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

Supremes Court, U.8.

FILED

dame Se | MAR - 3 2014

i. pncdecnnns | omice OF THE CLERK

oniirs

3n The

Supreme Court of the Gnited States

e

CTS CORPORATION,

Petitioner,

Vv.

PETER WALDBURGER, et al.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

¢

BRIEF OF THE AMERICAN CHEMISTRY

COUNCIL, THE AMERICAN COATINGS

ASSOCIATION, THE AMERICAN PETROLEUM

INSTITUTE, THE NATIONAL ASSOCIATION

OF MANUFACTURERS, AND THE PRECISION

MACHINED PRODUCTS ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

°

ALLYSON N. Ho

Counsel of Record

MICHAEL W. STEINBERG

RONALD J. TENPAS

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

202.739.3000

aho@morganlewis.com

ins

a

a

COCKLE LEGAL BRIEFS (400) 225-6964

WWW .COCKLELEGALBRIEFS.COM

Library cf Conga

Law Libsary

QUESTION PRESENTED

Whether the preemption provision of the Com-

prehensive Environmental Response, Compensation,

and Liability Act (CERCLA), 42 U.S.C. § 9658, applies

to state statutes of repose in addition to state statutes

of limitations.

il

TABLE OF CONTENTS

Page

I I acini elisbeitianoaeitiatie i

BeeOSS CIE Amnhss CRIBS oc cc crvescccsisesvecesescscosescoses 1

Introduction And Summary Of Argument........... 4

I viicleviinticserncscddinnitininnitagistetinitainmmiunn 7

I. The History And Purpose Of Statutes Of

Repose Confirm That Unlike Statutes Of

Limitation, They Are Substantive Laws,

Not Procedural Rules ........ aati aati 7

A. Like Other Substantive Components

Of State Tort Law, Statutes Of Repose

Help Ensure That Designers And Manu-

facturers Can Operate In A Manner

That A State Deems Reasonable ......... 8

B. Other Salutary Purposes Served By

Statutes Of Repose Further Confirm

The Important Role They Play In

Substantive State Tort Law ................ 11

II. If Permitted To Stand, The Court Of

Appeals’ Construction Of CERCLA § 309

Will Have Serious Unintended Consequences

For A Wide Range Of Tort Litigation ........ 15

ITT Ae LEG ROLE OAS NRE AT RUT 17

ill

TABLE OF AUTHORITIES

Page

CASES

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

Chem. Co., 419 F.3d 355 (5th Cir. 2005)................... 4

Craven v. Lowndes Cnty. Hosp. Auth., 437

RE Ie nee eee een 12

Eastin v. Broomfield, 570 P.2d 744 (Ariz. 1977)........ 12

Harlfinger v. Martin, 754 N.E.2d 63 (Mass.

SaITicichcssccheiileaoihieeneeiieteceaetdetdhebateascadiahileislcincéadatelibaiciiita 13

Kenyon v. Hammer, 688 P.2d 961 (Ariz. 1984) .......... 13

MacPherson v. Buick Motor Co., 111 N.E. 1050

I a 8

Palsgraf v. Long Island R.R. Co., 162 N.E. 99

SSO aaa eR kee bee MANE Fhe eee Re 8

Renner v. Edwards, 475 P.2d 530 (Idaho 1969)......... 13

Sch. Bd. of City of Norfolk v. U.S. Gypsum Co.,

eee 11

State v. Lombardo Bros. Mason Contractors,

Inc., 54 A.3d 1005 (Conn. 2012).............................. 11

Sun Valley Water Beds of Utah, Inc. v. Herm

Hughes & Son, Inc., 782 P.2d 188 (Utah

Ssaatrtlblshsnecsninsstnsisitnshene Uapotinceiesiaasnsideduimasaniacbdeaagiacaincaiailialidianie salgial 13

STATUTES AND OTHER AUTHORITIES

RITE A Pree na ae PAS OS MI 15

Fe Ry TE iii vicanesitsniciveniniieamenenninioncioniecaiiniins passim

iv

TABLE OF AUTHORITIES—Continued

Page

rn I ele 15

James Madison to the Members of the First

Congress, 2 Annals of Cong. 1897 (1791)............... 14

aie ricisiticieeicicantineinipntncepnsininnaetiiie 10

H.R. Rep. No. 103-525(I) (1994), reprinted in

IIT COMIEIRURIE: SII sr scctdipininatsintommanbeiidnonen 12

W. PROSSER, HANDBOOK OF THE LAW OF TORTS

I i a a 7

G. SULLIVAN, PRODUCTS LIABILITY: WHO NEEDS

gS A ELLOS: See TIN eer 13

Josephine Herring Hicks, Note, The Constitu-

tionality of Statutes of Repose: Federalism

Reigns, 38 VAND. L. REv. 627 (1985) .................. 9,14

Francis E. McGovern, The Variety, Policy and

Constitutionality of Product Liability Stat-

utes of Repose, 30 Am. U. L. REv. 579 (1981)........ 4,5

Dean Prosser, The Fall of the Citadel (Strict

Liability to the Consumer), 50 MINN. L. REV.

