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Power Test Realty Co. Ltd. v. Coit

Supreme Court of Rhode Island

March 4, 2016

Power Test Realty Company Limited Partnership
Janet Coit, in her official capacity as Director of the Rhode Island Department of Environmental Management. [1]

          Providence County Superior Court. (PC 10-404). Associate Justice Walter R. Stone .

         For Plaintiff: Jennifer R. Cervenka, Esq., Paul Kessimian, Esq.

         For Defendant: Susan B. Forcier, Esq.

         Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


         Indeglia, Justice.

         The discovery of petroleum in groundwater has led to a dispute that has brought the parties before this Court. This case comes before us pursuant to a writ of certiorari filed by Power Test Realty Company Limited Partnership (Power Test), whereby it sought relief from a Superior Court judgment that affirmed the final decision of the Department of Environmental Management (DEM or department) in a contested enforcement action. Power Test contends that the Superior Court erred in imposing liability upon it because: (1) there was no evidence that it caused the discharge of petroleum; (2) the evidence demonstrating that it had knowledge of the leaching petroleum was insufficient to cloak it with liability; and (3) it owns only a portion of the contaminated site and there was no evidence that the petroleum on a nearby parcel originated from the Power Test property. For the reasons set forth herein, we affirm the judgment of the Superior Court and quash the writ of certiorari heretofore issued.


         Facts and Travel

         The facts of this case are largely undisputed, gleaned predominantly from the stipulation of facts before the DEM hearing officer. Power Test is the owner of property located at the intersection of Dunellen Road and Dexter Road in East Providence, Rhode Island, more precisely identified as East Providence Assessor's Map No. 204, Block No. 1, Parcels No. 9 and 11 (the Power Test property). There are four pipelines installed in and below the Power Test property, which are owned by Getty Properties Corporation (GPC)[2] and operated by Getty Petroleum Marketing, Inc. (GPM).[3] Power Test neither owns nor operates any of the pipelines. In 1975, two of the four pipelines were shut down, capped off, and filled with " slurry," rendering them inactive. The two remaining pipelines (the active pipelines) were operated by GPC from 1975 until March 1997, when GPM took over operation until April 2003. The active pipelines were used to transport unleaded refined gasoline, No. 2 home heating fuel oil, and diesel fuel.

         Groundwater monitoring well OW-0102A is positioned in Dunellen Road, which is located between Parcel No. 15 to the north and Power Test's Parcel No. 11 to the south. Parcel No. 15 is owned by Capital Terminal Company, Inc. (CTC). On March 22, 2002, Pare Engineering Corporation, a consultant to CTC, observed a petroleum substance, known as Light Non-Aqueous Phase Liquid (LNAPL), in groundwater monitoring well OW-0102A.

         As a result of this detection, in early April 2002, GPM hired Tyree Organization Ltd. (Tyree) to conduct excavation activities along the pipeline easement in Parcel No. 11 to investigate the potential for a release of LNAPL from its pipelines. During these excavation activities, all pipelines were found to be in excellent condition, with no visible signs of corrosion or pitting. In addition, there was no staining and no olfactory or visible evidence of any release found beneath the exposed portions of the active pipelines. The active pipelines were also subjected to pressure tests and, after the pipelines passed these tests, DEM granted GPM the approval to recommence use of the pipelines. In addition, a set of tests were conducted by two separate environmental entities, whereby samples of LNAPL from monitoring well OW-0102A were collected and compared to gasoline samples from the GPM bulk storage tank that fed the active pipelines. The results from both entities demonstrated that the samples collected from monitoring well OW-0102A were " distinctly different" from the gasoline samples collected from the GPM storage tank.

         However, GPM was not the only party performing tests as a result of the LNAPL discovery. Vanasse Hangen Brustlin (VHB), another consultant hired by CTC, also tested a sample of petroleum product taken from monitoring well OW-0102A and compiled a report[4] (the VHB report) which it submitted to DEM in September 2002. The appendix to this report indicated that laboratory analysis of the petroleum sample taken from monitoring well OW-0102A indicated that the substance was a weathered leaded automotive gasoline.

         Following DEM's receipt of the VHB report, it issued a " Letter of Responsibility" to GPC in December 2002,[5] which indicated that the VHB report identified the GPC pipelines as the " likely source" of the petroleum in the groundwater, classified GPC as a " Responsible Party," and directed GPC to comply with certain remediation regulations. In response, GPC issued a letter to DEM denying liability for the LNAPL pollution, stating that because the active pipelines had been tested and determined to not be the source of the release, it was not in violation of any Oil Pollution Control (OPC) Regulations.[6] On that basis, GPC stated that DEM did not have the authority at that time to require it to engage in the remediation conduct outlined in the letter of responsibility. Thereafter, on July 21, 2003, DEM sent a " Notice of Intent to Enforce" to Power Test, GPC, and GPM. This notice stated that the property remained out of compliance, that the parties were required to comply with certain remediation regulations, and that the failure to comply with such regulations would result in the issuance of a formal enforcement action and the assessment of an administrative penalty.[7]

