4th Circuit Reinstates Contamination Lawsuit

     (CN) – The 4th Circuit revived a lawsuit accusing CTS Corp. of contaminating soil and ground water around its now-shuttered electroplating plant in Asheville, N.C.
     The federal appeals court in Richmond, Va., voted 2-1 to reverse a federal judge’s dismissal of a 2011 nuisance action brought by 25 homeowners.
     The homeowners said the company should be ordered to clean up the extensive soil and groundwater contamination by a host of hazardous chemicals, including the known carcinogens trichloroethylene and cis-1, 2-dichloroethane.
     The plaintiffs, who live near the site of the 54-acre plant, said CTS’ actions lowered their property values and created significant health and safety concerns for them and their families.
     They wanted CTS to clean up the site and surrounding areas contaminated between the plant’s opening in 1959 and its closure in 1986.
     CTS, which makes and disposes of electronics and electronic parts, operated the plant until 1985, and then sold the land to Mills Gap Road Associates in 1987.
     U.S. District Judge Graham Mullen dismissed the lawsuit, noting that the contamination wasn’t documented until 2000, and the lawsuit wasn’t filed until a decade later.
     Under North Carolina law, Mullen said, claims involving real property are subject to a 10-year statute of limitations. The
     But a majority of the 4th Circuit panel reversed, finding that the statutes of limitations set by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) preempt state deadlines.
     Enacted in response to New York’s Love Canal disaster, CERCLA is intended, in part, to ensure “that those responsible for any damage, environmental harm or injury from chemical poisons bear the cost of their actions,” Judge Henry Floyd wrote.
     Floyd acknowledged that the circuit’s reversal “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.”
     “They are likely to cite the well-known policies underlying such statutes and asseverate that we have ignore them. But we are not ignorant of these policies, nor have we turned a blind eye to their importance,” Floyd wrote.
     “[W]e simply further Congress’s intent that victims of toxic waste not be hindered in their attempts to hold accountable those who have strewn such waste on their land,” he added.
     Floyd was joined by Judge Andre Davis, who wrote a concurring opinion.
     In the dissenting opinion, Judge Stephanie Thacker disagreed with her colleagues’ interpretation of the federal law’s preemption power.
     She said the “plain and unambiguous language” of the law limits preemption to statutes of limitation – not to statutes of repose.
     “Even if the preemptive effect … were susceptible to two interpretations, a presumption against preemption would counsel that we should limit [the law’s] preemptive reach to statutes of limitations without also extending it to statutes of repose,” she wrote.
     The 4th Circuit’s reversal means the case could go to trial or end up in the U.S. Supreme Court, according to local reports. The Environmental Protection Agency declared the property a Superfund site in 2012.

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