Amicus Curiae Brief — CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (No. 13-339)

RECORD

AND

BRIEFS

In The

Supreme Court of the Anited States

*

CTS CORPORATION,

Petitioner,

v.

PETER WALDBURGER, et al.,

Respondents.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

OF CHIUSTOPHER regu PARTAIN,

KRIS ae AND THE ‘ATE OF

ROSANNE W. AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

.

ESTATE

BURTON CRAIGE NARENDRA K. GHOSH

Counsel freee Record PATTERSON HARKAVY LLP

PATTERSON vy LLP 100 Europa Drive, Suite 250

1312 Annapolis Drive Chapel Hill, NC 27517

Suite 103 (919) 942-5200

Raleigh, NC 27608 nghosh@pathlaw.com

(919) 765-1812

beraige@pathlaw.com ag porte et

232 King Street

Georgetown, SC 29440

(843) 546-2408

ebell@edbelllaw.com

Counsel for Amici Curiae

CUCKLE LEGAL RRIEPS (800) 225-6964

WWW COCKLELBOALBRIEPS COM

i

QUESTION PRESENTED

Whether 42 U.S.C. § 9658 preempts periods of re-

pose such as that found in N.C. Gen. Stat. § 1-52.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ....................... 7

PETES HUM 8

I. EXTENSIVE WATER CONTAMINATION

I,

AT CAMP LEJUENE LASTED FOR

DECADES, WAS CONCEALED BY THE

GOVERNMENT, AND AFFECTED THOU.

SANDS OF MARINES AND CIVILIANS...

A. The government exposed Marines and

their families to toxic water for dec-

B. The government concealed the nature

and scope of Camp daenstnnnde contami-

C. Camp Lejeune's toxic water devastated

countless Lives... sees,

CERCLA'S UNIFORM DISCOVERY RULE

WAS INTENDED TO ADDRESS SITUA-

TIONS EXACTLY LIKE THOSE EXPE-

RIENCED BY THE VICTIMS OF CAMP

LEJEUNE’S CONTAMINATED WATER ...

A. As amended, CERCLA was intended to

protect the rights of those suffering

from long-latency diseases ....................

B. Petitioner's position would terminate

with prejudice the claims of individu-

als, such as the Camp Lejeune victims,

who suffer from long-latency diseases ....

16

20

20

22

iii

TABLE OF CONTENTS — Continued

Page

C. Petitioner's position would absolve pol-

luters of liability if they hide their mis-

conduct and succeed in pretie its

__ eeneveperreverenrrerreerererrtrtni rent ttre 24

et ler ts | Beerrrerererererrirererrtriiiirr tr tty 28

iv

TABLE OF AUTHORITIES

CASES:

Bryant v. United States; Camp Lejeune Water

Contamination Litigation v. United States,

No. 12-15424 (11th Cir., argued Jan. 17, 2014)...

Burlington N. & Santa Fe Ry. Co. v. United

States, 556 U.S. 599 (2009)

Jones v. United States, 751 F. Supp. 2d 835

(E.D.N.C. 2010)

NCUA Bd. v. Nomura Home Equity Loan, Inc.,

727 F.3d 1246 (10th Cir. 2013)

STATUTES:

BP Aas FBO PU Poses ntnceccavseaniusenessvins eaten

42 U.S.C. § 9651(e)

42 U.S.C. § 9658(a)

42 U.S.C. § 9658(bx 4)

MISCELLANEOUS:

