IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew Lester, :

Petitioner :

:

v. : No. 1778 C.D. 2015

: Argued: November 15, 2016

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION

BY JUDGE SIMPSON FILED: January 13, 2017

Andrew Lester petitions for review from an order of the 

Environmental Hearing Board (EHB) that dismissed his appeal of a Department of 

Environmental Protection (DEP) administrative order requiring him to permanently 

close underground storage tanks pursuant to the Storage Tank and Spill Prevention 

Act (Storage Tank Act).1 The EHB determined that both “owners” and “operators” 

were subject to the Storage Tank Act’s closure requirements. Further, it 

determined DEP reasonably found that Andrew Lester was an “operator” under the 

Storage Tank Act and its regulations where he identified himself as the operator on 

various forms and took actions consistent with exercising control and 

responsibility for the underground storage tanks at issue.

In this appeal, Andrew Lester asks whether the EHB erred in 

determining he was an “operator” under the Storage Tank Act and its regulations

 

1 Act of July 6, 1989, P.L. 169, as amended, 35 P.S. §§6021.101-6021.2104.
2

and, therefore, financially liable for removal of the tanks. He also questions 

whether the imposition of such financial responsibility constitutes a “taking” of 

property or violates his right to substantive due process. Upon review, we affirm.

I. Background

The EHB made the following findings. Kenneth D. Lester owns 

property located at 10417 State Route 6, Mead Township, Warren County, which 

formerly operated as a retail petroleum fueling station and an automobile repair 

service station known as Ken’s Keystone (the property). Ken’s Keystone was a 

full-service gas station consisting of a garage, convenience store and gas pumps.

The following four underground storage tanks are located on the 

property (collectively, the tanks):

Tank Number Date of Installation Contents Capacity (gallons)

005 Unknown Diesel 1,000

006 3/9/1999 Diesel 10,000

007 3/9/1999 Gasoline 8,000

008 3/9/1999 Gasoline 4,000

The tanks are registered with DEP. They are “underground storage 

tanks” as that term is defined in Section 103 of the Storage Tank Act, 35 P.S. 

§6021.103. Kenneth D. Lester is the “owner” of the tanks as that term is defined in 

Section 103 of the Storage Tank Act. The tanks generally meet the performance 

standards for underground storage tank systems set forth in 25 Pa. Code §245.421.

In November 2009, Certified Inspector Daniel Galvin inspected the 

tanks and found that all four tanks were non-compliant as to tank construction and 
3

corrosion protection, tank release detection and piping release detection. The 

November 2009 inspection also reported that Tank No. 008 was noncompliant as 

to piping construction and corrosion protection, and Tank Nos. 007 and 008 were 

noncompliant as to overfill prevention.

In February 2010, Andrew Lester, the owner’s son, attended a 

meeting with Phil Smith, Arthur Meade and Dan Peterson of DEP’s Environmental 

Cleanup Program to discuss “each of the violations and what it would take to 

resolve or abate the violations” regarding the tanks. EHB Adj., 6/24/15, Finding of 

Fact (F.F.) No. 13 (citing EHB Hr’g, Notes of Testimony (N.T.), 1/15/15, at 210-

11, Dep’t Ex. N); Reproduced Record (R.R.) at 52a-53a.

Andrew Lester subsequently submitted a Storage Tank Registration 

Amendment Form to DEP, registering the tanks as temporarily out-of-service as of 

June 23, 2010. Andrew Lester signed the form and checked the box for “facility 

operator.” F.F. Nos. 14-15; Joint Stip. of Facts at ¶¶11, 12; Dep’t Ex. A; R.R. at 

27b-28b, 65b.

2 The tanks have been temporarily out-of-service since June 23, 

2010, and have not been operated. The tanks were required to be permanently 

closed if they were not put back into service by June 23, 2013.

In May 2011, DEP issued an administrative order to Kenneth Lester 

and Andrew Lester revoking the permit-by-rule for operation of the tanks and 

ordering Kenneth Lester and Andrew Lester to, among other things, empty and 

 

2

The page numbers of Volume 2 of Petitioner’s Reproduced Record, in which he started 

over at page 1, were followed by a small “b.”
4

cease operations of the tanks until DEP reinstated the permit-by-rule. The Court of 

Common Pleas of the 37th Judicial District (Warren County Branch) subsequently 

granted DEP’s petition to enforce its 2011 order.

Thereafter, in August 2013, DEP inspected the property and observed 

the tanks were not permanently closed. A few weeks later, DEP sent a notice of 

violation to Kenneth Lester at the property’s mailing address, informing him the 

tanks had not been closed and that the registration fees and Underground Storage 

Tank Indemnification Fund (USTIF) fees were not paid. Andrew Lester received 

this notice of violation.

