U.S. v. Sunoco, Inc.

Page 656

501 F.Supp.2d 656

UNITED STATES of America, Plaintiff, v. SUNOCO, INC., et al., Defendants.

Civil Action No. 05-6336-ABB.

United States District Court, E.D. Pennsylvania.

August 8, 2007.

COPYRIGHT MATERIAL OMITTED

Annetta Foster Givhan, Virginia A. Gibson, U.S. Attorney's Office, Philadelphia, PA, Rachel Jacobson, Sue Ellen Wooldridge, Daniel S. Smith, David E. Street, Katherine Lynn Vanderhook, U.S. Department of Justice, Washington, DC, for Plaintiff.

Joel M. Gross, Kristen Klick White, Meetu Kaul, Michael D. Daneker, Arnold & Porter LLP, Washington, DC, Evynn M. Overton, Harold L. Segall, Robert Brager, Timothy M. Sullivan, Beveridge & Diamond PC, Baltimore, MD, Randall K. Miller, Arnold & Porter, LLP, McLean, VA, for Defendants.

Opinion

ANITA B. BRODY, District Judge.^*

I. Introduction

The United States has filed suit against defendants Atlantic Richfield Company et al. ("AR") and Sunoco et al. under the Pennsylvania Storage Tank and Spill Prevention Act, 35 Pa.C.S. § 6021.101, et seq., ("Tank Act"), the Pennsylvania Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. §§ 8321-8327 ("UCATA"), and the federal Declaratory Judgment Act, 28 U.S.C. § 2201(a). The United. States also makes a claim against Sunoco only under the Clean Streams Act, 35 Pa. Stat. § 691.401 ("CSA"). In this opinion, I address defendants' separate motions for summary judgment on the Tank Act, UCATA, and Declaratory Judgment Act claims; as well as Sunoco's motion for summary judgment on the CSA claim and AR's motion to strike the United States's request for a jury trial.¹

The suit concerns petroleum pollution ("the Plume") allegedly emanating from a section of a South Philadelphia refinery known as the Point Breeze Processing Area. ¶ 8.² Point Breeze is currently owned by defendant Sunoco and was previously owned by defendant AR. ¶ 4, ¶ 9. The Plume migrated underground from Point Breeze and contaminated a nearby United States property called the Defense Supply Center Philadelphia ("DSCP property"). ¶ 11-14; 17-44. Pollution is still migrating from Point Breeze to the DSCP property. ¶ 47.

The United States detected the Plume in 1987 on its own property and notified the predecessor agency of the Pennsylvania Department of Environmental Protection (PADEP) of violations of state environmental regulations. ¶ 17. The United States first thought that the Plume came from a leaking fuel line of its own, but came to believe that the Plume originated mostly from Point Breeze. ¶ 17-44. Less than 5% of the total pollution is attributable to the United States. ¶ 91. In 1996, the United States and defendant Sunoco entered into a Consent Order and Agreement ("The 1996 COA") with PADEP to remediate the Plume together. ¶ 31.³ However, this agreement broke down, and in 1999 PADEP issued a Unilateral Administrative Order ("The 1999 UAO") requiring the United States to assume sole responsibility for the remediation. ¶ 40, U.S. Ex. 13.⁴ PADEP deemed the United States liable and ordered it to remediate the Plume alone. ¶ 40. The UAO was appealed by the United States to the Pennsylvania Environmental Hearing Board (EHB), which upheld the agency action. Id. The United States also sought review of the UAO in the Pennsylvania Commonwealth Court and the Eastern District of Pennsylvania. ¶ 42. Those matters settled with an agreement that the United States and PADEP would resolve future disagreements about the site through mutually agreeable dispute resolution. ¶ 42. Pursuant to the UAO, the United States has" been remediating the Plume and anticipates that future remediation will be required. ¶ 43-44. It has already spent $22,000,000 on remediation. ¶ 75.

II. UCATA Claims

The Uniform Contribution Against Tortfeasors Act (UCATA), 42 Pa.C.S. §§ 8321-8327 gives a right of contribution to joint tortfeasors, defined as "two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." § 8322. The United States seeks contribution from Sunoco and AR to compensate for the funds it has expended to remediate their joint pollution. Both Sunoco and AR seek summary judgment on the UCATA claims.

A. Underlying Tort

The UCATA requires an underlying tort because it applies only to parties "liable in tort." 42 Pa.C.S. § 8322. The United States grounds its UCATA claim on its Tank Act liability to PADEP. US Opp. at 74 (docket entry # 64). Sunoco argues that a Tank Act violation cannot constitute a tort for UCATA purposes because it is a statutory violation, not a common law tort. AR, however, agrees that a Tank Act violation is "a type of tort claim" that may serve as a basis for a UCATA action. AR Reply at 43 n. 31 (docket entry # 79).

