In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2311
V ILLAGE OF D EP UE, ILLINOIS, a
Municipal Corporation,
Plaintiff-Appellant,
v.
E XXON M OBIL C ORPORATION, also known
as M OBIL C HEMICAL C ORPORATION, and
V IACOM INTERNATIONAL, INCORPORATED ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 C 1266—Joe Billy McDade, Judge.
____________
A RGUED F EBRUARY 14, 2008—D ECIDED A UGUST 11, 2008
____________
Before R IPPLE, SYKES and T INDER, Circuit Judges.
R IPPLE, Circuit Judge. 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
2 No. 07-2311
the case to the district court under 28 U.S.C. § 1441. The
district court determined that it had diversity jurisdic-
tion 1 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 timely appealed the mat-
ter to this court.2 For the reasons stated in this opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A.
The Comprehensive Environmental Response, Com-
pensation, 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
1
We shall discuss the district court’s jurisdiction to hear this
case in the course of this opinion.
2
We have subject matter jurisdiction under 28 U.S.C. § 1291.
No. 07-2311 3
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 cooper-
ative 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 deter-
mining 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 proce-
dures 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
4 No. 07-2311
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 appropri-
ate 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).
B.
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 sub-
stances. 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 Contin-
gency Plan (“ICP”), 35 Ill. Adm. Code Pt. 750.101 et seq.
The ICP is a state-law corollary to the NCP that sets
No. 07-2311 5
guidelines and procedures for responding to releases and
threatened releases of hazardous substances, pollutants
or contaminants.
C.
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 assess-
ments 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.3 The IEPA’s role in the lawsuit was conducted
“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.
3
The suit was filed under the Illinois Environmental Protection
Act, 415 ILCS 5/22.2 & 42(d), (e).
6 No. 07-2311
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 com-
pliance 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 dis-
putes 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. 4 In addition, Exxon has begun investigating
4
The interim remedial actions include: designing, building
and operating a water treatment plant to remove con-
taminants from surface and ground water that was formerly
discharging into nearby DePue Lake; remediating a contami-
nated landfill by eliminating or closing the former effluent
ponds; installing a vegetative cover over the landfill; building an
engineered wetland to treat any effluent from the landfill;
cleaning out a drainage channel that connects the site to DePue
(continued...)
No. 07-2311 7
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.5 If Exxon failed to comply within ten days, the
notices required Exxon to pay a nuisance fine of $750 per
day until the site cleanup was complete and the site
was removed from the NPL.
4
(...continued)
Lake to prevent contaminants from that area from being
washed into DePue Lake in the future; conducting an initial
health evaluation of any short-term threats to public health;
preventing onsite trespass; preventing clean surface water
from contacting any contaminants; completing cleanup of the
former vanadium catalyst disposal area; and re-vegetating
portions of the site.
5
The notices did not define the terms “materials” or “contami-
nants” and provided no factual basis for the alleged nuisance.
8 No. 07-2311
D.
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 Vil-
lage’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.
Exxon removed the case to the district court under
28 U.S.C. § 1441. It asserted jurisdiction based upon
diversity of citizenship. The district court determined that
all the requirements of diversity jurisdiction had been met.6
The Village disputed jurisdiction on two grounds. First, it
filed a motion for remand on the ground that Younger
abstention precluded federal adjudication of the case, and
second, it contended that the Consent Order had a
jurisdiction-selection clause that required the district
court to remand the case. The district court held that it
was not precluded from hearing the case by Younger or
by the Consent Order.
Exxon then filed a motion to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6). It con-
6
The Village is a citizen of Illinois. Exxon Mobile Corp. is a
New Jersey corporation with its principal place of business in
Texas. Viacom International, Inc., now called CBS Operations,
is a Delaware corporation with its principal place of business
in New York. CBS Broadcasting, Inc. is a New York corporation
with its principal place of business in New York.
