Frey, Sarah E. v. EPA

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2748

Sarah E. Frey, Kevin Enright,

and Protect Our Woods, Inc.,

Plaintiffs-Appellants,

v.

Environmental Protection Agency,

Christie Whitman, Administrator,

and Viacom, Inc.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP-00-0660-C-D/F--S. Hugh Dillin, Judge.

Argued January 12, 2001--Decided November 6, 2001

Before Easterbrook, Diane P. Wood, and

Williams, Circuit Judges.

Diane P. Wood, Circuit Judge. This case

involves efforts to clean up three old

dumps in the Bloomington, Indiana, area,

that became contaminated with

polychlorinated biphenyls (PCBs), dioxin,

and other toxic chemicals over the years.

The federal Environmental Protection

Agency (EPA) and CBS Corporation

(formerly Westinghouse, and now Viacom--

but we will call it CBS as the parties

have done) reached agreement on a

remediation plan. The task of cleaning

and restoring toxic waste sites is a

complex one, and it is subject to

numerous federal and state laws. Some

Bloomington area residents, however,

including plaintiffs Sarah Frey, Kevin

Enright, and Protect Our Woods, Inc.

(POW), believe that the current plan does

not comply with federal or state law.

They sued under a number of those

statutes and Indiana common law, seeking

declaratory and injunctive relief, and

sought a temporary restraining order

(TRO) to prevent CBS from initiating

remediation work at one of the sites.

After briefing and a hearing on the TRO,

the district court issued an order

dismissing the plaintiffs’ complaint in

its entirety for lack of subject matter

jurisdiction. Plaintiffs appeal. For the

reasons stated below, we reverse in part

and affirm in part.

I

In 1983, the United States brought an

enforcement action against CBS’s

predecessor, Westinghouse, under the Com

prehensive Environmental Response

Compensation and Liability Act (CERCLA),

42 U.S.C. sec. 9604 et seq., to force CBS

to clean up two dump sites contaminated

with PCBs. The State of Indiana

intervened as a plaintiff. Two years

earlier, the City of Bloomington,

Indiana, had filed a separate suit in

federal court against Westinghouse

seeking cleanup of two other sites. The

suits were consolidated, and the parties

ultimately negotiated a consent decree

that called for excavation and

incineration of the toxic materials from

the four named sites plus two more that

were added later. Years later, in 1988,

Frey sued in an effort to attack the

earlier consent decree on a variety of

procedural grounds, but with the ultimate

goal (among others) of overturning the

EPA’s decision to use an incinerator to

dispose of the waste. The district court

dismissed the case for lack of subject

matter jurisdiction and this court

affirmed in Schalk v. Reilly, 900 F.2d

1091 (7th Cir. 1989).

In 1991, the Indiana State Legislature

passed a law aimed at blocking the

proposed incinerator. This obstacle

pushed the formal parties--the EPA, the

State of Indiana and its Department of

Environmental Management, the City of

Bloomington, the Bloomington Utilities

Service Board, Monroe County, Indiana,

and CBS--back to the negotiating table,

where they began discussions to modify

the consent decree. Under the direction

of a special master appointed by the

district court, and after a period of

public comment, the EPA issued Record of

Decision Amendments for the three dump

sites that are now before us: Bennett’s

Dump, Neal’s Landfill, and Lemon Lane

Landfill. (The appellants discussed a

fourth site, Neal’s Dump, in their

opening appellate brief, but that site

was nowhere mentioned in their complaint

and we thus agree with the appellees that

any disputes with respect to Neal’s Dump

are not properly before us.) Unlike the

earlier consent decree, the new cleanup

plans called for digging up only areas of

highly contaminated soil--so-called "hot

spots"--and then centralizing the

contaminated soil and capping it. The

plans also called for a variety of

measures designed to prevent seepage and

groundwater contamination at the sites.

Notably, the new plans did not require

the construction of an incinerator at any

site.

The Frey group filed suit on April 20,

2000, challenging the modified remedies

at all three sites under both federal and

state law. They asserted federal

jurisdiction under the citizen suit

provisions of CERCLA, the Resource

Conservation and Recovery Act, 42 U.S.C.

sec. 6972(a), the Toxic Substances

Control Act, 15 U.S.C. sec. 2619(a), the

Clean Water Act, 33 U.S.C. sec. 1365(a),

the Administrative Procedure Act, 5

U.S.C. sec.sec. 701-706, as well as under

28 U.S.C. sec. 1331, and, with respect to

their Indiana public nuisance and air

pollution claims, diversity (28 U.S.C.

sec. 1332) and supplemental jurisdiction

(sec. 1367).

