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

[Siprene Cou, US. Y

FILED

is MAR

—— FEB 3 - 2014

BRIEFS _ OFFICE OF THE CLERK |

No. 13-339

In the Supreme Court of the United States

CTS CORPORATION, PETITIONER

Vv.

PETER WALDBURGER, BT AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

STUART F. DELERY

Aaststant Attorney Genera!

EDWIN S. KNEEDLER

Deputy Solicttor General

JOSEPH R. PALMORE

Assistant to the Solicitor

General

MARK B. STERN

DANIEL TENNY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefa(@usdoj.gov

(202) 514-2217

Library of Congress

Law Library

QUESTION PRESENTED

Whether a provision of the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

of 1980, 42 U.S.C. 9601 et seq., providing a federal

commencement date for the running of state statutes

of limitations as applied to suits involving hazardous

substances, 42 U.S.C. 9658, preempts a North Caroli-

na statute cutting off liability ten years after a de-

fendant’s last relevant act or omission.

(1)

TABLE OF CONTENTS

Page

eaten GET nh Ca I iseessccscscrnissiecciititirenitanel l

SORRRETY GU OUIIIIS BIT GIIUG ovccccscnccrececisvssccltsscesinansssstantmcmentsias 2

IE, wcessciicinininsienitininsiviiiaannccmsnsiiiamatme 2

IE 66 CIR, cee cccccesererseencsnisssintinenatninmidmmmae 12

Argument:

The federal discovery rule in Section 9658 has no effect

on North Carolina’s statute of repose .....0...0........0:c0cc00000-- 15

A. The text and structure of Section 9658 make

clear that it has no application to the ten-year

peetas 6 SRD BA... ccaicrenieationaicniaeane 15

Bk. The statutory context confirms that Congress

meant only to create a discovery rule and not to

preempt statutes of repose ..................ccccceceseeeeeeeees 25

C. Other features of the statute confirm that Section

9658 does not preempt statutes of repose.............. 29

CISION .caccscsecececescesensechstncustentusaiagiediiaiansdadiaaiaiamiaamannn 34

SURREY CITI, 01 cicecercesensecnsssetesesissseassatananmininalamdalaaaee la

TABLE OF AUTHORITIES

Cases:

Altria Grp., Inc. v. Good, 555 U.S. 70 (2008) 20000000... cee. 29

Anderson v. United States, 669 F.3d 161

CE CaP, BD nseecessccceeeinienniintienmaiae 2, 28, 29

Augutis v. United States, 732 F.3d 749 (7th Cir.

TIED cveceecensecssicnsincssiiitenitaititladisitiiaiididbasdiimaaasns nn 29

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192 (1997) .........0.....0.0.. 19

Beckley Capital Ltd. P'ship v. DiGeronimo,

SG FG Ge Cia Cai BO ceccncrctctactacstianstncisnsiseeemammnaan 22

Black vy. Littleyohn, 325 S.E.2d 469 (N.C. 1985)............. 3, 19

Bolick v. American Barmag Corp., 293 S.F..2d 415

CRD, Wii vacvcccsncesssissscasessiastasnntsestiieainataneasadiaaaeaeeaneee 24

Cases—Continued: Page

Boudreau v. Baughman, 368 S.E.2d 849

TAI cli ilsl ai eetsaataiccenebidgaensanaseccsncosnessees 27, 28

BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006) 000. 30

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

| 31

Chadbourne & Parke LLP y. Troice, No. 12-79, Slip

ie smeinninenncconostinns 30

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) aaaieiaened 23

Federal Hous. Fin. Agency v. UBS Ams. Inc.,

ee Ae

First United Methodist Church v. United States

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

Genied, 493 U.S. 1070 (1990) ..............c..ceccocecceseesceseceeeees aa

Goad vy. Celoter Corp., 831 F.2d 508 (4th Cir. 1987),

cert. denied, 487 U.S. 1218 (1988) .......0......ccceeceeeeee 27, 28

Graham Cnty. Sou & Water Conservation Drst. v.

l/nited States ex rel Wilson, 545 U.S. 409 (2005) ..0........ 19

Heimeshoff v. Hartford Life & Accident Ins. Co.,

I incl isesemeentiaigneenesbarcecseroreess 19

Huddleston vy. United States, 485 Fed. Appx. 744 (6th

Cir. 2012), cert. denied, 133 S. Ct. 859 (2018) 000. 29

Jones vy. United States, 789 F. Supp. 2d 883 (M.D.

a aaaidtlpaatensnenbonennintion 29

Kucana v. Holder, 558 U.S. 233 (2010) ........0.ccccceceeeeeees 33

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gul-

NR CED TUNE GEE CINE Du cisccccocsccnsssesecessssossconceoonseoes 21, 22

McDonald v. Sun Oil Co., 5A8 F.3d 774 (9th Cir.

2008), cert. denied, 557 U.S. 919 (2009) 000. 11,19

National Credit Union Admin. Ba. vy. Nomura

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

2013), petition for cert. pending, No. 13-576 (filed

chanel aaa seeteiestetennepiniencinnassosansseeese 22, 2!

Cases—Continued: Page

Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Tne. SOG FS 112 (Bd Cit. BO10)......00..cseeeccccsccsssecsssseseseeees 31

Smith v. United States, 430 Fed. Appx. 246 (5th Cir.

SIDED \siiceisishiiecishichaisenieeniainniibiesiciileeiibilanicilidenninstianniniabiabommadmiennataeaia 29

Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988)............. 23

United States vy. Atlantic Research Corp., 551 U.S.

ER vinntstnschtiniaeanientinappdinniiaamimmnanniaiemnenmnmnene 31

United States v. Bestfoods, 524 U.S. 51 (1998)... 3

Wayne v. Tennessee Valley Auth. , 730 F.2d 392 (Sth

Cir. 1984), cert. denied, 469 U.S. 1159 (1985) «0.000... 28

Statutes:

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, Pub. L.

No. 96-510 (42 U.S.C. 9601 et 8€q. ).........00cccccccceeceeeeneees 1,15

Oe ee aie cata icici tecinaieasane cite tacks cdaeaemtanialaediiaatiata 3

a as ID staiiccscasertcseciiteiirensincssctecsantouaseneennlaneniees 7

Se es I cbintestccinscinicisansecisencastnachaomsiensscidebeconmaeneniaiais 3

42 U.S.C. 9607(a) ............... SSRIS NOR ES CLES Fy is Shee 31

Oe ls i etesiniissinssiiscinikdetcbanshisdendintassetanihiodetachenaimemedaients 3

42 U.S.C. 9613(f)............... icublateiscedileeddidpiabebsdesoancumaananaal 31

Oe ies NE inkisciuikistinnstiesshihignesnastinsindnaniangaacnaabebeniah 31

gi eR Re ene 31

as MD dicicictacssnsctcchcsiinieshshemnilasentineignanininaatainintat 33

I es NI Discisas cssaicscicdsnndnencietisisnthiodetedascssummsaniaanie’ 4

a RR iiiaiishinnitsiiciaisccscitieiibtinadinesinaasianimeensaniapantat passim

ite ii cricictinciierncanicianinstcctintigeaencneniiiiteds passim

ee 16, 23, 30, 33

a rr siikeraccetinicinthesisaicincimerensinncssanasinnin 16

ae IE eaten tusetasodsinsedtiesacanscaiiaitinnciiadil passim

VI

Statutes and regulations—Continued: Page

I rs I ccrictinincccnsescnicnncienisnceesciisnttinnsimtsetaniniati ll

EE eiedbeiitisceeistinintiserinsnaiapiinntensciniuibauineain 16, 18

Sy eee STE seiscsiniciecersscnipesecccetescnsioatebiiasiniantanid 7

42 U.S.C. 9658(D)(4)(A) .......eeecccceseeeeseeseeeeees 16, 17, 18, 25

Federal Tort Claims Act, 28 U.S.C. 2671 et seq. ............ 1, 28

Be i sc ccetcsteicritcicesiseinavigtiinicdiapintceiniainaiisidaiaiaiteninieniaiiin 29