No. 07-2311 9
tended that the causes of action stated in the complaint
were preempted by federal and state law. The district
court agreed; it 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-man-
dated 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 IEPA
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 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.
II
DISCUSSION
We review de novo a district court’s dismissal of a
complaint for failure to state a claim. Michalowicz v. Vill. of
10 No. 07-2311
Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). In our
review, we must accept the allegations in the plaintiff’s
complaint as true and draw all reasonable inferences in
favor of the plaintiff. Id.
A.
Jurisdiction
We review de novo the question of subject matter
jurisdiction. Alexander v. Mount Sinai Hosp. Med. Ctr., 484
F.3d 889, 891 (7th Cir. 2007). Because determining the
propriety of removing to the district court an action filed
in state court necessarily requires that we determine the
authority of the district court to supplant the state court’s
jurisdiction with its own, see 28 U.S.C. § 1441(a), we also
review de novo the denial of a motion to remand the
case to state court. Alexander, 484 F.3d at 891. Such a
decision amounts to a decision by the district court that
its assertion of jurisdiction over that of the state court
was legally permissible.
We also “review de novo a district court’s decision to
decline to abstain from exercising jurisdiction pursuant
to the Younger abstention doctrine.” FreeEats.com, Inc. v.
Indiana, 502 F.3d 590, 595 (7th Cir. 2007).
1. Forum Selection Clause
We begin by noting that the district court properly
concluded that it possessed diversity jurisdiction over the
case. The parties concede, and we agree, that there is
No. 07-2311 11
complete diversity of citizenship and that the amount
in controversy requirement is met in this case. See 28
U.S.C. § 1332.
The Village contends, however, that the district court
erred in refusing to remand the case; in its view, a
forum selection clause in the Consent Order reserved
jurisdiction in the Circuit Court of Bureau County, Illinois.
Even assuming that the Village is in a position to enforce
the terms of the Consent Order between Exxon and
Illinois—a proposition for which the Village has
failed to offer any persuasive support—the Village has
failed to demonstrate that the Consent Order contains a
reservation of jurisdiction. The Village points only to a
provision in the Consent Order stating that “the venue of
any action commenced in [Illinois] Circuit Court for the
purposes of interpretation, implementation and enforce-
ment of the terms and conditions of this Interim Consent
Order as provided herein shall be in Bureau County,
Illinois.” R.1, Ex. 1 pt.1 at 28. The Village contends, without
support, that this provision is a jurisdiction selection
clause. We cannot agree. On its face, the provision in
question does not purport to vest jurisdiction in any court.
Instead, it states which venue among the various Illinois
counties would be appropriate in the event that an action
was commenced in an Illinois Circuit Court “for the
purposes of interpretation, implementation and enforce-
ment of the terms and conditions” of the Consent Order. Id.
The Village offers no support for its contention that the
provision is a jurisdiction selection clause and the plain
text of the Consent Order reads to the contrary. The district
court properly found that the Village was not entitled,
12 No. 07-2311
on the basis of this provision in the Consent Order, to
have its case remanded to the state court.
2. Younger Abstention
The Village next contends that the case should have
been remanded to the state court because the district court
was required by Younger v. Harris, 401 U.S. 37 (1971), to
abstain from hearing the case. As a general rule, Younger
abstention “requires federal courts to abstain from taking
jurisdiction over federal constitutional claims that involve
or call into question ongoing state proceedings.”
FreeEats.com, 502 F.3d at 595. The rule in Younger “is
designed to permit state courts to try state cases free
from interference by the federal courts.” Id. Although
originally applied to prevent interference only with
criminal proceedings, today Younger applies to some civil
as well as criminal proceedings. See, e.g., Huffman v. Pursue,
Ltd., 420 U.S. 592, 595, 612 (1975) (applying Younger
abstention to prevent interference with a quasi-criminal
state nuisance suit). The rule in Younger protects the
principles of “equity, comity, and federalism,” which
“have little force in the absence of a pending state pro-
ceeding.” Id. at 602-03 (quotation omitted). It also is
concerned with preventing “duplicative legal proceed-
ings,” “disruption of the state criminal justice system” and
the negative implication that state courts are unable “to
enforce constitutional principles.” Id. at 604, 608.
