Filed: Jul. 10, 2013
Latest Update: Mar. 02, 2020
Summary: Certiorari granted by Supreme Court, January 10, 2014 Reversed by Supreme Court, June 9, 2014 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1290 PETER WALDBURGER; SANDRA RATCLIFFE; LEE ANN SMITH; TOM PINNER, IV, a/k/a Bud Pinner, IV; HANS MOMKES; WILMA MOMKES; WALTER DOCKINS, JR.; AUTUMN DOCKINS; WILLIAM CLARK LISENBEE; DAN MURPHY; LORI MURPHY; ROBERT AVERSANO; DANIEL L. MURPHY; LAURA A. CARSON; GLEN HORECKY; GINA HORECKY; RENEE RICHARDSON; DAVID BRADLEY; BYRON HOVEY; RA
Summary: Certiorari granted by Supreme Court, January 10, 2014 Reversed by Supreme Court, June 9, 2014 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1290 PETER WALDBURGER; SANDRA RATCLIFFE; LEE ANN SMITH; TOM PINNER, IV, a/k/a Bud Pinner, IV; HANS MOMKES; WILMA MOMKES; WALTER DOCKINS, JR.; AUTUMN DOCKINS; WILLIAM CLARK LISENBEE; DAN MURPHY; LORI MURPHY; ROBERT AVERSANO; DANIEL L. MURPHY; LAURA A. CARSON; GLEN HORECKY; GINA HORECKY; RENEE RICHARDSON; DAVID BRADLEY; BYRON HOVEY; RAM..
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Certiorari granted by Supreme Court, January 10, 2014
Reversed by Supreme Court, June 9, 2014
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1290
PETER WALDBURGER; SANDRA RATCLIFFE; LEE ANN SMITH; TOM
PINNER, IV, a/k/a Bud Pinner, IV; HANS MOMKES; WILMA
MOMKES; WALTER DOCKINS, JR.; AUTUMN DOCKINS; WILLIAM CLARK
LISENBEE; DAN MURPHY; LORI MURPHY; ROBERT AVERSANO; DANIEL
L. MURPHY; LAURA A. CARSON; GLEN HORECKY; GINA HORECKY;
RENEE RICHARDSON; DAVID BRADLEY; BYRON HOVEY; RAMONA HOVEY;
PETER TATUM MACQUEEN, IV; BETHAN MACQUEEN; PATRICIA PINNER;
TOM PINNER, III, a/k/a Buddy Pinner, III; MADELINE PINNER,
Plaintiffs - Appellants,
v.
CTS CORPORATION,
Defendant - Appellee.
-----------------------------------
UNITED STATES OF AMERICA,
Amicus Supporting Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:11-cv-00039-GCM-DLH)
Argued: January 30, 2013 Decided: July 10, 2013
Before DAVIS, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd wrote
the majority opinion, in which Judge Davis joined. Judge Davis
wrote a separate concurring opinion. Judge Thacker wrote a
dissenting opinion.
ARGUED: Emma A. Maddux, Third-Year Law Student, WAKE FOREST
UNIVERSITY, Winston-Salem, North Carolina, for Appellants. Earl
Thomison Holman, ADAMS, HENDON, CARSON, CROW & SAENGER, PA,
Asheville, North Carolina, for Appellee. Daniel Tenny, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Supporting Appellee. ON BRIEF: John J. Korzen, Director,
Hillary M. Kies, Third-Year Law Student, WAKE FOREST UNIVERSITY,
Winston-Salem, North Carolina, for Appellants. Stuart F.
Delery, Acting Assistant Attorney General, Thomas M. Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne
Tompkins, United States Attorney, Charlotte, North Carolina, for
Amicus Supporting Appellee.
2
FLOYD, Circuit Judge:
In 2009, Appellants David Bradley and Renee Richardson
received unwelcome news: Their well water contained
concentrated levels of trichloroethylene (TCE) and cis-1,2-
dichloroethane (DCE), both solvents that have carcinogenic
effects. Not surprisingly, Bradley and Richardson, and twenty-
three other landowners (collectively, “the landowners”), brought
a nuisance action against Appellee CTS Corporation (CTS), the
alleged perpetrator. Concluding that North Carolina’s ten-year
limitation on the accrual of real property claims barred the
suit, the district court granted CTS’s Rule 12(b)(6) motion to
dismiss. Having reviewed the dismissal de novo, assuming that
the facts stated in the complaint are true, Lambeth v. Bd. of
Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005), we hold that the
discovery rule articulated in § 9658 of the Comprehensive
Environmental Response, Liability, and Compensation Act
(CERCLA), 42 U.S.C. §§ 9601-9675, preempts North Carolina’s ten-
year limitation. Thus, we reverse and remand.
I.
In the 1960s and ‘70s, the United States witnessed the
repercussions of toxic waste dumping like it never had before.
3
The Valley of the Drums 1 and Love Canal 2 disasters made
headlines, urging Congress to pass legislation that granted some
measure of redress. In response, in 1980, Congress passed
CERCLA, an act aimed at promoting efficient and equitable
responses to the fallout from hazardous waste. Burlington N. &
Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009).
Because Congress passed the legislation during the closing hours
of its ninety-sixth session, and only after it reached a
compromise reflecting the “blending of three separate bills,”
CERCLA is often criticized for its lack of precision. See,
e.g., State of New York v. Shore Realty Corp.,
759 F.2d 1032,
1039–40 (2d Cir. 1985) (“In 1980, while the Senate considered
one early version of CERCLA, the House considered and passed
another. The version passed by both Houses, however, was an
eleventh hour compromise put together primarily by Senate
1
The Valley of the Drums is a twenty-three acre site near
Louisville, Kentucky, where a large number of waste-storing
drums were deposited in the 1960s. The drums’ leakage and the
lack of regulation at the site caused an environmental disaster.
NPL Site Narrative for A.L. Taylor (Valley of the Drums), Envtl.
Prot. Agency (Sept. 8, 1983), http://www.epa.gov/superfund/
sites/npl/nar447.htm.
2
Love Canal is an area near Niagara Falls, New York. In
the 1920s, it became a dumpsite for toxic chemicals. The extent
of the site’s contamination was brought to light in the mid-
1970s. Eckardt C. Beck, The Love Canal Tragedy, Envtl. Prot.
Agency (Jan. 1979), http://www.epa.gov/history/topics/lovecanal/
01.html.
4
leaders and sponsors of the earlier Senate versions.” (citations
omitted)); Artesian Water Co. v. New Castle Cnty., 851 F.2d 643,
648 (3d Cir. 1988) (“CERCLA is not a paradigm of clarity or
precision. It has been criticized frequently for inartful
drafting and numerous ambiguities attributable to its
precipitous passage.”); see also Rhodes v. Cnty. of Darlington,
833 F. Supp. 1163, 1172–76 (D.S.C. 1992) (providing a thorough
recounting of CERCLA’s history). Regardless, it remains
undisputed that CERCLA is a remedial statute designed to (1)
“establish a comprehensive response and financing mechanism to
abate and control the vast problems associated with abandoned
and inactive hazardous waste disposal sites” and (2) “shift the
costs of cleanup to the parties responsible for the
contamination.” Metro. Water Reclamation Dist. v. N. Am.
