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<br /> 818 F.Supp. 292 �I
<br /> g
<br /> Page 8
<br /> (Cite as:818 F.Supp.292,*295)
<br /> it I
<br /> Act. [FN5] because the interpretation was generally adopted after
<br /> formal notice and comment proceedings. See, e.g.,
<br /> FN3.Amicus maintains this broad reading "is the same Pitts V. Perluss, 58 Cal.2d 824, 832, 27 Cal.Rptr. 19,
<br /> method used to evaluate any potential release of 377 Ptd{83 (1962) (formally adopted regulation on i
<br /> hazardous substances into the environment under the disability insurance held reasonable where intricate and
<br /> [Act]." For example, the agency explains that even
<br /> though paint is not a specifically listed hazardous technical se
<br /> of the subject matter not within
<br /> I
<br /> substance, it will be treated as such where there is a expertise of the court). Here, on the other hand, the
<br /> paint spill and a hazardous substance is detected in the Department has not formally promulgated regulations
<br /> area of the release. concerning its interpretation of the Act's petroleum
<br /> exclusion provision. Instead, it declares only that the
<br /> FN4. This argument was considered and rejected in interpretation is necessary to reflect the Act's "broad
<br /> Wilshire Westwood,881 F.2d at 805. remedial purpose." This is not compelling.
<br /> FN5. Paragraph 34 of his Fourth Amended Complaint Amicus 1J Department argues that its narrow
<br /> alleges that some of the contaminants released by interpretation of ttie Act's petroleum exclusion clause is
<br /> Chevron onto the premises include "refined petroleum, consistent with Congress'express intent in CERCLA to
<br /> toluene, xylene, and benzene...." If plaintiff contended allow states to regulate more comprehensively than is
<br /> that toluene, xylene,or benzene were spilled separately permitted under federal law (citing CERCLA's savings
<br /> from the refined petroleum(and not as component parts provision at 42 U.S.C. § 9614). However,although the
<br /> of the petroleum), those separate chemicals could be California lILegislature may have been empowered by
<br /> classified as "hazardous substances" under section Congress to strictly regulate the clean-up of petroleum
<br /> 25316. However, plaintiff has not asserted this t
<br /> interpretation of his claim. spills as hazardous substances, the California statute's
<br /> wording reveals the Legislature declined to do so. The
<br /> Each statute in California is to be read" 'to harmonize court cannot ignore the plain wording of the Act,
<br /> i the statutory scheme-and not to produce absurd results,' which, like its federal counterpart, excludes refined
<br /> "
<br /> In re Jonathan O., 11 Cal.App.4th 1647, 1650, 15 petroleum pfrom the ambit of the Act's influence.
<br /> Cal.Rptr.2d 80 (1992) (citations omitted). This court
<br /> The fact that the Legislature has annually reviewed and
<br /> is obligated to follow the unambiguous language of the M
<br /> statute. The plain meaning of the Act's petroleum approved the Department's expenditure of funds from
<br /> exclusion requires dismissal of plaintiffs third and both the ,Act and the 1984 Bond Fund for refined
<br /> fourth causes of action for cost recovery and petroleum"contamination remediation cannot be taken
<br /> as tacit approval o
<br /> declaratory relief under the Act. f the Department's position here. In
<br /> ;�
<br /> fact, it appears the Legislature acknowledges the
<br /> limited reach of the Act concerning refined petroleum
<br /> B.Agency Interpretation
<br /> spills: In,,' 1989t1 the Legislature established the
<br /> Petroleum; Underground Storage Tank Cleanup
<br /> Moving beyond the plain meaning of the Act,plaintiff ,, M
<br /> Program in California Health and Safety Code§25299.
<br /> argues that the Amicus California Department of Toxic I.
<br /> Substance Control has, since the Act's inception, That Chapter's express purpose is to deal with the '
<br /> problems interpreted the petroleum exclusion in a manner proit associated with leaking underground,M
<br /> supporting the plaintiffs position. As the agency petroleum hanks, and nowhere does that statute alter or ,
<br /> amend the California Superfunds petroleum exclusion
<br /> responsible for enforcing the Act, the Departments provision.li See Cal. Health& Safety Code § 25299.10
<br /> interpretation should ordinarily be accorded
<br /> considerable weight and deference. However, the (stating Legislative findings concerning leaking
<br /> III
<br /> Department's interpretation is not persuasive here. undergrourtd petroleum tanks). [FN6] }
<br /> * FN6Ih The California statute was adopted pursuant to {
<br /> 296 First, the Department's interpretation of the 1
<br /> United States Code Title 42,Chapter 82,Subchapter IX.
<br /> petroleum exclusion provision is directly contrary to �
<br /> the EPA's and Ninth Circuit's interpretation of the Section 699lb(h), added by Section 205 of the
<br /> F
<br /> nearly identical provision within the federal Superfund 1 1986f- (" Amendments and Reauthorization Act of
<br /> 986 ( SARA ), Pub.L.99-499, 100 Stat. 1613,
<br /> statute.Wilshire Westwood,881 F.2d at 803-10. establishes a separate program to respond to petroleum
<br /> leaking from' underground storage tanks and allows
<br /> Second, the cited cases deferring to an agency's underground storage tanks to be regulated pursuant to a
<br /> interpretation of a state statute are distinguishable state program, rather than a federal program, in states
<br /> Copr. ©West 1998 No Claim to Orig.U.S. Govt. Works
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