Peterborough Oil Co., LLC v. Department of Environmental Protection , 474 Mass. 443 ( 2016 )

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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,
2
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
1
The facts are drawn from the undisputed facts in the
summary judgment record.
3
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 issued a notice to
Peterborough that the revised remediation plan did not comply
with departmental requirements. The DEP explained that the
meaning of "oil" in the exemption does not include gasoline
additives such as lead. According to DEP, "oil" within the
exemption refers only to the petroleum hydrocarbons naturally
occurring in oils, but not to any additives such as lead. A
spill of leaded gasoline, therefore, could not be completely
excluded from further remediation under the "oil exemption."
The DEP denied Peterborough's request for reconsideration.
Peterborough thereafter filed an action in the Superior
Court seeking declaratory and injunctive relief, contending that
DEP's interpretation of its regulation was incorrect.
Concluding that DEP's interpretation was reasonable, a Superior
Court judge granted its motion for summary judgment, and issued
a judgment declaring that "oil" within the meaning of the oil
exemption is limited to petroleum hydrocarbons and does not
include gasoline additives such as lead; the judge denied
Peterborough's cross motions for summary judgment and injunctive
4
relief.2 Peterborough appealed, and we granted its petition for
direct appellate review. We conclude that DEP's interpretation
of its regulation is reasonable, and affirm the judgment.3
Discussion. A declaratory judgment may be sought in "any
case in which an actual controversy has arisen." See G. L.
c. 231A, § 1. The requirement that there be an "actual
controversy" should be construed liberally. See Gay & Lesbian
Advocates & Defenders v. Attorney Gen., 436 Mass. 132, 134
(2002). An "actual controversy" may exist without final agency
action, on the basis of an allegation that an improper agency
interpretation of a regulation will harm the plaintiff. See
Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 493
(1981), S.C., 390 Mass. 353 (1983), citing Massachusetts Ass'n
of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins.,
373 Mass. 290, 293 (1977). Because none of the material facts
are disputed, and Peterborough challenges whether DEP's
interpretation of its regulation is correct as a matter of law,
declaratory relief is appropriate here.
2
The parties agree that if the oil exemption is not
applicable, Peterborough Oil Company, LLC (Peterborough), will
be required to engage in ongoing remediation efforts because of
the presence of lead in the ground.
3
We acknowledge the amicus brief in support of
Peterborough that was submitted by the Independent Oil Marketers
Association of New England; and the amicus briefs submitted by
LSP Association, Inc., and by the Association to Preserve Cape
Cod.
5
1. Statutory and regulatory framework. The Massachusetts
Oil and Hazardous Material Release Prevention and Response Act,
G. L. c. 21E (act), was enacted in 1983 to ensure the proper
cleanup of sites contaminated with oil and hazardous materials.
See G. L. c. 21E, §§ 1, 3; St. 1983, c. 7, § 5. The act grants
DEP broad authority over cleanup of these contaminated sites.
See G. L. c. 21E, § 3. "Oil" is defined under the act as
"insoluble or partially soluble oils of any kind or origin
or in any form, including, without limitation, crude or
fuel oils, lube oil or sludge, asphalt, insoluble or
partially insoluble derivatives of mineral, animal or
vegetable oils and white oil. The term shall not include
waste oil, and shall not include those substances which are
included in 42 U.S.C. [§ ] 9601(14)."4 (Emphasis added).
G. L. c. 21E, § 2. In addition, to excluding from the
definition of "oil" "substances which are included in 42 U.S.C.
[§] 9601(14)," "oil" is explicitly excluded from the definition
of "hazardous material" under the act. The act provides that a
"hazardous material" is a
"material including but not limited to, any material, in
whatever form, which, because of its quantity,
concentration, chemical, corrosive, flammable, reactive,
toxic, infectious or radioactive characteristics, either
separately or in combination with any substance or
substances, constitutes a present or potential threat to
4
The Federal Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (2012),
(CERCLA) was enacted to address similar concerns involving
cleanup of hazardous waste contamination as the Massachusetts
Oil and Hazardous Material Release Prevention and Response Act,
G. L. c. 21E. See Martignetti v. Haigh-Farr Inc. 425 Mass. 294,
321 (1997); Griffith v. New England Tel. & Tel. Co. 414 Mass.
