On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law remedy for the fact that CTS Corporation contaminated their properties with toxic chemicals as part of its electronics business between 1959 and 1985.
CTS sold the property in 1987, and the plaintiffs brought suit in 2011, alleging a state-law nuisance claim. North Carolina, the state where the properties are located and where the suit was filed, has a 10-year statute of repose. CTS argued that the statute of repose barred the plaintiffs’ nuisance claims, and the U.S. Supreme Court, in what is basically a 7-2 decision with the majority opinion authored by Justice Kennedy, agreed.Full text
There is no question but that the Clean Water Act has led to enormous improvements in water quality throughout the United States. Funding for publicly owned treatment works (POTWs) has largely eliminated the use of the nation's waterways for the disposal of raw sewage. Most point source discharges are now subject to permitting and technology-based and/or water-quality based effluent limitations.
There is also no question that the Clean Water Act is a statute that is still evolving to address water quality challenges that have become visible once the turbidity of sewage and point source discharges had been largely cleared away. The collection and discharge of stormwater, for example, has evolved from being largely unaddressed, to being the subject of much litigation and court decisions, to being incorporated explicitly into the Act through congressional amendments that imposed permitting requirements on significant stormwater discharges. Even so, stormwater details are still being worked out, and we'll see what the U.S. Supreme Court does regarding runoff from forest roads this term. Contamination of beaches with bacteria and viruses in upstream sewage discharges also emerged as a problem for coastal communities, and other amendments to the Act added water quality standard requirements to help keep the nation's beaches healthy.
But the task is clearly not done yet. The EPA and many states are now struggling to deal with nutrient pollution and the corollary to that task: how to incorporate traditionally exempt farming operations into the Act's divisions of regulatory authority, whether through state nonpoint source programs, state agricultural water quality programs, or increased use of state and multi-state total maximum daily loads (TMDLs), as seen with the Chesapeake Bay. Contamination of waters with waste pharmaceuticals—pollutants that POTWs largely don't (and maybe can't, at least not cheaply) treat—looms as one of the next major water quality problems.Full text