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Village Of DePue, Illinois v. Exxon Mobil Corp.

August 11, 2008


Appeal from the United States District Court for the Central District of Illinois. No. 06 C 1266-Joe Billy McDade, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before RIPPLE, SYKES and TINDER, Circuit Judges.

The Village of DePue ("the Vil- lage") brought this action in Illinois state court against Exxon Mobile Corp., Viacom International, Inc. and CBS Broadcasting, Inc. (collectively, "Exxon"). 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 *fn1 claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Village timely appealed the matter to this court. For the reasons stated in this opinion, *fn2 we affirm the judgment of the district court.



The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "the Superfund"), 42 U.S.C. § 9601 et seq., was enacted in 1980. It charges the Environmental Protection Agency ("EPA") with monitoring and, in some instances, conducting cleanups on sites that have sustained environmental damage as a result of hazardous materials. CERCLA authorizes the government to identify parties that are potentially responsible for the damage and to require them to clean up the site. Id. § 9606. It is often referred to as the Superfund because it also established a large trust fund to advance environmental cleanup goals, including financing governmental response activities at sites where no potentially responsible party can be identified to finance the cleanup. Id. § 9611(a). CERCLA authorizes the federal government to conduct cleanup activities, but it also permits the federal government to enter into cooperative agreements with state agencies that then conduct the cleanups using Superfund money. Id. § 9604.

CERCLA is connected to the National Priorities List ("NPL") and the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. § 300.1 et seq. CERCLA requires the EPA to maintain the NPL, which is intended primarily to guide the EPA in determining which sites warrant further investigation. A site's cleanup may not be financed by Superfund monies unless the site is on the NPL. Placement on the list does not mean, however, that any remedial or removal action must be taken by the government. The NCP is a regulation that was promulgated by the EPA in 1982 in order to implement CERCLA. The NCP sets guidelines and procedures for responding under CERCLA to releases and threatened releases of hazardous substances, pollutants or contaminants. See 42 U.S.C. § 9621(f).

The Superfund Amendments and Reauthorization Act ("SARA") was enacted in 1986. SARA was designed to speed up CERCLA's remedial processes at every phase and to make CERCLA more effective. Among other adjustments to CERCLA, SARA included restrictions that, except in limited circumstances, bar judicial review of the EPA's choice of removal or remedial action until after the action has been completed or enforced. Id. § 9613(h); 1 Allan J. Topol & Rebecca Snow, Superfund Law and Procedure § 2:54, at 119-22 (updated by Caroline Broun, 2007). Section 113(h) is the jurisdictional limitation that was added to CERCLA by SARA; it states:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title . . . .

42 U.S.C. § 9613(h). Section 113(h) then lists five additional limitations on this bar to jurisdiction, none of which are at issue in this case. See id. § 9613(h)(1)-(5).


The Illinois Environmental Protection Agency ("IEPA") was created by Illinois statute. 415 ILCS 5/4. Its mandate includes investigating violations of the Illinois Environ-mental Protection Act ("Illinois Act"), id. at 5/1 et seq., and undertaking actions in response to hazardous substances. Additionally, the IEPA is Illinois' implementing agency for federal environmental laws, including CERCLA. Id. at 5/4(l). In that capacity, the IEPA is "authorized to take all action necessary or appropriate to secure to the State the benefits of [federal environmental laws]." Id. Illinois also has the Illinois Hazardous Substances Pollution Contingency Plan ("ICP"), 35 Ill. Adm. Code Pt. 750.101 et seq. The ICP is a state-law corollary to the NCP that sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, pollutants or contaminants.


Inside the Village of DePue, Illinois, is an environmen-tally hazardous site. From 1903 to 1989, operations on the 1500 acre site generated waste material that severely contaminated the site and some areas around it. The EPA took note of the site in 1980 and, over the next ten years, conducted several preliminary environmental assessments and inspections on the site. The IEPA began investi-gating the site pursuant to its authority under state law in March 1992. As a result of the IEPA's expanded analysis of the site, the EPA added the site to the NPL in 1999.

In 1995, at the request of the IEPA, the Illinois Attorney General, alleging violations of Illinois law, filed suit against Exxon's corporate predecessors in Bureau County, Illinois. The IEPA's role in the lawsuit was conducted*fn3 "pursuant to its own authority under the [Illinois] Act, and regulations promulgated thereunder." R.1, Ex. 1 pt.1 at 28. As a result of that suit, the state court entered an interim consent order ("Consent Order") as a "partial settlement of all issues" between the people of Illinois and Exxon. Id. at 27.

Under this Consent Order, Exxon must perform a phased investigation of the site and implement certain interim remedies. It also must propose final remedies to the State of Illinois before completing final remedial action for the site. The Consent Order requires Exxon to perform its investigations and remedial actions in compliance with both the ICP and the NCP. The State of Illinois, in consultation with the EPA, has "sole discretion" to decide if the final remedies proposed by Exxon are appropriate. Id. pt.2 at 1. The activities completed under the Consent Order are subject to approval by the State of Illinois. Id. at 4. The Consent Order binds, among other parties, Exxon, the IEPA and the "People of the State of Illinois." Id. at 3.

Under the Consent Order, the "final remedial action" phase has not yet been reached; Exxon still is investigating and performing interim remedial actions. No party disputes that Exxon is fulfilling the requirements of the Consent Order. Exxon has spent more than $30 million to date on investigations and interim remedial actions at the site.*fn4 In addition, Exxon has begun investigating contaminants in the soils within the Village, DePue Lake and the surrounding wetland and flood plain areas. As part of this investigation, Exxon has gathered information for ecological and human health risk assessments. After completing all phases of the remedial investigation, Exxon then will conduct feasibility or design studies. Eventually, it will make permanent remedial changes to the site.

In August 2006, while the investigation and remediation process required by the Consent Order was ongoing, the Village posted Notices to Abate Nuisance at the site. These notices sought to impose immediate, site-wide cleanup obligations on Exxon. The notices ordered Exxon to have the materials removed and the site cleaned of all contaminants to the satisfaction of the Village within ten days.*fn5 If Exxon failed to comply within ten days, the notices required ...

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