Be CE ceetetiincsentitieniiatonesisidclanonnimemiicchiciniententn ]

a ikiiniesicisnspineeticianshilihinsinnitisaaiesiicbioiisighediealipin 28

Nisei ciaicsiaciinaeicittiinlissiimatiatdiiiaaticiabinistnieiisan 1,19

Securities Act, 15 U.S.C. 77a, 15 U.S.C. 77m ......0..0 cee. 23

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, Tit. II, § 203,

Py SI Dicsinceiieiiddininitidatisinisietindnntatisinimniiianinenteinianiannians 6, 27

ee I cic scalcdacineticia celiac eitiasarbaaiaddaai dl 22

a ee: ices citetiitickciiehnithaiiticn 22

Ie i cesiemaeienanl 22, 23

I a aetna ination 23

N.C. Gen. Stat. (2011):

Pere hscesatesicenieibidisdebliaieiiecssieaitneibinnisdealbciaitaanasicibiaeidiaiabedeiaiel 17

Hy Wttaiasseatessadsnlerssviensueinciirmshuinaelicininosdeciiaitotaieaaniispeaibistoesbdibaniianinsbienin 2

SR weiisihaiiaiienitnuaininncinnniantitipnichmnieeisingeiitiaiaten passim

Miscellaneous:

131 Cong. Rec. (1985):

ilk, Tanith leuiadiediadiahsaiiniclataeanhaaaliiadaieiaddndanddenentaniattshtimniaiin’ 32

a inrcssticsisheepiacecmbisionennaitianitantetiuinsesinsdetaibiatciaddueaiciaiila 32

In, SEU Nicatideensiiiiniabalesinibiabeiaihiesheiabpeasielaniaendindaubenniannibecnninie 32

Vil

Miscellaneous—Continued: Page

77 Fed. Reg. (Mar. 15, 2012):

i SAEEURS eee Ar Ne Co OORT RE EE 7

i SEIT ciekicheetcnssiiincihtcpunieainguemncistesipdteumniietaiiicitstnastandananiiii 7

i Tiana ci sitniiniblep casinioeinccaditciemnleiaietentobaeeeaiaaiaieiemntileeiaie 7

EASE ee ea ee eee A ee RC oem Mee NT 7

63B Am. Jur. 2d Products Liability (2010) -.......cccccc00--- 28

Black's Law Dictionary:

RE ERE ee a ene eae een aS RENE 24

EERO CRE er a ne ee ee a 9

H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. (1986)

Injunes and Damages from Hazardous Wastes--

Analysis and Improvement of Legal Remedies:

A Report to Congress in Compliance unith § 301(e)

of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980

(P.L. 96-510) by the “Superfund Section 301(e)

Study Group,” S. Comm. on Env’t and Pub. Works,

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

Francis EF. McGovern, The Variety, Policy and Con-

stitutionality of Product Liability Statutes of Re-

OOS, TH MMM. TBs. TRG, Tear Cae Pecsarssccssecssececscceeccssnesccisnee 24

W. Page Keeton et al., Prosser and Keeton on the

Law of Torts (Sth €4. 19B4)........00:cccccocesssssescescsnesesseeees 19, 21

Restatement (Second) of Conflicts of Laws (1971) ............ 2s

In the Supreme Court of the Anited States

No. 13-339

CTS CORPORATION, PETITIONER

Vv.

PETER WALDBURGER, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

As AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The question presented is whether a provision of

the Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980 (CERCLA), 42

U.S.C. 9658, affects the operation of a North Carolina

state statute cutting off substantive liability ten years

after a defendant’s last relevant act or omission in a

case involving injury allegedly caused by hazardous

substances. The United States has a substantial in-

terest in the proper resolution of this question.

Although the United States may not be sued direct-

ly under state law, the substantive restrictions on

liability under state law, such as that in the North

Carolina statute, apply to claims against the United

States under the Federal Tort Claims Act (FTCA), 28

U.S.C. 2671 et seg. See 28 U.S.C. 1346(b)(1), 2674

(1)

2

(limiting the United States’ liability to circumstances

in which a private person would be liable under state

law); Anderson v. United States, 669 F.3d 161, 164-165

(4th Cir. 2011). To the extent that CERCLA is held to

preempt statutes like North Carolina’s, those statutes

would therefore also be unavailable to the United

States in negligence actions under the FTCA that

involve alleged exposure to hazardous substances.

The United States has a particular interest in the

interaction of CERCLA with the North Carolina stat-

ute because of ongoing litigation against the United

States under the FTCA involving allegations of con-

taminated drinking water at the Camp Lejeune Ma-

rine Corps Base in North Carolina. The multi-district

litigation panel has consolidated pretrial proceedings

in those cases in the Northern District of Georgia, and

the question presented in this case is currently pend-

ing before the Eleventh Circuit in connection with

those proceedings. See Bryant v. United States, No.

12-15424.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in an

appendix to this brief. App., infra, la-4a.

STATEMENT

1. a. North Carolina law establishes a three-year

statute of limitations for a variety of contract and tort

claims. N.C. Gen. Stat. § 1-52 (2011). That provision

contains a discovery rule of accrual, under which a

cause of action for “personal injury or physical dam-

age to claimant’s property shall not accrue until bodily

harm to the claimant or physical damage to his prop-

erty becomes apparent or ought reasonably to have

become apparent to the claimant, whichever event

first occurs.” Jd. § 1-52(16). The application of this

3

statute of limitations is not directly at issue in this

case.

In addition to the three-year statrte of limitations,

North Carolina law also includes a separate time limit,

which North Carolina courts charac.vrize as a statute

of repose, providing that “no cause of action shall

accrue more than 10 years from the last act or omis-

sion of the defendant giving rise to the cause of ac-

tion.” N.C. Gen. Stat. § 1-52(16). That provision is a

substantive one that extinguishes a cause of action

based on when the defendant's last act or omission

occurred, regardless of whether any plaintiff was

injured at that time. Black v. Littlejohn, 325 S.E.2d

469, 474-475 (N.C. 1985). This case presents the ques-

tion whether this North Carolina statute applies to

extinguish the claims at issue here, or whether the

statute is instead modified by federal] law in a way that

would render the claims timely.

b. In 1980, Congress enacted CERCLA to address

releases and threatened releases of hazardous sub-

stances. CERCLA authorizes entities, including the

federal government, to perform cleanup operations

and then recover the costs from responsible parties.

United States v. Bestfoods, 524 U.S. 51, 55 (1998). The

statute thus creates a federal cause of action for gov-

ernmental and private parties seeking to recover

cleanup costs. 42 U.S.C. 9604, 9607, and 9613. It does

not, however, create a federal cause of action for per-

sonal injuries or property damage. Instead, CERCLA

as originally enacted directed preparation of an expert

report to assess “the adequacy of existing common law

and statutory remedies in providing legal redress for

harm to man and the environment caused by the re-

4

lease of hazardous substances into the environment.”

42 U.S.C. 9651(e)(1).

The resulting report recommended the creation of

a new federal administrative remedy for persons

harmed by exposure to hazardous substances, as well

as several changes to state tort law to facilitate recov-

ery in cases involving hazardous substances. [njuries

and Damages from Hazardous Wastes—Analysis

and Improvement of Legal Remedies: A Report to

Congress in Compliance with § 301(e) of the Compre-

hensive Environmental Response, Compensation,

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

fund Section 301(e) Study Group,” S. Comm. on Env't

and Pub. Works, 97th Cong., 2d sess. Pt. 1, at 178-251

(Comm. Print 1982) (Study Group Report); see id. at

252 (recommending that proposed reforms for person-

al injury actions also extend to claims involving “envi-

ronmental damage to private property”).

The Study Group Report recommended (at 240) a

number of changes to state tort law that it viewed as

necessary to “remove unreasonable procedural and

other barriers to recovery in court action for personal

injuries resulting from exposure to hazardous waste.”

