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TWO RIVERS TERMINAL, L.P. v. CHEVRON USA
March 27, 2000
TWO RIVERS TERMINAL, L.P., PLAINTIFF,
CHEVRON USA, INC., DEFENDANT.
The opinion of the court was delivered by: Caldwell, District Judge.
The plaintiff, Two Rivers Terminal, L.P., and the defendant, Chevron
U.S.A., Inc. (CUSA), are litigating the responsibility for the cleanup of
environmental contamination at a gasoline and fuel oil terminal near
The parties have made claims against each other under various federal
and Pennsylvania environmental laws, as well as Pennsylvania common law.
The plaintiff makes the following claims: (1) a claim under section
9607(a)(2) of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9601-9675; (2) a claim under
section 6021.1305(c) of the Pennsylvania Storage Tank and Spill
Prevention Act (the Tank Act), 35 P.S. §§ 6021.101-6021.2104 (Purdon
& Purdon Supp. 1999-2000); (3) claims under sections 6020.702,
6020.1101 and 6020.1115 of the Pennsylvania Hazardous Sites Cleanup Act
(PaHSCA), 35 P.S. §§ 6020.101-6020.1305 (Purdon & Purdon Supp.
1999-2000); (4) common-law indemnity; (5) common-law contribution; and
(6) a claim under 42 U.S.C. § 6972 (a)(1)(B), the Resource
Conservation and Recovery Act of 1996 (RCRA), Pub.L. No. 94-580, 90
Stat. 2795 (codified in scattered sections of 42 U.S.C.).
We are considering the following motions: (1) the plaintiffs motion for
partial summary judgment on the issue of liability; (2) CUSA's motion for
summary judgment on Two Rivers' claims; and (3) CUSA's motion for summary
judgment on its Tank Act counterclaim.
We will examine the summary-judgment motions under the well-established
standard. See Showalter v. University of Pittsburgh Medical Center,
190 F.3d 231, 234 (3d Cir. 1999).
We provide a brief background here as to the parties and a history of
the site while setting forth other facts in the sections that follow.
In or about 1960 or 1961, Chevron constructed and owned the Duncannon
terminal near Duncannon, Pennsylvania. The terminal had six aboveground
storage tanks (ASTs) and four underground storage tanks (USTs). One of
the USTs was a transmix or slop tank. The terminal stored and distributed
petroleum products, including gasoline, leaded gasoline, diesel fuel and
Chevron operated the Duncannon terminal as a petroleum storage and
distribution center until 1985, ceasing those operations in that year. In
1986, it sold the facility to Cumberland Farms, Inc., along with all its
other assets in the northeastern United States. Cumberland Farms never
intended to operate or occupy the Duncannon terminal, never did so, and
never stored petroleum products at the terminal. On October 21, 1991,
after months of negotiation, Cumberland Farms sold the terminal to Two
Rivers.*fn1 On December 4, 1991, Two Rivers accepted a delivery of fuel
oil, and in December 1992, its only delivery of unleaded gasoline.
Tests have been performed at the terminal for environmental
contamination. To make the sale to Cumberland Farms, CUSA contracted with
ERM-Northeast, Inc. to perform a visual and olfactory review of the
Duncannon terminal. ERM drilled four monitoring wells. In February 1986,
it detected a hydrocarbon odor in water taken from MW-2 and in May 1986
it detected hydrocarbon odors in MW-2 and MW-4, but concluded that there
was no evidence of hydrocarbon contamination in the soil or groundwater.
In December 1990, before buying the site, Two Rivers contracted with
Benatec Associates to examine it. Benatec found hydrocarbon contamination
of the soil and groundwater. In MW-4 excessive concentrations of the
hydrocarbon benzene were found, along with detectable amounts of three
other hydrocarbons, toluene, ethylbenzene, and p-xylene. (These four
hydrocarbons are known together as the BTEX hydrocarbons, the most water
soluble hydrocarbons and the ones that wash into the groundwater.)
