Boyes v. Shell Oil Products Company

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

No. 98-3692

____________________________

D.C. Docket No. 97-00001-CV-MMP

STEPHEN R. BOYES and

PATRICE BOYES,

Plaintiffs-Appellants,

versus

SHELL OIL PRODUCTS COMPANY,

MOBIL OIL COMPANY, and

TENNECO OIL COMPANY,

Defendants-Appellees.

_____________________________

Appeal from the United States District Court

for the Northern District of Florida

_____________________________

(January 4, 2000)

Before CARNES, Circuit Judge, and RONEY and HILL, Senior Circuit Judges.

CARNES, Circuit Judge:

Stephen and Patrice Boyes own property in Gainesville, Florida that is

allegedly contaminated with petroleum waste as a result of service stations

previously owned or operated by Shell Oil Company (“Shell”) and Tenneco Oil

Company (“Tenneco”).1 The Boyes sued Shell and Tenneco for violations of the

Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992,

seeking an injunction requiring remediation of the contamination.2 They also

asserted various state law claims. On the basis of Burford abstention and,

alternatively, the primary jurisdiction doctrine, the district court dismissed the

RCRA claims without prejudice. In its analysis, the court relied heavily on §

376.308(5) of the Florida Statutes, which prohibits the Boyes’ suit for remediation.

The district court then declined to exercise its supplemental jurisdiction over the

state law claims. The Boyes appeal.

In Part I of this opinion, we outline the RCRA and its regulatory scheme and

Florida’s State Underground Petroleum Environmental Response Act and its

regulatory scheme. We then describe the facts and procedural history of the case.

Part II contains the standard of review. In Part III, we briefly outline Burford

abstention and the primary jurisdiction doctrine and their applicability in a

1

In its brief to this Court, Tenneco asserted that it is not an owner or operator within the

meaning of the RCRA. We leave that issue for the district court to decide on remand.

2

The Boyes also sued Mobil Oil Company (“Mobil”), but Mobil has since been

dismissed from the suit. The Boyes’ claims against Mobil are not at issue in this appeal.

2

preemption case. We then provide a general discussion of federal preemption and

proceed to consider whether Florida law is preempted by the RCRA.

As we explain in Part III, the RCRA neither expressly preempts all state law,

nor occupies the entire field of underground storage tank regulation. However, §

376.308(5) of the Florida Statutes is in direct conflict with 42 U.S.C. § 6972, the

RCRA citizen suit provision, and is thus preempted under the Supremacy Clause of

the Constitution. Because § 376.308(5) is preempted, we conclude that the district

court erred in dismissing the Boyes’ suit against Shell and Tenneco.

I. BACKGROUND

A. FEDERAL STATUTORY FRAMEWORK

In 1976, Congress enacted the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§ 6901-6992, “to promote the protection of health and the

environment ... .” 42 U.S.C. § 6902(a). The “RCRA is a comprehensive

environmental statute that governs the treatment, storage, and disposal of solid and

hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S. Ct.

1251, 1254 (1996) (citation omitted). As part of the RCRA, Congress provided for

federal regulation of underground storage tanks. See 42 U.S.C. §§ 6991-6991i.

The Environmental Protection Agency (“EPA”) subsequently promulgated release

detection, prevention and corrective action regulations for underground storage

3

tanks, and those regulations are enforceable by the EPA Administrator. See id. §

6991b; 40 C.F.R. pt. 280 (1999).