The report recommended that States “adopt liberal

joinder rules” because “the complex nature of hazard-

ous waste litigation makes it important that the com-

bination of a number of plaintiffs in one lawsuit be

encouraged.” Jd. at 241, 242. The Study Group de-

termined that the absence of such liberal joinder rules

“in effect denies a plaintiff the opportunity to bring

the action at all, unless his claim is exceptionally

large.” Id. at 242.

The Study Group Report also recommended (at

243) that States “revise their substantive and proce-

+)

dural rules so as to hold contributors to injury or

damage jointly and severally liable” and consider “al-

ternative approaches to apportionment,” such as one

used “in third party nuclear liability in western Eu-

rope.” Without such reforms, the Study Group

warned, “[s]ubstantive and procedural rules that re-

quire * * * specific allocation will defeat the plain-

tiffs claim.” Jbid.

Because of the “difficult” nature of causation ques-

tions in this area, the Study Group Report also rec-

ommended (at 245) that the States “develop and en-

hance causes of action that apply strict liability to the

generation, transportation and disposal of hazardous

wastes.” The Study Group expressed concern that,

without such reforms, continued application of ordi-

nary negligence principles would impose “significant

barriers to the recovery of damages for injuries from

exposure to hazardous waste.” [bid.

The Study Group Report also made recommenda-

tions (at 240-241) regarding time limits for bringing

claims involving hazardous substances. The report

observed that, with respect to statutes of limitations, a

“small number of states still follow the so-called tradi-

tional rule that the cause of action accrues from the

time of exposure” and that “[a]nother small number of

states has not yet clearly” addressed the question

whether the traditional rule should apply. /d. at 240.

Because of long latency periods from harm by hazard-

ous substances, the Study Group expressed concern

that, in those States that followed the traditional rule,

“the cause of action will usually be time barred when

the plaintiff discovers his hurt.” /d. at 240-241. The

group therefore “recommend(/ed] that all states that

have not already done so, clearly adopt the rule that

6

an action accrues when the plaintiff discovers or

should have discovered the injury or disease and its

cause.” /d. at 241. In addition, the Study Group sepa-

rately suggested “repeal of the statutes of repose

which, in a number of states have the same effect as

some statutes of limitations in barring plaintiffs claim

before he knows that he has one.” bid.

When Congress amended CERCLA in 1986, it act-

ed on only one of the Study Group’s many recommen-

dations: that involving the discovery rule for state

statutes of limitations. Congress did not create a

federal administrative remedy, preempt state joinder

laws, modify state rules of joint and several liability,

or establish a regime of strict liability for tort actions.

Pet. App. 34a (Thacker, J., dissenting). Instead, in a

provision titled “State Procedural Reform,” Pub. L.

No. 99-499, § 203, 100 Stat. 1695 (capitalization al-

tered), Congress “provide[d}] for a Federal com-

mencement date for State statutes of limitations

which are applicable to harm which results from expo-

sure to a hazardous substance.” H.R. Conf. Rep. No.

962, 99th Cong., 2d Sess. 261 (1986).

Specifically, Congress adopted a limited preemp-

tion of “the applicable [state-law] limitations period,”

which is defined to mean “the period specified in a

[state] statute of limitations during which a civil ac-

tion [relating to exposure to hazardous substances]

may be brought.” 42 U.S.C. 9658(a)(1) and (b)(2).

Congress established that these statutes of limitations

cannot begin to run before the “federally required

commencement date,” which is the date on which

plaintiffs “knew (or reasonably should have known)”

that their injuries “were caused or contributed to by

the hazardous substance or pollutant or contaminant

7

concerned” (with a more generous rule for minors or

persons who are incompetent). 42 U.S.C. 9658(a)(1)

and (b)(4).

2. This case concerns property in North Carolina

that formerly housed a plant for the manufacturing

and disposal of electronics. Pet. App. 7a. The plant

was run by petitioner and its corporate predecessor

until 1985. /d. at 7a & n.3. In 1987, petitioner sold the

property to Mills Gap Road Associates. /d. at 7a.

Mills Gap eventually sold portions of the property to

individuals. /d. at 8a. The respondents in this case,

who were plaintiffs in the district court, are purchas-

ers of the property and adjacent landowners. /bid. In

2009, according to the complaint, two of the respond-

ents learned from the Environmental Protection

Agency (EPA) that their well water was contaminat-

ed. /d. at 55a (Compl. para. 34). Respondents allege

that the water was contaminated while petitioner was

running its plant. /d. at 55a-56a (Compl. paras. 30-

38).'

1

In 2012, the EPA added the property at issue here to the

CERCLA National Priorities List (NPL). 77 Fed. Reg. 15,276,

15,280 (Mar. 15, 2012). The NPL “is a list of national priorities

among the known or threatened releases of hazardous substances,

pollutants, or contaminants throughout the United States” and “is

intended primarily to guide the EPA in determining which sites

warrant further investigation to assess the nature and extent of

public health and environmental risks associated with a release of

hazardous substances, pollutants or contaminants.” /d. at 15,277

(citing 42 U.S.C. 9605(a)(8)(B)). The NPL “does not assign liabil-

ity to any party or to the owner of any specific property,” and a

parcel’s inclusion on the list “does not mean that any remedial or

removal action necessarily need be taken.” /d. at 15,278. Petition-

er has filed a petition for review in the United States Court of

Appeals for the District of Columbia Circuit challenging addition

8

Respondents instituted this state-law nuisance ac-

tion against petitioner in 2011. Pet. App. 9a. They

seek “reclamation” of “toxic chemical contaminants

belonging to [petitioner], remediation of the environ-

mental harm caused” by the chemicals, and “monetary

damages in an amount that will fully compensate them

for all the losses and damages they have suffered,

* * * and will suffer in the future.” /d. at 57a.

Given that petitioner sold the property 24 years be-

fore respondents filed suit, petitioner moved to dis-

miss the claim based on the North Carolina statute,

discussed above, which states 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.” N.C. Gen. Stat. § 1-52(16); see Pet. App. 9a.

Respondents do not contest that, by its terms, the

North Carolina statute of repose would bar this suit.

Instead, respondents urge that the statute of repose is

preempted by 42 U.S.C. 9658. See Pet. App. 9a, 44a.

Accepting the recommendation of a magistrate

judge, the district court granted petitioner’s motion to

dismiss. Pet. App. 37a-39a; see id. at 46a (magis-

trate’s determination that Section 9658 does not

preempt North Carolina’s “substantive” ten-year limi-

tation).

3. In a divided decision, the court of appeals re-

versed. Pet. App. 1a-36a.

a. The panel majority acknowledged the distine-

tions between statutes of limitations and statutes of

repose. Pet. App. 9a-lla. A statute of limitations, it

explained, operates to “encourag{e] prompt resolution

of disputes by providing a simple procedural mecha-

of the property to the NPL. See CTS Corp. v. EPA, No. 12-1256

(oral argument scheduled for Apr. 10, 2014).

9

nism to dispose of stale claims.” /d. at 10a (quoting

First United Methodist Church v. U.S. Gypsum Co.,

882 F.2d 862, 866 (4th Cir. 1989), cert. denied, 493

U.S. 1070 (1990)). “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 the resulting

injury.” Jbid. (quoting Black’s Law Dictionary 1546

(9th ed. 2009)) (alterations in original). The court also

explained that statutes of limitations are procedural in

nature, while statutes of repose are “substantive

grants of immunity based on a legislative balance of

the respective rights of potential plaintiffs and de-

fendants,” and that, with respect to statutes of repose,

“considerations of the economic best interests of the

public as a whole’ are at play.” Jbid. (quoting First

United Methodist Church, 882 F.2d at 866).

The panel majority recognized that the ten-year

period at issue in this case “bars lawsuits ‘brought

after a specified time since the defendant acted,’ with-

out regard for the plaintiffs knowledge of his harm.”

Pet. App. 10a (quoting Black’s Law Dictionary 1546).

