SANITOY, INC. vs. ILCO UNICAN CORPORATION.

NOLAN, J. At issue is the fee shifting provision of Section 15 of the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E (1990 ed.) (Act). We consider whether Section 15, entitled "Citizen Enforcement," authorizes a trial judge to award attorneys' fees and expert witness fees in

Page 628

a private party suit for reimbursement brought pursuant to Section 4 of the Act. [Note 1] We affirm this portion of the judgment and hold that it does authorize such fees. We also consider whether the judge erred in awarding only a percentage of otherwise reasonable attorneys' fees and expert witness fees to a party entitled to reimbursement under G. L. c. 21E, Section 4, based on the percentage of response costs the party recovered. We conclude that the judge erred on this point and reverse that portion of the judgment.

The facts of the underlying action arose from the contamination by hazardous materials and oils of property located on Nursery Lane in Fitchburg. From 1941 until 1968, the defendant, Ilco Unican Corporation (Ilco), owned a portion of the Nursery Lane property. In 1968, Sanitoy, Inc. [Note 2] (Sanitoy), acquired Ilco's portion of the Nursery Lane property, and it has since manufactured toys on the site.

In 1986, Sanitoy discovered that the Nursery Lane property was contaminated by hazardous material and oil. Pursuant to G. L. c. 21E, Sanitoy undertook an assessment and removal of the hazardous material and oil. Sanitoy then brought suit against Ilco pursuant to G. L. c. 21E, Section 4, claiming Ilco was liable for the contamination on that portion of the Nursery Lane property which Ilco had previously occupied. Sanitoy sought reimbursement from Ilco for its prorata share of response costs. [Note 3]

Page 629

The jury found that Ilco was responsible for thirty percent of the contamination at the Nursery Lane site and allowed Sanitoy to recover thirty percent of its response costs from Ilco. After trial, both parties moved to recover attorneys' fees and expert witness fees pursuant to G. L. c. 21E, Section 15. The judge ruled that "eligibility for costs and attorneys' fees depends upon a party's entitlement to response costs." Thus, the judge denied Ilco's motion for attorneys' fees and expert witness fees because it did not recover response costs and held that Sanitoy is entitled to 30% of its attorneys' fees and expert witness fees as it was entitled to recover 30% of its response costs. Both parties appealed and we took the case on our own motion. [Note 4]

From the preamble to the 1983 act, which breathed life into the Massachusetts effort to clean up hazardous materials and oils, we learn that the purpose of G. L. c. 21E was "to clarify and improve the commonwealth's capability for responding to releases of oil and hazardous material and to recover response costs from persons responsible for releases." St. 1983, c. 7. Under the statutory scheme, clean-up costs "are to be borne by those who are responsible for the release because they own or owned the land or because they caused the spill." Acme Laundry Co. v. Secretary of Envtl. Affairs, 410 Mass. 760, 764 (1991). The Legislature equipped the Department of Environmental Quality Engineering, now the Department of Environmental Protection (department), "with a number of different means of prodding a responsible party into undertaking cleanup actions." Id. One such method is the "department order" whereby the department orders "any person causing or legally responsible" for a release

Page 630

or the threat of a release to conduct necessary assessment, containment, and removal actions. G. L. c. 21E, Section 9 (1990 ed.).

A party that undertakes such remedial action is not necessarily liable for the entire cost of assessment, containment, and removal. Such a party is entitled to reimbursement from other parties in proportion to their relative degrees of contribution to the contamination as a function of the total cost of assessment, containment, and removal. See note 1, supra. Indeed, G. L. c. 21E, Section 4, "create[d] a private right of action to enforce the purposes of the Act." [Note 5] Sheehy v. Lipton Indus., 24 Mass. App. Ct. 188, 197 (1987). Section 4, however, made no provision for the recovery of attorneys' or expert witness fees by parties seeking reimbursement under Section 4.

In 1986, the Act was amended to include Section 15. [Note 6] St. 1986, c. 554, Section 3. Section 15 provides: "In any suit by Massachusetts

Page 631

residents to enforce the requirements of this chapter, or to abate a hazard related to oil or hazardous materials in the environment, the court may award costs, including reasonable attorney and expert witness fees, to any party other than the commonwealth who advances the purposes of this chapter." The single decision to interpret Section 15 is Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1157 (1st Cir. 1989). The Dedham Water court, on whose interpretation the judge below relied, stated: "[I]f the district court finds that Dedham Water is entitled to response costs under [G. L. c.] 21E it may award costs and attorney's fees to Dedham Water." Id. The judge below in construing and applying the Dedham Water court's interpretation of Section 15, limited eligibility for a fee award to a party's entitlement to response costs and then awarded a percentage of fees equal to percentage of response costs recovered.

Ilco contends that Section 15 does not apply to private parties such as Sanitoy who have incurred assessment, containment, and removal costs and then seek reimbursement of those costs pursuant to G. L. c. 21E, Section 4. Ilco argues that Section 15 only applies to citizen suits brought pursuant to G. L. c. 214, Section 7A (1990 ed.), to enforce c. 21E. [Note 7] We are not persuaded by Ilco's gallant, but in the end unsuccessful, attempt so to characterize the applicability of Section 15.