Shortly after filing suit, the Frey

parties moved for a temporary restraining

order that would forbid initiation of

cleanup activities at Lemon Lane

Landfill. They asserted that the

safeguards in place were inadequate to

prevent large quantities of PCBs from

being "volatilized" during the excavation

process and deposited in surrounding

residential areas, at great risk to the

health of local citizens. The parties

filed memoranda in support of and in

opposition to the TRO, and the district

court heard arguments that touched on the

court’s "subject matter jurisdiction" to

hear the plaintiffs’ Lemon Lane claims,

among other subjects. No other site was

included in the motion, and no other site

was formally before the court. Two days

after the hearing, on May 18, 2000, the

district court issued its order denying

the TRO and, without further briefing or

argument, it dismissed plaintiffs’

complaint in its entirety.

It is clear from the court’s order that

it entered a final judgment in the case

for purposes of 28 U.S.C. sec. 1291. The

judgment of dismissal talks only about

Lemon Lane, however, even though it

discusses other procedural flaws without

specifying to which sites they apply. The

order concludes with the statement "[i]n

sum, the Court dismisses this cause for

lack of subject matter jurisdiction."

II

We review de novo the district court’s

dismissal for lack of subject matter

jurisdiction. Sapperstein v. Hager, 188

F.3d 852, 855 (7th Cir. 1999). The first

problem we encounter is a consequence of

the manner in which the court addressed

this issue. Not only did it raise the

point on its own (perfectly permissible,

in itself, for a true jurisdictional

problem, see Wellness Community-Nat’l v.

Wellness House, 70 F.3d 46, 51 (7th Cir.

1995)), but it also went forward with its

ruling and dismissal without giving any

notice to the plaintiffs that it was

considering doing so. We have warned that

"sua sponte dismissals without prior

notice or opportunity to be heard are

hazardous" and that "unless the defect is

clearly incurable a district court should

grant the plaintiff leave to amend, allow

the parties to argue the jurisdictional

issue, or provide the plaintiff with the

opportunity to discover the facts

necessary to establish jurisdiction."

Joyce v. Joyce, 975 F.2d 379, 386 (7th

Cir. 1992); see also Shockley v. Jones,

823 F.2d 1068 (7th Cir. 1987). Unless our

review of the plaintiffs’ complaint

reveals incurable defects, we therefore

must remand to the district court for

further proceedings.

A. Federal Claims

Although the Frey group relied on a

number of federal statutes for their

federal claims, they concede that

plaintiffs challenging activities covered

by CERCLA’s removal or remedial action

provisions, see 42 U.S.C. sec. 9601(25),

must satisfy the requirements of CERCLA

sec. 113(h), 42 U.S.C. sec. 9613(h),

before a court can entertain the case.

Schalk, 900 F.2d at 1097. This is not,

strictly speaking, a problem of "subject

matter jurisdiction" in the sense of the

federal court’s competence under Article

III. See United States v. Tarkowski, 248

F.3d 596 (7th Cir. 2001). It is instead a

question about the prerequisites that the

plaintiffs must satisfy to obtain relief.

A person who does not comply with sec.

113(h) will not prevail, but the court’s

power to adjudicate the case is clear,

and a dismissal should be predicated on

Federal Rule of Civil Procedure 12(b)(6),

not on 12(b)(1). "A standard rule in

considering jurisdictional challenges is

that when the court’s jurisdiction and

the claim for relief are predicated on

the same federal statute but the basis

for relief is subsequently found to be

inapplicable, the district court should

not dismiss the case under Rule 12(b)(1),

but rather proceed as if jurisdiction

exists and determine the merits of the

claim under Rule 12(b)(6)." Central

States, Southeast and Southwest Areas

Health and Welfare Fund v.

Neurobehavioral Associates, 53 F.3d 172,

174 (7th Cir. 1995). This distinction

matters not only because a dismissal for

want of jurisdiction does not preclude a

suit from being refiled in a proper

court, but also because the district

court finds jurisdictional facts in

connection with a proper motion under

Rule 12(b)(1), while disputed facts are

treated quite differently for purposes of

Rule 12(b)(6), for which the court

indulges every reasonable presumption in

favor of the complainant.