The court thus acknowledged that the provision is

properly classified as a statute of repose. /bid.

The majority concluded that Section 9658 is “am-

biguous” as to whether it preempts statutes of repose,

or operates only on statutes of limitations. Pet. App.

lla. The court noted that the federal statute repeat-

edly refers to statutes of limitations, but never refers

to statutes of repose. /d. at lla-12a. The court thus

concluded that the language “could reasonably lead to

a conclusion that its application is limited only to stat-

utes of limitations.” /d. at 12a.

10

The court, however, then discussed “an alternate

reading” of the provision that would also encompass

statutes of repose. Pet. App. 12a. It relied on the fact

that the North Carolina statute of repose “is located

with the statutes of limitations” in the North Carolina

statute book, ibid.; that, in the court’s view, the North

Carolina statute of repose falls within the scope of the

federal statute because it is “(1) a ‘period,’ (2) ‘speci-

fied in a statute of limitations,’ (3) ‘during which a civil

action . . . may be brought’” and thus “comports

with the definition of ‘applicable limitations period,’”

ibid. (quoting 42 U.S.C. 9658(b)(2)); and that the stat-

ute of repose’s “commencement date . . . is earlier

than the federally required commencement date,” 2d.

at 12a-13a (quoting 42 U.S.C. 9658(a)(1)).

Having determined that the text of Section 9658 is

ambiguous, the court of appeals concluded that it was

required to adopt a “liberal construction” because

CERCLA is a “remedial statute[].” Pet. App. l5a

(internal quotation marks omitted). The court accord-

ingly held “that the federally required commencement

date in [Section] 9658 preempts North Carolina’s ten-

year limitation on the accrual of real property claims.”

Id. at 16a.

b. Judge Thacker dissented. Pet. App. 19a-36a.

The dissent noted that statutes of limitations are

procedural devices designed to limit remedies while

statutes of repose are substantive provisions. /d. at

22a-23a. The two types of provisions, the dissent

observed, also operate differently: “Statutes of limita-

tions 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 rea-

sonable diligence,” id. at 22a, while “[s]tatutes of re-

1]

pose typically begin to run after ‘the occurrence of

some event other than the injury which gave rise to

the claim,’” id. at 23a (quoting McDonald v. Sun Oil

Co., 548 F.3d 774, 779 (9th Cir. 2008), cert. denied, 557

U.S. 919 (2009)).

The dissent noted that North Carolina law creates

both a three-year statute of limitations and a ten-year

statute of repose. Pet. App. 26a-27a. “But only the

three-year provision specifies a time period to bring a

cause of action after the right has accrued by opera-

tion of the discovery rule.” Jd. at 27a. By contrast,

‘{t]he 10-year provision specifies a time restriction

regardless of whether the right to bring the cause of

action could have otherwise accrued.” /bid.

The dissent also noted that, textually, “any applica-

tion [of Section 9658] to North Carolina’s statute of

repose is untenable.” Pet. App. 28a. The federal

statute is triggered if “the state ‘commencement date’

lis] ‘earlier than the federally required commence-

ment date,’” ibid. (quoting 42 U.S.C. 9658(a)(1)), and

“the commencement date is defined as the beginning

of the period in which a civil action may be brought,”

id. at 28a-29a (citing 42 U.S.C. 9658(b)(2)-(3)). “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.” /d. at 29a.

Accordingly, the dissent determined, Section 9658

“cannot graft neatly—or at all—onto the North Caro-

lina statute of repose so as to preempt its enforce-

ment.” Jbid.

12

SUMMARY OF ARGUMENT

CERCLA’s uniform federal discovery rule that

triggers the start of state statute of limitations peri-

ods in tort suits involving hazardous substances has

no effect on North Carolina’s statute of repose.

A. The federal statute at issue here, 42 U.S.C.

9658, requires use of a discovery rule for statutes of

limitations applicable to state tort cases involving

exposure to hazardous substances. Thus, the period

within which a cause of action may be brought does

not begin to run before the plaintiff has had an oppor-

tunity to discover the injury and its connection to

hazardous substances.

North Carolina has a three-year statute of limita-

tions, and, under state law, that three-year period

does not begin to run until the plaintiff has discovered

the injury. Here, the discovery of the injury also

revealed that the injury was caused by hazardous

substances. Thus, without reference to CERCLA, the

applicable limitations period did not begin to run here

until respondents discovered that their land had been

exposed to hazardous substances. The federal statute,

which applies only when a State’s applicable limita-

tions period begins to run earlier than the date on

which the plaintiff discovers the injury and its cause,

thus has no application in this case.

The court of appeals mistakenly concluded that

Section 9658 preempts North Carolina’s statute of

repose, which eliminates causes of action once ten

years have elapsed after the defendant’s last act or

omission. Section 9658 applies only to “the applicable

limitations period,” which it defines as the “period

specified in a statute of limitations during which a civil

action * * * may be brought.” 42 U.S.C.

13

9658(b)(2). North Carolina’s statute of repose does

not establish such a period. It begins to run on the

date of the defendant’s last relevant act or omission

and without any consideration of the time of any inju-

ry to the plaintiff or the accrual of his cause of action.

It is thus not the applicable period when a civil action

“may be brought,” ibid., and is unaffected by Section

9658.

Had Congress intended to preempt state statutes

of repose, it would not have done so by referring to

the “period specified in a statute of limitations during

which a civil action * * * may be brought.” 42

U.S.C. 9658(b)(2). Moreover, adopting a uniform

federal discovery rule (as is done in Section 9658)

would not have been a sensible means to achieve the

goal of displacing all other time periods, whether

characterized as statutes of limitations or statutes of

repose. Discovery rules are common in ordinary stat-

utes of limitations, so Congress’s choice to adopt a

federal discovery rule in that context was not surpris-

ing. But discovery rules and statutes of repose are

fundamentally inconsistent, and there is no reason to

believe that Congress intended the novel step of forc-

ing an awkward combination of the two.

B. The statutory context of Section 9658’s enact-

ment likewise supports the conclusion that it does not

affect state statutes of repose. Congress legislated in

response to a report suggesting both that States adopt

a discovery rule for statutes of limitations and that

they repeal their statutes of repose. Congress was

thus expressly made aware that adoption of a discov-

ery rule would not affect the operation of statutes of

repose. Yet it decided to enact only a federally re-

14

quired discovery rule, and took no action with respect

to state statutes of repose.

In making that distinction, Congress hewed to a

recognized line between statutes of limitations, which

are considered procedural, and statutes of repose,

which are substantive limits on liability. The distinc-

tion is reflected in choice of law principles—under

which a court follows the forum State’s statute of

limitations but a statute of repose from the State

whose substantive law governs—and the FTCA—

which has a federal statute of limitations but does not

preempt state statutes of repose. Congress reasona-

bly followed the same approach here, making only a

tailored alteration to the States’ procedural law relat-

ed to tort actions involving hazardous substances, but

not altering the substance of those actions.

C. Even if Section 9658 were considered unclear on

the question whether it applies to a statute of repose,

its structure and purpose suggest it should be con-

strued against preemption on a matter of traditional

state authority. The court of appeals ignored that

principle, even though it thought the statute ambigu-

ous. Instead, the court mistakenly relied on the canon

that remedial statutes like CERCLA must be con-

strued liberally.

The purpose of CERCLA is to promote cleanup of

hazardous substances and to require responsible par-

ties to bear the costs of that cleanup, not to advantage

tort plaintiffs in all respects. Indeed, when Congress

adopted Section 9658, it declined to adopt many

measures that had been proposed to strengthen tort

plaintiffs’ ability to recover damages based on expo-

sure to hazardous substances. In particular, Congress

declined to create a new federal administrative reme-

15

dy, and it rejected all proposals to enact substantive

changes to state tort law. Instead, Congress sup-

planted state procedural law in one narrow respect.

That limited preemption should not be read to over-

ride States’ separate substantive determinations, such

as those embodied in statutes of repose, regarding the

content of state-law causes of action.

