                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   July 28, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                            No. 04-11217                        Clerk
                       _____________________


         BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY,

                            Plaintiff,

                      POOLE CHEMICAL COMPANY,

         Defendant - Third Party Plaintiff - Appellant,

                              versus

                  SKINNER TANK COMPANY; ET AL.,

                      Third Party Defendants,

                       SKINNER TANK COMPANY,

                Third Party Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

     This appeal requires the court to decide whether § 9658 of

the Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA) preempts the Texas statute of repose in a

lawsuit involving a buyer’s products liability claim.     After

considering that issue, the court concludes that § 9658 does not

preempt the Texas statute of repose and affirms the judgment of

the district court.

                         Background Facts
     Appellant Poole Chemical Company (Poole) operates an

agricultural blending facility near Slanton, Texas.    Appellee

Skinner Tank Company (Skinner) manufactures and sells storage

tanks.   Skinner manufactured two large above-ground storage tanks

and sold them to Poole on October 28, 1988.

     On January 29, 2003, one of the tanks ruptured.    The rupture

released several hundred thousand gallons of chemicals onto

Poole’s property and an adjacent railroad right-of-way.    Poole

and the Slanton fire department initiated emergency response

services; Poole reclaimed some of the spilled chemicals.

Plaintiff Burlington Northern & Santa Fe Railway Company (the

“railroad company”) conducted an emergency clean-up and

restoration of its right-of-way at a cost of $2.1 million.    On

March 4, 2004, the railroad company sued Poole under CERCLA for

the cost of the clean-up.

     Having learned that it had no insurance to cover the cost of

the accident, Poole filed a third-party complaint against three

defendants, one of which was Skinner, on April 19, 2004.    Poole

brought various state law claims against Skinner, alleging that

the tank Skinner sold it was defective.

     Skinner moved for summary judgment based on Texas’s 15-year

statute of repose for products liability claims against

manufacturers.   Skinner argued that Poole’s claims were barred

because Poole did not file its complaint within 15 years of the

sale of the tank.   Poole responded with various arguments about

                                 2
why the statute of repose did not apply to its claims.      The

district court thoroughly analyzed each of Poole’s arguments and

determined that the statute barred each of Poole’s claims.         The

district court entered judgment in Skinner’s favor and certified

the judgment as final as to Poole and Skinner.     Poole challenges

the district court’s summary judgment in this appeal.      This court

reviews the judgment de novo.1

         Whether Texas’s 15-Year Statute of Repose Applies

     Section 16.012 of the Texas Civil Practice and Remedies Code

establishes a 15-year statute of repose for products liability

cases.   That section provides that “a claimant must commence a

products liability action against a manufacturer or seller of a

product before the end of 15 years after the date of the sale of

the product by the defendant.”2    Here, the date of the sale of

the allegedly defective product was October 28, 1988; Poole filed

its lawsuit on April 19, 2004, more than 15 years after the date

of the sale.   Thus, if § 16.012 applies, Poole’s claim is barred.

     The current version of § 16.012 applies to actions filed on

or after July 1, 2003.3   That version became effective on

     1
      Pension Ben. Guar. Corp. v. Wilson N. Jones Mem’l Hosp.,
374 F.3d 362, 366 (5th Cir. 2004); Olander v. Compass Bank, 363
F.3d 560, 564 (5th Cir. 2004).
     2
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) (Vernon Supp.
2004-05).
     3
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) historical note
(Vernon Supp. 2004-05) [Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 23.02, 2003 Tex. Gen. Laws 847, 899].

                                  3
September 1, 2003——seven months after the chemical spill occurred

and one month and 28 days before the fifteenth anniversary of the

sale of the Skinner tanks to Poole.4    Because the 15-year repose

period affects claims that arose from events that occurred before

the law came into effect, it is a retroactive law.5     Poole

maintains that § 16.012 cannot be applied retroactively because

there is no clear legislative intent for retroactive application.

