Jurisdictional Statement — Exxon Corp. v. Hunt

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Text

Supreme Com, & S.

rFILEO

8 4*978 DEC 17 1984

No.

= ALEXANDER L. STEWAS

IN THE CLERK

Supreme Court of the United States ~

OCTOBER 1984 TERM,

EXXON CORPORATION, THE BFGOODRICH COMPANY.

UNION CARBIDE CORPORATION, MONSANTO COMPANY

AND TENNECO CHEMICALS, INC.,

Appellants,

VS.

ROBERT HUNT, Administrator of New Jersey Spill

Compensation Fund; CLIFFORD A. GOLDMAN, Treasurer

of the State of New Jersey; SIDNEY GLASER, Director of

the Division of Taxation, JERRY F. ENGLISH, Commissioner of

Environmental Protection, and THE STATE OF NEW JERSEY,

Appellees.

Appeal from the Supreme Court of New Jersey

JURISDICTIONAL STATEMENT—STATE CIVIL CASE

JOHN J. CARLIN, JR..,

Counsel of Record for Appellants,

LISA J. POLLAK,

FARRELL, CURTIS, CARLIN & DAVIDSON

Attorneys for Appellants

Exxon Corporation, The BFGoodrich

Company, Union Carbide Corporation,

Monsanto Company and Tenneco

Chemicals, Inc.

Of Counsel: 43 Maple Avenue,

P.O. Box 145,

Morristown, New Jersey 07960

(201) 267-8130

Covington & Burling

Daniel M. Gribbon

1201 Pennsylvania

Avenue, N.W.

Washington, D.C. 20004

(202) 662-6000

i

PRELIMINARY MATTER

QUESTIONS PRESENTED

1. Whether the taxing provisions of the New Jersey Spill

Compensation and Control Act, N.J.S. 58:10-23.11 et seq. are

preempted by The Comprehensive Environmental Response

Compensation and Liability Act of 1980 (Superfund), 42 U.S.C.

§ 9601 et seq. and, therefore, the imposition of them is in viola-

tion of the Supremacy Clause of the United States Constitution?

2. Whether the Supreme Court of New Jersey disre-

garded the plain and recent mandate of this Court in Aloha

Airlines v. Director of Taxation of Hawaii, 104 S. Ct. 291

(1983), when it nullified an explicit preemption provision of

Superfund by formulating a contrary Congressional purpose

from legislative history? *

* The names of all of the parties to this proceeding in the Court

below are included in the caption of these pleadings. The list-

ing of parent companies, subsidiaries (except wholly owned)

and affiliates are set forth in the Appendix attached hereto at

page la.

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Jurisdiction in this Court

This suit challenges the constitutionality of the taxing pro-

visions of the New Jersey Spill Compensation and Control Act,

N.J.S. 58:10-23.11 et seq. on the basis that such provisions are

expressly preempted by § 114(c) of the Comprehensive Environ-

mental Response, Compensation and Liability Act of 1980, 42

U.S.C. § 9601 et seq. (Superfund), and, therefore, in violation of

the Supremacy Clause of the United States Constitution.

The federal constitutional question involved in this suit has

continuously been raised by appellants in all proceedings. The

New Jersey Tax Court entered a decision upholding the consti-

tutionality of the New Jersey Act on the basis that § 114(c) of

Superfund did not preempt the New Jersey Tax. This decision

was affirmed by the New Jersey Appellate Division and New

Jersey Supreme Court.

Notice of appeal to this Court was timely filed on Novem-

ber 19, 1984.

The jurisdiction of the United States Supreme Court to

review the decision of the Supreme Court of New Jersey on

appeal is conferred by 28 U.S.C. § 1257(2). Aloha Airlines, Inc.

v. Director of Taxation of Hawaii, 104 S. Ct. 291, 294 (1983);

and Arizona Public Service Co. v. Snead, 441 U.S. 141, 146

(1979) support the jurisdiction of the Supreme Court to review

the judgment on appeal in this case.

Constitutional and Statutory

Provisions Involved

The Supremacy Clause of the United States Constitution,

Article VI, C1. 2, provides as follows:

This Constitution and the Laws of the United Stat es which shall

be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shail

be bound thereby, any Thing in the Constitution or Laws cf any

State to the Contrary notwithstanding.

3

The Comprehensive Environmental Response Compensa-

tion and Liability Act of 1980, 42 U.S.C. §9601, ef seq., is set

out in full in the Appendix hereto. Section 114(c) of Superfund,

42 U.S.C. §9614(c) provides as follows:

Except as provided in this chapter, no person may be

required to contribute to any fund, the purpose of which is to pay

compensation for claims for any costs of response or damages or

claims which may be compensated under this subchapter. Noth-

ing in this section shall preclude any State from using general

revenues for such a fund, or from imposing a tax or fee upon any

person or upon any substance in order to finance the purchase or

prepositioning of hazardous substance response equipment or

other preparation for the response to a release of hazardous sub-

stances which affects such State.

The New Jersey Spill Compensation and Control Act,

N.J.S. 58:10-23.11, et seqg., is set out in pertinent part in the

Appendix hereto.

Statement of the Case

On December 11, 1980, in response to an increasing

awareness of the damages caused by the release of hazardous

substances into the environment, Congress enacted “Super-

fund,” 42 U.S.C. §9601 et seg. The national response effort was

to be addressed by the federal government in cooperation with

the states. It was to be financed on the federal level by a $1.6

billion trust fund, eighty-seven and one-half percent of which

was to be raised by a feedstock tax imposed on crude oil and

petroleum products and on certain chemicals. It was understood

at the time that while a feedstock tax was not the most equitable

assessment available to fund hazardous waste identification and

clean-up, it was the easiest to administer since it involved collec-

tion from only approximately 1,000 taxpayers instead of an esti-

mated 260,000 if the fund were financed by a tax placed on gen-

erators of hazardous waste. S. Rep. No. 848, 96th Cong., 2d.

Sess. 20 (1980).

Under Superfund’s financing scheme, the States were

required to pay only a 10% matching share of clean-up costs for

4

remedial action (unless they were responsible for the waste site).

In return for the flow of funds collected under the federal taxing

scheme to the States, the States were expressly precluded by

§114(c) of Superfund, 42 U.S.C. §9614(c), from taxing any per-

son to cover claims, costs or damages which “may be compen-

sated” under the federal Act. Section 114(c) goes on to state,

however, that “[nJothing in this section shall preclude any State

from using general revenues for such a fund, or from imposing a

tax or fee upon any person or upon any substance in order to

finance the purchase or prepositioning of hazardous substance

response equipment or other preparation for the response to a

release of hazardous substances which affects such State.”

Since the mid-1970’s, the State of New Jersey has had in

effect a Spill Compensation and Control Act. N.J.S. 58:10-23.11

et seq. (New Jersey Act). The New Jersey Act prohibits the dis-

charge of petroleum and other hazardous substances in the State

of New Jersey and, in addition, provides for the clean-up and

removal of such discharges, the establishment of a Spill Com-

pensation Fund, and the raising of revenue therefor by the levy

upon each and every operator of a major facility in New Jersey

of a barrel tax involving chemical and petroleum products.

From the inception of the New Jersey Fund until June,

1981, 93% of the revenues collected totaling $31,000,000 was

spent on claims relating to clean-up and containment of hazard-

ous substances other than petroleum. Clean-up of petroleum-

related sites constituted less than 1% of expenditures.

Since the enactment of Superfund, clean-up of petroleum-

related spills has continued to constitute less than 1% of the

expenditures from the New Jersey fund. Expenditures for equip-

ment have constituted less than 2% of the fund. Expenditures by

the State on just two sites which are listed on the Superfund

National Priority List total $12,000,000 out of $18,000,000

expended. This information is contained in discovery material

furnished by New Jersey.

Thus, the statutory provisions at issue in this case require

operators of major facilities, including plaintiffs, to contribute to

a fund, the principal purpose of which is to pay compensation of

5

claims for the costs of response or damages or claims which

“may be compensated” under the federal law.

As early as 1976, the New Jersey legislature anticipated

that the New Jersey Act would have to be incorporated into a

federal scheme of hazardous substance clean-up and contain-

ment once a national plan was formulated. The legislature,

therefore, included the following provision in the New Jersey

Act:

If the United States Congress enacts legislation providing com-

pensation for the discharge of petroleum and hazardous products,

the Commissioner shall determine to what degree that legislation

provides the needed protection for our citizens, businesses and

environment and shall make the appropriate recommendation to

the legislature for amendments to this act. N.J.S. 58:10-23.11z.

To date, New Jersey has not complied with this directive. If

it chose, New Jersey could have amended the Spill Fund to cover

only non-preempted items and adjusted the tax rate accordingly.

A complaint in this suit was initially filed by plaintiffs in

the United States District Court, which dismissed plaintiffs’ suit

based on the Tax Injunction Act, 28 U.S.C. §1341. The Third

Circuit Court of Appeals affirmed the jurisdictional decision of

the District Court on the basis that plaintiffs’ claim did not

“arise under” federal law and the United States Supreme Court

denied plaintiffs’ Petition for Certiorari. Exxon Corp. v. Hunt,

683 F.2d69 (3d Cir. 1982), cert. denied, 439 U.S. 1104 (1983).

On August 10, 1981, plaintiffs filed a complaint in the Tax

Court of New Jersey. On cross motions for summary judgment,

the Tax Court, on April 23, 1982, granted the State defendants’

motion and dismissed all but two counts of plaintiffs’ complaint.

The remaining two counts, which do not involve any question of

the constitutionality of the State statute, were severed from the

rest of the case for purposes of appeal and the decision of the

Tax Court was appealed to the Appellate Division on May 7,

1982. This appeal was consolidated with an appeal by the

plaintiffs of the regulations of the New Jersey Department of

Treasury governing expenditures under the New Jersey Act. On

6

June 22, 1983, the Appellate Division rendered an opinion

affirming the judgment of the Tax Court below with regard to

the taxing provisions of the New Jersey Act, but invalidating the

Treasury Department regulations on procedural grounds.

Plaintiffs filed a Petition for Certification with the New Jersey

Supreme Court on July 2, 1983. On September 19, 1984, the

Supreme Court of New Jersey affirmed the judgment of the Tax

and Appellate Courts.

The conclusion of the Courts below was that “(t]he Spill

Fund tax imposed on plaintiffs is not preempted by section

114(c) of Superfund insofar as Spill Fund is used to compensate

hazardous waste cleanup costs and related claims that are either

not covered or not actually paid under Superfund. The underly-

ing intent of Superfund, as well as the legislative history, man-

dates a conclusion of no preemption.” Exxon Corp. v. Hunt, 97

N.J. 526, 544 (1984). (emphasis added) The crux of these opin-

ions is an interpretation of the pivotal language “may be com-

pensated” in §114(c) of Superfund, which the Courts below con-

cluded should be read as “has been compensated.” This

rewriting substitutes the concept of actual compensation for that

of compensability. It is justified by the Courts as required to

effectuate the true legislative intent behind §114(c) and thereby

avoid New Jersey’s dire predictions and speculations as to

shortfalls in Superfund’s coverage.

During the pendency of these lawsuits, plaintiffs have con-

tinued to pay into the New Jersey Spill Fund in accordance with

its terms. From January, 1981 through June, 1982, plaintiffs

paid approximately $5,759,000 into the New Jersey Fund. The

total of payments to date is in excess of $9,000,000. Refund

claims have been filed by the plaintiffs, but they have been

denied by New Jersey unless a court ruling invalidating the Spill

Fund Tax is obtained.

Substantiality of the Questions Presented

This appeal presents a substantial question of national pub-

lic importance, involving the application of the Supremacy

7

Clause of the United States Constitution to a direct conflict

between federal and state law.

The instant case has, as its context, one of the most

significant environmental issues today, the identification and

clean-up of hazardous waste. The specific issue on appeal

involves the critical question of the funding sources of such

identification and clean-up. Plaintiffs allege that the taxing pro-

visions of the New Jersey Spill Compensation and Control Act

violate the express taxing proscriptions of §114(c) of Superfund,

thereby thwarting the objectives of Congress in enacting the

federal statute.

This court has long recognized the principle that where a

state statute is in violation of a federal statute which has

preempted the field or stands as an obstacle to the accomplish-

ment and execution of the full purposes and objectives of Con-

gress, the Supremacy Clause of the United States Constitution,

Article VI, clause 2, mandates that the State statute must fall.

Aloha Airlines, Inc. v. Director of Taxation of Hawaii, 104 S.

Ct. 291, 294 (1983); Maryland v. Louisiana, 451 U.S. 725,

746-47 (1981); Arizona Public Service Co. v. Snead, 441 U.S.

141, 146 (1979). Preemption in a field has been compelled by

the Supreme Court “whether Congress’ command is explicitly

stated in the statute’s language or implicitly contained in its

structure and purposes.” Jones v. Rath Packing Co., 430 U.S.

519, 525 (1977). Even if Congress has not foreclosed the field,

state statutes have consistently been held to be void to the extent

of actual conflict with federal statutes. Ray v. Atlantic Richfield

Co., 435 U.S. 151, 158 (1978).

In the present case, all that is required to determine that

preemption exists is to compare the federal and state statutes.

Doing so, it is obvious that the New Jersey Spill Tax, as now

constituted, directly conflicts with the express terms of §114(c)

of Superfund, since it requires the plaintiff taxpayers to contrib-

ute to a fund, the essential and principal purpose of which is,

indisputably, to pay compensation for claims and costs which

may be compensated under Superfund. It follows, therefore, that

preemption doctrine as enunicated by this Court mandates that

the State statute must fall.

8

This conclusion is not avoided by citation to case law which

directs a narrow construction of preemption language Whe |

possible. When a federal statute expressly preempts St#te felts

lation and then authorizes narrow exceptions from stich

preemption, attempts at State regulation must fall within these

authorized exceptions. Exxon Corp. v. City of New w Ore Sak

F.2d 1088, 1094 n.10 (2d Cir. 1977); Donelon v. New €i rte ”

Terminal Co., 474 F.2d 1108, 1112 (Sth Cir.), cert. den am

U.S. 855 (1973). In this instance, New Jersey is restate axle |

taxing Superfund taxpayers only for those authorized ‘exe#

tions to preemption set forth in the second sentence of §| 1 #(c)

Instead of following the long-standing preemption 4dctritte

developed by this Court, recently set forth in Aloha Airlittes, the

New Jersey courts below have ignored legal mandates std

decided this case on policy grounds, narrowing the =» of

preemption under §114(c) of Superfund into liters! Me.

existence. In so doing, the State courts violated severs! ests

lished principles of statutory construction.

A fundamental rule of statutory construction looks to the

language of the statute itself, and requires that if the statwtery

language is plain, unambiguous and uncontrolled by otler poets

of the act or other acts upon the same subject, there is he iteWay

for judicial interpretation as to legislative intent. tn stich

instance, the court need only interpret the statute acovre:

its terms. Aloha Airlines, Inc. v. Director of Taxttier

Hawaii, 104 S. Ct. 291, 294 (1983); Ernst & #

Hochfelder, 425 U.S. 185, 197 (1976); Caminetti » t'

States, 242 U.S. 470, 485 (1917); Matala v. Consolidates |

Co., 647 F.2d 427, 429-30 (4th Cir. 1971).

In §114(c) of Superfund, Congress has expressly

preempted States from imposing special taxes on a limited ais

of persons for the purpose of covering any “claims which tttsy be

compensated under” Superfund and has limited States t “wvltie

general revenues for such a fund” or to “imposing a tar or -

. to finance the purchase or prepositioning of hazardews ¥

stance response equipment” and the like. The New Jer a

Supreme Court, pursuing the principle that “there is M Se

C PS iio th ee eas

pied by “ehhe pt

0

The New fersey Supreme Court has sim fairy | refused ti

fevipéct the plain meaning of an explicit preemption

feddrh! thw. This disregard ‘for Settled priticis s wl

resolv fig preemption issties, standin 8 revies

tower court's decision

This “plein tL rute further requires that the words

Of & Statute are th te fh their ‘Ordinary trea trite untes:

different ‘use is chearh ated. Only if there is Subseatittar!

rte ete eviderice supp ing a contrary interpretation f

necessary to look bevor

I the words of the stattte itself A

ctih Tobacco Co. 'v. Patterson. 4% t) 5.63, Oa 982); Matale v

CURE bh CBal Cd. 64 1 Pa a. woes. © 197")

The Hien tity Of 81 14¢c) Uf Superfu nd is cle:

is s di rected ward a doutte taxati sede ie the saftie per

fot eer to hi which ‘are. th pg

Fress insted of “has Heed |

for the Very reason that its

peanibility. See Benitets v1

1282 (DC. Cir, 1979), L6n F Hd

F 28 438, S41 (Ce. Chats ise), eer. ee, 977

ite ‘the above, the courts betow best he “f wes seein:

‘i 5 Ws the mr tse “ in fovea either? ray Py

« bap. ¥. “Wie. 3 14 5. Tan ait 29°, Cited With Uppal Ue, 97 S.

wit 5%, is Ye Wie authority for this conclusion regarding ti

burden ©» the wirtltie indtustry

tute shati bevy Gr Collect ‘s tak

” 108 % Cs. ‘bt 297. Peal

) fae feral statite Al read ite thie

cite nt projects 7 Td avd » Guutte t)

tie em atte a fe Lehee idea that "|

i

ainbiguous ‘nature Of the Word ‘may, the opinions below retied

upon . litte of cases involving the det fegation of tritisterial power

to a pubtic offictat £. >; K raft v, ‘Board uf Fite of Distr. of

CUhinibla, 247 'P Stpip. 2b, 74-25 (D.DC. 1969), ere. eile,

386 US. O58 (1 967), Stic iM f factual ‘context is entirely absent

from the instant matter, Which iVGlves tHe die GF the Words

“hihy be.” “May ‘te ” ih the Caihiteks Of Lae), Cantidtes ‘the

possibility Cas opp honed to the actuatity) ‘Of ‘Compensation ard

dies hot reach the car insideration ot ‘ipermiissiveriess at att

EVeh tdre GbVidusly, the interpretatior Of $1 1 a¢c) Adupted

by the Courts Heldw Vidtates a Mecdtd futdamental rule Of stato

tory construction. fequiring that effect tiust be given, if possible,

| tive Gr Metitetice ‘Of a Sthttite. That ‘is, ‘a Statute

: dd ‘MO ‘that ‘Ho ‘part Of ‘ht ‘is ‘trade inoperative,

ant Or Wuperflidtis. CUluutti v. Franklin, #79 US. 979,

10> (1979). United Stites v. Pulitéri, 6% P24 1 199 (Yd

Cir ORO. dpe, héhkeld, WO US. 967 (1981), al tented sub

hidin:, Cirtello'v. United States. as) 5 OB3 (1981)

The holding of the ae w fervey Supreme Court ds td the

scope of preem pticin ‘wid cr § 1¥4¢(c) Was thar “{r [he S pill 1 Tax

itnposed Gh pinintiffs ts fot preempted by Mectiin '114(c) Uf

Super tatid insofar as Spill Puri is uied to compensate hazard:

dus Waste Cheah-tp Costs atid related claims that are either not

| rly or not ‘ae tually Phas wn en’ ogg en ex XXOn Cc orp. V

scope af preemption tinier ht ee) velit 4 to neuen | tid

preemption at afl atid, therefdre, eles the provisicn trea ning.

feds, ‘a ‘cheairhy fmnprdper resuh: i ireiieppiees That Congress

enacted $1T4(c) to prechide sately the posxibitity that a State

Would pay Gh claiths atreddy compensated by Sujpierfiitd. This

would ‘ha rdhy require a ¥pecific and express statutory provi iston

1

i of

16

Superfund is very clear as to the scope of its preemption. It

expressly does not preempt States from exercising their power to

clean up hazardous waste left unaddressed by Superfund. The

sole effect of §114(c) is to remove one specific source of revenue

to finance state clean-up activities in return for Superfund

financing. Section 114(c) leaves to States the option to finance

Superfund-eligible, but not actually compensated, expenditures

out of general revenues, bonding programs or any other means.

