Maritime Energy v. Fund Insurance Review Board
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MAINE SUPREME JUDICIAL COURT	Reporter of Decisions
Decision:	2001 ME 45
Docket:	Wal-00-416
Argued:	January 10, 2001
Decided:	March 5, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

MARITIME ENERGY

v.

FUND INSURANCE REVIEW BOARD

CLIFFORD, J

	[¶1]  Maritime Energy appeals from a judgment entered in the
Superior Court (Waldo County, Pierson, J.) affirming the decision of the Fund
Insurance Review Board that Maritime is not eligible for reimbursement
from the Ground Water Oil Clean-up Fund for its costs of cleaning up
gasoline discharge.  Maritime contends that the Board misconstrued the
language of the statute creating the Fund when it concluded that Maritime
was not entitled to reimbursement for clean-up costs following its discovery
in 1998 of gasoline-contaminated soil because the discharge causing the
contamination had been discovered prior to 1990.  We disagree with
Maritime and affirm the judgment.
	[¶2]  Maritime Energy is an installer of underground storage tanks.  In
November of 1986, Maritime Energy installed three underground gasoline
storage tanks at the B&L Market in Belmont.  A gasoline leak from one of the
tanks caused by a cracked seam weld was discovered in March of 1987.  The
offending tank was removed and replaced, and contaminated soil
surrounding the tank was removed.  The other two tanks were left
undisturbed.
	[¶3]  In September of 1998, during unrelated repairs, Maritime found
gasoline contamination at the same site as the 1987 leak.  Soil analysis
showed that this contamination was caused by a pre-1990 blend of gasoline. 
The evidence in the record shows, and Maritime does not dispute, that the
contaminations discovered in 1987 and 1998 were both the result of the
leak from the same cracked seam weld in the tank that was replaced in
1987.  Clean-up of the contamination discovered in 1998 then ensued. 
	[¶4]  On March 29, 1999, pursuant to the Underground Oil Storage
Facilities and Ground Water Protection Act, 38 M.R.S.A. §§ 561-570-L
(2001), Maritime submitted an application to the Maine Department of
Environmental Protection requesting coverage from the Ground Water Oil
Clean-up Fund for its 1998 clean-up costs.  The Fund was established by
statute in part to reimburse owners and operators of petroleum product
storage tanks for the costs of contamination clean-up and remediation. 
38 M.R.S.A. § 569-A(8)(B) (2001).  To collect from the Fund, a party who
discovers contamination must submit a written application to the
Department of Environmental Protection, which then issues an order
determining the party's eligibility for Fund coverage.  38 M.R.S.A.
§ 568-A(1)(A), (F) (2001).  "An applicant is not eligible for coverage for any
discharge discovered on or before April 1, 1990."  38 M.R.S.A.
§568-A(1)(B-1) (2001).  The Fund Insurance Review Board is a statutory
board independent from the Department that decides appeals from
Department decisions, including those regarding Fund coverage. 
38 M.R.S.A. §§ 568-A(3-A), 568-B (2001).
	[¶5]  Maritime's application was denied by the Department based on
its determination that the source of the contamination discovered in 1998
was the same as that discharge discovered in 1987.  Maritime appealed the
Department's denial of coverage to the Fund Insurance Review Board
pursuant to 38 M.R.S.A. § 568-A(3-A) (2001).{1}  Maritime's position was and
still is, that the source of the discharge was irrelevant to the date of its
discovery.  The Board affirmed the decision of the Department, finding that
"the pre-1990 blend gasoline contamination discovered in 1998 following
tank removal is the same discharge that was discovered in 1987.  Because it
is the same discharge, and the discharge was discovered in 1987, Maritime
Energy is ineligible for Fund coverage under the language of Section
568-A(1)(B-1)."  The Superior Court affirmed the decision of the Board to
deny coverage to Maritime.  Maritime's appeal to this Court followed.
	[¶6]  At the heart of this appeal is a question of statutory construction,
and particularly, the interpretation to be given to one sentence: "An
applicant is not eligible for coverage for any discharge discovered on or
before April 1, 1990."  38 M.R.S.A. § 568-A(1)(B-1) (2001).  "Discharge" is
defined in the statute as "any spilling, leaking, pumping, pouring, emitting,
escaping, emptying or dumping."  38 M.R.S.A. § 562-A(6) (2001).  The crux
