State v. Carroll

State v. Carroll (2002-010); 175 Vt. 571; 830 A.2d 89

2003 VT 57

[Filed 13-Jun-2003]

                                 ENTRY ORDER

                                 2003 VT 57

                      SUPREME COURT DOCKET NO. 2002-010

                            SEPTEMBER TERM, 2002


  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Washington Superior Court
                                       }	
  John and Adrienne Carroll 	       }
  The John M. Carroll Company, Inc.    }	DOCKET NO. 473-8-97 Wncv

                                                Trial Judge: Alan W. Cheever

       	
             In the above-entitled cause, the Clerk will enter:

       ¶  1.  The State of Vermont, Agency of Natural Resources appeals
  from a summary judgment of the Washington Superior Court in favor of
  defendant property owners.  The trial court ruled that the State's action
  for repayment of funds expended to remediate petroleum contamination on the
  site was barred by the statute of limitations.  The State contends the
  court erred in concluding that the statute of limitations commenced when
  the State first expended funds to investigate the site.  We reverse and
  remand.

       ¶  2.  In 1978, defendants purchased property located in Manchester
  Center and have retained ownership since the time of purchase.  Both
  defendants and the preceding owners used the property as a fuel
  distribution and storage facility.  Between 1909 and 1978, the property was
  contaminated by several significant oil spills.  During the course of
  defendants' ownership, there were two spills totaling approximately seventy
  gallons of gasoline.  Active operation of a distribution and storage
  facility on the property ceased in 1989.  

       ¶  3.  That year, the Agency of Natural Resources (ANR) received
  reports of petroleum fumes in the basement of defendants' neighbor, the
  Merlu Corporation.  A preliminary investigation report issued by the State
  in 1990 indicated that petroleum contamination was emanating from a storage
  facility on defendants' property. The State informed defendants that they
  would be named as parties potentially responsible for the contamination. 
  In July 1990, defendants informed the State that they did not have the
  money to remedy any contamination on their property.  The investigation
  continued.  In January and February 1993, the State informed defendants
  that remedial work was necessary to protect the public health and
  environment, and that if they did not construct a remediation system to
  contain and collect the petroleum contamination the State would undertake
  the work using funds from the environmental contingency fund, and would
  seek reimbursement for the costs of remediation.
       
       ¶  4.  Defendants made no effort to remediate the situation.  In
  July 1993, the State received permission to access the property and to
  construct a series of groundwater recovery trenches to intercept and
  collect contaminated groundwater on the property.  By the year 2000, its
  costs in connection with remediating the property exceeded $350,000.

       ¶  5.  In August 1997, the State filed a claim against defendants,
  under 10 V.S.A. § 6615, seeking to recover the costs already incurred and
  those expected to be incurred "to clean up a petroleum release on property
  owned by defendants."   

       ¶  6.  Following discovery, the State and defendants filed
  cross-motions for summary judgment on the issue of the statute of
  limitations.  The parties agreed that the six-year statute of limitations
  found in 12 V.S.A. § 511 applied, but disputed when the State's cause of
  action accrued. (FN1)  The State argued that the provision in 10 V.S.A. §
  1283(c) allowing it to bring an action to "enforce the obligation to repay
  the fund" implies that the Legislature intended the State's cause of action
  to accrue when the remediation is substantially complete and the State's
  costs are known. (FN2)  Defendants claimed that the cause of action accrued
  when the State first spent funds to investigate the site in 1990, because
  that was the date when its cause of action for repayment first became
  available.  See Agency of Natural Res. v. Towns, 168 Vt. 449, 452, 724 A.2d 1022, 1024 (1998) (cause of action accrues upon discovery of facts
  constituting basis of cause of action).  The court agreed with defendants
  and ruled that the State's claims were time-barred under 12 V.S.A. § 511. 
  This appeal followed.

       ¶  7.  In construing a statute, our goal is to effectuate the
  Legislature's intent.  Springfield Terminal Ry. v. Agency of Trans., __ Vt.
  __, __, 816 A.2d 448, 453 (2002).  When a statute is unambiguous and the
  words have plain meaning, we accept that meaning as the intent of the
  Legislature and enforce the statute according to its terms.  Id. at __, 816 A.2d  at 453.  Moreover, we presume statutory language is inserted advisedly
  and not intended to create surplusage.  Payea v. Howard Bank, 164 Vt. 106,
  107, 663 A.2d 937, 938 (1995).  
   
       ¶  8.  Applying these principles, we conclude that the statutory
  scheme contemplates a cause of action for removal and remediation costs,
  and for the recovery of such costs, that can be distinct from the recovery
  of investigatory costs.  See 10 V.S.A. § 1283(a) (secretary may disburse
  funds "to investigate or mitigate, or both, the effects of hazardous
  material releases to the environment"); id. § 1283(b)(2) (separately
  categorizing allowable disbursements that may be made "to investigate," "to
  take appropriate removal action," and "to take appropriate remedial
  action"); id. § 1283(c) (secretary may bring action to enforce obligation
  to repay fund).  Thus, we conclude that an action for the repayment of
  investigation, remediation, and removal costs accrues when the State first
  expends funds for these distinct purposes. 

       ¶  9.  The court viewed this action as beginning when the State
  first expended monies from the contingency fund to investigate possible
  contamination on defendants' property.   The State filed suit, however, "to
  recover costs that the State has incurred to clean up" the petroleum
  release on defendants' property.  Although some investigation costs were
  apparently included within the costs expended by the State, the bulk was
  alleged to have been incurred for removal and  remediation.  The trial
  court made no specific findings as to the date when these expenditures were
  first incurred.  Accordingly, the matter must be remanded for findings on
  these issues, to determine when the action accrued.    

       ¶  10.  In light of our holding, we need not address the State's
  argument that the date of accrual should commence only when remediation is
  substantially complete, or its argument that the claim should be analogized
  to an indemnity action for purposes of determining the date of accrual.

       The judgment is reversed and the case is remanded to the trial court
  for further proceedings consistent with the views expressed herein.



                                       BY THE COURT:

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, Associate 
                                       Justice (Ret.) Specially Assigned


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                                  Footnotes

  Note:  Justice Morse was present when the case was submitted on the briefs
         but did not participate in this decision.

FN1.  Because the parties agreed that the six-year statute of limitations
  set forth in 12 V.S.A. § 511 governs this action, we do not address the
  applicability of the statute of limitations set forth in 10 V.S.A. §
  8015(2), which provides that actions under certain chapters of Title 10 may
  be commenced within "six years from the date a continuing violation
  ceases."  See Agency of Natural Res. v. Towns, 168 Vt. 449, 451, 724 A.2d 1022, 1023 (1998).  The court may consider the applicability of this
  section on remand.

FN2.  Although defendants assert that the State waived any reliance on §
  1283 by filing suit under § 6615, we note that the State relied on both
  statutes in its summary judgment filings, the court considered both
  statutes in its decision, and we discern no prejudice to defendants from
  consideration of § 1283.