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.

dissenting opinion.

Judge Thacker wrote a

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.

FLOYD, Circuit Judge:

In

2009,

received

Appellants

unwelcome

concentrated

levels

dichloroethane
effects.

David

news:
of

(DCE),

Bradley
Their

and

well

trichloroethylene
both

solvents

Renee

Richardson

water

contained

(TCE)

that

have

and

cis-1,2-

carcinogenic

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 Carolinas ten-year

limitation on the accrual of real property claims barred the

suit, the district court granted CTSs 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

Commrs, 407 F.3d 266, 268 (4th Cir. 2005), we hold that the
discovery

rule

Environmental

articulated
Response,

in

9658

Liability,

of
and

the

Comprehensive

Compensation

Act

(CERCLA), 42 U.S.C. 9601-9675, preempts North Carolinas tenyear 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.

The

Valley

of

the

Drums 1

and

Canal 2

Love

disasters

made

headlines, urging Congress to pass legislation that granted some

measure

of

redress.

CERCLA,

an

act

In

aimed

at

response,

in

promoting

1980,

efficient

responses to the fallout from hazardous waste.

Congress
and

passed

equitable

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

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,
103940 (2d Cir. 1985) (In 1980, while the Senate considered
one early version of CERCLA, the House considered and passed
another.
eleventh

The version passed by both Houses, however, was an

hour

compromise

put

together

primarily

by

Senate

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 sites contamination was brought to light in the mid1970s.
Eckardt C. Beck, The Love Canal Tragedy, Envtl. Prot.
Agency (Jan. 1979), http://www.epa.gov/history/topics/lovecanal/
01.html.

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.
drafting

It
and

has

been

numerous

criticized

frequently

ambiguities

for

inartful

attributable

to

its

precipitous passage.); see also Rhodes v. Cnty. of Darlington,

833 F. Supp. 1163, 117276 (D.S.C. 1992) (providing a thorough
recounting

of

CERCLAs

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

contamination.

to

Metro.

the

parties

Water

responsible

Reclamation

Dist.

for
v.

N.

the
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 Yorks 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 Acts final

version,
examine

Congress
the

immediately

adequacy

of

established

existing

common

study

law

and

group

to

statutory

remedies in providing legal redress for harm . . . caused by the

release
U.S.C.

of

hazardous

9651(e)(1).

substances
The

Group

into

the

consisted

environment.
of

twelve

42

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 defendants last act or a
plaintiffs 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

statutes

intended

which,

in

also

to

number

cover
of

the

states

repeal
have

of

the

same

of

effect

repose

as

some

statutes of limitation in barring [a] plaintiffs 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. 99962,

at

261,

reprinted

in

1986

U.S.C.C.A.N.

3276,

3354,

enacting 9658 of CERCLA:

(a) State statutes
substance cases

of

limitations

for

hazardous

(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

by

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

sections

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)

referred

that

to

contributed

in

to

by

the

personal

subsection
the

contaminant concerned.

injury

or

property

(a)(1) . . . were

hazardous

substance

or

Id. 9658(b)(4)(A).

damages

caused
pollutant

or
or

Thus, if a state

statute of limitations provides that the period in which an

action

may

knowledge

be
of

brought
his

begins

injury,

to

9658

run

prior

preempts

to

the

plaintiffs

state

law

and

allows the period to run from the time of the plaintiffs actual
or

constructive

knowledge.

And

if

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 herenamely, 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,

Associates.

CTS

sold

the

Facility

to

Mills

Gap

Road

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

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.

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

that their land was contaminated.

who

live

in

nuisance claim.

the

vicinity

of

to

their

purchases

Thus, they joined with others

[their]

residence

to

bring

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 [CTSs] 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).
damage

A real property action accrues when physical

to

[a

claimants]

reasonably

to

have

52(16).

property

become

becomes

apparent.

apparent

N.C.

Gen.

or

Stat.

ought
1-

Notably, however, a claimants actual or constructive

knowledge

of

accrual.

Nor does lack of such knowledge lend life to a claim

indefinitely.

damage

is

not

the

only

factor

that

regulates

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 defendants

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

Carolinas

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 Carolinas limitation.

rejected the landowners argument.

The magistrate judge

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

2009).

discovered).

Blacks

Law

Dictionary

1546

(9th

ed.

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).

statute

of

repose

bar[s]

any

suit

that

is

In contrast, a
brought

after

specified time since the defendant acted . . . even if this

period
injury.

ends

before

the

plaintiff

has

suffered

resulting

Blacks Law Dictionary 1546 (9th ed. 2009).