Two Rivers had GeoServices, Ltd. examine the site again in October and
November 1991, about one month after it had bought the property. This
examination confirmed the presence of high levels of total petroleum
hydrocarbons (TPH) and BTEX hydrocarbons in the soil and groundwater. The
levels around the transmix tank indicated that a spill had occurred in
There is evidence of a major gasoline spill at the site in 1973. One
witness observed it coming out of the transmix tank and spreading to a
pond about 75 yards away. There were several other releases of petroleum
products at the Duncannon facility during Chevron's ownership and
operation of it.
III. CUSA's Motion For Summary Judgment.
A. Two Rivers' Tank Act Claim.
1. The Statute of Limitations.
Contending that a two-year statute of limitations applies to a Tank Act
claim, the defendant argues that Two Rivers' Tank Act claim is time
barred. CUSA maintains that the plaintiff knew about its claim at the
latest by October 31, 1991, the date the property was purchased, but did
not file this suit until October 20, 1997, well in excess of the two-year
period for pursuing this claim.
The Tank Act contains no explicit statute of limitations for a citizen
suit under 35 P.S. § 6021.1305(c). In arguing for a two-year
limitations period, CUSA points out that Pennsylvania has provided a
two-year limitations period for a number of claims arising from injury to
the person, personal property or real property, including a limitations
period that appears to cover the statutory claim at bar: "[a]ny other
action or proceeding to recover damages for injury to . . . property
which is founded on negligent, intentional, or otherwise tortious conduct
or any other action or proceeding sounding in trespass. . . ." 42
Pa.C.S. § 5524(7) (brackets added).*fn2
CUSA also points to section 5524(4) which more specifically provides a
two-year limitations period for "an action for waste or trespass of real
property" and to the two-year statute of limitations for a cause of action
for nuisance, citing Dombrowski v. Gould Electronics, Inc.,
954 F. Supp. 1006, 1013 (M.D.Pa. 1996); and Rohrbach v. AT & T Nassau
Metals Corp., 888 F. Supp. 627, 632 (M.D.Pa. 1994). It asserts that Two
Rivers' citizen-suit claim under § 1305(a) can be identified as a
statutory claim for nuisance since the Tank Act provides that "[a]
violation of this act or of any order or regulation adopted by the
department or of permits issued by the department shall constitute a
public nuisance." 35 P.S. § 6021.1304. Based on the similarities
between the common-law claims and the Tank Act claim, it thus argues that
plaintiffs Tank Act citizen-suit claim is also subject to a two-year
statute of limitations.*fn3
In opposition, Two Rivers first argues that section 5524(7)'s two-year
limitations period does not apply because CUSA likens Two Rivers' Tank
Act claim to negligence, strict liability, nuisance or trespass claims.
However, Two Rivers cannot sue CUSA under these common-law theories of
relief because Two Rivers is the present owner of the Duncannon terminal
and CUSA a former owner of the same property. Two Rivers cites in its
support, among other cases, Philadelphia Electric Co. v. Hercules, Inc.,
762 F.2d 303, 313-15 (3d Cir. 1985) (nuisance action only serves to
resolve conflicts between neighboring and contemporaneous land uses); and
Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609 (M.D.Pa.
1997) (owner of environmentally contaminated property cannot assert
trespass claim against former owner). In Two Rivers' view, since these
common-law tort theories do not apply to its case, it is improper to
borrow the two-year statute of limitations applicable to them. Further,
since Pennsylvania' s tort-law causes of action under the common law do
not adequately deal with the problems of petroleum contamination, as
evidenced by Pennsylvania's statutory response to those problems,
statutes of limitation governing those actions will not sufficiently
protect those harmed by petroleum contamination either.
Second, Two Rivers points to Buttzville Corp. v. Gulf Oil Corp., 25
Pa.D. & C. 4th 172, 1995 WL 808347 (1995), the only published opinion
that discusses the limitations period for a Tank Act claim. Buttzville
Corp. held that the 20-year statute of limitations in 35 P.S. §
6021.1314 (Purdon 1993) for PaDEP to initiate actions for civil or
criminal penalties applies to a citizen-suit under section
6021.1305(c).*fn4 The court reasoned that since the statute allowed
PaDEP 20 years to seek civil or criminal penalties, it was "logical to
assume that the General Assembly intended the 20 year limitation for the
`civil or criminal penalties' mentioned in section 6021.1314 to apply to
private actions. . . ." Id. at 176-77.
