Manor Care, Inc. v. Yaskin, 91-5128

• Decision Date: 06 August 1991
• Docket Number: No. 91-5128,91-5128
• Parties: , 60 USLW 2395, 22 Envtl. L. Rep. 20,320 MANOR CARE, INC., Appellant, v. Judith YASKIN, as Commissioner of the New Jersey Department of Environmental Protection; Ronald T. Corcory, as Assistant Director, Division of Hazardous Waste Management of the State of New Jersey; Dennis Hart, as Acting Assistant Director, Division of Hazardous Waste Management of New Jersey, Appellees. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 122

950 F.2d 122

34 ERC 1001, 60 USLW 2395, 22 Envtl.

L. Rep. 20,320

MANOR CARE, INC., Appellant, v. Judith YASKIN, as Commissioner of the New Jersey Department of Environmental Protection; Ronald T. Corcory, as Assistant Director, Division of Hazardous Waste Management of the State of New Jersey; Dennis Hart, as Acting Assistant Director, Division of Hazardous Waste Management of New Jersey, Appellees.

No. 91-5128.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Aug. 6, 1991.

Decided Dec. 4, 1991.

Charles Lee Thomason, Thomas F. Quinn, Wilson, Elser, Moskowitz, Edelman & Dicker, Newark, N.J., for appellant.

Robert J. Del Tufo, Atty. Gen. of New Jersey, Mary C. Jacobson, John Alexander MacDonald, Deputy Attys. Gen., Trenton, N.J., for appellees.

Before MANSMANN and ALITO, Circuit Judges and DIAMOND, District Judge. ^*

OPINION OF THE COURT

ALITO, Circuit Judge:

This case presents the question whether the federal Comprehensive Environmental Resource, Compensation, and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. § 9601-9675, preempts the issuance of certain directives by the New Jersey Department of Environmental Protection under authority implicitly conferred by the New Jersey Spill Compensation and Control Act ("Spill Act"), N.J.Stat.Ann. § 58:10-23.11, 23.11a-z. These directives required a responsible party to pay for the state's share of cleanup costs at a CERCLA site. The district court held that these directives were not preempted. We will affirm.

I.

In 1982, the United States Environmental Protection Agency ("EPA") entered into contracts with the State of New Jersey to fund the removal of hazardous substances from two New Jersey sites, the Lipari Landfill in Gloucester County and the Florence Land Recontouring Landfill in Burlington County. In accordance with CERCLA, 42 U.S.C. § 9604(c)(3), ¹ the contracts provided that the federal government would pay 90% of the cleanup cost and the state would pay the remaining 10%. Soon thereafter, the New Jersey Department of Environmental Protection ("DEP"), acting pursuant to the Spill Act, issued two directives ordering Manor Care and other responsible parties to pay to New Jersey the 10% of the cleanup cost that New Jersey was obligated to pay the federal government under the CERCLA contracts. The total sought by the two directives exceeded five million dollars.

The two directives were issued by the DEP under a provision of the Spill Act, N.J.S.A. 58:10-23.11f(a). This provision expressly authorizes the DEP to remove waste or direct a responsible party to remove the waste. The New Jersey Supreme Court, however, has held that this provision impliedly authorizes the DEP to issue administrative directives requiring the payment of money to compensate for cleanup of hazardous waste sites. Matter of Kimber Petroleum Corp., 110 N.J. 69, 539 A.2d 1181, appeal dismissed, 488 U.S. 935, 109 S.Ct. 358, 102 L.Ed.2d 349 (1988). Under N.J.S.A. 58:10-23.11f(a), a responsible party who does not comply with such a directive may be liable for treble damages. Id. In order to enforce such a directive, the DEP must initiate a cost recovery action in a court of competent jurisdiction. In such an action, a responsible party may assert a good cause defense based on an objectively reasonable belief that a directive was invalid in whole or in part. Matter of Kimber Petroleum Corp., 110 N.J. at 82-84, 539 A.2d at 1188-1189.

After receiving the directives, Manor Care brought suit against DEP officials in the United States District Court for the District of New Jersey under the citizen-suit provision of CERCLA, 42 U.S.C. § 9659. ² Manor Care's complaint alleged that the issuance of the directives was "in conflict with the comprehensive federal statutory scheme for recovery of funds to remediate releases of hazardous substances into the environment." The complaint asserted that the DEP could recover its cleanup costs at the sites only through litigation in federal court under 42 U.S.C. § 9607(a)(4)(A) and 9613(f)(1). Manor Care sought declaratory and injunctive relief. The defendants moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted.