     Under Texas law, an “act will not be applied retrospectively

unless it appears by fair implication from the language used that

it was the intent of the Legislature to make it applicable to

both past and future transactions.”6    Here, the plain language of

§ 16.012 demonstrates that the Texas legislature intended for the

15-year repose period to apply retroactively.     The provision

provides that a claim for a defective product must be brought

before the end of 15 years after the date of the sale.7

Moreover, the legislature specifically provided that the repose

period applies to “an action filed on or after July 1, 2003.”8

     4
      Previously, § 16.012 applied to manufacturers of
manufacturing equipment.
     5
      Barshop v. Medina County Underground Water Conservation
Dist., 925 S.W.2d 618, 633 (Tex. 1996); Tex. Water Rights Comm’n
v. Wright, 464 S.W.2d 642, 648 (Tex. 1971).
     6
      Ex parte Abell, 613 S.W.2d 255, 258 (Tex. 1981).
     7
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) (Vernon Supp.
2004-05).
     8
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) historical note
(Vernon Supp. 2004-05) [Act of June 2, 2003, 78th Leg., R.S., ch.

                                  4
Had the Texas legislature intended for § 16.012 to apply only

prospectively, the legislature would have provided that the 15-

year repose period applies to actions that “accrued” on or after

July 1, 2003.     Thus, the Texas legislature intended for the

statute of repose to apply retroactively.

     Whether Retroactive Application Violates Texas’s General
               Prohibition Against Retroactive Laws

     Poole maintains that retroactive application of § 16.012

would violate the Texas constitution’s prohibition against

retroactive laws.     In general, the Texas constitution prohibits

retroactive laws.9     Texas courts, however, have indicated that

laws affecting a remedy are not unconstitutionally retroactive

under the Texas constitution unless the remedy is entirely taken

away.10     The Texas legislature can restrict the time for filing a

claim without violating the retroactivity provision of the Texas

constitution so long as “it affords a reasonable time or fair

opportunity to preserve a claimant’s rights under the former law,

or if the amendment does not bar all remedy.”11

     Section 16.012 does not bar all remedy, but rather shortens


204, § 23.02, 2003 Tex. Gen. Laws 847, 899] (emphasis added).
     9
      TEX. CONST. art. 1, § 16.
     10
          City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997).
     11
      Likes, 962 S.W.2d at 502 (discussing a new immunity
provision of the Texas Tort Claims Act that prevented the
plaintiff from recovering from a municipal defendant even though
the plaintiff’s claim accrued before the new defense was
available to the defendant).

                                   5
the time for filing suit on a claim.     Whereas the Texas

legislature had not previously specified a time for filing suit

for a defective product against a manufacturer, it did so when it

amended § 16.012.     Here, the tank ruptured approximately seven

months before § 16.012 became effective and almost two months

before the expiration of fifteen years following the sale of the

Skinner tanks.   As result, Poole had nine months (from the

January 29, 2003 rupture of the tank until the October 28, 2003

fifteenth anniversary of the sale of the tanks) to file its

third-party complaint against Skinner——and at least one month and

28 days following the September 1, 2003 effective date of the

amendment to § 16.012.     Poole thus had a reasonable amount of

time in which to file its third-party complaint, constituting a

fair opportunity to preserve its rights against Skinner under the

former Texas law.12    If Poole believed that a defective tank

caused the accident, it did not need to wait until it was sued by


     12
      See Likes, 962 S.W.2d at 502 (determining that retroactive
application was not unreasonable where the plaintiff had 17
months to file her claim before it was barred by a new statute);
Wright, 464 S.W.2d at 642 (concluding that a new statute that
provided for cancellation of water permits upon proof of ten
continuous years of nonuse provided a reasonable remedy despite
the fact that six months of the ten-year period was prior to the
statute's effective date); AT&T v. Rylander, 2 S.W.3d 546, 554
(Tex. App.——Austin 1999, pet. denied) (deciding that 11 months is
a reasonable amount of time to file a request for a refund where
a new law established a statute of limitations); but see Alvarado
v. Gonzales, 552 S.W.2d 539, 542-43 (Tex. Civ. App.——Corpus
Christi 1977, no writ) (explaining that a new statute that gave a
mother only 21 days to establish paternity and enforce child
support could not be applied retroactively).

