Camp Lejeune water contamination

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The Camp Lejeune water contamination problem occurred at Marine Corps Base Camp Lejeune in Jacksonville, North Carolina, from 1953 to 1987.[1] During that time, United States Marine Corps (USMC) service members and their families living at the base bathed in and ingested tap water that was contaminated with harmful chemicals at concentrations from 240 to 3400 times levels permitted by safety standards. An undetermined number of former base residents later developed cancer or other ailments, which many blame on the contaminated drinking water. Victims claim that USMC leaders concealed knowledge of the problem and did not act properly in trying to resolve it or notify former base residents that their health might be at risk.

In 2009 the U.S. federal government initiated investigations into the allegations of contaminated water and failures by U.S. Marine officials to act on the issue. In August 2012, President Obama signed the Janey Ensminger Act into law to begin providing medical care for people who may have been affected by the contamination. In February 2014, the Centers for Disease Control and Prevention found that the contaminated water at Lejeune significantly increased the risk of multiple diseases including liver cancer, kidney cancer and ALS. The PACT Act of 2022, Sec. 804, is the Camp LeJeune Justice Act of 2022. This new law provides damages for past injuries from Camp LeJeune toxic exposure. It is the first law that provides compensation to the civilian family members of veterans stationed at the base as well as those who came onto the base for work.

Contamination[edit]

Early reports[edit]

From at least 1953 through 1985, Marines and personnel of any branch of the armed forces and their families stationed at Camp Lejeune's main base, barracks, family, temporary housing, Tarawa Terrace and Hadnot Point (for thirty days or more) drank and bathed in water contaminated with toxins at concentrations from 240 to 3400 times levels permitted by safety standards. As a result, at least 850 former residents filed claims for nearly $4 billion from the military. The contamination appears to have affected the water from two of the eight water treatment plants on the base.[2] The main chemicals involved were volatile organic compounds (VOCs) such as perchloroethylene (PCE), a dry cleaning solvent, and trichloroethylene (TCE), a degreaser; however, more than 70 chemicals have been identified as contaminants at Lejeune.[3] The base's wells were shut off in the mid-1980s, after which the water met federal standards, then they were placed back online in violation of the law.[3][4] The National Research Council of the National Academies released a report based upon a literature review of PCE and TCE in July 2009.[5] The report failed to assess other contaminants, such as benzene and vinyl chloride, and concluded that the water at the base was tainted between 1950 and 1985, but that the contamination could not be linked to any health problems.[6][7] However, an October 2010 a letter from the Director of the government agency tasked to study health effects at Superfund sites, such as Camp Lejeune, illustrated the limitations of the 2009 literature review and advised that there "was undoubtedly a hazard associated with drinking the contaminated water at Camp Lejeune".[8]

In 1980 the base began testing the water for trihalomethanes in response to new regulations from the Environmental Protection Agency (EPA). That same year, a laboratory from the U.S. Army Environmental Hygiene Agency began finding halogenated hydrocarbons in the water. In March 1981 one of the lab's reports, which was delivered to U.S. Marine officials, stated, "Water is highly contaminated with other chlorinated hydrocarbons (solvents)!"[9]

Possible sources of the contamination include solvents from a nearby, off-base dry cleaning company, from on-base units using chemicals to clean military equipment, and leaks from underground fuel storage tanks.[2] In 1982, a private company, Grainger Laboratories, contracted by the USMC to examine the problem provided the base commander with a report showing that the wells supplying water for the base were contaminated with trichloroethylene and tetrachloroethylene. The contractor delivered repeated warnings to base officials, including base chemist Elizabeth Betz, that the water was contaminated. A representative from Grainger, Mike Hargett, stated that he went with Betz in July 1982 to inform an unnamed Marine lieutenant colonel who was deputy director of base utilities about the problems with the water. According to Hargett, the Marine was unwilling to discuss Hargett's concerns. In August 1982, a Grainger chemist, Bruce Babson, sent a letter to the base commander, Marine Major General D. J. Fulham, warning him that the base wells appeared to be poisoned. The water from the contaminated wells, however, continued in use at the base.[9][10]

Grainger continued to warn Marine officials of problems with the water in December 1982, March 1983, and September 1983. In a spring 1983 report to the EPA, Lejeune officials stated that there were no environmental problems at the base. In June 1983, North Carolina's water supply agency asked Lejeune officials for Grainger's lab reports on the water testing. Marine officials declined to provide the reports to the state agency. In December 1983 Lejeune officials scaled back the water testing performed by Grainger.[9]