The Village contends that removing an action from
state court creates a pending state proceeding with which
No. 07-2311 13
the removed action, then in federal court, conflicts. We
cannot accept this argument. It is well established that
Younger’s concepts of comity and “Our Federalism” are
inapplicable “when no state proceeding was pending nor
any assertion of important state interests made.”
Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (“Absent
any pending proceeding in state tribunals, therefore,
application by the lower courts of Younger abstention
was clearly erroneous.”). The mere fact that a case could
be heard in state court is insufficient to justify Younger
abstention. Cf. id. Removal under 28 U.S.C. § 1441 simply
does not leave behind a pending state proceeding that
would permit Younger abstention. See In re Burns & Wilcox,
Ltd., 54 F.3d 475, 477 (8th Cir. 1995), limited on other grounds
by Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996). Cf.
Kirkbride v. Cont’l Cas. Co., 933 F.2d 729, 734 (9th Cir. 1991)
(refusing to abstain on the basis of the Colorado River
abstention doctrine from hearing a diversity suit merely
because it had been removed from state court); Noonan S.,
Inc. v. County of Volusia, 841 F.2d 380, 382 (11th Cir. 1988)
(same).
The Village’s reliance on Huffman to support this argu-
ment is misplaced. Huffman does not stand for the premise
that Younger abstention requires a district court to decline
to hear a case merely because the case had been removed
from state court. In Huffman, instead of appealing a state
court’s adverse decision, the plaintiff instituted a separate
federal proceeding in which he attempted to enjoin the
state court from carrying out its enforcement of its nui-
sance judgment. Had the federal court enjoined the ongo-
ing state proceeding, that injunction would have been a
14 No. 07-2311
great interference and an affront to comity and federalism.
Huffman, 420 U.S. at 607. Here, by contrast, the Village has
failed to point to any ongoing state proceeding with which
the removed federal case conflicts.
Neither is the Consent Order entered by a state court in
an earlier proceeding the sort of pending state proceeding
with which the district court’s exercise of jurisdiction could
be said to implicate the constraints of the Younger doctrine.
In the present action, the district court was not asked to
conduct a proceeding that would interfere with the state
proceeding that resulted in the consent decree. Nor was it
asked to enjoin a proceeding pending in state court. The
district court therefore properly refused to apply Younger
abstention principles.
3. Divestiture of Jurisdiction by CERCLA Section 113(h)
We next address the effect of CERCLA section 113(h).
The district court concluded that “the Village’s claim [was]
preempted by CERCLA Section 113(h) and as a result . . .
[that the court] lack[ed] jurisdiction over the Village’s
claim.” Vill. of Depue, Ill. v. Exxon Mobile Corp., 2007 WL
1438581, at *9 (C.D. Ill. May 15, 2007). We review de novo
questions of statutory interpretation. Olson v. Risk Mgmt.
Alternatives, Inc., 366 F.3d 509, 511 (7th Cir. 2004).
Section 113(h), titled “Timing of review,” 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
No. 07-2311 15
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) (emphasis added). The provision then
lists five additional exceptions to the divestiture of jurisdic-
tion, none of which are at issue in this case. See id.
Here, the sole question is whether the district court,
which had jurisdiction “under section 1332 of Title 28,”
nevertheless was divested of jurisdiction by section 113(h).