ARGUMENT

THE FEDERAL DISCOVERY RULE IN SECTION 9658

HAS NO EFFECT ON NORTH CAROLINA’S STATUTE OF

REPOSE

The Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA),

42 U.S.C. 9601 et seq., alters a State’s statute of limi-

tations governing state-law tort actions involving

hazardous substances in one limited respect: It estab-

lishes a federal discovery rule for the commencement

of the limitations period and requires its use if state

law would provide for an earlier commencement date.

That provision has no application to North Carolina’s

statute of repose, a substantive limit on liability de-

termined exclusively by reference to the defendant’s

actions, not plaintiff's injury or ability to bring suit.

A. The Text And Structure Of Section 9658 Make Clear

That It Has No Application To The Ten-Year Period

At Issue Here

1. CERCLA creates an “[e}xception” to the com-

mencement date of state statutes of limitations as

applied to state-law suits involving hazardous sub-

stances. 42 U.S.C. 9658(a)(1). Its operative provision

directs that

if the applicable limitations period for such ac-

tion (as specified in the State statute of limita-

16

tions or under common law) provides a com-

mencement date which is earlier than the feder-

ally required commencement date, such period

shall commence at the federally required com-

mencement date in lieu of the date specified in

such State statute.

Ibid. “[T)he statute of limitations established under

State law shall apply” in all other respects. 42 U.S.C.

9658(a)(2).

The provision goes on to define the terms used in

the exception it creates to operation of state statutes

of limitations. See 42 U.S.C. 9658(b). It defines “the

applicable limitations period” as “the period specified

in a statute of limitations during which a civil action

[relating to exposure to hazardous substances] may be

brought.” 42 U.S.C. 9658(b)(2). It defines “com-

mencement date” as “the date specified in a statute of

limitations as the beginning of the applicable limita-

tions period.” 42 U.S.C. 9658(b)(3). And it provides

that the “federally required commencement date”

generally means “the date the plaintiff knew (or rea-

sonably should have known) that the personal injury

or property damages * * * were caused or con-

tributed to by the hazardous substance or pollutant or

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

Whether Section 9658(a)(1) applies in a given case

turns on a comparison between the beginning of the

period when a civil action “may be brought” under

state law and the “federally required commencement

date,” 42 U.S.C. 9658(a)(1), (b)(2) and (3). If state law

provides that such a period begins to run before the

date the plaintiff knew (or reasonably should have

known) that the property damage was caused by a

hazardous substance, the federal commencement date

17

displaces state law. 42 U.S.C. 9658(b)(2), (3) and

(4)(A). State law continues to govern in all other re-

spects. 42 U.S.C. 9658(a)(2).

Under North Carolina law, a three-year statute of

limitations specifies the period during which a civil

action may be brought. N.C. Gen. Stat. § 1-52(16); see

id. § 1-15(a) (“Civil actions can only be commenced

within the periods prescribed in this Chapter, after

the cause of action has accrued.”). That three-year

period does not begin to run until “damage to [the

plaintiffs} property becomes apparent or ought rea-

sonably to have become apparent.” /d. § 1-52(16).

There is no dispute that North Carolina’s three-year

statute of limitations satisfies the definition of “the

applicable limitations period” established by Section

9658. 42 U.S.C. 9658(a)(1). It is a “period specified in

a statute of limitations during which a civil action

[relating to exposure to hazardous substances] may be

brought.” 42 U.S.C. 9658(b)(2); see N.C. Gen. Stat.

§ 1-15(a).

Because North Carolina’s three-year statute of lim-

itations does not begin to run until “damage to [the

plaintiff’s] property becomes apparent or ought rea-

sonably to have become apparent,” N.C. Gen. Stat.

§ 1-52(16), the state-law commencement date here is

the date respondents discovered that their wells were

contaminated. The federal commencement date in

this case would be the same: When respondents dis-

covered the contamination, they also “knew * * *

[that] the property damages * * * were caused

* * * by the hazardous substance,” 42 U.S.C.

9658(b)(4)(A). See Pet. App. 55a (Compl. para. 34).

Accordingly, Section 9658, which applies only when

“the applicable [state] limitations period * * *

18

provides a commencement date which is earlier than

the federally required commencement date,” 42

U.S.C. 9658(a)(1), has no application to North Caroli-

na’s three-year statute of limitations as applied here.*

2. The court of appeals believed that Section 9658

was “ambiguous” on the question whether it preempt-

ed North Carolina’s ten-year statute of repose, and

the court ultimately answered that question affirma-

tively. Pet. App. lla; see id. at 14a-l6a. The court

was incorrect in its finding of ambiguity and in its

ultimate conclusion.

a. As noted above, Congress defined “the applica-

ble limitations period” relevant to Section 9658 as the

“period specified in a statute of limitations during

which a civil action * * * may be brought,” 42

U.S.C. 9658(b)(2), and the “commencement date” as

the start of that period, 42 U.S.C. 9658(b)(3). Section

9658 thus addresses the starting point of the period

during which “the plaintiff can file suit and obtain

relief,” t.e., the point at which he first has “a complete

* Under different circumstances, the commencement date for the

North Carolina statute of limitations might be superseded by

Section 9658. North Carolina law incorporates a traditional dis-

covery rule, providing that the statute of limitations period begins

to run when “bodily harm” or “physical damage * * * becomes

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

Gen. Stat. § 1-52(16). By contrast, the federal provision includes

an “enhanced discovery rule” (Pet. App. 2la & n.1 (Thacker, J.,

dissenting)) because it adds an element involving knowledge of

causation: the federal commencement date is the point at which

“the plaintiff knew (or reasonably should have known) that the

personal injury or property damages * * * were caused or

contributed to by the hazardous substance.” 42 U.S.C.

9658(b)(4)(A). This difference between the two discovery rules is

not implicated here.

19

and present cause of action.” Bay Area Laundry &

Dry Cleaning Pension Trust Fund v. Ferbar Corp.,

522 U.S. 192, 201 (1997) (Bay Area Laundry) (citation

omitted).

The statute of repose in N.C. Gen. Stat. § 1-52(16)

is not that period. The ten-year period commences on

the date of “the last act or omission of the defendant

giving rise to the cause of action,” ibid., regardless

whether the cause of action actually exists at that

time. McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th

Cir. 2008) (A statute of repose “does not require inju-

ry before it operates.”), cert. denied, 557 U.S. 919

(2009). The ten-year period thus runs without any

reference to when a plaintiff’s action may be filed: A

defendant’s last act or omission may precede the

plaintiff’s injury, and a plaintiff typically may not

initiate a civil action before suffering an injury. Bay

Area Laundry, 522 U.S. at 200-201 (contention that an

ordinary statute of “limitations period commences at a

time when the [plaintiff] could not yet file suit” is

“inconsistent with basic limitations principles”); see

Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409, 418-419

(2005) (discussing “the default rule that Congress

generally drafts statutes of limitations to begin when

the cause of action accrues”); W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts § 30, at 165

(5th ed. 1984) (Prosser and Keeton) (“It follows that

the statute of limitations is generally held not to begin

to run against a negligence action until some damage

has occurred.”); see also Heimeshoff v. Hartford Life

& Accident Ins. Co., 134 S. Ct. 604, 610-611 (2013)

(discussing default rule but noting that Congress can

make exceptions to it).

20

North Carolina courts have interpreted provisions

like the ten-year limit in N.C. Gen. Stat. § 1-52(16) as

“unyielding and absolute barrier[s] that prevent{| a

plaintiff's right of action even before his cause of ac-

tion may accrue, which is generally recognized as the

point in time when the elements necessary for a legal

wrong coalesce.” Black v. Littlejohn, 325 S.E.2d 469,

475 (N.C. 1985). Such a provision, which the North

Carolina Supreme Court has termed a “period of re-

pose,” id. at 474, is thus nota “period * * * during

which a civil action * * * may be brought.” 42

U.S.C. 9658(b)(2); see Pet. App. 29a (Thacker, J.,

dissenting) (Section 9658 “cannot graft neatly—or at

all—onto the North Carolina statute of repose,” which

“does not provide a beginning or ‘commencement date’

as that term is defined.”). It is accordingly not an

“applicable limitations period” (42 U.S.C. 9658(a)(1))

affected by Section 9658.

