658’s “uni-

form approach . . . requiring that the State’s statute

may not begin” until discovery. Id. at 35644.

36

In short, Congress intended to preserve state law

causes of action for personal injury or property dam-

ages from hazardous wastes released into the envi-

ronment from a facility until plaintiffs had discovered

the cause of their harm. Construing section 9658 not

to override North Carolina’s repose provision would

frustrate that intent.

Il. CTS’S COUNTERARGUMENTS ARE UN-

PERSUASIVE.

CTS and the government make several additional

arguments to support their view that section 9658

does not apply to state repose provisions. All are mer-

itless.

First, CTS invokes the presumption against

preemption. To begin with, where, as here, the scope

of preemption is clear from the statutory language,

the Court has not looked to the presumption. See, e.g.,

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008); Engine

Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541

U.S. 246, 256 (2004). Further, the presumption has no

place where the preemption of state law (repose peri-

ods) will allow another state law (common-law claims)

to be given effect.

Moreover, although the North Carolina repose

provision concerns an area traditionally within a

state’s historic police powers (the period during which

state-law claims may be brought), that traditional

state authority gives way when Congress enacts a

“comprehensive federal program” that displaces state

authority as to the subject of that program. See Arizo-

na v. United States, 132 S. Ct. 2492, 2503-04 (2012)

(traditional state authority to regulate employment

relationship displaced by comprehensive federal im-

migration legislation); Wisconsin Dep’t of Indus., La-

37

bor & Human Relations v. Gould Inc., 475 U.S. 282,

287-88 (1986) (state’s power to control spending of its

own funds preempted when used to interfere with

federal “comprehensive regulation of industrial rela-

tions”). CERCLA is such a “comprehensive federal

program.” As the government has previously argued,

section 9658’s “federally required commencement

date” is “integral” to this comprehensive federal pro-

gram, “because it is closely linked to CERCLA’s other

provisions addressing and preventing harms resulting

from exposure to hazardous materials.” U.S. Freier

Br. 21. A state’s interest in protecting defendants

from older claims is overcome in this instance:

The countervailing State interest in protecting

potential defendants is substantially weaker.

Not only do such commercial entities operate in

an area that is already heavily regulated, but

they are also subject to CERCLA’s provisions

imposing liability for cleanup costs and natural

resources damages irrespective of when the ac-

tivity that render them liable occurred. Those

provisions embody a Congressional decision

that places great importance on ensuring that

these costs are paid, and that can apply to acts

that occurred many decades in the past... . To

the extent that they may be inconvenienced by

such suits, Congress has already made a judg-

ment in CERCLA that a defendant’s interest in

repose, and the presumptions of tort law that

often leave costs where they fall, are less im-

portant than the need to spread the social costs

associated with the harms resulting from haz-

ardous materials, and to internalize those costs

to the responsible industries.

38

Id. at 36 (citations omitted).

Second, invoking the avoidance canon, CTS argues

that section “9658 would raise serious constitutional

doubts if it were construed to force states to impose

substantive tort liability as a matter of state law” be-

cause it would essentially “compel[] state legislatures

to enact tort causes of action.” Pet. Br. 37, 38. This

argument, which was neither raised nor decided be-

low, has been waived. See United States v. Appel, 134

S. Ct. 1144, 1153 (2014) (declining to reach constitu-

tional questions not reached below and First Amend-

ment objections presented “as a statutory interpreta-

tion argument based on constitutional avoidance”). It

is also meritless.

CTS agrees that section 9658 preempts state stat-

utes of limitations such as North Carolina’s three-

year period for bringing an action after discovery, but

it argues that preempting “statutes of limitations”

raises no concerns because those periods are “proce-

dural” while “statutes of repose” are “substantive.”

Pet. Br. 40-41. That distinction cannot make a differ-

ence here, however, as the Court has on many occa-

sions read federal law to preempt state substantive

law, without suggesting the sort of constitutional co-

nundrum posed by CTS. See, e.g., Mut. Pharm. Co. v.

Bartlett, 133 S. Ct. 2466 (2013); PLIVA, Inc. v. Mens-

ing, 131 S. Ct. 2567 (2011); Riegel, 552 U.S. 312.