In our view, what we have here is the

same kind of problem as the one the

Supreme Court considered in Steel Co. v.

Citizens for a Better Environment, 523

U.S. 83 (1998), where the Court observed

that jurisdiction is "a word of many, too

many meanings," id. at 90 (citation

omitted), and concluded that the elements

of the cause of action in the statute

before it went to the merits of the

claim, not to jurisdiction. We note as

well that sec. 113(h) itself does not

speak of "subject matter" jurisdiction;

it merely uses the term "jurisdiction" in

one of the more limited senses to which

the Supreme Court was alluding in Steel

Co. See also Hughes Aircraft Co. v.

United States ex rel. Schumer, 520 U.S.

939, 950-51 (1997) (amendment to qui tam

statute essentially creates a new cause

of action; even though amendment was

phrased in "jurisdictional" terms, the

new claim is subject to normal

retroactivity rules). Following the guid

ance of Steel Co., which was handed down

well after Schalk, we will avoid the

inaccurate term "subject matter jurisdic

tion" in the remainder of this opinion

and speak instead of the plaintiffs’

ability to state a claim.

The relevant portion of CERCLA sec.

113(h) states:

No Federal court shall have jurisdiction

under Federal law . . . to review any

challenges to removal or remedial action

selected under section 9604 of this title

. . . in any action except one of the

following . . . .

. . .

(4) An action under section 9659 of this

title (relating to citizen suits)

alleging that the removal or remedial

action taken under section 9604 of this

title or secured under section 9606 of

this title was in violation of any

requirement of this chapter. Such an

action may not be brought with regard to

removal where remedial action is to be

undertaken at the site.

We have interpreted this language to

mean that a federal court may not hear a

citizen suit challenging a CERCLA removal

or remedial action until that action has

been "taken" or "secured." In other

words, the removal or remedial action

must be complete. Schalk, 900 F.2d at

1095.

In dismissing the plaintiffs’ suit, the

district court found that removal and

remediation activities at Lemon Lane

Landfill were planned but not yet

complete. At the time of the TRO hearing,

this was so. (According to the

plaintiffs, planned removal and

remediation activities have since been

completed at the site.) The court made no

factual findings, however, regarding what

kind of removal and remedial actions were

planned for and had been taken at Neal’s

Landfill and Bennett’s Dump. This

presents a problem. If the district court

had been correct that this was a problem

of subject matter jurisdiction, then it

would have erred because the record is

missing crucial findings of

"jurisdictional" fact. In the absence of

such findings, we would be unable to

assess whether plaintiffs are correct

when in their complaint they assert that,

for purposes of sec. 113(h), removal and

remediation are in fact "complete" at

those sites. See Tarpley v. Jeffers, 96

F.3d 921 (7th Cir. 1996) (remanding for

findings of jurisdictional fact on

whether factual requirements for claim

were met to establish jurisdiction).

Because the real problem is instead a

potential failure to state a claim, two

questions are pertinent: first, we must

construe the legal meaning of the word

"complete" in the statute, and second, we

must decide whether any set of facts

consistent with the complaint would allow

plaintiffs to recover. The plaintiffs’

right to proceed to the summary judgment

stage and possibly beyond depends on the

outcome of those inquiries.

Conceptualizing the issue as one of

subject matter jurisdiction, the Frey

group has urged us to remand the case to

the district court for proper

jurisdictional findings. Presumably, a

remand for further proceedings on any

other ground would suit them just as

well. The appellees would naturally

prefer a straightforward affirmance. A

broad reading of the appellees’ argument

is that it is clear from the record that

something related to the PCB removal and

remediation plan remains to be done at

each of the sites. This is enough, they

argue, to preclude a suit over any aspect

of the EPA’s chosen remediation plan,

regardless of how speculative that

"something" may be or how remote from the

challenged completed actions. In fact,

the appellees are presenting an argument

over the meaning of the term "complete"

in the statute. "Complete" could mean not

only that the planned cleanup procedures

have been carried out but also that all

subsequent monitoring has ceased. On the

other hand, it might mean, more modestly,

that the remediation measures are

finished, but that occasional visits of

environmental authorities in the future

could occur to ensure their

effectiveness, or even that particular

stages of the remedial plan have reached

completion.