See CE ssiianiciicissccelaringecicainniniaiiiianiaiaeaaieiiaasiamiieaeniciiinaiedaniia 5

James F. Rodriguez, Note, Tort Reform &

GARA: Is Repose Incompatible with Safety?,

47 Ariz. L. REV. 577 (2005)....................2..00000 8,9, 12

Charlotte E. Thomas, Note, People Who Live in

Glass Houses Should Not Build in Vermont:

The Need for a Statute of Limitations for

Architects, 9 VT. L. REv. 101 (1984)......000.000000 ee. 13

TABLE OF AUTHORITIES—Continued

Andrew R. Turner, The Counter-Attack to Re-

take the Citadel Continues: An Analysis of

the Constitutionality of Statutes of Repose in

Products Liability, 46 J. Air L. & Com. 449

Ths iistcinsiniinsehialitelansidladsiianistanionmmnimnininaienmiaiamantideaiainns 5, 10

Francis P. Manchisi & Lorraine E.J. Gallagher,

A nationwide survey of statutes of repose,

http://www.wilsonelser.com/files/repository/Nat!

SurveyRepose_March2006.pdf. ..........0.......cccceeeeee 14

1

INTEREST OF AMICI CURIAE

Amici trade associations represent a vast array

of businesses and industries whose success depends

on the stability provided by the rule of law. Amici’s

members invest heavily in the economy and generate

employment and growth for their local communities

and throughout the Nation. Amici and their mem-

bers have an interest in the outcome of this case

because state statutes of repose play an important

role in providing the stability and predictability

necessary to foster economic growth and opportunity.’

The American Chemistry Council (ACC)

represents the leading companies engaged in the

business of chemistry. ACC members apply the

science of chemistry to make innovative products and

services that make people’s lives better, healthier and

safer. ACC is committed to improved environmental,

health and safety performance through Responsible

Care®, common sense advocacy designed to address

major public policy issues, and health and environ-

mental research and product testing. The business

of chemistry is a $770 billion enterprise and a key

element of the nation’s economy. It is one of the

' Pursuant to Rule 37.6, the amici submitting this brief and

their counsel hereby represent that neither the parties to this

case nor their counsel authored this brief in whole or in part,

and that no person other than amici paid for or made a mone-

tary contribution toward the preparation or submission of this

brief. Amici file this brief with the written consent of all parties,

copies of which are on file in the Clerk’s Office.

2

nation’s largest exporters, accounting for 12 percent

of all U.S. exports.

The American Coatings Association, Inc.

(ACA) is a non-profit trade association representing

some 300 members who manufacture, supply, and

distribute paint and coatings products and their

applications. Many members have been involved

since its passage in CERCLA enforcement and contri-

bution actions, and the association has been engaged

historically in advocacy that has resulted in stream-

lining the law’s key provisions and their administra-

tive implementation to help improve its fairness and

efficiency in furtherance of its objectives.

The American Petroleum Institute (API) is a

national trade association representing over 550

member companies involved in all aspects of the oil

and natural gas industry. API’s members include

producers, refiners, suppliers, pipeline operators, and

marine transporters, as well as service and supply

companies that support all segments of the industry.

API’s members support more than 9.8 million jobs

and 8 percent of the U.S. economy, and, since 2000,

those members have invested nearly $2 trillion in

U.S. capital projects to advance all forms of energy,

including alternative sources. API and its members

are dedicated to meeting environmental requirements

while economically developing and supplying energy

resources for consumers.

The National Association of Manufacturers

(NAM) is the largest manufacturing association in

3

the United States, representing small and large

manufacturers in every industrial sector and in all

50 states. Manufacturing employs nearly 12 million

men and women, contributes more than $1.8 trillion

to the U.S. economy annually, has the largest econom-

ic impact of any major sector, and accounts for two-

thirds of private-sector research and development.

