Notwithstanding the intent of the North Carolina legislature, a federal court ruled that the state’s recently amended law exempting groundwater contamination suits from a 10-year statute of repose did not save a latent toxic tort action. See Stahle v. CTS Corporation, No. 1:14-cv-00048-MOC-DLH (W.D.N.C. Dec. 4, 2004).

North Carolina amended its repose laws in 2014 in the wake of CTS Corp. v. Waldburger, 134 S.Ct. 2175 (2014), in which the United States Supreme Court found that Section 309 of CERCLA, which preempts a state “statute of limitations,” does not also preempt North Carolina’s statute of repose. In the wake of Waldburger, North Carolina amended its laws to provide that the statute of repose does not “bar an action for personal injury, or property damages caused or contributed to by … the consumption, exposure, or use of water supplied from groundwater contaminated by a hazardous substance.” N.C. Gen. Stat. Ann. § 130A-26.3.

The amendments sought to save an action brought by military personnel at Camp Lejeune, whose claims stemmed from alleged injuries outside the 10-year repose window. Despite the state legislature’s efforts, the Eleventh Circuit, in a separate action last year (Bryant v. United States, 768 F.3d 1378 (11th Cir. 2014)), found that the law did not overcome the bar imposed by the statute of repose because it did not contain a “latent disease” exception. The Circuit court also found that the statutory exemption could only be applied prospectively because it was a substantive amendment, not a clarification.

The Plaintiff in the instant action, who claimed he developed leukemia after eating fish from a pond allegedly contaminated with toxic solvents from Defendant’s facility, argued that his claims were of the type the Legislature intended to allow. The district court agreed with the Eleventh Circuit opinion and held that the amended law did not contain an exception for latent diseases and that the statutory exemption was a substantive amendment that could only be applied prospectively. Thus, the district court dismissed Plaintiff’s claims.