12

Where

repose

is

interests

concerned,
of

the

considerations

public

as

of

whole

the
are

economic
at

play,

best
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 Carolinas ten-year limitation bars lawsuits

brought

after

specified

time

since

the

defendant

acted,

Blacks Law Dictionary 1546 (9th ed. 2009), without regard for
the plaintiffs knowledge of his harm, N.C. Gen. Stat. 152(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
Carolinas

ten-year

interpretation.

limitation

is

an

exercise

in

statutory

When we interpret statutes, our goal is to

effectuate Congresss 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).
meaning

of

the

text

plain,

[a]bsent . . . clearly
contrary.

we

expressed

If we find the

accord

it

legislative

that
intent

meaning
to

the

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 statutes 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.
Co.,

Holland, 181 F.3d at 603 (quoting Robinson v. Shell Oil

519

U.S.

337,

341

(1997))

(internal

quotation

marks

omitted).

B.
Here, we interpret a statute that is ambiguous.
by

the

district

limitations.
five times.

court,

9658

uses

the

words

As noted

statute

of

Indeed, the phrase and its plural form appear

See 9658(a), (b)(2), (b)(3).

is the phrase statutes of repose.

14

Noticeably absent

Thus, a simple review of

 9658s 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 readingone that includes repose limitations such

as North Carolinas.
Per the text of 9658, a state limitations period must
meet two conditions before the federally required commencement
date

applies

to

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[]

commencement

date

which

federally required commencement date.

the

following

reasons,

we

think

is

earlier

than

the

Id. 9658(a)(1).

North

Carolinas

For

ten-year

limitation meets these conditions here.

First, the ten-year bar is located with the statutes of
limitations

periods

in

section

titled,

Limitations,

than Real Property.

N.C. Gen. Stat. 1-52.

limitations

specified

period

in

limitations or under common law.

the

Other

As such, it is a

State

statute

of

See 42 U.S.C. 9658(a)(1).

Second, it is (1) a period, (2) specified in a statute of

limitations,

(3)

during

which

civil

action . . . may

be

brought; thus, it comports with the definition of applicable

limitations period.

See id. 9658(b)(2).

15

Finally, because

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 9658s repeated use of the phrase

statute

of

limitations,

the

text

is

susceptible

to

an

interpretation that includes repose limitations such as North

Carolinas.

In sum, we reckon 9658s 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.
statute

of

limitations

and

statute

of

First, the terms

repose

considerable development in their usage and meaning.

have

seen

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

distinction

between

that
the

demonstrate
terms).

historical

Thus,

in

this

lack

of

context,

Congresss choice to use statute of limitations is in no way

dispositive

as

to

statutes of repose.

whether

it

intended

9658

to

apply

to

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

limitation

that

to

include

we

are

precisely

dealing

with

the

type

here.

of

ten-year

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 Telecomms,

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,
remedial.

Congresss

purpose

in

enacting

CERCLA

was

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

statutes . . . .).

remedial

of

all

federal

environmental

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.

Environmental Law: Cases & Materials 637 (1992)).

Malone,
Moreover,

9658 resulted from Congresss additional attempts to ensure

adequate remedies, and it furthers CERCLAs remedial goals by
preempting

state

limitation

periods

that

causes of action when harms lie dormant.

CERCLA,

as

all

remedial

statutes,

would

otherwise

bar

We have observed that

must

be

given

interpretation to effect its ameliorative goals.

broad

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 [Congresss] 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

Carolinas 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

Congresss 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 Congresss

intent.

Accordingly,

we

hold

that

the

federally

required

commencement date in 9658 preempts North Carolinas 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

unpersuaded
knowledge

by

of

Co.,

419

its

reasoning.

their

statute of repose.
by

that

court,

claim

F.3d

355

prior

(5th
There,

to

case

[did]

2005),

we

are

the

plaintiffs

had

expiration

Id. at 359-60, 364-65.

the

Cir.

not

of

the

state

Thus, as recognized
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 plaintiffs claim, it does not

relax

his

burden

necessary

of

evidence

proof.
will

In

cases

disappear

with

as

latent

time

harms,

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.
does

nothing

plaintiffs

to

bring

Furthermore, because our decision

diminish
claims

North
within

Carolinas
three

requirement

years

of

that

discovery,

defendants will not necessarily be endlessly subjected to the

possibility of litigation.
than

that

contemplated

commissioned.
of

the

Finally, our stance goes no further

by

the

study

group

that

Congress

The Group foresaw that the legislative balance

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:
statute

of

affording
rights.
Injuries

The policy of repose expressed in the

limitations

the

plaintiff

Superfund
and

may
a

be
just

Section

Damages

outweighed

from

opportunity

301(e)

Study

Hazardous
21

by
to

the

policy

vindicate

Group,

97th

of
his

Cong.,

Wastes-Analysis

and

Improvement of Legal Remedies pt. 2, at 14 (Comm. Print 1982).