Further reports[edit]

In July 1984, a different company contracted under the EPA's Superfund review of Lejeune and other sites found benzene in the base's water, along with PCE and TCE. Marine officials shut down one of the contaminated wells in November 1984 and the rest in early 1985. The Marines notified North Carolina of the contamination in December 1984. At this time the Marines did not disclose that benzene had been discovered in the water and stated to the media that the EPA did not mandate unacceptable levels of PCE and TCE.[9]

In 1997 the Agency for Toxic Substances and Disease Registry (ATSDR) investigated the well water and concluded that cancerous effects in personnel exposed to the water was unlikely. According to a federal investigation, ATSDR investigators overlooked evidence of benzene in the water when preparing the report.[11]

On April 28, 2009, the ATSDR admitted that the water had been contaminated with benzene and withdrew the 1997 report.[12] The benzene most likely occurred as a result of 800,000 gallons of fuel that leaked from the base fuel farm during the years in question. The fuel leaks occurred near the main well that serves Hadnot Point, location of enlisted and officer's quarters and the base hospital.[13] For unknown reasons, the presence of benzene in the water had been omitted from the official report that the USMC submitted for federal health review in 1992, in spite of the USMC being aware of the presence of the chemical. The report had been prepared by a contractor, Baker Corp.[14] State officials had also reportedly informed the ATSDR in 1994 about the presence of benzene in the water.[11]

Responses and actions[edit]

Notifications and responses to initial investigations[edit]

In 1999 the USMC began to notify former base residents that they might have consumed contaminated water. The notifications were directed by a federal health study examining possible birth defects among children born at the base during the contamination years.[10] Up to this point, many families potentially affected by the water contamination attributed rare illnesses and cancers in their families to bad luck.[15]

In 2005 the US Department of Justice and Environmental Protection Agency (EPA) investigated the USMC's handling of the issue, and reported that they found no criminal conduct by USMC officials. In 2007, however, one of the EPA investigators told Congress that he had recommended obstruction of justice charges against some Camp Lejeune officials, but had been overruled by Justice department prosecutors.[10]

In 2007, Jerry Ensminger, a retired Marine master sergeant, found a document dated 1981 that described a radioactive dump site near a rifle range at the camp. According to the report, the waste was laced with strontium-90, an isotope known to cause cancer and leukemia.[3] According to Camp Lejeune's installation restoration program manager, base officials learned in 2004 about the 1981 document.[3] Ensminger served in the Marine Corps for 24 and a half years, and lived for part of that time at Camp Lejeune. In 1985 his 9-year-old daughter, Janey, died of cancer.[3][16]

An advocacy group called The Few, The Proud, The Forgotten was created to inform possible victims of the contamination at Lejeune. The group's website includes an introduction with some basic information about the contamination at Lejeune, including that many health problems various types of cancer, leukemia, miscarriages and birth defects, have been noted in people who drank the contaminated water. According to their site, numerous base housing areas were affected by the contamination, including Tarawa Terrace, Midway Park, Berkeley Manor, Paradise Point, Hadnot Point, Hospital Point, and Watkins Village and Knox Trailer Park (Frenchman's Point).[17]

In 2008, the USMC began a Congressionally required notification campaign to notify former base residents of the issue. An online health registry now contains more than 135,000 names.[10]

United States Department of Veterans Affairs (VA) has determined that a former servicemember's cancer was caused by his exposure to the contaminated water. Paul Buckley, a USMC veteran who was diagnosed with incurable hematological malignancy, was stationed at Camp Lejeune in the 1980s.[18] In March 2010 the VA decided that Buckley's cancer was directly linked to his ingestion of contaminated water at Camp Lejeune and awarded him 100% disability benefits.[19] This is believed to be the first time the government has admitted liability. On February 22, 2012, the VA agreed that retired Marine Frank Rachowicz' terminal cancer was caused by exposure to the contaminated water at Camp Lejeune.[20]

Lawsuits[edit]

Laura Jones[edit]

On July 6, 2009, Laura Jones filed a suit against the U.S. government over the contaminated water at the base. Jones previously lived at the base where her husband, a Marine, was stationed.[6]