Four factors buttressed this reasoning. First, the Tank Act contained
no other limitations period. Second, the General Assembly intended the
Tank Act "to be liberally construed to fully protect the health, welfare
and safety of Pennsylvania's residents." Id. at 177. Third, in Centolanza
v. Lehigh Valley Dairies Inc., 430 Pa.Super. 463, 635 A.2d 143 (1993),
aff'd, 540 Pa. 398, 658 A.2d 336 (1995), the Pennsylvania Superior
Court, in ruling that the corrective measures available to PaDEP (then
PaDER) under the Tank Act were also available to private parties,
signaled that private actions were not to be treated differently from
agency actions. The common pleas court also stated:
Id. at 177-78 (brackets added). See also Schatz v. Laidlaw
Transportation, Ltd., 1997 WL 186339 (E.D.Pa. 1997) (dismissing tort
claims as barred by the two-year statute of limitations but allowing Tank
Act claim to proceed).
Third, Two Rivers argues that if section 6021.1314's 20-year
limitations period does not apply, then there is no statute of
limitations on its claim or, alternatively, the six-year catchall period
in 42 Pa.C.S. § 5527 (Purdon Supp. 1999-2000) applies.*fn5 In
support, the plaintiff asserts that its Tank Act claim seeks both tort
and contract damages-tort damages for the diminution in the property
value of the Duncannon site and "contract-type damages for contribution
and indemnification." (Two Rivers' omnibus memorandum at p. 26 n. 21).
Two Rivers then points out that the routine tort claim has a two-year
limitations period (citing section 5524), and an indemnity claim a
four-year limitations period (citing 42 Pa.C.S. § 5525) but that a
contribution claim has a six-year statute of limitations, citing section
5527's catchall provision and Bednar v. Bednar, 455 Pa.Super. 487,
688 A.2d 1200 (1997) (action for contribution in a real-estate partition
action is governed by a six-year statute of limitations).
In reply, CUSA contends that Two Rivers first argument is a non
sequitur, that simply because Two Rivers could not have sued under
common-law causes of action does not mean that the Tank Act claim cannot
be treated like those actions and thus subject to their statute of
Next, it argues that Buttzville was erroneously decided for the
following reasons. First, contrary to Pennsylvania law on the
interpretation of statutes, the court added words to the statute, citing
in part, Altieri v. Allentown Officers' and Employees' Retirement Board,
368 Pa. 176, 181, 81 A.2d 884, 886 (1951) ("What the legislature failed
to include, a court may not add"); and Key Savings and Loan Ass'n v.
Louis John, Inc., 379 Pa.Super. 226, 232, 549 A.2d 988, 991 (1988) ("this
Court is without authority to insert a word into a statutory provision
where the legislature has failed to supply it"). CUSA maintains that the
court improperly re-wrote the statute to add a 20-year limitations period
for citizen suits that is not present in the statutory language.
Second, CUSA asserts that the General Assembly, by failing to include
citizen suits in section 6021.1314's 20-year limitations period, clearly
intended that this lengthy period not apply to Tank Act citizen suits.
CUSA points to the analogous provision in PaHSCA, enacted about a year
before the Tank Act, which explicitly provides a 20-year statute of
limitations not only for civil and criminal penalties but also for civil
actions under PaHSCA as well. The PaHSCA provision states, in pertinent
Notwithstanding the provisions of any other statute
to the contrary, actions for civil or criminal
penalties under this act or civil actions for releases
of hazardous substances may be commenced at any time
within a period of 20 years from the date the unlawful
conduct or release is discovered.
CUSA also attacks the Buttzville conclusion that it would be
"nonsensical" to subject a private cause of action to a two-year period
of limitations while allowing a governmental action a 20-year period.