Further, the avoidance canon “does not apply un-

less there are ‘serious concerns about the statute’s

constitutionality.’” Gonzalez v. United States, 553

U.S. 242, 251 (2008) (quoting Harris v. United States,

536 U.S. 545, 555 (2002)). This case presents no such

concerns. The federally required commencement date

is “an ‘ordinary instance’ of federal preemption of

39

State law,” U.S. Freier Br. 25-27, as it has been estab-

lished for over a century that Congress may alter

state limitations periods. Jd. at 27-33. And there is no

merit to CTS’s suggestion (Pet. Br. 40) that preemp-

tion is a sort of one-way street entitled to more defer-

ence when Congress “negates” state substantive law

rather than enlarging it. Jd. at 25 (“Although the dis-

placement of State law through federal preemption is

most often thought of as involving the constriction of

State remedies, preemption in fact routinely has the

effect of expanding those remedies.”).

As the Second Circuit explained in rejecting a

“commandeering” argument very similar to CTS’s:

Simply put, the Tenth Amendment does not

prevent the application of federal law in state

courts even though “[flederal statutes enforce-

able in state courts do, in a sense, direct state

judges to enforce them,” because “this sort of

federal ‘direction’ of state judges is mandated

by the text of the Supremacy Clause.” New

York v. United States, 505 U.S. [144,] 178-79

[1992]. The [federally required commencement

date], which requires no action by a state’s leg-

islative or executive officials, but only the ap-

plication of federal law by the courts to recog-

nize the Federal Commencement Date of a

state-law claim, does not violate the Tenth

Amendment.

Freier, 303 F.3d at 205.

Third, CTS raises the specter of excessive preemp-

tion of state repose provisions. See Pet. Br. 53 (the ef-

fect of the Fourth Circuit’s reading is that “every state

statute of repose — no matter how reasonable, no mat-

ter how minimally burdensome to plaintiffs - is

40

preempted”) (emphasis in original); see also Am.

Chem. Council Br. 6. This floodgates argument is easi-

ly dismissed.

Section 9658 by its plain terms can apply oniy

when there has been a “release” into the “environ-

ment” of a covered “hazardous substance” from a “fa-

cility.” 42 U.S.C. 9658(a)(1). While the brief of the

American Chemistry Council (at 15-16) discusses only

one of these four prerequisites (hazardous substanc-

es), all four prerequisites must be present for section

9658(a)(1) to apply. See First United Methodist

Church v. United States Gypsum, 882 F.2d 862, 867 &

n.6 (4th Cir. 1989) (section 9658 preemption inappli-

cable to claims for cost of removing asbestos from the

structure of a building, where asbestos created a haz-

ard only within that building); Covalt v. Carey Cana-

da Inc., 860 F.2d 1434, 1439 (7th Cir. 1988) (section

9658 preemption inapplicable because the interior of a

place of employment is not the “environment” so as to

satisfy the “into the environment” requirement);

Greco v. United Techs. Corp., 890 A.2d 1269, 1281-86

(Conn. 2006) (plaintiffs’ allegations of contamination

did not meet the requirement of a release into the

“environment”); Morgan v. Exxon Corp., 869 So. 2d

446, 449-52 (Ala. 2003) (section 9658 inapplicable be-

cause plaintiffs failed to satisfy hazardous substances

element).

Moreover, Respondents are not aware of a single

state with a repose provision that specifically bars la-

tent harm from environmental contamination. Cf.

Alaska Stat. § 09.10.055(b)(1)(A) (ten-year statute of

repose does not apply if personal injury, death, or

property damage resulted from prolonged exposure to

hazardous waste); Conn. Gen. Stat. § 52-577c(b) (limi-

41

tations period for actions for personal injury or prop-

erty damage caused by exposure to hazardous chemi-

cals released into the environment runs from discov-

ery of harm). The question presented here will thus

affect only the few states with general repose provi-

sions or common law rules of repose applicable to all

personal injury or property damage claims. See Conn.

Gen. Stat. §§ 52-577, 52-584'; Kan. Stat. Ann. § 60-

513(b); N.C. Gen. Stat. § 1-52(16); Or. Rev. Stat.

§ 12.115; see also Abrams v. Ciba Specialty Chems.

Corp., 659 F. Supp. 2d 1225 (S.D. Ala. 2009) (discuss-

ing Alabama’s twenty-year common law rule of repose

and holding that section 9658 preempts it).