The U.S. Navy requested a dismissal of the case, stating that the statute of limitations had expired and that regulations at the time did not include contaminants such as trichloroethylene, tetrachloroethylene, vinyl chloride and benzene. U.S. District Judge Terrence Boyle, however, rejected the Navy's arguments and ruled that the suit could go forward. Said Boyle, "The Department of the Navy's unwillingness to release information regarding contamination at Camp Lejeune or to provide notice to former residents remains relevant in that such conduct limited the information available to potential clients."[21] Boyle dismissed a claim by the Navy in November 2010 that Jones had violated the 10-year statute of repose. Said Boyle, "To summarily bar such claims from entering the courthouse would be a profound miscarriage of justice."[22]

Joel Shriberg[edit]

In January 2011, retired Marine Joel P. Shriberg filed suit against the US Government, claiming that Lejeune's contaminated water caused his breast cancer. Shriberg was stationed at Lejeune from September 1957 through April 1959.[23]

Multi District Litigation: PreTrial Consolidation, 2011–present[edit]

In 2011, 10 lawsuits were consolidated in U.S. District Court in the Northern District of Georgia. In October 2014, a federal appeals court rejected the North Carolina legislature's attempt to extend a time limit for filing pollution-related lawsuits.[24] On October 14, 2014, the 11th U.S. Circuit Court ruled that CERCLA did not preempt North Carolina's statutory limits.

The multi-district litigation, MDL-2218, was dismissed on North Carolina statute of repose grounds on December 5, 2016, and the appeal to the 11th Circuit failed (Straw, et. al. v. United States, 16-17573). The U.S. Supreme Court refused certiorari.[25] The Camp LeJeune Justice Act of 2022, Section 804 of the PACT Act, S. 3373, completely reverses the failure to provide justice to the victims.

Straw has appealed this case to the U.S. Supreme Court twice, failing both times. Disability activist, lawyer, columnist, and politician, Andrew U. D. Straw,[26][27][28][29] also pursued claims at the U.S. Court of Federal Claims, stating that the U.S. Marine Corps' UCMJ responsibilities imply a contract to protect U.S. Marine Corps family members (Straw v. United States, 1:17-cv-00560, U.S. COFC). This case was dismissed and denied on appeal. Straw has advocated since 2015 for legislative reform to avoid the legal arguments of the Department of Justice.[30] The main chemicals involved were trichloroethylene (TCE, a degreaser), perchloroethylene (PCE, a dry cleaning solvent), and benzene; however, more than 70 chemicals have been identified as contaminants at Lejeune. Andrew Straw has hired two mass tort national law firms for his own infant brain injury and for the wrongful death of his mother from a Camp LeJeune cancer.[31]

Andrew Straw: Janey Ensminger Act, 2014-2021[edit]

Straw has sought not only compensation, but he also has sought health care under the Janey Ensminger Act of 2012. He litigated for that benefit for 7 years. He was rejected at the VA, the BVA, the U.S. Court of Veterans Claims, and finally in 2021 at the Federal Circuit. Despite Straw being born at Camp LeJeune in 1969, his having 19 months of base access while his father worked there as a U.S. Marine, the language of the Janey Ensminger Act was interpreted narrowly so as to deny Straw this benefit. Straw's parents had a home off base and this is where they slept, even while using and working at the base during the day from 1968-1970. The fact that Straw's mother died from one of the cancers listed in the Act and Straw having neurobehavioral effects listed in the Act was irrelevant to the Federal Circuit. The Federal Circuit also refused to consider the misapplication of the North Carolina Statute of Repose as being a taking of private property. Straw v. Wilkie, 843 F. App’x 263 (Fed. Cir. 1/15/2021);[32][33][34] Straw v. United States, 4 F.4th 1358 (Fed. Cir. 2021).[35] The narrow construction of the Janey Ensminger Act of 2012 in Straw's case led to the Camp LeJeune Justice Act of 2022 having no such on-base limitation. The new 2022 law provides a catch-all "otherwise exposed" inclusive provision so such exclusion for sleeping off base cannot be used to deny the relief.

In 2022, as part of the Honoring Our PACT Act, Congress introduced the Camp Lejeune Justice Act. The Camp Lejeune Justice Act would allow those exposed to the contaminated drinking water at the Marine Corps Base to file a Camp Lejeune water contamination lawsuit and recover compensation for their injuries.

