Gasoline Deliveries to Gas Station Do Not a Tank Operator Make – PA Storage Tank Act Decision Refuses Invitation to Expand Definition of Operator
By: John R. Embick, Esq.
Co-Chair, Environmental Law Section
June, 2013
In the case of Hovis, et al. v. Sunoco, Inc. (R&M), et al., No. 732 WDA 2012, decided on March 18, 2013, by a three judge panel of Superior Court of Pennsylvania, the court was called upon to decide, among other things, whether deliveries of gasoline by Sunoco, Inc. (R&M) (“Sunoco”) , to a leaky gas station once owned (but not currently owned by Sunoco), was sufficient to make Sunoco a tank “operator” under the PA Storage Tank and Spill Prevention Act (“Tank Act”), 35 P.S. §§ 6021.101 - 6021.2104 (2012), and therefore liable for cleanup costs.
The background is somewhat complicated by the fact that the current owners of the gas station, Mr. and Mrs. Hovis, had traded ownership of the gas station with Sunoco several times in the past. The Hovises originally owned the station, and sold it to Sunoco. After a number of years, Sunoco sold the station back to the Hovises. During much of this time, Sunoco supplied the station with gasoline for retail sale.
In 1999, the Hovises discovered that gasoline was leaking from tanks at the station. They commenced cleanup operations, and filed a claim with the Pennsylvania Underground Storage Tank Indemnification Board (“USTIF”) for reimbursement of cleanup costs. The USTIF eventually allowed reimbursement of 43% of the cleanup costs, finding that some of the leakage occurred at an earlier time for which reimbursement would not be available.
The Hovises then commenced an action against Sunoco under section 1305 (c) of the Tank Act, arguing, among other things, that the delivery of gasoline by Sunoco to the station, regardless of station ownership, constituted “operation” of a storage tank. Specifically, the Hovises argued that periodically filling an underground storage tank with gasoline demonstrates a level of supervision or control that would qualify Sunoco as an “operator” for purposes of the Tank Act (the issue of whether Sunoco was an “owner” was resolved by a finding that Sunoco owned the station only prior to the enactment of the Tank Act, and thus was not an “owner”).
The trial court granted summary judgment for Sunoco on the basis that Sunoco could not be a tank operator on this set of facts.
The Tank Act provides that “[t]he owner or operator of a storage tank and the landowner or occupier on whose land a storage tank is or was located shall not allow pollution resulting from, or a release to occur from, a storage tank.” 35 P.S. § 6021.1310.
The Tank Act also grants a cause of action for any aggrieved person to bring a civil suit against any owner, operator, landowner, or occupier that is in violation of the Act to compel compliance with the statute. 35 P.S. § 6021.1305(c). See, Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650, 658 (Pa. Super. 1999).
Section 103 of the Tank Act defines “operator” as: “[a]ny person who manages, supervises, alters, controls or has responsibility for the operation of a storage tank.”
Writing for the Superior Court panel, Judge Wecht, in upholding the trial court’s summary judgment decision, wrote:
“The record demonstrates that, after Sunoco sold the property to Appellants, it continued to deliver gas to the property for a period of several years. However, this alone is insufficient to classify Sunoco as an “operator” for purposes of the Tank Act. There is nothing in the record to suggest that Sunoco managed, supervised, altered, or controlled the tanks during the time that Appellants owned the property. Nor is there any reason we can discern to find that a supplier is an operator solely because it delivers gas to an underground storage tank over which it does not exercise control. For these reasons, we agree with the trial court that Sunoco cannot be an “operator” for purposes of the statute. To hold otherwise would be to hold that, under the Tank Act, an oil company is the “operator” of the storage tanks at every gas station to which it delivers its products. Nothing in the language of the statute, and nothing in our precedent, indicates that the Tank Act was intended to have such broad application.”
So, gasoline suppliers can breathe a little easier. However, the issue of what level of tank management, supervision, alteration or control constitutes “operation” remains unclear. Accordingly, gasoline suppliers should probably review their delivery practices with respect to this issue.