Jerry Allegood, Civilians, military investigating

waste dumps at Camp Lejeune, Raleigh News

& Observer, Sept. 15, 1985, at 29A

ATSDR, Reported health effects linked with

trichloroethylene (TCE), tetrachloroethylene

(PCE), benzene, and vinyl chloride (VC) expo-

sure, avaiable at http//www.atsdr.cdc.gov/sites/

lejeune/tce_pce. html

Cee eee eee eee eee eee eee

OCP Pe Pee eee eee eee eee ee eee eee eee eee eee eee eee

COTE RR eee eee

oe eee eee eee eee eee eee eee eee eee ee eee eee

PEMA, SI, TG, B BCD os ses cccciniccsvccescsseecovessencass

TTR ee

Page

joasten 5

— 20

eae 19

aes 23

TABLE OF AUTHORITIES — Continued

Page

Frank J. Bove, et al., Evaluation of mortality

among marines and navy personnel exposed to

contaminated drinking water at USMC base

Camp Lejeune: a retrospective cohort study,

Environmental Health 2014 13:10, available at

http//www.ehjournal.net/content/13/1/10 ........... 16, 17

Brief for the United States on Petition for a

Writ of Certiorari, Freier v. Westinghouse

Elec. Corp., No. 02-1036 (U.S. filed March 12,

i ea il a TS 26

Brief of the United States, Camp Lejeune Water

Contamination Litigation, No. 12-15424 (11th

I 6

Centers for Disease Control and Prevention,

Workplace Safety and Health Topics, Cancer

Clusters, available at http://www.cdc.gov/niosh/

topica/cancer/clustere.Rtail ..............sccccccccccsessecsscssees 18

Dep't of Navy, BUMED Instruction 6240.3C

(Dec. 13, 1972), available at http://tftptf.com/

CLV _DocaCLWVO1 44. 9G ......ccscsccscccccesseccesseseess 11, 14

Dep't of Navy, Manual of Naval Preventative

Medicine (““NAVMED”), P-5010 § 5-23 (August

1963), avauable at http://www.tftptf.com/New _

ATSDR1/NAVMED_P-5010-5_1963.pdf................. 10

H.R. Conf. Rep. No. 99-962 (1986), reprinted in

BE BORA AATe. GO SiG enccencscivccsssceoscsscosseesn: 21

H.R. Rep. No. 1016, 96th Cong., 2d Sess. Pt. 1,

G1 __ SAREE arene paar Penvane ae Unie oe A manna nOe SRI 26

TABLE OF AUTHORITIES — Continued

Page

Janey Ensminger Act, Pub. L. No. 112-154, 126

I. Re I, Gy Bie csinsivcecscstcicccsisossacenecans 19, 20

John Warner National Defense Authorization

Act of 2007, Pub. L. No. 109-364, § 318(b),

I oo sama esiinniinbaeiandne 15

William R. Levesque, Camp Lejeune water con-

tamination history detailed in documents,

Tampa Bay Times, October 16, 2009, availa-

ble at http//www.tampabay.com/news/military/

veterans/camp-lejeune-water-contamination-

history-detailed-in-documents...................000..2.00066. 15

Mike Magner, A Trust Betrayed: The Untold

Story of Camp Lejeune and the Poisoning of

Generations of Marines and Their Families

AE RE NE i enieicitteciicnnnsncnneadennsnoncesie’ passim

Morris L. Maslia, et al., Analyses and Histori-

cal Reconstruction of Groundwater Flow,

Contaminant Fate and Transport, and Dis-

tribution of Drinking Water Within the Ser-

vice Areas of the Hadnot Point and Holcomb

Boulevard Water Treatment Plants and Vicin-

ities, U.S. Marine Corps Base Camp Lejeune,

North Carolina (March 2013), available at

http://www.atsdr.cdc.gov/sites/lejeune/hadnot

ibe ssiainiccnt ccaenemencheuipieatsaiabnetle 12, 13, 16

vii

TABLE OF AUTHORITIES — Continued

Morris L. Maslia, et al., Analyses of Ground-

water Flow, Contaminant Fate and Trans-

port, and Distribution of Drinking Water at

Tarawa Terrace and Vicinity, U.S. Marine

Corps Base Camp Lejeune, North Carolina:

Historical Reconstruction and Present-Day

Conditions (March 2009), available at http-//

www.atsdr.cdc.gov/sites/lejeune/tarawaterrace.

html

Poisoned Patriots: Contaminated Drinking

Water at Camp Lejeune: Hearing before the

H. Comm. on Energy and Commerce, 110th

Cong. 12, 15 (June 12, 2007)

Pern Z. Ruckart, et al., Evaluation of exposure

to contaminated drinking water and specific

birth defects and childhood cancers at Ma-

rine Corps Base Camp Lejeune, North Caro-

lina, Environmental Health 2013, 12:104,

avauable at http//www.ehjournal.net/content/

12/1/104

Superfund Section 301(E) Study Group, 97th

Cong., Injunes and Damages From Hazardous

Wastes — Analysis and Improvement of Legal

Page

Remedies (Comm. Print 1982)......... 20, 21, 22, 23, 26

U.S. Marine Corps, Camp Lejeune Base Order

5100.13B (June 27, 1974), available at http://

tftptf.com/C LW_Docs/CLW5996. pdf

INTEREST OF AMICI CURIAE'’

Jerry Ensminger, the Estate of Christopher

Townsend, Mike Partain, Kris Thomas, and the Es-

tate of Rosanne Warren submit this brief as amici

curiae in support of respondents. Amici lived on or

near Marine Corps Base Camp Lejeune in Jackson-

ville, North Carolina, at various points between the

1950s and 1985. During this period, drinking water

provided through Camp Lejeune’s Tarawa Terrace

and Hadnot Point water systems was highly contam-

inated with multiple human carcinogens. The toxic

exposure had devastating consequences for these

amici, and for many other Marines and their families.

Jerry Ensminger joined the United States Ma-

rines after graduating from high school in 1970.

Ensminger and his wife were assigned to Camp

Lejeune in 1973. In 1975, while the couple was liv-

ing in the base’s Tarawa Terrace neighborhood,

Ensminger’s wife became pregnant with their second

child. The family moved away from Camp Lejeune in

December 1975, and their daughter Janey was born

in South Carolina on July 30, 1975. In 1982, the

Ensmingers returned to Camp Lejeune. Although the

' Pursuant to Supreme Court Rule 37.6, counsel for amici

state that they authored this brief in its entirety and that no party

or counsel for any party, nor any other person or entity other than

amici or their counsel made a monetary contribution intended to

fund the preparation or submission of this bnef. Respondents

have provided amici with written consent to the filing of this

brief, and petitioner has consented to the filing of this brief by a

blanket agreement filed with the clerk of this Court.

2

family lived off-base, Janey frequently visited the

base, often spending time at the base swimming

pools. Janey was thus exposed to Camp Lejeune’s

carcinogenic water both in utero and as a young child.

In the summer of 1983, Janey fell ill and was ulti-

mately diagnosed with acute lymphocytic leukemia.

After a grueling course of chemotherapy, Janey died

on September 24, 1985, at age nine. Jerry Ensminger

had no reason to suspect that Camp Lejeune’s water

could have contributed to his daughter’s death until

1997, when he saw a news report about possible

contamination on base. When he contacted the Ma-

rine Corps and the Navy, officials assured him that

the contamination was minor and could not have

been responsible for Janey’s illness and death. Not

satisfied by these assurances, he began his own in-

vestigation and uncovered years of evidence sup-

pression and deceit by the military regarding the

contamination at Camp Lejeune.

