Pickens v. Underground Storage Tank Indemnification Board

890 A.2d 1117

• Court: Commonwealth Court of Pennsylvania
• Decided: February 10, 2006
• Status: Published

Opinions

OPINION BY

Judge PELLEGRINI.

J.D. Pickens (Pickens) and the Estate of Jeannette Sherman (Estate) appeal from an order of the Underground Storage Tank Indemnification Board (Board) denying the Estate’s eligibility under the Underground Storage Tank Indemnification Fund (Fund) because it did not pay the necessary tank fees pursuant to the Storage Tank and Spill Prevention Act (Tank Act)¹ for the years 1994 and 1995.

The Estate owns the real estate located at 642 North 52nd Street, Philadelphia, Pennsylvania, and Pickens has been the lessee at all relevant times operating an automobile service station with attendant underground storage tanks. Pickens, as the registered owner and operator of the service station, first registered the underground storage tanks in 1990 with the Pennsylvania Department of Environmental Resources. On February 1, 1994, tank fees were established pursuant to Section 705(d) pf the Tank Act, 35 P.S. § 6021.705(d).² These fees are established year to year to meet the anticipated claims. Tank fees were set in 1994 and 1995 at $100 per tank. The Fund mailed 10 invoices to Pickens from December of 1993 through December of 1996 requesting that he pay the mandated tank fees for the years 1994 and 1995. These invoices totaled $666.64, consisting of $300 in tank fees for 1994, $64.64 in penalties for those tank fees and $300 in tank fees for 1995. Neither Pickens nor the Estate paid those invoices. After the year 1995 (25 Pa.Code § 977.12), these fees were set by the Fund at “$0.” No payment of any fee has ever been made by the Estate or Pickens into the Fund for which the Estate now seeks reimbursement.³

In February, 2002, the tanks on the property were excavated, a “release”⁴ was found in and around the tanks, and the Estate submitted a claim to the Fund for remediation costs.⁵ Because the Estate had not paid its tank fees for the years 1994 and 1995, the Fund’s Managers denied its claim because Section 706(2) of the Tank Act, 35 P.S. § 6021.706(2),⁶ makes claimants who had not paid the “current [tank] fee” ineligible for payment of remediation costs. The Estate requested a hearing before the Board contending that it was eligible for reimbursement because even though it never paid the tank fees for 1994 and 1995, it was current in its payment for the year 2002 as no fee was due. A Presiding Officer was appointed by the Board to hear the matter.

Finding the term “current fee” as used in the Tank Act to mean “all fees” owed, the Presiding Officer issued a Proposed Report and Recommendation (Report) recommending to the Board that the Estate’s claim be denied. Even though the term “current fee” was not defined by the Tank Act, the Presiding Officer reasoned that term had to include all past due fees because if a tank owner had to pay only the fee for the current year to remain eligible, it would cause tank owners not to pay past due fees which would threaten the financial stability of the Fund. This would be contrary to the legislative purpose of the Tank Act to have a financially sound Fund to ensure that harmful releases be remediated.⁷ The Estate filed Exceptions to the Report, which the Board denied, and it adopted the Presiding Officer’s Report as its own. This appeal followed.⁸

Noting that “current” is defined as “presently elapsing,” “occurring in or existing at the present time” or “most recent,” ⁹ the Estate contends that the plain meaning of “current fee” as used in Section 706(2) of the Tank Act is that only the current year’s fees have to be paid to be eligible for reimbursement, not “all fees” as the Board found. Because the nonpayment of the tank fees for the years 1994 and 1995 are not current fees but past due fees, the Estate argues that the Board erred in finding that it was ineligible for reimbursement from the Fund.

Notwithstanding the adverse effect such an interpretation may have on the Fund’s financial condition, if before us was the interpretation of the bare term “current fee,” we would agree with the Estate that the term “current fee” only means the fee presently due and owing. However, Section 706(2) of the Tank Act does not just require that the “current fee” be paid, but also that “[t]he current fee required under section 705 has been paid.” What is a “current fee” then, is what is owed under Section 705.

Along with providing who is responsible for the payment of fees and where the fees are to be paid, Section 705(e) of the Tank Act, 35 P.S. § 6021.705(e), also provides in relevant part:

A person who fails or refuses to pay the fee or a part of the fee by the date established by the board may be assessed a penalty of 5% of the amount due which shall accrue on the first day of delinquency and be added thereto. Thereafter, on the last day of each month during which any part of any fee or any prior accrued penalty remains unpaid, an additional 5% of the then unpaid balance shall accrue and be added thereto.

What Section 705(e) of the Tank Act does, much like a credit card account, is to require the amount of the past due fee to be “rolled over” with interest and have a penalty added each month when a tank fee is not timely paid, making “all fees,” a “current fee” owed to the Fund even though it represents the amount of fees assessed for previous years. Because Section 706(2) of the Tank Act conditions eligibility for reimbursement on the payment of the current fee required to be paid under Section 705(e), which makes “current” past due fees, the Board properly determined that the non-payment of tank fees for the years 1994 and 1995 makes the Estate ineligible for reimbursement of its remediation costs.

Accordingly, we affirm the order of the Board denying the Estate’s exceptions and adopting the Presiding Officer’s Report in full.