824, 827 (1993), S.C., 420 Mass. 365 (1995).
6
human health, safety, welfare, or to the environment, when
improperly stored, treated, transported, disposed of, used,
or otherwise managed. The term shall not include oil."
(Emphasis added).
G. L. c. 21E, § 2.
To implement the cleanup process required under the act,
G. L. c. 21E, § 3 (b), DEP promulgated regulations known as the
Massachusetts Contingency Plan (MCP). See 310 Code Mass. Regs.
§ 40.0001 (2014). The definitions of "oil" in the MCP is
identical to the definition of oil in the act. See G. L.
c. 21E, § 2; 310 Code Mass. Regs. § 40.0006 (2014).
The MCP creates a multiphased assessment and cleanup
process whereby a contaminated site can reach either a
"temporary" or a "permanent" solution, as determined by DEP.
See 310 Code Mass. Regs. §§ 40.0006(2), 40.0006(12). A
temporary solution means that the site has achieved a
substantial elimination of hazardous material, but monitoring
and mitigation efforts may remain ongoing indefinitely.5 A
permanent solution means that, having been remediated, the site
creates a condition of no significant risk to health, safety,
5
A temporary solution "means any measure or combination of
measures which will, when implemented, eliminate any substantial
hazard which is presented by a disposal site or by any oil
and/or hazardous material at or from such site in the
environment until a Permanent Solution is achieved." 310 Code
Mass. Regs. § 40.0006 (2015).
7
public welfare, and the environment.6 See 310 Code Mass. Regs.
§ 40.0006(12).
The MCP also establishes additional cleanup requirements
for sites where discharges pose a risk to a public water supply.
See 310 Code Mass. Regs. § 40.0924. These requirements apply
within two distinct zones: Zone I establishes a narrow,
protective radius immediately surrounding the water supply; Zone
II encompasses a larger area to address the risk that in extreme
conditions, water from that location might enter the public
water supply.7 Peterborough's site is located within a Zone II
protective area. Under the oil exemption, DEP may assume that
there is no risk of unacceptable levels of contaminants seeping
into a public water supply from a Zone II spill where the
"[c]ontaminiation is limited to oil," and when other enumerated
site conditions (effecting the likelihood of contaminants
6
A permanent solution "means a measure or combination of
measures which will, when implemented, ensure attainment of a
level of control of each identified substance of concern at a
disposal site or in the surrounding environment such that no
substance of concern will present a significant risk of damage
to health, safety, public welfare, or the environment during any
foreseeable period of time." 310 Code Mass. Regs. § 40.0006.
7
The Massachusetts Contingency Plan (MCP) defines Zone I
as "the area within the protective radius surrounding a public
water supply well or wellfield" and Zone II as "that area of an
aquifer which contributes water to a well under the most severe
pumping and recharge conditions that can be realistically
anticipated." 310 Code Mass. Regs. § 40.0006.
8
reaching the water supply) are met.8 See 310 Code Mass. Regs.
§§ 40.0924(2)(b)(3)(a), 40.0926(8) (2014).
Before creating the oil exemption, DEP conducted studies of
the hazards posed by different chemicals released in soil and
groundwater. These studies showed that petroleum hydrocarbons
are biodegradable and do not tend to travel through soil once
released. Thus, DEP determined that if released within a
certain radius of a water supply, and where other conditions
were met, petroleum hydrocarbons would not tend to seep into
that water supply. Based on the foregoing, DEP concluded that
petroleum hydrocarbons pose a low safety risk to the public
water supply when spilled within a specified radius of a
potential water supply. The DEP, therefore, interprets the oil
8
Title 310 Code Mass. Regs. § 40.0926(8) (2014) provides
that "[n]o exposure potential" exists as to sites described in
310 Code Mass. Regs. § 40.0924(2)(b)3 if, in addition to the
restriction that "the contamination is limited to 'oil,'" these
conditions are met:
"(a) Demonstration of source elimination or control at
the disposal site as described in 310 [Code Mass. Regs.