Galvanizing & Coatings, Inc.,
473 F.3d 824, 826-27 (7th Cir.
2007) (quoting H.R. Rep. No. 96-1016, pt. 1, at 22 (1980),
reprinted in 1980 U.S.C.C.A.N. 6119, 6120) (internal quotation
marks omitted); see also Niagara Mohawk Power Corp. v. Chevron
U.S.A., Inc.,
596 F.3d 112, 120 (2d Cir. 2010) (“Enacted in
response to New York’s Love Canal disaster, CERCLA was designed,
in part, to ‘[ensure] that those responsible for any damage,
environmental harm, or injury from chemical poisons bear the
costs of their actions.’” (footnote omitted) (quoting S. Rep.
No. 96-848, at 13 (1980)).
5
Evidently wary about the effectiveness of the Act’s final
version, Congress immediately established a study group to
examine the “adequacy of existing common law and statutory
remedies in providing legal redress for harm . . . caused by the
release of hazardous substances into the environment.” 42
U.S.C. § 9651(e)(1). The Group consisted of twelve members
designated by the American Bar Association, the American Trial
Lawyers Association, the Association of State Attorneys General,
and the American Law Institute. Id. § 9651(e)(2). Among other
“[r]ecurring [i]ssues in [h]azardous [w]aste [l]itigation,” it
considered the effect that state limitations periods have on
causes of action related to hazardous waste, noting that (1)
injuries from such waste generally have “long latency periods,
sometimes 20 years or longer” and (2) if a state decrees that a
cause of action will accrue upon a defendant’s last act or a
plaintiff’s exposure to harm, the statute of limitations often
will fully run and defeat a lawsuit before a plaintiff is aware
of his injury. Superfund Section 301(e) Study Group, 97th
Cong., Injuries and Damages from Hazardous Wastes-Analysis and
Improvement of Legal Remedies pt. 1, at 28 (Comm. Print 1982).
Purposing to “remove unreasonable procedural and other barriers
to recovery in court . . . , including rules relating to the
time of accrual of actions,”
id. at 240, the Group issued the
following recommendation: “that all states . . . clearly adopt
6
the rule that an action accrues when the plaintiff discovers or
should have discovered the injury or disease and its cause,” id.
at 241. Worth noting is that the Group did not confine its
concerns simply to statutes of limitation: “The Recommendation
is intended also to cover the repeal of statutes of repose
which, in a number of states have the same effect as some
statutes of limitation in barring [a] plaintiff’s claim before
he knows that he has one.”
Id.
Instead of waiting for individual states to amend their
respective statutes, in 1986 Congress chose to “address[] the
problem identified in the . . . study,” H.R. Conf. Rep. No. 99-
962, at 261, reprinted in 1986 U.S.C.C.A.N. 3276, 3354, by
enacting § 9658 of CERCLA:
(a) State statutes of limitations for hazardous
substance cases
(1) Exception to State statutes
In the case of any action brought under State law
for personal injury, or property damages, which
are caused or contributed to by exposure to any
hazardous substance, or pollutant or contaminant,
released into the environment from a facility, if
the applicable limitations period for such action
(as specified in the State statute of limitations
or under common law) provides a commencement date
which is earlier than the federally required
commencement date, such period shall commence at
the federally required commencement date in lieu
of the date specified in such State statute.
(2) State law generally applicable
7
Except as provided in paragraph (1), the statute
of limitations established under State law shall
apply in all actions brought under State law for
personal injury, or property damages, which are
caused or contributed to by exposure to any
hazardous substance, or pollutant or contaminant,
released into the environment from a facility.
42 U.S.C. § 9658. Per the section’s definition section,
“‘applicable limitations period’ means the period specified in a
statute of limitations during which a civil action referred to
in subsection (a)(1) . . . may be brought,” id. § 9658(b)(2),
“‘commencement date’ means the date specified in a statute of
limitations as the beginning of the applicable limitations
period,”
id. § 9658(b)(3), and “‘federally required commencement
date’ means the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages
referred to in subsection (a)(1) . . . were caused or
contributed to by the hazardous substance or pollutant or
contaminant concerned.”
Id. § 9658(b)(4)(A). Thus, if a state
statute of limitations provides that the period in which an
action may be brought begins to run prior to a plaintiff’s
knowledge of his injury, § 9658 preempts the state law and
allows the period to run from the time of the plaintiff’s actual
or constructive knowledge. And if a minor or incompetent
plaintiff is involved, the period does not begin to run until
the plaintiff reaches majority or competency or “has a legal
representative appointed.”
Id. § 9658(b)(4)(B).
8
II.
During the twenty-seven years since Congress passed § 9658,
the amendment has no doubt served the goal of preserving claims
that otherwise would have been defeated by state statutes of
limitations. But it has also generated controversy. We address
one such area of dispute here—namely, whether § 9658 preempts
state statutes of repose.
A.
The site at issue in this case is in Asheville, North
Carolina, where CTS formerly operated a fifty-four-acre plant. 3
CTS “manufactures” and “disposes of” electronics and electronic
parts, and from 1959 to 1985, it operated the Mills Gap Road
Electroplating Facility (the Facility) in Asheville. At the
Facility, CTS stored notable quantities of TCE and manufactured
products using TCE, cyanide, chromium VI, and lead.
In 1987, CTS sold the Facility to Mills Gap Road
Associates. CTS had promised realtors that the property “ha[d]
been rendered in an environmentally clean condition,” that “[t]o
the best of [its] knowledge, no on-site disposal or otherwise
3
CTS was formed in 1959 as CTS of Asheville, Inc. In 1983,
CTS of Asheville, Inc., dissolved, but CTS continued to operate
the Asheville plant as CTS Corporation, Asheville Division until
1985.
9
wanton disposal methods were practiced at [the] facility,” and
that as soon as “the existing inventory of materials contained
in drums and other miscellaneous equipment within the plant
[was] removed from the premises, no threat to human health or
the environment [would] remain.”
Mills Gap Road Associates eventually sold portions of the
land to Bradley, Richardson, and others, and as noted above,
Bradley and Richardson learned subsequent to their purchases
that their land was contaminated. Thus, they joined with others
who “live in the vicinity of [their] residence” to bring a
nuisance claim. The other property owners claim that they “have
been and continue to be exposed to the CTS . . . toxins via
contact from air, land and water.”