Id. Section 113(h) is a “blunt withdrawal of federal jurisdic-
tion,” Pollack v. U.S. Dep’t of Defense, 507 F.3d 522, 525 (7th
Cir. 2007) (quotation omitted), but it is expressly limited by
its own terms: It does not apply to federal courts sitting in
diversity. 42 U.S.C. § 9613(h). Thus, section 113(h) permits
a federal court to hear a challenge to a federal cleanup
initiated under CERCLA if the challenge arises as, for
instance, a state-law nuisance action. Pollack, 507 F.3d at
525. Section 113(h) is limited additionally in that, under the
express terms of the statute, it applies only to bar jurisdic-
tion over challenges to certain cleanups authorized under
CERCLA, specifically to challenges to those “remedial
action[s] 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). In effect, section 113(h) applies only
when the EPA has selected a remedial action under section
9604 or issued an order under section 9606(a), and only
then if the challenge arises under federal law. In that
limited circumstance, section 113(h) removes jurisdiction
over challenges to the EPA’s chosen remedial effort until
16 No. 07-2311
after the cleanup has been completed. Pollack, 507 F.3d at
525.
This interpretation is consistent with the statutory
purpose of section 113(h), enacted as part of SARA to
ensure that, once the EPA chooses a removal or remedial
action for a particular site, litigation will not delay the
completion or enforcement of a cleanup action.7 In effect,
section 113(h) prevents federal-law challenges to the EPA’s
selected remedy from going forward until after the remedy
has been completed. Id. at 525.
The legislative history of SARA also lends support to this
holding. The Conference Report for SARA states that the
“[n]ew section 113(h) is not intended to affect in any way
the rights of persons to bring nuisance actions under State
law.” H.R. Rep. No. 99-962, at 224 (1986) (Conf. Rep.).
Similarly, the Congressional Record of Senate Proceedings
indicates that unadopted bill language would have extin-
guished all federal review, but the language that was
adopted permitted expressly diversity jurisdiction. 132
Cong. Rec. S17212-03 (daily ed. Oct. 17, 1986) (statement of
Sen. Mitchell), 132 Cong. Rec. S17136-01 (daily ed. Oct. 17,
1986) (statement of Sen. Stafford). The two Senators who
discussed the provision with regard to diversity jurisdic-
tion both stated specifically that section 113(h) did not
preempt nuisance cases that arose under state law and that
7
See 1 Allan J. Topol & Rebecca Snow, Superfund Law and
Procedure § 2:54, at 119-22 (updated by Caroline Broun, 2007);
see also Pollack, 507 F.3d at 524-25.
No. 07-2311 17
federal courts were permitted to hear state-law nuisance
actions if those cases arose in diversity.8
8
Senator Mitchell said: “The conference language would permit
a suit to lie in either Federal court where jurisdiction could be
based on diversity of citizenship—or in State court, where
based on nuisance law. This construction is confirmed by the
statement of the managers that ‘New section 113(h) is not
intended to affect in any way the rights of persons to bring
nuisance actions under State law with respect to releases or
threatened releases of hazardous substances, pollutants or
contaminants.’” 132 Cong. Rec. S17212-03 (daily ed. Oct. 17,
1986) (statement of Sen. Mitchell). Senator Mitchell also
stated that
[w]hether or not a challenge to a cleanup will lie under
nuisance law is determined by that body of law, not section
113. New subsection (h) governs only the suits filed under
the circumstances enumerated in paragraphs (1) through (5)
for the review of “challenges to removal or remedial action
selected under section 104, or to review any order issued
under 106(a)”. There is no support whatsoever . . . for the
proposition that “any controversy over a response action
selected by the President, whether it arises under Federal
law or State law, may be heard only in Federal court and
only under circumstances provided” in section 113. That
statement is contrary to the express legislative language
and the statement of managers.
Id.
Senator Stafford also commented on section 113(h) and the
diversity jurisdiction provision. 132 Cong. Rec. S17136-01 (daily
ed. Oct. 17, 1986) (statement of Sen. Stafford). He elaborated on
(continued...)
