Supreme Court Could Make It Harder For Victims Of Hazardous Pollutants To Get Justice

A sign is posted at an ongoing cleanup pump and treatment center operated by Shaw Corp. on lot 203 at Camp Lejeune, N.C., Wed
A sign is posted at an ongoing cleanup pump and treatment center operated by Shaw Corp. on lot 203 at Camp Lejeune, N.C., Wednesday, May 9, 2007. This operation treats an underground plume of TCE that was created by a waste disposal site on base. TCE, or trichloroethylene, is used for degreasing metals. Contamination of drinking wells years ago at North Carolina's Marine Base Camp Lejeune still reverberates in health concerns. (AP Photo/Gerry Broome)

When Tate MacQueen pulled the yellow flyer from his Asheville, N.C., mailbox, his thoughts flew to his young children. The flyer warned of toxic contamination in the well water.

"Nothing will raise your hackles like someone telling you that the air you may be breathing or the water you may be drinking is dangerous," said MacQueen, 47, a local high school history teacher.

Testing found pollutants in multiple local wells. The presumed cause: toxic chemicals from a CTS Corp. plant. MacQueen and dozens of his Asheville neighbors brought a lawsuit seeking compensation for damage to their property values and health from the company, which manufactures electronic components.

But their time may have already run out.

Because of the way North Carolina law is written, the Asheville residents may have no legal recourse. CTS shut down that plant and sold the property in 1987. A state statute cuts off a company's liability 10 years after its last contaminating act, meaning the deadline for filing claims came and went in 1997. MacQueen's heads-up letter arrived in 2008.

Later this month, the Supreme Court will consider whether a federal environmental law that sets a different clock -- one that starts ticking when a victim first learns of the contamination that likely caused his or her injury -- should override the state law and allow the Asheville landowners' claims to move forward. CTS Corp. v. Waldburger turns on obscure legal terminology, but its implications for corporate America are significant. Big names are watching the case, including the American Chemistry Council, the National Association of Manufacturers, the American Coatings Association -- and the U.S. Department of Justice.

The Justice Department argues broadly that overriding the state limit would not serve the main purpose of that federal law, which is to encourage cleanup of hazardous waste sites. But that's not where the government's interest ends. In an amicus brief filed April 2 in support of CTS Corp., the Justice Department notes that the CTS case has implications for ongoing litigation against the United States over contaminated drinking water at the Camp Lejeune Marine Corps Base, also in North Carolina.

An estimated 1 million Marines and their family members at the base were exposed to drinking water poisoned by the solvents trichloroethylene (TCE) and perchloroethylene (PCE), as well as the fuel additive benzene, between 1953 and 1987. A government study published in February reported elevated risks of death from several types of cancer as well as Lou Gehrig's disease among these Marines. And the Marines are suing, too.

Angela Canterbury, director of public policy at the Project On Government Oversight, argues that the Justice Department is "taking a preposterous position" and "undermining" the promise to help the Camp Lejeune victims made by President Barack Obama when he signed the Janey Ensminger Act in August 2012. The act was named after retired Master Sgt. Jerry Ensminger's 9-year-old daughter, who was born on the base and died of a rare form of leukemia in 1985. A dozen years passed before Ensminger first learned that contaminated water at Camp Lejeune may have been to blame for his daughter's death. By that time, according to the state, his 10-year window, too, had long closed.

The 2012 legislation provides medical care for Marines and their dependents who may have been affected by the contamination. But some advocates argue that the new law still falls short because it offers no compensation for injury or disability. As of April 2, more than 3,500 personal injury claims had been filed, according to the Office of the Judge Advocate General of the Navy, and some have gone to court.

Canterbury's group is holding a rally and march to the Supreme Court in support of the Camp Lejeune victims on April 23, the same day the justices will hear oral argument in CTS Corp. v. Walderburger.

CTS, the U.S. Navy and the Justice Department all declined to comment on the case.