                                   6
the railroad company, or until it realized it had no insurance,

to file its lawsuit against Skinner.      Accordingly, retroactive

application of § 16.012 does not violate the Texas constitution’s

general prohibition against retroactive laws.

                Whether Retroactive Application Violates
                      the Texas Open Courts Policy

     Poole also argues that retroactive application violates the

Texas constitution’s open courts provision because it prevents

Poole from pursuing what it characterizes as accrued, vested

causes of action.      Poole argues that applying § 16.012 to its

causes of action cuts short the otherwise applicable two-year

limitations period by 15 months and thus takes away its remedy.13

     The Texas open courts provision states that “[a]ll courts

shall be open, and every person for an injury done him, in his

lands, goods, person or reputation, shall have remedy by due

course of law.”14     This provision “does not create any new right,

but is a declaration of a general fundamental principle that for

such wrongs as are recognized by the law of the land, the [Texas]

courts shall be open and afford a remedy.”15     A plaintiff who

     13
       Poole asserted claims for negligence, strict liability,
and breach of warranty. The Texas statute of limitations for
negligence and strict liability is two years. TEX. CIV. PRAC. &
REM. CODE ANN. § 16.003(a) (Vernon 2002). The statute of
limitations for Poole’s warranty claim is four years. TEX. BUS. &
COMM. CODE ANN. § 2.725 (Vernon 1994).
     14
          TEX. CONST. art. 1, § 13.
     15
      Ellerbe v. Otis Elevator Co., 618 S.W.2d 870, 873 (Tex.
Civ. App.——Houston [1st Dist.] 1981).

                                      7
claims that a law violates the Texas open courts provision can

prevail by showing that “the restriction is unreasonable or

arbitrary when balanced against the purpose and basis of the

statute.”16     In Texas, a statute is presumed to be

constitutional.17     Thus, Poole has the burden of showing that §

16.012 is unconstitutional.18

     Here, Poole cannot meet his burden because Texas courts have

determined that the 15-year repose period for defective products

is “reasonably related to the legitimate state purpose of

protecting manufacturers and sellers from stale claims.”19

Additionally, “Texas courts have repeatedly held that statutes of

repose do not violate the open courts provisions of the Texas

Constitution.”20     In order for common law causes of action like

Poole’s claims to be protected by the Texas constitution, the

claims “must be a vested right or something more than a mere



     16
      Rose v. Doctors Hosp., 801 S.W.2d 841, 843 (Tex. 1990);
Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 444 (Tex.
App.——Austin 2004, pet. denied).
     17
      Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931,
934 (Tex. 1996).
     18
          Enron, 922 S.W.2d at 934.
     19
      Zaragosa v. Chemetron Inv., Inc., 122 S.W.3d 341, 346
(Tex. App.——Fort Worth 2003, no pet.).
     20
      Zaragosa, 122 S.W.3d at 346; see also Barnes v. J.W.
Bateson Co., 755 S.W.2d 518, 521 (Tex. App.——Fort Worth 1988, no
writ) (stating that 10-year statute of repose for claims against
architects does not violate open courts provision).

                                      8
expectancy based upon an anticipated continuance of existing

law.”21     In Texas, a “party has no vested right to a cause of

action” because neither the federal constitution nor the Texas

constitution “forbids the abolition of common-law rights to

attain a permissible legislative objective.”22     Thus, prior to

September 1, 2003, Poole had nothing more than an expectation

based on an anticipated continuance of existing law, an

expectation that is not protected by the Texas constitution.23

Consequently, retroactive application of § 16.012 does not

violate the open courts provision of the Texas constitution.

    Whether CERCLA Preempts Texas’s 15-Year Statute of Repose

     Finally, Poole contends that § 9658 of CERCLA preempts §

16.012, superimposing a rule of discovery on the commencement of

the running of § 16.012's period of repose.     Poole thus maintains

that under § 9658, the 15-year period of repose did not begin to

run until January 29, 2003, when the tank ruptured.