The landowners cite damages such as “diminution in the
value of their real property” and fear “for their health and
safety and that of their family members.” They request (1) a
“judgment against [CTS] requiring reclamation of the 1,000,000
pounds of the toxic chemical contaminants” that belong to the
corporation, (2) “remediation of the environmental harm caused
by [CTS’s] toxic chemicals,” and (3) “monetary damages in an
amount that will fully compensate them for all the losses and
damages they have suffered, or . . . will suffer in the future.”
10
B.
In North Carolina, real property actions are subject to a
three-year statute of limitations per the “Limitations, Other
than Real Property” section of the General Statutes. See N.C.
Gen. Stat. § 1-52; Crawford v. Boyette, 464 S.E.2d 301, 303
(N.C. App. 1995). A real property action accrues when “physical
damage to [a claimant’s] property becomes apparent or ought
reasonably to have become apparent.” N.C. Gen. Stat. § 1-
52(16). Notably, however, a claimant’s actual or constructive
knowledge of damage is not the only factor that regulates
accrual. Nor does lack of such knowledge lend life to a claim
indefinitely. Rather, § 1-52(16) prohibits a “cause of action
[from] . . . accru[ing] more than 10 years from the last act or
omission of the defendant giving rise to the cause of action.”
Id. Accordingly, once ten years have passed since a defendant’s
last tortious act, claims for damages from such conduct become
nonexistent, regardless of whether a claimant had knowledge of
his harm within the ten-year window.
Here, the last act or omission of CTS occurred in 1987,
when it sold the Facility to Mills Gap Road Associates. Thus,
when the landowners filed their nuisance action in 2011, CTS
moved to dismiss, maintaining that North Carolina’s ten-year
limitation on the accrual of real property actions barred the
claim. The landowners countered, citing § 9658 of CERCLA as
11
preemptive of North Carolina’s limitation. The magistrate judge
rejected the landowners’ argument. The court reasoned that the
ten-year limitation is a statute of repose and that because
§ 9658 mentions only statutes of limitations, it is inapplicable
here. Thus, it recommended dismissal, and the district court
adopted the recommendation.
III.
Before analyzing the decision below, we briefly review the
concepts of limitations and repose. Statutes of limitations and
statutes of repose both operate as limits on the amount of time
that a plaintiff has to bring a claim. A statute of limitations
is a “law that bars claims after a specified period . . . based
on the date when the claim accrued (as when the injury occurred
or was discovered).” Black’s Law Dictionary 1546 (9th ed.
2009). As this Court has previously noted, such limitations
serve defendants by “encourag[ing] prompt resolution of disputes
by providing a simple procedural mechanism to dispose of stale
claims.” First United Methodist Church of Hyattsville v. U.S.
Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989). In contrast, a
statute of repose “bar[s] any suit that is brought after a
specified time since the defendant acted . . . even if this
period ends before the plaintiff has suffered a resulting
injury.” Black’s Law Dictionary 1546 (9th ed. 2009). Where
12
repose is concerned, “considerations of the economic best
interests of the public as a whole” are at play, and
“substantive grants of immunity based on a legislative balance
of the respective rights of potential plaintiffs and defendants
[are] struck by determining a time limit beyond which liability
no longer exists.” First United Methodist, 882 F.2d at 866.
Here, North Carolina’s ten-year limitation bars lawsuits
“brought after a specified time since the defendant acted,”
Black’s Law Dictionary 1546 (9th ed. 2009), without regard for
the plaintiff’s knowledge of his harm, N.C. Gen. Stat. § 1-
52(16). As such, although North Carolina does not explicitly
identify the limitation as a statute of repose (or, for that
matter, use the word “repose” anywhere in its statutes), we
think the court below properly categorized it as such. Cf.
Robinson v. Wadford, 731 S.E.2d 539, 541 (N.C. Ct. App. 2012)
(referring to the ten-year limitation in § 1-52(16) as a statute
of repose); Tipton & Young Constr. Co. v. Blue Ridge Structure
Co.,
446 S.E.2d 603, 604 (N.C. Ct. App. 1994) (same).
A.
Determining whether § 9658 affects the operation of North
Carolina’s ten-year limitation is an exercise in statutory
interpretation. When we interpret statutes, our goal is to
effectuate Congress’s intent, United States v. Abdelshafi, 592
13
F.3d 602, 607 (4th Cir. 2010), and we accomplish this by first
examining the text of the statute, Holland v. Big River Minerals
Corp.,
181 F.3d 597, 603 (4th Cir. 1999). If we find the
meaning of the text plain, we accord it that meaning
“[a]bsent . . . clearly expressed legislative intent to the
contrary.”
Abdelshafi, 592 F.3d at 607 (quoting United States
v. Bell,
5 F.3d 64, 68 (4th Cir. 1993)) (internal quotation
marks omitted). If we determine that its meaning is ambiguous,
however, we “look beyond the language of the statute to the
legislative history for guidance.” Stiltner v. Beretta U.S.A.
Corp.,
74 F.3d 1473, 1482 (4th Cir. 1996) (en banc). Moreover,
we determine whether a statute’s language is plain “by reference
to the language itself, the specific context in which that
language is used, and the broader context of the statute as a
whole.”
Holland, 181 F.3d at 603 (quoting Robinson v. Shell Oil
Co.,
519 U.S. 337, 341 (1997)) (internal quotation marks
omitted).
B.
Here, we interpret a statute that is ambiguous. As noted
by the district court, § 9658 uses the words “statute of
limitations.” Indeed, the phrase and its plural form appear
five times. See § 9658(a), (b)(2), (b)(3). Noticeably absent
is the phrase “statutes of repose.” Thus, a simple review of
14
§ 9658’s language could reasonably lead to a conclusion that its
application is limited only to statutes of limitations. We
agree with the court below that the text is susceptible to this
interpretation. But we also think that the text lends itself to
an alternate reading—one that includes repose limitations such
as North Carolina’s.
Per the text of § 9658, a state limitations period must
meet two conditions before the federally required commencement
date applies to a cause of action: (1) it must be an
“applicable limitations period” that is “specified in the State
statute of limitations or under common law” and (2) it must
“provide[] a commencement date which is earlier than the
federally required commencement date.” Id. § 9658(a)(1). For
the following reasons, we think North Carolina’s ten-year
limitation meets these conditions here.
First, the ten-year bar is located with the statutes of
limitations periods in a section titled, “Limitations, Other
than Real Property.” N.C. Gen. Stat. § 1-52. As such, it is a
limitations period “specified in the State statute of
limitations or under common law.” See 42 U.S.C. § 9658(a)(1).