A state underground storage tank program, however, can operate “in lieu of

the Federal program” if the EPA Administrator formally approves the state

program. 42 U.S.C. § 6991c(d)(2).3 The EPA Administrator must approve a state

program if, “after notice and opportunity for public comment,” he determines that

the program complies with the RCRA provisions and “provides for adequate

enforcement of compliance ... .” Id. § 6991c(d)(1). The RCRA also contains a

citizen suit provision which grants federal district courts jurisdiction to hear suits

against any person alleged to be in violation of any RCRA regulation or against

any person for “past or present ... storage ... or disposal of any solid or hazardous

waste which may present an imminent and substantial endangerment to health or

3

Section 6991c(d) reads as follows:

(d) EPA determination

(1) Within one hundred and eighty days of the date of receipt of a

proposed State program, the Administrator shall, after notice and opportunity for

public comment, make a determination whether the State’s program complies

with the provisions of this section and provides for adequate enforcement of

compliance with the requirements and standards adopted pursuant to this section.

(2) If the Administrator determines that a State program complies with the

provisions of this section and provides for adequate enforcement of compliance

with the requirements and standards adopted pursuant to this section, he shall

approve the State program in lieu of the Federal program and the State shall have

primary enforcement responsibility with respect to requirements of its program.

42 U.S.C. § 6991c(d).

4

the environment.” Id. § 6972(a).

B. STATE STATUTORY FRAMEWORK

In 1986, under the State Underground Petroleum Environmental Response

Act, Florida adopted the Early Detection Incentive (“EDI”) program. See Fla. Stat.

§ 376.3071(9). If a site contaminated by petroleum waste from an underground

storage tank is accepted into the EDI program, Florida will absorb the full cost of

remediating the site. See § 376.3071(9)(b).4 The Florida Department of

Environmental Protection (“FDEP”)5 assigns each contaminated site a priority

ranking and undertakes remediations in accordance with those rankings. See §

4

Section 376.3071(9)(b) reads as follows:

(9) Early detection incentive program.– ...

(b) When reporting forms become available for distribution, all sites

involving incidents of contamination from petroleum storage systems initially

reported to the department at any time from midnight on June 30, 1986, to

midnight on December 31, 1988, shall be qualified sites, provided that such a

complete written report is filed with respect thereto within a reasonable time.

Subject to the delays which may occur as a result of the prioritization of sites

under paragraph 5(a) for any qualified site, costs for activities described in

paragraphs (4)(a)-(e) shall be absorbed at the expense of the [Inland Protection

Trust Fund], without recourse to reimbursement or recovery, with the following

exceptions [not applicable in this case]:

Fla. Stat. § 376.3071(9)(b).

5

The FDEP was formerly known as the Florida Department of Environmental

Regulation. For consistency, we will use the term FDEP throughout this opinion.

5

376.3071(5).6 Florida later enacted § 376.308(5), which prohibits any person from

pursuing any “administrative or judicial action” to require remediation of a

contaminated site that is eligible for the EDI program before the state has

committed funding for the remediation. See § 376.308(5).7

6

Section 376.3071(5) reads as follows:

(5) Site selection and cleanup criteria.–

(a) The department shall adopt rules to establish priorities for state-

conducted cleanup at petroleum contamination sites based upon factors that

include, but need not be limited to:

1. The degree to which human health, safety, or welfare may be affected by

exposure to the contamination;

2. The size of the population or area affected by the contamination;

3. The present and future uses of the affected aquifer or surface waters, with

particular consideration as to the probability that the contamination is

substantially affecting, or will migrate to and substantially affect, a known public

or private source of potable water; and

4. The effect of the contamination on the environment.

Moneys in the fund shall then be obligated for activities described in paragraphs

(4)(a)-(e) at individual sites in accordance with such established criteria. ...

Fla. Stat. § 376.3071(5).

7

Section 376.308(5) reads as follows:

(5) Effective July 1, 1996, and operating retroactively to March 29, 1995,

notwithstanding any other provision of law, judgment, consent order, order, or

ordinance, no person who owns or operates a facility or who otherwise could be

responsible for costs as a result of contamination eligible for restoration funding

from the Inland Protection Trust Fund shall be subject to administrative or

judicial action, brought by or on behalf of the state or any local government or

any other person, to compel rehabilitation in advance of commitment of

restoration funding in accordance with a site’s priority ranking pursuant to s.

