| Leonard B. Knee, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Appellee
| Perry D. McDaniel, Esq.
Martha E. Barer, Esq.
Charleston, Charleston, West Virginia
Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER and ALBRIGHT concur, and reserve the right to file
statute, or administrative rule, may not, under the guise of 'interpretation,'
be modified, revised, amended or rewritten. Syl. pt. 1, Consumer
Advocate Div. of Pub. Serv. Comm'n v. Public Serv. Comm'n of West Virginia,
182 W. Va. 152, 386 S.E.2d 650 (1989).
2. While long standing interpretation of its own rules by an administrative body is ordinarily afforded much weight, such interpretation is impermissible where the language is clear and unambiguous. Syl. pt. 3, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
The West Virginia Department
of Environmental Protection (DEP) appeals a lower court judgment
that construed the Groundwater Protection Act, W. Va. Code §§ 22-12-1
to -14, and an accompanying regulation, W. Va. C.S.R. § 47-57-4.1
(1994), as precluding DEP from ordering appellee Cookman Realty Group, Inc.
(Cookman Realty) to eliminate motor-oil contamination from its
property in Grant County absent evidence that Cookman Realty was the originator
of such pollution. DEP argues that the circuit court erred in failing to afford
proper deference to its interpretation of its own legislative rule, which
DEP argues is ambiguous as to the reach of the agency's power to order remediation.
We conclude that the subject regulation clearly and unambiguously limits the
agency to requiring remediation only from those who originate contamination
that results in a threat to groundwater, and accordingly affirm the circuit
Apparently as a result of
Cookman Realty's self-reporting, DEP requested that additional investigation
be undertaken to determine the full extent of contamination. A second report
issued by Triad in June 1997 confirmed that the pollution was concentrated
in the southwestern corner of Cookman Realty's property, with contamination
levels dropping significantly in proportion to the distance from the Petersburg
(See footnote 1)
Based upon these reports, DEP, through its Office of Water Resources, issued Order No. 4059 on August 21, 1998. This administrative order was issued under the authority of the Groundwater Protection Act (the Act), and requires both Cookman Realty and Petersburg Motor to undertake remediation of their respective properties. Under the Act, the Environmental Quality Board (the Board) is authorized to establish standards regarding the purity and quality for groundwater of the state. . . . W. Va. Code § 22-12-4(a) (1994) (Repl. Vol. 1998). The Act further provides that
[w]here the concentration of a certain constituent exceeds such [groundwater quality] standard due to human-induced contamination, no further contamination by that constituent is allowed, and every reasonable effort shall be made to identify, remove or mitigate the source of such contamination, and to strive where practical to reduce the level of contamination over time to support drinking water use.
W. Va. Code § 22-12-4(b). DEP is correspondingly charged with the responsibility to
develop groundwater protection practices to prevent groundwater contamination from facilities and activities within their respective jurisdictions consistent with this article. Such practices shall include, but not be limited to, criteria related to facility design, operational management, closure, remediation and monitoring. Such agencies shall issue such rules, permits, policies, directives or any other appropriate regulatory devices, as necessary, to implement the requirements of this article.
W. Va. Code § 22-12-5(d) (1994) (Repl. Vol. 1998).
(See footnote 2)
DEP is expressly authorized to propose legislative rules implementing the
provisions of the Act, as governed by the requirements of the West Virginia
Administrative Procedures Act.
(See footnote 3) See W. Va. Code
§ 22-12-5(c) (1994) (Repl. Vol. 1998).
DEP has exercised this delegated authority, resulting in the promulgation of, among other regulations, W. Va. C.S.R. § 47-57-4.1 (1994):
Except for any source or class of sources which has been granted a variance for the particular contaminant at issue, any person who owns or operates a source subject to the Act which has caused, in whole or in part, the concentration of any constituent to exceed any applicable groundwater quality
standard subject to the Act, must cease further release of that contaminant
and must make every reasonable effort to identify, remove or mitigate the
source of such contamination and strive where practical to reduce the level
of contamination over time to support drinking water use of such groundwater.
(Emphasis added.) The regulations specify that a source is to be understood to mean any facility or activity which has caused a release or is reasonably likely to cause a release, W. Va. C.S.R. § 47-57-2.13 (1994), with a release being defined, in relevant part, as any act or omission that results in the . . . leaching of materials or contaminants in a manner that has caused . . . entry of a constituent to groundwater. W. Va. C.S.R. § 47-57-2.12 (1994).