Second, it is (1) a “period,” (2) “specified in a statute of
limitations,” (3) “during which a civil action . . . may be
brought”; thus, it comports with the definition of “applicable
limitations period.” See id. § 9658(b)(2). Finally, because
15
the period begins to run when the defendant commits his last
act, rather than when the plaintiff has knowledge of harm, its
“commencement date . . . is earlier than the federally required
commencement date.” See id. § 9658(a)(1). Accordingly, we
conclude that in spite of § 9658’s repeated use of the phrase
“statute of limitations,” the text is susceptible to an
interpretation that includes repose limitations such as North
Carolina’s. In sum, we reckon § 9658’s text capable of at least
two interpretations, preventing it from being straightforwardly
categorized as “plain and unambiguous.”
Lest we seem to be stretching to find ambiguity in the
text, we make two additional observations. First, the terms
“statute of limitations” and “statute of repose” have seen
considerable development in their usage and meaning. Indeed, a
historical analysis reveals that both scholars and courts have
often used the terms interchangeably. See McDonald v. Sun, 548
F.3d 774, 781 & n.3, n.4 (9th Cir. 2008) (collecting cases and
academic articles that demonstrate a historical lack of
distinction between the terms). Thus, in this context,
Congress’s choice to use “statute of limitations” is in no way
dispositive as to whether it intended § 9658 to apply to
statutes of repose. Rather, given the inconsistent manner in
which the term has been used, it is entirely probable that in
1986, when Congress added § 9658 to CERCLA, it intended “statute
16
of limitations” to include precisely the type of ten-year
limitation that we are dealing with here. Second, § 9658
manifests a lack of internal consistency in its reference to an
“applicable limitations period.” Subsection (a)(1) notes that
such a period is “specified in the State statute of limitations
or under common law,” but the definition of “applicable
limitations period” and “commencement date” make no reference to
common law. Thus, to the extent that a limitations period is
established only under common law, § 9658 fails to manifest a
plain meaning applicable in such a circumstance.
C.
When the text of a statute is ambiguous, we “look to other
indicia of congressional intent such as the legislative history”
to interpret the statute. CGM, LLC, v. BellSouth Telecomm’s,
Inc., 664 F.3d 46, 53 (4th Cir. 2011). As explained in Part I,
supra, § 9658 was adopted by Congress to “address[] the problem
identified in the . . . study [group report],” H.R. Conf. Rep.
No. 99-962, at 261, reprinted in 1986 U.S.C.C.A.N. 3276, 3354.
The study group report was equally concerned with statutes of
repose and limitations, and with their effect of barring
plaintiffs’ claims before they are aware of them.
Moreover, Congress’s purpose in enacting CERCLA was
remedial. Blake A. Watson, Liberal Construction of CERCLA Under
17
the Remedial Purpose Canon: Have the Lower Courts Taken a Good
Thing Too Far?, 20 Harv. Envtl. L. Rev. 199, 286 (1996) (“CERLCA
is not only more remedial than most legislative enactments, it
is arguably the most remedial of all federal environmental
statutes . . . .”). Indeed,
[t]he Act is distinctive in the spectrum of federal
environmental protection legislation in that the
principal focus is remedial and corrective rather than
regulatory. CERCLA does not set standards for
prospective compliance by industry but essentially is
a tort-like backward-looking statute designed to
[clean up] expeditiously abandoned hazardous waste
sites and respond to hazardous spills and releases of
toxic wastes into the environment.
Id. (quoting William Murray Tabb & Linda A. Malone,
Environmental Law: Cases & Materials 637 (1992)). Moreover,
§ 9658 resulted from Congress’s additional attempts to ensure
adequate remedies, and it furthers CERCLA’s remedial goals by
preempting state limitation periods that would otherwise bar
causes of action when harms lie dormant. We have observed that
“CERCLA, as all remedial statutes, must be given a broad
interpretation to effect its ameliorative goals.” First United
Methodist, 882 F.2d at 867.
When faced with a remedial statute, our interpretive charge
is simple: Employ a “standard of liberal construction [to]
accomplish [Congress’s] objects.” Urie v. Thompson, 337 U.S.
163, 180 (1949); see also Niagara Mohawk Power
Corp., 596 F.3d
at 132 (recognizing the need to liberally construe CERCLA to
18
accomplish congressional objectives); see also Axel Johnson,
Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 416 (4th
Cir. 1999) (same). In light of this charge, we reject a reading
of § 9658 that excludes application of its provisions to North
Carolina’s ten-year limitation. Such an interpretation may seem
to be textually sound under one possible reading of the statute,
but it offers too narrow an approach and one that thwarts
Congress’s unmistakable goal of removing barriers to relief from
toxic wreckage. Refusing to apply § 9658 to statutes of repose
allows states to obliterate legitimate causes of action before
they exist. Because this is precisely the barrier that Congress
intended § 9658 to address, we will not read the statute in a
manner that makes it inapplicable in such a circumstance. Doing
so cannot be termed an honest attempt to “effectuate Congress’s
intent.” Accordingly, we hold that the federally required
commencement date in § 9658 preempts North Carolina’s ten-year
limitation on the accrual of real property claims.
In so holding, we join the view articulated by the Ninth
Circuit in McDonald v. Sun, in which the plaintiffs found
themselves in circumstances remarkably similar to those of the
landowners in this case. See 548 F.3d at 777-78, 783 (“[G]iven
the ambiguity of the term ‘statute of limitations at the time of
the adoption of § [9658], taken alongside the only evidence of
Congressional intent, it is evident that the term ‘statute of
19
limitations’ in § [9658] was intended by Congress to include
statutes of repose.”). Although the Fifth Circuit delineated an
opposing view in Burlington Northern & Sante Fe Railway Co. v.
Poole Chemical Co., 419 F.3d 355 (5th Cir. 2005), we are
unpersuaded by its reasoning. There, the plaintiffs had
knowledge of their claim prior to expiration of the state
statute of repose.
Id. at 359-60, 364-65. Thus, as recognized
by that court, the “case [did] not involve the delayed
discovery . . . which § 9658 was intended to address.”
Id. at
364-65.
D.
Our decision here will likely raise the ire of corporations
and other entities that wish to rest in the security of statutes
of repose, free from the threat of being called to account for
their contaminating acts. They likely will cite the well-known
policies underlying such statutes and asseverate that we have
ignored them. But we are not ignorant of these policies, nor
have we turned a blind eye to their importance.
