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Illinois v. Outboard Marine Corp.

Citation: 12 ELR 20797
No. Nos. 79-1341, -1725, 680 F.2d 473/18 ERC 1091/(7th Cir., 04/19/1982) On remand

The Seventh Circuit holds that Illinois' federal common law of nuisance claims for pre-1972 pollution of navigable waters are preempted by the 1972 Federal Water Pollution Control Act Amendments (FWPCA). The court's prior decision, 10 ELR 20323, was vacated by the Supreme Court, 11 ELR 10131, and remanded for further consideration in light of City of Milwaukee v. Illinois (Milwaukee II), 11 ELR 20406. The court rejects Illinois' contention that, since the 1972 amendments do not provide any recourse against a polluter for pre-1972 pollution, the amendments do not preempt such federal common law claims. It explains that the Supreme Court's holding in Milwaukee II rested upon its determination that the FWPCA was intended as a comprehensive solution to the general problem of water pollution. Therefore, it entirely preempted federal common law, even though particular problems are not addressed in the Act. In addition, the court notes that Congress, in enacting the amendments, considered the problem of pre-1972 discharges, particularly in § 115, which provides for federal cheanup of certain deposits of pre-1972 pollution, and provided some solution to that problem. Nothing in the legislative history or other provisions of the FWPCA convincingly demonstrates a congressional intent to preserve that federal common law of nuisance for such discharges.

However, the court reaffirms its ruling that, under § 505(b)(1)(B) of the FWPCA, Illinois has a right to intervene in the federal government's action against defendant. Although the Supreme Court remanded the entire case, the court finds nothing in Milwaukee II indicating that its prior ruling was wrong. Instead, the Supreme Court's focus upon the comprehensiveness of the statutory scheme suggests that courts should not unnecessarily narrow the FWPCA's remedial provisions.

A dissent would rule that Congress, in enacting the FWPCA, did not intend to preempt federal common law remedies for pre-1972 pollution since it provided only a limited legislative scheme for dealing with the pre-1972 pollution problem.

Counsel for Appellant
Susan Shumway
Office of the Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Counselfor Appellee
Richard J. Kissel, Jeffrey C. Fort
Martin, Craig, Chester & Sonnenschein
115 S. La Salle St., Chicago IL 60603
(312) 368-9700

Counsel for United States
Robert L. Klarquist, Judith W. Wegner, James W. Moorman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Before SWYGERT and WISDOM,* Senior Circuit Judges, and BAUER, Circuit Judge.