Tom Townsend joined the Marines in 1949 at age

18. He and his wife Ann had a healthy son in 1955

and a healthy daughter in 1962. Assigned to Camp

Lejeune in 1965, they were living in a neighborhood

served by the base’s Hadnot Point water system when

their third child was conceived. Christopher Town-

send was born on March 16, 1967, in the Camp

Lejeune naval hospital. The baby struggled immedi-

ately after birth, and was diagnosed with serious

heart defects. Over the following weeks, Chnstopher

was treated in the Camp Lejeune naval hospital, and

twice admitted into the naval hospital in Bethesda,

3

Maryland. On June 27, 1967, Christopher Townsend

died after living just three and a half months. An

autopsy revealed that he died of congenital malfor-

mation of the heart. Tom Townsend only realized that

his wife and infant son may have been exposed to

toxic water at Camp Lejeune in 1998, after reading

an article in a magazine. He would eventually work

with Jerry Ensminger to uncover countless docu-

ments demonstrating the extent of the contamination

and the scope of the government’s efforts to suppress

the evidence. Townsend currently has a claim under

the Federal Tort Claims Act (“FTCA”) pending before

the Department of the Navy on behalf of his son’s

estate.

Mike Partain is the grandson and son of Marine

officers whose combined service includes World War

Il, the Korean War, and the Vietnam War. Conceived

in 1967 and born in 1968 at Camp Lejeune, Partain

was exposed to the base’s carcinogenic drinking water

in utero and as an infant. Partain lived a seemingly

normal life until April 2007, when, on his eighteenth

wedding anniversary, he was diagnosed with male

breast cancer. He underwent a right mastectomy and

eight rounds of active chemotherapy, followed by a

year of oral chemotherapy. Male breast cancer is ex-

ceptionally rare and its occurrence peaks in men aged

71 years. Partain developed the disease at age 39, has

no family history of breast cancer, and lacks the

genetic mutation common in most male breast cancer

victims. Partain was unaware of his exposure to car-

cinogenic chemicals in Camp Lejeune’s water until

4

two months after his diagnosis, when his father

viewed a CNN report featuring Jerry Ensminger’s

congressional testimony about Camp Lejeune’s con-

tamination. Partain volunteered as an advocate for

those poisoned at Camp Lejeune, and has identified

an ever-expanding cluster of male breast cancer vic-

tims who were similarly exposed to Camp Lejeune's

toxic drinking water. Partain currently has a claim

under the FTCA pending with the Department of the

Navy.

Kris Thomas is the son of a United States Ma

rine. Born in 1958, Thomas lived in Camp Lejeune's

Tarawa Terrace from approximately 1965 to 1970,

just a few streets down from Mike Partain. Thomas's

father was stationed at Camp Lejeune In 1970, the

Thomas family moved off base, but he regularly

visited the base. Thomas enjoyed swimming and

frequented Camp Lejeune’s pools, waterways, and

ponds. Thomas also attended school on base and

received medical treatment at the base hospital. As

an adult, Thomas served as a Church of God minister

until 2004, when he was diagnosed with male breast

cancer. Ile had surgery to remove the carcinoma and

affected lymph nodes, and then underwent several

months of chemotherapy. His treatment required him

to resign from the ministry. Thomas only realized

that he and his family had been exposed to car.

cinogens at Camp Lejeune when his wife read an

article about Mike Partain's advocacy in a local news.

paper in October 2007, Thomas currently has a claim

5

under the FTCA pending before the Department of

the Navy.

Rosanne Warren was born in 1971, Her mother,

Patricia Warren, had worked on Camp Lejeune’s

Hadnot Point throughout her pregnancy. Through the

early 1980s, Rosanne would frequently visit and stay

with family friends in Tarawa Terrace while her

mother was working. When she was twelve years old,

Rosanne began suffering from serious kidney prob-

lems, which required multiple stent implants. Despite

her medical problems, Rosanne attended college, and

went on to receive a degree in medical technology. In

her mid-20's, Rosanne was diagnosed with cervical

cancer. She underwent chemotherapy, radiation, and

surgical removal of her uterus. Despite aggressive

treatment, the cancer returned in her hip and kidney.

Rosanne died in 2000, at age 28. Her mother Patricia

did not learn that she and her daughter had been

exposed to carcinogens at Camp Lejeune until 2008,

when a friend told her about a community meeting

discussing the issue. Patricia Warren is currently

pursuing an FTCA claim on behalf of her daughter's

estate before the Department of the Navy.

Amici’s interest in this case is substantial be-

cause its resolution could impact their claims against

the government, as well as those of other victims of

the Camp Lejeune contamination. Many of these

vietims are pursuing FTCA claims before the Navy

Some are pursuing FTCA claima in federal court.

Those claims have been consolidated and are on ap-

peal before the Eleventh Cireuit. See Bryant v. United

6

States; Camp Lejeune Water Contamination Litiga.

tion v. United States, No. 12-15424 (11th Cir., argued

Jan. 17, 2014). In the Eleventh Circuit, the United

States contends that North Carolina's statute of re-

pose shields the government from all liability for in-

juries to the Camp Lejeune victims. Its argument in

the Eleventh Circuit as to CERCLA preemption is

nearly identical to the one it now makes to this Court

us amicus curiae. See Brief of the United States,

Camp Lejeune Water Contamination Litigation, No

12-15424 (11th Cir filed Feb. 11, 2013).

Amici also have a strong interest in ensuring

that individuals with a long-latency cancer due to

toxic contamination can pursue recovery in states

with similar periods of repose. Amici have experi-

enced cancer's devastating impact on individuals,

families, and communities. If state statutes are

permitted to bar victims of long-latency cancers from

pursuing claims against those who caused their suf

fering, many victims will have no effective legal re-

course, regardless of how clearly they were wronged.

Finally, amici know firsthand the extent to

which perpetrators will attempt to hide their wrongs

from victims. The Navy has required that Camp

Lejeune test ita water systems annually since 1963,

but no records exist of any such tests until 1980. Al-

though Camp Lejeune officials received reports of the

water contamination as early as 1980, they did not

begin closing wells on base until November 1984. For

over two decades, the United States failed to notify

potential victims of their exposure to contaminated

7

water, suppressed information regarding the extent of

the contamination, and refused to provide medical

support. It took an act of Congress in 2007 for the

military to begin formally notifying all exposed per-

sonnel and their families. Had Camp Lejeune officials

notified these individuals more promptly, the suf-

fering of countless victims could have been reduced

through preventive care, aggressive monitoring, and

early treatment.