Repose statutes do not exist simply to protect defendants;
they also ensure that cases are processed efficiently. See
United States v. Kubrick, 444 U.S. 111, 117 (1979) (“[S]tatutes
of repose . . . protect defendants and the courts from having to
deal with cases in which the search for truth may be seriously
20
impaired by the loss of evidence, whether by death or
disappearance of witnesses, fading memories, disappearance of
documents, or otherwise.”). And although our decision removes
one potential time barrier to a plaintiff’s claim, it does not
relax his burden of proof. In cases with latent harms,
necessary evidence will disappear as time passes, and
intervening causes will complicate efforts to pin costs on one
party. Even without the hindrance of an official repose
statute, plaintiffs may not be able to establish a cause of
action or recover damages. Furthermore, because our decision
does nothing to diminish North Carolina’s requirement that
plaintiffs bring claims within three years of discovery,
defendants will not necessarily be endlessly subjected to the
possibility of litigation. Finally, our stance goes no further
than that contemplated by the study group that Congress
commissioned. The Group foresaw that the “legislative balance
of the respective rights of potential plaintiffs and
defendants,” First United Methodist, 882 F.2d at 866, reflected
in statutes of repose might in this circumstance need to tip in
favor of plaintiffs: “The policy of repose expressed in the
statute of limitations may be outweighed by the policy of
affording the plaintiff a just opportunity to vindicate his
rights.” Superfund Section 301(e) Study Group, 97th Cong.,
Injuries and Damages from Hazardous Wastes-Analysis and
21
Improvement of Legal Remedies pt. 2, at 14 (Comm. Print 1982).
Accordingly, we reaffirm our conclusion that North Carolina’s
ten-year limitation on the accrual of actions is preempted by
§ 9658 of CERCLA. In so holding, we simply further Congress’s
intent that victims of toxic waste not be hindered in their
attempts to hold accountable those who have strewn such waste on
their land.
IV.
For the foregoing reasons, we reverse the district court’s
order and remand the case so that the litigation can proceed.
REVERSED AND REMANDED
22
DAVIS, Circuit Judge, concurring:
“Of course, determining whether a regulation or statute is
ambiguous presents a legal question, which we determine de
novo.” Humanoids Group v. Rogan, 375 F.3d 301, 306 (4th Cir.
2004). To say, as our good colleague says in dissent, that the
majority’s legal conclusion that § 9658 is ambiguous must be
“supported by the plain language of the statute itself,” post,
at 26, finds no support in Supreme Court or Fourth Circuit
authority. “Plain language” analysis does no such work. See
Watt v. Alaska,
451 U.S. 259, 266 (1981) (“[T]he plain-meaning
rule is rather an axiom of experience than a rule of law, and
does not preclude consideration of persuasive evidence if it
exists.”) (citation and internal quotation marks omitted).
Moreover, in any event, as the majority opinion makes clear,
“the meaning of statutory language, plain or not, depends on
context.” Holloway v. United States,
526 U.S. 1, 7 (1999)
(quotations omitted). Judge Floyd’s careful analysis is
faithful to this important, overarching principle, and I am
pleased to join his fine opinion in full.
23
THACKER, Circuit Judge, dissenting:
With all due respect to my friends in the majority, I must
dissent. The majority essentially concludes § 9658 preempts two
categories of state statutes: statutes of limitations and
statutes of repose. However, in my view the plain and
unambiguous language of § 9658 indicates only statutes of
limitations were intended to be preempted. Even if the
preemptive effect of § 9658 were susceptible to two
interpretations, a presumption against preemption would counsel
that we should limit § 9658’s preemptive reach to statutes of
limitations without also extending it to statutes of repose.
The relevant legislative history underscores this plain
reading of the statute, and a plain reading of § 9658 aligns
with general, deferential principles of legislative compromise
that counsel against a liberal reading of the statute.
Accordingly, I would affirm.
I.
Although this case arises in the context of federal
preemption, at its core, it is about statutory interpretation.
The key issue is whether the phrase “statute of limitations” as
used in the 1986 amendments to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (“CERCLA”),
Act of Oct. 27, 1986, Pub. L. No. 99-499, 100 Stat. 1613 (“1986
24
Amendments”), and codified in 42 U.S.C. § 9658, preempts North
Carolina’s 10-year statute of repose.
A.
Plain Meaning
As in all matters of statutory interpretation, our starting
point is an analysis of the statutory text. Chris v. Tenet, 221
F.3d 648, 651 (4th Cir. 2000). We must begin by asking “whether
the language at issue has a plain and unambiguous meaning . . .
.” Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997). This
first step may also be our last: if the statutory language has a
plain and unambiguous meaning, “we must apply the statute
according to its terms.” Carcieri v. Salazar,
555 U.S. 379, 387
(2009).
In determining whether the language has a plain and
unambiguous meaning, “we consider the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.” Johnson v. Zimmer, 686 F.3d
224, 232 (4th Cir. 2012) (internal quotation marks omitted). If
certain terms are undefined in the relevant statutory
provisions, they “are typically interpreted as taking their
ordinary, contemporary, common meaning.”
Id. (internal
quotation marks omitted).
25
1.
Language of Section 9658
CERCLA § 9658 governs actions under state law for damages
from exposure to hazardous substances, and provides that
generally, “the statute of limitations established under State
law shall apply . . . .” 42 U.S.C. § 9658(a)(2). But the
statute also provides the following exception to this general
rule:
[I]f the applicable limitations period for such action
(as specified in the State statute of limitations or
under common law) provides a commencement date which
is earlier than the federally required commencement
date, such period shall commence at the federally
required commencement date in lieu of the date
specified in such State statute.
Id. § 9658(a)(1). Of critical import here, the statute defines
the “applicable limitations period” as “the period specified in
a statute of limitations during which a civil action referred to
in subsection (a)(1) of this section may be brought.”
Id.
§ 9658(b)(2) (emphasis supplied). Similarly, the statute
defines the state “commencement date” as “the date specified in
a statute of limitations as the beginning of the applicable
limitations period.”
Id. § 9658(b)(3) (emphasis supplied). The
“federally required commencement date” provides an enhanced
version of the traditional discovery rule and is defined as “the
date the plaintiff knew (or reasonably should have known) that
the personal injury or property damages . . . were caused or
26
contributed by the hazardous substance . . . .” Id.
§ 9658(b)(4). 1 Thus, § 9658 will preempt state law where a state
statute of limitations begins to run before it would have run
under the federally required commencement date.
The key question then is whether the meaning of § 9658, by
its reference to “statute of limitations,” is plain and
unambiguous. The majority answers that question by concluding
that the phrase “statute of limitations” is ambiguous, and thus
encompasses both statutes of limitations and statutes of repose.
Ante at 16 (determining that “§ 9658’s text [is] capable of at
least two interpretations, preventing it from being
straightforwardly categorized as ‘plain and unambiguous.’”).
The majority’s conclusion, however, is not supported by the
plain language of the statute itself.
2.
Modern and Historical Context
The difficulty presented in this case springs from the
definitions of “statutes of limitations” and “statutes of
repose” in use today versus their historical understanding.
1
As opposed to a more traditional discovery rule that
requires simply knowledge of the injury, the “federally required
commencement date” requires both knowledge of the injury and its
cause. Therefore, this dissent at times uses the term “enhanced
discovery rule” to refer to the rule as expressed in the
definition of “federally required commencement date.”
27
Today, we understand a statute of limitations, on the one
hand, to be “a procedural device that operates as a defense to
limit the remedy available from an existing cause of action.”
