dissenting in part.
I respectfully dissent from the majority’s holding that, applying the analysis of Milwaukee II, the 1972 amendments to the Federal Water Pollution Control Act preempt federal common-law remedies for pre-1972 pollution. •
In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (Milwaukee I), the Supreme Court recognized the existence of the federal common law of nuisance as a remedy for interstate water pollution. On August 10, 1978, Illinois filed this action in the district court alleging that Outboard Marine Corporation had been discharging PCBs into Lake Michigan since 1959 in violation of the FWPCA and the common law of nuisance. The complaint sought an injunction against future discharging and a mandatory injunction requiring OMC to remove contaminated sediments.
When the case was first before this court, we held that Illinois did have a cause of action under the federal common law of nuisance. On remand, the majority has concluded that, in light of the Supreme Court’s holding in Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (Milwaukee II), the FWPCA has preempted common-law remedies even for discharges that occurred prior to the enactment of the 1972 amendments. My own analysis of Milwaukee II and the policies embodied in the FWPCA leads me to the opposite conclusion.
I
I note at the outset that the Supreme Court in Milwaukee II did not consider the issue presented by the instant case: whether the 1972 amendments to the FWPCA pre-empted federal common-law remedies for discharges that occurred prior to 1972. The relief sought by Illinois in Milwaukee II was prospective only, see Milwaukee II, supra, 451 U.S. at 310, 101 S.Ct. at 1788; Illinois v. Milwaukee, 599 F.2d 151, 154 (7th Cir. 1979). The complaint in the case at bar alleges that the defendant has been discharging PCBs since at least 1959, and asks that OMC be ordered to remove the contaminated sediments.1
Although Milwaukee II did not deal with the issue of pre-1972 pollution, it does set out the analysis we must apply in determining whether the 1972 amendments to the FWPCA pre-empt the common law of nuisance as to conduct that allegedly occurred prior to 1972. In considering whether Congress had intended the 1972 amendments to pre-empt common-law remedies for water pollution occurring after 1972, the Supreme Court stated that “the question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law.” Milwaukee II, supra, 451 U.S. at 315 n.8, 101 S.Ct. at 1791 n.8. The Court found that, in passing the 1972 amendments, Congress had “occupied the field through the establishment of a comprehen*482sive regulatory program supervised by an expert administrative agency.” Id. at 317, 101 S.Ct. at 1792. Justice Rehnquist, writing for the majority, emphasized the comprehensive nature of the amendments, id. at 317-19, 101 S.Ct. at 1792-93, and concluded that this comprehensiveness “strongly suggests that there is no room for courts to attempt to improve on that program with federal common law.” Id. at 315, 101 S.Ct. at 1791.
. The statutory scheme of the 1972 amendments is plainly comprehensive as to post-1972 pollution, but cannot be so characterized as to pre-1972 activity. Although, as the majority notes, the amendments do contain some provisions dealing with in-place pollution,2 see p. 476 supra, these provisions do not represent a “comprehensive regulatory program” for solving the problems of pollution that occurred prior to 1972.
The majority’s response to this argument is that the critical test for pre-emption under Milwaukee II is whether Congress has “addressed the problem” — not whether the remedy that Congress provided is adequate. The majority finds that since Congress enacted “some solution” to the problem of pre-1972 pollution, then it has “addressed the question” and thereby pre-empted the common law.3 See p. 478 & n.8 supra. This response, however, misses the point. Congress in enacting the 1972 amendments to the FWPCA did not expressly pre-empt federal common-law remedies for nuisance; the issue before us is whether Congress intended to pre-empt the common law. The Supreme Court in Milwaukee II inferred that Congress intended the . pre-emption from the fact that the statutory scheme was comprehensive. That inference does not work as to problems not covered by a comprehensive regulatory program, in this case, pre-1972 pollution.
Given the few legislative provisions in the amendments dealing with pre-1972 pollution, it is reasonable to infer that Congress did not intend those provisions to be the exclusive remedy for in-place pollution. Section 115, which authorizes the EPA to identify and remove in-place pollutants from “critical port and harbor areas,” 33 U.S.C. § 1265, can be viewed as allowing the federal government to take some action to alleviate the problem of existing pollution in “critical” areas while preserving common-law remedies for individuals harmed by pre-1972 pollution.
Further, as the majority noted, see p. 477 supra, the Supreme Court in Milwaukee II found it important that the statute provided a forum in which Illinois could make its claims, while in the case at bar Illinois has no remedy if its claim cannot be considered under the common law of nuisance. The absence of an alternative forum in which an injured party could pursue its claim was “one of the major concerns underlying the recognition of federal common law in [Milwaukee I].” Milwaukee II, supra, 451 U.S. at 325, 101 S.Ct. at 1796.
II
The conclusion that the 1972 amendments to the FWPCA do not pre-empt the federal common law of nuisance as to pollution which occurred prior to the passage of those amendments is further supported by the policies embodied in the statute. The 1972 amendments authorize citizen suits against parties allegedly in violation of the pollution standards set out in the statute, section 505(a), 33 U.S.C. § 1365(a), and provide for enforcement by the EPA through the imposition of civil and criminal penalties, section 309, 33 U.S.C. § 1319. Thus, Congress clearly intended that the parties causing *483water pollution be held liable for damages. The express policy of Congress in enacting the 1972 amendments, “to restore and maintain the ... integrity of the Nation’s waters,” is severely undercut by the holding of the majority in this case. The decision of this court not only deprives Illinois of any forum in which to redress its grievances but also allows the alleged polluters to escape responsibility for their actions. This certainly could not have been envisioned by the members of Congress as a likely consequence of the enactment of the FWPCA.
Ill
Finally, the opinion in Milwaukee II must be read against the background of a line of precedent holding that common-law rights and remedies are not abrogated by a new statute in the absence of a clear indication that Congress intended the statute to preempt the common law. See Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298, 96 S.Ct. 1978, 1984, 48 L.Ed.2d 643 (1976) (“a common-law right, even absent a savings clause, is not to be abrogated ‘unless it be found that the preexisting right is so repugnant to the statute that the survival of such right' would in effect deprive the subsequent statute of its efficacy’ ”); Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 412, 89 S.Ct. 1144, 1148, 22 L.Ed.2d 371 (1969) (“the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect”); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553 (1907). Although the comprehensiveness of the statutory scheme of the 1972 amendments evinces Congress’s intent to pre-empt common-law remedies for pollution created after 1972, there is no similar indication of congressional intent as to pollution caused by activity occurring prior to 1972.
For the foregoing reasons, I would hold that plaintiff’s complaint in the instant case states a cause of action under the federal common law of nuisance as recognized in Milwaukee I.
. The complaint also sought an injunction against future discharges, but Illinois concedes that its nuisance claims as to post-1972 discharges should be dismissed under Milwaukee II.
. The majority relies primarily upon section 115, 33 U.S.C. § 1265, which is quoted in the majority opinion at p. 476, n.5 supra.
. The majority stated that “[w]e would render meaningless the Supreme Court’s emphasis on the comprehensiveness of the 1972 amendments if we took it as a mandate to dissect the FWPCA section by section, with a view to finding that parts of it are not ‘comprehensive.’ ” This conclusion is undercut by the opinion in Milwaukee II, in which the Supreme Court considered the statute’s treatment of the specific claims involved in that case. Milwaukee II, supra, 451 U.S. at 319, 101 S.Ct. at 1793.