SUMMARY OF THE ARGUMENT

Camp Lejeune’s water supply was contaminated

with dangerous carcinogens for decades. Although the

military had reason to know of the contamination, it

did nothing to address the problem. Once the gov-

ernment finally began closing contaminated wells, it

concealed the scope of the contamination for many

years. Amict and countless others have had their lives

devastated because of exposure to Camp Lejeune’s

contaminated water Because cancer often develops

many years after an individual is exposed to carcino

vens, most of these victims did not know of their

injuries until many years after they left Camp Lejeune.

Those who developed injuries more immediately did

not know that Camp Lejeune’s water could have been

the cause until the government's deception was ex-

posed.

In 1986, Congress enacted legislation ensuring

that individuals who develop long-latency diseases

8

because of exposure to hazardous waste would have

the opportunity to bring suit, regardless of state lim-

itation periods. This legislation was intended to ad.

dress claims such as those arising from Camp

Lejeune's water contamination. Petitioner and the

United States as amicus, however, argue that the

federal law has no effect on North Carolina's statute

of repose. Their interpretation contravenes both the

text and the intent of the 1986 legislation. If adopted,

it would prevent the victima of Camp Lejeune from

having any legal recourse, and would reward entities

that conceal their misconduct. Amici and others sim.

ilarly situated should not be excluded from the law's

protection.

—__—_—_

ARGUMENT

|. EXTENSIVE WATER CONTAMINATION AT

CAMP LEJEUNE LASTED FOR DECADES,

WAS CONCEALED BY THE GOVERN.

MENT, AND AFFECTED THOUSANDS OF

MARINES AND CIVILIANS.

A. The government exposed Marines and

their families to toxic water for dec-

ades.

Founded in 1941, Camp Lejeune is the largest

Marine Corps base on the East Coast. On approxi-

mately 220 square miles adjacent to Jacksonville,

North Carolina, the base typically serves more than

100,000 service members, military families, and

9

civilian personnel. Amici and their families once lived

on or near this base.

The government maintained a cavalier attitude

toward waste disposal at Camp Lejeune for much of

the mid-twentieth century. Although the base had a

hazardous waste dump since 1959, military officials

permitted the disposal of waste at other locations

throughout the base. Mike Magner, A Trust Betrayed:

The Untold Story of Camp Lejeune and the Poisoning

of Generations of Marines and Their Families 33-34,

55-59 (Da Capo Press 2014). Waste was generally

either dumped onto the land or into ditches dug by

Marines. /d. at 33-34. These wastes included indus.

trial cleaning solvents, gasoline, oil, mustard gas,

battery acid, heavy metals, and pesticides. Jd. at 55-

49, 87-90. In addition, as much as one million gallons

of fuel from the base's fuel depot leaked into the soil,

forming large pools of diesel and gasoline floating on

top of the aquifer closest to the surface. Jd. at 87, 209-

11.

* Many of the original source documents upon which

Magner relies were uncovered through the tireless e of ad-

voeates for Camp Lejeune’s victimes In 2007, the Agency for

Toxic Substances and Disease Registry released many of these

documents along with a water modeling study of Tarawa Ter-

race. Advocates for Camp Lejeune victims have compiled a more

comprehensive account of the events discussed in thie brief with

accompanying citations to these original sources. That account

ean be accessed at http//tfiptf co Linked Mareh_

2012 pdf

10

Camp Lejeune is supplied by on-base water

wells. Since at least 1963, the Navy recognized that it

was “responsible for the protection and the purity of

the water during its distribution un its premises.”

Dep't of Navy, Manual of Naval Preventative Medi-

cine (“NAVMED”), P-5010 § 5-23 (August 1963), avai/

able at http//www tftptfeom/New ATSDRIUNAVMELD

P.5010-5_1963 pdf. It likewise recognized that “ground

waters are becoming polluted with increasing fre-

quency and the resulting hazards require special!

surveillance,” particularly from “chemical pollutants

originating either from sewage or industrial efflu-

ents.” Id. § 5-32, Appendix A. Accordingly, the Navy

required that a “complete chemical analysis of the

water supply shall be made annually|,!” with the

additional requirement that “lilf the supply is from

wells, water from each well is analyzed.” Id. §5-

§215Xa). Despite these requirements, there is no in-

dication that Camp Lejeune’s water systems or wells

were tested in the years before 1980

In 1974, Camp Lejeune officials acknowledged

that they understood the risk posed by industrial

pollutants. That year, the Camp Lejeune Base Com-

mander issued an order recognizing that “organic

solvents were hazardous materials,” and that “im-

proper disposal practices create hazards such as the

contamination of drinking water.” U.S. Marine Corps,

Camp Lejeune Base Order 5100.19B (June 27, 1974),

avaiable at httpy/tftptf.com/CLW_Does/CLW5996 pdf.

Knowing the source of the base's drinking water and

the extent and nature of the waste disposed at the

11

base, military officials had many reasons to suspect

that the water system was already contaminated. See

Magner, supra, at 55-59.

Officials would eventually have definitive proof.

In the wake of impending federal water quality

regulations, base officials had water samples inde-

pendently evaluated in 1980 and 1981. Id. at 45-47.

These evaluations repeatedly revealed that Camp

Lejeune’s drinking water was highly contaminated,

and generated numerous written warnings to mili-

tary officials. Jd. The first report from October 1980

stated: “heavy organic interference ... you need to

analyze for chlorinated organics.” Jd. at 46. Another

from 1981 flatly stated: “water highly contaminated

with other chlorinated hydrocarbons (Solvents)!” Jd.

at 46. Despite these warnings, the military made no

effort to shut down wells, improve water quality, or

notify Marines and their families of the dangerous

contaminants in their drinking water.