Accordingly, we reaffirm our conclusion that North Carolinas
ten-year limitation on the accrual of actions is preempted by
9658 of CERCLA.

In so holding, we simply further Congresss

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 courts
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

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

majoritys legal conclusion that 9658 is ambiguous must be

supported by the plain language of the statute itself, post,
at

26,

finds

authority.

no

support

in

Supreme

Court

or

Fourth

Circuit

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.

(quotations

omitted).

faithful

this

pleased

to
to

United
Judge

important,
join

States,
Floyds

overarching

his

fine

23

526

U.S.

careful

1,

(1999)

analysis

principle,
opinion

and

in

is
am

full.

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
statutes

of
of

state

statutes:

repose.

unambiguous

language

limitations

were

preemptive

effect

statutes

However,
of

intended
of

9658
to

in

my

of
view

indicates

be

limitations
the

only

preempted.

9658

were

and

plain

and

statutes

of

Even

susceptible

if
to

the
two

interpretations, a presumption against preemption would counsel

that we should limit 9658s 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

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

Carolinas 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.
F.3d 648, 651 (4th Cir. 2000).

Chris v. Tenet, 221

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,

according to its terms.

we

must

apply

the

statute

Carcieri v. Salazar, 555 U.S. 379, 387

(2009).
In

determining

unambiguous

whether

meaning,

we

the

language

consider

the

has

language

plain

and

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).

certain

terms

provisions,
ordinary,

they

are
are

undefined
typically

contemporary,

common

quotation marks omitted).

25

in

the

relevant

interpreted
meaning.

as

statutory

taking
Id.

If

their

(internal

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

9658(b)(2)

(a)(1)

of

(emphasis

this

section

supplied).

may

be

brought.

Similarly,

the

Id.

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).

federally

commencement

required

date

provides

an

The

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

9658(b)(4). 1

the

hazardous

substance

Id.

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

unambiguous.

to

statute

of

limitations,

is

plain

and

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 9658s text [is] capable of at
least

two

interpretations,

straightforwardly
The

majoritys

categorized

conclusion,

preventing
as

plain

however,

is

it

and
not

from

being

unambiguous.).
supported

by

the

from

the

plain language of the statute itself.

2.
Modern and Historical Context
The

difficulty

definitions

of

presented

statutes

of

in

this

case

limitations

springs
and

statutes

of

repose in use today versus their historical understanding.

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

Blacks

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).).
limitations

extinguishes

the

In other words, a statute of

right

to

cause of action after a period of time.

prosecute

an

accrued

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 plaintiffs

injury, or on the date the injury is first discovered or should
have been discovered with reasonable diligence.
A

statute

of

repose,

on

the

other

See id.

hand,

creates

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 Blacks 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.
limitations

are

motivated

by

For example, [s]tatutes of

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.
Thus,

they

defendant
Statutes

can

be

First United Methodist, 882 F.2d at 866.

equitably

fraudulently
of

repose

are

tolled

conceals

motivated

where,

for

plaintiffs
by

example,

injury.

considerations

a
Id.

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.

29

Id.

Thus, unlike

statutes

of

limitations,

statutes

grants of immunity from liability.

of

repose

are

substantive

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

repose, to potential litigants . . . .

peace,

or

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,
repose.

escheat

and

adverse

possession

as

periods

of

As the courts began to modify statutory limitations by

applying

the

discovery

rule,

enacting

absolute

statutes

(quoting

Reynolds

v.

of

Porter,

legislatures
repose.

760

P.2d

responded

(emphasis
816,

by

omitted)

81920

(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 Courts 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,

limitations

were

what

we

today

historically

would

considered,

call
along

statutes
with

of

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

Blacks

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

statutes

adopted
of

the

separate,

limitations

and

modern

definitions

statutes

of

repose,

for
but

both
was

nonetheless in accord with our modern understanding where it

mattered.
The

Fifth

Edition

of

Blacks

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.
statutes of repose.

Also sometimes referred to as

Blacks 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

determined

period

otherwise

accrues.

of

discovery,
time,
It,

as

opposed

regardless
thus,

of

to

after

whether

confirms

that

the

pre-

action

statutes

of

limitations were but a subset of statutes of repose and were

therefore sometimes referred to as statutes of repose.
Notably,

this

definition

does

not

adopt

the

Id.

