Utah Department of Environmental Quality v. Wind River Petroleum

881 P.2d 869, 246 Utah Adv. Rep. 6, 39 ERC (BNA) 1785, 1994 Utah LEXIS 61, 1994 WL 469207
CourtUtah Supreme Court
DecidedAugust 29, 1994
Docket930463
StatusPublished
Cited by4 cases

This text of 881 P.2d 869 (Utah Department of Environmental Quality v. Wind River Petroleum) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Utah Department of Environmental Quality v. Wind River Petroleum, 881 P.2d 869, 246 Utah Adv. Rep. 6, 39 ERC (BNA) 1785, 1994 Utah LEXIS 61, 1994 WL 469207 (Utah 1994).

Opinions

DURHAM, Justice:

Plaintiffs Utah Department of Environmental Quality (“DEQ”) and Kenneth L. Alkema, DEQ’s executive director, appeal from a district court order denying DEQ’s motion for summary judgment and granting summary judgment in favor of defendant Wind River Petroleum (“Wind River”). We vacate and remand for further proceedings.

This ease arises under the Utah Hazardous Substances Mitigation Act (the “Act”), Utah Code Ann. §§ 19-6-301 to -325 (1991 & Supp.1993). In March 1989, a farmer in Vernal, Utah, reported that “an incredible amount of what looked like straight diesel” was draining through a culvert and onto his land. To protect his land and livestock, the farmer plugged the culvert, thus creating a petroleum-filled “pond” on the other side. Because petroleum is a statutorily defined [871]*871hazardous material, DEQ immediately investigated the situation. Shortly thereafter, DEQ began continual pumping to prevent the pond from overflowing onto other property and further damaging the environment.

Based on a variety of reports, including a site assessment from an engineering and environmental consulting firm, Alkema determined that a nearby property owned by Wind River was the source of the contamination.1 Wind River had purchased the property in January 1988 and operated a Top Stop service station on the land.2 Alkema further found that the petroleum release presented a direct and immediate threat to public health or the environment. See Utah Code Ann. § 19-6-309(l)(a).

In light of this threat, Alkema exercised his emergency powers under section 19-6-309 of the Act and ordered Wind River, as owner or operator of the Top Stop site, to abate the release. Id. § 19 — 6—309(l)(a)(i). Wind River responded with an intra-agency appeal, leading Alkema to conclude that the company was “unwilling or unable to take abatement action.” Id. § 19-6-309(l)(b). Pursuant to sections 19-6-309(l)(b)(ii) and 19-6-309(2)(a), Alkema then authorized use of the Hazardous Substances Mitigation Fund (the “Fund”) to finance the pumping and ongoing investigation.3 In August 1990, after more information had been gathered, including a second site assessment by a second environmental consulting firm,4 Alkema again ordered Wind River to take abatement action, and Wind River again appealed. The record does not indicate whether Wind River pursued either intra-agency appeal.

Following Wind River’s second appeal, Alkema again determined that Wind River was unwilling or unable to abate the petroleum release. Consequently, he reauthorized use of Fund monies to address the problem. DEQ used these funds to pump the petroleum-filled pond until July 1991, when it installed an oil/water separator on the Top Stop site. Following installation of the separator, the contamination ceased to spread but costs continued to accrue.5

In October 1991, DEQ filed an action under section 19-6-310 of the Act seeking reimbursement from Wind River for the costs of its Top Stop cleanup. Section 19-6-310 authorizes DEQ to recover the costs of any investigation and abatement performed under section 19-6-309 from a group of statutorily defined “responsible parties.” Id. § 19-6-310(1). Section 19-6-310 also delineates the manner in which responsibility and liability must be apportioned among responsible parties. Id. § 19-6-310(2). Wind River denied that it had actively contributed to the release and thus disclaimed liability under : section 19-6-310.

After some initial discovery, both parties moved for summary judgment. The district court ruled in favor of Wind River, finding that section 19-6-310 “apportions responsi[872]*872bility and liability for the costs and abatement of the release of a hazardous material among responsible parties in proportion to their respective contributions to the release.” The court reasoned that Wind River was not liable for any investigation and abatement costs because DEQ had failed to prove that Wind River actively contributed to the release. DEQ appeals.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991). In reviewing the district court’s ruling, we accept the facts and inferences in the light most favorable to the losing party. Winegar, 813 P.2d at 107. Because a challenge to summary judgment presents for review only questions of law, we accord no particular deference to the district court’s conclusions but review them for correctness. Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111-12 (Utah 1991).

On appeal, DEQ challenges the district court’s interpretation of section 19-6-310. DEQ asserts that the Act, like its federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), contemplates a strict liability standard. Thus, DEQ argues that Wind River, a statutorily defined “responsible party” by virtue of its owner or operator status, is strictly liable for Fund expenditures at the Top Stop site. DEQ concludes that regardless of whether Wind River actively contributed to the release and regardless of whether Wind River’s petroleum tanks and lines leak, Wind River is strictly liable because it owns a piece of property that is releasing a hazardous material into the environment.6

Wind River, on the other hand, argues that the district court correctly construed section 19-6-310. Wind River claims that section 19-6-310, unlike CERCLA, apportions liability to a responsible party only when that party actively contributed to the hazardous release. Thus, although admitting that “petroleum products are located under and adjacent to [its] property” and that these products are migrating “across and from” its property, Wind River argues that summary judgment was appropriate because DEQ did not demonstrate that Wind River affirmatively contributed to the problem. Indeed, Wind River asserts that (1) five tests administered by DEQ and Wind River established that Top Stop’s petroleum tanks and lines do not leak, and (2) the contamination may have existed for thirty to forty years prior to Wind River’s purchase of the Top Stop property. Wind River also points to numerous alternative potential sources of the release to support its theory that the petroleum was only “passively migrating” across or from its land.

ANALYZING SECTION 19-6-310 OF THE ACT

This case requires the court to address a question of first impression. Does section 19-6-310 of the Utah Hazardous Substances Mitigation Act impose strict liability on responsible parties for the release of hazardous materials from their facilities? The proper construction of section 19-6-310 is a question of law. State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993); State v. James, 819 P.2d 781, 796 (Utah 1991).

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Bluebook (online)
881 P.2d 869, 246 Utah Adv. Rep. 6, 39 ERC (BNA) 1785, 1994 Utah LEXIS 61, 1994 WL 469207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utah-department-of-environmental-quality-v-wind-river-petroleum-utah-1994.