The NAM is the powerful voice of the manufacturing

community and the leading advocate for a policy

agenda that helps manufacturers compete in the

global economy and create jobs across the United

States.

The Precision Machined Products Associa-

tion (PMPA) is a national trade association repre-

senting over 440 member companies involved in the

production of highly engineered, precision machined

components used in advanced automotive, aerospace,

electrical, construction, and medical technologies.

PMPA’s members include metal producers, machining

and manufacturing companies, machine tool builders,

and producers of tooling, accessories, and metalwork-

ing fluids. The precision machining industry is best

described by NAICS code 332721, and accounts for

over 78,070 jobs with payrolls of $3.6 billion and ship-

ments of over $13.3 billion. The mission of the PMPA

is to provide the information, resources and network-

ing opportunities to advance and sustain its members

while advocating for manufacturing throughout the

United States.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

By failing to appreciate the difference between

statutes of repose and statutes of limitation, the court

of appeals impermissibly expanded the plain text of

42 U.S.C. § 9658 (CERCLA § 309) to preempt state

statutes of repose in addition to statutes of limitation.

Properly understood, statutes of repose do not cut off

the remedy as a statute of limitation does. Statutes

of repose abolish the cause of action altogether.

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

419 F.3d 355, 363 (5th Cir. 2005). This means that

instead of being procedural rules, statutes of repose

are substantive laws. See Pet. Br. 21-22 (explaining

that statutes of limitations are “procedural, in that

they are designed to encourage litigants to assert

their rights promptly,” while statutes of repose “de-

marcate the existence of tort liability” and thus are

substantive). The panel majority’s overbroad reading

of CERCLA thus unwittingly created a situation in

which Congress is effectively dictating to the states

the content of their substantive laws.

That error is magnified when one considers the

history and purpose of statutes of repose. As to

history, during the 1950s and 1960s, tort liability was

dramatically expanded through a variety of mecha-

nisms, including the discovery rule, the imposition of

strict liability, and the abandonment of privity re-

quirements. See Francis E. McGovern, The Variety,

Policy and Constitutionality of Product Liability

Statutes of Repose, 30 Am. U. L. REv. 579, 587 (1981);

5

Dean Prosser, The Fall of the Citadel (Strict Liability

to the Consumer), 50 MINN. L. REv. 791, 791-99

(1966). In the wake of those changes—which expo-

nentially increased tort liability across the board—

virtually all states enacted one or more statutes of

repose to restore at least a measure of finality and

predictability as to potential liabilities. McGovern,

supra at 580; Andrew R. Turner, The Counter-Attack

to Retake the Citadel Continues: An Analysis of the

Constitutionality of Statutes of Repose in Products

Liability, 46 J. AiR L. & Com. 449, 455 (1981). Finality

and predictability, in turn, are crucial to states’

efforts to expand their economies and provide em-

ployment opportunities to their citizens by creating a

legal environment in which businesses can flourish.

As to purpose, statutes of repose have been

instrumental in states’ efforts to create, enhance, and

protect their citizens’ economic opportunities. States

across the Nation have enacted them as part of

broader efforts to strengthen their economies—an

effort that is all the more important in the current

economic environment. Each repose statute repre-

sents a policy choice by that state about the balance it

wishes to strike among a variety of competing public

policy goals. Congress had sound reasons not to

disturb those policy choices.

To begin, statutes of repose serve to reinforce the

tort law theories under which we normally hold

actors liable. Although the primary goal of the law in

this area is to promote reasonable conduct, perpetual

liability creates situations where companies would be

6

incentivized to act unreasonably in an attempt to

avoid liability. Manufacturers might decide not to

make useful products altogether or they might be de-

terred from making safety modifications to products

that could later be used as evidence in a tort suit for a

heightened standard of care. Statutes of repose help

avoid that unfortunate result. And states also use

the statutes to limit stale claims, promote judicial

economy, and help control insurance costs (another

area of state power). Repose statutes thus provide a

measure of certainty for the public in administering

commercial transactions.

What is more, the court of appeals’ departure

from the plain text of CERCLA § 309 has the poten-

tial for much unintended mischief. Given its appar-

ent applicability to much garden-variety private tort

litigation, Section 309 could preserve lawsuits in any

area—even far outside the environmental context—

that happen to involve anything that could be consid-

ered a “hazardous substance” under CERCLA. This

accidental abolition of state statutes of repose would

alter state substantive law and destroy the balance

struck by many states to help ensure economic oppor-

tunity and employment for their citizens. Congress

did not intend that result, and the plain text of § 309

prohibits it. The decision of the court of appeals

should be reversed.