CUSA points out that the Commonwealth is often not subject to a
limitations period at all unless specifically made so by legislation, see
City of Philadelphia v. Lead Industries Ass'n, Inc., 994 F.2d 112, 118
(3d Cir. 1993), and that even under the Tank Act, PaDEP can bring certain
actions at any time to abate a nuisance, 35 P.S. § 6021.1305(a)
(Purdon 1993), or to enjoin violations of the Act, id. at section
1305(b), while only actions for civil penalties under 35 P.S. §
6021.1307 (Purdon 1993), and for criminal penalties under 35 P.S. §
6021.1306 (Purdon 1993), are subject to the 20-year limitations period.
CUSA also contends that Two Rivers' argument that no limitations period
should apply ignores section 5524(7) which imposes a two-year limitations
period on tort-based claims. CUSA asserts that Two Rivers' citizen-suit
cause of action is such a claim because it seeks damages for the
diminution of the site's value, a claim that CUSA contends sounds in
tort. Among other things, CUSA also points out that the Pennsylvania
Superior Court's description of a Tank Act violation in Centolanza,
supra, 430 Pa.Super. at 478, 635 A.2d at 150, as evidence of negligence
per se provides further support for calling it a tort remedy. Finally,
CUSA argues that a Tank Act claim cannot be one for indemnity since
indemnity claims become ripe only when one party has been required to pay
money to a third party, citing Rubin Quinn Moss Heaney & Patterson,
P.C. v. Kennel, 832 F. Supp. 922, 935 (E.D.Pa. 1993).
We agree with the defendant's position that a private Tank Act claim is
essentially a tort. To begin with, the Tank Act's citizen-suit provision
authorizes what can best be described as a tort claim akin to a
common-law claim for nuisance; the Tank Act recognizes that a violation
of the Act can be abated as a nuisance. See 35 P.S. § 6021.1305(a).
Additionally, the factual underpinnings of a private claim under section
1305(c) (here a release of petroleum products into the land and water)
are the equivalent of a common law cause of action for nuisance without
the common-law limitations. See Philadelphia Electric Co., supra. In
fact, a common-law cause of action for nuisance is a tort. Golen v. Union
Corp., 718 A.2d 298, 300 (Pa.Super. 1998). Further, under the
Pennsylvania Supreme Court's interpretation of the citizen-suit
provision, a person injured by a violation of the Act can recover as
damages the "costs of cleanup and diminution in property value."
Centolanza, supra, 540 Pa. at 407, 658 A.2d at 340. At least the latter
element of damages is recoverable under the common law of nuisance, see
Golen, supra, 718 A.2d at 300, and probably the first as well. 28 P.L.E.
§ 48 n. 49 (1960).
Since section 6021.1305(c)'s private cause of action is a tort, we must
look to 42 Pa.C.S. § 5524(7) for its statute of limitations. As
noted, section 5524(7) provides a two-year statute of limitations for
"[a]ny other action or proceeding to recover damages for injury to person
or property which is founded on negligent, intentional, or otherwise
tortious conduct or any other action or proceeding sounding in trespass.
. . ." A private action under section 6021.1305(c) fits this
description. Hence, a two-year period of limitations applies to a private
Tank Act claim.
There is thus no need to rely on broad policy considerations or logical
assumptions, as the Buttzville court did, in finding the appropriate
limitations period. Pennsylvania law tells us what limitations period
applies. We thus respectfully disagree with Buttzville's approach to the
Having concluded that a two-year limitations period applies, we must
decide if Two Rivers' Tank Act claim is time barred. CUSA asserts that at
the latest Two Rivers' principals knew about the contamination at the
Duncannon terminal by October 21, 1991, the date Two Rivers executed the
contract to buy the terminal. Since this lawsuit was filed on October
20, 1997, well in excess of two years after the purchase, the Tank Act
claim is time barred.
Two Rivers does not argue with these facts, and we agree with CUSA. As
noted above, Two Rivers and Cumberland Farms negotiated over a number of
months about the contamination at the site before the sale was made. In
fact, in December 1990, Two Rivers contracted with Benatec Associates to
examine the site for pollution. Two Rivers thus knew about the
contamination if not its extent by October 21, 1991. Hence, its Tank Act
claim is time barred.