In 1982, tests revealed that the base’s water was

contaminated with the cleaning solvents Trichloro-

ethylene (“TCE”) and Perchloroethylene (“PCE”). Id.

at 51-52. A sample from the Hadnot Point system

contained 1,400 parts per billion (“ppb”) of TCE. Jd. at

53. At the time, the Navy’s Bureau of Medicine and

Surgery (““BUMED”) Instructions limited the concen-

tration of chlorinated hydrocarbons such as TCE and

PCE in drinking water to maximums ranging from 3

to 100 ppb. See Dep’t of Navy, BUMED Instruction

6240.3C at 6 (Dec. 13, 1972), available at http://tftptf.

com/CLW_Docs/CLW0144.pdf. Although water test

12

results were reported up the chain of command, the

military made no effort to further investigate or ad-

dress the problem. Magner, supra, at 51-53.

It was rot until late 1984 that military officials

took any action. In November and December of that

year, three wells were closed after tests revealed TCE

concentrations ranging from 300 to 1,600 ppb, along

with elevated levels of benzene and other industrial

contaminants. /d. at 69-70. Approximately one month

after these wells were taken out of service, an on-base

elementary school water fountain was found to con-

tain 1,100 ppb of TCE. Jd. at 71. Additional tests then

revealed TCE contamination levels in some wells as

high as 18,900 ppb. Id. Camp Lejeune finally closed

its contaminated wells in 1985. Id.

The Agency for Toxic Substances and Disease

Registry (“ATSDR”) has conducted multi-year studies

on Camp Lejeune’s water contamination. See Morris

L. Maslia, et al., Analyses and Historical Reconstruc-

tion of Groundwater Flow, Contaminant Fate and

Transport, and Distribution of Drinking Water Within

the Service Areas of the Hadnot Point and Holcomb

Boulevard Water Treatment Plants and Vicinities,

U.S. Marine Corps Base Camp Lejeune, North Caro-

lina (March 2013) (“ATSDR Hadnot and Holcomb Re-

port”), available at http://www.atsdr.cdc.gov/sites/lejeune/

hadnotpoint.html; Morris L. Maslia, et al., Analyses

of Groundwater Flow, Contaminant Fate and Trans-

port, and Distribution of Drinking Water at Tarawa

Terrace and Vicinity, U.S. Marine Corps Base Camp

Lejeune, North Carolina: Historical Reconstruction

13

and Present-Day Conditions (March 2009) (“ATSDR

Tarawa Terrace Report”), available at http://www.atsdr.

cdc.gov/sites/lejeune/tarawaterrace.html. These studies

performed historical reconstruction calculations to

estimate the monthly levels of contaminants in the

drinking water provided to on-base family housing

units. ATSDR Tarawa Terrace Report, supra, at A2;

ATSDR Hadnot and Holcomb Report, supra, at A2.

The ATSDR’s studies demonstrate that Camp

Lejeune’s Tarawa Terrace and Hadnot Point water

systems were highly contaminated with multiple

known human carcinogens from the 1950s to 1985.

ATSDR Tarawa Terrace Report, supra, at A70;

ATSDR Hadnot and Holcomb Report, supra, at A100-

01. Because Camp Lejeune’s water systems had

different degrees of contamination, individuals living

on base during the contaminated period experienced

varying levels of exposure.

B. The government concealed the nature

and scope of Camp Lejeune’s contami-

nation.

After exposing its Marines, civilian personnel,

and their families to poisonous water for decades, the

government compounded its malfeasance by making

every effort to prevent these victims, including amici,

from learning that they had been exposed to danger-

ous carcinogens.

After they closed contaminated wells in 1984 and

1985, military officials downplayed the extent of the

contamination through euphemistic language that

14

obscured the problem and deceived the victims. For

example, around the time the wells were shut down,

Camp Lejeune’s waste disposal practices had begun

attracting media attention. Although the base’s drink-

ing water had been highly contaminated for years,

base officials represented to the media that “people

had not been directly exposed to the pollutants/(,]” and

characterized the closure of wells as “precautionary

measures.” Jerry Allegood, Civilians, military investi-

gating waste dumps at Camp Lejeune, Raleigh News

& Observer, Sept. 15, 1985, at 29A. In requesting res-

idents of the Tarawa Terrace neighborhood to reduce

their water usage, Camp Lejeune’s base commander

indicated that two wells had been shut down “because of

minute (trace) amounts of several organic compounds.”

Magner, supra, at 73. The notice stated that “[t]here

are no definitive State or Federal regulations regard-

ing a safe level of these compounds, but as a precau-

tion, I have ordered the closure of these wells for all

but emergency situations[.]” Jd. Contrary to these

assertions, Camp Lejeune’s water had previously

contained as much as 300 times the TCE levels then

permitted by the Navy. See BUMED Inst. 6240.3C

at 6.

The military would continue its deceptive con-

duct for many years to come. It resisted turning over

files to the ATSDR, Magner, supra, at 100; fought a

proposed ATSDR study of infants born at Camp

Lejeune, id. at 104; and refused to fund surveys to

locate children born on the base, id. at 107. It misled

the Environmental Protection Agency (“EPA”) as to

15

when water tests had been conducted and what those

tests revealed. William R. Levesque, Camp Lejeune

water contamination history detailed in documents,

Tampa Bay Times, October 16, 2009, available at http://

www.tampabay.com/news/military/veterans/camp-lejeune-

water-contamination-history-detailed-in-documents. In

2010, a news reporter revealed that the Navy and

Marine Corps had simply failed to turn over many

relevant documents to the ATSDR, including one

estimating that over one million gallons of fuel had

leaked into the ground from the Hadnot Point fuel

farm. Magner, supra, at 211. Military officials went so

far as to advocate delaying the mailing of health

questionnaires to ensure that they did not coincide

with the release of the movie A Civil Action, which

addressed the relationship between TCE contamina-

tion and childhood leukemia in Woburn, Massachu-

setts. Id. at 110. Indeed, military officials’ resistance

was so egregious that the EPA investigated whether

their deceptive conduct warranted criminal charges

for obstruction of justice. Jd. at 167-68.

