Two Rivers Terminal, L.P. v. Chevron Usa, Inc.

96 F.Supp.2d 432

TWO RIVERS TERMINAL, L.P., Plaintiff, v. CHEVRON USA, INC., Defendant.

No. Civ.A. 1:CV-97-1595.

United States District Court, M.D. Pennsylvania.

March 27, 2000.

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Kenneth L. Joel, Rhoads & Sinon, Charles E. Gutshall, Rhoads & Sinon, Harrisburg, PA, for Two Rivers Terminal, L.P., plaintiff.

John M. Armstrong, Gordon A. Einhorn, Schnader, Harrison, Segal & Lewis, Harrisburg, PA, Gordon A. Einhorn, John M. Armstrong, Schnader Harrison Segal & Lewis, Philadelphia, PA, John M. Armstrong, Schnader Harrison Segal & Lewis, Cherry Hill, NJ, Theodore F. Haussman, Jr., Schnader Harrison Segal & Lewis, Philadelphia, PA, for Chevron USA, Inc., defendant.

MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

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 Duncannon, Pennsylvania.

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.).

The defendant has made the following claims: (1) a CERCLA claim under section 9607; (2) a common-law claim for breach of contract; (3) a claim under section 6020.701 of PaHSCA; (4) a claim for common-law contribution; (5) a claim for common-law indemnity; and (6) a claim under section 6021.1310 under the Tank Act. The defendant has also alleged 37 affirmative defenses.

We are considering the following motions: (1) the plaintiff's 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).

II. Background.

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 fuel oils.

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.¹ 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 that area.

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.

After Two Rivers became aware of contamination at the site, on July 29, 1992, it contacted the Department of Environmental Protection (EPA) and the Pennsylvania Department of Environmental Resources (PaDER) (now the Pennsylvania Department of Environmental Protection (PaDEP)). Since that time, no major cleanup has been ordered; the transmix tank and some soil have been removed, but for the most part, only monitoring of the site has occurred by the taking of soil and water samples to determine the extent of hydrocarbon pollution. Two Rivers has also considered "natural attenuation" as part of its solution to contamination at the site.

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).²

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 plaintiff's Tank Act citizen-suit claim is also subject to a two-year statute of limitations.³

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...