Two Rivers argues that, if its Tank Act claim is barred by a two-year
statute of limitations, then CUSA's Tank Act counterclaim is time barred
as well. It points out that it had put CUSA on notice of a potential Tank
Act claim in 1991 when Two Rivers told CUSA it was looking to it to
remediate the site, but the counterclaim was not filed until January
1999, well in excess of two years later.
We agree with Two Rivers that CUSA's Tank Act claim is time barred
too, although we believe a later date provides a stronger basis for
starting the limitations period. In December 1995, Worldwide Geosciences
tested a water sample for Land Tech, CUSA's environmental consultant. The
sample was described as consisting of high-lead gasoline typically made
before July 1985, but also of diesel fuel or "fuel oil derived
hydrocarbons" that was "minimally biodegraded" and most probably with "an
exposure time of less than seven years." This calculation places a
potential diesel-fuel release at the site after CUSA left, as CUSA itself
has argued. A counterclaim filed in January 1999 is thus well beyond the
two-year limitations period. Hence, CUSA's Tank Act claim is time
2. Retroactivity of the Tank Act.
CUSA also argues that Two Rivers' Tank Act claim fails because it
attempts to reach conduct that occurred before the Act became effective
and the Tank Act cannot be applied retroactively. CUSA ceased operations
at the terminal in 1985 and sold it in 1986. The Tank Act became
effective on August 6, 1989.
CUSA relies on the statutory language that allows a private cause of
action when a defendant is "in violation of any provision of this act or
any rule, regulation, order or permit issued pursuant to this act." 35
P.S. § 6021.1305(c) (emphasis added). It then argues:
Two Rivers cannot make that showing as a matter of law
for the simple reason that CUSA cannot be "in
violation of" a provision or rule under the Tank Act
when it severed all interest in the Property over
three years before there was any provision or rule to
(CUSA's summary-judgment brief on Two Rivers' claims at p. 16-17).
[A]ny person may commence a civil action on his own
(1)(A) against any person . . . who is alleged to be
in violation of any permit, standard, regulation,
condition, requirement, prohibition, or order which
has become effective pursuant to this chapter . . .
42 U.S.C. § 6972 (a)(1)(A). The "in violation" language has led to
rulings that RCRA does not apply to conduct occurring before RCRA's
enactment. See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,
1158-59 (9th Cir. 1989) (citing Gwaltney of Smithfield v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987));
Pennsylvania Real Estate Investment Trust v. SPS Technologies, Inc., 1995
WL 687003 (E.D.Pa. 1995); Petropoulos v. Columbia Gas, 840 F. Supp. 511,
514-15 (S.D.Ohio 1993). As Ascon Properties reasoned:
Ascon's second amended complaint alleged that
Mobil's disposal ceased in 1972. RCRA was not enacted
until 1976. Therefore, Mobil simply could not have
been "in violation of any permit, standard,
regulation, condition, requirement, prohibition, or
order which has become effective pursuant to this
chapter," 42 U.S.C. § 6972 (a)(1)(A): there was no
statute pursuant to which such a permit could have
been effective at the time of Mobil's alleged acts.
866 F.2d at 1159. The defendant also cites Louisiana-Pacific Corp. v.
ASARCO Inc., 24 F.3d 1565, 1578-79 (9th Cir. 1994), in which the Ninth
Circuit relied on Ascon Properties to preclude retroactive application of
a Washington State environmental law that contained an analogous
provision to RCRA's citizen-suit section.
Additionally, CUSA points out that Pennsylvania does not permit
retroactive application of a statute unless the General Assembly clearly
and manifestly intends it. See 1 Pa.C.S. § 1926; Gehris v.
Commonwealth, Department of Transportation, 471 Pa. 210, 214,
369 A.2d 1271, 1273 (1977) ("absent clear language to the contrary,
statutes are to be construed to operate prospectively only"). It contends
there is no language in the Tank Act specifying it should be applied
retroactively. Hence, it cannot be applied here to CUSA's conduct before
The plaintiff counters by first arguing that the Tank Act is
retroactive because it defines an "owner" of a UST, in part, as an owner
of such tanks from a ...