Jump to Navigation
Jump to Content

Delaware Coca-Cola Bottling Co. v. S&W Petroleum Serv., Inc.

ELR Citation: 26 ELR 20178
Nos. No. 4:CV-94-1630, 894 F. Supp. 862/(M.D. Pa., 08/02/1995)

The court holds that the installer of an underground heating oil storage tank may be held liable as an "operator" under the Pennsylvania Storage Tank and Spill Prevention Act (STSPA) for the ongoing nuisance created by an alleged release from the tank. The court first holds that this case does not involve retroactive application of the STSPA, even though the Act was not in existence at the time of installation or at the time of the alleged release. The landowner is attempting to recover for an ongoing nuisance, the presence of the released heating oil, which continued after the effective date of the Act. It is the remedial action taken to abate the nuisance that gives rise to the cause of action, not the release itself. The court next holds that the installer is not an "owner" or "occupier" under the Act. The court holds, however, that the defendant's removal of old tanks and installation of new tanks makes it an "operator" under the Act. While an installer would not normally be considered an operator when the word is used in an ordinary manner, the STSPA's definition includes "alter," a word that would not be used to define "operator" for its ordinary usage. The Act therefore broadens the definition of "operator" to include activities that normally would not be considered the operation of a storage tank.

Counsel for Plaintiff
Joel R. Burcat
Kirkpatrick & Lockhart
Payne Shoemaker Bldg.
240 N. Third St., Harrisburg PA 17101
(717) 231-4500

Counsel for Defendant
James K. Thomas II
Thomas, Thomas & Hafer
305 N. Front St., 6th Fl., Harrisburg PA 17108
(717) 237-7100