A recent decision by Judge William W. Caldwell of the United States District Court for the Middle District of Pennsylvania imposes important limits to petroleum contamination cost recovery actions in Pennsylvania. In Two Rivers Terminal L.P. v. Chevron USA Inc., No. 1:CV-97-1595 (March 27, 2000), a subsequent owner (Two Rivers) was precluded from pursuing several causes of action against the original owner (Chevron) of a petroleum terminal. There was an intervening owner, Cumberland Farms, Inc., that never operated or occupied the terminal and was not involved in this action.
First, the court held that a two year statute of limitations applies to private claims under Pennsylvania's Storage Tank and Spill Prevention Act ("Tank Act"), 35 P.S. Sec. 6021.101- .2104, as the claim is essentially a tort governed by 42 Pa. C.S. Sec. 5524(7). Second, the court held that the Tank Act does not apply retroactively to conduct occurring before its enactment. Despite earlier decisions providing coverage in such situations, (where this issue was not raised,) the court held that the trigger for coverage under the Tank Act is being "in violation" after enactment of the law (August 6, 1989), and not continued pollution during that time period. 25 P.S. Sec. 6021.1305(c).
Also, concurring with the majority of courts that have addressed this issue in the past, the court held that the "petroleum exclusion" precludes coverage under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. Secs. 9601-9675, and Pennsylvania's analog, the Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. Secs. 6020.101-.1305. And, that since plaintiff cannot show anything more then a bare threat of future potential pollution, there can be no "imminent and substantial endangerment" justifying relief under the Resource Conservation and Recovery Act of 1976 ("RCRA"), Pub. L. No. 94-580, 90 Stat. 2795 (codified in scattered sections of 42 U.S.C.), 42 U.S.C. Sec. 6972(a)(1)(B).
Finally, holding out some hope of recovery for the plaintiff, the court allowed the state common-law indemnification and contribution based claims and claims under the Pennsylvania Uniform Contribution Among Tort-feasors Act, 42 Pa. C.S. Secs. 8321-8327, to go forward for adjudication.
The holding in this case, if upheld, severely limits Tank Act cost recovery actions, establishing a limiting two year statute of limitations and removing from coverage any polluting activities that occurred prior to August 6, 1989.