7

ARGUMENT

If the court of appeals’ decision is permitted to

stand, businesses will not be able to rely on the

traditional statutes of repose offered under state law

to defend against a wide range of tort claims. The

Court should reject that result for several reasons.

I. The History And Purpose Of Statutes Of

Repose Confirm That Unlike Statutes Of

Limitation, They Are Substantive Laws,

Not Procedural Rules

Statutes of repose represent important policy

choices made by states. They were passed to coun-

teract the effects of changes in law, such as the dis-

covery rule, that would otherwise create perpetual

liability. W. PROSSER, HANDBOOK OF THE LAW OF TORTS

§ 30 (4th ed. 1971). The history and purpose of stat-

utes of repose confirm they are substantive tort laws,

not procedural rules—and thus very different from

the statutes of limitation expressly preempted by

CERCLA § 309.

Statutes of repose are an important part of state

tort law because they ensure that designers and

manufacturers do not face perverse disincentives to

market or improve their products. This makes repose

statutes just as much a substantive component of a

state’s tort law as the standard of proof that a plain-

tiff must adduce at trial to show liability.

8

A. Like Other Substantive Components Of

State Tort Law, Statutes Of Repose Help

Ensure That Designers And Manufac-

turers Can Operate In A Manner That

A State Deems Reasonable

Although CERCLA is a strict-liability statute, the

tort suits brought by individuals based on exposure to

“hazardous substances” are typically actions sound-

ing in nuisance or negligence. Statutes of repose are

an indispensable aspect of this system that seeks to

promote reasonable conduct.

Tort law encourages actors to conduct their

affairs in a reasonable manner—and the legal system

assigns fault when actors fail to do so. Fault can only

be assigned, however, if one party owes a duty to

another. Palsgraf v. Long Island R.R. Co., 162 N.E.

99, 100 (N.Y. 1928). And so while “the manufacturer

of {a} thing of danger is under a duty to make it

carefully,” MacPherson v. Buick Motor Co., 111 N.E.

1050, 1051 (N.Y. 1916), the law limits liability where

reasonable steps are taken by the manufacturer to

ensure safety.

Statutes of repose reinforce this system. For exam-

ple, “(t]he underlying theory of a statute of repose

posits that after a reasonable period of operating

without injury or accident, the law deems a product

carefully designed and manufactured.”. James F.

Rodriguez, Note, Tort Reform & GARA: Is Repose

Incompatible with Safety?, 47 Ariz. L. REv. 577, 581

(2005) (emphasis omitted). Thus if a product does not

9

cause injury during the period before repose, it will

have met the state’s conditions for reasonableness.

Ibid.

Without statutes of repose, however, perpetual

liability would threaten to seriously undermine a

state’s tort regime. For one thing, manufacturers

could be disincentivized from making safer and more

efficient products. Josephine Herring Hicks, Note,

The Constitutionality of Statutes of Repose: Feder-

alism Reigns, 38 VAND. L. REv. 627, 633 (1985).

Changes to products constantly update the standard

of care with which a manufacturer must act. Without

repose, the threat of a plaintiff offering evidence of

design changes against the maker could discourage

innovation—especially with regard to safety. bid.

The threat of perpetual liability could also lead to

over-deterrence. Consider the cost-benefit analysis

that always takes place in a product’s design and

manufacturing stage as well as in the governance of

its operations (i.e., why we do not force car manufac-

turers to limit vehicle engines to 25 or 50 horsepower

and thus eliminate fatal high-speed accidents com-

pletely). States fold these policy considerations

directly into their substantive tort law.

Absent a statute of repose, however, there might

be a product or activity that a state finds particularly

useful but that companies facing perpetual liability

are simply unable or unwilling to make. Or perhaps

the long-term insurance costs might cause a manufac-

turer to spend more resources in developing a product

than is optimal for the state’s goals. For example,

10

states do not want architects calling for titanium

walls in houses just to make sure they never collapse

from termites. Such over-deterrence drives away

businesses and citizens alike.