If it means the first of these, the

appellees may well be correct; but if it

means the second or third, then the need

for further proceedings to clarify the

record is apparent. In our view, the

middle ground is most consistent with the

statute. It is important that the statute

itself speaks of "removal where remedial

action is to be undertaken at the site."

The remedial action to which it refers is

logically different from a later effort

to ensure that the action was effective.

The Frey group goes further and argues

for the third possibility, namely, that

the reference to "remedial action" means

only a stage of a broader remediation

plan. They have some support for this

interpretation in both the legislative

history of the statute and earlier

decisions. See H.R. Conf. Rep. No. 99-

962, at 224 (1986) ("[T]he phrase

’removal or remedial action taken’ [in

sec. 113(h)(4)] is not intended to

preclude judicial review until the total

response action is finished if the

response action proceeds in distinct and

separate stages."); Clinton County

Commissioners v. EPA, 116 F.3d 1018, 1023

(3d Cir. 1997) (citing "separate stages"

legislative history with approval);

Neighborhood Toxic Cleanup Emergency v.

Reilly, 716 F.Supp. 828, 834 (D.N.J.

1989) (applying separate stages

analysis); but see Hanford Downwinders

Coalition, Inc. v. Dowdle, 71 F.3d 1469

(9th Cir. 1995) (recognizing possibility

that sec. 113(h) might forever preclude

judicial review). But we are concerned

that this reading ignores the lack of a

qualifier on the phrase "remedial

action." The statute does not say "a

remedial action," or "a stage of a

remedial plan." Instead, it calls flatly

for restraint from suit when "remedial

action" (period) remains to be done. We

thus reject the "staged" approach

plaintiffs have suggested.

Because we also see a distinction

between the active steps designed to

clean up a site and later measures

designed to monitor success, we do not

believe that this reading would have the

undesirable consequence of converting

sec. 113(h) into a silent prohibition on

judicial review. See North Shore Gas Co.

v. EPA, 930 F.2d 1239, 1245 (7th Cir.

1991) (suggesting sec. 113(h) limitation

on the timing of judicial review ought

not extinguish judicial review). Nor does

our reading suggest that sec. 113(h)

precludes a lawsuit merely because there

is a hypothetical possibility that later

monitoring might lead the EPA or the

state authorities to devise a follow-up

remediation plan. The key word there is

"hypothetical." One can always imagine

some future action, especially in the

area of environmental regulation, but the

time limits in sec. 113(h) are geared to

concrete, existing, remedial measures;

not measures that might be devised at

some future date.

The defendants have also invited us to

comb the available record and take

judicial notice of documents which, they

argue, establish the scope of the planned

removal and remediation activities at the

sites, what has thus far been completed,

and the fact that more remains to be

done. We decline this invitation to make

factual determinations that are properly

the province of the district court.

The Frey group has raised certain

constitutional claims for the first time

on appeal. They contend that if sec.

113(h) indefinitely precludes judicial

review of arbitrary and capricious agency

actions that result in injuries to their

health and property then the statute

effectuates an unconstitutional

deprivation of liberty and property

without due process. We rejected similar

arguments in Schalk, 900 F.2d at 1098,

and we find no reason to address them

further here either. First, of course,

the lack of any such constitutional

arguments in the complaint is an obvious

problem. Perhaps plaintiffs can be

forgiven for that omission, however,

because of the unexpected way in which

the district court’s ruling arose and

their lack of any opportunity to amend

the complaint. In light of our

interpretation of the statute, however,

we think it unnecessary to speculate

about this constitutional issue. Perhaps

there is no claim to be made any more;

perhaps plaintiffs will try to renew some

modified claim before the district court.

Either way, there is nothing for this

court to discuss.

For these reasons, and because we do not

find any incurable defects in the

plaintiffs’ federal law claims with

respect to Bennett’s Dump and Neal’s

Landfill, we reverse the district court’s

dismissal of those claims and remand for

further proceedings. The district court

should also revisit its conclusions about

Lemon Lane Landfill, both in light of our

decision on the scope of sec. 113(h) and

in light of any actions that have been

taken at the site since the court’s

earlier judgment.