376.3071(5)(a) or to pay for the costs of rehabilitation of environmental

contamination resulting from a discharge of petroleum products that is eligible for

restoration funding from the Inland Protection Trust Fund. For purposes of

chapter 95, a cause of action to compel rehabilitation of environmental

contamination at a facility resulting from a discharge of petroleum products that is

6

C. FACTS AND PROCEDURAL HISTORY

From 1958 to mid-1982, Shell Oil Company (“Shell”) owned and operated a

gasoline service station at 404 South Main Street in Gainesville, Florida.8 From

1980 to late 1985 or early 1986, Tenneco Oil Company (“Tenneco”) leased

property at 403 South Main Street in Gainesville, Florida on which a gasoline

station was located. The 403 and 404 South Main Street sites are across the street

from each other at an intersection. Both sites are contaminated with petroleum

waste. The 403 South Main Street site that Tenneco leased was accepted into

Florida’s EDI program in October 1987; the 404 South Main Street site that Shell

owned was accepted into the EDI program in October 1988.

The Boyes purchased 602 South Main Street, also in Gainesville, Florida, in

July 1992. In March 1996, they purchased 601 South Main Street. The

eligible for restoration funding, or to compel payment of costs for environmental

contamination resulting from a discharge of petroleum products that is eligible for

restoration funding, shall not accrue until restoration funding can be committed to

the facility or environmental contamination in accordance with the priority

ranking. ... Nothing herein shall preclude any person from bringing civil action

for damages or personal injury, not to include the cost of restoration or the

compelling of restoration in advance of the state’s commitment of restoration

funding in accordance with a site’s priority ranking pursuant to s. 376.3071(5)(a).

...

Fla. Stat. § 376.308(5).

8

Most, if not all, of the facts we refer to appear to be undisputed by the parties. In any

event, given the posture of the case, we construe the record evidence in the light most favorable

to the Boyes. To the extent that there is any dispute about the facts, the district court can resolve

that on remand.

7

intersection where the 403 and 404 South Main Street properties are located is

approximately two city blocks from the sites currently owned by the Boyes. The

FDEP recognizes the Boyes’ property as being within a plume of underground

petroleum contamination that must be addressed during the remediation of the

Shell and Tenneco sites.9

Pursuant to 42 U.S.C. § 6972(c), the Boyes gave written notice to Shell,

Tenneco, Mobil, the EPA, and the FDEP on June 19, 1996 of their intent to file suit

under the RCRA. They filed suit against Shell, Tenneco, and Mobil on January 2,

1997.10 Counts I and II alleged violations of the RCRA, 42 U.S.C. § 6972(a)(1)(A)

and (B) respectively, and sought a permanent injunction requiring the removal of

the entire petroleum contamination and its adverse impacts, as well as costs and

attorney fees. Counts III, IV, V, VI and VII raised various state law claims and

sought compensatory damages, as well as costs and attorney fees.

On October 23, 1988, the district court dismissed without prejudice Counts I

and II, the RCRA counts, on the grounds that the district court was abstaining from

exercising its jurisdiction based on the Burford abstention doctrine and, in the

9

The Boyes’ preference for the federal program over the Florida program is based on

their belief, which has substantial basis in reality, that the Florida program is vastly underfunded.

They contend that if they are forced to rely on the Florida program, it will be many years before

the contamination is remediated.

10

As we have mentioned, Mobil was later dismissed from the lawsuit.

8

alternative, on the primary jurisdiction doctrine. Having abstained from exercising

jurisdiction over the federal law counts, the district court also declined to exercise

its supplemental jurisdiction over the Boyes’ pendant state law claims, Counts III,

IV, V, VI and VII, and dismissed them without prejudice. The Boyes filed this

appeal.