In fact, New Jersey has done this by authorizing a $100 million

bond issue in 1981, specifically to provide for the costs of

clean-up and removal of hazardous discharge, either not eligible

for clean-up under the New Jersey Act or for which monies

available under the New Jersey Act are insufficient. None of

this money has yet been expended, however. Instead, New Jersey

has continued to expend Spill Fund revenues on Superfund sites.

It is evident that the real thrust of the New Jersey Courts’

consideration of the preemption issue was their fear that literal

compliance with Congress’ inandate in §114(c) would jeopardize

hazardous waste clean-up in the State. As discussed above, this

is an unwarranted conclusion. It is respectfully submitted, how-

ever, that it is also irrelevant to this case. The issue as to who

should fund hazaruous waste clean-up, and in what proportions,

was debated and resolved in the Congress of the United States.

It was the final determination of Congress that the responsibility

of the petro-chemical industry in regard to hazardous waste

clean-up efforts should be limited to contributing 87.5% of the

$1.6 billion federal Fund. Additional taxation of this specific

group of taxpayers for the same purposes by any other taxing

authority was specifically prohibited by §114(c) because Con-

gress determined that it would place too much of a burden on

the industry and interfere not only with interstate commerce,

but with the country’s balance of trade.

The New Jersey Courts considered the preemption issue

only as it related to New Jersey. In enacting Superfund, Con-

gress was concerned with the financing of clean-up activity in all

50 states, and how it would affect national corporations whose

facilities would now be paying spill taxes nationwide. This

ee

17

broader perspective on the problem, and concern for its national

ramifications, must be respected and upheld, not ignored. It is

not for a state court to rewrite a statute to comport with its judg-

ment of what the court might consider a wiser course.

The New Jersey courts may well have felt that federal and

state hazardous waste clean-ups were best integrated in a way

other than as set forth in §114(c) of Superfund. However, as

recently as Aloha Airlines, the Court has rejected such reason-

ing. 104 S. Ct. at 294, n.6. It is for Congress, not the courts, to

change the scope of preemption under Superfund. If evidence is

presented in the appropriate legislative forum of the need for

double taxation, Congress, as it reviews Superfund reauthcriza-

tion this year, can remove or modify preemption. Until then,

courts must interpret and enforce the legislature’s will as writ-

ten. /d. at 16, n.10.

New Jersey is the sole forum in which a determination is

being pursued. Given the national ramifications of the New Jer-

sey Supreme Court decision on the issue of preemption, this case

should be reviewed by this Court at a full plenary hearing.

18

CONCLUSION

The decision of the New Jersey Supreme Court below

upholding the taxing provisions of the New Jersey Superior

Court and Court of Appeals should be summarily reversed on

the basis of this Court’s holding in Aloha Airlines v. Director of

Taxation or, in the alternative, this Appeal should be accorded

plenary review.

Respectfully submitted,

FARRELL, CURTIS, CARLIN &

DAVIDSON

By

John J. Carlin, Jr.

Attorneys for Appellants,

Exxon Corporation,

The BFGoodrich Company,

Union Carbide Corporation,

Monsanto Company and

Tenneco Chemicals, Inc.

Of Counsel:

Covington & Burling

Daniel M. Gribbon

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 662-6000

APPENDIX

APPENDIX A

In accordance with the requirements of Rule 28.1 of the

United States Supreme Court Rules, the following is a listing

naming the parent companies, subsidiaries and affiliates of Peti-

tioner Corporations:

EXXON CORPORATION

The subsidiaries and affiliates (except wholly owned) of

Exxon Corporation are:

Abu Dhabi Petroleum Company Limited

Abu Dhabi Company for Onshore Oil Operations

Ace Polymer Co., Ltd.

Aditivos Orinoco, C.A.

Adria- Wien Pipeline Gesellschaft mit besohrankter Haftung

Aishin Sekiyu K.K.

Aktiebolaget Svensk Petroleumadministration

Alberta Products Pipe Line Ltd.

Al-Jubail Petrochemical Company

Altona Petrochemical Company Limited

Alyeska Pipeline Service Company

Andian National Corporation, Limited

Arabian American Oil Company

Aramco Overseas Company

Aramco Services Company

A/S Futurum

A/S Hydrantanlaegget Kobenhavns Lufthaven, Kastrup

Asakawa Sekiyu K.K.

Asociacion Civil “Academy La Castellana”

Assistance Services S.A.

Atlas Supply Company

Atlas Supply Company of Canada Limited

Australian Synthetic Rubber Company Limited

Aviation Services Saudi Arabia Limited

Awaji Gas Nenryo Kabushiki Kaisha

Bangkok Aviation Fuel Services Limited

Banshu Ekika Gas K.K.

Bayerische Erdgasleitung G.m.b.H.

la

BSB Gewerkschaften Brigitta und Elwerath

Betriebafuhrunggesellschaft m.b.H.

Bel-Air Entreposage S.A.

BTAS, Inc.

Building Products of Canada Limited

Byron Creek Collieries Limited

Byron Creek Collieries (1983) Limited

Canada Wide Mines Ltd.

Carnduff Gas Limited

Castle Peak Power Company Limited

Champlain Oil Products Limited

Changi Airport Fuel Hydrant Installation Pte. Ltd.

Chuo Sekiyu Hanbai K.K.

Cia Refinadora Petrola Santo Domingo, Inc.

Colmant Cuvelier Dodge S.A.

Colmar Suriname Oil Company, Ltd.

Compagnie d’Etancheite Africaine en Cote d'Ivoire S.A.

Compania Minera Disputada de Las Condeo S.A.

Comptoir Auxiliaire du Petrole

DFTG Deutsche Flussigerdgas Terminal GmbH

Daihatsu Sekiyu K.K.

Daiichi Kouyu K.K.

Daitsu Sangyo K.K.

Delta Hope & Twine Limited

Depot Petrolier du Grosivaudan

Depots de Petrole Cotiers

Depots Petrolier de la Corse

Det Gronlandske Olieaktieselskab

Deudan-Holding GmbH

Deutsche Erdgas Transport G.m.b.H.

Deutsche Transalpine Oelleitung G.m.b.H.

Devon Estates Limited

Dixie Pipeline Company

Dodge de Mexico S.A. de C.V.

Drivmedelecentralen Aktiebolag

Dukhan Service Company

86129 Canada Ltd.

ES F Limited

Eagle Kenso K.K.

East Japan Oil Development Company, Limited

East Texas Salt Water Disposal Company

Eiko Sekiyu K.K.

Ejendomsaktieselskebet ef 12. juni 1964

Eiwerath Erdol und Erdgas AG

Emirates Oilfield Chemicals Company

Emori Sekiyu K.K.

Emsland-Erdolleitung G.m.b.H.

Erdgas-Verkaufs-Gesellschaft m.b.H.

Escuela Las Morochas, C.A.

Esso Chimie

Esso Energie G.I.E.

Esso Exploration and Production Angola Inc.

Esso Italiana S.p.A.

Esso Malaysia Berhad

Esso of Canada Limited

Esso Resources Canada Limited

Esso Societe Anonyme Francaise

Esso Standard Tunisie S. A.

European Gas & Electric Company

Exact Reisebyra A/S

Excess and Treaty Reinsurance Corporation

446259 Ontario Limited

FPE South Africa (Proprietary) Limited

F.T. Giken Kabushiki Kaisha

Federal Pacific Electric de Mexico S.A. de C.V.

Federal Pioneer Limited

Ferngas Nordbayern G.m.b.H.

Ferngas Salzgitter GmbH

Forenade Svenska Oljeimportorers AB

Forjan de Colombia, S.A.

Fuji Kogyo K.K.

Fuji Uuyu K.K.

Fukui Sekiyu K.ix.

General Busaan K.K.

General Highway K.K.

General Petrochemical Industries Limited

General Sekiyu K.K.

General Sekiyu Okinawa Hanbai K.K.

General Shipping Co. Ltd.

General Unyu Kabushiki Kaisha:

Geobutane—Lavera

Gewerkschaft Brigitta

Gewerkschaft Elwerath

Gewerkschaft Elwerath & Co. GmbH.

Gewerkschaft Erdol-Raffinerie Deurag-Nerag

Gilbarro do Brasil S.A.—Equipamentos

Goroku Sekiyu K.K.

Grande Escaille Land Company, Inc.

Groupement Immobilier Petrolier

Groupement Petrolier Aviation

Groupement Petrolier du Finistere G.1.E.

Hankyu Ferry K.K.

Hannoversche Erdolleitung G.m.b.H.

Hanshin Kyowa Sekiyu K.K.

Hayakawa Sekiyu K.K.

Heinrich Schneider Spedition GmbH

Hiroshima General Gas Juten Kabushiki Kaisha

Hoei Sekiyu K.K.

Hokuyu Sekiyu K.K.

Houston Regional Monitoring Corporation

H ydranten-Betriebsgesellschaft

H ydrierwerke Poelitz Aktiengesellschaft

Imperial Oil Limited

Imperial Pipe Line Company, Limited, The

Inada Ekka Gas Kabushiki Kaisha

Industrias Reliance S.A. de C.V.

Intecom, Inc.

Interface Mechanisms Inc.

Internationale Gas Transport Maatschappij B.V.

Interprovincial Pipe Line (Alberta) Ltd.

Interprovincial Pipe Line Limited

Interprovincial Pipe Line (NW) Ltd.

Investment Promotion Enterprises Limited

Iranian Oil Participants Limited

4a

ee

Iranian Oil Services (Holdings) Limited

Iranian Oil Services Limited

Iraq Petroleum Company, Limited

Iraq Petroleum Pensions, Limited

Japan Butyl Company Limited

Japan Coal Liquefaction Development Company, Ltd.

Jersey Nuclear-Avco Isotopes, Inc.

K.K. Aizu General

K.K. Daimaru

K.K. General Sekiyu Hanbaisho

K.K. Heian Sekiyu

K.K. Kanagawa Sekiyu Shokai

K.K. Kyoei Shoshe

K.K. Kyowa Sekiyu Service

K.K. Marugo Izumasa Shoten

K.K. Niimi Kirun

K.K. Nippatsu

K.K. Standard Sekiyu Osaka Hatsubaisho

K.K. Toko

K.K. Toresen

K.K. Uwano Sekiyu Shokai

K /S ejendomsseiskebet af 8, oktober 1965

K/S Hoje Taastrup Storcenter 11

K/S Statfjord Transport A/S & Co.

Kabushiki Kaisha Sankyo Plastics

Kai Tak Refuellers Company Limited

Kanto Kygnus Sekiyu Hambai K.K.

Karlsruhe-Stuttgart Rohrleitung Gesellschaft mbH

Kawasaki Kyguna Sekiyu Hambai Kabushiki Kaisha

Kawasaki Naiko Kabushiki Kaisha

Keihin Kygnus Kabushiki Kaisha

Keiyo Sekiyu Hanbai K.K.

Kenya Petroleum Refineries Limited

Kepco Mfg. Inc.

Kibo Sekiyu Hanbai K.K.

Kiinteisto Oy Myllynksllio

Kinwa Sekiyu K.K.

Kobe Port Service Kabushiki Kaisha

Sa

Kobe Standard Sekiyu K.K.

Kowa Sekiyu K.K.

Kowloon Electricity Supply Company Limited

Kygnus Ekka Gas Kabushiki Kaisha

Kygnus Kosan Kabushiki Kaisha

Kygnus Sekiyu K.K.

Kyushu Eagle K.K.

LFL Investments, Inc.

La Compagnie Electrique Pioneer du Quebec, Inc.

Lakehead Pipe Line C »mpany, Inc.

LEAG Aktiengesellschaft fur luzerisches Erdol

Les Dooks des Petroles d’Ambes

Les Restaurants Le Voyageur Inc.

Long Beach Oil Development Company

Magota Sekiyu K.K.

Magyar Amerikai Olajipari Reszvenytarsasag

Mainline Pipelines Limited

Makoto Sekiyu Kabushiki Kaisha

Maortgaz Ertekesito R.T.

Maple Leaf Petroleum Limited

Maquinas de Coser y Border Sigma, S.A.

Mars-Alcatel, S.A.

Marugo Gas K.K.

MEGAL FINCO

MEGAL GmbH

Meiji Sekiyu K.K.

MESBIC Financial Corporation of Houston

Mikawa Bussan K.K.

Mittelrheinische Erdgas Transport Gesellschaft mit

beschrankter Haftung

Mongeau & Robert Cie Ltee

Montreal Pipe Line Limited/Les Pipe-Lines Montreal

Limitee

Moraine Properties Ltd.

95269 Canada Limited

Nakabayashi Sekiyu K.K.

Nansei Sekiyu Kabushiki Kaisha

Native Venture Capital Co. Ltd.

6a

_ i el»

EE en

Near East Development Corporation

Neptune Bulk Terminals (Canada) Ltd.

Nichimo Kabushiki Kaisha

Nichimo Oil (Bermuda) Co., Ltd.

Nichimo Sekiyu Seisei Kabushiki Kaisha

Nikko Sangyo K.K.

Nippon Unicar K.K.

Nisku Products Pipe Line Company Limited

Nissei Sekiyu Kabushiki Kaisha

Norddeutsche Erdgas-Aufbereitungs G.m.b.H.

Norddeutsche Mineraloelwerke Stettin G.m.b.H.

Norddeutsche Oelleitungs-gesellschaft m.b.H.

Nordrheinische Erdgas Transport Gesellschaft mit

beschrankter Haftung

Nord-West Oelleitung G.m.b.H.

Northward Developments Ltd.

Northwest Company, Limited

Nottingham Gas Limited

107580 Canada Inc.

Office Prive d’Assurances et de Courtages

Offshore Medical Support Limited

Oil Field Chemicals Company (Saudi Arabia) Lid.

Oil Service Company of !ran (Private Company)

Oil Transport Company (Saudi Arabia) Limited

Oldenburgische Erdol Gesellschaft m.b.H.

Osaka Propane Gas Hambai Kabushiki Kaisha

Osaka Sekiyu Gas Yuso K.K.

P.T. Stonvac Indonesia

Pars Investment Corporation

Peninsula Electric Power Company Limited

Petrole Assistance Lyon (S.A.R.L.)

Petrole Assistance Marseille (S.A.)

Petrole Assistance Orleans (S.A.R.L.)

Petrole Assistance Paris T.R. (SA)

Petroleum Refineries (Australia) Proprietary Limited

Petroleum Services (Middle East) Limited

Petroleum Tankship Company, Inc.

Petrosvibri S.A.

7a

Pipeline Service

Pipe Line Service Company, Inc.

Pipeline Service Iran

Pipeline Service U.K.

Pipe Line Services, Inc.

Plantation Pipe Line Company

Polder-Seehafen-Harburg GmbH

Polyolefins Product Co. Pty. Ltd.

Portland Pipe Line Corporation

Potencia Industrial S.A.

Productos Lorain de Mexico S.A. de C.V.

Progas A/S

Qatar Petroleum Company Limited

Qualbank, Inc.

Raffinerie du Midi S.A.R.L.

Rainbow Pipe Company, Ltd.

Redwater Water Disposal Company Limited

Refineria Petrolera Acajutla, S.A.

Reliance Electric & Engineering Company de Mexico

S.A. de C.V.

Reliance Electric Limited

Reliance Electric Ltd.

Reliance Electric S.A. (Spain)

Renix Co. Ltd.

Renown Building Materials Limited

Rheingas Erdgasleitungs-Gesellschaft m.b.H.

Rotterdam-Antwerpen Pijpleiding (Nederland) N.V.

Ruhrgas Aktiengesellschaft

S.A. du Pipeline a Produits Petroliers sur Territoire

Genevoia (SAPPRO)

S & M Pipeline Limited

S.O.P.—Societa Oleodotti Padani S.p.A.

Saitama Sekiyu Hanbai K.K.

Sakurajima Futo K.K.

Sanko Oil Kabushiki Kaisha

Sanwa Kasei Kogyo Kabushiki Kaisha

Sanyo Sekiyu K.K.

Saraco S.A.

Sa

Schubert KG

SEAG Aktiengesellschaft fur schweizerisches Erdol

Seibu Kygnus Sekiyu Hambai Kabushiki Kaisha

Seismic Industries A/S

Senpoku Oil Service K.K.

SERAM Societa per Azioni

Servacar Ltd.

Shehtah Drilling Limited

Shimoka Skiyu Kabushiki Kaisha

Shimoyama Sekiyu K.K.

Shin-Nihon Yukagaku Kogyo K.K.

Shinohara Oil K. K.

Shizuoka Kanesho Hambai Kabushiki Kaisha

Smiley Gas Conservation Limited

Sociedad Anonima “Escuela Campo Alegre”

Sociedad de Inversiones de Aviacion

Sociedad Nacional de Oleoductos Ltda.

Societa per Azioni Raffineria Padana Olii Minerali

SARPOM

Societe Anonyme de la Raffinerie des Antilles

Societe Anonyme des Hydrocarbures

Societe Anonyme “Produits Lubrifiants de Madagascar”

PROLUMAS.A.

Societe Civile de Mustapha Algerie

Societe Civile de Participation pour la Destruction des

Dechets Industriels (SOCDI)

Societe Civile Immobiliere “Courcelles-Etoile”

Societe Civile Immobiliere de la Croix au Chene

Societe Civile Immobiliere du 195 Avenue de Neuilly

Societe Civile Immobiliere Khariesse

Societe Civile Immobiliere “Kleber-Etoile”

Societe Civile Immobiliere “Les Casseaux-Bougainville”

Societe de la Raffinerie a’ Alger

Societe de la Raffinerie de Lorraine

Societe de Manutention de Carburants Aviation

Societe de Manutention de Carburants Aviation

DakarYoff, S.A.

