On Appeal from the United States Bankruptcy Court for the District of New Jersey.
Gibbons, Garth and Higginbotham, Circuit Judges.
This appeal presents us with the identical issue presented by the companion case of In re Quanta Resources Corp., (City of New York and State of New York v. Quanta Resources Corp.), 739 F.2d 912 (3rd. Cir. 1984). Because we have decided to reverse the district court's order in the companion case, in which New York was the appellant, we will also reverse the bankruptcy court's order in this case.
Quanta Resources Corp. (Quanta) leased and operated a facility on a site in Edgewater, New Jersey, at which Quanta processed and resold waste oil and oil sludge. Quanta operated the site under "temporary operating authorities" (TOA's) issued by the New Jersey Department of Environmental Protection (NJDEP). These TOA's prohibited Quanta from accepting PCB-contaminated oil.
On June 23, 1981, NJDEP found PCB-contaminated oil at the site. On July 2, 1981, Quanta agreed to cease operating at the Edgewater location. On October 6, 1981, while NJDEP and Quanta were negotiating as to Quanta's obligation to clean up the contaminated oil, Quanta filed a petition in bankruptcy under chapter 11 of the Bankruptcy Code, an action which was later (on November 12, 1981) converted to a chapter 7 liquidation. On October 7, 1981, NJDEP issued an administrative order requiring Quanta to cease operations, close the facility within one year, and clean up all hazardous materials.
On April 23, 1983, the Trustee for Quanta gave notice of proposed abandonment of the facility under 11 U.S.C. § 554 of the Bankruptcy Code, including the waste oil contained in tanks. The Trustee excepted from this notice that part of the oil which was free of significant contamination from PCB's and was the subject of a pending sale agreement.
NJDEP opposed the abandonment, arguing that the abandonment would violate New Jersey law because oil contaminated with PCB's must be stored and disposed of in compliance with state regulations. According to the state, abandonment would contravene these requirements and pose a threat to public health and safety because the oil was stored in leaking and insecure tanks, creating a danger of spillage into the Hudson River. NJDEP argued that the estate had sufficient funds to protect the public from the hazards.
After a hearing, by order dated May 20, 1983, the Bankruptcy Court authorized the requested abandonment of the oil, the order stating that its entry was to "be deemed to constitute the abandonment of the . . . property by the Trustee effective May 17, 1983, nunc pro tunc." In re Quanta Resources Corp., No. 81-05967 (Bankr. D.N.J. May 20, 1983). The sale of the remaining oil was completed in June 1983, and the Trustee vacated the premises on July 1, 1983.
The parties consented to NJDEP's taking a direct appeal to this court under 11 U.S.C. § 405(c)(1)(B). We therefore have appellate jurisdiction. See 28 U.S.C. § 1293(b) & note preceding id. § 1471 (appellate jurisdiction to consider such appeals).
The instant case does not present us with a significantly different factual situation from the presented to us in In re Quanta Resources Corp., 739 F.2d 912(3rd. Cir. 1984). In this case, abandonment of the property and the toxic oils will effect a disposal of toxic waste in a manner that contravenes New Jersey environmental protection law.*fn1 There is no principled distinction between the issues presented in this case and those presented in the companion Quanta case in which New York is the appellant. Thus the analysis and reasoning of 739 F.2d 912 apply equally to the case at bar. We hold that ...