In September I co-moderated a session at the National Tanks Conference in Denver. That session, which I have participated in over the last several years, focused on recent legal case law that has developed pertaining to underground storage tank facilities. While not everyday mainstream news, for those in attendance, it seemed to be well received.
In the course of preparing for that event, it caused me to think about how the petroleum retail industry has changed over the last several years. Anyone operating a petroleum retail facility can certainly attest to the fact that their business model has become more complex even when compared to how they operated just five years ago. To get an understanding of just how complex it has become, one would need to look no further than case law published* between June and August of 2013.
During this period of time, approximately 35 cases were touched upon by the courts. Interestingly, more than one third of the cases were directly or indirectly involved with criminal activity. Criminal acts including credit card fraud, arson, assault and even death were addressed by the courts during this limited time period. Unfortunately, gas stations were the innocent references in cases where individuals procured goods and committed heinous acts in the commission of their crimes.
Consumer protection and antitrust lawsuits also provided some interesting insight into the challenges faced by the petroleum industry; (Single hose blender pumps fail to dispense in its entirety the higher grade gasoline selected and paid for by the Secondary Consumer). Johnson v. MFA Petro. Co., Case No. 11-0981-CV-W-DGK United States District Court for the Western District of Missouri Western Division 2013; (Gasoline company sued for allegedly violating the Song-Beverly Credit Card Act of 1971 by sometimes requiring customers to provide their zip codes when buying gasoline with credit cards). Flores v. Chevron U.S.A. Inc., Court of Appeal of California, Second Appellate District, Division One, 217 Cal. App. 4th 337 (2013);(Summary judgment affirmed in favor of a group of wholesale distributors where monopolization, attempted monopolization, predatory pricing, and discriminatory pricing, in violation of the Sherman Act and related statutes was alleged) SSS Enterprises, Inc. v. Nova Petroleum Realty, LLC, No. 12-2088 United States Court of Appeals for the Fourth Circuit (2013).
As might be expected, claims involving personal injuries alleged to have occurred while at gasoline station premises were decided; (Customer tripping over a gas hose while it was holstered in the dispenser).Koontz v. Quiktrip Corp., Case No. 4:12-00695-CV-DGK United States District Court for the Western District of Missouri, Western Division (2013); (Customer falls through grate covering drain between dispensers).Patterson v. Jai Maatadee, Inc., 1111451 Supreme Court of Alabama (2013); (Customer hit by a falling aluminum dispenser retractor pole). Murphy v. Northwest Pump & Equip. Co., D060678 Court of Appeal of California, Fourth Appellate District, Division One (2013) Unpub.
From the breach of contract perspective, disputes with respect to environmental cleanup obligations under purchase and sale agreement were also ruled on; See 82-11 Queens Blvd. Realty, Corp. v. Sunoco, Inc., 11-CV-05144 (ADS)(ETB), United States District Court for the Eastern District of New York (2013);Universal Enter. Group, L.P. v. Duncan Petroleum Corp., C.A. No. 4948-VCL Court of Chancery of Delaware, New Castle (2013); Vanderwal v. Albar, Inc., Supreme Court of Idaho 303 P.3d 175 (2013).
And finally, an employment case was decided relative to whether the Fair Labor Standards Act (the “FLSA”) requires the payment of overtime for a cashier at a convenience store. Hajiani v. Rose Servs., Civil Action File No. 1:12-CV-177-TWT, United States District Court for the Northern District of Georgia, Atlanta Division (2013).
These cases and their outcomes likely do not come as a surprise to those intimately involved with petroleum retail operations. Increased regulatory requirements in the areas of consumer transactions, environmental cleanup, equipment standards and human resources have certainly played a role in heightening the complexity in operating a petroleum dispensing facility. The new challenges have evolved over time and quite possibly have led many to make an early exit from the business. As with any industry, change brings new opportunity. As the case law suggests, however, opportunity is a two-way street.
William Alpine is Corporate Counsel/Director of Cost Recovery for ATC. ATC has served the petroleum industry with its environmental, due diligence and regulatory compliance needs for over thirty years. Bill can be reached at 781-932-9400 or at firstname.lastname@example.org.