On its face, Section 15 is not limited to actions brought pursuant to G. L. c. 214, Section 7A. Indeed the section expressly applies to "any suit by Massachusetts residents to enforce the requirements

Page 632

of this chapter [21E]." G. L. c. 21E, Section 15. Ilco places special emphasis on the title enacted by the people as part of Section 15: "Citizen Enforcement." Ilco contends that the title coupled with the term "Massachusetts residents" in the introductory clause of the section leads inexorably to the conclusion that Section 15 applies only to citizen suits brought pursuant to G. L. c. 214, Section 7A. We disagree.

"The title is in a legal sense a part of the act, and resort may be had to it as an aid in the interpretation of the act." Commissioner of Corps. & Taxation v. Chilton Club, 318 Mass. 285, 292 (1945). To this end, Section 15 is entitled "Citizen Enforcement." In our view, resort to the title supports the construction that a corporate citizen empowered by Section 4 of the act, seeking to enforce the provisions of the Act, see Sheehy v. Lipton Indus., supra at 197, may recover fees pursuant to Section 15.

While Section 15 applies to suits brought by "Massachusetts residents," it cannot be interpreted logically to preclude an award of fees if only one resident, as in the present case, brings suit. Such a conclusion would diminish the role that a single party must play in resolving the hazardous waste disposal problem in Massachusetts by denying it fees and awarding them to a plaintiff "class" comprised of multiple Massachusetts residents. [Note 8]

Ilco next contends that Sanitoy has not "enforce[d] the requirements of the chapter," or congruently, has not "advance[d] the purposes of this chapter" by its action taken pursuant to Section 4 of the Act. See G. L. c. 21E, Section 15. We reject these arguments and hold, as did the Appeals Court in Sheehy v. Lipton Indus., supra at 197, that any person who undertakes assessment, containment, or removal activities as defined in the Act, and subsequently seeks reimbursement pursuant to G. L. c. 21E, Section 4, enforces and advances the purposes of the Act. A contrary conclusion would render nugatory

Page 633

the cost allocation provisions of the Act and insulate potentially responsible parties from liability where the cost of litigation exceeds the cost of assessment, containment, and or removal. See General Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1422 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991).

We briefly address one final argument that Ilco raises. In 1992, the Legislature amended c. 21E. See, e.g., St. 1992, c. 133, Sections 271-313. The amendments, among other things, authorize the award of attorneys' fees and litigation costs in private party actions brought under G. L. c. 21E, Section 4, in certain circumstances. St. 1992, c. 133, Sections 293, 294 (prospective in their application). Ilco contends that the amendments, which left Section 15 unchanged, demonstrate that Section 15 was never intended to apply to private party actions. We reject this argument. "What the . . . legislation involved in this case means cannot rationally be influenced by [subsequent] legislation." Massachusetts Wholesalers of Malt Beverages, Inc. v. Attorney Gen., 409 Mass. 336, 344 (1991), quoting Coca Cola Bottling Co. v. Commissioner of Revenue, 393 Mass. 726, 729 n.3 (1985).

In its cross appeal, Sanitoy contends that the judge erred in failing to award the full amount of its attorneys' fees and expert witness fees. Sanitoy contends that the judge erred in linking the fee award to the percentage of "response" costs recovered. We agree and reverse this portion of the judgment.

On this issue the statute provides that "the court may award costs, including reasonable attorney and expert witness fees, to any party . . . who advances the purposes of this chapter." G. L. c. 21E, Section 15. In fixing the amount of the fee award, the trial judge first concluded that all of Sanitoy's attorneys' fees and expert witness fees were reasonable but then reduced the fee award to 30% of this total to reflect the percentage of "response" costs Sanitoy recovered from Ilco.

We have held generally that the amount of a reasonable fee award rests largely in the sound discretion of the trial judge. Linthicum v. Archambault, 379 Mass. 381, 388

Page 634

(1979). In making a determination of reasonableness, we have said that the judge "should consider the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases." Id. at 388-389.

It is clear that the judge considered these factors in assessing the "reasonableness" of the attorneys' fees and expert witness fees that Sanitoy incurred. In her memorandum of decision, the judge provided, "Sanitoy's submissions as to its attorneys' fees and experts' fees document in painstaking detail the time expended. I find that the fees, although substantial, are not unreasonable, given the nature of the case." The judge also wrote in deciding the cross motions for fees: "In effect, Ilco has conceded the reasonableness of Sanitoy's attorneys' fees by the submission of its own fees which are comparable. Moreover, the fact that [Ilco's] expert witness' costs were three times as high as those of [Sanitoy] demonstrates the reasonableness of Sanitoy's claim for expert fees . . . ."

On this basis, we conclude that the judge erred in awarding Sanitoy only a percentage of its reasonable fees. Sanitoy is entitled to recover the full amount of its reasonable attorneys' fees and expert witness fees as previously determined by the judge. Accordingly, we affirm in part, reverse in part, and remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.