9a

——————————_—

Societe de Promotion et de Financement Touristique

(CARTHACO)

Societe d’Entrepoisage de San-Pedro

Societe des Pipe-Lines de Strasbourg

Societe des Transports Petroliers par Pipe Line

Societe d’Exploitation & de Development d’Operations

Commerciales

Societe du Ceoutohouc Butyl (SOCABU)

Societe du Depot Petrolier d’ Hauconcourt

Societe du Parkings du Square Boucicaut

Societe du Pipe Line de la Raffinerie de Lorraine

Societe du Pipe-Line Mediterranee-Rhone

Societe Esso de Recherches et d’Exploitation Petrolieres

Esso Rep

Societe “Geomines-Caon”

Societe Harvaise de Manutention de Produits Petroliers

Societe Hoteliere de la Petite Compagne

Societe Immobiliere Paris- Niel

Societe Industrielle de Mecanique et d’Equipement

Petrolier S.1.M.E.P. (S.A.R.L.)

Societe Italiana per |‘Oleodotto Transalpino S.p.A.

Societe [voirienne d’Operations Petrolieres S.A.

Societe Malgache de Raffinage

Societe du Pipeline Sud-Europeen

Societe Reunionnaise d’Entreposage

Socony-Standard-Vacuum Oil Company

(Petroleum Maatschappij)

Southern Natural Gas Development Pty. Ltd.

Standard Kosan Kabushiki Kaisha

Standard Service K.K.

Statfjord Transport A/S

Stockage Geologque de Gaz de Lavora

Suddeutsche Erdgas Transport Gesellschaft mit

beschrankter Haftung

Suntech Company, Ltd.

Supertex, Inc.

Svensk Petroleumlagring Tre Aktiebolag

Syncrude Canada Ltd.

10a

Synergistics Chemicals Limited

305120 Alberta Ltd.

346877 Ontario Limited

TAR-Tankanlage Rumlang AG

TBN Tanklager-Betriebsgesellchaft Nurnberg mbH

Taihei Bussan K.K.

Taiko Skiyu K.K.

Taisei Kogyo Sekiyu Hanbai K.K.

Taketsuru Yugyo K.K.

Tanaka Sekiyu Hanbai K.K.

Tankanlage A.G., Mellingen

Tanklager Altishausen A.G.

Tanklager Gesellschaft

Tanklager-Gesellschaft Tegel

Tanklager Lechelles I.S.A.

Tanklager Taegersohen AG

Yecumseh Gas Storage Limited

THUMS Long Beach Company

Thyssengas G.m.b.H.

TIBA Speditions GmbH

Tos Nenryo Kogyo Kabushiki Kaisha

Tohko Plastics Company, Limited

Tokai General Sekiyu Hanbai K.K.

Toko Sekiyu K.K.

Toledo Scale Company de Mexico S.A. de C.V.

Toledo Werk GmbH

Tonen Energy International Corp.

Tonen Maintenance K.K.

Tonen Seikyuksgaku Kabushiki Kaisha

Tonen Tanker Kabushiki Kaisha

Tonen Technology K.K.

Towa Sekiyu K.K.

Toyoshina Film Company, Ltd.

Transalpine Finance Holdings S.A.

Transalpine Oelleitung in Oesterreich

Gesellschaft m.b.H.

Trans-Arabian Pipe Line Company

Transgaz Lavera

lla

Tsurumaru Unyu K.K.

Turkish Petroleum Company, Limited

UBAG—Unterflurbetankungsanlage Flughafen Zurich

Ulupna Estates Limited

Van Salt Water Disposal Company

W.A.G. Pipeline Pty. Ltd.

W.H. Adam, Ltee, Ltd.

Wako Jushi Kabushiki Kaisha

Wako Kaesi Kabushiki Kaisha

Westdeutche Erdolleitungs—G.m.b.H.

Westgas G.m.b.H.

Williamsport Properties Limited

Winnepeg Pipe Line Company Limited

Wohnungsbaugesellschaft, Steimbke-Rodewald G.m.b.H.

Worex Distribution

Wrenford Insurance Company Ltd.

Yasaka Sekiyu, K.K.

Yellowstone Pipe Line Company

Yoshimi Gas Kabushiki Kaisha

Yusi Sekiyu K.K.

Yugan Kaisha Nishi Kobe Dosai Center

BFGOODRICH

Consolidated subsidiary companies of BFGoodrich

Company with an ownership of less than 100%:

Bil Tech of California; BFGoodrich Australia Limited;

BFGoodrich Chemical Limited; Industria Colombiana de

Llantas, S.A.; E.P.P.C Polyplastic S.A.; BFGoodrich

Chemical de Venezuela, C.A.

UNION CARBIDE CORPORATION

Union Carbide Corporation states that the United States

subsidiaries, excluding wholly owned subsidiaries, and affiliates

of Union Carbide are: ACM Services, Inc., Arizona Welding

Equipment Co., Miami Welding Supply, Inc., United States

Welding, Inc., V.B. Anderson Co. and VBA Cryogenics Corp.

|2a

The following are Union Carbide’s foreign subsidiaries

(except wholly-owned subsidiaries) and affiliates: Union

Carbide Egypt S.A.E.; Union Carbide Ghana Limited; Union

Carbide Kenya Limited; Union Carbide Nigeria Limited; Union

Carbide Sudan Limited; Union Carbide Canada Limited;

Chemos Industries Pty. Limited (Australia); Union Carbide

Australia Limited; Union Carbide India Limited; P.T. Agrocarb

Indonesia; Nippon Unicar Company Limited (Japan); Union

Showa K.K. (Japan); Sony Eveready, Inc. (Japan); Union Gas

Company Limited (Korea); Union Carbide Malaysia Sdn. Bhd.;

Union Polymers Sdn. Bhd. (Malaysia); Union Carbide New

Zealand Limited; Union Carbide Ceylon Limited (Republic of

Sri Lanka); Indugas N.V. (Belgium); Calida Gas N.V.

(Belgium); La Littorale S.A. (France); Argon, S.A. (Spain);

Unifas Kemi A.B. (Sweden); Electro Manganes Ltda (Brazil);

S.A. White Martins (Brazil): S.A. White Martins Nordeste

(Brazil); Union Carbide Mexicana, S.A. de C.V. (Mexico);

Electrode Maatskappy Van Suid Afrika (Eiendoms) Beperk

(Republic of South Africa); Tubatse Ferrochrome (Proprietary)

Limited (Republic of South Africa).

MONSANTO

Domestic and foreign subsidiaries and affiliates of

Monsanto Company with an ownership of less than 100%:

Fisher Controls International, Inc.; Fisher Controls

Limited; Monsanto (Malaysia) Sdn. Berhad (Monaysia);

Nippon Fisher Company, Ltd.; Revertex Industries (N.Z.)

Ltd. ACM Services, Inc.; Agerquim, S.A. de C.V.;

Australian Fluorine Chemicals Pty. Limited (A.F.C.);

Collagen Corporation; Companhia Brasileira de Estireno

(CBE); Daishin Kogyo K.K.; Goyana, S.A. Industrias

Brasileiras de Materias Plasticas (GOYANA); Hydrocarbon

Products Pty. Ltd. (HPPL); Industrias Resistol, S.A. (IRSA);

K.K. Astro Gelande; Kirbi Kasei K.K.; Korag Company

Limited; Mitsubishi Monsanto Chemical Company (MMK);

Nippon Cooper Kabushiki Kaisha; Plagon S.A.—Plasticos

Goyana Do Nordeste (PLAGON); Plax Canada Limited

l3a

ee Oe ae

{now 102975 Canada Limited]; Polyamide Intermediates

Limited; Resimor Sinteticos do Nordeste S.A. (RESINOR);

Rezinex Australia Limited; Ryonichi Nohken K.K.; Sankyo

Kasei Sangyo K.K.; Soperton Gum Market, Inc.; Taiyo

Kouyo Kabushiki Kaisha.

TENNECO

Tenneco Chemicals, Inc.’s name has been changed to

Tenneco Resins, Inc. Tenneco Resins, Inc. is owned 100% by

Tenneco Polymers, Inc., which is owned 100% by Tenneco

Corporation, which is owned 100% by Tenneco Inc. which is

the ultimate holding company. All of these companies are

Delaware corporations. Tenneco Resins, Inc. has no

subsidiaries. It does, however, have two affiliate companies,

i.e., those which are also owned 100% by Tenneco Polymers,

Inc. These are Heyden Newport Chemical Corporation (a

Delaware corporation) and Tenneco Eastern Realty, Inc. (a

New Jersey corporation).

l4a

~~ ep@eamuse ea»

Aaa Any Po st

SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. v. Hunt 97 NJ.

Cite as, 97 N.J. 526

EXXON CORPORATION, THE BF GOODRICH COM-

PANY, UNION CARBIDE CORPORATION,

MONSANTO COMPANY, AND TENNECO CHEM-

ICALS, INC., PLAINTIFFS-APPELLANTS, v. ROB-

ERT HUNT, ADMINISTRATOR OF NEW JERSEY

SPILL COMPENSATION FUND, CLIFFORD A.

GOLDMAN, TREASURER OF THE STATE OF NEW

JERSEY, SIDNEY GLASER, DIRECTOR OF THE

DIVISION OF TAXATION, AND THE STATE OF

NEW JERSEY, DEFENDANTS-RESPONDENTS.

EXXON CORPORATION, THE BF GOODRICH COM-

PANY, UNION CARBIDE CORPORATION,

MONSANTO COMPANY, AND TENNECO CHEM-

ICALS, INC., PLAINTIFFS-APPELLANTS, v. ROB-

ERT HUNT, ADMINISTRATOR OF NEW JERSEY

SPILL COMPENSATION FUND, CLIFFORD A.

GOLDMAN, TREASURER OF THE STATE OF NEW

JERSEY, SIDNEY GLASER, DIRECTOR OF THE

DIVISION OF TAXATION, JERRY F. ENGLISH,

COMMISSIONER OF ENVIRONMENTAL PROTEC-

TION, AND THE STATE OF NEW JERSEY,

DEFENDANTS-RESPONDENTS.

Argued January 23, 1984—Decided September 19, 1984

SYNOPSIS

Appeals were taken challenging declaratory judgment of

the Tax Court, 4 N.J.Tax 294, determining the extent to which

taxing provisions of the New Jersey Spill Fund and Compensa-

tion Act are preempted by federal law and the validity of certain

regulations promulgated by the state treasurer under the Spill

Fund Act. The Superior Court, Appellate Division, Antell,

lSa

SUPREME COURT OF NEW JERSEY, 1984.

97 NJ Exxon Corp. v. Hunt

Cite as, 97 N.J. 526

J.A.D., 190 N.J.Super. 131, 462 A.2d 193, affirmed, and

certification wasBranted. The Supreme Court, Clifford, J., held

that tax instituted by the state to establish Spill Fund is not

preempted by tax imposed by federal government to create

Superfund insofar as Spill Fund is used to compensate hazard-

ous waste cleanup costs and related claims that are either not

covered or not actually paid under the Superfund.

Affirmed.

1. States €=4.10

An allegation of preemption must be analyzed with

reference to whether federal statute expressly or by necessary

implication indicates exclusivity, whether federal scheme is so

pervasive that it precludes coexistence of state regulation, and

whether state program stands as an obstacle to accomplishment

and execution of full purposes and objectives of Congress.

2. Statutes 223.1

Courts faced with potentially conflicting state and federal

statutes must attempt to harmonize them whenever possible.

3. Statutes 223.1

In determining proper construction of allegedly conflicting

statutes, courts must perform essentially a two-step process of

first ascertaining construction of the two statutes and then deter-

mining constitutional question whether they are in conflict.

4. Statutes 217.4

Reference to legislative history is approfriate not only

where statutory language is ambiguous but also where literal

interpretation would thwart overall statutory scheme.

l6a

SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. v. Hunt 97 NJ.

Cite as, 97 N.J. 526

5. States 4.10

The tax instituted by the State of New Jersey to establish a

Spill Fund to cover costs of environmental cleanup is not

preempted by the tax imposed by the federal government to cre-

ate the Superfund insofar as the Spill Fund is used to compen-

sate hazardous waste cleanup costs and related claims that are

either not covered or not actually paid under the Superfund.

N.J.S.A. 58:10-23.11 to 58:10—23.11z; Comprehensive Environ-

mental Response, Compensation, and Liability Act of 1980,

§§ 101-308, 114(c), 42 U.S.C.A. §§ 9601-9657, 9614(c).

John J. Carlin, Jr., argued the cause for appellants

(Farrell, Curtis, Carlin & Davidson, attorneys).

Mary C. Jacobson, Deputy Attorney General, argued the

cause for respondents (Jrwin J. Kimmelman, Attorney General

of New Jersey, attorney; Michael R. Cole, Assistant Attorney

General, of counsel).

The opinion of the Court was delivered by

CLIFFORD, J.

In this case we consider one aspect of the staggering prob-

lems associated with the release of hazardous substances into

our environment. Cleanup and removal efforts have been author-

ized by the State through the New Jersey Spill Compensation

and Control Act, N.J.S.A. 58:10-23.11 to —23.11z (Spill Fund),

and by the federal government pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act, 42

U.S.C.A. §§ 9601-9657 (Superfund). This appeal focuses on the

taxing structures established by each of the foregoing Acts.

More specifically, we address the issue of the constitutionality of

Spill Fund—that is, whether the tax imposed by the federal gov-

ernment to create Superfund effectively preempts the tax insti-

tuted by the State of New Jersey to establish Spill Fund.

17a

SUPREME COURT OF NEW JERSEY, 1984.

97 NJ. Exxon Corp. v. Hunt

Cite as, 97 N.J. 526

Plaintiffs are five petroleum and chemical companies that

are currently paying taxes into both Spill Fund and Superfund.

After several unsuccessful attempts to have the federal courts

determine the scope of section 114(c) of Superfund, 42 U.S.C.A.

§ 9614(c) (see Exxon Corp. v. Hunt, 4 N.J.Tax 294, 299 n. 4

(1982), for a synopsis of those efforts), plaintiffs filed these con-

solidated actions challenging the constitutionality of Spill Fund

in light of section 114(c) of Superfund. '

The parties filed cross-motions for summary judgment.

Plaintiffs argued that the Spill Fund tax was preempted by sec-

tion 114(c) of Superfund, which reads:

Except as provided in this chapter, no person may be

required to contribute to any fund, the purpose of which is to pay

compensation for claims for any costs of response or damages or

claims which may be compensated under this subchapter. Noth-

ing in this section shall preclude any State from using general

revenues for such a fund, or from imposing a tax or fee upon any

person or upon any substance in order to finance the purchase or

prepositioning of hazardous substance response equipment or

other preparations for the response to a release of hazardous sub-

stances which affects such State. [42 U.S.C.A. § 9614(c) (empha-

sis added). ]

Plaintiffs maintained that the principal purpose of the state tax

was to compensate hazardous-waste sites that might ultimately

be compensated by Superfund, thereby contravening the above-

emphasized language of section 114(c) of Superfund.

Plaintiffs filed two complaints, one in the Tax Court and one in the Chan-

cery Division. Both actions asserted that the tax imposed by Spill Fund was

preempted by the provisions of Superfund. The complaints differed only in that

the Chancery Division action sought additional relief that is not at issue here.

On defendant's motion the Chancery Division action was transferred to and

consolidated with the Tax Court action.

l8a

SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. v. Hunt 97 N.J.

Cite as, 97 NJ. 526

Defendants, describing Spill Fund as a constitutionally-valid

supplement to Superfund, argued that Spill Fund was aimed at

providing compensation for those claims that were not receiving

Superfund coverage.

Judge Evers granted defendants’ motion for summary judg-

ment in the Tax Court. * 4 N./ Tax 294. Relying on the legisla-

tive history surrounding the enactment of Superfund, as well as

on the scope and purposes of both Superiund and Spill Fund,

Judge Evers concluded that the Spill lend tax was not

preempted by Superfund.

The court finds that Cone: 24 th adoption of

[Superfund], has not put an end to: cre | . of the states

for hazardous substance cleanup, conicianient and remedial pur-

poses by putting another tax in its place Rather, the court finds

that [Superfund] permits a state to continue fo avail itself of

industry tax funds with the obvious limitation that a double tax

could not be collected and expended on any one project. Such

would be the practicalities of government where both state and

nation have the same and yet separate, identifiable interests. [/d.

at 320.]

Moreover, Judge Evers alternatively held that even if Spill Fund

Tax monies could not be collected for general containment and

cleanup purposes, “the [S]pill [F]und law nevertheless encom-

passes many other areas to which such monies could be devoted

which are clearly outside the reach of § 114(c) and which may

very well be of sufficient magnitude to sustain the [S]pill [F]und

tax.” Jd. at 315. Thus, the court held that “even if § 114(c) of

[Superfund] could be construed to preempt part of [S]pill

All but two counts of plaintiffs’ consolidated complaints were dismissed. 4

N.J.Tax 294, 320 (1982). The remaining two counts were severed from the

rest of the case for purposes of appeal.

19a

SUPREME COURT OF NEW JERSEY, 1984.

97 NJ. Exxon Corp. v. Hunt

Cite as, 97 N.J. 526

[Fjund, * * * nonpreempted areas * are more than sufficient to

sustain its continued validity.” Jd. at 320 (footnote added).

On plaintiffs’ appeal the Appellate Division affirmed, “sub-

stantially for the reasons stated by Judge Evers in his written

opinion * * *.” 190 N.J.Super. 131, 132-33 (1983).* We

granted certification, 94 N.J. 607 (1983), to determine whether

“the plain language of § 114(c) of Superfund preempt(s] the

State of New Jersey from collecting taxes under the taxing pro-

vision of the [Spill Fund] as presently enacted”, and now affirm.

Spill Fund was enacted in 1977, L.1976, c. 141, with the

expressed legislative intent to

The areas that Judge Evers found to be “non-preempted,” and therefore

eligible for Spill Fund compensation, included the following: the purchase and

prepositioning of hazardous-response equipment; the cleanup of petroleum and

crude oil spills; payment of third-party damage claims; and the Superfund pro-

vision that a state contribute ten percent or more of the costs of remedial

action, including future maintenance, in order to qualify for federal funding

(42 U.S.C.A. § 9604(c)(3)). 4 N.J. Tax at 316-17.

‘ During the time between the oral argument before Judge Evers and the

rendering of his decision, the New Jersey Department of the Treasury pub-

lished proposed regulations governing expenditures under Spill Fund. Plaintiffs

submitted timely comments to these proposed regulations, but due to an error

within the Department of the Treasury those comments were deemed to be

“untimely and need not be considered.” The regulations were thereafter

adopted. Plaintiffs challeged the validity of the regulations by appeal to the

Appellate Division. That appeal was subsequently consolidated with the appeal

of Judge Evers’ decision; and although the Appellate Division concluded that

the Department of the Treasury had failed to comply with the Administrative

Procedure Act and that the regulations were invalid and without force and

effect, defendants have not sought review of that issue by the Court. We

therefore restrict our attention to the issue of preemption as considered by

Judge Evers.

