Acme Laundry Co. v. Secretary of Environmental Affairs

575 N.E.2d 1086, 410 Mass. 760

• Court: Massachusetts Supreme Judicial Court
• Decided: August 6, 1991
• Status: Published

Opinions

Abrams J.

Acme Laundry Company and Acme Laundry Company, Inc., filed suit alleging that the Department of Environmental Quality Engineering (DEQE)³ acted wrongfully by placing a lien on their property pursuant to the Massachusetts Oil and Hazardous Material Release Prevention Act. G. L. c. 2IE, § 13 (1990 ed.). Both sides moved for summary judgment. The judge allowed the defendants’ motion for summary judgment, and the plaintiffs appealed. We transferred the case on our own motion. We affirm.

We set forth the facts as presented in the record and the inferences that could be drawn therefrom as evidenced in the materials before the judge. See White v. University of Mass. at Boston, ante 553, 557 (1991). Acme Laundry Company, Inc. (Acme I), was organized in 1916 by the Eldredge family. Acme I acquired a parcel of land in Chatham, and operated a laundry business at that site from 1916 to 1985. In February, 1986, Acme I contracted to sell the property where it had conducted the laundry business. In December, 1986, Acme I adopted a plan of liquidation and dissolution. At that time, Acme I conveyed twelve parcels of land, including the site of the Chatham laundry business, to Acme Laundry Company (Acme II), a partnership. Acme II succeeded to the rights of Acme I in the contract for sale. In December, 1986, Kenneth Eldredge was the president of Acme I and Leo Eldredge was the treasurer. The Eldredges also were general partners of Acme II.

The prospective purchasers of the laundry site engaged an environmental engineering firm to examine the site. As part of that examination, two No. 6 fuel oil storage tanks were removed from underground. One tank had a hole in it, and the surrounding soil was discovered to be saturated with No. 6 fuel oil. The chief of the Chatham fire department notified the DEQE of the contamination. Harold Bolster, a DEQE employee, inspected the site in January, 1987. He spoke to Kenneth Eldredge, who stated that Acme II would clean up the contaminated site. In February, 1987, the DEQE sent Acme II a notice of responsibility confirming Kenneth El-dredge’s acceptance of responsibility, on behalf of Acme II, for the release of oil. The letter notified Acme II that DEQE had reason to believe that Acme II was a responsible party with liability under G. L. c. 21E, § 5 (o) (1), that this liability might include up to triple the cost of “all response costs incurred by the Department, including all contract, administrative, and personnel costs” and “all damages for injury, destruction, or loss of natural resources due to the release.” Tracking the language of the statute, the DEQE warned Acme II that any such liability constitutes a debt to the Commonwealth and creates a lien on all Acme II’s property. The letter noted that Kenneth Eldredge had informed the DEQE that Acme II intended to take the necessary response actions and had hired Goldberg Zoino Associates (GZA) to determine the extent of the contamination and necessary remedial action. The letter advised Acme II that a site assessment and recommendations for remedial action, along with all data generated by the assessment, must be submitted for review and approval by the DEQE.

The report prepared by GZA indicates significant oil contamination on the site. The thickest part of soil saturation extends more than twenty feet below the water table, and oil floating on the groundwater and dissolved in it extends beyond the area of oil-saturated soil. The groundwater flows toward Ryders Cove, fifty feet from the site, and Frost Fish Creek, two hundred feet from the site. Ryders Cove and Frost Fish Creek have been designated as areas of critical environmental concern by the Executive Office of Environmental Affairs.

In April, 1987, Acme Laundry Company, Inc. (Acme III), was incorporated. Leo Eldredge is the president, Kenneth El-dredge is the treasurer, and both are directors of Acme III. Acme III is not engaged in the laundry business.