     Section 9658 provides that in state law causes of action for

personal injury or property damage arising from exposure to any

hazardous substance or contaminant released into the environment

from a facility, where the applicable “statute of limitations”


     21
          Zaragosa, 122 S.W.3d at 346-47.
     22
      Tex. Gas Exploration Corp. v. Fluor Corp., 828 S.W.2d 28,
32 (Tex. App.——Texarkana 1991, writ denied).
     23
      Zaragosa, 122 S.W.3d at 346-47; McCulloch v. Fox & Jacobs,
696 S.W.2d 918, 924 (Tex. App.——Dallas 1985, writ ref’d n.r.e.).

                                   9
provides a commencement date that is earlier than the “federally

required commencement date” (FRCD), the later federal date

controls.24     Section 9658 defines “commencement date” as the

“date specified in a statute of limitations as the beginning of

the applicable limitations period,”25 and defines the FRCD 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 . . . concerned.”26

Thus, § 9658 engrafts a discovery rule on state statutes of

limitations, deferring the “accrual of a cause of action until

the plaintiff knew or, exercising reasonable diligence, should


     24
          Specifically, § 9658 provides as follows:

     (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.

(emphasis added).
     25
          42 U.S.C. § 9658(b)(3).
     26
          Id. at § 9658(b)(4)(A).

                                    10
have known of the facts giving rise to the cause of action.”27

     Poole maintains that § 9658 preempts § 16.012 because §

16.012 contains no discovery rule.   Poole contends that under §

9658 the date of the sale of the tank is the commencement date,

and that because the sale of the tank was earlier than the date

Poole knew about its injury, the FRCD applies to its claim.

Poole maintains that the 15-year repose period is a 15-year

limitations period that began to run on the date of the rupture

of the tank; thus, Poole argues that it had until January 29,

2018 to file its claim.28

     In cases involving statutory construction, a court begins

with the plain language of the statute.29   A court assumes that

the legislative purpose of a statute is “‘expressed by the

ordinary meaning of the words used.’”30   A court considers the

language used in a statute as conclusive unless Congress has


     27
      Computer Assoc. Int’l v. Altai, Inc., 918 S.W.2d 453, 455
(Tex. 1996).
     28
      If § 9658 completely preempts § 16.012 as Poole argues, §
16.012's 15-year repose period would not apply. Instead, the
applicable Texas statutes of limitations that would ordinarily
apply to Poole’s state law claims would apply; that is, Poole
would have two years from the date of the rupture to file his
negligence and strict liability claims, and four years to file
his contract claim.
     29
      See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)
(explaining the basic principles of statutory construction before
interpreting a provision of the Civil Rights Act of 1964).
     30
      Am. Tobacco Co., 456 U.S. at 68 (quoting Richards v.
United States, 369 U.S. 1, 9 (1962)).

                                11
clearly expressed a contrary intent.31

     Here, the reach of the plain language of § 9658 does not

extend to statutes of repose like § 16.012.     Literally, § 9658

states that it only preempts state law when the applicable state

statute of limitations “provides a commencement date which is

earlier than the [FRCD]”——no mention of peremptory statutes or

statutes of repose.     The provision defines “commencement date” as

the “date specified in a statute of limitations as the beginning

of the applicable limitations period.”32     Section 16.012,

however, is not a statute of limitations; it is a statute of

repose, and the differences between statutes of limitations and

statutes of repose are substantive, not merely semantic.