20a

Ss

:

’

’

/

’

SUPREME COURT OF NEW JERSEY, i984.

Exxon Corp. v. Hunt 97 N.J.

Cite as, 97 N.J. 526

exercise the powers of this State to control the transfer and stor-

age of hazardous substances and to provide liability for damage

sustained within this State as a result of any discharge of said

substances, by requiring the prompt containment and removal of

such pollution and substances, and to provide a fund for swift and

adequate compensation to resort businesses and other persons

damaged by such discharge. [N.J.S.A. 58:10-23.11a.]

This statute provides for the establishment of “a nonlapsing,

revolving fund in the Department of the Treasury to carry out

the purposes of this act.” N.J.S.A. 58:10—23.11i. The fund’s rev-

enues are supplied by a tax “levied upon each owner or operator

of one or more major facilities® * * * to insure compensation

for cleanup costs and damages associated with any discharge of

hazardous substances * * *.” N.J.S.A. 58:10—23-11h(a)

(footnote added).

In December 1980 Superfund was enacted in response to

escalating national hazardous-waste problems. Congress pro-

vided for the establishment of a $1.6 billion fund over a five-year

period * for the cleanup and removal of pollution caused by the

release of hazardous substances into the environment. Superfund

imposes a tax to finance the federal fund, taxing chemical indus-

A “major facility” is defined by the statute as including “any refinery, stor-

age or transfer terminal, pipeline, deep water port, drilling platform or any

appurtenance related to any of the preceding that is used or is capable of being

used to refine, produce, store, handle, transfer, process or transport hazardous

substances.” N.J.S.A. 58:10-23.11b(/). It is undisputed that each plaintiff

operates a major facility. 4 N.J.Tax at 301 n. 5.

* Superfund is scheduled to expire in 1985. However, on August 10, 1984 the

House of Representatives passed H.R. 5640, “Superfund Expansion and Pro-

tection Act of 1984,” which provides for additional funding of $10.2 billion

between 1985 and 1990. The bill, authored by Rep. James Florio of New Jer-

sey, passed by a vote of 323 to 23. While the legislation must still face the

scrutiny of the Senate, and ultimately the President, it appears likely that some

form of Superfund legislation will be extended beyond 1985. See infra at

539-541 & notes 8, 9.

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SUPREME COURT OF NEW JERSEY, 1984.

97 NJ. Exxon Corp. v. Hunt

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tries to acquire 87.5% of the funds necessary for cleanup efforts

and relying on eeneral federal revenues to account for the

remaining }2.> + © (hc ‘und. 126 Cong.Reg. S14967-68 (daily

ed. Nov. 24. 1980} (statement of Sen. Stafford).

The focal point of plainuffs’ preemption argument is that

language of section | 14(c) of Superfund that excludes contribu-

tion to any fund whose purpose is to pay compensation for

claims “for any costs of response or damages or claims which

may be compensated under this subchapter.” 42 U.S.C.A.

§ 9614(c) (emphasis added). Plaintiffs maintain that through

this section of Superfund, read in conjunction with Article V1,

clause 2 of the United States Constitution’, Congress expressly

preempted New Jersey’s Spill Fund taxation scheme.

[1,2] As Judge Evers noted,

{i]t is fundamental that where a state statute conflicts with a

federal siaiute which has preempted the field and stands as an

obstacle to the accomplishment and execution of the full purposes

and objectives of Congress, the Supremacy Clause of the United

States Constitution mandates that the state statute must fail. [4

N.J.Tax at 304 |

An allegation of preemption must be analyzed with reference to

several general guidelines: “Does the federal statute expressly

or by necessary implication indicate exclusivity? * * * Is the

federal scheme so pervasive tiat it precludes coexistence of state

regulation? * * * [and] Does the state program stand ‘as an

obstacle to the accomplishment and execution of the full pur-

This clause of the United States Constitution, more commonly referred to

as the supremacy clause, provides:

This Constitution, and the Laws of the United States which shall made

in Pursuance thereof, and all Treaties made, or which shall be made,

under the Authority 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.

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SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. v. Hunt 97 N.J.

Cite as, 97 N.J. 526

poses and objectives of Congress’?”. U.S.A. Chamber of Com-

merce v. State, 89 N.J. 131, 142 (1982) (citations omitted); see

also Feldman v. Lederle Laboratories, 97 N.J. 429, 458 (1984)

(discussing question of preemption in products liability field).

However, courts faced with potentially conflicting state and

federal statutes must attempt to harmonize them whenever pos-

sible. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132,

83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Huron Cement Co. v.

Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).

‘“Pre-emption of state law by federal statute is not favored ‘in

the absence of persuasive reasons—either that the nature of the

regulated subject matter permits no other conclusion, or that

Congress has unmistakenly so ordained.” Chicago & N.W.

Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101

S.Ct. 1124, 1130, 67 L.Ed.2d 258, 264-65 (1981) (quoting

Florida Lime & Avocado Growers, supra, 373 U.S. at 142, 83

S.Ct. at 1217, 10 L.Ed.2d at 257).

[3] Thus, in determining the proper construction of alleg-

edly conflicting statutes, courts must perform “essentially a two-

step process of first ascertaining the construction of the two stat-

utes and then determining the constitutional question whether

they are in conflict.” Chicago & N.W. Transp. Co., supra, 450

U.S. at 317, 101 S.Ct. at 1130, 67 L.Ed.2d at 265 (quoting

Perez v. Campbell, 402 U.S. 637, 644, 91 S.Ct. 1704, 1708. 29

L.Ed.2d 233, 239 (1971)).

Moreover, as the Courts in Florida Lime & Avocado Grow-

ers, supra, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248,

explained, it is not a question of “whether the purposes of the

two laws are parallel or divergent,” but rather a court must

determine “whether both regulations can be enforced without

impairing the federal superintendence of the field * * *.” /d. at

142, 83 S.Cr. at 1217, 10 L.Ed.2d at 156-57 (emphasis in

original).

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SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. V. Hunt 97 N.J.

Cite as, 97 N.J. 526

Although plaintiffs argue in favor of the “plain meaning”

rule of statutory construction, see 2A Sutherland Statutory

Construction § 46.01 (C.Sands 4th ed. 1973), we conclude, as

did the Supreme Court in Jones v. Rath Packing Co., 430 US.

519, 97 S. Ct. 1305, 51 L.Ed.2d 604 (1977), that “[t]his inquiry

requires us to consider the relationship between state and federal

laws as they are interpreted and applied, not merely as they are

written.” Jd. at 526, 97 S. Ct. at 1310, 51 L.Ed.2d. at 614. The

pertinent language of section 114(c), that “no person may be

required to contribute to any fund, the purpose of which is to

pay compensation for claims for any costs of response or dam-

ages or claims which may be compensated under this

subchapter” (emphasis added), may appear to be clear /anguage

at first glance, but we can hardly conclude that it conveys a clear

and unambiguous meaning in light of the purpose and spirit of

Superfund as a whole. We are reminded of Judge Learned

Hand’s ubiquitous observation of some forty years ago:

There is no surer way to misread any document than to read it

literally * * *.

* * * As nearly as we can, we must put ourselves in the place of

those who uttered the words, and try to divine how they would

have dealt with the unforeseen situation; and although their

words are by far the most decisive evidence of what they would

have done, they are by no means final. [Guiseppi v. Walling, 144

F.2d. 608, 624 (2d. Cir. 1944) (L. Hand, Jr., concurring), affd.

sub nom. Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89

L.Ed. 921 (1945).]

As plaintiffs read “may be compensated”, the phrase impli-

cates only a permissive meaning. In other words, plaintiffs claim

that if New Jersey’s Spill Fund has as its purpose to pay com-

pensation for claims that “might conceivably be compensated”

by Superfund, then plaintiffs cannot be required to pay into Spill

Fund. Thus, plaintiffs maintain that the Court’s function is to

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SUPREME COURT OF NEW JERSEY, 1984.

97 N.J. Exxon Corp. V. Hunt

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apply the statute according to its stated terms without the aid of

legislative history or extrinsic evidence.

However, as Judge Evers pointed out, “[t]he seemingly sim-

ple, but often misused and misapplied word ‘may’ is anything

but unambiguous.” 4 N.J. Tax at 307. The standard-dictionary

definition of the word “may” ranges from “have the ability or

competence to,” Webster's Third New International Dictionary

1396 (1971), and “be in some degree likely to,” id., to “shall,

must—used esp[ecially] in deeds, contracts, and statutes,” id.,

and “shall, must—used in law where the sense, purpose, or pol-

icy requires this interpretation,” Webster’s New Collegiate Dic-

tionary 711 (1976). A legal-dictionary definition of the word

“may” states that “[r]egardless of the instrument, however,

whether constitution, statute, deed, contract or whatever, courts

not infrequently construe ‘may’ as ‘shall’ or ‘must’ to the end

that justice may not be the slave of grammar.” Black’s Law Dic-

tionary 883 (rev. Sth ed. 1979). One court discussed this

dilemma in Kraft v. Board of Educ. for D.C., 247 F.Supp. 21

(D.D.C.1965), cert. denied, 386 U.S. 958, 87 S.Ct. 1026, 18

L.Ed.2d 106 (1967):

It is well established, however, that the word “may” can be con-

strued to be “shall’’, just as the word “shall” may be construed to

mean “may”. The interpretation of those words depends upon the

context in which they are used and the intention of the legislative

body as is shown by the statute and as may be gleaned from

committee reports and similar authoritative sources. [/d. at

24-25.]

Accord Bell vy. Western Employer's Ins. Co., 173 N.J.Super. 60,

65 (App.Div.1980) (in dictum, noting that “may” and “shall”

“may be deemed interchangeable when necessary to execute the

clear intent of the Legislature”); MacNeil v. Ann Klein, 141

N.J.Super. 394, 402 (App.Div.1976) (in dictum, “the word

‘may’ should be given the meaning which conforms to the legis-

lative intent’’).

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Cite as, 97 N.J. 526

[4] Thus, plaintiffs’ reliance on any notion of a “plain

meaning” rule in this situation must fail. Moreover, as Judge

Evers stated, “[rJeference to legislative history is appropriate not

only where the statutory language is ambiguous but also where a

literal interpretation would thwart the overall statutory

scheme.” 4 N.J.Tax at 307-08 (citing International T & T

Corp. v. Generali T. & E. Corp., 518 F.2d 913, 921 (9th

Cir.1975)). We therefore direct our attention to the meaning of

section 114(c) in the context of the supportive provisions of

Superfund and the legislative background of the whole of

Superfund.

Although it may be true that many of the purposes to which

Superfund moneys are put overlap with the purposes of Spill

Fund, this fact alone does not require a conclusion of

preemption. In Florida Line & Avocado Growers, supra, 373

U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, the Court stated that

the contention that such a situation compels preemption tends to

“obscure more than aid in the solution of the problem. * * *

This Court has, on one hand, sustained state statutes having

objectives virtually identical to those of federal regulations * * *

and has, on the other hand, struck down state statutes where the

respective purposes were quite dissimilar * * *.” Jd. at 141-42,

83 S.Ct. at 1217, 10 L.Ed.2d at 256 (citations omitted). Hence,

it is far more useful to examine a challenge of preemption in the

light of what Congress intended the relationship to be between

Superfund and state statutes such as Spill Fund.

Whereas plaintiffs contend that the language used in sec-

tion 114(c) of Superfund demonstrates an intent on the part of

Congress to repose in the federal government exclusively the

power to maintain a fund for the cleanup and removal of hazard-

ous substances, it is clear from the surrounding provisions of

Superfund and its legislative history that Congress actually envi-

sioned a cooperative arrangement between the federal and state

26a

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Cite as, 97 N.J. 526

governments. Superfund recognizes its limits and in fact pro-

vides for active state financial and technical cooperation in

hazardous-waste cleanup activities. See, e.g., 42 U.S.C.A.

§ 9604(c)(2) (requires consultation by President with affected

states prior to determination of any appropriate remedial

action); 42 U.S.C.A. § 9604(c)(3) (mandates a minimum level

of state financial and technical (contract or cooperative agree-

ment) participation as a prerequisite to receiving federal cleanup

funds); 42 U.S.C.A. § 9604(d)(1) (encourages states with the

capability to carry out cleanup actions to do so with reimburse-

ment from Superfund); 42 U.S.C.A. § 9605(4) (requires adop-

tion of National Contingency Plan setting forth, among other

things, “appropriate roles and responsibilities for the Federal,

State, and local government * * * in effectuating the plan”); and

42 U.S.C.A. § 9614(a) (“Nothing in this chapter shall be con-

strued or interpreted as preempting any State from imposing

any additional liability or requirements with respect to the

release of hazardous substance within such State.”) These provi-

sions exemplify the intended interdependence between

Superfund and state programs.

Courts frequently refer to events occurring immediately

prior to the time of enactment as an extrinsic aid in fathoming

legislative intent. See 2A Sutherland Statutory Construction,

supra, at § 48.04. Of persuasive significance, therefore, is the

colloquy between Senator Bradley of New Jersey and Senator

Randolph of West Virginia that preceded the enactment of

Superfund. Because Senator Randolph was the chairman of the

Committee on Environment and Public Works, which reported

the Superfund bill to the Senate, as well as floor manager and

cosponsor of the measure, his explanations and comments with

respect to the interpretation of Superfund provisions deserve

particular deference. See 126 Cong.Rec. $14941—15008 (daily

ed. Nov. 24, 1980); see also F.E.A. v. Algonquin SNG, Inc., 426

U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49, 60 (1976)

27a

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Cite as, 97 N.J. 526

(relying on Senate floor debates for support in statutory con-

struction, the Court pointed out that “as a statement of one of

the legislation’s sponsors, this explanation deserves to be

accorded substantial weight in interpreting the statute”);

Brennan v. Corning Glass Works, 480 F.2d 1254, 1260 (3d

Cir.1973) (recognizing that “a sponsor’s views are entitled to

great weight”); 2A Sutherland Statutory Construction, supra,

at § 48.15 (noting “reality of legislative practice” that legislators

look to sponsors as sources of information corcerning a bill’s pur-

pose, meaning, and intended effect).

Senator Bradley set the tenor of his dialogue with Senator

Randolph by expressing the following concerns and identifying

the issves that their comments would attempt to clarify:

New Jersey and several of the other States with successful

State spill funds (including Michigan, Florida, California,

Maryland, and New York) have on repeated occasions expressed

grave concerns that the preemption language contained in this bill

may work to slow down governmental response to spills of oils and

hazardous wastes by creating questions as to the availability of

State and [/]or Federal funds to provide operating, up front dol-

lars to finance emergency cleanup and containment actions. |

understand the concern debated over the years in conjunction

with superfund that industry not be forced to suffer a double tax

for the same functions carried out by different levels of

government.

Mr. President, in order to clarify the remaining questions

concerning allowable State activity under this bill’s preemption

language, | wonder if the Senator [Randolph] from West

Virginia would consent to a few questions on this issue? [126

Cong. Rec. S$14981 (daily ed. Nov. 24, 1980).]

The colloquy that followed these introductory remarks leaves lit-

tle doubt that section 114(c) was not intended as a total

preemption of state involvement in hazardous-waste cleanup

28a

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97 N.J. Exxon Corp. V. Hunt

Cite as, 97 N.J. 526

efforts. First, the remarks of Senator Randolph lend strong sup-

port to that conclusion:

{[Mr. BRADLEY.] Am I correct in understanding that it is the

purpose of this legislation to prohibit States from requiring any

person to contribute to a fund for the purpose of reimbursing

claims already provided for in this legislation?

Mr. RANDOLPH. Yes, that is the clear intent. The purpose is

to prohibit States from creating duplicate funds to pay damage

compensable under this bill.

Mr. BRADLEY. However, there is no such preemption of a

State’s ability to collect such taxes or fees for other costs associa-

ted with releases that are not compensable damages as defined in

this legislation.

Mr. RANDOLPH. The Senator is correct. [/d.]

Should any doubt remain, the following excerpts establish that

the interrelationship between Superfund and state cleanup funds

allows for state funds to fill in the gaps left by Superfund:

Mr. RANDOLPH. * * * What this bill does is prohibit a State

from requiring any person to contribute to any fund if the purpose

of that fund is to compensate for a claim paid for under the provi-

sions of this bill.

* * * * * * * *

Putting it simply, this is a prohibition against double taxation

for the same purposes. It is not a prohibition on the uses that a

State may make of its money, nor does it prohibit a State from

imposing fees or taxes for other purposes connected with cleanup

or restoration activities such as the purchase of pollution abate-

ment equipment or the hiring or training of personnel for pollu-

tion prevention programs.

In summary, Mr. President, this preemption provision is nar-

row in scope and limited to the particular purpose of preventing

double taxation.

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SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. V. Hunt 97 N.J.

Cite as, 97 N.J. 526

Mr. BRADLEY. Am I correct in assuming that moneys

expended by State funds can be used to provide the requircu

10 percent State match?

Mr. RANDOLPH. That is correct.

Mr. BRADLEY. And am | also correct in noting that State

funds are preempted only for efforts which are in fact paid for by

the Federal fund and that there would be no preemption for

efforts which are eligible for Federal funds but for which there is

no reimbursement?

Mr. RANDOLPH. That is correct.

Mr. BRADLEY. Finally, if the Federal Government deter-

mines that the needs at other sites require that Federal efforts be

terminated at the first site before that site is completed, may a

State fund complete the effort?

Mr. RANDOLPH. This legislation would permit that to hap-

pen. [/d.]

As the Tax Court noted, “[t]he Randolph interpretation, which

would enable states to tax for remedial actions not actually com-

pensated under super fund, comports with a prohibition against

double taxation in that states are still prevented from taxing to

pay for cleanups actually financed by the Federal Government.”

