On Appeal from the United States District Court for the District of New Jersey - Newark Civil Action No. 85-4190.
BEFORE: SLOVITER and STAPLETON, Circuit Judges and GREEN, District Judge*fn*
STAPLETON, Circuit Judge.
The Borough of Ridgefield and the Village of Ridgefield Park ("the Municipalities") appeal from the dismissal of their complaint against New York Susquehanna & Western Railroad ("NYS&W"). The complaint alleged that NYS&W's butane "transloading" operation violated regulations promulgated under the Hazardous Materials Transportation Act ("the HMTA"), 49 U.S.C. §§ 1801-1813 (1976 & Supp. 1986), as well as state statutory and common law. We agree with the district court that no implied private right of action exists under the HMTA. We therefore affirm the dismissal of the Municipalities' complaint.
As part of its rail transport business, NYS&W operates a railyard that is in the Borough of Ridgefield and adjacent to the Village of Ridgefield Park. Railroad tank cars of butane arrive at the railyard and sit on a siding until the butane is transferred directly from the tank cars into tank trucks. This transfer process is referred to as "transloading." Once loaded, the tank trucks exit the yard across a narrow converted railroad bridge, which also carries rail and automobile traffic, onto a street in the Village of Ridgefield Park.
The HMTA gives the Secretary of Transportation the authority to promulgate regulations to promote the safe transportation of hazardous materials in commerce, 49 U.S.C. §§ 1803-1804. The Secretary has published a hazardous material table that designates butane, a liquid petroleum gas, as a hazardous material. 49 C.F.R. § 172.101 (1985).
The Municipalities filed a complaint in district court on August 26, 1985, asserting inter alia that storing butane on the rail siding until it is transferred into tank trucks violates 49 C.F.R. § 174.204(a)(2)(ii), a regulation promulgated under the HMTA that mandates the use of permanent storage tanks for liquid gases such as butane. The HMTA contains no provision authorizing private suits to enforce the act or regulations issued under it. The district court concluded that, according to the test established by Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), and clarified by later Supreme Court cases, no implied private right of action exists with respect to the HMTA. Thus the Municipalities' allegations under the act did not state a claim upon which relief could be granted. After determining that the complaint presented no basis for relief under the federal statute, the district court dismissed the Municipalities' pendent state-law claims for want of subject matter jurisdiction, citing United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). the Municipalities filed a timely notice of appeal.
We review the district court decision for error in the application of controlling legal precepts. We find that Judge Stern, applying the appropriate legal rules, properly dismissed the complaint. A description of the familiar implied right of action analysis, as it applies to the facts of this case, follows.
The Supreme Court in Cort v. Ash specified several factors that are relevant to the issue of whether a statute provides an implicit private right of action. Under Cort the relevant inquiries are: 1) is the plaintiff one of the class for whose special benefit the statute was enacted? 2) is there an indication of legislative intent to provide or deny such a remedy? 3) is an implied right of action consistent with the underlying purposes of the legislative scheme? and 4) is the cause of action one traditionally relegated to state law, thus making a federal implied right inappropriate? 422 U.S. at 78.
As the district court here recognized, however, later Supreme Court decisions have pinpointed legislative intent as the key inquiry. See, e.g., Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 377-78, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). The four Cort factors are to be used to discern Congress' intent. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 68 L. Ed. 2d 500, 101 S. Ct. 2061 (1981). And as this court has explained in United States v. FMC Corp., 717 F.2d 775, 781 (1983), if the first two Cort factors fail to indicate an implied right of action, the last two cannot by themselves establish such a right.
In analyzing the HMTA, we "look first, of course, to the statutory language, particularly to the provisions made therein for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine Congressional intent." Middlesex County Sewerage Auth., 453 U.S. at 13. We agree with Judge Stern that such an analysis in this case produces "overwhelming evidence against the existence of any ...