U.S. Congressional Action[edit]

2009–2010[edit]

In October 2009 North Carolina Congressman Brad Miller announced his intention to add a companion bill to Richard Burr's "Caring for Camp Lejeune Veterans Act of 2009" to provide assistance to possible victims of the Lejeune water contamination. The proposed bills would authorize treatment at a US Veterans Administration facility to any veteran or family member who was based at Camp Lejeune during the time the water was contaminated and suffers from adverse health effects.[7][36] In response to Miller's recommendation that the Navy reassess the issue, the Navy announced in December 2009 that it would review the 1998 study into the water contamination at the base.[37][38]

Miller and Burr's proposed bill, renamed "Caring for Camp Lejeune Veterans Act of 2011", was approved by the Veteran's Affairs Committee on 29 June 2011 and was sent to the full House and Senate for approval. The bill was expected to cost $3.9 billion over 10 years and directed the Department of Defense to pay, and the VA to provide the care, for victims of the water contamination.[39][40]

In February 2010, Senator Richard Burr stated that he would hold the nominations of two top Navy civilian officials- Paul Luis Oostburg Sanz as Navy general counsel and Jackalyne Pfannenstiel as assistant Navy secretary for installations and the environment, until the Navy confirmed that it had funded and initiated programs to study the mortality rate of possible victims of the contamination and a plan to compensate any victims for their injuries.[41] The Navy notified Burr the week of March 1, 2010 that it had released $8.8 million to fund the requested study and Burr allowed the nominations of Sanz and Pfannenstiel to go forward. The study will be conducted by the Agency for Toxic Substances and Disease Registry (ATSDR).[42]

In March 2010 a congressional investigation led by Miller asked the Navy and a contractor, Baker Environmental Inc., for documents related to the contamination issue. Miller also asked for access to the Navy's electronic database of documents related to the contamination, which heretofore had not been made publicly accessible. Said Miller, "We want to know what did [the Navy and the Marine Corps] know about the water, when did they know, and what did they do about it?"[43]

On March 22, 2010, the ATSDR formally complained to the USMC for withholding details of and access to databases containing more than 700,000 electronic documents related to the water contamination. Said ATSDR Deputy Director Thomas Sinks, "It's interesting that there is information that we continue to discover that we need to go through." The Navy/USMC responded by providing access to ATSDR to the databases and denied that there was any intent to withhold documents from the investigation, saying that all of the documents had already been provided in hard copy. Access to the databases, however, was not provided to two panels advising the US Government on the contamination issue, with the USMC saying that the panel members must use the Freedom of Information Act to obtain access to the documents.[44]

In September 2010 Miller and the oversight subcommittee of the United States House Committee on Science and Technology held hearings into the contamination. The committee focused in part on the 1997 ATSDR report and on a booklet the USMC released in July 2010 about the contamination which Miller described as "more public relations than public health."[11] Congressional investigators and the Agency for Toxic Substances and Disease Registry have asked the Marine Corps to retract the booklet, which contains information its critics have called "misleading".[45]

2011–present[edit]

In April 2011, five members of Congress, including Senator Bill Nelson of Florida, Senators Kay Hagan and Richard Burr and Representative Brad Miller of North Carolina, and Representative John Dingell of Michigan, sent the Navy a letter criticizing the service's continued behavior regarding the water contamination issue. In the letter, the members accused the Navy of continuing to mischaracterize the 2009 report by the National Academy of the Sciences' National Research Council, which concluded there was no concrete link between the chemicals trichloroethylene and tetrachloroethylene and a host of ailments suffered by veterans and family. The Navy states that the report also assessed benzene exposure, which is false, according to the members' letter. Also, the letter criticized the Navy for not agreeing to a communications protocol with the Agency for Toxic Substances and Disease Registry (ATSDR) to allow that agency to review all Navy public relations material related to the contamination issue. The letter pointed out that the Marine website with information on the contamination did not contain direct links to the ATSDR website documenting their study of the issue.[46]

In June 2011 the Agency for Toxic Substances & Disease Registry began sending a survey to approximately 350,000 former employees or residents of Camp Lejeune. The purpose of the survey was to determine what diseases may be linked to the water contamination. The agency's report was expected to be completed in 2014.[47]

In 2011 a documentary film on the water contamination was produced and released by Wider Film Projects/Tracks Films called Semper Fi: Always Faithful. The film, directed by Tony Hardmon and Rachel Libert, made the 15 film short list for consideration for a 2012 Academy Award for best documentary feature.[48]

On April 20, 2012, members of both the House and Senate Veterans’ Affairs Committees signed a letter to President Obama asking that health care for Camp Lejeune contamination victims be expedited. Veterans Affairs Secretary Eric Shinseki responded that providing healthcare to Camp Lejeune veterans was "premature." The Government Accountability Office, on May 2, 2012, issued a report recommending that the DoD update its processes for addressing possible health effects from toxic exposure. Retired Marine drill instructor Jerry Ensminger started a petition requesting that the US Government begin providing healthcare to Camp Lejeune veterans exposed to the toxic water.[49] More than 136,000 people signed Jerry Ensminger's Change.org petition.