Even after being publicly reprimanded by mem-

bers of Congress, the military refused to notify all

affected Marines until forced to do so by the John

Warner National Defense Authorization Act of 2007,

Pub. L. No. 109-364, § 318(b), 120 Stat. 2083 (2006).

This law also required the Navy to fund compre-

hensive studies evaluating the impact of pre-natal,

childhood, and adult exposure to Camp Lejuene’s

contaminated water. Jd. § 318(a).

16

C. Camp Lejeune’s toxic water devastated

countless lives.

The chemicals found in Camp Lejeune’s water

included TCE, PCE, benzene, and vinyl chloride

(“VC”). See Frank J. Bove, et al., Evaluation of mortal-

ity among marines and navy personnel exposed to

contaminated drinking water at USMC base Camp

Lejeune: a retrospective cohort study, Environmental

Health 2014 13:10 (“Marine Cohort Study”), available

at http://www.ehjournal.net/content/13/1/10. These chem-

icals can be absorbed into the body through ingestion,

skin exposure, and inhalation. Jd. at 2. For example,

an individual taking a ten-minute shower can absorb

as much TCE through inhalation as he or she would

by drinking two liters of the same water. /d. By the

time Camp Lejeune began shutting down contami-

nated wells, its drinking water contained levels of

these volatile organic compounds that were hundreds

of times greater than what is considered safe for

humans. As many as one million people could have

been exposed to Camp Lejeune’s contaminated water.

TCE, benzene, and VC are known human carcin-

ogens; PCE is considered a “likely” human carcin-

ogen. ATSDR Hadnot and Holcomb Report, supra, at

A16. Exposure to these chemicals is associated with a

wide variety of cancers and diseases, including leu-

kemia, breast cancer, bladder cancer, kidney cancer,

cervical cancer, liver cancer, non-Hodgkin’s lympho-

ma, and multiple myeloma. See ATSDR, Reported

health effects linked with trichloroethylene (TCE),

tetrachloroethylene (PCE), benzene, and vinyl chloride

17

(VC) exposure, available at http://www.atsdr.cdc.gov/

sites/lejeune/tce_pce.html (last visited March 27,

2014) (collecting scientific studies). Jn utero exposure

to TCE and PCE is associated with childhood leuke-

mia, major heart defects, neural tube defects, and

fetal death. Id.

Individuals exposed to Camp Lejeune’s contam-

inated water have significantly elevated rates of

cancer mortality. A recent study compared the mortal-

ity rates of all Marines posted at Camp Lejeune

between 1975 and 1985 to that of Marines posted at

California’s Camp Pendleton during the same period.

See Marine Cohort Study, supra. The study found

that Camp Lejeune Marines were more likely to die

from several causes, including “kidney cancer, liver

cancer, esophageal cancer, cervical cancer, multiple

myeloma, Hodgkin lymphoma, and [Amyotrophic Lat-

eral Sclerosis].” Jd. at 13. Marines with high cumu-

lative exposures to Camp Lejeune’s contaminants

had substantially higher cancer mortality rates. For

example, Camp Lejeune Marines with high exposure

to contaminated water were 580% more likely to die

of cervical cancer than Camp Pendleton Marines,

while Camp Lejeune Marines with low to no exposure

to contaminated water were 112% more likely to die

of cervical cancer than Camp Pendleton Marines. Id.

at 9.

Children born to women exposed to the contami-

nated water during their pregnancy also experienced

higher rates of juvenile diseases and disorders. A

2013 epidemiological study evaluated whether in

18

utero and infant exposures to the base's contaminated

water were associated with a defined set of birth

defects and childhood cancers, Perri Z. Ruckart, et

al., Evaluation of exposure to contaminated drinking

water and specific birth defects and childhood cancers

at Marine Corps Base Camp Lejeune, North Carolina,

Environmental Health 2018, 12:104, available at httpy/

www.ehjournal, net/content/12/1/104. The study found

that children exposed to contaminated water in utero

were more likely to be born with neural tube disor-

ders such as spina bifida and anencephaly, and were

more likely to develop childhood hematopoietic can-

vers such as childhood leukemia and childhood non-

Hodgkin's lymphoma, Id. at 1-2.

Many cancers caused by exposure to VO, TOR,

i OB, and benzene do not manifest until decades after

exposure to the chemical, “The time between first

exposure to a cancer-causing agent and clinical

recognition of the disease is called the latency period.

Latency periods vary by cancer type, but for some

cancers may be 15 to 20 years or longer.” Centers for

Disease Control and Prevention, Workplace Safety

and Health Topics, Canver Clusters, available at http,//

www.ede. gov/niosh, weancer/clusters.html (last visited

Mareh 27, 2014). iy a Congressional hearing on Camp

Lejeune, Dr, Michael L. Gros, a Navy obstetrician,

testified that after exposure to the toxins found in

Camp Lejeune’s water, “|t}he cancerous effects do not

appear until 10 to 15 yearal. |" Poisoned Patriots: Con-

taminated Drinking Water at Camp Lejeune: Hearing

before the H. Comm, on Energy and Commerce, 110th

19

Cong. 12, 15 (June 12, 2007) (statement of Michael L.

Gros, M.D).

In 2012, recognizing the weight of the scientific

evidence, Congress enacted the Janey Enaminger Act,

Pub, L. No, 112-164, 126 Stat, 1165 (Aug. 6, 2012).

