Source: http://www.citizen-times.com, April 7, 2014
By: Clarke Morrison
CTS Corp. closed shop at its Mills Gap Road manufacturing plant nearly three decades ago, leaving behind a brew of toxic chemicals in the soil and groundwater.
But it wasn’t until 1999 that neighbors started becoming aware of the contamination when an oily mess was discovered oozing into a spring basin next to the plant.
That lapse in time will be a primary point of consideration by the U.S. Supreme Court later this month when it hears arguments in a lawsuit brought by 25 Buncombe County property owners against the company.
Attorneys for the parties also believe the case could have major implications for thousands of Marines and their families who were stationed at Camp Lejeune and other victims of exposure to hidden contamination.
At issue is a North Carolina law establishing a 10-year “statute of repose” that sets a deadline for filing claims related to environmental pollution in cases involving real property, even if the victims weren’t aware of the contamination until long after.
The court will consider whether that law is pre-empted by the federal Comprehensive Environmental Response, Compensation and Liability Act passed by Congress in 1980. The law was intended to help victims by giving them time to file claims after they discovered the cause of their injuries.
Lori Murphy, one of the plaintiffs in the CTS lawsuit, lives with her husband, mother and daughter, her daughter’s husband and their two children in a Forest Run Drive house less than a mile from the former plant site.
Murphy said they bought the home in 2007 only to receive a notice from state environmental officials later that year that their well would be tested because of potential contamination.
Residents have long pushed for a cleanup, alleging numerous health problems, including cancer, are linked to the contamination.
“I want to see CTS held accountable,” Murphy said. “I want them to clean up the site, and I want them to reimburse the homeowners for damages. They should be held responsible for the mess they made. I can’t in clear conscious try to sell my home to someone who could potentially be in my shoes.”
The company manufactured industrial switches and resistors at the site for decades. Chemicals used at the plant, including the industrial solvent trichloroethylene, or TCE, have been found in high concentrations in the soil and groundwater.
TCE was found at a level of 21,000 parts per billion, which is more than 7,000 times North Carolina’s groundwater standard for the chemical, in a spring next to the plant. Lower amounts of benzene, xylene and toluene also were found.
Officials believe the contamination is spreading. TCE was found in four wells in a nearby subdivision in 2008. The chemical is classified as a human carcinogen and can cause damage to the nervous system, liver and lungs.
Murphy said that so far testing has shown her well water is safe to drink, but she doesn’t take chances. Her house is among those to have a filtration system installed by the U.S. Environmental Protection Agency.
“We don’t drink this water, ever,” she said. “We buy bottled water for cooking and drinking and brushing teeth.
“It has just been a nightmare. This has probably been the most stressful years of my life.”
A judge in U.S. District Court in Asheville dismissed the lawsuit, ruling the claim was barred by the state law limiting the time plaintiffs can bring lawsuits following a defendant’s actions in cases involving property.
But a panel of the Fourth Circuit Court of Appeals in Richmond, Va., last year reversed the ruling, saying the North Carolina statute was pre-empted by the federal Superfund law.
“In so holding, we simply further Congress’ intent that victims of toxic waste not be hindered in their attempts to hold accountable those who have strewn such waste on their land,” the court said. The act was designed to ensure “that those responsible for any damage, environmental harm or injury from chemical poisons bear the costs of their actions.
“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.”
But the U.S. Department of Justice filed a brief with the court in support of CTS’ position: Exposing polluters to greater liability could discourage voluntary cleanup and pose a burden to industry.
“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 said.
The Supreme Court, which agreed in January to take the case, is scheduled to hear arguments on April 23. A decision is expected by the end of June, said John Korzen, an attorney for the plaintiffs.
How the court handles the case will affect the Camp Lejeune claimants, according to court filings. The Justice Department noted their claims rest on the same issue as the CTS case.
The last wells contaminated with industrial solvents and other chemicals at the Marine Corps base came on line in 1985. Under the North Carolina law, the claims must have been filed by 1995, but the danger wasn’t known until 1997.
“How can you seek relief for something you don’t even know you have yet?” said Jerry Ensminger, a 24-year Marine veteran who was stationed at the base.