         On July 28, 2005, DEM's Office of Compliance and Inspection issued a " Notice of Violation" (NOV) to Power Test, GPC, and GPM for the detection of LNAPL in the groundwater at the Power Test Property (Parcels No. 9 and 11) and the CTC property (Parcel No. 15), referred to by the NOV as " the Site." The NOV asserted that the parties were in violation of certain provisions of the Rhode Island Water Pollution Control Act (WPA), DEM regulations promulgated thereunder, and DEM Remediation Regulations. The NOV also stated that the parties were in violation of G.L. 1956 § 46-12.5.1-3 of the Oil Pollution Control Act (OPCA) and Sections 6(a) and 12(b) of the OPC regulations. Based upon these violations, DEM ordered Power Test, GPC, and GPM to investigate and remediate the LNAPL detected at the site, and they were assessed a $50,000 administrative penalty.

         The parties timely appealed the NOV to DEM's Administrative Adjudication Division. After some discovery was conducted and an evidentiary hearing was held, the DEM hearing officer issued a recommended decision that was affirmed as a final decision by the Director of DEM.[8] In his decision, the hearing officer found that there was no evidence that there had been a discharge or release of petroleum from the active pipelines on the site and that the parties did not cause the initial release of the petroleum onto the premises. The hearing officer further found that the petroleum product was " leaching" through a deep aquifer in and below the Power Test property. In addition, the hearing officer found that " [t]he presence of the petroleum product in the groundwater was made known to [Power Test, GPC, and GPM] on or after March 22, 2002." Based upon these findings, among others, the hearing officer dismissed the violations cited under the WPA and the remediation regulations as to all of the parties. In addition, the hearing officer concluded that GPC and GPM were not in violation of the OPCA and OPC regulations.

         The same did not hold true for Power Test. According to DEM, the failure of a landowner to remediate oil contamination upon notice of its discovery renders the landowner liable under the OPCA for a continuing discharge regardless of whether the petroleum was released by a prior owner of the property. Accordingly, DEM ordered Power Test to remediate the site--including both the Power Test property and the CTC property--and imposed a $50,000 administrative penalty.

         On January 20, 2010, Power Test appealed the DEM decision to the Providence County Superior Court pursuant to the Rhode Island Administrative Procedures Act (APA), G.L. 1956 § 42-35-15(g). After briefing and oral argument, the hearing justice issued a decision in which he determined that the DEM decision was supported by " reliable, probative, and substantial evidence" and was not clearly erroneous, arbitrary, or capricious. In addition, the hearing justice found that the substantial rights of Power Test were not prejudiced. Accordingly, the hearing justice affirmed the decision of DEM. Power Test sought relief from the Superior Court's judgment through a writ of certiorari, which this Court granted on February 12, 2014.


         Standard of Review

         The dispute comes before us as a result of our issuance of a writ of certiorari pursuant to § 42-35-16 of the APA, whereby Power Test claims to be aggrieved by a final judgment of the Superior Court in an administrative agency appeal. In accordance with § 42-35-16, our review of the judgment of the Superior Court in administrative proceedings is limited to questions of law. Iselin v. Retirement Board of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1048 (R.I. 2008). It is well-settled that " questions of law--including statutory interpretation--are reviewed de novo." City of Pawtucket v. Laprade, 94 A.3d 503, 513 (R.I. 2014) (quoting Iselin, 943 A.2d at 1049).

         This Court's authority to review questions of law " permits us to determine whether there is any legally competent evidence to justify the conclusions of the reviewing court and agency." Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993). In so doing, " we must examine the record of the Superior Court to see whether the court concluded properly that [DEM's] ruling was [supported] by substantial evidence on the record." Rhode Island Public Telecommunications Authority v. Rhode Island State Labor Relations Board, 650 A.2d 479, 485 (R.I. 1994) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992)). " We do not weigh the evidence but merely ascertain whether the court was justified in rendering its judgment." Id. " Legally competent evidence is indicated by the presence of 'some' or 'any' evidence supporting the agency's findings." Id. (quoting Strafach v. Durfee, 635 A.2d 277, 280 (R.I. 1993)). While the factual findings of an administrative agency are afforded great deference, Laprade, 94 A.3d at 513, " an administrative decision can be vacated if it is clearly erroneous in view of the reliable, probative, and substantial evidence contained in the whole record." Environmental Scientific Corp., 621 A.2d at 208 (quoting Costa v. Registrar of Motor Vehicles, 543 A.2d 1307, 1309 (R.I. 1988)).



         Before this Court, Power Test asserts three claims of error. First, it claims that the DEM's interpretation of the OPCA is clearly erroneous because--according to Power Test--causation is required under the statute. Second, Power Test asserts that DEM's finding that it had knowledge of petroleum leaching under its property was not supported by the evidence. Last, Power Test claims that it should not be liable for the petroleum under the CTC property ...

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