In November 2013, Certified Inspector Wray DeLarme inspected the 

tanks and found that none of the tanks were compliant with respect to overfill 

prevention or registration certificate display.

In February 2014, DEP issued an administrative order (the “closure 

order”) to Kenneth Lester and Andrew Lester requiring: (a) Kenneth Lester to pay 

$400 in registration fees to DEP for the tanks within 30 days; (b) Kenneth Lester 

and Andrew Lester to pay a total of $280.95 to the USTIF for fees owed on Tanks

Nos. 005 and 006 and simultaneously provide proof of payment of the fees to DEP 

within 30 days; (c) Kenneth Lester and Andrew Lester to submit a completed 

Underground Storage Tank System Installation/Closure Notification Form to DEP 

in accordance with 25 Pa. Code §245.452, within 30 days; (d) Kenneth Lester and 

Andrew Lester to permanently close the tanks in accordance with 25 Pa. Code 

§§245.452-53, within 90 days; (e) Kenneth Lester and Andrew Lester to measure 
5

for the presence of a release of a regulated substance by sampling in a manner 

consistent with a DEP technical document titled “Closure Requirements for 

Underground Storage Tank Systems” and as required by 25 Pa. Code § 245.453(a), 

before permanent closure was completed; (f) Kenneth Lester and Andrew Lester to 

begin corrective action in accordance with 25 Pa. Code, Subchapter D, and as 

required by 25 Pa. Code § 245.453(b), if contaminated soils, contaminated 

groundwater or free product as a liquid or vapor was discovered; and, (g) Kenneth 

Lester and Andrew Lester to submit to DEP a copy of a properly completed 

closure report in accordance with the DEP technical document entitled “Closure 

Requirements for Underground Storage Tank Systems,” and as required by 25 Pa. 

Code §245.452(f), within 45 days of the permanent closure of the tanks.

In March 2014, Andrew Lester, representing himself, filed a notice of 

appeal of the closure order with the EHB. Kenneth Lester did not appeal the 

closure order.3

In December 2014, about a month before the EHB hearing, counsel 

entered an appearance on behalf of Andrew Lester and attempted to file an 

amended notice of appeal to add a claim that DEP’s order constituted a taking of 

property in violation of the Pennsylvania and U.S. Constitutions. DEP filed a 

motion to strike the amended notice of appeal. The EHB subsequently issued an 

opinion and order in which it granted DEP’s motion to strike.

 

3

Thereafter, the 2013 and 2014 registration fees and the USTIF fees were paid.
6

A hearing on the merits of Andrew Lester’s appeal ensued before the 

EHB. DEP presented the testimony of David Hall, a DEP Water Quality Specialist 

Supervisor in its Storage Tanks Program, and Arthur Meade, who formerly served 

as a DEP Water Quality Specialist. Andrew Lester testified on his own behalf.

After the hearing, the EHB issued an adjudication in which it 

dismissed Andrew Lester’s appeal of DEP’s closure order. In its adjudication, the 

EHB set forth the following discussion. This appeal concerns a DEP 

administrative order requiring Andrew Lester and Kenneth Lester, jointly and 

severally, to take certain actions directed toward permanently closing four 

underground storage tanks located on the property. DEP bears the burden of proof 

to show its issuance of an administrative order is supported by a preponderance of 

the evidence, is authorized by statute, and is a proper exercise of its authority. 25 

Pa. Code §1021.122. The EHB’s review is de novo: it is not limited to considering 

the facts that were available to DEP at the time it issued its order. Warren Sand & 

Gravel Co., Inc. v. Dep’t of Envtl. Res., 341 A.2d 556 (Pa. Cmwlth. 1975) (en

banc).

At the outset, the EHB acknowledged DEP’s observation that, under 

the EHB’s rules, any issues not argued in post-hearing briefs are waived, as well as 

DEP’s contention that Andrew Lester only raised a single issue in his post-hearing 

brief. The EHB agreed that one issue for resolution was whether Andrew Lester 

was an “operator” under the Storage Tank Act and its regulations; however, it 

otherwise declined to construe Andrew Lester’s post-hearing brief so narrowly. To 

be sure, the EHB stated, Andrew Lester took the term “brief” quite literally, but he 
7

nevertheless raised additional issues such as whether DEP staff directed or misled 

him to improperly characterize himself as an “operator” and whether he could be 

liable for closure of the tanks when he had no ownership interest in them. EHB 

Adj. at 7.

For its part, DEP argued that it properly determined Andrew Lester 

was an operator of the tanks. The term “operator” is defined in Section 103 of the 

Storage Tank Act and its regulations as: “Any person who manages, supervises, 

alters, controls or has responsibility for the operation of a storage tank.” Id.; see 25 

Pa. Code §245.1. The EHB noted DEP relied on two different lines of argument in 

support of its determination.

