U.S. v. Sunoco, Inc.
| Decision Date | 12 July 2007 |
| Docket Number | Civil Action No. 05-6336-ABB. |
| Citation | 501 F.Supp.2d 641 |
| Parties | UNITED STATES of America Plaintiff, v. SUNOCO, INC.; Sunoco, Inc. (R & M); Atlantic Refining and Marketing Corp.; Sunoco Partners Marketing and Terminals LP; and Atlantic Richfield Company; Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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 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.
Evynn M. Overton, Robert Brager, Timothy M. Sullivan, Beveridge & Diamond PC, Baltimore, MD, Harold L. Segall, Beveridge & Diamond, Joel M. Gross, Kristen lack White, Meetu Kaul, Michael D. Daneker, Arnold & Porter LLP, Washington, DC, Randall K. Miller, Arnold & Porter, LLP, McLean, VA, for Defendants.
The United States has filed suit against defendants Sunoco et al. and Atlantic Richfield Company et al. ("AR") 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. § 8324 ("UCATA"), the Clean Streams Act, 35 Pa.C.S. § 691.1, et seq., ("CSA") and the federal Declaratory Judgment Act, 28 U.S.C. § 2201(a). The suit alleges that the Point Breeze oil refinery, owned by the defendants at various points in time, caused underground petroleum pollution to an adjacent military supply depot called the Defense Supply Center Philadelphia ("DSCP property").1 The United States has moved for a judgment on the applicable statute of limitations, but does not seek a determination of whether its claims are actually time-barred. Defendant Sunoco opposes the motion. Defendant AR has filed its own cross-motion for judgment on the applicable statute of limitations, as well as for a determination of whether the claims are time barred. This opinion addresses only the United State's motion for judgment on the statute of limitations and the portion of AR's cross-motion for summary judgment on the statute of limitations.
I conclude that the United States' Tank Act claim for diminution of property value is a tort claim for money damages under § 2415(b) and is subject to the three year statute of limitations. The Tank Act claims for cost recovery and the UCATA claim for contribution are contracts implied in law under § 2415(a) and are subject to the six year statute of limitations. The United States is time barred from asserting both of its Tank Act claims against AR. AR may refile its motion on the statute of limitations for the UCATA claims at the close of discovery. Whether the Tank Act and UCATA claims against Sunoco are time barred is not reached in this opinion.
The complaint alleges that the DSCP, located in South Philadelphia and separated by a 550 foot wide corridor from the Point Breeze refinery, was contaminated by underground migration of petroleum products from the refinery. ¶ 12. Although the military retains the surface and subsurface property rights, the air rights were transferred to the Philadelphia Authority for Industrial Development in 2001. The property is currently used as a civilian shopping mall called "Quartermaster Plaza." ¶ 16. According to the original complaint, the United States first detected contamination in 1987 from a fuel leak from a United States gas station located on the DSCP property itself. The Pennsylvania environmental agency notified the DSCP that it was in violation of state regulations. ¶ 17.2 When the United States further investigated the pollution (through studies by the Army Corp. of Engineers and outside consultants), it found "widespread petroleum contamination" that could not have come from the DSCP gas station. ¶ 18-34. In 1995, one such study commissioned by the United States concluded that Point Breeze was the most likely source of the contamination. ¶ 29-30. The pollution is still continuing to migrate from Point Breeze to the United States property. ¶ 45, 47. To date, the United States has incurred $22,000,000 in cleanup costs. ¶ 75.
The United States sought cost recovery under the Tank Act in its original Complaint Act, ¶ 78, and added a claim for diminution of property value under the Tank Act in its First Amended Complaint. The Tank Act is a comprehensive regulatory scheme governing petroleum storage tanks in Pennsylvania. 35 Pa. St. Cons.§ 6021.101, et seq. Violations of the Tank Act are "public nuisances," § 6021.1304, and are "abatable in the manner provided by law or equity for the abatement of public nuisances," § 6021.1305(a). The Tank Act allows "any person having an interest which is or may be affected" to file a suit to "compel compliance" with the Act. § 6021.1305(c). This express private right of action has been interpreted by the Pennsylvania Supreme Court to include the right to cost recovery and diminution of property value. See Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 658 A.2d 336, 339-40 (1995).
The United States also seeks contribution from the defendants under Pennsylvania's Uniform Contribution Among Tortfeasor's Act. ¶ 88-93. The United States seeks pro rata contribution from the defendants on the theory it is only liable for a small portion (less than 5%) of the total pollution but has paid to remediate the whole. ¶ 90-93. The UCATA establishes that "[t]he right of contribution exists among joint tortfeasors." 42 Pa. Const. Stat. § 8324. An action for contribution under UCATA can be initiated in the underlying tort suit or as a separate action between joint tortfeasors. Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 508, 531 A.2d 789, (Pa.Super 1987).
The United States also made claims for relief under the Clean Streams Act and Declaratory Judgment Act that are not relevant to this opinion.
The United States has filed a,.Motion for Order on Applicability of Statutes of Limitations, seeking a ruling on only the legal question of which statute of limitations applies to its Tank Act and UCATA claims.3 The United States argues that no statute of limitations applies, or that the Pennsylvania twenty year Tank Act limit applies. However, the United States asks the court to reserve its decision on whether its claims are actually time-barred until after the close of discovery. AR, in its opposition to the United States and its cross-motion for summary judgment, argues that the three or six year general federal statute of limitations 28 U.S.C. § 2415 applies and that the claims against it are time barred. Sunoco argues in its opposition to the Untied States' motion that Pennsylvania law governs rather than federal law, and that the Pennsylvania catch-all six year period applies rather than the twenty year Tank Act period. Sunoco also argues that the United States' motion is entirely premature and should be dismissed for that reason.
To begin, the principle of sovereign immunity requires that any ambiguity in interpreting a statute of limitations must be resolved in favor of the government. BP America Production Co. v. Burton, ___ U.S. ___, ___, 127 S.Ct. 638, 646, 166 L.Ed.2d 494 (2006). When the United States is a plaintiff asserting state or federal law claims in its sovereign capacity, it is not subject to any statute of limitations unless Congress waives sovereign immunity and imposes a limit itself. United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940); United States v. John Hancock Mutual Life Ins., 364 U.S. 301, 308, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960); Dole v. Local 427, 894 F.2d 607, 610 (3d Cir.1990). The United States has been found to be acting outside of its sovereign capacity in narrow circumstances. See, e.g., United States v. California, 507 U.S. 746, 113 S.Ct. 1784, 123 L.Ed.2d 528 (1993). If "public policies are served and the public interest is advanced by the litigation," the government is acting in its sovereign capacity and is not subject to statutes of limitations. Dole, 894 F.2d at 612.
In this case, the United States seeks to facilitate environmental protection and restoration of public land by imposing liability on polluters through state law. Even without any specific Congressional command to undertake this particular action, it is clear that the United States is operating in its sovereign capacity: Few acts are more quintessentially sovereign than caring for the nation's land. In addition, a patchwork of Congressional mandates to clean up Department of Defense sites and obtain costs from polluters reinforces that the United States is acting with a "public purpose" in this action.4 Dole, 894 F.2d at 612. Therefore, the United States is not subject to a statute of limitations unless it has chosen to impose one on itself.
Although the United States acts here as a sovereign, it may have statutorily waived its immunity to statutes of limitation under 28 U.S.C. § 2415. Section 2415 statute provides that:
(a) ... every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues.
(b) ... every action for money damages brought by the United States or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues.
28 U.S.C. § 2415. The United States argues that it is not subject to § 2415 because the statutes it...
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