18 No. 07-2311
8
(...continued)
the Conference Report language quoted above, stating that
“[n]ew section 113(h) is not intended to affect in any way the
rights of persons to bring nuisance actions under State law with
respect to releases or threatened releases of hazardous sub-
stances, pollutants, or contaminants.” Id. He also commented
that the language in section 113(h) deliberately had been
changed to permit federal review of
challenges based on State laws, such as nuisance. . . .
Clearly, . . . a complaint based on State nuisance law would
fall within the phrase “no court shall have jurisdiction to
review any challenge”. But equally clearly, such a claim
would not be barred by the conference language, which
would permit a suit to lie in either Federal court (where
jurisdiction could be based on diversity of citizenship) or in
State court. This construction is confirmed by the state-
ment of managers explanation that—
New section 113(h) is not intended to affect in any way
the rights of persons to bring nuisance actions under
State law with respect to releases or threatened releases
of hazardous substances, pollutants or contaminants.
Id.
Senator Stafford also commented on the limits of section
113(h). He said:
Whether or not a challenge to a cleanup will lie under
[n]uisance law is determined by that body of law, not
section 113, because section 113 of CERCLA governs only
claims arising under the act. . . . Similarly, new subsection
(h) governs only the suits filed under the circumstances
(continued...)
No. 07-2311 19
The plain language of section 113(h) states that the bar to
jurisdiction does not apply to a federal court sitting in
diversity. This holding is supported by the plain language,
purpose and statutory history of the statute. Here, where
the district court sat in diversity, it was not divested of
jurisdiction by section 113(h).
B.
Preemption by CERCLA
Federal preemption is an affirmative defense upon which
the defendants bear the burden of proof, and we review de
novo a district court’s determination that federal law
preempts a state law or municipal ordinance. See Fifth Third
Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005).
Although the district court seems to have concluded that
it was divested of jurisdiction by section 113(h), its opinion
might be read as holding that, more generally, CERCLA
preempted the Village’s claims. Even if we were to assume
that Exxon so contends, it has not met its burden of
proving that CERCLA preempted the Village’s claims.
8
(...continued)
enumerated in paragraphs (1) through (5) for the review of
“challenges to removal or remedial action selected under
section 104, or to review any order issued under 106(a).”
Id. He also stated that “[n]othing in this act shall affect or modify
in any way the obligations or liabilities of any person under
other Federal or State law, including common law, with respect
to releases of hazardous substances or other pollutants or
contaminants.” Id.
20 No. 07-2311
CERCLA’s preemptive scope is not total. The statutory
text states expressly, in several provisions, that at least
some claims under state law are permitted to proceed.
Section 114(a) states that “[n]othing in this chapter shall be
construed or interpreted as preempting any State from
imposing any additional liability or requirements with
respect to the release of hazardous substances within such
States.” 42 U.S.C. § 9614(a). Section 302(d) states
that “[n]othing in this chapter shall affect or modify in any
way the obligations or liabilities of any person under other
Federal or State law, including common law, with respect
to release of hazardous substances or other pollutants or
contaminants . . . .” Id. § 9652(d). CERCLA contemplates
“action[s] brought under State law for personal injury, or
property damages, which are caused or contributed to by
exposure to any hazardous substance, or pollutant or
contaminant, released into the environment from
a facility.” Id. § 9658(a)(1). Section 310(h) states that “[t]his
chapter does not affect or otherwise impair the rights of
any person under Federal, State, or common law, except
with respect to the timing of review as provided in section
113(h) of this title or as otherwise provided in section 9658
of this title (relating to actions under State law).” Id.
§ 9659(h). Finally, section 113(h) itself applies to bar
jurisdiction only over federal-law challenges “to removal
or remedial action selected under section 9604” or “any
order issued under section 9606(a).” Id. § 9613(h).
