Peterborough Oil Co. v. Dep't of Envtl. Prot.

• Decision Date: 06 June 2016
• Docket Number: SJC–11851.
• Citation: 474 Mass. 443,50 N.E.3d 827
• Parties: PETERBOROUGH OIL COMPANY, LLC v. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 443

50 N.E.3d 827

PETERBOROUGH OIL COMPANY, LLC

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION.

SJC–11851.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted Oct. 8, 2015.

Decided June 6, 2016.

Robert D. Cox, Jr., Worcester, for the plaintiff.

Eric S. Brainsky, Seekonk, for Independent Oil Marketers Association of New England.

Maryanne Reynolds, Assistant Attorney General, for the defendant.

Edward J. DeWitt, Falmouth, for Association to Preserve Cape Cod, amicus curiae, submitted a brief.

Donald D. Cooper, Boston, for LSP Association, Inc., amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

DUFFLY, J.

After a spill of hazardous materials within a specified radius of a public water supply, Department of Environmental Protection (DEP) regulations require that those deemed to be liable undertake cleanup and monitoring actions to ensure the spill does not pose a danger to that water supply. See 310 Code Mass. Regs. §§ 40.0801, 40.0810, 40.0993(3)(a) (2014) ; 40.1030(2)(e) (2015). An exemption promulgated in 2007, however, exempts “oil” from some of these requirements when other enumerated requirements are met. See 310 Code Mass. Regs. § 40.0924(2)(b)(3)(a) (2014) (oil exemption). The DEP's definition of the term “oil” in this “oil exemption” is at the heart of this lengthy litigation between DEP and Peterborough Oil Company, LLC (Peterborough).

Peterborough owns a property, now vacant, in Athol, where it operated a gasoline station for more than ten years.¹ The property is located within a protection area for public water supply wells. In 1994, a release of leaded gasoline that originated from a subterranean gasoline storage tank was detected in soil on the site. Since then, DEP has required Peterborough to undertake supervised cleanup and monitoring activities at the site. In 2008, shortly after the oil exemption was established, Peterborough submitted a revised remediation plan to DEP, stating that further remediation was not required because the entirety of the leaded gasoline spilled falls within the definition of “oil” for purposes of the exemption. In 2011, DEP audited the site and issued a notice to Peterborough that the revised remediation plan did not comply with departmental requirements. The DEP explained that the meaning of “oil” in the exemption does not include gasoline additives such as lead. According to DEP, “oil” within the exemption refers only to the petroleum hydrocarbons naturally occurring in oils, but not to any additives such as lead. A spill of leaded gasoline, therefore, could not be completely excluded from further remediation under the “oil exemption.” The DEP denied Peterborough's request for reconsideration.

Peterborough thereafter filed an action in the Superior Court seeking declaratory and injunctive relief, contending that DEP's interpretation of its regulation was incorrect. Concluding that DEP's interpretation was reasonable, a Superior Court judge granted its motion for summary judgment, and issued a judgment declaring that “oil” within the meaning of the oil exemption is limited to petroleum hydrocarbons and does not include gasoline additives such as lead; the judge denied Peterborough's cross motions for summary judgment and injunctive relief.² Peterborough appealed, and we granted its petition for direct appellate review. We conclude that DEP's interpretation of its regulation is reasonable, and affirm the judgment.³

Discussion. A declaratory judgment may be sought in “any case in which an actual controversy has arisen.” See G.L. c. 231A, § 1. The requirement that there be an “actual controversy” should be construed liberally. See Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132, 134, 763 N.E.2d 38 (2002). An “actual controversy” may exist without final agency action, on the basis of an allegation that an improper agency interpretation of a regulation will harm the plaintiff. See Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 493, 425 N.E.2d 745 (1981), S.C., 390 Mass. 353, 455 N.E.2d 1200 (1983), citing Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293, 367 N.E.2d 796 (1977). Because none of the material facts are disputed, and Peterborough challenges whether DEP's interpretation of its regulation is correct as a matter of law, declaratory relief is appropriate here.

