DePue loses appeal
CHICAGO — The United States Court of Appeals for the Seventh Circuit in Chicago has ruled against the village of DePue’s attempts to fine Exxon/Mobil Corp. and Viacom/CBS.
In August 2006, DePue officials posted nuisance notices on the locked gates of the village’s former New Jersey Zinc Superfund site, owned by Exxon/Mobil and Viacom/CBS. According to the notices, the village said the property constituted a public nuisance and threatened the safety, health and welfare of the residents of the village of DePue, and was fining each of them $750 per day.
In October 2006, the village filed suit against the companies, but in May 2007, Peoria federal Judge Joe B. McDade dismissed the lawsuit, saying the village was interfering with ongoing cleanup efforts.
In September 2007, DePue Village Attorney Melissa Sims and Peoria attorney Richard Steagall filed the appeal. Arguments were heard in February, and the court released its opinion last week.
No one denies that the site is an environmentally hazardous site. According to the appellate ruling, the EPA began assessing the site in 1980, and in 1995, at the request of the IEPA, the Illinois Attorney General filed suit against Exxon’s corporate predecessors, and the state court entered an interim consent order.
Under this consent order, Exxon must perform a investigation of the site and propose final remedies to the state of Illinois before completing final remedial action for the site.
However, the “final remedial action” phase has not yet been reached. According to the ruling, no party disputes that Exxon, which has spent more than $30 million to date, is fulfilling the requirements of the consent order.
The problem is the speed with which the clean-up is being done.
“My personal feeling is they’re not moving as quickly as they should, and the village is the one that’s suffering for it,” DePue Village President Don Bosnich said when the village decided to impose the fines in 2006.
So the question, according to the appellate court, was whether DePue was exceeding its authority when it issued the fines, and the appellate court said it was.
According to the ruling, “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.”
The ruling went on to state that if DePue could force the clean-up to speed up, it could prevent compliance with the measured cleanup process adopted by Illinois through the consent order.
According to the ruling, “the village’s application 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 state. Accordingly, we hold that the village’s claims are pre-empted.”
Village attorney Melissa Sims was not available for comment but did said last week she was “pursuing other remedies.”
