Providence County Superior Court. (PC 10-404). Associate
Justice Walter R. Stone .
Plaintiff: Jennifer R. Cervenka, Esq., Paul Kessimian, Esq.
Defendant: Susan B. Forcier, Esq.
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
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
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) and operated by Getty Petroleum
Marketing, Inc. (GPM). 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.
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.
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.
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 (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.
DEM's receipt of the VHB report, it issued a "
Letter of Responsibility" to GPC in December
2002, 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. 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
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
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. 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
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.
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.
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).
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.
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 ...