This reasoning was behind the support for stat-

utes of repose that followed expansion of tort liability

in the 1950s and 1960s. In particular, the discovery

rule—a statute of limitations does not begin running

until an injury is or should have been discovered—

exposed manufacturers to virtually open-ended lia-

bility. Turner, supra, at 456. This made statutes of

limitation procedural rather than substantive be-

cause it focused on the individual’s diligent prosecu-

tion of an injury. To counter that, many states passed

statutes of repose and the U.S. Department of Com-

merce even promulgated a model uniform act con-

taining such a statute. Id. at 456-57 (citing UPLA,

§ 110(b), 44 Fed. Reg. 62,732 (1979)).

Statutes of repose thus play an important role in

state tort law by allowing designers and manufactur-

ers to act in a manner that the state deems reasona-

ble. These statutes are just as much a substantive

component of a state’s tort law as the standard of

proof that a plaintiff must adduce at trial to show

liability—further illustrating why Congress would

not have intruded into this area.

li

B. Other Salutary Purposes Served By

Statutes Of Repose Further Confirm

The Important Role They Play In Sub-

stantive State Tort Law

Besides reinforcing the reasonableness determi-

nation traditionally left to the states, statutes of re-

pose provide other benefits that further demonstrate

why they are substantive, not procedural (and thus

very different from the statutes of limitation ex-

pressly preempted by § 309). See Sch. Bd. of City of

Norfolk v. U.S. Gypsum Co., 360 S.E.2d 325, 328 (Va.

1987) (“[A statute of repose] is intended as a sub-

stantive definition of rights as distinguished from

a procedural limitation on the remedy used to enforce

rights.” (citation and internal quotation marks

omitted)).

First, states achieve the public good of certainty

and finality in the administration of commercial

transactions through repose statutes. States have

long recognized the need to protect sources of jobs and

tax revenue from protracted and extended vulnerabil-

ity to lawsuits. See State v. Lombardo Bros. Mason

Contractors, Inc., 54 A.3d 1005, 1024 (Conn. 2012)

(“[S]tatutes of repose reflect legislative decisions that

as a matter of policy there should be a specific time

beyond which a defendant should no longer be sub-

jected to protracted liability.” (citation and internal

quotation marks omitted)).

Second, statutes of repose promote judicial econo-

my. They affect not only the sheer number of cases

12

that state courts must hear, but also the quality of

those cases, by impeding stale claims where it may be

difficult for a business to defend (or a plaintiff to

prosecute) because of lost records or faded memories.

Craven v. Lowndes Cnty. Hosp. Auth., 437 S.E.2d 308,

310 (Ga. 1993) (concluding that statutes of repose

serve a legitimate state interest in protecting against

stale claims). Judicial efficiency is undermined when

those obstacles are removed and stale claims are

facilitated.

Statutes of repose further improve judicial econ-

omy by focusing plaintiffs on the liable parties and

not on original manufacturers who may be innocent

regarding the injury (but are perhaps perceived as

having “deep pockets” for recovery purposes). One

example can be found in the aircraft industry. “NTSB

data indicates any aircraft accident is far more likely

to be due to pilot error, weather, or a maintenance

problem than a design defect.” Rodriguez, supra, at

598 (citing H.R. Rep. No. 103-525(1), at 3 (1994),

reprinted in 1994 U.S.C.C.A.N. 1638 (“NTSB data

shows only 1% of general aviation accidents are

caused by design or manufacturing defects.”)). The

cases seem to indicate, though, that manufacturers

are more likely to be the primary target in a lawsuit.

Id. at 597-98. A statute of repose, however, can

prevent the needless waste of time and judicial re-

sources spent on fishing expeditions or in terrorem

settlement attempts. See, e.g., Eastin v. Broomfield,

570 P.2d 744, 751 (Ariz. 1977) (holding that segregating

meritorious claims from frivolous ones is a legitimate

13

state interest); Renner v. Edwards, 475 P.2d 530, 532

(Idaho 1969) (noting that statutes of repose are

designed te promote stability and prevent fraudulent

claims).

Third, states use statutes of repose to lower

insurance rates—another traditional area of state

interest. The statutes can “help control runaway

insurance costs” because, “[iJn the absence of statutes

of repose, insurers must maintain reserves to cover

potential claims for several years, if not decades, into

the future.” Sun Valley Water Beds of Utah, Inc. v.

Herm Hughes & Son, Inc., 782 P.2d 188, 189 (Utah

1989); see also Harlfinger v. Martin, 754 N.E.2d 63,

69 (Mass. 2001) (“The statute of repose at issue here

was passed as part of a larger, long-term effort to

curb the cost of medical malpractice insurance and

keep such insurance available and affordable.”);

Charlotte E. Thomas, Note, People Who Live in Glass

Houses Should Not Build in Vermont: The Need for a

Statute of Limitations for Architects, 9 VT. L. REv.

