PA Storage Tank Act Held to Apply to Pre-Enactment Contamination

August 16, 2007
by MEREDITH DuBARRY HUSTON
Client Alert Newsletter August 2007

On August 9, the U.S. District Court for the Eastern District of Pennsylvania held that the Pennsylvania Storage Tank and Spill Prevention Act ("Tank Act") can be applied to remedy petroleum contamination originating prior to its 1989 effective date. In finding that it would not be impermissibly retroactive to apply the Tank Act to pre-enactment leaks, the court explained that "[t]he Tank Act pertains to the condition of being polluted, not only to the originating leak itself." The court supported its position with a Pennsylvania Supreme Court decision holding that a fireman disabled by tuberculosis could obtain benefits under the state Heart and Lung Act even though he was infected with the disease prior to that act’s effective date. In contrast, in 2000, the U.S. District Court for the Middle District of Pennsylvania held in Two Rivers Terminal, L.P. v. Chevron USA, Inc., that the Tank Act cannot operate retroactively to reach contamination originating prior to 1989. That court noted that "there can be no violation of the Tank Act when there was no Tank Act." Which interpretation of Tank Act retroactivity will ultimately prevail in Pennsylvania thus remains an open question.