Affidavits from two DEQE employees responsible for supervising the assessment and remedial activities at the site detail the Commonwealth’s involvement in these activities in the months following the discovery of the release. In January, 1987, Harold Bolster conducted a series of conferences, by telephone and in person, with Harold Eldredge, GZA, and representatives of the Chatham fire department and the “Chatham shellfish section.” He spent most of one day overseeing the excavation of contaminated soil from the site because Acme II had not hired an environmental consultant to oversee the excavation. In February and March, Bolster conducted other conferences with engineers from GZA concerning technical aspects of the site assessment which GZA was performing. In July, 1987, James Begley, another DEQE employee, assumed responsibility for oversight of the cleanup site. He conferred with GZA concerning DEQE’s requirements for the site assessment. In August, Begley spoke with Kenneth Eldredge and requested a copy of the GZA report. Eldredge refused to send the report. Begley then prepared a letter explaining that Eldredge was obliged by law to submit the site assessment to the DEQE. Subsequently, Begley held a conference with Eldredge’s attorney concerning the submission of the GZA report. Begley also visited the site to measure the distance from the spill to the nearest bodies of surface water.

On October 22, 1987, Acme II divided the property containing the contaminated soil into four parcels. One parcel includes all of the contaminated soil; the other three are free of contamination. Acme II conveyed the contaminated lot to Acme III. The only business of Acme III is holding property.

On October 23, 1987, Begley received the GZA report, and then spent two days reviewing it. In November, Begley held a further conference concerning the site cleanup. He reviewed five reports submitted by Groundwater Technologies, Inc. (GTI), the new environmental consulting firm employed by Acme II.

In November, 1987, the DEQE recorded a Statement of Claim and Notice of Lien, pursuant to G. L. c. 21E, § 13, against the property owned by Acme III. The property described included all four parcels of land. In November, 1988, the DEQE filed a discharge of the earlier lien and substituted two Statements of Claim, placing a lien on all properties owned by Acme II arid Acme III in Barnstable county.

On January 24, 1989, Acme II and Acme III filed this action requesting a declaration that the lien is invalid and that the three parcels of property unaffected by the release cannot in the future be subjected to a c. 21E lien. The complaint also requested an injunction requiring the DEQE to discharge the current lien and preventing the DEQE from imposing a future lien under c. 21E on the three parcels of uncontaminated land. A second amended complaint was filed in June, 1989, which added requests for damages and for a declaration that Acme II is not a liable party under G. L. c. 21E.

The plaintiffs state that the gravamen of their claim is that the DEQE could not place a lien on their property pursuant to the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 2IE, “because the DEQE has incurred no costs for the ‘assessment, containment, and removal’ ” of hazardous materials. Therefore, we look to the statute to determine how the Legislature defined “assessment” costs and when such costs can be the basis for a lien.

Chapter 21E “is drafted in a comprehensive fashion to compel the prompt and efficient cleanup of hazardous material.” Sheehy v. Lipton Indus., 24 Mass. App. Ct. 188, 192 (1987). The statute provides that the costs of cleanup are to be borne by those who are responsible for the release because they own or owned the land or because they caused the spill. G. L. c. 21E, § 5 (1990 ed.). The Legislature provided the DEQE with a number of different means of prodding a responsible party into undertaking cleanup actions, of ensuring that such actions are both timely and appropriate, and of recovering costs from the responsible party.⁴ The lien provision used by the DEQE in this case is one of the tools provided by the statute to aid the Commonwealth in ensuring that cleanup is prompt and efficient. Section 13 provides that “[a]ny liability to the commonwealth under this chapter shall constitute a debt to the commonwealth. Any such debt . . . shall constitute a lien on all property owned by persons liable under this chapter when a statement of claim naming such persons is recorded or filed.” G. L. c. 21E, § 13 (1990 ed.). To determine which persons are liable under the chapter and the extent of liability, we refer to § 5. Section 5 imposes liability without fault for releases of hazardous materials on various parties, including persons who currently own a contaminated site, or did own such a site at the time hazardous material was stored or disposed of at the site, and “any person who otherwise caused or is legally responsible for a release” of oil or hazardous material. This liability is imposed “(i) to the commonwealth for all costs of assessment, containment and removal incurred pursuant to [§§ 4 and 8] relative to such release . . . [and] (ii) to the commonwealth for all damages for injury to and for destruction or loss of natural resources, including the costs of assessing and evaluating such injury, destruction or loss, incurred or suffered as a result of such release. . . .” G. L. c. 2IE, § 5 (a) (1990 ed.).

