                              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.




                                     44