In February 2014 the Centers for Disease Control and Prevention issued its report on the effects of the water contamination. The report found that Lejeune Marines had about a 10 percent higher risk of dying from any type of cancer compared to the Marines stationed at Camp Pendleton. Lejeune Marines had a 35 percent higher risk of kidney cancer, a 42 percent higher risk of liver cancer, a 47 percent higher risk of Hodgkin lymphoma, a 68 percent higher risk of multiple myeloma, and double the risk of ALS.[50]

Janey Ensminger Act[edit]

On July 18, 2012, the US Senate passed a bill, called the Janey Ensminger Act in honor of Jerry Ensminger and his daughter Janey who died of cancer at age 9, authorizing medical care to military and family members who had resided at the base between 1957 and 1987 and developed conditions linked to the water contamination. The measure applies to up to 750,000 people.[51] The House approved the bill on July 31, 2012.[52] President Obama signed the bill into law on August 6, 2012.[53]

The bill applies to 15 specific ailments believed to be linked to the contamination, including cancer of the esophagus, lung, breast, bladder or kidney; leukemia; multiple myeloma; myleodysplastic syndromes; renal toxicity; hepatic steatosis; female infertility; miscarriage; scleroderma; or neurobehavioral effects or non-Hodgkin's lymphoma. The Department of Veterans Affairs is assigned by the bill to provide the medical care. To fund the medical care, the bill extends higher fees for VA home loan guarantees to October 1, 2017.[54]

Camp LeJeune Justice Act of 2022[edit]

Efforts to create a Camp LeJeune Justice Act in 2021 failed, but the effort was renewed in 2022 when Camp LeJeune Justice Act became Section 706 of the SFC Heath Robinson Honoring Our PACT Act, H.R. 3967. The U.S. House passed H.R. 3967 on March 3, 2022, by a vote of 256-174.[55] The U.S. Senate passed H.R. 3967 with some minor amendments on June 16, 2022, by a vote of 84-14.[56] There were constitutional taxation problems with the amended version and a "blue slip"[57] was issued causing the matter to return to the U.S. House. The U.S. House made the changes necessary to avoid the constitutional issue and passed the PACT Act on July 13, 2022, by a vote of 342-88.[58] This new PACT Act was repackaged as S. 3373 with the Camp LeJeune Justice Act set as Section 804. A number of Republican Senators changed their votes and refused cloture on July 27, 2022, by a vote of 55-42.[59] After several days of veterans protesting at the Capitol, there was another vote on S. 3373 and this time it passed by a vote of 86-11 on August 2, 2022.[60] President Biden is scheduled to sign this bill on August 8, 2022, in a White House Rose Garden ceremony. When the U.S. Senate passed the law on June 16, 2022, President Biden's White House made a celebratory statement that included mention of Camp LeJeune victims.[61]

The language of Section 804 provides for monetary relief for those injured by exposure to the Camp LeJeune base and its toxic water.[62] 30 days of "living" or "working" or "otherwise" being exposed between 1953 and 1987 is the prerequisite for compensation. This includes in-utero exposure. Harms must be demonstrated and they must be associated with some condition caused by the base toxins. Some of the possible conditions may include those listed for the Janey Ensminger Act of 2012. 38 C.F.R. 17.400(b). There is a jury trial right that is not present in the Federal Tort Claims Act. Also, there is no requirement to prove negligence, making this what is known in tort law as a strict liability relief. All immunities that were used in the Multi-District Litigation are stripped by this new law, making it much easier for veterans, their family members, and others poisoned and injured to get relief. Many mass tort law firms have begun advertising for Camp LeJeune clients and there are conferences being held on this subject.[63] Also, some litigation finance firms are now specifically listing Camp LeJeune claims as eligible for early advance funding. Tribeca is one such firm.[64]

See also[edit]

References[edit]

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