II. STANDARD OF REVIEW

While we ordinarily review the grant of motions to dismiss or summary

judgment de novo, see Parks v. City of Warner Robins, Georgia, 43 F.3d 609, 612-

13 (11th Cir. 1995), “a district court’s decision to abstain will only be reversed

upon a showing of abuse of discretion.” Rindley v. Gallagher, 929 F.2d 1552,

1554 (11th Cir. 1991) (citations omitted). “An abuse of discretion occurs if the

judge fails to apply the proper legal standard or to follow proper procedures in

making the determination ... .” American Civil Liberties Union of Georgia v.

Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting In re Hillsborough Holdings

Corp., 127 F.3d 1398, 1401 (11th Cir. 1997) (internal citation and quotation

omitted)).

III. DISCUSSION

A. ABSTENTION

The decision that gave Burford abstention its name is Burford v. Sun Oil

9

Co., 319 U.S. 315, 63 S. Ct. 1098 (1943). In a later case, the Supreme Court

summarized Burford abstention as follows:

Where timely and adequate state-court review is available, a federal

court sitting in equity must decline to interfere with the proceedings or

orders of state administrative agencies: (1) when there are difficult

questions of state law bearing on policy problems of substantial public

import whose importance transcends the result in the case then at bar;

or (2) where the exercise of federal review of the question in a case

and in similar cases would be disruptive of state efforts to establish a

coherent policy with respect to a matter of substantial public concern.

New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350,

361, 109 S. Ct. 2506, 2514 (1989) (citations and internal quotations omitted). The

purpose of Burford abstention is to “protect[] complex state administrative

processes from undue federal interference ... .” Id. at 362, 109 S. Ct. at 2515.

The primary jurisdiction doctrine is similarly concerned with protecting the

administrative process from judicial interference. See United States v. Western

Pac. R.R. Co., 352 U.S. 59, 63, 77 S. Ct. 161, 165 (1956). It is “a doctrine

specifically applicable to claims properly cognizable in court that contain some

issue within the special competence of an administrative agency. It requires the

court to enable a ‘referral’ to the agency, staying further proceedings so as to give

the parties reasonable opportunity to seek an administrative ruling.” Reiter v.

Cooper, 507 U.S. 258, 268, 113 S. Ct. 1213, 1220 (1993) (citations omitted).

“[T]he main justifications for the rule of primary jurisdiction are the expertise of

10

the agency deferred to and the need for a uniform interpretation of a statute or

regulation.” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1310

(2nd Cir. 1990) (citations omitted).11 In the context of this case, Burford abstention

and the primary jurisdiction doctrine are “different labels for the same thing.”

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).

Abstention under Burford and under the primary jurisdiction doctrine is

rarely, if ever, appropriate when federal law preempts state law. See Baggett v.

Department of Prof’l Regulation, Bd. of Pilot Comm’rs, 717 F.2d 521, 524 (11th

Cir. 1983) (“When, because of preemption, a particular state proceeding is beyond

its regulatory authority, the need for protection of the state’s comprehensive

regulatory scheme, to the extent that it is legitimate, lends no support for abstention

... .”).12 The parties agree that abstention was inappropriate in this case if the

11

The Second Circuit in County of Suffolk expressed doubt about whether the primary

jurisdiction doctrine is even applicable “where, as here, the claim is brought under federal law”

and the referral would be to a state agency. County of Suffolk, 907 F.2d at 1310. It reasoned

that: “The uniformity rationale clearly does not support application of the doctrine in the federal

question/state agency context. Indeed, since application of the doctrine in such a context might

well result in review by fifty different state agencies with fifty different charters, resort to state

agencies is more likely to ensure non-uniformity.” Id.

We need not decide whether the primary jurisdiction doctrine could ever justify

deference in favor of state administrative agencies, because even if it can, deference was not

appropriate in this case for reasons we will explain.

12

Other circuits agree that abstention is generally inappropriate in a preemption case.