4 N.J.Tax at 310.

This conclusion, that Superfund preempts state taxation

only when the state fund thereby created is used to compensate

cleanup activities already compensated by Superfund, finds sup-

port also in the recent comments of the House of Representa-

tives Committee on Energy and Commerce. * In its Report dated

In this connection we are reminded that “while the views of subsequent

Congresses cannot override the unmistakable intent of the enacting

one, * * * such views are entitled to significant weight * * * and particularly so

when the precise intent of the enacting Congress is obscure.” Seatrain Ship-

building Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63

L.Ed2d 36, 54 (1980) (citations omitted); accord Bell v. New Jersey &

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97 N.J. Exxon Corp. V. Hunt

Cite as, 97 N.J. 526

July 16, 1984, the Committee on Energy and Commerce, to

which H.R. 5640 (“Superfund Expansion and Protection Act of

1984”) was referred, addressed Superfund’s relationship to other

law and, in particular, the pending bill’s repeal of Superfund’s

preemption provision:

The section repeals the provision of current law which

preempts state taxing authority in certain circumstances. The

Committee is aware that the current law’s preemption of state

taxing authority has been interpreted by some to constitute a total

elimination of state authority in this area. The Committee

believes that the proper interpretation of current law is that its

preemption provision was intended only to preclude states from

imposing taxes or otherwise requiring contributions to funds

which would pay costs or damages that would be actually com-

pensated by Superfund. To avoid any possible misinterpretation

of the law which could further restrict the states’ efforts to raise

the funds necessary to meet their matching share obligations

under the program, the legislation repeals the current law’s

Pennsylvania, 461 U.S. 773,—-, 103 S.Ct. 2187, 2194, 76 L.Ed.2d 312, 323,

(1983) (“[T]he view of a later Congress does not establish definitively the

meaning of an earlier enactment, but it does have persuasive value.”) Edwards

v. Mayor and Council of Moonachie, 3 N.J. 17, 24 (1949) (“[WyJhile entitled

to due consideration, the subsequent legislative construction of a statute is not

conclusive of the significance of the prior act.”). Bur cf. Garden State Farms,

Inc. v. Bay, 77 N.J. 439, 453 (1978) (“We believe that ** * * caution must be

exercised in using the action of the legislature on proposed amendments as an

interpretative aid’ in discerning legislative intent. 2A Sutherland, Statutory

Construction, § 48.18 at 225 (Sands ed. 1973).”).

On May 10, 1984, H.R. 5640 was referred jointly to the Committees

on Energy and Commerce and Public Works and Transportation for a

period ending not later than July 24, 1984, as well as to the Committee on

Ways and Means. On August 10, 1984 the House of Representatives

passed H.R. 5640. See supra note 6, at 531-532. Thus, although we real-

ize that this legislation is pending senatorial and presidential approval, we

find that the relevancy of the statements contained in the Committee

report should not be overlooked.

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Cite as, 97 N.J. 526

preemption provision in its entirety. ° [H.R.Rep.No. 890, Part |,

98th Cong., 2d Sess. 58-59 (1984) (footnote and emphasis

added).]

Thus, not only does the colloquy between Senators Bradley and

Randolph support the conclusion that total preemption was not

intended, but Congress itself is now trying to clarify what it

views as a misinterpretation of the enacting Congress’ intent.

We note too that when enacted, Superfund was recognized

by various members of Congress as providing for an insufficient

funding level to tackle the cleanup and removal of hazardous-

waste sites that existed at that time. See 4 N.J.Tax at 312-13.

See generally 126 Cong.Rec. $15007 (daily ed. Nov. 24, 1980)

(remarks of Sen. Stafford); S.Rep.No. 848, 96th Cong., 2d Sess.

17, 71 (1980); H.R.Rep.No. 1016, 96th Cong., 2d Sess. 20

(1980), reprinted in 1980 U.S. Code Cong. & Ad. News 6119,

6123. This feature—the inadequacy of Superfund to meet

cleanup needs—empahsizes Congress’ probable intent to allow

states to continue their own efforts to assist in cleanup activities.

Another source of interpretive information is the comments

made by the federal administrative agency charged with the

authority to implement the statute in question. “It is a

fundamental maxim that the opinion as to the construction of a

regulatory statute of the expert administrative agency charged

with the enforcement of that statute is entitled to great weight

and is a ‘substantial factor to be considered in construing the

statute.’ New Jersey Guild of Hearing Aid Dispensers v. Long,

75 N.J. 544, 575 (1978) (citing Youakim v. Miller, 425 U.S.

* If enacted, section 118 of the legislation would amend section 114(c) of

Superfund to read as follows:

(c) Notwithstanding any provision of this or any other law, a State

may require any person to contribute to any fund the purpose of which is

to pay compensation for claims for any costs of response or damages

which may be compensated under this Act. [H.R.Rep.No. 890, Part 1,

98th Cong., 2d Sess. 12 (1984).]

32a

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Cite as, 97 N.J. 526

231, 235, 96 S.Ct. 1399, 1402, 47 L.Ed.2d 701, 706 (1976)). In

this case that agency is the Environmental Protection Agency.

In an Executive Summary memorandum, the Administrator of

the EPA discussed the preemption issue and stated that section

114(c) of Superfund “does not apply to State funds which are

used * * * ;: * * * To compensate damage claims and to remove

or remedy releases of hazardous substances eligible to be

financed by [Superfund] but for which no federal reimburse-

ment is provided.” Office of Emergency and Remedial

Response, U.S. Environmental Protection Agency, Guidance:

Cooperative Agreements and Contracts with States Under the

Compehensive Environmental Response, Compensation and

Liability Act of 1980 (P.L. 96-510) ix-x (March 1982). This

interpretation is consistent with both the legislative history and

with the broad remedial goals of Superfund.

In San-Lan Builders, Inc. v. Baxendale, 28 NJ. 148

(1958), this Court recognized the need to look to the general

tenor of the law:

{I]n this quest for the true intention of the law, the letter gives

way to the obvious reason and spirit of the expression, and to this

end the evident policy and purpose of the act constitute an

implied limitation on the sense of general terms and a touchstone

for the expansion of narrower terms. * * * Scholastic strictness

is to be avoided in the search for the legislative intention. The

particular terms are to be made responsive to the essential princi-

ple of the law. It is not the words but the internal sense of the act

that controls. Reason is the soul of law. Wright v. Vogt, 7 N.J. |

(1951). [/d. at 155.]

Thus, as Judge Evers reasoned,

[iJf § 114(c) is read to preempt a// state taxation for hazardous

waste cleanups, the clause would undermine the salutary statu-

tory goals of [Superfund] and would result in actually limiting

the number of cleanups which could otherwise be initiated by the

33a

SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. V. Hunt 97 N.J.

Cite as, 97 N.J. 526

state in spite of the fact that [Superfund] was intended to expand

cleanup efforts. {4 N.J. Tax at 311 (emphasis added).]

In fact, the National Contingency Plan, prepared in accor-

dance with section 105 of Superfund, 42 U.S.C.A. § 9605, pro-

vides for the listing of “at least four hundred of the highest pri-

ority facilities”. 42 U.S.C.A. § 9605(8)(B). '° However, the

National Contingency Plan also recognizes the inability of

Superfund to compensate all sites and therefore requires “crite-

ria for determining priorities among releases or threatened

releases throughout the United States for the purpose of taking

remedial action * * *.” 42 U.S.C.A. § 9605(8){A). Thus, some

sites in need will not make the priority list and will therefore not

be eligible for Superfund compensation. See 40 C.F.R.

§ 300.68(a). Hence, there will no doubt be sites that are

excluded from the section 114(c) test of “may be compensated

under this subchapter.” 42 U.S.C.A. § 9614(c); see also 4 N.J.

Tax at 312 n.9 (stating that at that time only twelve of New

Jersey’s 235 sites were qualified for priority treatment). Given

the national interest in cleaning up and removing hazardous

waste from our environment, we would be hard pressed to inter-

pret the legislation as prohibiting states from supplementing the

federal movement to combat this problem. As the Tax Court

stated, “[i]t simply strains credulity to say that hazardous waste

sites or spills not meeting the [priority list] criteria are claims

which ‘may be compensated’ under [Superfund].” 4 N.J.Tax at

313.

"42 U.S.C.A. § 9605(8)(B) provides that the President shall list national pri-

orities among known or threatened releases throughout the United States and

shall revise the list “no less often than annually © In performing this function

the President “shail consider any priorities established by the States.”

34a

SUPREME COURT OF NEW JERSEY, 1984.

97 NJ. Exxon Corp. V. Hunt

Cite as, 97 N.J. 526

[5] The Tax Court emphasized that the underlying

scheme of Superfund is one that “allows, but does not require,

cooperation of the federal and state regimes.” /d. at 315. A thor-

ough understanding of this cooperative relationship leads us to

the natural conclusion that section 114(c) of Superfund does not

preempt Spill Fund in respect of funds that are used to compen-

sate hazardous-waste cleanup costs and claims not covered or

not in fact compensated by Superfund moneys. While we are

mindful of “the obvious limitation that a double tax could not be

collected and expended on any one project,” id. at 320, we have

no doubt that Congress’ enactment of Superfund was aimed at

providing a federal framework to supervise the revitalization of

our environment. Surely Congress did not intend for the states

just to sit back and wait for hazardous-waste compensation that

might never be awarded.

The more logical conclusion, based particularly on the legis-

lative history surrounding the enactment of Superfund, is that

Congress contemplated that the federal government would

attempt to deal with the problems of the most seriously affected

sites (those listed in accordance with the National Priority Plan)

and to allow states to maintain a compensation fund, or to use

general revenues should they choose, to conduct their own

cleanup efforts on those sites not receiving Superfund compensa-

tion and to provide for their cooperative program components

including their 10% share of cleanup costs, related acministra-

tive costs for equipment and personnel, and other program

features not covered by Superfund such as containment and

indemnity.

35a

SUPREME COURT OF NEW JERSEY, 1984.

Exxon Corp. V. Hunt 97 N.J.

Cite as, 97 N.J. 526

We therefore hold that the Spill Fund tax imposed on

plaintiffs is not preempted by section 114(c) of Superfund

insofar as Spill Fund is used to compensate hazardous-waste

cleanup costs and related claims that are either not covered or

not actually paid under Superfund. The underlying intent of

Superfund, as well as the legislative history, mandates a conclu-

sion of no preemption.

Affirmed.

For affirmance—Chief Justice WILENTZ, Justices CLIF-

FORD, SCHREIBER, HANDLER and POLLOCK, and

Judge FRITZ—S.

For reversal—None.

36a

ain ————— =

A es Ay AT I Nip le ae

APPELLATE DIVISION.

190 N.J. Super. Exxon Corp. V. Hunt

Cite as, 190 N.J. Super. 131

EXXON CORPORATION, ET AL., PLAINTIFFS-

APPELLANTS, v. ROBERT HUNT, ADMINISTRATOR

OF N.J. SPILL COMPENSATION FUND, ET AL.,

DEFENDANTS-RESPONDENTS.

and

EXXON CORPORATION, ET AL., PLAINTIFFS-

APPELLANTS, v. ROBERT HUNT, ADMINISTRATOR

OF N.J. SPILL COMPENSATION FUND, ET AL.,

DEFENDANTS-RESPONDENTS.

EXXON CORPORATION, ET AL., APPELLANTS, v.

KENNETH R. BIEDERMAN, TREASURER OF THE

STATE OF N.J., AND THE N.J. DEPARTMENT OF THE

TREASURY, RESPONDENTS.

Superior Court of New Jersey

Appellate Division

Argued May 17, 1983—Decided June 22, 1983.

SYNOPSIS

Appeals were taken challenging a declaratory judgment of

the Tax Court, 4 N.J. Tax 294, determining the extent to which

the taxing provisions of the New Jersey Spill Fund and Compen-

sation Act are preempted by federal law and the validity of cer-

tain regulations promulgated by the State Treasurer under the

Spill Fund Act. The Superior Court, Appellate Division, Antell,

J.A.D., held that failure to comply with clearly stated require-

ments of Administrative Procedure Act rendered regulations

promulgated by the State Treasurer invalid.

37a

APPELLATE DIVISION.

Exxon Corp. V. Hunt 190 N.J. Super.

Cite as, 190 N.J. Super. 131

Affirmed.

Matthews, P.J.A.D., filed a concurring opinion.

1. Health and Environment @= 25.7(23)

Adoption of regulations governing expenditures under New

Jersey Spill Fund and Compensation Act, after erroneously

treating plaintiffs’ hand-delivered written comments as

untimely, did not comply with Administrative Procedure Act

and thus regulations were invalid, despite Department of Treas-

ury’s contention that it had “become familiar” with plaintiffs’

position before proposing regulations. N.J.S.A. 52:14B—1 et seq.,

52:14B—4(a)(1), (d), 58:10—23.11t.

2. Administrative Law and Procedure @= 395

Substantial compliance with Administrative Procedure Act

cannot be found where prescribed system of notice and written

comments has been sidestepped. N.J.S.A. 52:14B-—1 et seq.

Before Judges MATTHEWS, ANTELL and FRANCIS.

John J. Carlin, Jr., argued the cause for appellants,

(Farrell, Curtis, Carlin & Davidson, attorneys; John J. Carlin

and Lisa J. Pollack on the brief).

Mary C. Jacobson, Deputy Attorney General, argued the

cause for respondents (/rwin I. Kimmelman, Attorney General

of New Jersey, attorney; Michael R. Cole, Assistant Attorney

General, of counsel and Mary C. Jacobson on the brief).

The majority opinion of the court was delivered by

ANTELL, J.A.D.

38a

APPELLATE DIVISION.

190 N.J. Super. Exxon Corp. V. Hunt

Cite as, 190 N.J. Super. 131

These are consolidated appeals challenging (1) a declara-

tory judgment of the Tax Court determining the extent to which

the taxing provisions of the New Jersey Spill Fund and Compen-

sation Act, N.J.S.A. 58:10-23.11h are preempted by section

114(c) ' of the Federal Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (Superfund), 42

U.S.C.A. § 9601 et seq. and (2) the validity of certain regula-

tions promulgated by the State Treasurer under the Spill Fund

Act. We affirm the judgment of the Tax Court substantially for

the reasons stated by Judge Evers in his written opinion pub-

lished at 4 N.J. Tax 294 (Tax Ct. 1982).

Pursuant to N.J.S.A. 58:10—23.11t the State Treasurer and

the spill fund director are authorized to adopt such rules and

regulations pursuant to the Administrative Procedure Act as

they may deem necessary to accomplish their purposes and

responsibilities under the Spill Fund Act. WN.J.S.A.

52:14B—4(2)(1) of the Administrative Procedure Act requires

the agency to give 30 days public notice prior to the adoption,

amendment or repeal of any rule. Subsection (3) requires the

agency to

Afford all interested persons reasonable opportunity to submit

data, views, or arguments, orally or in writing. The agency shall

consider fully all written and oral submissions respecting the pro-

posed rule.

{1} On January 4, 1982 the Department of Treasury pub-

lished its proposed regulations governing expenditures under the

Act in the New Jersey Register, 14 N.J.R. 36, inviting interested

parties to submit their comments on or before February 13,

1982. Plaintiffs hand delivered their written comments on Feb-

ruary 11, 1982, but the department erroneously determined that

they were “untimely and need not be considered,” and on March

' 42U.S.C.A. § 9614(c)

39a

APPELLATE DIVISION.

Exxon Corp. V. Hunt 190 N.J. Super.

Cite as, 190 N.J. Super. 131

15, 1982 published a Notice of Adoption of the Regulations in

the New Jersey Register, 14 N.J.R. 285. On March 29, 1982

plaintiffs submitted their written request that the department

correct its error by rescinding its regulations and re-proposing

them with provision for a “meaningful comment period.” Their

request was denied by letter from the Assistant State Treasurer

dated April 7, 1982.

The State’s position with respect to this issue is that the

omission was only “a technical error which does not justify the

invalidation of the regulations.” It points out that although

plaintiffs’ comments were treated as untimely received for pur-

poses of entitlement to consideration before adoption of the reg-

ulations the Department had nevertheless “hecome familiar”

with plaintiffs’ position before proposing the regulations.

Relying upon N.J.S.A. 52:14B—4(d), it maintains that the valid-

ity of the regulations should be sustained on the basis of its “sub-

stantial compliance” with the provisions of the Administrative

Procedure Act.

[2] The explanations offered by the State fail to justify its

non-compliance with the clearly stated requirements of the

Administrative Procedure Act. Although its disregard of the Act

is not as complete as that considered in Glaser v. Downes, 126

N.J. Super. 10 (App. Div. 1973), certif. den. 64 N.J. 573

(1974), the denial of due process of law resulting to plaintiffs is

no less. Substantial compliance with the Administrative Proce-

dure Act cannot be found where the prescribed system of notice

and written comments, called “the mainstay of modern rulemak-

ing procedure,” Davis, Administrative Law of the Seventies, at

169 (1976), has been sidestepped.

We conclude that the regulations under review adopted by

notice published March 15, 1982 are invalid and without force

and effect.

40a

APPELLATE DIVISION.

190 N.J. Super. Exxon Corp. V. Hunt

Cite as, 190 N.J. Super. 131

MATTHEWS, P.J.A.D. (concurring).

I agree with the conclusion reached by Judge Evers in the

Tax Court which we now affirm. I also agree that plaintiffs were

denied due process of law in the rule-making process. I am con-

strained to file this concurring opinion, however, because there

appears to be a general assumption in the majority opinion that

the Congress could preempt New Jersey’s taxation provision if it

so intended. I think that such an assumption is erroneous.

The Supremacy Clause of the United States Constitution

provides in pertinent part:

This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof . . . shall be the supreme Law of the

Land....[{U.S. Const., Art. VI, cl. 2]

I question whether a statute passed by Congress which denies to

the states the right to tax for the purposes of the Spill Fund is

“made in Pursuance” of the Constitution. A state may not tax

imports or exports, federal property, or interstate commerce

discriminatorily, or in any fashion that could obstruct a legiti-

mate exercise of Congressional power. Beyond those limitations,

the states have broad powers to structure revenue raising taxes

as they see fit. As Judge Evers found, “plaintiffs neither raised

nor attempted to support any argument that the taxing provi-

sions of spill fund were violative of any other constitutional

rights.” 4 N.J. Tax at 316. He also noted that “plaintiffs do not

\ggest that there is an actual conflict between the limited pur-

poses of super fund and the overall policy enunciated by New

Jersey in spill fund.” /d. Plaintiffs do not contest these state-

ments on appeal. Thus, the underlying premise of both plaintiffs’

argument here and of Judge Evers’ opinion is that if Congress

implicitly or explicitly intended to preclude the states from

taxing for any purpose which is otherwise constitutional it has

the power to do so under the Supremacy Clause.

4la

APPELLATE DIVISION.

Exxon Corp. V. Hunt 190 N.J. Super.

Cite as, 190 N.J. Super. 131

The most basic premise of our constitutional form of gov-

ernment is that in the Constitution the sovereign states relin-

quished certain of their sovereign powers to the federal govern-

ment for its exclusive exercise. See Goldstein v. California, 412

U.S. 546, 552, 93 S. Ct. 2303, 2307, 37 L.Ed.2d 163, reh. den.

414 U.S. 883, 94 S.Ct. 27, 38 L.Ed.2d 131 (1973). “But... the

State governments would clearly retain all the rights of sover-

eignty which they before had, and which were not, by that act,

exclusively delegated to the United States.” Jd. 412 U.S. at

552-553, 93 S.Ct. at 2308, quoting from Number 32 of The

Federalist by Alexander Hamilton (emphasis in original).'

Hamilton went on to specify the three instances when state sov-

ereignty would be deemed alienated: “. . . where the Constitution

in express terms granted an exclusive authority to the Union;

where it granted in one instance an authority to the Union, and

in another prohibited the States from exercising the like author-

ity, and where it granted an authority to the Union, to which a

similar authority in the States would be absolutely and totally

contradictory and repugnant.” Id.; emphasis in original.

