Transportation Services, Inc. v. Underground Storage Tank Indemnification Board
67 A.3d 142
Pa. Commw. Ct.2013Background
- Transportation Services seeks remediation-cost reimbursement from the Pennsylvania Underground Storage Tank Indemnification Fund.
- Fund denied based on Transportation Services not being current on capacity fees when the contamination was discovered.
- Tanks were emptied and closed in 1997; capacity fees were paid through mid-1998, not after 1998’s second half.
- Permanent closure occurred December 1998; some residue remained in tanks before closure.
- Contamination was discovered later (notably around 2002 and 2005), with responsibility shifting to Transportation Services.
- Regulatory framework required fees to be paid before remediation eligibility and tied to tank operation and closure reporting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 25 Pa.Code § 977.12(d) applied in 1998 | Transportation Services | Fund | Regulation not in effect in 1998; improper to apply it |
| Whether empty tanks with residue incur a capacity fee | Transportation Services | Fund | No capacity fee on tanks emptied and considered empty under 25 Pa.Code § 245.451 |
| Whether the Fund’s permanent-closure rule is a valid regulation | Transportation Services | Fund | Permanent-closure rule is invalid as a de facto regulation not promulgated under Commonwealth Documents Law |
| If applicable, does mutual mistake allow review of the wrong regulation | Transportation Services | Fund | Mutual mistake can be reviewed; agency error allows correction |
Key Cases Cited
- Whitehead v. Casey Building Wreckers, Inc., 294 A.2d 215 (Pa. Cmwlth. 1972) (agency cannot apply law not in effect)
- Dilliplaine v. Lehigh Valley Trust Company, 322 A.2d 114 (Pa. 1974) (waiver for failure to timely object to instructions)
- Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981) (waiver context; willful misconduct theory)
- Norristown Area School District v. Pennsylvania Human Relations Commission, 374 A.2d 679 (Pa. 1977) (distinguishes binding regulation from policy statements)
- Rushton Mining Company, 591 A.2d 1168 (Pa.Cmwlth. 1991) (regulation vs. policy; binding normative effect)