SUPERFUND:

Citing Supreme Court win, Obama admin urges dismissal of Camp Lejeune cases

The Obama administration moved quickly yesterday to dismiss claims brought by Marines and their families concerning groundwater pollution at a North Carolina base in light of a new Supreme Court ruling.

In a 7-2 ruling yesterday, the Supreme Court held that the federal Superfund law does not overrule North Carolina's 10-year filing deadline from when the alleged offender last acted.

That case, CTS Corp. v. Waldburger, concerned groundwater pollution at a former electronics manufacturing facility in Asheville. About two dozen nearby landowners were seeking damages and remediation after discovering significantly elevated levels of carcinogens in the groundwater.

CTS sold the property in 1987 and the Elkhart, Ind.-based company claimed the landowners' lawsuit, which was filed shortly after U.S. EPA testing revealed the contamination in 2009, was barred by North Carolina's 10-year "statute of repose."

The Supreme Court agreed, rejecting the landowners' arguments that Congress intended the federal Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, to pre-empt such state deadlines that limit access to court for environmental contamination (Greenwire, June 9).

In an unusual twist, the Obama administration intervened in the case on behalf of CTS because the government faces about a dozen lawsuits from Marine veterans and their families stemming from exposure to toxic chemicals at Marine Corps Base Camp Lejeune in Jacksonville, N.C.

The Marines' cases have been consolidated at the 11th U.S. Circuit Court of Appeals in Atlanta. Soon after the ruling yesterday, the Department of Justice sent a letter to the court urging it to reverse a lower court ruling in favor of the veterans, saying the issue of federal pre-emption has been settled.

"Because the Supreme Court has held that the state enactment is not preempted by federal law, judgment should be entered for the United States," DOJ attorney Daniel Tenny wrote.

Thousands of Marines and their families were exposed to groundwater laced with carcinogens including benzene and trichloroethylene while at the base from 1957 to 1987.

Government studies have revealed elevated cancer rates among those who were at the base during that time, and some experts have called Camp Lejeune the worst water contamination event in U.S. history.

The pollution, which came from a dry cleaning facility, a leaking fuel depot and industrial area spills and other sources, wasn't discovered until 1985.

DOJ, consequently, argues that the lawsuits brought against the Department of Defense must also be dismissed under North Carolina's statute of repose.

Those affected by the contamination were quick to criticize the Obama administration's efforts in both the Lejeune and CTS cases.

Michael Partain, who was born on the base and was diagnosed with a rare form of male breast cancer seven years ago, said the Supreme Court gave the government "carte blanche" to fight off the lawsuits.

Statutes of repose shouldn't apply to environmental contamination because injuries -- such as diseases like cancer -- take years to develop, Partain said.

Those stationed at the base didn't know about the contamination until 1997. So to satisfy North Carolina's statute of repose, Partain said, he would have had to file his lawsuit up to 12 years before he was diagnosed.

"That's ludicrous. The Marine Corps did not inform everyone who was exposed," he said. "God help us if that's where we end up."

The veterans' lawyer, Wake Forest University law professor John Korzen, said he thinks there are ways to carve out important differences between the Lejeune litigation and the Supreme Court case.

In his own letter to the 11th Circuit, Korzen highlighted a second issue in the case: Whether North Carolina law recognizes an exception to its statute of repose for latent diseases.

Korzen, who also represented the landowners in the Supreme Court case, said that issue didn't come up at the high court because the claims in that case were limited to property damage.

Further, he said, there is also disagreement about when the 10-year clock began running in the Lejeune cases.

Jerry Ensminger, a Marine involved in the case and a leading activist for Lejeune veterans, said the Supreme Court ruling noted that the 10-year clock begins with the defendants' "last act or omission."

The court's view of "omission" will be important, he said, because of the Marine Corps' failure to inform veterans of the contamination.

"I've got a boatload of omissions that were committed by the Department of the Navy and Marine Corps that exist up to this current day," Ensminger, whose 9-year-old daughter died of leukemia after their time at the base.

Ensminger is also unsparing in his criticism of the Obama administration for its handling of both cases.

"This was the endgame of their entire strategy to begin with," Ensminger said. "What kills me is that one of the main party planks of the Democratic platform is the environment. What happened to that plank? Did it rot?"

Twitter: @GreenwireJeremy | Email: jjacobs@eenews.net

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