First United Methodist Church of Hyattsville v. U.S. Gypsum Co.,
882 F.2d 862, 865 (4th Cir. 1989); see also Black’s Law
Dictionary 1546 (9th ed. 2009) (defining statute of limitations
as “A law that bars claims after a specified period; specif., a
statute establishing a time limit for suing in a civil case,
based on the date when the claim accrued (as when the injury
occurred or was discovered).”). In other words, a statute of
limitations “extinguishes the right to prosecute an accrued
cause of action after a period of time.” Burlington N. & Santa
Fe Ry. Co. v. Poole Chem. Co.,
419 F.3d 355, 363 (5th Cir. 2005)
(internal quotation marks omitted). Statutes of limitations
typically begin to run either on the date of the plaintiff’s
injury, or on the date the injury is first discovered or should
have been discovered with reasonable diligence. See
id.
A statute of repose, on the other hand, “creates a
substantive right in those protected to be free from liability
after a legislatively-determined period of time.” First United
Methodist, 882 F.2d at 866; see also Black’s Law Dictionary 1546
(9th ed. 2009) (defining statute of repose as “[a] statute
barring any suit that is brought after a specified time since
the defendant acted (such as by designing or manufacturing a
28
product), even if this period ends before the plaintiff has
suffered a resulting injury.”). A statute of repose “abolishes
the cause of action after the passage of time even though the
cause of action may not have yet accrued.” Burlington, 419 F.3d
at 363 (internal quotation marks omitted). Statutes of repose
typically begin to run after “the occurrence of some event other
than the injury which gave rise to the claim[,]” McDonald v. Sun
Oil Co.,
548 F.3d 774, 779 (9th Cir. 2008) (internal quotation
marks omitted), such as an act by a defendant or the manufacture
of a product, see
Burlington, 419 F.3d at 363.
The motivations behind statutes of limitations and statutes
of repose are different as well. For example, “[s]tatutes of
limitations are motivated by considerations of fairness to
defendants and are intended to encourage prompt resolution of
disputes by providing a simple procedural mechanism to dispose
of stale claims.” First United Methodist, 882 F.2d at 866.
Thus, they can be equitably tolled where, for example, a
defendant fraudulently conceals a plaintiff’s injury.
Id.
Statutes of repose are motivated by “considerations of the
economic best interests of the public as a whole” and reflect “a
legislative balance of the respective rights of potential
plaintiffs and defendants struck by determining a time limit
beyond which liability no longer exists.”
Id. Thus, unlike
29
statutes of limitations, statutes of repose are substantive
grants of immunity from liability. Id.
But this clear distinction between statutes of limitations
and statutes of repose is of modern vintage. Historically, the
phrase “statute of repose” encompassed a broad range of time-bar
statutes that limited litigation, and “provided peace, or
‘repose,’ to potential litigants . . . .” Wenke v. Gehl Co.,
682 N.W.2d 405, 423 (Wis. 2004); see also
id. (“Early treatise
writers and judges considered time bars created by statutes of
limitations, escheat and adverse possession as periods of
repose. As the courts began to modify statutory limitations by
applying the ‘discovery rule,’ legislatures responded by
enacting absolute statutes of repose.” (emphasis omitted)
(quoting Reynolds v. Porter,
760 P.2d 816, 819–20 (Okla.
1988))).
Indeed, the earliest reference to “statutes of repose” in
this circuit appears in Bartlett v. Ambrose, 78 F. 839, 842 (4th
Cir. 1897), in which we cited the Supreme Court’s language in
Pillow v. Roberts,
54 U.S. 472,
13 How. 477 (1851), proclaiming,
“[statutes of limitations] are statutes of repose, and should
not be evaded by a forced construction.”
Put simply, what we today would call statutes of
limitations were historically considered, along with other
statutory time-bars, to provide repose to litigants and were
30
thus, generally, statutes of repose. These overlapping
definitions, however, have evolved into the distinct definitions
we have today.
3.
“Statute of Limitations” in 1986
Using the dictionary definition of “statute of limitations”
available to Congress in 1986, it is clear that there is no
ambiguity as to the meaning of that term at the time § 9658 was
enacted. The Fifth Edition of Black’s Law Dictionary (the
“Fifth Edition”), the most recent edition available to Congress
in 1986 at the time CERCLA was amended to include § 9658, had
not yet adopted the separate, modern definitions for both
“statutes of limitations” and “statutes of repose,” but was
nonetheless in accord with our modern understanding where it
mattered.
The Fifth Edition of Black’s Law Dictionary defined
“statute of limitations” as follows:
A statute prescribing limitations to the right of
action on certain described causes of action or
criminal prosecutions; that is, declaring that no suit
shall be maintained on such causes of action, nor any
criminal charge be made, unless brought within a
specified period of time after the right accrued.
Statutes of limitation are statutes of repose, and are
such legislative enactments as prescribe the periods
within which actions may be brought upon certain
claims or within which certain rights may be enforced.
In criminal cases, however, a statute of limitation is
an act of grace, a surrendering by sovereign of its
31
right to prosecute. Also sometimes referred to as
“statutes of repose.”
Black’s Law Dictionary 835 (5th ed. 1979). 2 This definition is
clearly restricted to time limitations that begin to run after
the right to bring the cause of action accrues, that is, after
the injury or its discovery, as opposed to after a pre-
determined period of time, regardless of whether the action
otherwise accrues. It, thus, confirms that statutes of
limitations were but a subset of statutes of repose and were
therefore “sometimes referred to as ‘statutes of repose.’” Id.
Notably, this definition does not adopt the inverse
proposition that all statutes of repose are also statutes of
limitation. Therefore, based on the definition available to
Congress at the time of the 1986 Amendments, it is clear that
Congress necessarily did not intend to include statutes of
repose as within the definition of “statutes of limitations.”
At the time of the enactment of § 9658 in 1986, then, the
only possible ambiguity may have been the meaning of “statute of
repose” and whether that term had fully matured into its modern
definition. But Congress chose not to include “statute of
2
As noted, we now define a statute of limitations as “[a]
law that bars claims after a specified period; specif., a
statute establishing a time limit for suing in a civil case,
based on the date when the claim accrued (as when the injury
occurred or was discovered).” Black’s Law Dictionary 1546 (9th
ed. 2009).
32
repose” in § 9658, and thus we need not trouble ourselves with
what Congress may have thought it meant. 3
B.