Under the Act, if a veteran or veteran's family mem-

ber was exposed to Camp Lejeune'’s contaminated

water for more than thirty daye and later develops

one of a number of listed diseases, there is a rebutta-

ble presumption that the disease was caused by the

individual's exposure, 88 U.S.C, § 1710(F). The Act

establishes a preaumption of causation for fifteen

illnesses or conditions: breast cancer, kidney cancer,

multiple myeloma, renal toxicity, female infertility,

acleroderma, non-Hodgkin's lymphoma, lung cancer,

bladder cancer, leukemia, myelodysplastic ayndromes,

hepatic ateatosia, miscarriage, and neurobehavioral

effects. Jd,

While helping many of Camp Lejeune’s victims,

the Act provides only limited relief, Because victime

are only “eligible for hospital care and medical ser-

vices,” id., the Act provides no benefit to Tom Town.

send, whose infant son died yeara before the Act's

passage. It likewise provides limited benefit to indi-

viduals such as Kris Thomas, who waa treated for his

breast cancer several years before the Act's passage,

but who has been unable to return to his career as a

minister due to the side effects of treatment, Because

the Act covers only veterans and their family mem-

bers, individuals such as Rosanne Warren, who was

not a family member of a veteran who served on

20

active duty at Camp Lejeune, would not benefit from

the Act in any way.

Il, CERCLA’'S UNIFORM DISCOVERY RULE

WAS INTENDED TO ADDRESS SITUATIONS

EXACTLY LIKE THOSE EXPERIENCED BY

THE VICTIMS OF CAMP LEJEUNE’S CON.

TAMINATED WATER.

A. As amended, CERCLA was intended to

protect the rights of those suffering

from long-latency diseases.

In 1980, Congress enacted CERCLA “in response

to the serious environmental and health risks posed

by industrial pollution.” Burlington N. & Santa Fe

Ry. Co. v. United States, 556 U.S, 599, 602 (2009),

CERCLA established a twelve-person study group “to

determine the adequacy of existing common law and

statutory remedies in providing legal redress for

harm to man and the environment caused by the

release of hazardous substances into the environ.

mentl.|" 42 U.S.C. § 965 1e),

The study group published its report in July

1982. See Superfund Section S01(K) Study Group,

Y7th Cong., Injuries and Damages From Hazardous

Wastes — Analysis and Improvement of Legal Reme-

dies (Comm, Print 1982) (“Study Group Report”). The

report recognized that “[t)]he most common mode of

human exposure to waste chemicals is through

groundwater.” Study Group Report at 15. It likewise

recognized:

21

Exposure to certain hazardous wastes may

result in cancer, neurological damage, and in

mutagenic and teratogenic changes. vag of

these types of injuries have long laten

riods, sometimes 20 years or longer.

long latency periods, a rule which atarts Ae

running of the statute from the time of expo-

sure will defeat most actions before the

plaintiff knows of his injury.

Id. at 28. The report therefore recommended:

that all states that have not already done so,

clearly adopt the rule that an action accrues

when the plaintiff discovers or should have

discovered the injury or disease and ites

cause, The Recommendation is intended also

to cover the repeal of the statutes of repose

which, in a number of states have the same

effect aa some atatutes of limitation in bar-

ring plaintiff's claim before he knows that he

has one.

Id. at 241,

Rather than wait for action from the states,

Congress amended CERCLA in 1986 to “addresal | the

problem identified in the 301(e) study.” HLR. Conf,

Rep. No. 99-062 (1986), reprinted in 1986 U.S.C.C._ALN.

$276, 3454. Congress's solution established a minimum

“federally required commencement date” (“F RCD") that

applies to state causes of action for “personal injury,

or property damages, which are caused or contributed

to by exposure to any hazardous substance, or pollu.

tant or contaminant, released into the environment

22

from a facility|.|” 42 U.S.C. §9658a). The FRCD

applies “[ijf the applicable limitations period for such

action (as specified in the State statute of limitations

or under common law) provides a commencement

date which is earlier than the (FRCD).” /d. The FRCD

ia “the date the plaintiff knew (or reasonably should

have known) that the personal injury or property

damages referred to in subsection (a) 1) of this section

were caused or contributed to by the hazardous sub-

stance or pollutant or contaminant concerned.” /d.

§ 9658(b) 4).

The FRCD is a simple and effective solution to

the problems identified by the Study Group Report. It

permite certain claims to be brought when an indi-

vidual has discovered both an injury and ita cause,

regardless of whether the period for filing suit has

passed under state law.

BL. Petitioner's position would terminate

with prejudice the claims of individu-

ale, such as the Camp Lejeune victims,

who suffer from heteyes in bt diseases.

If not for the FRCD, claims arising from the

Camp Lejeune contamination would accrue pursuant

to the same North Carolina statute that would oth-

erwise bar respondents’ claims in thie case. That

statute provides:

[F jor personal injury or physical damage to

claimant's property, the cause of action ...

shall not acerue until bodily harm to the

23

claimant or physical damage to his property

becomes apparent or ought reasonably to

have become apparent to the claimant,

whichever event firat oceurs. Provided that

no cause of action shall accrue more than 10

years from the last act or omission of the de-

fendant giving rise to the cause of action.

N.C. Gen. Stat. §1-52(16). Petitioner mistakenly

argues that this provision is not subject to the FRCD.

if the FRCD does not override N.C. Gen. Stat.