' E.g., the first paragraph of The Federalist 32 reads:

Although | am of opinion that there would be no real danger of the

consequences which seem to be apprehended to the State governments

from a power in the Union to control them in the levies of money, because

| am persuaded that the sense of the people, the extreme hazard of provok-

ing the resentments of the State governments, and a conviction of the util-

ity and necessity of local administrations for local purposes, would be a

complete barrier against the oppressive use of such a power; yet | am will-

ing here to allow, in its full extent, the justness of the reasoning which

requires that the individual States should possess an independent and

uncontrollable authority to raise their own revenues for the supply by their

own wants. And making this concession, | affirm that (with the sole

exception of duties on imports and exports) they would, under the plan of

the convention, retain that authority in the most absolute and unqualified

sense; and that an attempt on the part of the national government to

abridge them in the exercise of it, would be a violent assumption of power,

unwarranted by any article or clause of its Constitution.

42a

APPELLATE DIVISION.

190 N.J. Super. Exxon Corp. V. Hunt

Cite as, 190 N.J. Super. 131

As in Jones v. Rath Packing Co., 430 U.S. 519, 524-525,

97 S.Ct. 1305, 1309, 51 L.Ed.2d 604, reh. den. 431 U.S. 925, 97

S.Ct. 2201, 53 L.Ed.2d 240 (1977), this case “contains no claim

that the Constitution alone denies [New Jersey] power to enact

the challenged provisions.” In fact “the breadth of concurrent

taxing powers of state and nation” have long been recognized.

Hines v. Davidowitz, 312 U.S. 52, 68, n. 21, 61 S.Ct. 399, 404,

n. 21, 85 L.Ed. 581 (1940), citing No. 32, The Federalist. Over

one hundred years ago the Court found “nothing in the Consti-

tution which contemplates or authorizes any direct abridgement

of [the concurrent powers to tax] by national legislation.” Lane

County v. Oregon, 7 Wall. 71, 74 U.S. 71, 77, 19 L.Ed. 101, 105

(1868). “The extent to which [a State’s power to tax] shall be

exercised, the subjects upon which it shall be exercised, and the

mode in which it shall be exercised, are all equally within the

discretion of the Legislatures to which the States commit the

exercise of the power.” Jd. The only limits to a State’s power to

tax outside of those explicitly stated in the Constitution is that a

tax “must not be used as to burden or embarrass the operations

of the National Government.” /d.

The idea that a state has “the freedom of a sovereign both

as to objects and methods” of taxation has been frequently

repeated. Shaffer v. Carter, 252 U.S. 37, 51-52, 40 S.Ct. 221,

225, 64 L.Ed. 445 (1919), quoting Michigan C.R. Co. v. Powers,

201 U.S. 245, 292, 26 S.Ct. 459, 462, 50 L.Fd. 744 (1906). This

freedom extends without interference “even if the effect... is

akin to double taxation . . . since it is settled that nothing in [the

Federal Constitution] or in the 14th [sic] Amendment prevents

the states from imposing double taxation.” 252 U.S. at 58, 40

S.Ct. at 227. As long as there is “some adequate or reasonable

basis” for the taxation classifications double taxation is not

forbidden. Swiss Oil Corp. v. Shanks, 273 U.S. 407, 413, 47

S.Ct. 393, 395, 71 L.Ed. 709 (1926).

43a

APPELLATE DIVISION.

Exxon Corp. V. Hunt 190 N.J. Super.

Cite as, 190 N.J. Super. 131

Close federal supervision of states’ taxing power would be

“intolerable” and “hostile to the basic principles of our Govern-

ment... .” Allied Stores of Ohio v. Bowers, 358 U.S. 522, 527,

79 S.Ct. 437,441,3 L.Ed.2d 480 (1959), quoting Ohio Oil Co. v.

Conway, 281 U.S. 146, 159, 50 S.Ct. 310, 314, 74 L.Ed. 775

(1929). Some limits to a state’s power to tax are found in the

Equal Protection Clause, but “that clause imposes no iron rule

of equality,” 358 U.S. at 526, 79 S.Ct. at 440. The tax must

have a rational basis and may not be “palpably arbitrary.” Id. at

527, 79 S.Ct. at 441. It is also well established that the Suprem-

acy Clause prohibits states from taxing the United States or its

property directly. Washington v. United States, U.S. ,

, 103, S.Ct. 1344, 1348, 75 L.Ed.2d 264, 268 (1983). But

even that prohibition has been very narrowly construed and “the

States’ power to tax can be denied only under ‘the clearest con-

stitutional mandate,’” Jd. at , 103 S.Ct. at 1351, 75

L.Ed.2d at 273, quoting Michelin Tire Corp. v. Wages, 423 U.S.

276, 293, 96 S.Ct. 535, 544, 46 L.Ed.2d 495 (1976), as cited in

United States v. New Mexico, 455, U.S. 720, 737-738, 102

S.Ct. 1373, 1384, 71 L.Ed.2d 580 (1982). State taxes which

affect interstate commerce must have a reasonable nexus

between the taxing state and activities being taxed and must not

discriminate against interstate commerce in favor of intrastate

commerce or unduly infringe upon Congress’ right to regulate

interstate commerce. See generally, Tribe, American Constitu-

tional Law, § 6-14, 15. The Constitution explicitly prohibits

states from laying “any Imposts or Duties on Imports or

Exports... .”” U.S. Const., Art. 1, § 10, cl. 2. See also Michelii:

Tire Corp. v. Wages, supra, 423 U.S. 276, 96 S.Ct. 535, 46

L.Ed.2d 495.

Plaintiffs in this case make no allegations that the State has

transgressed any of these limits on its spill fund tax. Their argu-

ment is based on an interpretation that §114(c) of the

Superfund precludes states from taxing for the same purpose as

44a

APPELLATE DIVISION.

190 N.J. Super. Exxon Corp. V. Hunt

Cite as, 190 N.J. Super. 131

the Superfund. In light of the strong history of the states’

freedom as to the “modes and subjects” of their taxation

schemes, and the Supreme Court’s approval of double taxation,

there must be some demonstration that New Jersey’s tax some-

how stands as an obstacle to the accomplishment of any of the

permissible goals of the Superfund. I know of no authority which

would permit Congress to prohibit a state from imposing an oth-

erwise constitutional tax simply because it had determined that

the taxpayer should not be taxed by both the federal and state

governments. Presumably Congress could impose such a prohibi-

tion if it determined the state tax unduly interfered with its reg-

ulation of interstate commerce but, again, no such allegations

have been presented here. The Supreme Court has admonished

and repeated “[w]e must also be careful to distinguish those

situations in which the concurrent exercise of a power by the

Federal Government and the States or by the States alone may

possibly lead to conflicts and those situations where conflicts

will necessarily arise.” Goldstein v. California, 412 U.S. at 554,

93 S.Ct. at 2309. No allegation of any conflict has been made.

The Supreme Court has stated in numerous cases that when

the federal government has not been given exclusive control over

a given matter “[c]onsideration under the Supremacy Clause

starts with the basic assumption that Congress did not intend to

displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746,

101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). Certainly there

should be no finding that congressional action precludes the

states from exercising their powers to tax without some clear

indication that Congress has a constitutional basis for so doing.

We should bear in mind that private parties have chosen to

litigate this issue. This case does not represent a direct conflict

between state and federal authorities. Perhaps the issue would

be better framed as “Does New Jersey have the power to impose

the Spill Fund Tax on these plaintiffs?” Such a reformulation

45a

APPELLATE DIVISION.

Exxon Corp. V. Hunt 190 N.J. Super.

Cite as, 190 N.J. Super. 131

recognizes that this case clearly is one arising under the state

law. It also emphasizes that this is a matter betweeen the private

plaintiffs and the State of New Jersey. As Exxon has attempted

to structure its arguments, it is attempting to assert a power of

the federal government which that government may or may not

even believe it possesses.

46a

TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. v. Hunt 4N.J. Tax

Cite as, 4 N.J. Tax 294

EXXON CORPORATION, THE B.F. GOODRICH COM-

PANY, UNION CARBIDE CORPORATION,

MONSANTO COMPANY AND TENNECO CHEMI-

CALS, INC., PLAINTIFFS, v. ROBERT HUNT,

ADMINISTRATOR OF NEW JERSEY SPILL COM-

PENSATION FUND; CLIFFORD A. GOLDMAN,

TREASURER OF THE STATE OF NEW JERSEY;

SIDNEY GLASER, DIRECTOR OF THE DIVISION

OF TAXATION; AND THE STATE OF NEW JERSEY,

DEFENDANTS.

EXXON CORPORATION, THE B.F. GOODRICH COM-

PANY, UNION CARBIDE CORPORATION,

MONSANTO COMPANY AND TENNECO CHEMI-

CALS, INC., PLAINTIFFS, v. ROBERT HUNT,

ADMINISTRATOR OF NEW JERSEY SPILL COM-

PENSATION FUND; CLIFFORD A. GOLDMAN,

TREASURER OF THE STATE OF NEW JERSEY;

SIDNEY GLASER, DIRECTOR OF THE DIVISION

OF TAXATION; JERRY F. ENGLISH, COMMIS-

SIONER OF ENVIRONMENTAL PROTECTION;

AND THE STATE OF NEW JERSEY, DEFENDANTS.

Tax Court of New Jersey

April 23, 1982.

SYNOPSIS

In a case involving constitutionality of state Spill Compen-

sation and Control Act, the Tax Court, Evers, J. T. C., on cross

motions for summary judgment, held that such state statute has

not been preempted by the federal Comprehensive Environmen-

tal Response, Compensation and Liability Act of 1980.

47a

TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. v. Hunt

Cite as, 4 N.J. 294

Plaintiffs’ motion denied, and defendants’ motion granted.

1. States €=4.13

Where state statute conflicts with federal statute which has

preempted field and stands as obstacle to accomplishment and

execution of full purposes and objectives of Congress, supremacy

clause of United States Constitution mandates that state statute

fail. U.S.C.A.Const.Art. 6, cl. 2; Comprehensive Environ-

mental Response, Compensation, and Liability Act of 1980,

§§ 104(d)(1), 105, L11(f), 112, 114(a), 42 US.C.A.

§§ 9604(d)(1), 9605, 9611(f), 9612, 9614(a).

2. States €—4.13

Where Congress has not foreclosed field, state statute is

nevertheless void to the extent of actual conflict with federal

statute. U.S.C.A.Const.Art. 6, cl. 2.

3. States €=4.13

Court must attempt to harmonize state and federal laws

whenever possible, particularly in areas traditionally reserved to

states and relating to vital interests of state citizens. N.J.S.A.

58:10—23.11 et seq.; Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, §§ 101 et seq., 114(c),

42 US.C.A. §§ 9601 et seq., 9614(c); U.S.C.A.Const.Art. 6,

cl. 2.

4. Health and Environment @= 25.7(3)

Section of Comprehensive Environmental Response, Com-

pensation and Liability Act of 1980 providing that no person

may be required to “contribute to any fund, purpose of which is

to pay compensation for claims for any costs of response for

damages or claims which may be compensated under this title”

is ambiguous, and court must look to extrinsic aids to clarify

48a

TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. v. Hunt 4N.J. Tax

Cite as, 4 N.J. Tax 294

legislative scheme, and inquiry requires consideration of rela-

tionship between federal and state laws as they ought to be

applied, and not merely as written. N.J.S.A. 58:10—23.11 et seq.;

Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, §§ 101 et seq., 114(b,c), 42 U.S.C.A.

§§ 9601 et seq., 9614(b, c); U.S.C.A.Const.Art. 6, cl. 2.

5. Statutes 217.4

No rule of statutory construction should be permitted to

block consideration of any legislative history which could be of

aid to court where statutory language is ambiguous or where lit-

eral interpretation would thwart overall statutory scheme.

6. States 4.10

Section of Comprehensive Environmental Response, Com-

pensation and Liability Act providing that no person “may be

required to contribute to any fund, the purpose of which is to

pay compensation for claims for any costs of response or dam-

ages or claims which may be compensated under this title” is not

really preemption clause as term is classically used, and, in

addressing “taxing” and not “participation,” does not preempt

field from state participation. Comprehensive Environmental

Response, Compensation and Liability Act of 1980, § 114(b,c),

42 U.S.C.A. § 9614(b, c).

7. Taxation €=24

Under Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, state can tax local industries to

support fund dedicated to purpose of compensation claims and

costs not actually paid by super fund. Comprehensive Environ-

mental Response, Compensation, and Liability Act of 1980,

§§ 104, 104(c)(2,3), 111, 112, 114(c), 221, 42 US.C.A.

$§ 9604, 9604(c)(2, 3), 9611, 9612, 9614(c), 9631; §§ 201, 211,

94 Stat. 2767; 28 U.S.C.A. § 1341; R. 4:46-1; R. 4:46-2;

49a

TAX COURT OF NEW JERSEY, 1982.

4NJ Tax Exxon Corp. v. Hunt

Cite as, 4 N.J. 294

R. 8:7(a); N.J.S.A. 58:10-23.11f, 58:10—23.11h, 58:10—23i,

58:10—23.1 10; 26 U.S.C.A. § 4611 et seq.

8. Taxation C24

Under Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, spill fund, as presently consti-

tuted, does protect industry from any threat that New Jersey

would stockpile spill tax revenues. N.J.S.A. 58:10—23.11h,

subd. b.

9. States 4.10

With respect to dependency, Congress, in adoption of super

fund, implicitly acknowledged that direct state action is neces-

sary to assure adequate response action to spills. Comprehensive

Environmental Response, Compensation and Liability Act of

1980, §§ 104(c)(2, 3), (d)(1), L1I(f), 112, 114(a), 42 U.S.C.A.

§§ 9604(c)(2, 3), (d)(1), 9611(f), 9612, 9614(a).

10. States 4.19

Congressional scheme of super fund is one which allows,

but does not require, cooperation of federal and staie regimes.

Comprehensive Environmental Response, Compensation and

Liability Act of 1980, §§ 105, i05(8)(A, B), 114(c), 42

U.S.C.A. §§ 9605, 9605(8)(A, B), 9614(c).

ll. Taxation G24

Under Comprehensive Environmental Response, Compen-

sation and Liability Act section explicitly exempting state tax on

petrochemical industries in order to finance purchase of hazard-

ous response equipment, prepositioning of such response equip-

ment and other preparations for response to release of hazardous

substances, spill fund tax is valid insofar as such monies are used

to satisfy such purposes. N.J.S.A. 58:10—23.110(4); Comprehen-

50a

qAx COURT OF NEW JERSEY, 1982.

Exxon Corp. v. Hunt 4N.J. Tax

Cite as, 4 N.J. Tax 294

sive Environmental Response, Compensation and Liability Act

of 1980, §§ 101, \14(c), 42 U.S.C.A. §§ 9601, 9614(c).

Claims for diredt and indirect damages caused by discharge

of hazardous substat\ces are within scope of proper spill fund

spending under Comprehensive Environmental Response, Com-

pensation and Liability Act explicitly exempting from its provi-

sions state tax on petrochemical industries in order to finance

certain measures, and spill fund tax may also be collected and

used to pay for petroleum spills, income or property value losses

caused by damage resulting from discharge of hazardous sub-

stances and cost of restoration or replacement of natural

resources damaged or destroyed by discharge. N.J.S.A.

58:10—23.-11b, subd. k, 58:10—23.11g, subds. a, a(1); Compre-

hensive Environmental Response, Compensation and Liability

Act of 1980, §§ 104(c)(3), 107(a)(4)(A), (f), 111(c)(2), (d)(1),

114(c), 42 US.C.A. §§ 9604(c)(3), 9607(a}(4)(A), (f),

9611(c)(2), (d)(1), 9614(c).

13. States 4.10

State fund administrative expenses and administrative costs

relating to petroleum spills, reimbursement of third-party dam-

age claims and other claims not compensable under Comprehen-

sive Environmental Response, Compensation and Liability Act

of 1980 are proper objects of spill fund spending, and same is

true of state’s contribution of ten percent of more of costs of

remedial action to qualify for federal funding and financing of

remedial activities on temporary basis pending super fund reim-

bursement. N.J.S.A. 58:10—23.11b, subd. k, 58:10—23.11g,

subds. a, a(1); Comprehensive Environmental Response,

Compensation and Liability Act of 1980, §§ 104(c)(3),

107(a)(4)(A), (f), 111(c)(2), (d)(1), 114(ce), 42 U.S.C.A.

§$§ 9604(c)(3), 9607(a)(4)(A), (f), 961 1(c)(2), (d)(1), 9614(c).

Sla

Lea

TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. v. Hunt

Cite as, 4 N.J. 294

14. States 4.10

Legislature envisioned that spill act would be enforced

in conjunction with federal law and with any other applicable

law, and even if federal legislation could be construed to pre-

empt part of spill fund, nonpreempted areas would sustain its

continued validity. N.J.S.A. 58:10-23.1 1a, 58:10—23.1 lv,

§8:10-23.11w, 58:10-23.11z; Comprehensive Environmental

Response, Compensation and Liability Act of 1980, § 114(c), 42

U.S.C.A. § 9614(c).

——

John J. Carlin, Jr., for plaintiffs (Farrell, Curtis, Carlin &

Davidson, attorneys).

Mary C. Jacobson, for defendant (Irwin I. Kimmelman,

Attorney General of New Jersey, attorney); Michael Cole &

Herbert Glickman, of counsel.

EVERS, J. T.C.

The issue presented on cross-motions for summary judg-

ment involves the constitutionality of the New Jersey Spill Com-

pensation And Control (spill fund) Act, N.J.S.A. 58:10-23.11 et

seq. Its resolution requires a determination of whether that stat-

ute has been preempted by § 114(c)' of the Comprehensive

Environmental Response, Compensation and Liability (super

fund) Act of 1980, P. L. 96-510, 94 Stat. 2767, codified as 42

U.S.C.A. § 9601 et seq., in which event it must fall, as mandated

by the Supremacy Clause of the United States Constitution. *

42U.S.C. § 9614(c).

- The United States Constitution, Art. VI, cl. 2, provides: “This Constitution,

and the Laws of the United States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and the Judges in every

52a

TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. v. Hunt 4NJ. Tax

Cite as, 4 N.J. Tax 294

For the reasons hereafter set forth plaintiffs’ motion is denied

and defendants’ motion is granted. °

Plaintiffs also seek a return of all monies paid to New Jer-

sey pursuant to the spill fund since December 11, 1980, the

effective date of super fund.‘ Purely legal questions are pre-

sented which make the action appropriate for summary judg-

ment. Tyson v. Groze, 172 N.J.Super. 314, 319, 411 A.2d 1170

(App.Div.1980); Felbrant v. Able, 80 N.J.Super. 587, 590, 194

State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.”