§] 40.1003(5); (b) Demonstration of diminishing contaminant
concentrations throughout the horizontal and vertical
extent of the plume; (c) Demonstration that contaminant
concentrations are not detected at or above analytical
limits appropriate for a GW-1 area [groundwater near a
public water supply] at the downgradient edge of the plume,
at least 1,000 feet from the Public Water Supply well; and
(d) The demonstrations pursuant to 310 [Code Mass. Regs.
§] 40.0926(8)(b) and (c) are confirmed by a minimum of two
years of quarterly groundwater monitoring conducted after
the termination of any Active Remedial System and after the
achievement of such contaminant concentrations."
9
exemption to include only petroleum hydrocarbons.9
2. Statutory language. Peterborough contends that the act
plainly and unambiguously includes leaded gasoline in its
definition of "oil." See G. L. c. 21E, § 2. On this view,
Peterborough maintains that DEP erred in rejecting
Peterborough's revised remediation plan.
As with any statute, we review questions concerning the
meaning of an agency's enabling statute de novo. See Commerce
Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006). If
the meaning of a term is clear in the plain language of a
statute, we give effect to that language as the clearest
expression of the Legislature's purpose. See Goldberg v. Board
of Health of Granby, 444 Mass. 627, 632-633 (2005). If,
however, the statutory language is "sufficiently ambiguous to
support multiple, rational interpretations," Biogen IDEC MA,
Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 186 (2009),
citing Goldberg v. Board of Health of Granby, 444 Mass. 627, 633
9
"Oil" is frequently understood in terms of its chemical
composition of petroleum hydrocarbons. See Chambers Dictionary
of Science and Technology 807, 854 (1999); McGraw-Hill
Dictionary of Scientific and Technical Terms 1466, 1569 (6th ed.
2003). See also Environmental Science Deskbook §§ 2:58, 3:84
(Conrad, ed. 2014) (stating that petroleum products are category
of petroleum hydrocarbons, and various fuel oils result from
process of creating fractions of petroleum hydrocarbons).
Standard dictionaries of the English language define "oil"
similarly. See, e.g., Webster's New Universal Unabridged
Dictionary 1346, 1449 (2003); American Heritage Dictionary of
the English Language 1257, 1355 (3d ed. 1992).
10
(2005), we look to "the cause of [the statute's] enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated" (citation omitted). Entergy Nuclear Generation
Co. v. Department of Envtl. Protection, 459 Mass. 319, 329
(2011). While the "duty of statutory interpretation is for the
courts . . . an administrative agency's interpretation of a
statute within its charge is accorded weight and deference . . .
Where the [agency's] statutory interpretation is reasonable
. . . the court should not supplant [its] judgment" (citations
omitted). Dowling v. Registrar of Motor Vehicles, 425 Mass.
523, 525 (1997), quoting Massachusetts Med. Soc'y v.
Commissioner of Ins., 402 Mass. 44, 62 (1988). "Our deference
is especially appropriate where, as here, the statutes in
question involve an explicit, broad grant of rule-making
authority." Goldberg v. Board of Health of Granby, supra at
634. See Dowell v. Commissioner of Transitional Assistance,
613B614 (1997).
In support of its claim that DEP's understanding of the
term "oil" is incorrect under the plain language of the act,
Peterborough argues that the statutory definition of "oil" is
broad, encompasses any type of fuel or crude oil, and explicitly
defines gasoline as a "partially soluble" "fuel oil" derived
from a "mineral" oil. This argument, however, does not take
11
into account that the statute then excludes from the definition
of "oil" a list of substances, identified as "hazardous" under
§ 9601(14) of the Federal Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (2012)
(CERCLA). See G. L. c. 21E, § 2. Lead is included on one of
the CERCLA lists of hazardous substances, see 40 C.F.R. § 302.4
(2015), and therefore is excluded from the act's definition of
"oil." See G. L. c. 21E, § 2.