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

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). Blacks 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.
Carolinas

three-year

statute

of

limitations

restriction and is preempted by 9658.

is

just

North
such

North Carolinas 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
sentence

of
of

limitations

and

1-52(16)

statute

provides

of

repose.

three-year

The

first

statute

of

limitations for personal injuries and property damages based on

a traditional form of the discovery rule.
3

N.C. Gen. Stat. 1-

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
Blacks 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

claimants

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 10year 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

operation

cause

of

the

of

action

after

discovery

rule.

the

right
The

has

10-year

accrued

by

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

Blacks 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).
provision
Carolinas

may

be

considered

applicable

Therefore, only the three-year

in

limitations

34

order

to

period.

determine
See

42

North
U.S.C.

 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

commencement

the

date

benefit

found

in

of

the

federally

9658(b)(4).

required

Because

North

Carolinas 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 Carolinas statute of limitations, but not its

statute of repose.
In

contrast,

although

9658

is

clearly

applicable

to

preempt the running of North Carolinas statute of limitations,

any

application

untenable.

to

North

simple

Carolinas

attempt

to

map

statute

9658

of
onto

Carolina statute of repose illustrates the point.

9658(a)(1),
than

the

the

state

federally

commencement

required

date

commencement

repose

must

date.

the

is

North

To trigger
be

earlier

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.

35

See id.

 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.

repose

does

not

create

Because North Carolinas statute of

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

Congress
determine

part

of

the

commissioned
the

adequacy

initial
a

study
of

enactment

of

group

of

expert

common

law

existing

CERCLA

in

lawyers
and

1980,
to

statutory

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,

301(e)(1), 94 Stat. 2767 (1980).

with

remedies

detailed
under

report

CERCLA.

and

Pub.

L.

96-510,

The study group responded

recommendations

See

No.

Superfund

for

Section

improving

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 2830, and provided its recommendation, id. at
24041.

The

301(e)

Reports

recommendation

with

regard

statutes of limitations, in its entirety, was as follows:

A small number of states still follow the socalled 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

to

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
plaintiffs claim before he knows that he has one.
Id.
Two key takeaways can be culled from the 301(e) Reports
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 plaintiffs

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

aforementioned

recommended
enhanced

to

Congress

discovery

rule

not

only

that

the

should

be

applied

to

state statutes of limitations, but also recommended that state

statutes

of

repose

Recommendation

is

be

repealed.

intended

also

301(e)
to

Report

cover

the

at

241

repeal

(The
of

the

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

effect as some statutes of limitation in barring plaintiffs
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.

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, 30001 (1996)
(It has been firmly established that the fact that a statute is
highly

remedial

construction

in

nature

nevertheless

and

does

entitled

not

justify

to

liberal

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 CERCLAs 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

Amendments
based,

their

path

reflected

in

part,

recommendations.
commissioned

to

the

to

recovery.

process

on

the

As

mentioned,

evaluate

of

301(e)

existing

Rather,

legislative
Reports

the

1986

compromise

analysis

and

Report

was

301(e)

statutory

the

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

supplied by the 301(e) Report.

implement

every

recommendation

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, 24051.

The 301(e) Report recommended

states adopt an enhanced discovery rule, id. at 241; repeal

statutes

of

repose,

id.;

adopt

liberal

joinder

rules

for

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, 1719, the provision at issue in this case, 9658,
was passed years later in 1986 after careful study and
deliberation.
The circumstances surrounding 9658s 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

state

of
law

the

301(e)

wherever

recommendations.

Reports

it

But

fell

the

recommendations

short

only

of

the

revision

by

preempting

301(e)

affecting

Reports
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.
the prerogative of Congress to strike that balance.

It is

See Hanford

Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1484 (9th

Cir.

1995)

(concluding

that

even

when

the

application

of

CERCLA provision leads to harsh results[,] courts should not

disrupt Congresss 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

presumption

against preemption in fields the states traditionally regulate.

Natl 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

as

preemption

clause[,]

such

9658,

do

automatically escape the presumption against preemption.

not
Id.

Rather, [w]here the text of a preemption clause is open to more

than

one

plausible

reading,

courts

reading that disfavors pre-emption.

ordinarily

accept

the

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

unquestionably

liability

under

traditional

its

own

field

of

state
state

tort

law

is

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 Congresss preemptive intent is
unclear,

the

presumption

favors

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.
and

unambiguous

language

has

But where Congress by plain

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 Carolinas statute of limitations, but not its
statute of repose, I would affirm the decision of the district
court.

44