of Maritime's argument is that the 1998 discovery was separate and distinct
from the 1987 discovery regardless of the fact that they both resulted from
the same leak, and therefore it is entitled to Fund coverage for the 1998
discovery. 
	[¶7]  When, as in this case, the Superior Court acts in its appellate
capacity, we review directly the decision of the Board for abuse of
discretion, errors of law, or findings not supported by the evidence. 
Downeast Energy Corp. v. Fund Ins. Review Bd., 2000 ME 151, ¶ 13, 756
A.2d 948, 951.  An agency's findings of fact should be upheld unless clearly
erroneous.  Centamore v. Dep't of Human Servs., 664 A.2d 369, 371
(Me. 1995).  Furthermore, "When the dispute involves an agency's
interpretation of a statute administered by it, the agency's interpretation,
although not conclusive, is entitled to great deference and will be upheld
'unless the statute plainly compels a contrary result.'"  Wood v.
Superintendent of Ins., 638 A.2d 67, 70 (Me. 1994) (quoting Abbott v.
Comm'r of Inland Fisheries and Wildlife, 623 A.2d 1273, 1275 (Me. 1993)).  
	[¶8]  Maritime contends that the Board's decision in this case is not
entitled to deference because:  (1) statutory interpretation of the Act is
beyond the expertise of the Board, and (2) the statute unambiguously
requires coverage for Maritime, and only when a statute is ambiguous is the
Board's construction of the statute it administers entitled to deference. See
Guilford Transp. Indus. v. Pub. Util. Comm'n., 2000 ME 31, ¶ 11, 746 A.2d
910, 913.   We disagree.
	[¶9]  Maritime relies on LeBlanc v. United Eng'rs & Constructors Inc.,
584 A.2d 675 (Me. 1991), in which we held that a Workers' Compensation
Commission interpretation of federal constitutional matters was not entitled
to deference because the subject matter was beyond the scope of its
expertise.  LeBlanc, 584 A.2d at 677.  In this case, the Board applied its
expertise in interpreting the Underground Oil Storage Facilities and Ground
Water Protection Act.  Because we are reviewing the Board's construction of
the very statute it is charged with administering, and because its expertise
in the field of contamination from storage tanks was applicable, the Board's
interpretation is entitled to deference.{2}
	[¶10]  Moreover, the statutory provision at issue in this case is
ambiguous as to whether discovery of additional contamination from a
previously discovered gasoline discharge can result in Fund coverage under
the Act.  Accordingly, the Board's determination is entitled to deference as
long as its construction of the statute is a reasonable one.  See Guilford
Transp. Indus.,  2000 ME 31, ¶ 11, 746 A.2d at 913.  The Board's
determination that the eligibility date bars coverage for Maritime's expenses
is a reasonable one, and the language of the statute does not compel a
contrary result.  By inserting the definition of discharge into the statutory
section, that section would read, "An applicant is not eligible for coverage
for any spilling, leaking, pumping, pouring, emitting, escaping, emptying or
dumping discovered on or before April 1, 1990."  38 M.R.S.A. §§ 562-A(6),
568-A(1)(B-1) (2001).  Contamination from a leak caused by a cracked tank
was discovered in 1987.  The cracked tank was replaced in 1987.  The
other two tanks remained undamaged.  There is no evidence to suggest,
therefore, that the 1998 discovery was of a discharge from any source other
than the cracked tank that was removed in 1987.  Thus, the spilling,
leaking, or emitting that is the subject of this dispute occurred and was
discovered in 1987, three years prior to Fund coverage eligibility.  The 1998
discovery was not a discovery of a new discharge, as the statute requires. 
The Board's determination that Maritime is ineligible for Fund coverage for
the contamination discovered in 1998 because it was from the same
discharge that was actually discovered in 1987, three years prior to Fund
coverage eligibility, is therefore not clear error.
	The entry is:
			Judgment affirmed.
Attorneys for plaintiff:

Bruce C. Gerrity, Esq., (orally)
Ann R. Robinson, Esq.
Sigmund D. Schutz, Esq.
Preti Flaherty Beliveau Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546

Attorneys for defendant:

G. Steven Rowe, Attorney General
Mary M. Sauer, Asst. Attorney General, (orally)
6 State House Station
Augusta, ME 04333-0006

Attorney for amicus curiae:

Jamie Py, Esq.
Maine Oil Dealers Association
P O Box 249
Brunswick, ME 044011-0249