B. State Law Claims

The district court also dismissed

plaintiffs’ state law air pollution and

public nuisance claims for lack of

subject matter jurisdiction, and it added

that plaintiffs’ complaint in any event

failed to state a claim for a public

nuisance under Indiana law. The court

concluded that because it lacked federal

question jurisdiction over all the

federal claims of the plaintiffs, it

could not exercise supplemental jurisdic

tion. It further interpreted sec. 113(h)

to preclude the exercise of diversity

jurisdiction over state law claims prior

to the completion of removal and

remediation activities at each site. The

court went on to say that even if it had

subject matter jurisdiction over the

state law claims, plaintiffs’ claims

would be dismissed because they failed to

exhaust administrative remedies before

suing the EPA in tort and failed to

allege a unique injury as required by

Indiana’s public nuisance statute.

Even if we agree with the Frey group

that the district court was premature in

dismissing their federal law claims under

CERCLA sec. 113(h) (an action that caused

the dismissal of the state claims as

well), we can affirm the court’s

dismissal of the state law claims to the

extent that they suffer from other

incurable defects.

We consider first the state law claims

brought against the federal defendants,

the EPA and its Administrator (which we

treat as claims against the agency

alone). The Federal Tort Claims Act

(FTCA), 28 U.S.C. sec. 2671 et seq.,

requires the exhaustion of administrative

remedies prior to suing the federal

government in tort. 28 U.S.C. sec.

2675(a). A number of decisions treat a

failure to exhaust administrative

remedies as something that deprives the

district court of subject matter

jurisdiction over the claim. Garcia v.

Meza, 235 F.3d 287, 290 (7th Cir. 2000);

Brady v. United States, 211 F.3d 499, 502

(9th Cir. 2000); Burchfield v. United

States, 168 F.3d 1252 (11th Cir. 1999).

We are not so sure that this is

technically correct, although for this

part of the case the distinction has no

practical effects. At bottom, the

rationale for insisting on strict

compliance with the FTCA stems from the

fact that the statute creates a limited

waiver from the sovereign immunity from

suit that the United States would

otherwise enjoy. In other contexts, the

Supreme Court has held that a failure to

comply with statutory limits on a waiver

of sovereign immunity is not

jurisdictional in nature. See Irwin v.

Dept. of Veterans Affairs, 498 U.S. 89,

93-95 (1990). Following that lead, this

court has held that sovereign immunity is

an aspect of the statutory right to

relief, rather than of the court’s

jurisdiction. See United States v. Cook

County, 167 F.3d 381, 388-89 (7th Cir.

1999). Given this line of cases, it might

be appropriate to revisit the

jurisdictional language in decisions such

as Garcia at some point in the future.

For the reasons we now explain, however,

we have no need to do so here.

In the present appeal, the plaintiffs

have not disputed the district court’s

finding that they did not comply with the

requirements of 28 U.S.C. sec. 2675 prior

to filing their state law claims against

the EPA. Either way we look at it--

jurisdictionally or in terms of the

statement of a claim--the failure to

exhaust under 28 U.S.C. sec. 2675

constitutes an inherent defect in the

plaintiffs’ state law claims against the

EPA and those claims were thus properly

dismissed. It is also worth observing

that the FTCA’s exception for the

exercise of discretionary functions or

duties, 28 U.S.C. sec. 2680(a), would

pose a formidable obstacle to any such

claim. If the plaintiffs were thinking

instead of a takings claim, the first

problem is that such a claim arises under

the federal constitution, not state law;

the second is that a federal takings

claim where the amount exceeds $10,000

(as this one might) belongs in the Court

of Federal Claims, not the district

court. See 28 U.S.C. sec.sec. 1346(a)(2),

1491. For all these reasons, therefore,

the end result ofdismissal of the

plaintiffs’ state law claims against the

federal defendants was correct.

There is another independent reason why

plaintiffs cannot assert a state-law

based claim against the EPA. They did not

satisfy the prerequisites for such a

claim as a matter of state law. Under

Indiana law, enforcement of air pollution

control statutes is generally the

province of the Department of

Environmental Management and the Air

Pollution Control Board. See Ind. Code

Ann. sec. 13-17-1-1. Indiana permits

individuals and organizations to file

suit on behalf of the state to enforce

its environmental laws, provided certain

statutory prerequisites are satisfied.

Ind. Code Ann. sec. 13-30-1-1 et seq.

(formerly codified as sec. 13-6-1-1 et

seq.). Where a party bringing suit under

sec. 13-30-1-1 fails to satisfy the

statutory prerequisites, Indiana courts

hold that there is no subject matter

jurisdiction over the claim. Sekerez v.