While it distinguishes between "oil" and "hazardous
substances," the act does not explain how a hazardous substance
intermixed with an oil should be treated. For our purposes, it
does not specify how to treat the lead in leaded gasoline, where
lead is "hazardous," but other parts of the mixture fall within
the oil exemption. This ambiguity is not resolved by the
reference in the act to CERCLA's definition of hazardous
materials.
CERCLA's definition of hazardous materials contains a so-
called "petroleum exclusion" explicitly providing that petroleum
may be excluded from certain cleanup requirements. See 42
U.S.C. § 9601(14). Leaded gasoline has been understood to fall
within this "petroleum exclusion," albeit that lead is a
hazardous substance, because of CERCLA's use of the term
"petroleum." See, e.g., Wilshire Westwood Assocs. v. Atlantic
Richfield Corp., 881 F.2d, 801, 803-804 (9th Cir. 1989). The
12
act, however, does not incorporate CERCLA's "petroleum
exclusion." To the contrary, the act's definition of oil does
not use the term "petroleum," and does not define "oil" by
reference to the definition of "petroleum" in CERCLA. On its
face, the language defining "oil" in the act incorporates only
that portion of the CERCLA definition that enumerates materials
that are "hazardous substances." The act's definition of "oil"
does not explicitly incorporate CERCLA's exceptions to its
enumeration of "hazardous materials." Indeed, the oil
definition does not use the term "hazardous substance."
The act as a whole also creates greater liability for
cleanup of oil spills than does CERCLA. See Griffith v. New
England Tel. & Tel. Co. 414 Mass. 824, 830 (1993). Nothing in
the act's language suggests that its definition of "oil" is
meant to be coextensive with that of CERCLA, or to include
CERCLA's exclusions of certain hazardous substances. See Id. at
829-830. We therefore do not agree that the act unambiguously
incorporates CERCLA's "petroleum exclusion." See ACME Laundry
Co. v. Secretary of Envtl. Affairs, 410 Mass. 760, 771 (1991),
quoting Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass.
427, 432-433 (1983) (declining to interpret act in light of
CERCLA because differences in language represent "a decision to
reject the legal standards embodied or implicit in" CERCLA).
See also DaRosa v. New Bedford, 471 Mass. 446, 452 (2015);
13
Martignetti v. Haigh-Farr Inc., 425 Mass. 294, 321 (1997)
(differences in statutory language require differing
applications of similar provisions in CERCLA and act).
Accordingly, we are unable to read into the statutory language a
plain indication that the Legislature meant to include leaded
gasoline within the definition of "oil," where the definition
also provides that lead is not an "oil."
3. Legislative intent. Because the statutory language is
ambiguous, we turn to consideration of the legislative intent.
See Entergy Nuclear Generation Co. v. Department of Envtl.
Protection, supra at 329.
The act "was drafted in a comprehensive fashion to compel
the prompt and efficient cleanup of hazardous material,"
Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 223 (2002).
"The purpose of the MCP is, among other things, to 'provide for
the protection of health, safety, public welfare and the
environment. . . .'" Bank v. Thermo Elemental Inc., 451 Mass.
638, 653 (2008), quoting 310 Code Mass. Regs. § 40.0002 (1995).
The act requires DEP to promulgate regulations to identify,
assess, and mitigate sites where there has been a release of
hazardous materials, and to establish standards for compliance
with cleanup requirements. See G. L. c. 21E, §§ 3A (d), (g).
In promulgating these standards, the act requires DEP to
"eliminate any substantial hazard to health, safety, public
14
welfare, or the environment which is presented by the site or by
any oil or hazardous materials at or from the site in the
environment." G. L. c. 21E, § 3A (f).