Cookman Realty appealed
DEP's Order No. 4059 to the Environmental Quality Board on September 22, 1998.
(See footnote 4)
Following an evidentiary hearing, where evidence was presented tending
to show that the detected contamination was the result of Petersburg Motor's
long-standing practice of spilling and disposing of used motor oil along the
southwestern corner of the Cookman Realty property, the Board vacated DEP's
remediation order by a decision issued on May 20, 1999. The Board found as
a matter of fact that the pollution in question was caused by
Petersburg Motor, rather than Cookman Realty. While expressly recognizing
DEP's authority under the Act to order the cleanup of pollution that threatens
groundwater, the Board nevertheless determined as a matter of law that underW. Va. C.S.R. § 47-57-4.1, the source that caused the
contamination is responsible for remediating the contamination.
DEP, in turn, sought judicial
review of the Board's decision in the Circuit Court of Grant County pursuant
to W. Va. Code § 22B-1-9(a) (1994) (Repl. Vol. 1998). The lower
court upheld the Board's action in vacating DEP's remediation order, likewise
concluding that § 47-57-4.1 place[s] responsibility for remediation
on the owner of the source which has caused the contamination. In reaching
this legal conclusion, the circuit court applied a de novo standard
of judicial review, and expressly chose to afford no deference at all to DEP's
interpretation of its own regulation:
DEP's interpretation of the Groundwater Protection Act in this proceeding is not entitled to deference. First, DEP's interpretation matters only if the regulations are ambiguous, and thus need interpretation. Here the regulations are clear. Second, since DEP's interpretation is a litigation position, no deference is due it. Third, DEP is entitled only to deference when interpreting its own regulations. The regulation cited by DEP in issuing Order No. 4059 [was] not [promulgated] by DEP, but by the Board. The Board owes no deference to DEP's interpretation of the Board's regulation.
It is from this order that DEP now appeals. (See footnote 5)
In this case, DEP argues
that W. Va. C.S.R. § 47-57-4.1 is ambiguous, and therefore
the lower court was obligated to defer to what the agency maintains is a permissible
construction of the regulation based upon this Court's holding in Appalachian
Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466
S.E.2d 424 (1995). Cookman Realty counters by asserting that the subject regulation
unambiguously limits responsibility for remediation to parties who have caused
pollution that may result in the contamination of groundwater, and further
contends, in accord with the reasoning of the circuit court, that no deference
should be extended to DEP's construction of § 47-57-4.1 because
the agency's stance on this issue amounts to nothing more than an informal
litigation position. See West Virginia Health Care Cost Review Auth.
v. Boone Mem'l Hosp., 196 W. Va. 326, 334, 472 S.E.2d 411, 419 (1996)
(noting that Courts customarily withhold [Appalachian Power-]Chevron
deference from agencies' litigating positions) (citation omitted).
We need not go so far in
this case as to define what deference, if any, must be afforded an administrative
agency's interpretation of its own legislative rule, since the regulations at issue here unambiguously limit administratively-enforced
remediation to parties who have actually caused or originated pollution that
threatens groundwater. A reviewing court would only be required to afford
deference to an agency's interpretation if the regulation contained an ambiguity.
As we have frequently admonished, [a] statute, or administrative rule,
may not, under the guise of 'interpretation,' be modified, revised, amended
or rewritten. Syl. pt. 1, Consumer Advocate Div. of Pub. Serv. Comm'n
v. Public Serv. Comm'n of West Virginia, 182 W. Va. 152, 386 S.E.2d
650 (1989); see also id. at 156, 386 S.E.2d at 654
(Interpretation of statutes or rules and regulations is proper only
when an ambiguity exists.); syl. pt. 3, Crockett v. Andrews,
153 W. Va. 714, 172 S.E.2d 384 (1970) (While long standing interpretation
of its own rules by an administrative body is ordinarily afforded much weight,
such interpretation is impermissible where the language is clear and unambiguous.);
syl. pt. 1, English Moving & Storage Co. v. Public Serv. Comm'n
of West Virginia, 143 W. Va. 146, 100 S.E.2d 407 (1957) (stating
in context of administrative rule that [w]hen a valid written instrument
is clear and unambiguous it will be given full force and effect according
to its plain terms and provisions).
The text of W. Va.