ORDER

AND NOW, this 4-th day of January, 2006, the order of the Underground Storage Tank Indemnification Board dated January 14, 2005, is hereby affirmed.

1 . Act of July 6, 1989, P.L. 169, No. 32, as amended, 35 P.S. §§ 6021.101-6021.2104. The purpose of the Tank Act is to prevent the occurrence of storage tank releases "through the establishment of a regulatory scheme for the storage of regulated substances in new and existing storage tanks and to provide liability for damages sustained within this Commonwealth as a result of a release and to require prompt cleanup and removal of such pollution and released regulated substance." 35 P.S. § 6021.102(b). The Fund was created to provide necessary monies to the Board "for the purpose of making payments to owners, operators and certified tank installers of underground storage tanks who incur liability for taking corrective action or for bodily injury or property damage caused by a sudden or nonsudden release from underground storage tanks and for making loans to owners as authorized by [the] [Tank Act].” 35 P.S. § 6021.704(a)(1).

2 . Section 705(d) of the Tank Act, 35 P.S. § 6021.705(d), provides in relevant part: "The board, by regulation, shall establish fees to be paid by the owner or operator, as appropriate, of the underground storage tanks. Fees shall be set on an actuarial basis in order to provide an amount sufficient to pay outstanding and anticipated claims against the Underground Storage Tank Indemnification Fund in a timely manner. Fees shall also include an amount sufficient to meet all other financial requirements of the board. Fees shall be adjusted as deemed necessary by the board, but no more than once a year.”

3 . There are other fees known as "throughput fees.” Also known as "gallon fees,” throughput fees are assessed upon a tank owner or operator on regulated substances placed into an underground storage tank. 25 Pa.Code § 977.4. The fees are calculated by multiplying the number of gallons of regulated substance entering an underground storage tank by $.011. (For example, 10,000 gallons at $.011 per gallon equals $110). 25 Pa.Code § 977.12(b)(2). The Estate owed no throughput fees after 1995 as no deliveries to the tanks were made during any time period in which a throughput fee requirement was in effect.

4 . The term "release” is defined by Section 103 of the Tank Act, 35 P.S. § 6021.103, as: "Any spilling, leaking, emitting, discharging, escaping, leaching or disposing from a storage tank into surface waters and groundwa-ters of this Commonwealth or soils or subsurface soils in an amount equal to or greater than the reportable released quantity determined under section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and regulations promulgated thereunder, or an amount equal to or greater than a discharge as defined in section 311 of the Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1321) and regulations promulgated thereunder.”

5 . At the time the tanks were originally excavated and the release was discovered, the tanks were registered to Pickens. The tanks were then registered to the Estate in March 2002. In spite of the fact that Pickens is the rightful claimant under the Tank Act, the Estate is pursuing the claim as the real party in interest because it spent money for the tank removal and was deemed liable for the response costs. The Fund did not challenge the Estate’s standing to prosecute this appeal in Pickens’ name.

6 . Section 706 of the Tank Act, 35 P.S. § 6021.706, establishes the requirements for eligibility for claimants to receive payment from the Fund. Section 706 provides, in pertinent part:

In order to receive a payment from the Underground Storage Tank Indemnification Fund, a claimant shall meet the following eligibility requirements:

(2) The current fee required under section 705 has been paid. (Emphasis added)

7 . The Presiding Officer relied on M.H. Davis Estate Oil Co., Inc. v. Underground Storage Tank Indemnification Board, 789 A.2d 398 (Pa.Cmwlth.2001), for his rationale. In that case, an oil company had not paid its current throughput fees when it first discovered a suspected release of product. Shortly after the discovery of the release, it paid its past due throughput fees and sought reimbursement which the Fund denied. Rejecting the oil company’s argument that the “current fee” only had to be paid when payment was sought, not when the release was discovered, we held the "current fee” had to be paid at the time of release because to hold otherwise would allow tank owners to make fee payments only when a release was discovered, not when the fee was due, thus imperiling the financial stability of the Fund. We also rejected the notion that the Fund was like an insurance policy or that other enforcement mechanisms were available to collect past due fees, noting the Fund was not insurance, but a fund created by statute to provide payments to eligible tank owners, and that eligibility for coverage depended upon compliance with statutory requirements.

8 . Our scope of review is limited to a determination of whether the government agency violated constitutional rights, erred as a matter of law or whether its findings of fact are supported by substantial evidence. Southeast Delco School District v. Underground Storage Tank Indemnification Board, 708 A.2d 881 (Pa.Cmwlth.1998).

9 . The Tank Act does not define the term "current fee.” See 35 P.S. § 6021.103. Absent a definition in the statute, the Statutory Construction Act requires words and phrases to be construed "according to rules of grammar and according to their common and approved usage.” 1 Pa.C.S. § 1903(a); see also Harris-Walsh, Inc. v. Borough of Dickson City, 420 Pa. 259, 216 A.2d 329 (1966). According to ’Webster’s 11th Collegiate Dictionary, “current” means "presently elapsing,” "occurring in or existing at the present time” or "most recent.” Webster’s Eleventh Collegiate Dictionary 306 (2004). The Statutory Construction Act states the "object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).