In light of the act's purpose to compel the cleanup of
hazardous material, and the legislative mandate that DEP ensure
compliance with that purpose, interpreting leaded gasoline
entirely as an "oil" would stretch the meaning of the "oil
exemption" to the point that it would become virtually a
nullity. In particular, under such an expanded definition, any
hazardous material mixed with oil would appear to qualify for
less stringent treatment under the oil exemption. Such an
interpretation would eviscerate the legislative purpose. See,
e.g., Mullally v. Waste Mgt. of Mass., Inc., 452 Mass. 526, 531
(2008) (statutory construction should not "frustrate the general
beneficial purposes of the legislation" [citations omitted]);
Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421
Mass. 106, 113 (1995) ("strictly literal reading" of statute
should not be adopted if result would "thwart or hamper the
accomplishment of the statute's obvious purpose").
4. Creation of the oil exemption. Furthermore, the
history of DEP's drafting of the "oil exemption" is instructive
as to its view, at the time the exemption was enacted, that the
lead in leaded gasoline was not included within the definition
of "oil." The DEP created the oil exemption based on concern
15
that very few sites had achieved a permanent solution after
gasoline spills. The DEP, therefore, conducted studies at
contaminated sites to determine the reason for the low rate of
permanent resolution. Through these studies, DEP determined
that, in part, the reason for the low remediation rate was the
manner in which the risk assessment to determine whether a
temporary or a permanent solution was available at a particular
site was conducted.
Under the MCP, DEP determines risk to a public water supply
by assessing the concentrations of specific substances, defined
by their chemical properties and composition, in the soil near a
contaminated site. See 310 Code Mass. Regs. §§ 40.0902(2)(a),
40.0904, 40.0924(2)(b)(3)(a), 40.0996 (2014). Where
concentrations of individual substances of particular concern
exceed certain levels, a "permanent" solution at a given site is
not achievable unless and until those concentrations can be
reduced to specified limits. See 310 Code Mass. Regs.
§ 40.1040(1)(a) and (2)(b) (2015). Prior to DEP's promulgation
of its exemption, the MCP deemed contamination by petroleum
hydrocarbons (found in every gasoline spill) as hazardous to the
public water supply, without factual demonstration that
petroleum hydrocarbons actually posed a threat to the safety of
drinking water.
The DEP's studies showed that petroleum hydrocarbons had
16
unique properties. For example, if spilled in soil within a
specified area near a potential water supply, the petroleum
hydrocarbons did not appear to seep into that water supply. The
DEP concluded this was because they were biodegradable, tended
to be relatively stationary, and did not move through soil
toward groundwater. Therefore, DEP concluded, petroleum
hydrocarbons were unlikely to contaminate the drinking supply if
released within a distance equating to the Zone II radius of a
possible water supply, if all other necessary site conditions
were met.
As a result of these studies, DEP created the "oil
exemption" as a narrow exemption limited to petroleum
hydrocarbons. The exemption applied to Zone II sites (known as
GW-1 areas) whose groundwater is located within a potential
drinking water source area, but where spill contamination is
limited to petroleum hydrocarbons. See 310 Code Mass. Regs.
§§ 40.0924(2)(b)(3)(a); 40.0932(4)(a)-(b) (2014).
5. DEP's interpretation of the oil exemption. In DEP's
view, limiting the oil exemption to petroleum hydrocarbons
comports with the legislative mandate while providing
flexibility in remediation efforts of hazardous spills. Only
petroleum hydrocarbons have been shown not to present a
"significant risk of harm to health, safety, public welfare, or
the environment during any foreseeable period of time," assuming
17
other required conditions for a "permanent" solution are met.
See 310 Code Mass. Regs. § 40.0006. Expanding the definition to
include contaminants either known to be hazardous, or whose
properties are less understood, would contravene the legislative
mandate. See 310 Code Mass. Regs. § 40.0007(1) (2014) (MCP
"shall be construed to effectuate the purposes of" act).
