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Monday, December 09, 2019 {{ new Date().getDay() }}

By Michael Doyle, McClatchy Washington Bureau

WASHINGTON — The Supreme Court on Monday dealt a blow to North Carolina families trying to sue over groundwater contamination at a big Marine Corps base.

In a technical decision with real-world consequences, the court upheld North Carolina’s limits on how long people have to bring certain pollution-related lawsuits. By upholding the state’s 10-year limit, called a statute of repose, the court effectively undercut lawsuits centering on Camp Lejeune.

“Time is the controlling factor,” Justice Anthony Kennedy declared.

The immediate case decided Monday involved the CTS Corp., and not the Camp Lejeune groundwater contamination. The separate Camp Lejeune cases, though, will be affected by the ruling in the CTS case.

That’s because the North Carolina law starts a 10-year clock running from the last culpable act of the defendant — for instance, from when a company stops polluting or sells its property. After the clock runs out, lawsuits alleging injury from the contamination are banned.

The state’s 10-year statute of repose is a stricter standard, and potentially friendlier to polluters, than a federal law that starts a two-year lawsuit clock running only after people discover they have been harmed. Often, Kennedy acknowledged, “a person who is exposed to a toxic contaminant may not develop or show signs of resulting injury for many years.”

But though it was not closely divided, the court’s 7-2 majority decision also drew a sharp retort from dissenting justices Ruth Bader Ginsburg and Stephen Breyer.

“Instead of encouraging prompt identification and remediation before it can kill, the court’s decision gives contaminators an incentive to conceal the hazards they have created until the repose period has run its full course,” Ginsburg wrote.

CTS owned an electronics manufacturing facility in Asheville, North Carolina, until 1987. The land was subsequently sold and developed as a residential subdivision. Long after CTS sold the land, residents began learning in 2009 that their well water contained carcinogenic chemicals, including trichloroethylene.

Trichloroethylene was also one of the chemicals also found in Camp Lejeune water.

The residents’ lawsuit over the former CTS Corp. land was filed in 2011, 24 years after the company sold the property. An appellate court said the suit could nonetheless proceed, on the grounds that the federal statute of limitations pegged to discovery of injury pre-empted the state’s statute of repose pegged to the sale of the land.

The excruciating question facing the Supreme Court was whether North Carolina’s statute of repose was different than the statute of limitations established in the 1980 federal Superfund law. The court’s majority decided it was, and so was not pre-empted by the federal limit.

“Each has a distinct purpose,” Kennedy reasoned, adding that “a statute of repose can be said to provide a fresh start or freedom from liability.”

Timothy Bishop, an appellate attorney who has represented corporate clients with the firm Mayer Brown, praised the court’s decision, saying it “provides certainty for businesses and landowners who otherwise might face suit indefinitely.”

John Korzen, director of the appellate advocacy project at the Wake Forest University School of Law and attorney for the residents challenging CTS, said Monday he was “disappointed, for sure” in the court’s decision. At the same time, Korzen said several other issues may distinguish the CTS case from the still-pending Camp Lejeune cases.

AFP Photo/Saul Loeb


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