See In re Pan American Corp., 950 F.2d 839, 846-47 (2nd Cir. 1991) (“The abstention doctrines

thus manifest federal respect for State law and policy. These concerns, however, are not

implicated when federal questions are presented since supremacy clause questions are essentially

11

RCRA preempted Florida law. What they disagree about, and what is the decisive

issue in this case, is whether federal law preempted otherwise applicable Florida

law.13

one[s] of federal policy. We therefore have observed that [a]bstention ... is not appropriately

invoked in a preemption case.” (citations and quotations omitted)); Neufeld v. City of Baltimore,

964 F.2d 347, 350-51 (4th Cir. 1992) (finding Burford abstention inappropriate in preemption

claim because it did not “present difficult questions of state law concerning peculiarly local

issues, nor would a federal decision disrupt the efficacy of an important and coherent state

policy”); International Bhd. of Elec. Workers, Local Union No. 1245 v. Public Serv. Comm’n of

Nev., 614 F.2d 206, 212 n. 1 (9th Cir. 1980) (“The purpose of Burford abstention is to avoid

federal intrusion into matters which are largely of local concern and which are within the special

competence of local courts. A preemption claim alleges in essence that Congress has determined

that particular matters are of national concern and should be administered by national, rather

than local, institutions. If a preemption claim is well-founded, therefore, Burford abstention

cannot be appropriate.”).

We note, however, there may be some disagreement about the applicability of Burford

abstention to citizen suits brought under the RCRA. Compare Coalition for Health Concern v.

LWD, Inc., 60 F.3d 1188, 1193-95 (6th Cir. 1995) (finding Burford abstention appropriate with

respect to RCRA claims) and Palumbo v. Waste Technologies Indus., 989 F.2d 156, 159-60 (4th

Cir. 1993) (same) with PMC, Inc., 151 F.3d at 619 (finding Burford abstention inappropriate

under facts presented, but recognizing possibility in other cases). Although we believe Burford

abstention is inappropriate in a preemption case such as this one, we also find Coalition for

Health Concern and Palumbo distinguishable from the present case. In Coalition for Health

Concern, Kentucky had enacted its own regulatory program for hazardous waste disposal and

received approval from the EPA Administrator pursuant to 42 U.S.C. § 6926. See Coalition for

Health Concern, 60 F.3d at 1190. In Palumbo, the plaintiffs were bringing “a collateral attack on

the prior permitting decisions of the federal EPA. The RCRA judicial review provision plainly

forbids such an attack ... .” Palumbo, 989 F.2d at 159 (citing 42 U.S.C. § 6976(b)). The

Palumbo court applied Burford abstention to the plaintiffs’ claims only “[t]o the extent that

plaintiffs challenge separately the permitting decisions of the Ohio EPA ... .” Id. In the present

case, unlike the facts in Coalition for Health Concern and Palumbo, Florida does not have a

federally approved state program, and the Boyes are not bringing a collateral attack on the

decisions of the federal EPA.

13

Because the district court abstained without reaching the question it should have begun

with, the preemption issue, we do not have the benefit of that court’s views on the preemption

issue. We could, of course, remand the case with directions for the district court to address the

preemption issue, but we choose not to do so. There are no subsidiary factual issues that need to

be decided and the record is as developed as it will ever be on the issue. Although the standard

12

B. PREEMPTION

Congressional intent governs our determination of whether federal law

preempts state law. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88,

96, 112 S. Ct. 2374, 2381 (1992) (plurality). If Congress so intends, “[p]re-

emption ... is compelled whether Congress’ command is explicitly stated in the

statute’s language or implicitly contained in its structure and purpose.” Id. at 98

(citation and quotation omitted). The Supreme Court has recognized three types of

preemption: (1) express preemption, where the statute contains “explicit pre-

emptive language,” (2) field preemption, “where the scheme of federal regulation

is so pervasive as to make reasonable the inference that Congress left no room for

the States to supplement it,” and (3) conflict preemption, “where compliance with

both federal and state regulations is a physical impossibility, or where state law

stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress.” Id. (citations and quotations omitted).

of review is abuse of discretion, in this particular context it amounts to de novo review, because

the case turns on a purely legal issue of preemption and we decide such issues de novo. See

Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir. 1997). Moreover, the parties have

briefed and argued the preemption issue, we are focused on it, and a remand would unnecessarily

delay the disposition of this case. See Ochran v. United States, 117 F.3d 495, 503 (11th Cir.