The North Carolina Statute
After discerning the plain meaning of § 9658, we must
decide whether that plain meaning preempts the application of
North Carolina General Statute § 1-52(16) to Appellants’ state
law claim. As explained, in 1986, statutes of limitations were
understood to be statutes that limited the right to maintain an
action based on when the injured party accrued the right. North
Carolina’s three-year statute of limitations is just such a
restriction and is preempted by § 9658. North Carolina’s 10-
year statute of repose is not; therefore, it survives beyond the
1986 Amendments.
North Carolina General Statute § 1-52(16) contains both a
statute of limitations and a statute of repose. The first
sentence of § 1-52(16) provides a three-year statute of
limitations for personal injuries and property damages based on
a traditional form of the discovery rule. N.C. Gen. Stat. § 1-
3
Indeed, the study group commissioned by Congress to
provide recommendations for the 1986 Amendments clearly
understood statutes of repose to be different and distinct from
statutes of limitations, as discussed infra, and other treatises
recognized the distinction at least as early as 1987. See
Black’s Law Dictionary 1546 (9th ed. 2009) (quoting 54 C.J.S.
Limitations of Actions § 4 (1987)).
33
52(16) (“Within three years an action . . . for personal injury
or physical damage to claimant’s property, the cause of
action . . . shall not accrue until bodily harm to the claimant
or physical damage to his property becomes apparent or ought
reasonably to have become apparent to the claimant, whichever
event first occurs.”).
Section 1-52(16) also clearly provides a substantive 10-
year statute of repose that declares “no cause of action shall
accrue more than 10 years from the last act or omission of the
defendant giving rise to the cause of action.” Id. § 1-52(16).
But only the three-year provision specifies a time period
to bring a cause of action after the right has accrued by
operation of the discovery rule. The 10-year provision
specifies a time restriction regardless of whether the right to
bring the cause of action could have otherwise accrued. Thus,
only the former three-year provision falls within the definition
of “statute of limitations” available to Congress in 1986. See
Black’s Law Dictionary 835 (5th ed. 1979) (defining “statute of
limitations” as “[a] statute . . . declaring that no suit shall
be maintained . . . unless brought within a specified period of
time after the right accrued”). Therefore, only the three-year
provision may be considered in order to determine North
Carolina’s “applicable limitations period.” See 42 U.S.C.
34
§ 9658(b)(2) (defining “applicable limitations period” as “the
period specified in a statute of limitations”).
Section 9658 preempts state law where state law does not
accord plaintiffs the benefit of the federally required
commencement date found in § 9658(b)(4). Because North
Carolina’s three-year provision imposes the earlier, traditional
discovery rule to commence the applicable limitations period,
and not the commencement date mandated by § 9658, § 9658
preempts North Carolina’s statute of limitations, but not its
statute of repose.
In contrast, although § 9658 is clearly applicable to
preempt the running of North Carolina’s statute of limitations,
any application to North Carolina’s statute of repose is
untenable. A simple attempt to map § 9658 onto the North
Carolina statute of repose illustrates the point. To trigger
§ 9658(a)(1), the state “commencement date” must be “earlier
than the federally required commencement date.” 42 U.S.C.
§ 9658(a)(1) (“[I]f the applicable limitations period for such
action (as specified in the State statute of limitations or
under common law) provides a commencement date which is earlier
than the federally required commencement date . . . .”).
Importantly, the commencement date is defined as the beginning
of the period in which a civil action may be brought. See id.
35
§ 9658(b)(2)–(3). 4 But the North Carolina statute of repose does
not provide a beginning or “commencement date” as that term is
defined. Rather, it provides an outer limit, after which no
cause of action may accrue. Because North Carolina’s statute of
repose does not create the beginning of the applicable
limitations period, § 9658 cannot graft neatly –– or at all ––
onto the North Carolina statute of repose so as to preempt its
enforcement.
C.
Legislative History
Given the plain meaning of the statute, we need not look to
legislative history. But, even if we did, the legislative
history of § 9658 also clearly supports the conclusion that
Congress was aware that statutes of limitations were a distinct
category of time-bar statutes and specifically chose only to
preempt those statutes and not other statutory time bars such as
statutes of repose.
As a part of the initial enactment of CERCLA in 1980,
Congress commissioned a study group of expert lawyers “to
determine the adequacy of existing common law and statutory
4
The North Carolina statute of limitations establishes the
beginning of that period as the point at which “bodily
harm . . . or physical damage . . . becomes apparent or ought
reasonably to have become apparent . . . .” N.C. Gen. Stat.
§ 1-52(16).
36
remedies in providing legal redress for harm to man and the
environment caused by the release of hazardous substances into
the environment . . . .” CERCLA, Pub. L. No. 96-510,
§ 301(e)(1), 94 Stat. 2767 (1980). The study group responded
with a detailed report and recommendations for improving
remedies under CERCLA. See Superfund Section 301(e) Study
Group, 97th Cong., Injuries and Damages from Hazardous Wastes––
Analysis and Improvement of Legal Remedies (Comm. Print 1982)
(the “301(e) Report”).
The 301(e) Report contained ten categories of
recommendations, the ninth of which included recommendations for
“Statutes of Limitations.” The 301(e) Report outlined the
rationale for implementing an enhanced discovery rule in CERCLA
actions, id. at 28–30, and provided its recommendation,
id. at
240–41. The 301(e) Report’s recommendation with regard to
statutes of limitations, in its entirety, was as follows:
A small number of states still follow the so-
called traditional rule that the cause of action
accrues from the time of exposure. Another small
number of states has not as yet clearly adopted either
the traditional or the discovery rule. Since many of
the hazardous wastes are carcinogens, mutagens,
teratogens or substances with delayed impact on
different organs or the central nervous system, the
latency period for the appearance of injury or disease
is likely to be extended for thirty years or more. In
states that have not clearly adopted the discovery
rule (i.e., that the cause of action accrues from the
time the plaintiff discovered or reasonably should
have discovered the injury or disease) the cause of
action will usually be time barred when the plaintiff
37
discovers his hurt. The Study Group recommends that
all states that have not already done so, clearly
adopt the rule that an action accrues when the
plaintiff discovers or should have discovered the
injury or disease and its cause. The Recommendation
is intended also to cover the repeal of the statutes
of repose which, in a number of states have the same
effect as some statutes of limitation in barring
plaintiff’s claim before he knows that he has one.
Id.
Two key takeaways can be culled from the 301(e) Report’s
recommendation: (1) an enhanced discovery rule should apply to
statutes of limitations; and (2) statutes of repose are separate
and distinct from statutes of limitations.
First, the 301(e) Report clearly informed Congress that an
enhanced discovery rule should apply to statutes of limitations
in all states for injuries caused by hazardous substances. In
essence, the 301(e) Report took the position that a plaintiff’s
statute of limitations should not begin to run until the
plaintiff both discovers or should have discovered the injury,
and realizes that his or her injury was caused by the hazardous
substance. 301(e) Report at 241 (“The Study Group recommends
that all states that have not already done so, clearly adopt the
rule that an action accrues when the plaintiff discovers or
should have discovered the injury or disease and its cause.”).