In this case, for example, the complaint alleges that

respondents first learned of the contamination in 2009,

Pet. App 55a (Compl. para. 34), and they filed suit in

2011, id. at 9a. Because North Carolina has a discov-

ery rule, respondents’ action was timely filed under

the three-year statute of limitations. The barrier to

respondents’ cause of action is not the commencement

date of the period during which a civil action could be

brought—the matter addressed by 42 U.S.C. 9658.

Instead, it is the operation of the statute of repose

that substantively extinguished their cause of action.

b. The court of appeals did not explain how the

ten-year period in the statute of repose could be un-

derstood as the period during which a civil action

could be brought for purposes of Section 9658. In-

stead, the court simply stated that the statute of re-

21

pose was categorically “preempted.” Pet. App. 18a.

That approach was misconceived.

Congress did not “preempt” any state time limita-

tions in their entirety, but rather modified certain

state limitations periods by prohibiting them from

beginning to run until the plaintiff could discover both

the injury and its cause. That choice makes perfect

sense in the context of ordinary state statutes of limi-

tations, most of which already embodied discovery

rules in one form or another at the time Congress

enacted Section 9658. Study Group Report, Pt. 2, at

B-1; Prosser and Keeton § 30, at 166-167. Congress’s

limited intent was thus to address tort claims in those

States that had not adopted the majority rule, and to

ensure that all States had a discovery rule that de-

layed accrual not only until the discovery of the inju-

ry, but also until the connection to hazardous sub-

stances could reasonably have been discovered, see

n.2, supra.

By contrast, if Congress intended also to preempt

state statutes of repose, which can begin to run before

a plaintiff is even injured, it would not have sensibly

done so by layering a discovery rule on top of those

provisions. Repose periods are usually much longer

than traditional limitations periods—here, ten years

as opposed to three—and a discovery rule would ren-

der them entirely redundant with the shorter period.

Indeed, a statute of repose triggered by a plaintiffs

discovery of his injury would not be a statute of re-

pose at all; by its nature, the period begins to run

based on the defendant’s actions alone.

This Court’s discussion in Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991)

(Lampf), of the limitations periods under the securi-

22

ties laws is illustrative of this point. As a general

matter, those limitations periods are “one year after

discovery and * * * three years after violation.”

Id. at 355 n.2. The Court in Lampf declined to apply

“the doctrine of equitable tolling” to the three-year

period, explaining that such tolling is “fundamentally

inconsistent” with the purpose of that provision to

“impose an outside limit” on substantive liability and

to “serve as a cutoff.” Jd. at 363 (citation omitted).

Imposing a discovery rule on a state statute of repose

would be “fundamentally inconsistent” (ibid.) with

such a time limit for the same reason.

ce. Given these textual manifestations of Congress’s

limited intent, Section 9658 contrasts markedly with

other statutes in which Congress chose to override all

otherwise applicable time limitations.

In one set of such statutes, Congress created a

new, exclusive time limitation applicable to claims

brought by specified federal agencies as conservator,

receiver, or liquidating agent for failed financial insti-

tutions. Courts of appeals have correctly construed

such limitations periods to apply to the exclusion of

any other time limitation that might otherwise apply.

See National Credit Union Admin. Bd. v. Nomura

Home Equity Loan, Inc., 727 F.3d 1246, 1254-1267

(10th Cir. 2013) (construing 12 U.S.C. 1787(b)(14)),

petition for cert. pending, No. 13-576 (filed Nov. 8,

2013); Federal Hous. Fin. Agency v. UBS Ams. Inc.,

712 F.3d 136, 141-144 (2d Cir.) (construing 12 U.S.C.

4617(b)(12)), motion for leave to intervene and file a

pet. for writ of cert. denied, 134 S. Ct. 372 (2013); see

also Beckley Capital Ltd. P’ship v. DiGeronimo, 184

F.3d 52, 57 (Ist Cir. 1999) (construing 12 U.S.C.

1821(d)(14)). The text, context, and history of those

23

provisions make clear that Congress intended an

exclusive, uniform time limitation to apply to actions

brought by the designated federal agencies. E.g.,

UBS Ams., 712 F.3d at 141 (noting that 12 U.S.C.

4617(b)(12) “sets forth ‘the applicable statute of limi-

tations with regard to any action brought by [FHFA|]

as conservator or receiver’”) (quoting 12 U.S.C.

4617(b)(12)(A) (emphasis and alteration in original).

Here, by contrast, Congress did not enact a new

time limitation to supersede all others. Instead, Con-

gress altered particular preexisting state statutes of

limitations in only one limited respect—by changing

the date on which the cause of action accrued. Con-

gress otherwise left time limitations unchanged, ex-

plicitly stating that those time limitations continue to

apply “le]xcept” to the extent that they are specifical-

ly superseded by federal law. 42 U.S.C. 9658(a)(2).

3. The court of appeals thought it significant that

the term “statute of limitations,” which repeatedly

appears in 42 U.S.C. 9658, has been used in some

contexts to refer to provisions that contain time limi-

tations that may be described as statutes of repose.

Pet. App. 13a. The Securities Act, for example, con-

tains a provision that precludes lawsuits brought more

than one year after the violation could reasonably

have been discovered, or more than three years after

the violation, 15 U.S.C. 77m; see pp. 21-22, supra, and

this Court has described this provision in its entirety

as a “statute of limitations.” E.g., Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 210 (1976); see Pet. App. 12a

(noting that the ten-year period at issue here appears

in a state enactment, N.C. Gen. Stat. § 1-52(16), that

may be described as a statute of limitations).

24

But the term “statute of limitations” has also been

used in a more precise sense, to describe only those

time limitations that bar “causes of action * * *

unless brought within a specified period of time after

the right accrued.” Black’s Law Dictionary 835 (5th

ed. 1979), quoted in Pet. App. 24a-25a; see Francis E.

McGovern, The Variety, Policy and Constitutionality

of Product Liability Statutes of Repose, 30 Am. U.L.

Rev. 579, 584 (1981) (describing statutes of repose as

“distinct from a statute of limitation because [they]

begin[|] to run at a time unrelated to the traditional

accrual of the cause of action”); Bolick v. American

Barmag Corp., 293 S.E.2d 415, 419 n.4 (N.C. 1982)

(“Because [the statute] attempts to bar absolutely

claims * * * after a period measured from a date

other than the date of accrual of those claims, it does

not constitute a statute of limitation.”) (internal quota-

tion marks omitted).

In the context of Section 9658, the only purpose of

which is to alter the date on which causes of action

first accrue, the term “statute of limitations” is most

naturally read to mean a time limitation that pre-

cludes actions that are not “brought within a specified

period of time after the right accrued.” Black’s Law

Dictionary 835. But regardless of whether the term

“statute of limitations” is given a broad or narrow

reading, as discussed above, the mechanism by which

42 U.S.C. 9658 operates has no effect on the ten-year

period at issue in this case.”

* The use of the term “statute of limitations” likewise did not

contro} the outcome in the cases in which Congress created a new,

exclusive time limitation applicable to particular categories of

claims. See pp. 22-23, supra. In that context, the term “statute of

limitations” “refers to the time limits in [the new timing provision]

25

B. The Statutory Context Confirms That Congress Meant

Only To Create A Discovery Rule And Not To Preempt

Statutes Of Repose

Although the text and structure of Section 9658 an-

swer the question presented in this case, the larger

statutory context reinforces that conclusion.