1997) (“[A]lthough the general rule is that we do not address arguments that were not addressed

by the district court, we unquestionably have the discretion to do so.”); Taylor v. Food World,

Inc., 133 F.3d 1419, 1423 n. 2 (11th Cir. 1998) (“[T]he parties have briefed this issue, and

judicial economy counsels in favor of our addressing it.”) (citing Lopez v. First Union Nat’l

Bank of Fl., 129 F.3d 1186, 1189 n. 1 (11th Cir. 1997)).

13

The RCRA does not expressly preempt Florida’s program. There is no

statutory directive that requires the RCRA to displace all state laws regulating

underground storage tanks. Field preemption is equally inapplicable. Congress

explicitly sought to establish “a viable Federal-State partnership to carry out” the

purposes of the statute. 42 U.S.C. § 6902(a)(7). Congress provided for

cooperative agreements pursuant to which a state could implement the RCRA

regulations. See id. § 6991b(h)(7)(A). Moreover, a state can operate its own

underground storage tank program in lieu of federal regulation, provided it obtains

the explicit approval of the EPA Administrator. See id. § 6991c(d). The RCRA

also expressly permits a state to adopt underground storage tank requirements that

are more stringent than the federal program. See id. § 6991g. As the Fourth

Circuit has put it, instead of comprehensively preempting state law, the RCRA

“seems to contemplate state law action ... .” Feikema v. Texaco, Inc., 16 F.3d

1408, 1413 (4th Cir. 1994); see also Blue Circle Cement, Inc. v. Board of County

Comm’rs of the County of Rogers, 27 F.3d 1499, 1504 (10th Cir. 1994) (finding

no “express preemption nor implied field preemption of state and local hazardous

waste regulations that are more restrictive than RCRA”); Old Bridge Chemicals,

Inc. v. New Jersey Dept. of Envtl. Protection, 965 F.2d 1287, 1296 (3rd Cir. 1992)

(“RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.”).

14

Because neither express nor field preemption is applicable, the question

becomes whether the Florida law regulating underground storage tanks conflicts

with the RCRA. “Any state law that conflicts with federal law is preempted by the

federal law and is without effect under the Supremacy Clause of the Constitution.”

Lewis, 107 F.3d at 1500 (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504,

516, 112 S. Ct. 2608, 2617 (1992)).14 The RCRA, however, has a somewhat

unusual provision. Pursuant to § 6991c(d)(2), a state program can operate “in lieu

of” the RCRA if the EPA Administrator formally approves the state program for

that purpose. 42 U.S.C. 6991c(d)(2). For a state program to be approved, the

Administrator must determine, after “notice and opportunity for public comment,”

that the state program “provides for adequate enforcement.” Section 6991c(d)(1).15

Thus, a state has an alternative to the federal program: If a state enacts its own

underground storage tank program and gets it approved by the EPA Administrator,

14

The Supremacy Clause dictates that “the Laws of the United States ... shall be the

supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

15

We seriously doubt that a state program that prohibits suit to compel remediation when

the federal statute expressly permits such a suit could ever constitute adequate enforcement. But

we need not decide that, because the EPA Administrator has never approved Florida’s program.

We also note in passing that citizen suits under the RCRA may survive the EPA

Administrator’s approval for a state program to operate instead of the RCRA, see Ashoff v. City

of Ukiah, 130 F.3d 409, 411 (9th Cir. 1997) (“RCRA authorizes citizen suits in approved

states.”), which is another issue we have no occasion to decide.