* Portions of an action instituted by plaintiffs in the Superior Court of New

Jersey, Chancery Division—Mercer County (Docket C 4530-80) which was

transferred to the Tax Court (Docket SC 319A-81 TC) and consolidated here-

with, survive this motion.

' A similar action, brought by plaintiffs in the United States District Court

for the District of New Jersey, Civil Action 71—-1458M, was dismissed on the

basis that the Tax Anti-injunction Act, 28 U.S.C.A. § 1341, compelled that the

matter be determined in a state court. Plaintiffs have appealed that decision to

the United States Court of Appeals for the Third Circuit (No. 81-2514). The

preemption issue was also raised by the State in a declaratory judgment action

brought against the United States (State of New Jersey et al. v. United States

of America et al., United States District Court for the District of Columbia,

Civil Action No. 81-0945), by which a definitive interpretation of the scope

and meaning of the preemption clause of super fund was sought. That action

did not involve a review of the New Jersey taxing scheme pursuant to the spill

act. It was dismissed. Similar declaratory judgment actions were brought in

Lesniak et al. v. United States of America et al. (No. 81-977) and Merlino et

al. v. United States of America et al. (No. 81-1914) in the United States Dis-

trict Court for the District of New Jersey. These matters were settled by stipu-

lation. The State’s motion to make the provisions of those settlements part of

the record of this controversy for consideration by the court was denied by

separate opinion. Lastly, in State of New Jersey et al. v. Gorsuch et al., United

States District Court for the District of Columbia, Civil Action No. 81—2269

the court entered an order directing the Environmental Protection Association

to have a “National Contingency Plan” in place by May 11, 1982.

During the pendency of this action plaintiffs have continued to pay the spill

fund tax according to its terms.

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TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. v. Hunt

Cite as, 4 N.J. 294

A.2d 491 (App.Div.1963). See, also, Judson v. Peoples Bank

and Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954);

R. 8:7(a); R. 4:46-1; R. 4:46-2.

Section 114(c) of super fund states:

Except as provided in this Act, no person may be required to

contribute to any fund, the purpose of which is to pay compensa-

tion for claims for any costs of response or damages or claims

which may be compensated under this title. Nothing in this sec-

tion shall preclude any State from using general revenues for such

a fund, or from imposing a tax or fee upon any persons or upon

any substance in order to finance the purchase or prepositioning

of hazardous substance response equipment or other preparations

for the response to a release of hazardous substances which

affects such State.

Plaintiffs, five major corporations whose operations involve

the use of recognized hazardous substances, including petro-

leum, are taxed under both acts. On the basis that both acts have

as their principal purposes the payment of claims and costs

relating to the cleanup, removal and containment of hazardous

substance spills, plaintiffs interpret this provision as precluding

New Jersey from collecting any tax that is earmarked for such

purposes. Plaintiffs seemingly argue that New Jersey can only

gain the use of industry tax monies for cleanup purposes by

requesting and obtaining Federal Government participation ina

specific project. In the event Federal Government participation

is withheld, only general revenues are available for state action,

according to plaintiffs. Any areas which may be compensated

under spill fund but which may not be compensated under super

fund are peripheral, according to plaintiffs, and are so

insignificant as to be unable to sustain the state tax. Accord-

ingly, plaintiffs contend that the entire state act must be

nullified.

Defendants deny that the spill fund tax is preempted unless

there is a precise coincidence of tax money expenditures. In its

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TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. v. Hunt 4N.J. Tax

Cite as, 4 N.J. Tax 294

more narrow interpretation the State contends that only those

spill fund tax monies which are used for identical purposes and

which are actually covered by super fund expenditures can be

preempted. Furthermore, defendants contend that the statutory

scheme designed by Congress in super fund emphasizes the need

for a combined federal and state response to toxic contamina-

tion. Super fund, according to defendants, provides a framework

for a cooperative federalism in which the Federal Government

would work with the states to effectuate the broad statutory

goals of protecting the citizens and the environment of the coun-

try from the deleterious effects of pollution caused by hazardous

substances. In short, it is defendants’ position that not only can

super fund and spill fund, as presently constituted, co-exist but

that they are intended to co-exist. Alternatively, the State argues

that, if preemption does exist, it is not total and the taxes col-

lected as to the non-preempted areas are permissible. In order to

place these contentions in proper perspective a review of the pur-

poses and pertinent provisions of both statutes is necessary.

Spill fund, which become effective in 1977, in its general

terms prohibits the discharge of petroleum and other hazardous

substances in the State of New Jersey. Pertinent to this contro-

versy are its specific provisions which provide for the removal

and cleanup of such discharges, N.J.S.A. 58:10—23.11f, the

establishment of a spill compensation fund, JN.J.S.A.

58:10—23.11i, and the raising of revenue therefor pursuant to

N.J.S.A. 58:10—23.11h, which states: “There is hereby levied

upon each owner or operator of one or more major facilities a

tax to insure compensation for cleanup costs and damages asso-

ciated with any discharge of hazardous substances to be paid by

the transferee. ..."° The administrator of the fund is directed,

That each plaintiff is a major facility as defined in the spill fund act 1s not

disputed.

5Sa

a, Ne a

TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. v. Hunt

Cite as, 4 N.J. 294

pursuant to N.J.S.A. 58:10-23.11o0, to disburse monies from the

fund for the following purposes:

1. All costs incurred by the State in connection with the

removal and cleanup of hazardous substance discharges.

2. All direct and indirect damages no matter by whom

sustained, including but not limited to:

a. The cost of restoring, repairing or replacing any real or

personal property damaged or destroyed by a discharge; any

income lost as a result of damage to or destruction of such prop-

erty; any reduction in value of such property as a result thereof.

b. The cost of restoration and replacement of damaged or

destroyed natural resources.

c. Loss of income or impairment of earning capacity due

to damage to real or personal property.

d. Loss of tax revenues by the state or local governments

resulting from damage to such property for a period of one year.

e. Interest on loans obtained or other obligations incurred

by a claimant for the purpose of ameliorating the effects of a

discharge pending payment of the claim.

N.J.S.A. 58:10-23.11o also provides for the disbursement

of sums, as may be appropriated by the Legislature, for research

on the prevention and effects of spills, for the development of

improved cleanup and removal operations, for demonstration

programs and for administration, personnel and equipment

costs. °

While it may not be an eligible cost under the spill fund act as presently

constituted, it is apparent that super fund contemplated that seed money,

including at least a 10% matching fund, will be contributed by those states

which seek to qualify for federal funding.

S6a

TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. V. Hunt. 4N.J. Tax

Cite as, 4 N.J.Tax 294

During the latter 1970s the Congress undertook the task of

developing a program to deal with national hazardous waste

problems. At one point in its deliberations Congress debated

establishing a fund of $4.1 billion for that purpose. On Decem-

ber 11, 1980 these federal legislative efforts culminated in the

enactment of super fund which provides $1.6 billion over a five-

year period for the cleanup and removal of pollution caused by

the release of hazardous substances into the environment. To

finance this program Congress levied a tax against the chemical

and petroleum industries designed to provide 87.5% of the funds

needed to support the federally-approved cleanup efforts. The

remaining 12.5% is supplied through general federal revenues.

§§ 111, 112, 201, 211 and 221.

Section 104 of super fund provides generally that whenever

there is a release or substantial threat of release into the environ-

ment of any pollutant or contaminant which may present an

imminent and substantial danger to the public health or welfare,

the President is authorized to remove or arrange for the removal

of, and to provide for remedial action relating to such hazardous

substance, pollutant or contaminant. Section 211 provides for

the amendment of chapter 38 of the Internal Revenue Code to

impose a tax on crude oil and petroleum products and on certain

chemicals. This amendment became effective April 1, 1981.

Pursuant to § 111 of super fund the President is authorized to

use the money in the fund for, among other things, payment of

costs of government response to hazardous waste discharges and

costs incurred in compensating certain losses resulting from such

discharges.

Recognizing that some states had already occupied the field

and, in an implicit acknowledgement that such state involvement

was necessary to assure more complete responsive action to haz-

ardous waste spills, Congress provided in § 104(c)(2) that the

Federal Government must consult with an affected state before

S7a

TAX COURT OF NEW JERSEY, 1982.

4 NJ. Tax Exxon Corp. V. Hunt.

Cite as, 4 N.J.Tax 294

determining appropriate remedial action. And, in § 104(c)(3),

Congress mandated a minimum level of state participation as a

prerequisite to receiving federal funds. To qualify for federal

cleanup doliars states must formally guarantee, by contract or

cooperative agreement, to provide (1) all future maintenance of

removal and remedial! actions; (2) the availability of a hazardous

waste disposal facility for the off-site storage or treatment of

hazardous substances, and (3) payment of 10% or more of the

total cost of remedial operations. The state share of cleanup

expenses can escalate to 50% or more if the site of the release is

owned by the state itself or a political subdivision thereof. /d.

Moreover, § 104(d)(1) encourages states to become official

response authorities when they can demonstrate that they have

the technical capability necessary to effect the purposes of the

act. Under this section states undertake the initiation and

upfront financing of remedial work and then apply to super fund

for reimbursement of “reasonable response costs.” Jd. See, also,

§ 105 (directs the Federal Government to adopt a National Con-

tingency Plan setting forth federal and state responsibilities

under super fund and establishing criteria for determining prior-

ities [with state input] among hazardous substance releases

throughout the United States); § 111(f) (Federal Government

permitted to delegate authority to state officials to obligate

super fund monies where a state has replaced the Federal Gov-

ernment as a response authority); § 112 (Federal Government

authorized to use state agencies to implement super fund claims

procedure), and § 114(a) (states permitted to impose any liabil-

ity in addition to that contained in super fund with respect to the

release of hazardous substances within its borders).

[1, 2] It is fundamental that where a state statute

conflicts with a federal statute which has preempted the field

and stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress, the Supremacy

Clause of the United States Constitution mandates that the state

58a

TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. V. Hunt. NJ. Tax

Cite as, 4 N.J.Tax 294

statute must fail. Maryland v. Louisiana, 451 U.S. 725, 101

S.Ct. 2114, 68 L.Ed.2d 576 (1981); Chicago and North Western

Transp. Co. v Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct.

1124, 67 L.Ed.2d 258 (1981); Arizona v. Snead, 441 U.S. 141,

146, 99 S.Ct. 1629, 1632, 60 L.Ed.2d 106, 111 (1979); Mobil

Oil Corp. v. Tully, 653 F.2d 497 (Emerg.Ct.App.1981);

Tennessee v. Louisville & N. R. Co., 478 F.Supp. 199, 209

(M.D.Tenn.1979); National Carriers’ Conf. Comm. v.

Heffernan, 454 F.Supp. 914, 915 (D.Conn.1978). Where Con-

gress has not foreclosed the field, a state statute is nevertheless

void to the extent of actual conflict with a federal statute. Ray v.

Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55

L.Ed.2d 179, 188-189 (1978).

[3] The court is mindful, however, that legislative enact-

ments are presumed to be valid, and the burden on plaintiffs of

demonstrating unconstitutionality is a heavy one. Velmohos v.

Maren Engineering Corp., 83 N.J. 282, 295, 416 A.2d 372

(1980); North Jersey Suburbanite Co., Inc. v. State, 154

N.J.Super. 126, 129, 381 A.2d 34 (App.Div.1977); English v.

Newark Housing Auth., 138 N.J. Super. 425, 431, 351 A.2d 368

(App.Div.1976). Furthermore, the court is conscious of its duty

to construe a statute to render it constitutional if the enactment

is reasonably susceptible to such interpretation, even though the

statute may also be open to a construction which would render it

unconstitutional or permit its unconstitutional application. State

v. Profaci, 56 N.J. 346, 349, 266, A.2d 579 (1970); State v.

Negron, 118 N.J.Super. 320, 323, 287 A.2d 461

(App.Div.1972). See, also, N.J. Chamber of Commerce v. N.J.

Election Law Enforce. Comm'n, 82 N.J. 57, 75, 411 A.2d 168

(1980). Additionally, with reference to preemption, the court

recognizes that it must attempt to harmonize state and federal

laws whenever possible, particularly in areas traditionally

reserved to the states and which relate to the vital interests of

state citizens. Florida Lime and Avocado Growers v. Paul, 373

59a

TAX COURT OF NEW JERSEY, 1982.

4 NJ. Tax Exxon Corp. V. Hunt.

Cite as, 4 N.J.Tax 294

U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Huron Cement

Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d

852 (1960); Swift & Co. v. Wickham, 364 F.2d 241 (2 Cir.

1966), cert. den., 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683

(1967); Katharine Gibbs Sch. Inc. v. F. T. C., 612 F.2d 658, 667

(2 Cir. 1979). Thus, the state act should not be set aside unless

the court finds that § 114(c) permits no other conclusion; that

the Congress has unmistakably ordained that super fund be the

sole recipient of industry tax dollars where the purposes of the

two acts are identical.

[4] The specific subject of inquiry is that portion of

§ 114(c) which states:

... [N]o person may be required to contribute to any fund,

the purpose of which is to pay compensation for claims for any

costs of response or damages or claims which may be compen-

sated under this title.

‘ The pivotal language is “may be compensated” and particularly

the word “may”. Plaintiffs contend that the phrase is clear and

unambiguous and that under the “plain meaning” rule of statu-

tory construction “may” must be employed in its usual literal

permissive sense. Accordingly, plaintiffs argue that the sole

function of a court is to interpret the statute according to its

terms without the aid of extrinsic evidence. The State maintains

that § 114(c) is unclear in certain respects, particularly when

viewed in the light of the spirit of federal-state cooperation as

evidenced by the language of super fund itself, and the impact

that a strict and literal interpretation (as contended for by

plaintiffs) would have on spill fund which contains far broader

substantive coverage and liability provisions than does super

fund. In short, the State argues that Congress intended that

“may” whould be interpreted in a mandatory sense—an inter-

pretation that, in effect, would substitute “shall be compen-

sated” or “shall have been compensated” for “may be compen-

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TAX COURT OF NEW JERSEY, 1982.

Exxon Corp. V. liunt. 4 NJ. Tax

Cite as, 4 N.J.Tax 294

sated.” To ascertain that Congressional intent, the State claims

that resort must be had to extrinsic aids.

Plaintiffs further argue that the State’s interpretation

would violate a second fundamental rule of construction which

requires that, if possible, effect must be given to every word,

clause or sentence of a statute; that a statute must be construed

so that no part is made inoperative, redundant or superfluous.

Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58

L.Ed.2d 596, 607 (1979); U.S. v. Palmeri, 630 F.2d 192, 199 (3

Cir. 1980); Abbotts Dairies v. Armstrong, 14 N.J. 319, 327, 102

A.2d 372 (1954); Peper v. Princeton Univ. Bd. of Trustees, 77

N.J. 55, 68, 389 A.2d 465 (1978); 2A Sutherland, Statutory

Construction (3 ed. 1973), § 46.06. The State’s interpretation,

according to plaintiffs, amounts to a prohibition against double

compensation and thus would be redundant of § 114(b) which

states:

Any person who receives compensation for removal costs or

damages or claims pursuant to this Act shall be precluded from

recovering compensation for the same removal costs or damages

or claims pursuant to any other State or Federal law. Any person

who receives compensation for removal costs or damages or

claims pursuant to any other Federal or State law shall be pre-

cluded from receiving compensation for the same removal costs or

damages or claims as provided in this Act.

Next, taxpayers claim that such interpretation would

nullify the Congressional intent found in the latter portion of

§ 114(c) which provides that the clause does not preclude a state

from using general revenue for duplicate spending or from using

taxpayers’ contributions for the additional purposes set forth

therein. If the State could continue to collect an industry tax for

any and all purposes, with the only limitation being payments on

claims paid by super fund, plaintiffs assert that the provision

concerning the use of general revenue would be purposeless. The

6la

TAX COURT OF NEW JERSEY, 1982.

4 NJ. Tax Exxon Corp. V. Hunt.

Cite as, 4 N.J.Tax 294

court disagrees with the foregoing and finds that, when read and

understood in proper context, the State’s interpretation does not

render the questioned provisions of super fund inconsistent,

redundant, superfluous or meaningless.

The court finds that the pertinent language of § 114(c),

does not, by itself, convey that clear, unambiguous meaning

attributed to it by plaintiffs—a conclusion that is highlighted

when it is read in conjunction with the balance of the super fund

act. The seemingly simple, but often misused and misapplied

word “may,” is anything but unambiguous. The word “may” is

often subject to differing meanings when used in statutory con-

struction. Supporting the dual function of the word are the com-

ments of the court in Kraft v. Board of Ed. for Dist. of Colum-

bia, 247 F.Supp. 21, 24-25 (D.C.D.C.1965), cert. den., 386 U.S.

958, 87 S.Ct. 1026, 18 L.Ed.2d 106 (1967), where it was stated:

It is well established, however, that the word “may” can be

at times contrued to mean “shall’’, just as the word “shall” may

be construed to mean “may”. The interpretation of those words

dependes upon the context in which they are used and the inten-

tion of the legislative body as is shown by the statute as may be

gleaned from committee reports and similar authoritative sources.

[247 F.Supp. at 24-25]

Accord, Beli v. Western Employer's Ins. Co., 173 N.J.Super. 60,

65, 413 A.2d 363 (App.Div.1980); MacNeil v. Klein, 141

N.J.Super. 394, 358 A.2d 488 (App.Div.1976). In light of the

ambiguity of the meaning of “may”, and in view of the contra-

dictory interpretations which have been voiced as to the interpre-

tation of § 114(c) by both parties, it is essential that this court

look to extrinsic aids to clarify the legislative scheme underlying

the statutory language. Furthermore, this inquiry requires a con-

sideration of the relationship between the federal and state laws

as they are to be applied, not merely as they are written.

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Exxon Corp. V. Hunt. 4NJ. Tax

Cite as, 4 N.J.Tax 294

[5] Reference to legislative history is appropriate not only

where the statutory language is ambiguous but also where a lit-

eral interpretation would thwart the overall statutory scheme.

International T & T Corp. v. General T. & E. Corp., 518 F.2d

913, 921 (9 Cir. 1975). It is to determine that overall statutory

scheme that not only must the legislative history of the statute

be examined but attention must also be given to the practical

effects of each proffered interpretation. In such a circumstance

the New Jersey Supreme Court, in N.J. Pharmaceutical Ass'n.

v. Furman, 33 N.J. 121, 162 A.2d 839 (1960), stated:

Courts may, or course, freely refer to legislative history and

contemporaneous construction for whatever aid they may furnish

in ascertaining the true intent of the legislation. [at 130, 162 4.2d

839.]

Consequently, no rule of statutory construction should be

permitted to block consideration of any legislative history which

could be of aid to the court. See id.; in Re Meadowlands Com-

munication Systems, Inc., 175 N.J.Super. 53, 65, 417 A.2d 575

(App.Div.1980), certif. den., 85 N.J. 455, 427 A.2d 556 (1980);

Marsh y. Finley, 160 N.J.Super. 193, 197, 389 A.2d 490

(App.Div.1978), certif. den., 78 N.J. 396, 396 A.2d 583 (1978);

State v. Moody, 169 N.J.Super. 177, 404 A.2d 370 (Law Div.