We therefore must examine §§ 4 and 8 to determine what “costs of assessment, containment, and removal” create liability. Section 4 authorizes the department “to take or arrange for such response actions as it reasonably deems necessary.” G. L. c. 2IE, § 4 (1990 ed.). Section 8 authorizes the department to enter any site in order to “undertake such actions relative to the assessment, containment, and removal” of releases. The section specifies that the department may enter a site to “investigate, sample, and inspect” records, conditions, or property. G. L. c. 2IE, § 8 (1990 ed.). The “response actions” authorized by § 4 and “assessment” authorized under § 8 are defined in the act. “Response action” means “assess, assessment, contain, containment, remove, and removal.” G. L. c. 21E, § 2 (1990 ed.). “Assessment” means “such investigations, monitoring, surveys, testing, and other information gathering activities to identify: (1) the existence, source, nature, and extent of a release . . . ; (2) the extent of danger . . . ; and (3) those persons liable .... The term shall also include, without limitation, studies, services and investigations to plan, manage and direct assessment, containment, and removal actions, to determine and recover the costs thereof, and to otherwise accomplish the purpose of this chapter.” G. L. c. 2IE, § 2 (1990 ed.). In sum, c. 21E provides that liability under § 5 {a) (i), and thus a debt to the Commonwealth under § 13, is created where the Commonwealth engages in “investigations, monitoring . . . and other information gathering activities . . . [including], without limitation, studies, services, and investigations to plan, manage, and direct assessment . . . actions . . . .” If the DEQE incurs costs for any of those activities, then it has the authority and discretion to place a lien on all property of a responsible person by filing or recording a statement of claim. A statement of claim is defined by the statute as an instrument “declaring a lien upon the property ... for the payment of amounts due or to become due from such person . . . to the Commonwealth under this chapter.” G. L. c. 2IE, § 2 (1990 ed.). Thus, once the Commonwealth has incurred assessment costs, it may place a lien securing both the costs already incurred and those costs which will be incurred and become due in the course of ongoing monitoring and supervision.

The DEQE submitted two affidavits detailing the activities performed by two of its employees. These activities included visits to the site to oversee excavation and to investigate the site’s proximity to surface waters, and conferences with the responsible party and with the environmental consultants to plan, direct, and review the technical studies of the site and proposals for remedial work. The affidavits submitted by the DEQE quantify the costs incurred by the Commonwealth when the DEQE employees performed these activities and indicate that the department will continue to incur costs for monitoring and supervision.⁵ The costs incurred by the Commonwealth for these activities fall squarely within the statutory definition of “assessment” costs. The judge therefore was correct in concluding that, “as a matter of law . . . the costs the Commonwealth incurred are collectible, thus creating a liability against the plaintiffs and for which a lien may be imposed on their property.” Because the Commonwealth will continue to incur costs, the lien also may secure those costs which will become due in the future.

The plaintiffs maintain that the Commonwealth cannot be considered to have incurred “assessment” costs because Kenneth Eldredge, acting on behalf of Acme II, agreed to accept responsibility for the release and to perform necessary cleanup operations. The plaintiffs argue that c. 2IE should be interpreted as providing that no liability to the Commonwealth can accrue if a responsible party agrees to perform the cleanup. The words of the statute are to the contrary.* **⁶