Youngstown Sheet & Tube Co., 337 N.E.2d

521, 526 (Ind. App. 1975). The only

requirement relevant to this case is that

a suit under sec. 13-30-1-1 may not be

brought if the state is "diligently

pursuing" a civil action against the

alleged polluter. Ind. Code Ann. sec. 13-

30-1-3(a)(2). Drawing on federal court

interpretations of the Resource

Conservation and Recovery Act, the

Indiana courts have interpreted "diligent

pursuit" as "participation" by the state

in the cleanup activity at issue. State

ex rel. Prosser v. Indiana Waste Sys.,

Inc., 603 N.E.2d 181 (Ind. App. 1992).

The State of Indiana is a plaintiff

party to the consent decree that the

plaintiffs challenge in this case. The

state is thus diligently pursuing the

cleanup of the three sites, which means

that the plaintiffs are precluded from

bringing an air pollution enforcement

action under sec. 13-30-1-1.

Independently of whether the district

court could, as a matter of federal law,

exercise jurisdiction over plaintiffs’

state law air pollution claim, the fact

that the plaintiffs cannot satisfy the

state statutory requirements leads to the

conclusion that the claim must be

dismissed. See Ragsdale v. Turnock, 941

F.2d 501, 509 (7th Cir. 1991) (both

Article III and statutory standing

requirements must be satisfied).

The only claim remaining is the

plaintiffs’ allegation that CBS violated

Indiana’s public nuisance statute. We

agree with the defendants that because

plaintiffs named both the EPA and CBS as

defendants to their public nuisance

claim, the parties were not completely

diverse and the district court could not

exercise diversity jurisdiction over the

claim. The EPA, which is part of the

federal government, is not a "citizen of

a state," and thus its presence destroys

complete diversity. See General Ry.

Signal Co. v. Corcoran, 921 F.2d 700 (7th

Cir. 1991) (federal agency cannot be sued

in diversity). Because there is no

diversity jurisdiction in any event, we

have no occasion here to reach the

question whether CERCLA sec. 113(h)

precludes federal courts from exercising

subject matter jurisdiction over state

law diversity claims that attack the

adequacy of removal and remedial actions.

If, on remand, the district court finds

that the case may proceed under any of

the various federal theories, it should

revisit the question of the

appropriateness of retaining supplemental

jurisdiction over the public nuisance

claim. See 28 U.S.C. sec. 1367(c).

Defendants have one last argument: they

assert that even if the court could

exercise supplemental jurisdiction over

the claim, the Frey plaintiffs lack

standing as a matter of Indiana law to

pursue the public nuisance charge. To

have standing to bring a public nuisance

claim in Indiana, a plaintiff must suffer

an injury "different in kind and not

merely in degree" from the one suffered

by the general public. Blair v. Anderson,

570 N.E.2d 1337, 1340 (Ind. App. 1991).

Moreover, they contend, Indiana courts

would not consider an organization like

POW a "person entitled to sue" under the

public nuisance statute unless it has

itself suffered a distinct injury. See

Union Township Residents Ass’n v. Whitley

County Redevelopment Comm’n, 536 N.E.2d

1044 (Ind. App. 1989); Robertson v. Board

of Zoning Appeals, 699 N.E.2d 310, 316

(Ind. App. 1998). An organization like

POW cannot rely on the injury of one of

its members. Medical Licensing Board of

Indiana v. Indiana State Chiropractic

Assoc., 373 N.E.2d 1114, 1116 (Ind. App.

1978). To the extent this argument really

goes to the merits of their right to

recover under Indiana law, the district

court will be able to consider whether

these plaintiffs have a proper claim for

relief on remand. To the extent it

reflects more prudential limitations on

the Indiana courts, it does not apply to

a federal court exercising supplemental

jurisdiction. The federal court operates

under its own rules of standing, both for

Article III purposes and for prudential

purposes. See Illinois ex rel. Ryan v.

Brown, 227 F.3d 1042, 1045 (7th Cir.

2000). The district court should give

further consideration to this issue on

remand, again as warranted by its

decision on the principal federal claims.

III

In summary, we Reverse the district

court’s dismissal of the plaintiffs’

federal law claims with respect to

Bennett’s Dump and Neal’s Landfill and

remand for further proceedings. We Affirm

the district court’s dismissal of the

plaintiffs’ state law claims with the

exception of the public nuisance claim

against CBS, which is also remanded for

further proceedings consistent with this

opinion.