Fourth, the government argues that Congress did

not intend CERCLA’s “remedial focus” to extend to

tort damages. U.S. Br. 32-33. CERCLA’s plain lan-

guage refutes this argument. Section 9658 applies to

“any action brought under State law for personal in-

jury, or property damages.” 42 U.S.C. § 9658(a)(1)

(emphasis added). In addition, in section 9658’s statu-

tory history, Congress directed the study group to

evaluate “the adequacy of existing common law and

statutory remedies in providing legal redress for harm

to man and the environment.” Id. § 9651(e)(1) (em-

phasis added). The study group in turn noted the

availability of remedies for personal injury and prop-

erty damage under state law claims for nuisance,

trespass, negligence, and strict liability. Study Group

* Connecticut appellate courts have not addressed whether

section 52-577c(b)’s discovery rule for hazardous waste cases

controls over sections 52-577 and 52-584, which begin to run at

the defendant’s last act or omission. See Taska v. ACMAT' Corp.,

No. CV 09 5024323, 2012 WL 1959233, at *4 (Conn. Super. Ct.

May 7, 2012). See also Durham Mfg., 294 F. Supp. 2d at 278.

42

Report at 27, 52, 80. The study group even noted that

the government might be liable under the Federal

Tort Claims Act if it owned the disposal site or waste

and its employees or agents committed a tort. Jd. at

59. Thus, CERCLA section 9658 was very intentional-

ly directed at extending the period for filing tort ac-

tions based on harm from hazardous waste, as part of

Conpress’s effort to remedy the problems caused by

such environmental hazards.

In addition, in Freier, the government took the op-

posite position and successfully argued that section

9658 supports tort damages. See U.S. Freier Br. 1, 7,

11-16, 19 n.8, 21-22, 37. As the government stated,

that case “involve[d] a range of tort claims under New

York law for injuries or deaths allegedly caused by ex-

posure to toxic substances.” Jd. at 7. After intervening

on behalf of the plaintiffs, the government explained:

(TJort damages have a well-understood deter-

rent function. In enacting the FRCD provision,

Congress found that tort actions seeking com-

pensation for injuries caused by such wastes of-

ten were impeded by restrictive State limita-

tions periods. By altering these limitations pe-

riods, the FRCD serves to deter future acts of

improper hazardous waste disposal by commer-

cial entities. . . .

Id. at 13. The government further observed that “the

payment of compensation for those harms can have

substantial economic effects, for instance by permit-

ting plaintiffs to pay for medical bills or other neces-

sary costs.” Id. at 19 n.8.

CERCLA does more than merely address

cleanup of waste sites and allocation of costs of

those cleanups... .

43

... Not only does the deterrent effect of tort ac-

tions reduce the likelihood of future injury,

payment of compensation can benefit human

health immediately by allowing the injured to

pay for necessary medical care. The FRCD also

applies to claims for harm to property; in this

respect, it complements the provisions of CER-

CLA directed at cleaning up contaminated

sites.

Id. at 21-22.

Finally, amicus DRI proposes that individuals such

as Respondents “can remove or remediate contamina-

tion and then file a private cost-recovery action.” DRI

Br. 14 n.3. Expecting individual homeowners in the

Blue Ridge Mountains community of Skyland, North

Carolina to remove or remediate the contamination

themselves is ludicrous. Even if they had the where-

withal to do so, they would have to trespass, as the

source of the contamination is not on their own land.

And then afterward, they would still have to go to

court, as DRI acknowledges. Jd. There is no sugges-

tion in the statutory text or history that Congress en-

visioned that the burden of hazardous waste clean-up

would fall in the first instance on the individuals

harmed by the waste. See also Burlington N. and San-

ta Fe Ry. Co. v. United States, 556 U.S. 599, 602

(2009) (CERCLA was designed to ensure parties re-

sponsible for the contamination would bear costs of

clean-up).

44

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

Allison M. Zieve John J. Korzen

Public Citizen Litigation Counsel of Record

Group Wake Forest University

1600 20th Street NW School of Law

Washington, DC 20009 Appellate Advocacy Clinic

202-588-1000 Post Office Box 7206

Reynolda Station

Winston-Salem, NC 27109

(336) 758-5832

korzenyj@wfu.edu

Counsel for Respondents

March 2014