C.S.R. § 47-57-4.1 requires, among other things, that remediation
be undertaken by any person who owns or operates a source . . .
which has caused . . . the concentration of any constituent to exceed
any applicable groundwater quality standard . . . . Since
the contamination on the Cookman Realty property is unquestionably causing a violation of groundwater quality standards, the crucial question
is whether such pre-existing contamination produced by a party unrelated to
the landowner may be deemed a source under the regulations.
The term source
is elsewhere defined to mean any facility or activity which has caused
a release or is reasonably likely to cause a release. W. Va. C.S.R.
§ 47-57-2.13. Since neither facility nor activity
are defined in the regulations, such terms must be given their common, ordinary
and accepted meanings. See syl. pt. 3, in part, Ohio Cellular RSA
Ltd. P'ship v. Board of Pub. Works of West Virginia, 198 W. Va. 416,
481 S.E.2d 722 (1996) (In the absence of any specific indication to
the contrary, words used in a statute will be given their common, ordinary
and accepted meaning.) (internal quotations and citations omitted).
(See footnote 6)
The undeveloped parcel of land owned by Cookman Realty, which according
to the record in this case has never been used by any of its current or former
owners for any activity involving the storage, use, or disposal of hazardous
materials, is obviously not a facility. That term is delimited
to mean something defined, built, installed, etc., to serve a specific function affording a convenience or service. Random
House Webster's Unabridged Dictionary 690 (2d ed. 1997). We likewise fail
to see how Cookman Realty's use of the property, or that of any of its predecessors
in title, could be deemed an activity under the regulation, as
this otherwise undefined term would ordinarily denote some positive act on
the part of the landowner. See id. at 20 (defining the word activity
to mean, inter alia, the state or quality of being active).
A cardinal rule of textual
interpretation requires, of course, that statutes and administrative rules
'be construed as a whole, so as to give effect, if possible, to every
word, phrase, paragraph and provision thereof.' Weirton Med. Ctr.,
Inc. v. West Virginia Bd. of Med., 192 W. Va. 72, 75, 450 S.E.2d
661, 664 (1994) (quoting syl. pt. 8, in part, Vest v. Cobb, 138
W. Va. 660, 76 S.E.2d 885 (1953)); see also State ex rel. Johnson
v. Robinson, 162 W. Va. 579, 582, 251 S.E.2d 505, 508 (1979) (recognizing
rule of construction that the Legislature is presumed to intend that
every word used in a statute has a specific purpose and meaning). And
here the regulation goes on to define the term release as any
act or omission that results in the spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing of materials or contaminants in a manner that has caused or is reasonably
likely to cause the entry of a constituent to groundwater. W. Va.
C.S.R. § 47-57-2.12 (emphasis added). DEP tacitly argues that W. Va.
C.S.R. § 47-57-4.1 is ambiguous in that it is at least arguable
that a landowner's omission in failing to stop contamination from further leaching
into groundwater may form a basis for liability under the regulations. We
Although a release
may indeed arise from an omission, there still remains the limitation
that a landowner, in order to be deemed the owner of a source,
must be in control of a facility or otherwise engaged in an activity
that causes such a release. In other words, contrary to DEP's suggestion,
there is nothing in the regulations' use of the term omission
that serves to modify or render ambiguous the requirement that a landowner
must be engaged in an activity in order to incur a duty to remediate.
Rather, employment of the word omission in § 47-57-2.12
merely permits DEP to order remediation where a property owner or its privy
has engaged in some positive activity involving hazardous substances and,
as a result of an omission or oversight, caused such materials to be released
into the environment. The regulations simply could not be more clear that
a source of groundwater pollution does not include the form of
passive land ownership and unauthorized depositing of contaminants involved
in this case. We therefore reject DEP's contention that the regulation is
ambiguous in this respect.
In sum, we hold that W. Va.
C.S.R. § 47-57-4.1 and its accompanying definitions unambiguously
provide that a landowner may not be deemed the owner of a source
of groundwater contamination_and thus subject to a remediation order issuing from DEP_where it is demonstrate that neither the landowner nor its predecessors
in title were involved in originating such pollution. The evidence is undisputed
that Petersburg Motor, rather than Cookman Realty, was the sole source of
the contamination at issue in this case. Consequently, we find no error in
the judgment of the lower court.
For the reasons stated,
the judgment of the Circuit Court of Grant County is affirmed.