Ensminger has taken a close interest in the CTS case and plans to attend the Supreme Court hearing. His daughter was 9 when she died of a rare form of leukemia in 1985. Studies show that exposure to chemicals found in the groundwater at Camp Lejeune can cause cancer and other defects.
“The statute of repose breeds deceit because if a polluter can make it for 10 years and reach the finish line by being deceitful and hiding their negligence, then the state of North Carolina will reward them,” said Ensminger, whose crusade to expose the problem was featured in the 2011 documentary “Semper Fi: Always Faithful.”
Tate MacQueen, a plaintiff in the lawsuit against CTS, said he doesn’t understand why the government is backing the company in the case before the court.
“We were stunned the Department of Justice would weigh in against us with a known polluter,” said MacQueen, a teacher at Owen High School who plans to attend the Supreme Court hearing.
Laura Carson said she didn’t know about the CTS contamination when she bought a condominium on former plant property in 2005.
“I think it would be criminal if the Supreme Court doesn’t allow us to sue CTS based on the time frame when we found out about it,” she said. “If we win, it means that other communities throughout the United States would be able to sue the contaminators.”
Meanwhile, construction is underway to extend city water to about 150 homes within a mile of the plant property. Buncombe County commissioners agreed earlier this year to spend $1.6 million on the project.
Murphy’s home is one of those that will be connected.
“That puts to rest one fear and stress of living in this area,” she said. “I won’t have to worry about my water becoming toxic. I have small children in my home, and these chemicals are very dangerous.”
TIMELINE OF CTS
Internal Resistor Corp. buys land on Mills Gap Road and starts electroplating operations.
The site and building are sold to CTS Corp.
CTS stops manufacturing at the site.
CTS sells the 57-acre site to Mills Gap Road Associates.
EPA starts a study of the site, then recommends a Phase 2 study.
EPA finds contamination in soil and stream samples, but the groundwater wasn’t tested, according to an agency report.
: The site is placed on the N.C. Department of Environment and Natural Resources inactive hazardous waste site list.
Mills Gap Road Associates subdivides the site and sells 44 acres to developers. The land will eventually become Southside Village.
A neighbor alerts state environmental officials to an oily substance oozing up in springs on property bordering the CTS site. The springs, which feed drinking water wells, are found to have high levels of trichloroethylene, or TCE. Additional testing finds high levels of TCE and other volatile organic compounds underneath the CTS plant.
EPA issues an action memorandum for enforcement, saying the site is an immediate threat and recommends additional sampling and planning for removal and treatment.
: EPA executes an administrative order on consent with CTS and Mills Gap Road Associates. The order directs the companies to begin remedial actions at the site.
A soil vapor extraction system installed by the companies begins removing contaminants from beneath the plant.
: Testing shows contamination is spreading. One well tests positive for high levels of TCE and the state begins routine testing of wells in a one-mile radius. The county also starts testing wells for any concerned residents.
Three wells in The Oaks neighborhood test positive for TCE. The county runs a city waterline to 34 homes in the subdivision. The EPA conducts vapor studies at and near the site.
A public health assessment conducted by the state concluded that contamination at and near the site did not have adverse health effects. A report by the EPA inspector general says the agency failed to adequately determine the extent of contamination. The EPA announces it is considering the site for inclusion on the National Priorities List.
: Property owners near the former plant file a federal lawsuit against CTS, seeking unspecified monetary damages and to force the company to remove the contamination.
A judge in U.S. District Court in Asheville dismisses the suit, ruling the claim was barred by a North Carolina law placing a 10-year limit on the time plaintiffs can bring lawsuits following a defendant’s actions in cases involving real property.
EPA announces the site has been added to the National Priorities List of Superfund sites for cleanup.
A panel of the Fourth Circuit Court of Appeals in Richmond, Va., sides with the property owners and allows the case to proceed to trial, ruling the state law was pre-empted by the federal Comprehensive Environmental Response, Compensation and Liability Act passed by Congress in 1980. CTS files an appeal of that ruling, asking the U.S. Supreme Court to dismiss the case.
Buncombe County commissioners agree to spend $1.6 million to extend city water to serve about 150 homes within a mile of the former plant. Construction began in March.
The U.S. Supreme Court without comment agrees to consider the CTS appeal. A hearing is scheduled for April 23. The court hears arguments in about 75-80 cases a year out of about 10,000 petitions.