Friday, August 15, 2008

Village DePue IL v. Exxon Mobil

Aug 11: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-2311. The Village of DePue brought this action in Illinois state court against Exxon Mobile Corp., Viacom International, Inc. and CBS Broadcasting, Inc. (collectively, Exxon) involving cleanup of a contaminated site in the Village. Exxon removed the case to the district court under 28 U.S.C. § 1441. The district court determined that it had diversity jurisdiction and, upon Exxon’s motion, dismissed the Village’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The Village of DePue filed its complaint against Exxon in Illinois state court. The complaint asserted that Exxon had violated and continued to be in violation of the Village’s nuisance ordinance. It sought three forms of relief: a judgment declaring that Exxon had violated the ordinance, daily fines of up to $750 for that alleged violation and injunctive relief requiring Exxon immediately to clean the site and have it removed from the NPL.

The district court agreed with Exxon and concluded that section 113(h) of CERCLA barred the Village’s legal challenges. Although noting that CERCLA contains “savings” provisions that preserve remedies under state and local law, the court held that, if such a law conflicts with a CERCLA-mandated remedial action, the bar of section 113(h) applied and deprived the court of jurisdiction until the remedial work was completed.

The district court held that the relief sought by the Village conflicted squarely with the detailed process mandated by the Consent Order and concluded that section 113(h) of CERCLA divested it of jurisdiction to hear the claims. The district court also held that the Village’s claims were preempted by Illinois law. It concluded that the claims conflicted with the process required by the Illinois EPA and its implementing regulations because the Village was seeking immediate and undefined completion of the cleanup at the site. Such relief, held the district court, would conflict with the considered and phased process outlined in the Illinois Hazardous Substances Pollution Contingency Plan (ICP) and implemented at the site via the Consent Order. Such interference, reasoned the court, was preempted by Illinois law. It therefore granted Exxon’s motion to dismiss the Village’s claims with prejudice.

The Appeals Court affirmed the judgment of the district court saying, "If the Village were permitted to apply its nuisance ordinance to force Exxon to complete immediately the cleanup of the site, on penalty of $750 per day for noncompliance, then it could prevent compliance with the measured cleanup process adopted by Illinois through the Consent Order under the authority of Illinois law. . . Such a result would frustrate the purpose of the Illinois Act, which permits the Illinois Attorney General to enter consent orders precisely like this one for the purpose of removing and remediating environmental hazards."

Access the complete opinion (click here).

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