1. The Study Group Report that preceded Con-

gress’s enactment of Section 9658 drew a distinction

between altering the accrual date of a statute of limi-

tations and eliminating a statute of repose. That re-

port recommended “that all states that have not al-

ready 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.” Study

Group Report 241. Rather than waiting for States to

act, Congress in Section 9658 responded to that rec-

ommendation by prohibiting state-law actions from

accruing, for statute-of-limitations purposes, before

“the date the plaintiff knew (or reasonably should

have known) that the personal injury or property

damages * * * were caused or contributed to by

the hazardous substance or pollutant or contaminant

eoncerned.” 42 U.S.C. 9658(b)(4)(A).

The Study Group Report also recommended (at

241) “the repeal of the statutes of repose, which, in a

number of states have the same effect as some stat-

utes of limitation in barring plaintiffs claim before he

knows that he has one.” The Study Group’s separate

suggestion to repeal statutes of repose was necessary

because the creation of a discovery rule of accrual

would not itself affect the operation of such statutes.

itself * * * not the time limits in other statutes that [the

provision] replaces,” and it supplants all other limitations periods.

Nomura, 727 F.3d at 1257.

26

Congress took no action based on that recommenda-

tion concerning statutes of repose.

The Study Group’s analysis of the North Carolina

law at issue here confirms the distinction that was

before Congress at the time it enacted Section 9658.

An appendix to its report separated the States into

four categories: (1) those “that have adopted the dis-

covery rule by statute”; (2) those “that have achieved

a similar result by case law interpretation”; (3) those

that “have rejected the discovery rule”; and (4) those

that “have not clearly committed themselves to either

rule.” Study Group Report, Pt. 2 at B-6.* The report

placed North Carolina in the first category, recogniz-

ing that the State had already adopted a “discovery

rule.” Jd. at B-9 to B-10; see id. at B-3 to B-4 (dis-

cussing North Carolina’s formulation of the discovery

rule); see also id. at B-63; Study Group Report 29.

The report also noted that North Carolina had a

statute of repose. Study Group Report, Pt. 2, at B-9

to B-10, B-63. But the existence of the statute of re-

pose did not cause the report’s authors to put North

Carolina in a different category or otherwise distin-

guish the State from other jurisdictions that had al-

ready adopted discovery rules for their statutes of

limitations. The appendix thus confirms, in the specif-

ic context of the North Carolina statute at issue in this

case, the point made elsewhere in the Study Group

* The fact that discovery rules were sometimes created by “case

law interpretation” explains the reference in 42 U.S.C. 9658 to

limitations periods specified by “common law.” 42 U.S.C. 9658(a)(1).

Contrary to the panel majority’s reasoning, Pet. App. 13a-14a,

neither Congress’s reference to common law in the operative pro-

vision of 42 U.S.C. 9658 nor its decision not to repeat the phrase in

the definitional sections creates any ambiguity relevant to this case.

27

Report: Even if a State had a discovery rule (whether

imposed by state law or superseding federal law),

additional action would be needed to repeal the State’s

statute of repose. Congress took no such action.

2. Because “[t]he distinction between statutes of

limitations and statutes of repose corresponds to the

distinction between procedural and substantive laws,”

Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir.

1987), cert. denied, 487 U.S. 1218 (1988), it is unsur-

prising that Congress drew a line between them when

deciding how much state law to preempt. As reflected

in the title of the amendment, Congress decided to

adopt only a limited “procedural reform,” Pub. L. No.

99-499, § 203, 100 Stat. 1695 (capitalization altered),

while leaving to the States the substantive question of

whether a given plaintiff would be able to recover.

As the North Carolina Supreme Court has ex-

plained, “{o]rdinary statutes of limitations are clearly

procedural, affecting only the remedy directly and not

the right to recover.” Boudreau v. Baughman, 368

S.E.2d 849, 857 (1988). “The statute of repose, on the

other hand, acts as a condition precedent to the action

itself.” Ibid. “Unlike a limitation provision which

merely makes a claim unenforceable, a condition prec-

edent establishes a time period in which suit must be

brought in order for the cause of action to be recog-

nized.” Jbid. For those reasons, the statute of repose

is “a substantive definition of rights rather than a

procedural limitation on the remedy used to enforce

rights.” Jbid.; see Pet. App. 10a.

In drawing this same distinction in Section 9658,

Congress followed a familiar approach also used in

other areas of law. Under traditional choice-of-law

rules, for example, state courts routinely apply their

28

own statutes of limitations to claims arising under the

laws of other States. See Sun Oil Co. v. Wortman, 486

U.S. 717, 722 (1988) (noting that “[t]his Court has long

and repeatedly held that the Constitution does not bar

application of the forum State’s statute of limitations

to claims that in their substance are and must be gov-

erned by the law of a different state”); 683B Am. Jur.

2d Products Liability § 1417 (2010). At the same

time, however, a state court generally applies the

statute of repose of the State whose law provides the

substantive rule of decision in a case. E.g., Boudreau,

368 S.E.2d at 857 (adopting that rule and noting that

the “overwhelming weight of authority in other juris-

dictions accepts the characterization of statutes of

repose as substantive provisions in a choice of law

context”); Wayne v. Tennessee Valley Auth., 730 F.2d

392, 400-402 (5th Cir. 1984), cert. denied, 469 U.S.

1159 (1985); Restatement (Second) of Conflict of Laws

§ 143 (1971); Products Liability § 1418. That is be-

cause statutes of limitations, as procedural rules,

“express the public policy of the forum State in grant-

ing or denying access to its courts.” Goad, 831 F.2d at

511. Statutes of repose, by contrast, are substantive

laws that “reflect a State’s determination of the prop-

er relationship between the people and property with-

in its boundaries.” /bid.

Likewise, the Federal Tort Claims Act, 28 U.S.C.

2671 et seq., draws a distinction between a statute of

limitations and a statute of repose. Anderson v. Unit-

ed States, 669 F.3d 161, 164-165 (4th Cir. 2011). The

FTCA establishes a generally applicable federal stat-

ute of limitations, requiring claims to be “presented in

writing to the appropriate Federal agency within two

years after such claim accrues.” 28 U.S.C. 2401(b).

29

By contrast, because the substantive restrictions on

liability under state law apply to FTCA actions

against the United States, 28 U.S.C. 1346(b), 2674, a

State’s statute of repose applies in such actions and is

not preempted by the FTCA. Anderson, 669 F.3d at

164-165 (“Because statutes of repose are substantive

limitations on liability, an FTCA claim does not lie

against the United States where a statute of repose

would bar the action if brought against a private per-

son in state court.”); see Augutis v. United States, 732

F.3d 749, 753-754 (7th Cir. 2013); see also Huddleston

v. United States, 485 Fed. Appx. 744, 746 (6th Cir.

2012), cert. denied, 133 S. Ct. 859 (2013); Smith v.

United States, 430 Fed. Appx. 246, 247 (5th Cir. 2011).

But see, e.g., Jones v. United States, 789 F. Supp. 2d

883, 892 (M.D. Tenn. 2011).

C. Other Features Of The Statute Confirm That Section

9658 Does Not Preempt Statutes Of Repose

Even if Section 9658 were thought to be ambigu-

ous, the statute should not be interpreted to preempt

the ten-year limitation at issue here. In various con-

texts, this Court has assumed “that the historic police

powers of the States [are] not to be superseded by [a]

Federal Act unless that was the clear and manifest

purpose of Congress.” Altria Grp., Inc. v. Good, 555

U.S. 70, 77 (2008) (citation omitted) (first set of brack-

ets in original). “(T]he 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.” Pet. App. 35a (Thacker, J., dis-

senting).

Regardless of how that assumption might apply in

other contexts, here Section 9658 itself embodies

essentially the same principle. See generally Chad-

30

bourne & Parke LLP v. Troice, No. 12-79, Slip op. 13-

14 (Feb. 26, 2014) (construing statute not to preempt

state law in light of other provisions showing that

Congress had “purposefully maintain[ed] state legal

authority, especially over matters that are primarily

of state concern”). Section 9658 leaves the entire body

of state tort law, both procedural and substantive,

untouched, except for the commencement date for

state statutes of limitations (and, even there, sup-

plants them only if the commencement date is earlier

than that provided by federal law). 42 U.S.C.