The dissent states that a “response action” cannot be construed to include preliminary investigation activities because various provisions of the statute describe “preliminary assessment” actions which are to be taken in order to determine whether “response actions” are necessary. See G. L. c. 2IE, §§ 3A (d) (1), 8. The Legislature, however, specifically addressed the issue raised by the dissent. The Legislature provided a definition in § 2 which specifically and explicitly includes both preliminary assessment activities (“investigations . . . to identify: (1) the existence ... of a release . . . ; (2) the extent of danger . . . ; and (3) those persons liable”) and ongoing monitoring of assessment activities (“without limitation . . . services and investigations to plan, manage, and direct assessment, containment, and removal actions”) in the scope of “assessment.” The Legislature thus plainly stated that investigations to determine whether a release has taken place as well as services to “plan, manage, and direct assessment” are themselves “assessment.” It is, of course, appropriate to question whether under c. 21E “preliminary” assessment activities are to be considered as “assessment” activities and therefore as “response actions.” However, the Legislature definitively has answered that question: the term “assessment” “shall include, without limitation, studies, services, and investigations to plan, manage, and direct assessment, containment, and removal actions . . . .” G. L. c. 2IE, § 2 (1990 ed.). If there has been no release, then there can be no responsible party, and therefore no person who is liable under § 5. Thus, if the Commonwealth conducts preliminary assessment and discovers no release has occurred, then it cannot recoup the preliminary assessment costs. However, to interpret “response costs” as excluding preliminary assessment⁷ and monitoring costs would be to negate the words of the statute.

The plaintiffs refer to § 9 of c. 2IE, which authorizes the DEQE to order a responsible party to conduct assessment, containment, and removal operations. The plaintiffs imply that, if the DEQE allows a responsible party to begin cleanup operations, then the DEQE is acting pursuant to § 9. They further imply that thereafter the Commonwealth cannot recover any costs it incurs for investigation, planning, monitoring, and supervision of the responsible party’s activities. This theory is gainsaid by the statute. Section 9 specifically provides that “[issuance of an order under this section shall not preclude, and shall not be deemed an election to forego, any action authorized by [§ 4] or any action to recover . . . costs . . . .” G. L. c. 2IE, § 9 (1990 ed.). Section 4 authorizes the DEQE to incur costs for investigations, monitoring, and other information gathering activities, and planning, management, and direction of assessment, containment, and removal actions. Section 9 specifically preserves the DEQE’s authority to act pursuant to § 4. Therefore, the suggestion that action under § 9 precludes the Commonwealth from incurring and recovering investigation and assessment costs conflicts directly with the statute. Nowhere in the statute is there the slightest intimation that a responsible party’s announced intention to undertake cleanup precludes the Commonwealth from undertaking, and recovering for, investigative, monitoring, planning, and supervision costs.

The plaintiffs suggest that we look beyond the statute to Federal law for guidance in interpreting c. 2IE. They note the relationship between c. 21E and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq., which is in many ways analogous to the Massachusetts statute. They point in particular to a provision of CERCLA which authorized the Environmental Protection Agency (EPA) to take response actions “unless the [EPA] determines that such removal and remedial action will be properly done by the owner.” (Emphasis added.) 42 U.S.C. § 9604 (a) (1) (1983 ed.) (amended 1986). The applicable Federal regulation repeated this explicit limitation on EPA action when the EPA is convinced that the owner will clean up properly. 40 Code Fed. Regs. § 300.61 (1989 ed.). The plaintiffs urge us to infer from the Federal provisions that the Massachusetts Legislature intended a similar result when it drafted c. 2IE, and ask us to import the Federal limitation on agency action into Massachusetts law. The use of such an inference of legislative intent to interpret c. 21E in this case is inappropriate for three reasons. First, the Legislature provided definitions of the essential terms as used in the chapter, so that the meaning of the provisions has been set forth by the Legislature. Because the language of the statute is the principal source of insight into the legislative intent, Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies and Bonds, 382 Mass. 580, 582 (1981), we decline to alter the meaning of the State statute by reference to a “legislative intent” derived from a Federal statute. Particularly where the Federal provision is significantly different from the State provision, see infra, reference to a Federal statute in an attempt to determine the intent of the Massachusetts Legislature would be both unnecessary and improper. Massachusetts Community College Council MTA/NEA v. Labor Relations Comm’n., 402 Mass. 352, 354 (1988); Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). Second, the Massachusetts provision is significantly different from the Federal provision in that the Federal provision contained an extra phrase which was omitted from the Massachusetts provision. The DEQE is authorized “to take or arrange for such response actions as it reasonably deems necessary.” G. L. c. 2IE, § 4 (1990 ed.). Unlike § 9604 of CERCLA, section 4 contains no language limiting the authority of the agency to act. The Legislature chose to structure the DEQE’s authorization to take response actions free from the limitation expressed in CERCLA.⁸ “If the language of a statute differs in material respects from a previously enacted analogous Federal statute which the Legislature appears to have considered, a decision to reject the legal standards embodied or implicit in the language of the Federal statute may be inferred.” Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-433 (1983). Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 602 (1985). Vasys v. Metropolitan Dist. Comm’n, 387 Mass. 51, 54 (1982). Third, Congress has eliminated the limitation on EPA action which formerly existed. CERCLA currently authorizes the EPA to take any response measures which the EPA “deems necessary to protect the public health or welfare of the environment. When the [EPA] determines that such action will be done properly and promptly by the . . . responsible party, the [EPA] may allow such person to carry out the action ...” (emphasis added). 42 U.S.C.A. § 9604 (a) (1), as amended, Pub. L. 99-499, tit. I, § 104 (a) (West Supp. 1991). The applicable Federal regulation also has been rescinded. See 40 C.F.R. § 300 (1990). Thus, Congress has found it preferable to eliminate the limitation on agency action, with the result that § 9604 of CERCLA now resembles c. 2IE, § 4, more closely. We decline to mold our interpretation of c. 21E on a Federal provision which was significantly different from the Massachusetts law at the outset, and which now has been eliminated from Federal law.