Congress agreed. In enacting § 9658, Congress implemented this
exact formulation of the discovery rule in its definition of the
38
“federally required commencement date.” 42 U.S.C. §
9658(b)(4)(A). 5
Second, the 301(e) Report put Congress on notice that
statutes of limitations are distinct time-bars, separate from
statutes of repose, even if they have the same effect. The
301(e) Report recommended to Congress not only that the
aforementioned enhanced discovery rule should be applied to
state statutes of limitations, but also recommended that state
statutes of repose be repealed. 301(e) Report at 241 (“The
Recommendation is intended also to cover the repeal of the
statutes of repose which, in a number of states have the same
effect as some statutes of limitation in barring plaintiff’s
claim before he knows that he has one.”). By the plain language
of § 9658, Congress disagreed.
Based on the 301(e) Report, Congress was clearly on notice
that statutes of repose, separate and distinct from statutes of
limitations, could prohibit recovery by certain plaintiffs, and
yet chose to leave § 9658 completely replete of any reference to
such statutes.
5
The “federally required commencement date” is defined, in
relevant part, as “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 concerned.” 42 U.S.C.
§ 9658(b)(4)(A).
39
D.
Legislative Compromise
The majority notes that CERCLA is a remedial statute and
thus deserves broad construction to accomplish its objectives.
Ante at 17. This is true. But the plain meaning of the statute
and the role of legislative compromise restrain the application
of the remedial canon of statutory interpretation. See 3550
Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355,
1363 (9th Cir. 1990) (noting that even if courts give CERCLA a
“broad interpretation to accomplish its remedial goals[,]”
courts must nonetheless “reject a construction that [CERCLA] on
its face does not permit, and the legislative history does not
support.”); Blake A. Watson, Liberal Construction of CERCLA
under the Remedial Purpose Canon: Have the Lower Courts Taken a
Good Thing too Far?, 20 Harv. Envtl. L. Rev. 199, 300–01 (1996)
(“It has been firmly established that the fact that a statute is
‘highly remedial in nature’ and ‘entitled to a liberal
construction’ nevertheless ‘does not justify ignoring plain
words of limitation.’”) (quoting MacEvoy Co. v. United States,
322 U.S. 102, 107 (1944));
id. at 301 (“[T]he remedial purpose
canon has diminished utility when the interpretive issue focuses
on provisions of CERCLA that are the product of compromise.
40
Such compromises can be found in both CERCLA’s text and its
enactment history.”). 6
In passing the 1986 Amendments, Congress did not arm toxic
tort plaintiffs with every possible advantage nor remove every
obstacle from their path to recovery. Rather, the 1986
Amendments reflected the process of legislative compromise
based, in part, on the 301(e) Report’s analysis and
recommendations. As mentioned, the 301(e) Report was
commissioned to evaluate existing statutory and common law
remedies for environmental harms caused by hazardous substances
and to provide corresponding recommendations. CERCLA, Pub. L.
No. 96-510, § 301(e)(1), (4), 94 Stat. 2767 (1980).
But Congress did not implement every recommendation
supplied by the 301(e) Report. In fact, quite to the contrary.
For example, in its “Ninth Recommendation,” the 301(e) Report
recommended a variety of changes to actions arising under state
law. 301(e) Report, 240–51. The 301(e) Report recommended
states adopt an enhanced discovery rule, id. at 241; repeal
statutes of repose, id.; adopt liberal joinder rules for
6
Even if CERCLA, as enacted in 1980, was the product of an
11th-hour compromise and, thus, also lends itself to a liberal
construction for that reason as the majority seems to imply,
ante at 4, 17–19, the provision at issue in this case, § 9658,
was passed years later in 1986 after careful study and
deliberation. The circumstances surrounding § 9658’s passage
certainly do not invite departure from its plain language.
41
plaintiffs, id. at 242; adopt a system of joint and several
liability with a de minimis exception,
id. at 243; adopt liberal
joinder rules for defendants,
id. at 244; implement their own
evidentiary presumptions,
id. at 245; and adopt a theory of
strict liability for hazardous waste activities,
id. at 245.
Congress could have drafted the 1986 Amendments to implement any
or all of the 301(e) Report’s recommendations by preempting
state law wherever it fell short of the 301(e) Report’s
recommendations. But the only revision affecting state law
Congress chose to implement in the section explicitly covering
state procedural reform was the enhanced discovery rule via the
federally required commencement date. See 1986 Amendments, Pub.
L. No. 99-499, § 203, 100 Stat. 1613 (1986). Notably, Congress
was given the opportunity to repeal statutes of repose, but
chose not to.
That § 9658 reaches state statutes of limitations but not
statutes of repose strikes a balance between harmonizing certain
procedural matters in toxic tort cases and allowing states to
continue to regulate their own substantive areas of law. It is
the prerogative of Congress to strike that balance. See Hanford
Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1484 (9th
Cir. 1995) (concluding that even when the application of a
CERCLA provision leads to “harsh results[,]” courts should not
disrupt Congress’s balancing of the interests involved).
42
E.
Presumption Against Preemption
While at its most elemental this case concerns a matter of
statutory interpretation, that task arises in the context of
federal preemption. “Courts generally apply a presumption
against preemption in fields the states traditionally regulate.”
Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 330 (4th
Cir. 2006). Just as we presume “Congress does not cavalierly
pre-empt state-law causes of action[,]” Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996), we should also presume that Congress
does not cavalierly preempt state substantive rights to be free
from those state-law causes of action. Even “[f]ederal laws
containing a preemption clause[,]” such as § 9658, “do not
automatically escape the presumption against preemption.”
Id.
Rather, “[w]here the text of a preemption clause is open to more
than one plausible reading, courts ordinarily ‘accept the
reading that disfavors pre-emption.’”
Id. at 335 (quoting Bates
v. Dow Agrosciences LLC,
544 U.S. 431, 449 (2005)).
Here, the ability of a state to create a substantive right
to be free from liability under its own state tort law is
unquestionably a traditional field of state regulation.
Therefore, the general presumption against preemption likewise
weighs against giving § 9658 overly broad preemptive effect.
See Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357, 363
43
(5th Cir. 2008) (discussing the preemptive effect of § 9658 and
noting that “[i]f the extent of Congress’s preemptive intent is
unclear, the presumption favors a finding of limited
preemption.”); see generally Marsh v. Rosenbloom, 499 F.3d 165,
178 (2d Cir. 2007) (concluding CERCLA did not preempt certain
Delaware statutes in part because arguments in favor of greater
monetary recovery “alone are insufficient to justify
displacement of state law”).
II.
CERCLA and the 1986 Amendments clearly put a thumb on the
scales in favor of assisting plaintiffs who may have suffered
injuries due to toxic substances. But where Congress by plain
and unambiguous language has indicated how much pressure it
wishes to apply in that regard, it is not the duty of this court
to press harder and shift that balance. Rather, it is the
prerogative of Congress to strike that legislative compromise.
In sum, because I believe the plain language of § 9658
preempts North Carolina’s statute of limitations, but not its
statute of repose, I would affirm the decision of the district
court.
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