     Although courts considering the applicability of § 9658 have

not always clearly distinguished a statute of repose from a

statute of limitations,33 the two types of statutes are quite


     31
          Id.
     32
          42 U.S.C. § 9658(b)(3) (emphasis added).
     33
      See First United Methodist Church of Hyattsville v. U.S.
Gypsum Co., 882 F.2d 862, 868 (4th Cir. 1989) (determining that §
9658 does not preempt a Maryland statute of repose in an
asbestos-removal action because CERCLA’s legislative history
indicated that it was not intended to apply to substances that
are part of a structure, despite clear indication that court
recognized the difference in a statute of repose and a statue of
limitation); Elec. Power Bd. of Chattanooga v. Monsanto Co., 879
F.2d 1368, 1378 (6th Cir. 1989) (explaining that a plaintiff’s
claims about equipment purchased more than ten years from the
date of filing of the lawsuit were untimely under CERCLA and
barred by a Tennessee statute of repose); Covalt v. Carey Canada,
860 F.2d 1434, 1436 (7th Cir. 1988) (finding that § 9658 did not

                                   12
different.

     A statute of limitations extinguishes the right to
     prosecute an accrued cause of action after a period of
     time. It cuts off the remedy. . . . A statute of
     repose limits the time during which a cause of action
     can arise and usually runs from an act of a defendant.
     It abolishes the cause of action after the passage of
     time even though the cause of action may not have yet
     accrued.34

Typically, a statute of limitations for an action sounding in

tort starts to run on the date of the plaintiff’s legal injury.35

When an injury is inherently undiscoverable, however, states

often use the discovery rule to toll the running of the

limitations period until the plaintiff “discovers, or in


preempt Indiana statute of repose because CERCLA applies only to
releases into the environment and plaintiff’s claim involved his
exposure to asbestos, not a release of a hazardous substance);
Buggsi, Inc. v. Chevron U.S.A., 857 F. Supp. 1427, 1433 (D. Or.
1994) (concluding that § 9658 preempts an Oregon statute of
repose in a landowner’s action against the owner of an adjacent
petroleum bulk storage and distribution plant even though
petroleum is not defined as a hazardous substance because
petroleum is a pollutant and the plant was a facility, without
making any distinction between a statute of repose and a statute
of limitations); A.S.I., Inc. v. Sanders, 835 F. Supp. 1349, 1358
(D. Kan. 1993) (rejecting an argument that § 9658 did not preempt
a Kansas statute of repose because a statute of repose is
substantive rather than procedural because other courts have
treated the two types of statutes in the same way); Knox v. AC &
S, Inc., 690 F. Supp. 752, 758 (S.D. Ind. 1988) (deciding that §
9658 does not preempt Indiana statute of repose in an asbestos
products liability case without considering whether § 9658
applies to statutes of reposes).
     34
      Servicios-Expoarma, C.A. v. Indus. Mar. Carriers, 135 F.3d
984, 989 (5th Cir. 1998) (quoting Harding v. K.C. Wall Prods.,
831 P.2d 958, 967 (Kan. 1992)).
     35
      Coastal Distrib. Co. v. NGK Spark Plug Co., 779 F.2d 1033,
1036 (5th Cir. 1986).

                               13
exercising reasonable diligence should have discovered, facts

that indicate he has been injured.”36    In contrast, awareness of

injury is not a factor in determining when the time period of a

statute of repose starts to run.37    Unlike a statute of

limitations, “a statute of repose creates a substantive right to

be free from liability after a legislatively determined

period.”38   In other words, a statute of repose establishes a

“right not to be sued,” rather than a “right to sue.”       Thus, with

the expiration of the period of repose, the putative cause of

action evanesces; life cannot thereafter be breathed back into

it.   In Texas, such statutes “represent a response by the [Texas]

legislature to the inadequacy of traditional statutes of

limitations and are specifically designed to protect

[manufacturers] . . . from protracted and extended vulnerability

to lawsuits.”39

      Section 16.012 is clearly a statute of repose because it

cuts off a claimant’s right to sue a manufacturer for a product


      36
      Colonial Penn Ins. v. Market Planners Ins. Agency, 157
F.3d 1032, 1034 (5th Cir 1998); see also In re Coastal Plains,
179 F.3d 197, 214 (5th Cir. 1999).
      37
      Wayne v. Tenn. Valley Auth., 730 F.2d 392, 401-02 (5th
Cir. 1984).
      38
      Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex.
App.——Austin 2004, no pet.).
      39
      Tex. Gas Exploration Corp., 828 S.W.2d at 32 (discussing
the Texas statute of repose that applies to claims against
architects and builders).