Finally,⁹ the plaintiffs argue that the purposes of c. 21E are undercut when the DEQE places a lien on property of a responsible party who has expressed an intention to perform cleanup operations. They argue that the funds gained from selling the unaffected parcels of land could be used to help finance cleanup operations. While it is possible that funds generated by the sale of the uncontaminated lots might be used to finance a cleanup, there is no guarantee that the proceeds would be so used. If, in fact, the plaintiffs need to sell the uncontaminated parcels in order to finance the cleanup, the regulations allow them to provide alternative security in the form of a trust fund, standby trust fund, letter of credit, escrow deposit, or surety bond. 310 Code Mass. Regs. § 40.170 (2) and (3). The DEQE states that, before summary judgment entered, it offered to release the lien if the plaintiffs provided such alternative security, and the plaintiffs refused. The DEQE asserts that, had the plaintiffs agreed to provide alternative security at any time during the litigation, the DEQE would have released the lien. In these circumstances, we consider that the lien has functioned effectively to secure the Commonwealth’s recovery of its costs without interfering with the plaintiffs’ ability to finance cleanup operations.

The plaintiffs also argue that the lien provision functions as a disincentive for responsible parties to perform cleanup operations themselves. This argument is not convincing. We believe that the Commonwealth’s ability to place a lien to secure recovery of costs incurred for planning, monitoring, and supervising ongoing cleanup operations provides a powerful incentive to a responsible party to conclude the cleanup process as quickly and efficiently as possible. If a responsible party’s unsupported expression of willingness to clean up, in the face of transfer of properties, see note 6, supra, is enough to prevent the Commonwealth from employing the § 13 lien provision or recovering monitoring costs, then the party’s incentive will be simply to delay, because delay would entail no extra costs and would postpone expenditures for cleanup. Such a result would not “compel prompt and efficient cleanup.” See Sheehy v. Lipton Indus., 24 Mass. App. Ct. 188, 197 (1987).

Judgment affirmed.

3 Now the Department of Environmental Protection.

4 The statute also authorizes the department to order a responsible party to conduct assessment, containment, and removal actions. G. L. c. 21E, § 9 (1990 ed.). A violation of the statute, an order, or a regulation, is presumed to constitute irreparable harm to the public health, safety, welfare, or the environment. A violator is subject to civil penalty, a fine, or imprisonment. G. L. c. 21E, § 11 (1990 ed.). A responsible party may be liable to the Commonwealth for up to three times the costs incurred by the Commonwealth for response costs. G. L. c. 21E, § 5.

