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Wednesday, June 11, 2014

N.C.'s 'statute of repose' provides an out for long-term polluters

Posted by on Wed, Jun 11, 2014 at 2:34 PM

The Supreme Court has made it more difficult for plaintiffs in North Carolina to sue companies that pollute communities, including the community in Camp Lejeune.

North Carolina has what is known as a “statute of repose” on polluters, meaning that a lawsuit against a company or government body must be brought within 10 years of the contaminating activity. Even if residents do not notice the pollution until more than 10 years after a company has stopped, they would not be able to sue under the statute of repose.

Residents of Asheville sued CTS Corp. to clean up a polluted site, first discovering the contamination 13 years after the CTS factory closed down.

In the case, CTS Corp. v. Waldburger, residents of Asheville argued that the federal statue of limitations that said lawsuits must be filed within two years of discovery superseded the state law. However, on June 9, the Supreme Court ruled 7-2 in favor of CTS Corp.

This ruling keeps North Carolina’s statute of repose in place, which is bad news for anyone who has discovered old pollution or contamination. Included on that list is Camp Lejeune, a Marine base in Jacksonville, where residents were exposed to contaminated water from 1957 until 1987.

“Camp Lejeune is by far the largest and worst case of drinking water contamination in the history of the United States,” said Jerry Ensminger, co-founder of The Few, The Proud, The Forgotten, an advocacy group focused on contamination at Camp Lejeune. “That is in both the number of people exposed and the levels of the contaminants that were found in the water. Somewhere between 750,000 and 1 million were exposed.”

A report in 1981 showed that a radioactive dumpsite near Camp Lejeune had strontium-90 in it, an isotope known to cause leukemia and other cancers. A series of other investigations found that the water at the base contained benzene, tetrachloroethylene and trichloroethylene, all of which are classified as carcinogens.

Ensminger said he finds the Supreme Court’s decision ludicrous.

“Science has already proven that the latency period for many of the health affects that are caused by exposure to these contaminants is a 20-30 years,” he said. “How the hell is someone supposed to file a claim against a polluter that gave him cancer when they didn’t get cancer until 20-30 years after the exposure?”

Despite the federal law saying that there is a statute of limitations on contamination lawsuits, the U.S. government has been using North Carolina’s statute of repose to block lawsuits from Camp Lejeune residents on this issue since they began in 2009.

In August 2012, President Obama signed the Janey Ensminger Act into law to give medical care to military families who were affected in the period of time the contamination was thought to take place. The law, named after Ensminger’s daughter who died of leukemia, only applied up to 750,000 residents. Ensminger said a statute of repose on contamination protects polluters at the expense of citizens.

“How much do you want to bet that there’s going to be a firesale on statues of repose coming up? Every damn state in the union that’s got a legislature that leans in that direction is going to be out here passing statues of repose to protect industry so they can lure them into their state,” he said.

Although the Supreme Court upheld North Carolina’s statue of repose, Ensminger said lawsuits over contaminated drinking water at Camp Lejeune will continue, given that the text of the law says “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,” with “omission” being the key word.

“We have case after case after case in the Camp Lejeune issue where the department of the Navy and the Marine Corps omitted the fact and omitted documentation and omitted the truth about the contamination at Camp Lejeune,” he said.






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This ruling keeps North Carolina’s statute of repose in place, which is bad news for anyone who has discovered old pollution or contamination. Included on that list is Camp Lejeune, a Marine base in Jacksonville, where residents were exposed to contaminated water from 1957 until 1987.

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