1978). See, also, San-Lan Builders, Inc. v. Baxendale, 28 N.J.

148, 155, 145 A.2d 457 (1958), where the court counseled that

“Scholastic strictness is to be avoided in the search for the legis-

lative intention.”

[6] At the outset it is readily apparent that § 114(c) does

not preempt the field from state participation. By its history and

very terms super fund seeks and provides for state participation

as partners in the fight against pollution. As such, § 114(c) is

not really a preemption clause as that term is classically used.

The clause addresses “taxing” and not “participation.”

Therefore, the initial determination to be made is whether spill

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4 NJ. Tax Exxon Corp. V. Hunt.

Cite as, 4 N.J.Tax 294

fund imposes a double tax on plaintiffs in light of §114(c) of

super fund.’

The enactment of super fund in 1980 was a compromise

and was preceded by extensive studies and hearings by the

Committee on Environment and Public Works concerning

various predecessor measures (never adopted) and was accompa-

nied by extensive floor debate. Particularly enlightening are the

remarks of Senator Randolph concerning preemption during the

Senate floor debate on super fund.”

Mr. President, let me state categorically that there is nothing

in this bill that affects the uses to which a state may put the

existing cleanup fund. This bill is silent on the subject. Thus a

state may, after enactment of this bill, continue to spend its

existing funds for any purpose that is lawful under state law.

If, after enactment of this bill, a state continued to pay

claims from a state fund, that would not be contrary to any provi-

Preemption aside, neither party addressed the question of whether the spill

fund taxing scheme is constitutionally prohibited. Plaintiffs relied on the provi-

sions of § 114(c) as the sole support for their position.

The Randolph remarks in particular are entitled to great weight in inter-

preting the preemption provision because Senator Randolph was the chairman

of the Committee on Environment and Public Works which reported the super

fund bill to the Senate, was floor manager and a cosponsor of the measur e, and

was clearly involved in the last-minute negotiations leadiing up to the passage

of the act. See, generally, 126 Cong. Rec. S. 14941-S. 15008 (daily ed.

November 24, 1980). In FEA v. Algonquin SNG, Inc., 426 U. S. 548, 564, 96

S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976), the Supreme Court relied upon Sen-

ate floor debates for support in statutory construction and cbserved in relation

to a particular excerpt from a debate that, “as 2 statement of one of the legisla-

iion’s sponsors, this explanation deserves to be accorded substantial weight in

interpreting the statute.” Accord. Schwegmann Bros. v. Calvert Corp., 341

U.S. 384, 394, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951); United States v.

Oates, 560 F.2d 45 (2 Cir. 1977); International T & T Corp. v. General T. &

E. Corp., 518 F.2d 913, 921 (9 Cir. 1975); 2A Sutherland, Statutory Con-

struction, op. cit. § 48.04 at 197-198 and § 48.14 at 217-220.

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sion of this bill. What this bill does is prohibit a state from

requiring any person to contribute to any fund if the purpose of

that fund is to compensate for a claim paid for under the provi-

sions of this bill...

Putting it simply, this is a prohibition against double taxation

for the same purposes. It is not a prohibition on the uses that a

state may make of its money, nor does it prohibit a state from

* imposing fees or taxes for other purposes connected with cleanup

or restoration activities such as the purchase of pollution abate-

ment equipment or the hiring or training of personnel for pollu-

tion prevention programs.

In summary, Mr. President, this preemption provision is nar-

row in scope and limited to the particular purpose of preventing

double taxation. [126 Cong.Rec. S. 14981 (daily ed., November

24, 1980); emphasis supplied]

Moreover, at the end of the colloquy, the following question by

Senator Bradley (of New Jersey) elucidated Senator Randolph's

position:

Mr. Bradley: Finally, if the federal government determines

that the needs at other sites require that federal efforts be termi-

nated at the first site before that site is completed, may a state

fund complete the effort?

Mr. Randolph: This legislation would permit that to happen.

[Id.]

[7] These remarks can only have been intended to mean

that a state can tax local industries to support a fund dedicated

to the purpose of compensating claims and costs not actually

paid by super fund. Furthermore, any attempt to limit Senator

Randolph’s remarks to the use of state-collected taxes prior to

the effective date of super fund is unfounded in view of the

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TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. V. Hunt.

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following statements which clearly were directed to the use of

state funds obtained after super fund implementation:

Mr. Bradley: Am I correct in assuming that monies

expended by state funds can be used to provide the required 10

percent state match?

Mr. Randolph: That is correct.

Mr. Bradley: And am I also correct in noting that state

funds are preempted only for efforts which are in fact paid for by

the federal fund and that there would be no preemption for

efforts which are eligible for federal funds but for which there is

no reimbursement?

Mr. Randolph: That is correct. [126 Cong. Rec. S. 14981

(daily ed. November 24, 1980); emphasis supplied]

The Randolph interpretation, which would enable states to

tax for remedial actions not actually compensated under super

fund, comports with a prohibition against double taxation in that

states are still prevented from taxing to pay for cleanups actually

financed by the Federal Government. Consequently, plaintiffs

would not be put in the position of paying twice for the same

activity. Based on this interpretation, New Jersey’s tax covering

hazardous waste cleanups could simply by adjusted to reflect the

infusion of federal funds pursuant to super fund. If super fund

monies result in a reduction of the state’s spending requirements,

that reduction can simply be reflected in a decrease in the impo-

sition of state taxes.

In that regard the additional comments of Senator

Randolph in response to a question from Senator Bradley are

pertinent:

Mr. Bradley: In the event I have described, where a state or

a contractor of the state is the respondent to the release and

incurs economic loss normally compensable under the provisions

of this bill, does this legislation intend that a state that has contin-

ued to collect taxes or fees to finance a state fund designed to

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Exxon Corp. V. Hunt. 4N.J. Tax

Cite as, 4 N.J.Tax 294

cover expenses and economic loss not covered under the provision

of this bill have the right to use those state fund monies to provide

intermediate, up front capital to pay for these activities and seek

reimbursement from the fund established under this bill?

Mr. Randolph: Nothing in the language or intent of this

bill would prohibit a state from using its fund for the purposes

you have inquired about. The purpose of this legislation is simply

to preempt double taxation of the substances enumerated in the

bill for the purposes of compensation of the covered damages. The

situation described in your inquiry is a question of bookkeeping

rather than a subject or preemption. The expenditures by a state

from its fund are temporary in nature and would be reimbursed

and therefore ultimately paid from the fund established in this

legislation. [126 Cong. Rec. S. 14981 (daily ed., November 24,

1980), emphasis supplied]

{8] It is important to note that spill fund, as presently

constituted, does protect industry from any threat that New Jer-

sey would stockpile spill tax revenues. Spill fund limits the

annual amount of revenue that can be collected, N.J.S.A.

58:10-23.11h(b), and also provides that the tax will be sus-

pended in the event that the balance in spill fund equals or

exceeds $50,000,000. /d.

The court also endorses the Randolph interpretation of

preemption because that interpretation coincides with the

overriding remediai purpose of super fund. See San-Lan Build-

ers, Inc. v. Baxendale, supra, which stands for the proposition

that the policy and purpose of enactment as a whole is to be used

in interpreting specific statutory language in accord with legisla-

tive intent. Accord, N.J. Builders, Owners and Managers Ass'n

v. Blair, 60 N.J. 330, 338, 288 A.2d 855 (1972). If § 114(c) is

read to preempt all state taxation for hazardous waste cleanups,

the clause would undermine the salutary statutory goals of super

fund and would result in actually limiting the number of clean-

ups which could otherwise be initiated by the state in spite of the

fact that super fund was intended to expand cleanup efforts.

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TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. V. Hunt.

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A permissive construction of the word “may” would also do

violence to the Congressional intent in light of the practicalities

of the overall problem and the conditions existing at the time of

the passage of super fund. The word “may” is often used simi-

larly to “can,” “could,” “to be able.” It is further used in the

sense of “implying power or ability or possibility with a contin-

gency.” See Webster's New Collegiate Dictionary (1979). In

attributing any of these meanings to the term the obvious con-

clusion is that a state cannot collect a tax if its purpose is to pay

a claim or cost which can, could or may possibly be paid by the

Federal Government (assuming approval is given). This inter-

pretation defies logic and common sense when viewed in light of

super fund’s dependency on state participation to accomplish its

goals, its own limitations and the purposes of both acts.

[9] With respect to dependency it has already been noted

that, in the adoption of super fund, Congress implicitly acknow!l-

edged that direct state action is necessary to assure adequate

response action to spills. See §§ 104(c)(2), 104(c)(3), 104(d)(1),

111(f), 112, 114(a). Clearly, therefore, Congress envisioned

active state financial, technical and administrative support as an

integral part of the overall effort to combat the pollution prob-

lem. Under these circumstances it is unrealistic to assume that it

was the intent of Congress to prohibit states from collecting and

using industry contributions simply because a state may expend

those funds on a cleanup program which may be a target for

super fund expenditures. If a state is prohibited from collecting

such funds from a source found by the State Legislature to be

the most equitable—a finding which was shared by Congress in

enacting super fund—for use in response actions which may also

be eligible but which may never be declared eligible or paid

under super fund, a state is faced with either abandoning many

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containment, cleanup and remedial programs or transferring a

tremendous burden to its citizens.’

Concerning its limitations it was also recognized by mem-

bers of Congress that the funding level established in super fund

is insufficient to address the magnitude of the problem. See 126

Cong. Rec. S. 15007 (daily ed. November 24, 1980) (remarks of

Senator Stafford); S. Rep. No. 848, 96th Cong.2d Sess. at 17

and 71. Since super fund allocates only $1.6 billion over a five-

year period to remedy hazardous waste sites and spills through-

out the 50 states, it is clear that only a small part of the overall

cleanup problem can be addressed through the federal legisla-

tion. This is especially true when the $1.6 billion is compared to

the $4.1 billion originally proposed and the 1979 EPA estimate

that it could cost as much as $22.1 billion to clean up all known

abandoned hazardous waste sites, to say nothing of emergency

spills. See S. Rep. No. 848, 96th Cong., 2d Sess. at 17; H. R.

Rep. No. 96-1016, 96th Cong. 2d. Sess. at 20, reprinted in

[1980] U.S. Code Cong. & Ad. News 6119, 6123.

In further recognition of these funding limits Congress

directed the Federal Government to promulgate a National Con-

tingency Plan within 180 days after the enactment of super fund

to institute a priority system to govern federal funding. The act

directs that the National Contingency Plan contain “criteria for

determining priorities among releases or threatened releases

throughout the United States for the purpose of taking remedial

action and, to the extent practicable, taking into account the

potential urgency of such action, for the purpose of taking

removal action.” § 105(8)(A). This section also provides that

* Senator Bradley noted that in New Jersey there are at least 235 known

hazardous waste sites requiring attention. 126 Cong. Rec. S. 14971 (daily ed.

November 24, 1980). The Environmental! Protection Association has published

a list of priority hazardous waste sites throughout the nation; only 12 of New

Jersey's 235 sites qualified for priority treatment under that list.

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TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. V. Hunt.

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such criteria be based upon relative risk or danger to the public

health and such other factors. /d.; see also, § 105(8)(B). This

direction and criteria clearly indicate that Congress was aware

that super fund, as designed and funded, can reach only “top

priority” sites.

Where sites or spills do not satisfy either the general prior-

ity criteria set forth in § 105 or the specific priority criteria yet

to be adopted in the National Contingency Plan, a state must be

permitted to rely on its own industry supported fund to remedy

the situation. It simply strains credulity to say that hazardous

waste sites or spills not meeting the criteria are claims which

“may be compensated” under super fund. Only the future will

tell whether such unqualified sites are large or small, many or

few. but what is certain is that the adoption of plaintiffs’ inter-

pretation of § 114(c) will leave untouched, at the very least,

some problem areas—a result which is clearly contrary to the

scope and purpose of both super fund and spill fund.

The mere possibility that the tax paid to two governmental

entities will be used for identical purposes must be distinguished

from those situations wherein identical expenditure must neces-

sarily arise. Neither the express language of super fund nor its

criteria (in the absence of a National Contingency Plan it cannot

be said that any specific criteria exist) demands the conclusion

that there ever will be such a head-on collision of identical

expenditures of the tax monies. A mere possibility of double tax-

ation should not be deemed sufficient to extinguish a state’s

right to collect a tax such as is in question here. Plaintiffs’ reli-

ance on an argument that there could be—not that there must

be—expenditures for identical purposes misapprehends the

nature of the doctrine of preemption. A mere potential expendi-

ture which may be made in the future will not invalidate state

authority. More than mere generalizations or speculative

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TAX COURT OF NEW JERSEY, 1982.

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Cite as, 4 N.J. Tax 294

expenditures is required for a court to stifle a state’s right to

collect this tax.

There is also force to this position when one recognizes that

the Environmental Protection Agency’s cost estimates do not

include the cost of cleaning up hazardous substance pollution

from sources other than dump sites, such as accidental spills or

discharges. See H.R.Rep.No.96-1016, 96th Cong., 2d Sess.,

reprinted in [1980] U.S. Code Cong. & Ad.News 6139 (com-

ments of Representative Gore to the effect that $600 million

would cover the cleanup on only approximately 70 sites out of

the thousands that urgently need attention). See, generally, 126

Cong.Rec. S. 15007 (daily ed., November 24, 1980) (remarks of

Senator Stafford); id. at S. 14972 (remarks of Senator

Tsongas). Obviously, in the case of emergency, where accidental

spills are not within the effective exercise or active range of

federal administration, the Congress must content itself to allow

the states to use industry tax funds. The ability to use such funds

to make such expenditures is critical to a state which must be

able to move without delay when volatile situations arise. To

forbid a state from raising tax money altogether for hazardous

substance cleanups and to depend strictly on general revenues

for funding would effectively disable a state from responding to

emergency situations. It cannot be said the Congress would

deprive the states of a primary source of funds for the purposes

of combating situations over which the Federal Government nei-

ther chooses to nor, as a practical matter, could control. A con-

trary conclusion would be inconsistent with a proper regard for

the interplay of state and national interests.

[10] The scheme of super fund is one which allows, but

does not require, cooperation of the federal and state regimes. If

a state chooses, or if the Federal Government through disap-

proval of a state request requires it, to take either the lead or the

entire financial responsibility of cleaning up a specific spill prob-

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TAX COURT OF NEW JERSEY, 1982.

4N.J. Tax Exxon Corp. V. Hunt.

Cite as, 4 N.J. Tax 294

lem, it should be free to use an industry supported fund to do so.

In such instances the possiblity that the financial burden on a

state is greater than it may have been had the Federal Govern-

ment done the cleanup work can afford plaintiffs no comfort in

their arguments against the constutionality of the state tax.

Additionally, it is noted that the question is not before this court.

Against this background the court finds that § 114(c) of

super fund does not preempt the State of New Jersey from col-

lecting a spill tax to be used to pay hazardous waste cleanup

costs and related claims not covered or actually compensated

under super fund.

While this finding effectively disposes of plaintiffs’ claim,

the court finds that there exists another, and equally compelling,

reason why plaintiffs’ motion must be denied. Even if it were

found that industry-supported tax monies could not be collected

for general containment, cleanup and remedial purposes, the

spill fund law nevertheless encompasses many other areas to

which such monies could be devoted which are clearly outside

the reach of § 114(c) and which may very well be of sufficient

magnitude to sustain the spill fund tax. As noted earlier,

plaintiffs’ sole attack against spill fund is based on the

preemption provisions of § 114(c). Except for the federal

Supremacy Clause argument based on § 114(c), plaintiffs nei-

ther raised nor attempted to support any argument that the

taxing provisions of spill fund were violative of any other consti-

tutional rights. Thus, plaintiffs do not suggest that there is an

actual conflict between the limited purposes of super fund and

the overall policy enunciated by New Jersey in spill fund.

Indeed, it may be said that the complete enforcement of the

state act might well effectuate the policy of the federal statute.

[11] It is noted first that § 114(c) explicitly exempts from

its provisions a state tax on the petrochemical industries in order

to finance (1) the purchase of hazardous response equipment,

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(2) the prepositioning of such response equipment and (3) other

preparations for the. response to a release of hazardous sub-

stances. Spill fund specifically authorizes such use of its fund

monies. N.J.S.A. 58:10—23.110(4). Clearly, the spill fund tax is

valid in so far as such monies are used to satisfy these purposes.

That these categories do not represent the exclusive pur-

poses to which spill fund tax monies may be devoted is disclosed

by a comparison of the coverage of the two acts. It is first noted

that super fund, by its very definition of hazardous substance

and pollutant and/or contaminant, excludes petroleum and

crude oil. § 101. Compare N.J.S.A. 58:10—23.11b(k). Petroleum

spills, not being compensable under super fund, it is clear that

the spill fund tax may be collected and used to pay such

claims—an additional nonpreempted use of tax revenues which

is authorized by the New Jersey Act.

[12, 13] Similarly, super fund makes no provision for the

compensation of nongovernmental, third-party damage claims.

N.J.S.A. 58:10—23.11g(a)(1) makes spill fund liable for all such

direct and indirect damages caused by a discharge of hazardous

substances. Accordingly, such claims are within the scope of

proper spill fund spending under § 114(c).

Additionally, spill fund authorizes payments for income or

property value losses caused by damage resulting from a dis-

charge of hazardous substances. Furthermore, spill fund covers

the cost of restoration or replacement of natural resources dam-

aged or destroyed by a discharge. Conversely, super fund pro-

vides limited damage coverage in relation to natural resources

and authorizes such compensation only if the release occurred

after December 11, 1980 and only if the claimants are the

United States or a state. Compare §§ 107(a)(4)(A), 107(f), .

111(c)(2), and 111(d)(1) with N.J.S.A. 58:10-23.11g(a). Fur-

thermore, super fund does not explicitly cover state fund admin-

istrative expenses and clearly does not support spill fund admin-

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istrative costs relating to petroleum spills, the reimbursement of

third-party damzge claims, and other claims not compensable

under the federal act. Accordingly, these expenditures are also

proper objects of spill fund spending.

Additionally, § 104(c)(3) of super fund specifically provides

that a state must contribute 10% or more “of the costs of reme-

dial action including all future maintenance,” in order to qualify

for federal funding. This expenditure obviously represents a cost

or claim which cannot be compensated by super fund and

accordingly is beyond the preemptive scope of § 114(c) and thus

a proper object of state taxation and spill fund spending. Addi-

tionally, a state is free to provide up-front operating dollars from

its industry-supported spill fund to finance remedial activities on

a temporary basis pending super fund reimbursement.

Clearly, it is evident that the foregoing areas ar

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Jurisdictional Statement — Exxon Corp. v. Hunt · 475 U.S. 355 | Frix