Peterborough Oil Company, LLC v. Department of Environmental Protection (Lawyers Weekly No. 10-076-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11851   PETERBOROUGH OIL COMPANY, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester.     October 8, 2015. – June 6, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Hazardous Materials.  Oil and Gas.  Department of Environmental Protection.  Statute, Construction.  Administrative Law, Agency’s interpretation of regulation.  Regulation.  Massachusetts Oil and Hazardous Material Release Prevention Act.       Civil action commenced in the Superior Court Department on August 27, 2013.   The case was heard by William F. Sullivan, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Robert D. Cox, Jr., for the plaintiff. Eric S. Brainsky for Independent Oil Marketers Association of New England. Maryanne Reynolds, Assistant Attorney General, for the defendant. Edward J. DeWitt, for Association to Preserve Cape Cod, amicus curiae, submitted a brief. Donald D. Cooper, for LSP Association, Inc., amicus curiae, submitted a brief.     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 […]

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