The precise contours of CERCLA preemption over state
environmental cleanup actions or municipal ordinances
that affect federal removal or remedial actions are not easy
No. 07-2311 21
to discern. 9 We need not address this area in any compre-
hensive way, however, because Exxon has not met its
burden of showing that there is any federal law or effort
with which the Village’s nuisance ordinance could conflict.
Exxon’s sole argument is that section 113(h) bars the
Village’s claims because those claims challenge a CERCLA
remedy—the Consent Order previously entered by the
state court. The Consent Order was instituted by the Illinois
EPA, however, not by the federal government, and the
IEPA’s role in the lawsuit and Consent Order was con-
ducted “pursuant to its own authority under the [Illinois
Act].” R.1, Ex. 1 pt.1 at 28. Exxon has failed to point to “any
challenge[] to removal or remedial action selected under
section 9604 of this title,” or to “any order issued under
section 9606(a).” See 42 U.S.C. § 9613(h). In fact, Exxon has
failed to show that any CERCLA-authorized remediation
9
See, e.g., Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d
928, 943 (9th Cir. 2002) (holding that a city ordinance is pre-
empted by CERCLA if it “interfere[s] with the accomplishment
and execution of CERCLA’s full purpose and objectives” (second
alteration omitted)); United States v. City & County of Denver, 100
F.3d 1509 (10th Cir. 1996) (holding that CERCLA preempted a
local zoning ordinance that was in actual conflict with a reme-
dial order of the EPA); 1 Allan J. Topol & Rebecca Snow,
Superfund Law and Procedure § 2:20, at 59 (updated by Caroline
Broun, 2007) (noting that some courts have held that, even
when the federal government has negotiated a remedy with a
potentially responsible party and it is approved by the court in
the form of a consent decree, the consent decree has no preemp-
tive effect on the enforcement of a tougher state environ-
mental law).
22 No. 07-2311
effort or, indeed, any federal involvement whatsoever is
implicated in this case with which the application of the
Village’s nuisance ordinance could conflict. Exxon there-
fore has failed to carry its burden of proving federal
preemption of the Village’s claims. See Fifth Third Bank, 415
F.3d at 745.
C.
Preemption by State Law
In Illinois, municipalities that are not home-rule units
have limited powers. Hawthorne v. Vill. of Olympia Fields,
790 N.E.2d 832, 840 (Ill. 2003). The Village, a non-home-rule
unit, may exercise only those powers enumerated in the
Illinois Constitution or conferred upon it, expressly or
impliedly, by state statute. Id. Because the Village is a non-
home-rule unit, any of its ordinances that “conflict with the
spirit and purpose of a state statute are preempted by
statute.” Id. at 842. “Where there is a conflict between a
statute and an ordinance, the ordinance must give way.”
Id. (alteration omitted) (quotation omitted).
The parties do not dispute that the Village had the power
to adopt the nuisance ordinance that it seeks to apply to
Exxon in this case. See 65 ILCS 5/11-60-2 (“The corporate
authorities of each municipality may define, prevent, and
abate nuisances.”); Vill. of Sugar Grove v. Rich, 808 N.E.2d
525, 531 (Ill. App. Ct. 2004) (“Historically, nuisance ordi-
nances have been held to be invalid only when the munici-
pality’s determination of what constitutes a nuisance is
clearly erroneous.”). The dispute here is whether
the Village’s nuisance ordinance, as applied, exceeds its
No. 07-2311 23
authority and is impermissible in light of the spirit of the
laws and policies of Illinois. See id.; Hawthorne, 790 N.E.2d
at 841.