"An agency's interpretation of its own regulation and
statutory mandate will be disturbed only 'if the "interpretation
is patently wrong, unreasonable, arbitrary, whimsical, or
capricious."'" Box Pond Ass'n v. Energy Facilities Siting Bd.,
435 Mass. 408, 416 (2001), quoting TBI, Inc. v. Board of Health
of N. Andover, 431 Mass. 9, 17 (2000).
Although the statutory and regulatory definition of "oil"
does not explicitly reference the term "petroleum hydrocarbons,"
DEP consistently has interpreted the oil exemption to apply only
to petroleum hydrocarbons. When it issued the proposed
exemption for public comment, DEP termed the exemption
"Petroleum Hydrocarbons in GW-1 Areas, 40.0924(2)(b)(3)." No
comments apparently were received indicating confusion over the
term "petroleum hydrocarbons" in this context. One comment
indicated that the industry understood the term as a technical
term for "oil," which excluded gasoline additives. That comment
stated, "Proposal should not be limited to [o]il; it should
extend to additives . . . . The limitation to [o]il is likely
18
to exclude all gasoline and many fuel oil releases." In
response, DEP clearly explained that the exclusion was not
intended to include "all gasoline," stating the "proposal was
not extended to additives."
Risk assessment under the MCP requires DEP to examine the
concentrations of specific substances, defined by their chemical
properties and composition, in the public water supply. See 310
Code Mass. Regs. §§ 40.0902(2)(a), 40.0904, 40.0924, 40.0996.
The oil exemption appears in the portion of the regulatory
scheme governing response actions to contamination on the basis
of risks posed by specific chemicals. 310 Code Mass. Regs.
§ 40.0924(2)(b)(3)(a). Because the regulatory scheme relies on
distinctions between substances on the basis of chemical
composition, DEP's decision to interpret "oil" similarly, as
defined with reference to its chemical composition, is
reasonable.10 See Simmons v. State Examiners of Electricians,
10
Peterborough challenges the interpretation of the
Department of Environmental Protection (DEP) in part because DEP
uses a less technical definition of "oil" in some other sections
of the MCP, not related to spill cleanup near public water
supplies. Where a term's definition is generally applicable
throughout a statute, that term nonetheless may be interpreted
differently for purposes of a particular section, if the context
so requires. See Banushi v. Dorfman, 438 Mass. 242, 244-245
(2002); Care & Protection of Jeremy, 419 Mass. 616, 622 (1995).
Because the MCP creates additional cleanup requirements near
public water supplies, and requires DEP to analyze these
requirements on the basis of narrow and technically defined
distinctions between chemical substances, DEP can reasonably use
a narrow and technical definition for purposes of these
19
395 Mass. 238, 243 (1985) ("If a word or phrase has a technical
or specialized meaning, this court will adopt that meaning in
its construction of the statute").
The DEP's more narrow interpretation advances its mandate
to ensure the cleanup of spills posing a threat to public health
and safety, while reasonably permitting less stringent
remediation based on the scientific studies it conducted
concerning the observed levels of contamination in the public
water supply. See Northeast Energy Partners, LLC v. Mahar
Regional Sch. Dist., 462 Mass. 687, 693 (2012) ("General
expressions may be restrained by relevant circumstances
showing . . . intent that they be narrowed and used in a
particular sense" [citation omitted]). Peterborough's proffered
interpretation, by contrast, would require treatment of
hazardous substances such as lead, as though they were not
hazardous. The DEP's interpretation that the oil exemption does
not exempt hazardous fuel additives from cleanup requirements
reasonably furthers the legislative purpose, and ensures that
DEP will exempt from cleanup requirements only those substances
that do not pose the very risks the MCP is designed to mitigate.
See Malloch v. Hanover, 472 Mass. 783, 791 (2015) ("We interpret
separate sections of statutes as a whole to produce internal
consistency, . . . and to give a 'rational and workable effect'"
additional requirements.
20
[citations omitted]); 310 Code Mass. Regs. § 40.0002(1)(a)(1)
(2014) (MCP provides "for the protection of health, safety,
public welfare and the environment)."
Judgment affirmed.