1. Statutory and regulatory framework. The Massachusetts Oil and Hazardous Material Release Prevention and Response Act, G.L. c. 21E (act), was enacted in 1983 to ensure the proper cleanup of sites contaminated with oil and hazardous materials. See G.L. c. 21E, §§ 1, 3 ; St. 1983, c. 7, § 5. The act grants DEP broad authority over cleanup of these contaminated sites. See G.L. c. 21E, § 3. “Oil” is defined under the act as

“insoluble or partially soluble oils of any kind or origin or in any form, including, without limitation, crude or fuel oils, lube oil or sludge, asphalt, insoluble or partially insoluble derivatives of mineral, animal or vegetable oils and white oil. The term shall not include waste oil, and shall not include those substances which are included in 42 U.S.C. [§ ] 9601(14). ”⁴ (Emphasis added).

G.L. c. 21E, § 2. In addition, to excluding from the definition of “oil” “substances which are included in 42 U.S.C. [§ ] 9601(14),” “oil” is explicitly excluded from the definition of “hazardous material” under the act. The act provides that a “hazardous material” is a

“material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil. ” (Emphasis added).

G.L. c. 21E, § 2.

To implement the cleanup process required under the act, G.L. c. 21E, § 3 (b ), DEP promulgated regulations known as the Massachusetts Contingency Plan (MCP). See 310 Code Mass. Regs. § 40.0001 (2014). The definitions of “oil” in the MCP is identical to the definition of oil in the act. See G.L. c. 21E, § 2 ; 310 Code Mass. Regs. § 40.0006 (2014).

The MCP creates a multiphased assessment and cleanup process whereby a contaminated site can reach either a “temporary” or a “permanent” solution, as determined by DEP. See 310 Code Mass. Regs. §§ 40.0006(2), 40.0006(12). A temporary solution means that the site has achieved a substantial elimination of hazardous material, but monitoring and mitigation efforts may remain ongoing indefinitely.⁵ A permanent solution means that, having been remediated, the site creates a condition of no significant risk to health, safety, public welfare, and the environment.⁶ See 310 Code Mass. Regs. § 40.0006(12).

The MCP also establishes additional cleanup requirements for sites where discharges pose a risk to a public water supply. See 310 Code Mass. Regs. § 40.0924. These requirements apply within two distinct zones: Zone I establishes a narrow, protective radius immediately surrounding the water supply; Zone II encompasses a larger area to address the risk that in extreme conditions, water from that location might enter the public water supply.⁷ Peterborough's site is located within a Zone II protective area. Under the oil exemption, DEP may assume that there is no risk of unacceptable levels of contaminants seeping into a public water supply from a Zone II spill where the “[c]ontamination is limited to oil,” and when other enumerated site conditions (effecting the likelihood of contaminants reaching the water supply) are met.⁸ See 310 Code Mass. Regs. §§ 40.0924(2)(b)(3)(a), 40.0926(8) (2014).

Before creating the oil exemption, DEP conducted studies of the hazards posed by different chemicals released in soil and groundwater. These studies showed that petroleum hydrocarbons are biodegradable and do not tend to travel through soil once released. Thus, DEP determined that if released within a certain radius of a water supply, and where other conditions were met, petroleum hydrocarbons would not tend to seep into that water supply. Based on the foregoing, DEP concluded that petroleum hydrocarbons pose a low safety risk to the public water supply when spilled within a specified radius of a potential water supply. The DEP, therefore, interprets the oil exemption to include only petroleum hydrocarbons.⁹

2. Statutory language. Peterborough contends that the act plainly and unambiguously includes leaded gasoline in its definition of “oil.” See G.L. c. 21E, § 2. On this view, Peterborough maintains that DEP erred in rejecting Peterborough's revised remediation plan.

As with any statute, we review questions concerning the meaning of an agency's enabling statute de novo. See Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481, 852 N.E.2d 1061 (2006). If the meaning of a term is clear in the plain language of a statute, we give effect to that language as the clearest expression of the Legislature's purpose. See Goldberg v. Board of Health of Granby, 444 Mass. 627, 632–633, 830 N.E.2d 207 (2005). If, however, the statutory language is “sufficiently ambiguous to support multiple, rational interpretations,” Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 186, 908 N.E.2d 740 (2009), citing Goldberg v. Board of Health of Granby, 444 Mass. 627, 633, 830 N.E.2d 207 (2005), we look to “the cause of [the statute's] enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated” (citation omitted). Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 329, 944 N.E.2d 1027 (2011). While the “duty of statutory...