15

the state program essentially replaces the federal regulations, and no conflict

between the state and federal program will exist. But the clear negative

implication of the approval requirement in § 6991c(d)(2) is that if a state does not

get its underground storage tank program approved, the state cannot operate its

program in place of the federal program.

Our conclusion about the negative implication of § 6991c(d)(2) is supported

not only by common sense, but also by the Supreme Court’s Gade decision. Gade,

505 U.S. 88, 112 S. Ct. 2374. In that case, a majority of the Court found

preemption based upon a similar inference it drew from § 18(b) of the

Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.16 That statutory

provision states “that a State ‘shall’ submit a plan if it wishes to ‘assume

responsibility’ for ‘development and enforcement ... of occupational safety and

health standards relating to any occupational safety or health issue with respect to

which a Federal standard has been promulgated.’” Id. at 99. The Court held that §

18(b) preempted “any state law or regulation that establishes an occupational

16

Four justices concluded in Gade that the existence of § 18(b) of the Occupational

Safety and Health Act impliedly preempted the state program involved in that case, see Gade,

505 U.S. at 91, 98-99, 112 S. Ct. at 2379, 2383, while a fifth justice was of the opinion that §

18(b) expressly preempted the program, see id. at 109-14, 112 S. Ct. at 2388-91. In such a

circumstance the narrowest ground is the holding of the Court. See Marks v. United States, 430

U.S. 188, 193-94, 97 S. Ct. 990, 993-94 (1977). For that reason, we hereafter refer to the

implied preemption ground and reasoning of the four justices in Gade as that of the Court.

16

health and safety standard on an issue for which OSHA has already promulgated a

standard, unless the State has obtained the Secretary’s approval for its own plan.”

Id. at 97 (citation omitted). The Court reasoned that “[t]he unavoidable implication

of [the approval requirement] is that a State may not enforce its own occupational

safety and health standards without obtaining the Secretary’s approval ... .” Id. at

99.

The Supreme Court in Gade also reasoned that two other provisions of the

Occupational Safety and Health Act supported its reading of the approval

requirement of § 18(b). The first provision was § 18(c), 29 U.S.C. § 667(c),

“which sets forth the conditions that must be satisfied before the Secretary can

approve a plan submitted by a State under subsection (b).” Id. at 100. The Court

said, “If a State could supplement federal regulations without undergoing the §

18(b) approval process, then the protections that § 18(c) offers ... would easily be

undercut. It would make little sense to impose such a condition on state programs

intended to supplant federal regulation and not those that merely supplement it ... .”

Id. at 100-01. The second provision was § 18(f) of the Act, which “gives the

Secretary the authority to withdraw her approval of a state plan. 29 U.S.C. §

667(f). Once approval is withdrawn, the plan ‘cease[s] to be in effect’ and the

State is permitted to assert jurisdiction under its occupational health and safety law

17

only for those cases ‘commenced before the withdrawal of the plan.’” Id. at 101.

The Supreme Court said, Ҥ 18(f) assumes that the State loses the power to enforce

all of its occupational safety and health standards once approval is withdrawn.” Id.

The RCRA also has provisions that set forth the conditions of the EPA

Administrator’s approval and allow the Administrator to withdraw approval. See

42 U.S.C. § 6991c. As the Supreme Court recognized with respect to the

Occupational Safety and Health Act in Gade, we think that these RCRA provisions

reinforce our reading of the approval requirement in § 6991c(d)(2) – that if a state

does not have its plan approved, it cannot operate its program in lieu of the federal

program.17

As previously discussed, Florida has a comprehensive statutory scheme to

regulate contamination caused by underground storage tanks. See Fla. Stat. ch.