A violation of the Tank Act is defined in the Tank Act as a "public nuisance." 35 Pa.C.S. § 6021.1304. Violations of the Tank Act are also "abatable in the manner provided by law or equity for the abatement of public nuisances." § 6021.1305(a). "Public nuisance" is a kind of tort that may be statutorily codified and defined. W. Page Keeton, Prosser and Keeton on Torts § 90, at 646 (5th ed.). Further, Pennsylvania courts view public nuisances as a kind of tort. See, e.g., Duquesne Light Co. v. Pennsylvania American Water Co., 850 A.2d 701, 705 (Pa.Super.2004). Thus, the Pennsylvania legislature has deemed Tank Act violations to be a kind of tort, giving rise to liability under UCATA.

Sunoco has presented no Pennsylvania authority suggesting that a UCATA claim cannot be based on a violation of a statutorily-defined tort such as a Tank Act violation. Other states have held or suggested that certain statutory violations do not constitute torts under their joint tortfeasor contribution laws. See, e.g., State v. Therrien, 175 Vt. 342, 830 A.2d 28, 36 (2003); Hopkins v. Powers, 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757, 759 (1986). But in Therrien and Hopkins the underlying statutory violations were apparently not defined as a "public nuisance" (or any other kind of tort) by the express language of the statute itself, as they are in the Pennsylvania Tank Act.

That the United States has argued at other points in this litigation that Tank Act violations are not torts for statutes of limitations purposes does not foreclose it from also arguing that its Tank Act liability is a tort for UCATA purposes. The United States never argued that its own claim here is not a tort. Instead, it argued that the statute of limitations analysis requires a holistic view of all possible kinds of liability under the Tank Act. That argument does not now undermine the United States's position that the present, concrete Tank Act violation can be the basis for a UCATA claim.

C. Joint Tortfeasor Status

The UCATA plaintiff and defendants must be "jointly or severally liable in tort for the same injury." § 8322. Sunoco argues that the United States has failed to allege in its complaint that either Sunoco or it itself is a tortfeasor, or that they acted jointly. However, by making claims against Sunoco and AR for primary liability under the Tank Act and acknowledging that the United States itself contributed at least 5% of the pollution at the site, the United States has adequately pleaded that it and the defendants are joint tortfeasors under the UCATA.

Sunoco further argues that the United States and Sunoco are not joint tortfeasors under the UCATA because their contributions to the Plume were separate, not joint, torts. Under Pennsylvania law, two actors are joint tortfeasors for UCATA purposes if their conduct "causes a single harm which cannot be apportioned ... even though [the actors] may have acted independently." Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 25 (3d Cir. 1986). Pennsylvania also embraces the tort concept of "substantial factor" causation for joint tortfeasors — i.e., that joint tortfeasors may act independently and concurrently to create an enhanced injury. Harsh v. Petroll, 584 Pa. 606, 887 A.2d 209 (2005)

An examination of Pennsylvania case law shows that in this case, the parties are joint tortfeasors. In Harsh, a car crash case, the Pennsylvania Supreme Court held that the negligent driver and the manufacturer of the decedents' uncrashworthy car could be joint and severally liable to the plaintiff for the accident. 887 A.2d at 218-19. In Rabatin, the manufacturer of defective equipment and the employer who failed to maintain the equipment were deemed joint tortfeasors under UCATA because they had caused a single injury when the equipment broke and harmed the plaintiff. 790 F.2d at 25-6. In Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249 (1984), a series of three doctors negligently treated Capone's broken arm. Doctors Donovan and Stackowski took the initial x-rays and fitted the cast. Some weeks later, when the arm had not improved, Capone went to Dr. Persico, who performed more x-rays and wrapped the arm in an ace bandage. Ten months later when the arm still hadn't healed, Capone went to a fourth doctor who correctly diagnosed him and performed the needed surgery. Because of the delay, Capone was left permanently disabled. The Pennsylvania court ruled that all three doctors were joint tortfeasors because "the alleged malpractice of all treating physicians combined to produce a permanent injury" that could not be apportioned among the tortfeasors. Id. at 1251.

On the other hand, the courts have declined to find joint tortfeasor status where the tortious conduct is clearly independent and creates separable injuries. See Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979); Harka v. Nabati, 337 Pa.Super. 617, 487 A.2d 432 (1985); Kemper National P & C Companies v. Smith, 419 Pa.Super. 295, 615 A.2d 372 (1992) Foulke v. Dugan, 212 F.R.D. 265 (E.D.Pa. 2002) (Brody, J.). In Lasprogata the Superior Court held that a negligent driver causing the initial injury and a negligent physician aggravating the...