§ 1-62(16), the North Carolina statute could bar all

claims from individuals suffering from diseases with

latency periods longer than ten years. But the Study

Group Report's detailed discussion of the problem

posed by long-latency injuries never mentioned a

latency period less than ten years — indeed, it fre-

quently addressed latency periods as long as thirty

and forty years. See, eg., Study Group Report at 55

(“ten-to-forty year latency period”); id. at 240 (Given

“the delayed impact on different organs or the central

nervous aystem, the latency period for the appearance

of injury or disease is likely to be extended for thirty

years or more|.|"); id. at 242 (“carcinogenic, mutagenic,

and teratogenic effect may not manifest themselves

until 20 or 30 years later”). Petitioner essentially

argues that although Congress enacted the FRCD to

address the problem, it intended to exclude entirely

from ita solution the handful of states that provided

limitation periods similar to North Carolina's. This

argument is as incoherent as it ia inhumane.

24

The FRCD was enacted to ensure that the court-

house doors would be open to individuals like the

victims of the Camp Lejeune contamination. Mike

Partain was exposed to Camp Lejeune’s water in

utero and as an infant, but did not develop breast

cancer until he was 39 years old. Kris Thomas was

exposed throughout his childhood, but did not develop

breast cancer until he was 45 years old. If petitioner's

arguments are credited, these individuals will have

no legal recourse. As recognized by United States

District Court Judge Terrence Boyle:

|T)hose exposed to the water at Camp Lejeune

could not have connected their illnesses

to the alleged contamination until studies

and investigations began revealing such cau-

sation in 2007. Thus, to apply the statute of

repose in this case would bar all potential

claims from the over 500,000 marines and

their families affected. Indeed, it would bar

the overwhelming majority of claims involv-

ing any cancer.

Jones v. United States, 751 F. Supp. 2d 835, 841

(E.D.N.C. 2010).

C. Petitioner’s position would absolve pol-

luters of liability if they hide their mis-

conduct and succeed in delaying its

discovery.

The arguments of petitioner and the United

States are especially disturbing given the gov-

ernment’s attempta to cover up its misconduct at

25

Camp Lejeune. If the government had closed Camp

Lejuene’s wells when it first learned they were con-

taminated, Janey Ensminger and Rosanne Warren

might be alive today. If the government had been

forthcoming as to the scope of the problem leading to

well closures, these families may have pursued claims

against the government within North Carolina’s

statutory periods. If the government had promptly

notified those who were exposed to the toxic water,

countless other families may have been able to reduce

the impact of their exposure through preventive care

and early treatment.

Instead of being forthright about its mistakes,

the military chose another approach: deception and

delay. Today, it seeks the fruits of that strategy.

Because it successfully prevented military families

from learning the truth about Camp Lejeune’s con-

taminated water for so many years, the United States

argues that these families should be time-barred from

filing any claims against it. While ordinary statutes

of limitation can be tolled to account for such miscon-

duct, those with periods of repose are not generally

subject to equitable tolling. See NCUA Bd. v. Nomura

Home Equity Loan, Inc., 727 F.3d 1246, 1255 (10th

Cir. 2013). Should the United States’ argument pre-

vail, companies and government bodies responsible

for environmental! disasters in North Carolina will

have every incentive to use the military's strategy

here: conceal their misconduct for as long as neces-

sary to invoke periods of repose.

26

By enacting the FRCD, Congress determined

that entities should bear the economic costs caused by

their toxic contamination. When the FRCD was used

to impose liability on private enterprises, the United

States embraced its remedial purpose:

By increasing the likelihood that persons

harmed by hazardous materials will obtain

compensation for their injuries, the FRCD

provision furthers CERCLA’s purpose of “in-

duciing]” companies generating, transport-

ing, dumping and storing, etc., hazardous

wastes “voluntarily to pursue appropriate

environmental response actions with respect

to inactive hazardous waste sites.” H.R. Rep.

No. 1016, 96th Cong., 2d Sess. Pt. 1, at 17

(1980). As the Study Group Report empha-

sized, “the economic cost of injury should be

carried by the industry or enterprise that

creates [it], because efforts to reduce the cost

will result in greater care and more safety

and protection of the public.” Study Group

Report 248.

Brief for the United States on Petition for a Writ of

Certiorari, Freier v. Westinghouse Elec. Corp., No. 02-

1036 (U.S. filed March 12, 2003) (quotation marks

and record citations omitted) (discussing the constitu-

tionality of the FRCD). The government’s position in

Freier predated the lawsuits from the Camp Lejeune

victims. Faced with the prospect of having to absorb

the economic costs of its own misconduct, the gov-

ernment has reversed course. It now contends that

states can circumvent the FRCD through statutes of

27

repose, and that entities can avoid the economic cost

of their injuries by hiding their misconduct. The

government’s current position directly conflicts with

the text and purpose of the FRCD.

Camp Lejeune’s Marines were willing to give

their lives to defend the United States. In return, the

United States government recklessly exposed these

Marines and their families to poisoned water for

decades, and then concealed the facts that could have

mitigated the devastating consequences. The gov-

ernment now asks this Court to reward its reckless

misconduct and intentional deception by narrowly

construing a remedial statute so as to block victims’

claims for relief. But the FRCD was designed to

ensure that all citizens would be able to pursue

claims based on latent diseases caused by exposure

to hazardous materials, regardless of the vagaries of

state periods of limitation. Amici and others similarly

situated should not be excluded from CERCLA’s pro-

tection.

28

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

BURTON CRAIGE

Counsel of Record

PATTERSON HARKAVY LLP

1312 Annapolis Drive

Suite 103

Raleigh, NC 27608

(919) 755-1812

beraige@pathlaw.com

NARENDRA K. GHOSH

PATTERSON HaRKAvy LLP

100 Europa Drive, Suite 250

Chapel Hill, NC 27517

(919) 942-5200

nghosh@pathlaw.com

J. EDWARD BELL III

BELL LEGAL GROUP

232 King Street

Georgetown, SC 29440

(843) 546-2408

ebell@edbelllaw.com

April 2, 2014 Counsel for Amici Curiae