9658(a)(1). In doing so, Congress expressly empha-

sized that “[e]xcept” as provided by the federal dis-

covery rule provision, “the statute of limitations estab-

lished under State law shall apply” in tort actions

involving hazardous substances. 42 U.S.C. 9658(a)(2).

The careful attention Congress paid to not preempt-

ing state law, except in one narrow respect, makes it

proper to resolve any ambiguity in Section 9658

against preemption.°

The panel majority failed entirely to address this

principle, even after concluding that the federal stat-

ute was “ambiguous,” Pet. App. lla. Instead, the

court of appeals resolved the perceived ambiguity in

light of its more general view that “Congress’s pur-

pose in enacting CERCLA was remedial.” /d. at 14a.

The court’s interpretive approach ignores the nature

* By contrast, where a federal agency is a plaintiff acting pursu-

ant to Congressional command, e.g., pp. 22-23, supra, any ostensi-

ble ambiguity in a statute is resolved by the well-established inter-

pretative rule that “statutes of limitations are construed narrowly

against the government,” which “is given the benefit of the doubt if

the scope of the statute is ambiguous.” BP Am. Prod. Co. v. Bur-

ton, 549 U.S. 84, 95-96 (2006).

31

of the specific provision at issue and the manner in

which it fits into the statute as a whole.

The overriding purpose of CERCLA is “to promote

the timely cleanup of hazardous waste sites and to

ensure that the costs of such cleanup efforts [are]

borne by those responsible for the contamination.”

Burlington N. & Santa Fe Ry. Co. v. United States,

556 U.S. 599, 602 (2009) (internal quotation marks and

citation omitted). To that end, “CERCLA imposes

strict liability for environmental contamination upon

four broad classes of [potentially responsible par-

ties}.” Jd. at 608 (citing 42 U.S.C. 9607(a)). “Once an

entity is identified as [a potentially responsible party],

it may be compelled to clean up a contaminated area

or reimburse the Government for its past and future

response costs.” /d. at 609. CERCLA provides a

further incentive for entities to assume responsibility

by prohibiting responsible parties from seeking con-

tribution from other entities that have settled their

liability with a State or with the federal government.

42 U.S.C. 9613(f)(2).

It is well established that CERCLA is a remedial

statute in its various provisions for the cleanup of

sites contaminated by hazardous substances. £.9.,

Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Inc., 596 F.3d 112, 120 (2d Cir. 2010) (““CERCLA,

remedial in nature, is designed to encourage prompt

and effective cleanup of hazardous waste sites.”).

Indeed, under certain circumstances, CERCLA itself

allows private parties that have incurred costs “asso-

ciated with cleaning up contaminated sites” to “recov-

er expenses” from responsible parties. United States

v. Atlantic Research Corp., 551 U.S. 128, 131 (2007)

(citing 42 U.S.C. 9607(a), 9613(f)); see 42 U.S.C.

32

9613(g)(2)-(3) (providing periods in which such actions

must be commenced); see also 42 U.S.C. 9658(a)(3)

(stating that nothing in Section 9658 “shall apply with

respect to any cause of action brought under [S]ection

9607”).

But it does not follow that helping private plaintiffs

to collect tort damages years after the contamination

has ended—and after the point at which the state

legislature determined as a substantive matter that

liability under state law should cease—fits into that

same federal remedial focus of the Act. Cf. 131 Cong.

Rec. 35,646 (1985) (statement of Rep. Kindness) (op-

posing creation of federal cause of action under CER-

CLA for tort damages related to hazardous substanc-

es because such a cause of action “ha[d] to do with

adjustment of private rights and liabilities and reme-

dies” and was thus “at odds” with purpose of CER-

CLA “to clean up hazardous waste sites in order to

protect the public interest”); 131 Cong. Rec. 35,639

(statement of Rep. Glickman) (explaining that CER-

CLA’s “real purpose * * * is the cleanup of haz-

ardous waste sites” and that a new federal tort reme-

dy would improperly turn CERCLA “into a private

compensation program”); 131 Cong Rec. 35,640

(statement of Rep. Fish) (“The purpose of the Super-

fund law is to provide a Federal response to the ur-

gent need to clean up existing hazardous waste sites.

* * * This House has consistently rejected expand-

ing the Superfund statute to deal with legal rights

aimed at compensation for damages.”).

The conclusion that CERCLA’s specific remedial

focus on cleanup does not extend to damages recover-

ies for private tort plaintiffs under state law is under-

scored by the absence of any provision relevant to

33

such tort actions in CERCLA as originally enacted in

1980. Instead, Congress commissioned the Study

Group Report to address the distinct subject of the

adequacy of tort remedies for those harmed by haz-

ardous substances. 42 U.S.C. 965l(e). And when

Congress later amended CERCLA in response to that

report, it acted on only one of the Study Group’s rec-

ommendations—that involving the discovery rule—

while declining to adopt (and thereby implicitly reject-

ing) all the others, including the elimination of state

statutes of repose. See pp. 4-6, supra (discussing

Congress’s failure to adopt a federal administrative

scheme or to preempt state law on joinder, joint and

several liability, and causation in state tort actions).

Congress opted against adopting the Study Group

Report’s other recommendations, even though that

report’s authors thought those recommendations

(including repeal of statutes of repose) were necessary

to “remove unreasonable procedural and other barri-

ers to recovery in court action for personal injuries

resulting from exposure to hazardous waste.” Study

Group Report 240; see pp. 4-6, supra. That choice

demonstrates, as the express preservation of state law

in 42 U.S.C. 9658(a)(2) confirms, that Congress’s goal

was not exclusively to provide remedies for plaintiffs

at the expense of all other interests. Kucana v. Hold-

er, 558 U.S. 233, 252 (2010) (“[NJo law pursues its

purpose at all costs, and . . . the textual limita-

tions upon a law’s scope are no less a part of its ‘pur-

pose’ than its substantive authorizations.”) (citation

omitted). Instead, Section 9658 represents a careful

“balance between harmonizing certain procedural

matters in toxic tort cases and allowing states to con-

4

tinue to regulate in their own substantive areas of

law.” Pet. App. 34a-35a (Thacker, J., dissenting).

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

STUART F. DELERY

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JOSEPH R. PALMORE

Assistant to the Solicitor

General

MARK B. STERN

DANIEL TENNY

Attorneys

MARCH 2014

STATUTORY APPENDIX

1. 42 U.S.C. 9658 provides:

Actions under State law for damages from exposure to

hazardous substances

(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 hazard-

ous 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 pe-

riod shall commence at the federally required com-

mencement 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 sub-

stance, or pollutant or contaminant, released into the

environment from a facility.

(la)

2a

(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 chap-

ter.

(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 “commencement 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 subparagraph (B), the

term “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)

of this section were caused or contributed to by

3a

the hazardous substance or pollutant or contami-

nant concerned.

(B) Special rules

In the case of a minor or incompetent plaintiff,

the term “federally required 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 determined by State law, or has a legal rep-

resentative appointed.

(ii) In the case of an incompetent individ-

ual, the date on which such individual becomes

competent or has had a legal representative

appointed.

2. N.C. Gen. Stat. § 1-15(a) (2011) provides:

Statute runs from accrual of action.

Civil actions can only be commenced within the peri-

ods prescribed in this Chapter, after the cause of action

has accrued, except where in special cases a different

limitation is prescribed by statute.

4a

3. N.C. Gen. Stat. § 1-52(16) (2011) provides in perti-

nent part:

Three years.

Within three years an action—

* * * * *

Unless otherwise provided by statute, for personal

injury or physical damage to claimant’s property, the

cause of action, except in causes of actions referred to

in G.S. 1-15(c), shall not accrue until bodily harm to the

claimant or physical damage to his property becomes

apparent or ought reasonably to have become apparent

to the claimant, whichever event first occurs. 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.