376. Its program, however, has never been approved by the EPA Administrator.18

17

One difference between the Occupational Safety and Health Act and the RCRA is that

the RCRA has a savings clause to permit states to pass more stringent regulations, while the

Occupational Safety and Health Act does not. In fact, Gade itself concerned an objection to a

state enacting more stringent regulations. Gade, 505 U.S. at 93-94. Although the state’s

enactment of more stringent regulations without approval is impermissible under the

Occupational Safety and Health Act, Gade, 505 U.S. at 101-04, such an enactment would be

permissible under the RCRA. That difference, however, does not change our analysis – the

Florida program cannot operate in lieu of the federal program because it has not been approved.

Florida does, however, retain the power to enact more stringent standards. See infra note 20.

18

The parties do not contest that the Florida program has not been approved. The

defendants do, however, point to a Memorandum of Agreement between the EPA and the FDEP

in support of their position that the Florida law is not preempted by the RCRA. The

18

Because Florida’s underground storage tank program has not been approved

pursuant to the RCRA, which would have allowed Florida law to supplant or

replace federal law, the Florida program is preempted to the extent there is a

conflict.

“In making the determination of whether state law conflicts with federal law,

the test to apply is whether ‘it is impossible to comply with both state and federal

law’ or whether ‘the state law stands as an obstacle to the accomplishment of the

full purposes and objectives’ of federal law.” Feikema, 16 F.3d at 1413 (quoting

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984)).

Here Florida law is an obstacle to the accomplishment of the RCRA’s full purposes

and objectives. Under § 376.308(5) of the Florida Statutes, the Boyes cannot sue

to obtain the relief that they are seeking – remediation of the petroleum

contamination. Under 42 U.S.C. § 6972, the citizen suit provision of the RCRA,

they can.19 Compare 42 U.S.C. § 6972(a) with Fla. Stat. § 376.308(5) (prohibiting

Florida courts from ordering any person to remediate petroleum contamination

Memorandum of Agreement appears to authorize the FDEP to jointly implement the RCRA’s

underground storage tank program with the EPA. However, it expressly states that it does not

constitute “approval” as required by the statute and the regulations.

19

It is irrelevant that the statute of limitations for an action to compel cleanup is tolled

until state funding is committed, and that the Boyes can still bring a civil action for damages or

personal injury. See § 376.308(5). Because § 376.308(5) bars the Boyes’ suit for immediate

remediation, it does not provide the full relief permitted by the RCRA.

19

from underground storage tank discharges on a site that is eligible for EDI cleanup

prior to the date Florida commits funds). If allowed to operate in lieu of the

RCRA, the Florida statute would patently “interfere[] with the methods by which

the federal statute was designed to reach [its] goal.” Gade, 505 U.S. at 103

(quotation and citation omitted). To borrow the Third Circuit’s metaphor, the

RCRA sets a floor for regulation of hazardous waste, see Old Bridge Chemicals,

965 F.2d at 1296, and to allow the Florida program to restrict or limit the federal

remedy would lower that floor.

Thus, Fla. Stat. § 376.308(5) is preempted because it conflicts with federal

law, and the provisions of the RCRA govern.20 The Boyes are entitled to bring

their RCRA claims for remediation in federal court. The Burford and primary

jurisdiction abstention doctrines are inapplicable.

VI. CONCLUSION

Because § 376.308(5) of the Florida Statutes, which prohibits the Boyes’

suit for remediation, is preempted by 42 U.S.C. § 6972, the citizen suit provision of

the RCRA, the district court abused its discretion in abstaining from hearing the

20

The RCRA does contain a savings clause that allows a state to enact more stringent

regulations. See 42 U.S.C. § 6991g. Section 376.308(5) of the Florida Statutes, however, is not

saved from federal preemption by the RCRA’s savings clause. It cannot be said that a state

provision barring suit to enforce federal law is in any way more stringent than a federal law

allowing such suit.

20

Boyes’ RCRA claims. Accordingly, we reverse the judgment of the district court

dismissing the Boyes’ RCRA claims, and remand for proceedings consistent with

this opinion.21

REVERSED AND REMANDED.

21

Our reversal of the district court’s judgment moots the cost issue, which the Boyes

raised on appeal.

21