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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2014

## Text

[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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0926%3A08. Public record. Not legal advice.