MKP Enterprises, Inc. v. Underground Storage Tank Indemnification Board
2012 Pa. Commw. LEXIS 62
| Pa. Commw. Ct. | 2012Background
- EPI operates three underground storage tanks in Erie; during excavation on November 6, 2007, contamination around spill buckets was observed and the tanks were removed and replaced the next day.
- The Underground Storage Tank Indemnification Fund denied EPI’s claim (April 2008) because EPI allegedly failed to notify the Fund within 60 days after confirmation of the release.
- EPI challenged the denial; the Presiding Officer found EPI ineligible for coverage due to untimely notification, and the Board adopted the PO’s report.
- DEP received notice of the release via a NORR and DEP faxed a copy to the Fund; the NORR bore signatures indicating a confirmed release in November 2007.
- Section 977.34 requires notification to the Fund within 60 days after confirmation of a release under DEP regulations; the Board held the 60-day window began in November 2007.
- EPI petitioned for review, asserting multiple regulatory, preemption, and procedural issues, including nunc pro tunc relief and an application of Harrisburg Jet Center precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was EPI’s notice to the Fund timely under 977.34? | EPI argued DEP/DEP-notified form satisfied notice to the Fund within 60 days. | Board held only a participant may notify the Fund; notice must be timely by the participant. | Untimely; 60 days from November 2007 denial of release ran before April 2008 filing. |
| Does DEP’s NORR/Notification Form satisfy the Fund’s notice requirement? | DEP’s transmission to the Fund could constitute notice to the Fund. | Notice to DEP alone does not fulfill 977.34’s requirement that a participant notify the Fund. | No; notice to DEP via NORR does not satisfy the Fund’s separate notice requirement. |
| Does Harrisburg Jet Center impose an improper constructive-knowledge standard for accrual date? | Harrisburg Jet Center should not apply; it used a constructive knowledge approach. | Harrisburg Jet Center aligns with a standard that factual knowledge can trigger accrual. | Board’s approach, aligning with Harrisburg Jet Center, is not improper; actual knowledge supported accrual date. |
| Should nunc pro tunc relief have been granted? | Delay was excusable; circumstances justified nunc pro tunc relief. | No breakdown in process; regulation not confusing; no extraordinary circumstances shown. | Denied; no extraordinary circumstances; rule not confusing; no nunc pro tunc relief. |
Key Cases Cited
- Rohde v. Unemployment Comp. Bd. of Rev., 28 A.3d 237 (Pa. Cmwlth. 2011) (substantial evidence standard in review)
- Taylor v. Unemployment Compensation Bd. of Rev., 474 Pa. 351 (1977) (substantial evidence review framework)
- Penflex, Inc. v. Bryson, 506 Pa. 274 (Pa. 1984) (standard for binding findings on review)
- Fid. & Guar. Ins. Co. v. Bureau of Workers’ Comp. (Cmty. Med. Ctr.), 13 A.3d 534 (Pa. Cmwlth. 2010) (reasonableness of regulatory time limits; statutory delegation)
- Gibson v. Unemployment Compensation Bd. of Rev., 682 A.2d 422 (Pa. Cmwlth. 1996) (agency position changes require explanation)
- Dwyer v. Commonwealth, 849 A.2d 1274 (Pa. Cmwlth. 2004) (nunc pro tunc review not available for non-confusing regulations)