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Government straddles both sides in toxic water cases

Mar. 3, 2014 - 09:31AM   |  
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WASHINGTON — President Obama signed a law in 2012 offering health benefits to thousands of former Marines and their families who were exposed decades ago to contaminated water at Camp Lejeune in North Carolina.

But in a related case headed to the Supreme Court in April that could bolster or block their claims for damages, Obama's Justice Department has argued that the clock has run out.

The little-noticed case could have profound implications for victims of hidden contamination at Camp Lejeune and other former industrial sites in states that set deadlines on damage claims. Those lawsuits generally involve "enormous financial stakes — typically in the millions of dollars," according to a petition filed by the electronics manufacturer at the center of the high court case.

It also puts the Obama administration in the awkward position of opposing environmental cleanup and help for veterans — two issues that have been among the president's top priorities.

The focus of both the Supreme Court case involving property damage and health risks, and the more serious Camp Lejeune claims of deaths and serious illnesses from toxic water supplies, is a fundamental issue: How soon must victims cry foul?

North Carolina, home to both conflicts, has a 10-year "statute of repose" after which claims are deemed moot. Unlike a statute of limitations, which usually begins when an injury is recognized, the clock ticks from the date of the final contamination — even if residents remain unaware until decades later.

A provision in the federal Superfund law passed in 1980 was intended to help victims by giving them two years to file claims from the date they discover the cause of their injuries. Landowners who unknowingly bought contaminated property in Asheville, N.C. — the issue in the Supreme Court case — and veterans who lived and raised families at Camp Lejeune 400 miles away both discovered contamination decades later.

The Justice Department, which declined to comment on the case while it is pending, has contended that the state's 10-year deadline precludes the lawsuits.

"The United States has a substantial interest in the proper resolution of this question," the government said in its August 2012 federal appeals court brief in CTS Corp. v. Waldburger. It specifically noted that the Camp Lejeune claims rest on the same issue.

"The fact that some plaintiffs will be unaware of their claims until after the statute of repose expires is an inherent feature of statutes of repose," the government argued. Exposing polluters to greater liability could discourage voluntary disclosure and cleanup, it said, as well as pose a burden to industry.

The appeals court wasn't convinced. It sided with the 23 landowners seeking damages and remediation because their land had been contaminated with toxic chemicals from 1959 to 1985, when CTS Corp. ran an electronics manufacturing plant in Asheville. It wasn't until 2009 that landowners learned their water could cause liver and kidney damage, heart ailments and cancer.

"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 panel said in a divided 2-1 ruling.

Congress' intent in passing Superfund legislation, it said, was that "victims of toxic waste not be hindered in their attempts to hold accountable those who have strewn such waste on their land."

MARINE'S CRUSADE CONTINUES

How the Supreme Court handles the Waldburger case will affect Camp Lejeune claimants, and potentially others, who get caught in the no-man's land between state legal deadlines and federal Superfund laws. One clock ticks forward from the polluter's last act, the other from the victim's discovery.

The last wells contaminated with industrial solvents such as trichloroethylene (TCE), benzene and other chemicals at the Marine Corps base came on line in 1985. Under North Carolina law, that means claims must have been filed by 1995. But no one knew of the danger until 1997.

Jerry Ensminger, a 24-year Marine veteran, was among the first to take notice. His daughter Janey was 9 when she died of a rare form of leukemia in 1985. She had been conceived at the base during her father's time there.

In recent years, health and environmental studies have classified TCE as a human carcinogen and linked it to kidney cancer, non-Hodgkins lymphoma, childhood cancers and other defects. Babies exposed during pregnancy have been found to be at greater risk of developing cancers or birth defects later in childhood.

Ensminger's crusade to expose the Marine Corps he served was featured in a 2011 documentary, Semper Fi: Always Faithful. The following year, he stood beside Obama as the president signed the law — named after Janey Ensminger — offering health benefits to victims of the contamination.

Obama noted that the law wouldn't help Janey or others who succumbed to their illnesses. But he said, "It will honor their memory by making a real difference for those who are still suffering."

Through Nov. 11 of last year, 655 veterans had received treatment for one or more of the 15 illnesses or conditions covered under the law, according to Department of Veterans Affairs figures. To date, no family members have been helped.

"That law is an admission by the government that they poisoned us," Ensminger says. Now he wants to see individual claims for damages by Camp Lejeune victims "go forward and be heard in an open courtroom."

CAMP LEJEUNE CLAIMS PENDING

Thirteen Camp Lejeune claims are combined in a case pending before the 11th Circuit federal appeals court in Georgia. The government is opposing those on the same grounds — that the time for claims to be filed has expired. The case was argued in January, but no decision is expected until after the Supreme Court rules in Waldburger.

The high court's decision, expected by June, could affect not only the Camp Lejeune claims but any future cases involving military bases, scores of which are located near environmental Superfund sites.

In a letter to Attorney General Eric Holder late last year, 23 environmental, health, veterans and related groups called the Justice Department's argument in the Waldburger case "particularly troubling" because it linked the potential result to the Camp Lejeune claims.

If the government's argument prevails, they wrote, "landowners in Asheville and thousands more who have been unwittingly harmed in similar cases of contamination would be denied the justice they deserve."

Mike Partain, who was born at the Marine base in 1968 and was diagnosed with male breast cancer seven years ago, puts it another way: "How many bullets do we have to take before we finally get our day in court?"

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