In an unpublished opinion, the district court found that nothing in the language of CERCLA or its legislative history indicates a congressional intent to preempt statutes such as the Spill Act and that there is no actual conflict between the two statutes. The court therefore granted the defendants' motion and dismissed the case. Manor Care appealed.

We have jurisdiction to hear this appeal from a final order of a district court pursuant to 28 U.S.C. § 1291. Since this appeal involves statutory construction, our standard of review is plenary. Cassidy Podell Lynch v. Synder General Corp., 944 F.2d 1131, 1137 (3d Cir.1991); United States v. Barel, 939 F.2d 26, 31 (3d Cir.1991). Because this appeal is from a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, we will accept as true all facts alleged in the complaint and all reasonable inferences that can be drawn from them. Delaware Valley Citizens Council v. Davis, 932 F.2d 256, 267 (3d Cir.1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990).

II.

Federal law may preempt state law by express provision or by provisions that evidence a congressional intent to occupy a field and leave no room for supplementary state regulation. See Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Congressional intent determines whether state action is preempted by federal law. Ingersoll-Rand Co. v. McClendon, --- U.S. ----, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-1910, 85 L.Ed.2d 206 (1985). We ascertain congressional intent by examining the statutory language and the structure and purpose of the statute. Ingersoll-Rand Co., 111 S.Ct. at 482; FMC Corp. v. Holliday, --- U.S. ----, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990).

As the district court noted, CERCLA does not on its face preempt state laws such as the Spill Act. On the contrary, CERCLA § 114(a), 42 U.S.C. § 9614(a), unambiguously states: "Nothing 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 State." ³ Thus, "CERCLA expressly does not pre-empt State law." New York v. Shore Realty, 759 F.2d 1032, 1041 (2d Cir.1985).

Congress' response to the Supreme Court's decision in Exxon v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986), further illustrates that Congress did not intend for CERCLA to occupy the field of hazardous waste cleanup. In Exxon v. Hunt, supra, the Supreme Court held that a subsequently repealed provision of CERCLA, Section 114(c), 42 U.S.C. § 9614(c) (repealed 1986), ⁴ preempted the Spill Act insofar as that Act imposed a tax to fund cleanup costs that "might be compensated under CERCLA." This holding would not affect the present case, even if Section 114(c) had not been repealed, since the Supreme Court held that "the 10% state share is not a cost that 'may be compensated' by Superfund." 475 U.S. at 375, 106 S.Ct. at 1115. Nevertheless, Congress' response to the Supreme Court's decision is instructive.

Shortly after the Supreme Court's decision, Congress amended CERCLA and completely repealed the language in § 114(c) on which the holding in Exxon had been based. Pub.L. No. 99-499, 100 Stat. 1613 (1986). The Senate Report, which was written prior to the Supreme Court's decision, observed:

The reported bill strikes section 114(c) of the Act to clarify that States are not preempted from imposing taxes for purposes already covered by CERCLA....

The primary effect of the amendment will be to remove a potential barrier to the creation of State superfund programs. The amendment may result in an increase in the number and pace of hazardous substance response actions undertaken or partially funded by States, since States will be able to raise funds to assist such hazardous substance response.

S.Rep. No. 11, 99th Cong., 1st Sess. at 59-60 (1985). See also H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 1 at 65 (1985) (Congressional Budget Office Cost Estimate), reprinted in 1986 U.S.C.C.A.N. 2835, 2847; H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 1 at 83-84 (1985) (Energy and Commerce Committee), reprinted in 1986 U.S.C.C.A.N. 2835, 2865-2866; Statement of Lee M. Thomas, Environmental Protection Agency, H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 1 at 123, 125 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2905, 2907; Separate and Dissenting Views-Superfund Amendments of 1985, H.R.Rep. No. 253, 99th Cong., 1st Sess. pt. 1 at 257, 267 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2931, 2942; H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 5 at 27 (1985) (Public Works and Transportation Committee), reprinted in 1986 U.S.C.C.A.N. 2835, 3124, 3150; H.R.Conf.Rep. No. 962, 99th Cong., 1st Sess., pt. 5 at 183, 225 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 3276, 3318.

Thus, the language of § 114(a), the repeal of the original language of § 114(c), and the legislative history of that repeal demonstrate clearly that Congress did not intend for CERCLA to occupy the field or to prevent the states from enacting laws to supplement federal measures relating to the cleanup of hazardous wastes.

III.

Manor Care argues that whatever Congress' general intention might have been with respect to state hazardous waste cleanup schemes that supplement and complement CERCLA, certain CERCLA provisions conflict directly with the application of the Spill Act in the instant case. Of course, any state law that actually conflicts...