5 Because the Commonwealth came forward with evidence of the costs it incurred, we need not address the question whether liability to the Commonwealth arises if the Commonwealth has not incurred any costs.

6 We note that, although it is clear that Kenneth Eldredge accepted responsibility for the release on behalf of Acme II and expressed ah intention to perform cleanup operations, more recently Acme II seemingly has sought to place in question its status as a responsible party. In the second amended complaint, Acme II requested that the court declare that Acme II “is not a party liable under c. 21E.” The plaintiffs argue that “[i]n no event can a [c.] 21E lien be secured to property not contaminated when its owner is distinct from that of the contaminated parcel.” Acme II has rid itself of the contaminated property by transferring it to Acme III. Thus, in addition to arguing that the liens are unjustified because the DEQE has not incurred “response costs,” the plaintiffs are making a separate argument that once Acme II disposed of the contaminated parcel of land, no property of Acme II ever could be subject to a lien under c. 21E. Acme I was dissolved. Acme III now holds the contaminated parcel. However, we cannot determine from the record whether Acme III ever has accepted responsibility for the spill or has indicated its commitment to performing cleanup operations. Thus, of the three Acme Laundry Companies, the first is now dissolved, and the second accepted responsibility for the release but now seeks to avoid the Commonwealth’s statutory means of enforcing that responsibility. The third entity, which now holds the land, may not have accepted responsibility and conducts no business except to hold land. In these circumstances, the DEQE is entitled to view with skepticism the plaintiffs’ professed intention to perform prompt and efficient cleanup operations.

7 The costs which the Commonwealth seeks to recoup in this case were incurred after the fact of the release had been established.

8 The applicable regulation provides that the DEQE “may refuse to permit a PRP [potentially responsible person] ... to perform a response action” unless the department is persuaded that all requirements of c. 21E and the regulations will be met, that there will be no delay which might cause or exacerbate a hazard to health, public welfare, or the environment, and that “the PRP . . . has a satisfactory record of compliance with statutes and requirements enforced by the [department” (emphasis added). 310 Code Mass. Regs. § 40.170 (4) (d) (1988). Unlike the Federal regulation, the State regulation allows the DEQE to exclude a potentially responsible person from the assessment and cleanup process unless the DEQE is persuaded that the person will meet all four requirements set out in the regulation. The fact that one of the requirements is a past record of compliance with DEQE regulations is one indication that mere assurances of a party’s future good intentions are not enough to prevent the department from refusing to allow that party to perform response actions. The contrast between the State regulation and the Federal regulation emphasizes the difference between the State statute and the Federal statute before it was amended. See infra.

Furthermore, even in those situations where this regulation might prevent the DEQE from forbidding a responsible party from acting, there is nothing in the regulation which would prevent the DEQE from recovering, monitoring, and supervisory costs.

9 After oral argument, the plaintiffs brought to the attention of the court a recently decided Supreme Court case, Connecticut v. Doehr, 111 S.Ct. 2105 (1991). The plaintiffs argue that Doehr provides authority for the proposition that the lien provisions of G. L. c. 21E, § 13, infringe on their Federal due process rights. The plaintiffs failed to raise a due process argument below. The record therefore does not reflect any factual findings by the judge. Thus, we do not reach this issue. M.H. Gordon & Son v. Alcoholic Beverages Control Comm'n, 386 Mass. 64, 73 (1982). “ ‘Only when the impact of a statute upon particular individuals . . . and upon a set of definite facts ... has been shown, can a court decide a constitutional question with confidence that relevant considerations have not been overlooked.’ Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 246.” School Comm. of Springfield v. Board of Educ., 362 Mass. 417, 445 (1972). Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 660 (1983).

We do note that Doehr reaffirms the “truism” set out in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), that “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances.” Doehr, supra at 2112. The circumstances of the instant case are markedly different from those present in Doehr. Other differences may serve to further distinguish Doehr from the case at bar. Such differences could have been explored if the issue had been presented properly.