The federal law on which CTS Corp. v. Walderburger hinges is a 1986 amendment to the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA. Congress sought to prevent those potentially harmed by hazardous waste from being denied a day in court by setting a uniform starting time for the period in which someone may bring legal claims for contamination-caused personal injury or property damage, and that point is when the individual knows or should have known that the contamination was the likely cause of the injury or damage. The amendment overruled state laws under which the limitation period began running earlier.

But CTS and its supporters argue that the CERCLA amendment is not applicable to the current case because its text refers only to "statutes of limitation," and the North Carolina law in question involves a "statute of repose."

The distinction being argued is that statutes of limitation begin running after the injury is discovered, whereas statutes of repose begin running after the act that might have caused the injury occurs, regardless of whether any potential victims are aware they've been harmed. A statute of repose creates a "substantive" right to be free from liability after a set period of time, according to the CTS Corp.'s Supreme Court brief.

For their part, the Asheville landowners and their advocates contend that the terms "statute of repose" and "statute of limitations" were used interchangeably at the time of the amendment, suggesting that Congress meant to trump laws like North Carolina's.

Michael Burger, an expert in environmental law at Roger Williams University in Rhode Island, agrees with the landowners on this point.

"The report that ultimately led to the enactment of this part of CERCLA identified significant problems created for victims of toxic contamination by both statutes of limitations and statues of repose," Burger said, adding that Congress doesn't use the term "statute of repose" anywhere in its books.

This was also the conclusion that the U.S. Court of Appeals for the 4th Circuit came to in July 2013, when it reviewed the CTS Corp. case. "Given the inconsistent manner in which the term has been used, it is entirely probable that in 1986, when Congress added [section] 9658 to CERCLA, it intended 'statute of limitations' to include precisely the type of ten-year limitation that we are dealing with here," said the majority in their ruling.

"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," the court wrote.

Whichever way the Supreme Court rules, there could be potentially significant implications.

Burger suggested that a decision in favor of CTS would create "a perverse incentive" to pass statues of repose in states that want to lure certain types of industry.

A pro-CTS ruling also "could send a signal that companies who have allegedly caused harm should be looking for technicalities," said Robin Craig, an environmental law professor at the University of Utah.

At the same time, Craig cautioned, there does have to be an end date for liability. "At some point, as matter of practicality, you have to say you're done," she said. "You can't go after companies 100 years later."

In their amicus brief, the American Chemistry Council, the National Association of Manufacturers, the American Coatings Association and others raise the "threat of perpetual liability" and suggest that "state statutes of repose play an important role in providing the stability and predictability necessary to foster economic growth and opportunity."

Regardless of the Supreme Court's decision, likely to come by June, those who argue they were harmed by environmental contamination will still face difficulties in proving a connection between exposure and harm.

The 4th Circuit judges noted the potentially long period between when hazardous substances are released into the environment and when health effects in humans appear. Cancers, for example, can take decades to develop. Given the slow speed with which contaminants can move through soil and groundwater, the human exposure itself -- or the damage to others' property -- may not even occur until many years after the hazardous waste was released.

What's more, toxic substances can be very difficult to detect. Arsenic, lead and vinyl chloride can't be seen or tasted, as the Natural Resources Defense Council pointed out in its amicus brief supporting the Asheville landowners.

MacQueen said that cancer and other serious health problems have afflicted many in his community, although they can't yet prove any connection to the contamination. His own family has been spared so far. Still, he is determined to hold CTS Corp. accountable, and to make sure that other polluters can be held accountable too.

"If the court rules in a particular way, contaminators may become much more efficient and effective in concealing their spills and releases and dumping," MacQueen said. "I would never in a million years have subjected my family to this threat had I known."

Ensminger, meanwhile, has devoted the last 17 years of his life to helping Camp Lejeune victims find justice. He stood by President Obama in 2012, as he signed the act helping those victims. Now, the federal government's backing of CTS, Ensminger said, feels like a "slap in the face."

"Basically, what this is telling the polluter," he said, "is that if you are devious and crooked enough to make it for 10 years, then we'll reward you."

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