                                 14
defect by requiring him to “commence a products liability action

. . . before the end of 15 years after the date of the sale of

the product by the defendant,”40 and because it runs from an act

of the defendant——“the date of the sale of the product by the

defendant.”41     The plain language of § 9658, however, refers to

state statutes of limitations——not state statutes of repose.

This court is bound by that plain language, absent express

congressional intent to the contrary.42      Congress did not express

a contrary intent in this instance.

     In enacting CERCLA, Congress intended “to facilitate the

prompt cleanup of hazardous waste sites and to shift the cost of

environmental response from the taxpayers to the parties who

benefitted from the wastes that caused the harm.”43      Section 9658

was not part of the original CERCLA.     Congress added § 9658 as

part of the 1986 CERCLA amendments to respond to a report by a

congressional study group that determined that many state systems

were inadequate to deal with the delayed discovery of the effect




     40
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) (Vernon Supp.
2004-05).
     41
      TEX. CIV. PRAC. & REM. CODE ANN. § 16.012(b) (Vernon Supp.
2004-05).
     42
          Am. Tobacco Co., 456 U.S. at 68.
     43
      OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d
1574, 1578 (5th Cir. 1997).

                                   15
of a release of a toxic substance.44   Congress was concerned that

in the case of a long-latency disease like cancer, a plaintiff

could be barred from bringing his lawsuit if the state statute of

limitations ran from the time of the first injury rather than

from the time when the plaintiff discovered that his injury was

caused by the hazardous substance.45   Congress fixed this problem

by preempting the state statute of limitations with the FRCD,

which runs from the date the plaintiff knew or reasonably should

have known that his injury was caused by exposure to the

hazardous substance.   As a result, CERCLA’s legislative history

indicates Congress intended for § 9658 to preempt a state statute

of limitations that deprives a plaintiff who suffers a long-

latency disease caused by the release of a hazardous substance of

his cause of action, but not to preempt a state statute of repose

like § 16.012.

     This interpretation comports with a fundamental principle of

statutory construction——common sense.46   Under the proper


     44
      See H.R. CONF. REP. No. 99-962, 2d Sess. 262, reprinted in
1986 U.S.C.C.A.N. 3276, 3354.
     45
          See id.
     46
      See Cal. v. F.E.R.C., 383 F.3d 1006, 1016-17 (9th Cir.
2004) (explaining that the court must be guided by common sense
in determining congressional intent); United States v. Nippon
Paper Indus. Co., 109 F.3d 1, 4 (1st Cir. 1997) (describing
common sense as a good barometer of statutory meaning); Salt Lake
City v. Western Area Power Admin., 926 F.2d 974, 984 (10th Cir.
1991)(stating that the most fundamental guide to statutory
construction is common sense); First United Methodist Church of

                                16
application of that principle, § 9658 does not preempt § 16.012.

     In addition, this case does not involve the delayed

discovery for which § 9658 was intended to address.    The case

does not implicate a long-latency disease or involve a situation

where the time for filing a claim expired before the plaintiff

learned that a hazardous substance caused his injury.    Poole’s

alleged injury was not inherently undiscoverable.    Poole knew

about its injury as soon as the tank ruptured, and is held to

knowledge of the amendment to § 16.012 no later than its

effective date, September 1, 2003; yet Poole did not file its

third-party complaint until almost 16 months after the rupture.

                             Conclusion

     Retroactive application of § 16.012 does not offend the

Texas constitution, and CERCLA’s § 9658 does not preempt §

16.012, vis-à-vis Poole’s product liability claims against

Skinner.    Thus, the district court properly entered summary

judgment in Skinner’s favor.    Consequently, the court AFFIRMS the

district court’s judgment.

AFFIRMED.




Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 869 (4th Cir. 1989)
(referring to common sense as the most fundamental guide to
statutory construction).

                                 17