The Supreme Court of Illinois has long held that, as a
result of the Illinois Act’s express purpose of
“establish[ing] a unified, state-wide program to protect the
environment, the Act was intended to preempt non-home-
rule regulations.” Vill. of Carpentersville v. Pollution Control
Bd., 553 N.E.2d 362, 364 (Ill. 1990) (alteration in original)
(internal quotation marks omitted) (internal citation
omitted). Because the Village is a non-home-rule unit, its
ordinances may not “conflict with the spirit and purpose
of a state statute.” Hawthorne, 790 N.E.2d at 842. The
Illinois Act was enacted in part because of the Illinois
General Assembly’s findings that, “because environmental
damage does not respect political boundaries, it is neces-
sary to establish a unified state-wide program for environ-
mental protection,” and that “environmental problems
are closely interrelated and must be dealt with as a unified
whole in order to safeguard the environment.” 415 ILCS
5/2(a)(ii), (iii). The purpose of the Illinois Act is “to estab-
lish a unified, state-wide program supplemented by
private remedies, to restore, protect and enhance the
quality of the environment, and to assure that
adverse effects upon the environment are fully considered
and borne by those who cause them.” Id. at 5/2(b). The
Illinois Act authorizes the Illinois Attorney General to
“institute a civil action for an injunction, prohibitory or
mandatory, to restrain violations of this Act, . . . or to
require such other actions as may be necessary to address
violations of this Act . . . .” Id. at 5/42(e).
24 No. 07-2311
Here, the Illinois Attorney General instituted a civil
action against Exxon in order to address violations of the
Illinois Act. See id. The result of that action was the Consent
Order, which details a phased and considered plan for
cleaning up the environmental hazard at the site that is
located in and near the Village. The Village’s application of
its nuisance ordinance seeks to address, in a heavy-handed
manner, a difficult environmental problem that certainly is
not only of local concern. See City of Des Plaines v. Chicago
& N.W.R.R. Co., 357 N.E.2d 433, 436 (Ill. 1976). 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. Compare Hawthorne, 790 N.E.2d at
843. 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. See
id.
The Village’s reliance on Carpentersville is without merit.
Carpentersville held that a village could impose zoning
requirements that directly conflict with Illinois’ uniform
program of environmental regulation if the Illinois Act
contained a specific provision permitting the local regula-
tion of the issue in question. 553 N.E.2d at 367. There, a
village’s zoning ordinance limited smokestacks to 30 feet
in height, and the IEPA had issued a permit to a company
conditioned on the company raising its discharge smoke-
stack to 100 feet. Id. at 363. Although the facility could not
No. 07-2311 25
comply with the requirements in its permit and with the
local zoning ordinance, the Illinois Act contains a provision
that conditioned the permit on compliance with local
zoning regulations. Id. (“[T]he granting of a permit under
this Act shall not relieve the applicant from meeting and
securing all necessary zoning approvals from the unit of
government having zoning jurisdiction over the proposed
facility.” (quotation omitted)).
In Carpentersville, the local zoning regulation did not
conflict with the state-issued permit because the statute
expressly conditioned the permit upon the facility’s
compliance with that very zoning regulation. Id. at 367. In
the present case, however, neither the Consent Order,
entered under the Illinois Act, nor the Illinois Act itself
contains language permitting a direct conflict between
the IEPA’s Consent Order with Exxon and the Village’s
application of its nuisance ordinance. Here, Exxon is
required to perform its work in compliance with the Illinois
Act, as directed by the Consent Order; the Village simply
is seeking to force it to act in a manner inconsistent with
those state requirements.
The Illinois legislature enacted the Illinois Act in order
to safeguard the environment and to restore contaminated
areas through a phased and carefully considered process.
Ignoring this process by conducting and concluding a
cleanup to the satisfaction of the Village is not a plan in
service to the goals of the Illinois Act. The Village’s appli-
cation of its nuisance ordinance in this case is overreaching
because it attempts to regulate an environmental hazard
that is not local in nature and that already is subject to a
cleanup under the authorization and direction of the
26 No. 07-2311
state. Accordingly, we hold that the Village’s claims are
preempted by the Illinois Act.
Conclusion
For the forgoing reasons, we affirm the district court’s
Rule 12(b)(6) dismissal on the ground that the Village’s
claims are preempted by Illinois law.
A FFIRMED
8-11-08