101, 130 (1984) (discussing insurance problems facing

architects in particular).

As insurance rates go up, businesses produce less

taxable income and are unable to invest as heavily in

the economy. See Kenyon v. Hammer, 688 P.2d 961,

976 (Ariz. 1984). There may also be long-term effects

on families’ decisions to stay in one locale over another

because insurance costs are passed on to consumers

in the form of higher prices and can drive away

potential residents for that reason. See G. SULLIVAN,

Propucts LIABILITY: WHO NEEDs IT? 16 (1979). Repose

statutes, on the other hand, lead to more stability in

14

this area “and thus provide greater actuarial preci-

sion in setting insurance rates.” Hicks, supra, at

632-33. This, in turn, “facilitate[s] efficient business

planning and ultimately benefit{[s} businessmen,

professionals, consumers, and the economy.” Ibid.

In sum, repose statutes are vehicles for a state to

achieve various policy objectives in its substantive

law by cutting off various categories of potential

claims. At present, virtually every state has enacted

at least one statute of repose, and some have adopted

several for different categories of potential claims.

See Francis P. Manchisi & Lorraine E.J. Gallagher, A

nationwide survey of statutes of repose, http://www.

wilsonelser.com/files/repository/NatlSurveyRepose_

March2006. pdf.

These experiments in the laboratories of the

states are exactly what Madison and the Framers

envisioned. See James Madison to the Members of

the First Congress, 2 Annals of Cong. 1897 (1791)

(“Interference with the power of the States was no

constitutional criterion of the power of Congress. If

the power was not given, Congress could not exercise

it ****”). Within their realms of sovereignty, states

control what is and is not a tort. Congress did not

override that prerogative here, as the text of § 309

makes plain.

15

li. If Permitted To Stand, The Court Of Ap-

peals’ Construction Of CERCLA § 309 Will

Have Serious Unintended Consequences

For A Wide Range Of Tort Litigation

Section 309 applies to a vast range of state tort

actions because CERCLA’s definition of “hazardous

substance” is extremely broad. 42 U.S.C. § 9601(14).

That definition includes hundreds of substances

that EPA has regulated under other environmental

statutes. Even common household items such as

copper, nickel, and ammonia are classified by law as

CERCLA “hazardous substances” because EPA regu-

lates them in certain situations under the Clean

Water Act. 40 C.F.R. § 302.4 (2012). Moreover, these

materials are CERCLA “hazardous substances” at all

times and in all places, regardless of their quantity,

concentration, bioavailability (i.e., the ease with which

it can make its way through the environment), or

any other actual properties. Status as a CERCLA

“hazardous substance” thus does not reflect the

reality of how a substance is present at any particular

time or place.

For example, EPA regulates effluent discharges

containing copper under the Clean Water Act out of

concerns about its aquatic toxicity. See 40 C.F.R.

§ 302.4. Yet any amount of copper released into the

air from any facility in any form is automatically a

CERCLA “hazardous substance” to which § 309

applies.

16

Furthermore, Section 309 is not limited to state

tort actions grounded in exposure to CERCLA

“hazardous substances.” It governs all tort claims

“for personal injury, or property damages, which are

caused or contributed to by exposure to any hazard-

ous substance *** released into the environment

from a facility.” 42 U.S.C. § 9658(a\X1) (emphasis

added). Thus, for example, a garden-variety property-

damage claim in which alleged exposure to copper

plays even a minor contributing role will trigger the

federally mandated commencement date in lieu of

state law.

If permitted to stand, the court of appeals’ ex-

pansion of § 309’s plain text to reach not only state

statutes of limitation (which are procedural) but

also state statutes of repose (which are substantive)

will have serious ramifications on state tort law far

beyond the context of environmental litigation—

inadvertently upsetting the balance states have struck

among competing interests, goals, and priorities in

their substantive tort laws. This accidental abolition

of state statutes of repose runs up against the prob-

lems discussed in Part I, supra. It alters state sub-

stantive law and threatens the efforts states have

undertaken to improve their economies and the

opportunities available to their citizens. Congress did

not go so far. The plain text of the statute should

control, and the decision below should be reversed.

¢

17

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ALLYSON N. Ho

Counsel of Record

MICHAEL W. STEINBERG

RONALD J. TENPAS

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

202.739.3000

aho@morganlewis.com