First, it argued the 2011 order of the Court of Common Pleas of the 

37th Judicial District (Warren County Branch) collaterally estopped Andrew Lester 

from denying he was an operator of the tanks. Second, DEP argued that the way 

Andrew Lester filled out certain forms, and the actions he took, supported its 

finding that he was an operator. In particular, DEP asserted, in 2009, 2010 and 

2013, Andrew Lester specifically identified himself as the tanks’ manager or 

operator on various DEP forms. DEP further argued Andrew Lester’s actions from 

2009 through 2014, including submission of the forms, were sufficient to constitute 

management or supervision of the tanks and to show responsibility for operation of 

the tanks.
8

Responding to these assertions, the EHB declined to find Andrew 

Lester was collaterally estopped from claiming he was not the operator of the 

tanks.4

Nevertheless, the EHB ultimately found Andrew Lester was an 

“operator” of the tanks under the Storage Tank Act. While no single piece of 

evidence or action taken by Andrew Lester was dispositive, the EHB stated, in the 

aggregate, DEP met its burden of proving Andrew Lester “manages, supervises, 

alters, controls or has responsibility for the operation” of the tanks. Section 103 of 

the Storage Tank Act. The EHB noted it was sympathetic to the difficulties 

Andrew Lester encountered in trying to reopen or sell Ken’s Keystone, whether for 

his own benefit or that of his father. Nevertheless, it credited the testimony of 

DEP’s witnesses, and it found the weight of evidence was against Andrew Lester.

The EHB also noted that DEP relied heavily on various forms that 

Andrew Lester signed to support its belief that he met the definition of an operator 

of the tanks under the Storage Tank Act and its regulations.

 

4

In particular, the EHB explained Andrew Lester’s status as an operator at the time of the 

2011 orders of the common pleas court and DEP was not the issue before the EHB. Rather, the 

issue was whether Andrew Lester was an operator when DEP issued the closure order. The EHB 

stated, if it were to accept DEP’s argument, a person’s status as an operator under the Storage 

Tank Act would be static—that is, once a person becomes an operator, that person is thereafter 

always an operator. The EHB declined to make such a finding here. Further, the EHB 

explained, neglecting to evaluate whether circumstances arising after the court order resulted in a 

change in Andrew Lester’s status not only abdicated the EHB’s duty to review cases de novo, but 

would also fall short of satisfying the criteria of the doctrine of collateral estoppel. The EHB’s 

determination on this point is not challenged in this appeal.
9

To that end, in November 2009, a third-party inspection of the tanks

was performed. On the DEP form documenting the inspection, Andrew Lester was 

listed as the representative present during the inspection. Andrew Lester checked 

the box on the form identifying himself as “Operator” instead of the other possible 

choices of “Owner,” “Employee,” or “None.” EHB Adj. at 9. On the signature 

line of the same form, Andrew Lester listed his title as “Manager.” Id.

In June 2010, after Arthur Meade, a DEP Water Quality Specialist, 

contacted Andrew Lester regarding violations related to the tanks, Andrew Lester 

submitted a Storage Tank Registration Amendment Form, on which he checked 

two boxes identifying himself as “Facility Operator” rather than “Facility Owner,” 

“Responsible Official,” or “Property Owner.” Id.

Finally, in November 2013, another third-party inspection was 

performed. On the inspection form, Andrew Lester again marked the box 

identifying himself as “Operator” rather than “Owner,” “Employee,” or “None.” 

Id. at 10. On the November 2013 inspection form, however, Andrew Lester listed 

his title as “Operator” on the form’s signature line as opposed to “Manager”—the 

designation he used on the November 2009 inspection form. Id.

The EHB explained it was not clear that Andrew Lester truly 

understood the nature of the forms or that his designation on the forms would 

impose legal obligations on him. Andrew Lester testified that both DEP and the 

third-party inspectors induced him to, or at least suggested that he, mark his status 

as “Operator.” Id. at 10. However, the EHB stated, Andrew Lester’s explanations 
10

of why he identified himself as an “Operator” or “Manager” when he believed 

himself to be merely an employee were not convincing. Id. The record revealed 

that Arthur Meade highlighted a box for Andrew Lester to check that would 

designate him as “facility operator” on the Storage Tank Registration Amendment 

Form in June 2010. Id. Nevertheless, Andrew Lester already represented himself 

as the “Operator” on the Operations Inspection Form completed approximately 

seven months earlier. Id. The EHB did not find the various forms indicating 

Andrew Lester to be “Manager” or “Operator” of the tanks to be dispositive, but on 

the whole, it stated, the evidence from these forms weighed in favor of DEP. Id.

In addition to the forms, the EHB stated, there were several pieces of 

written communication by DEP over a several-year time-period involving the tanks 

at the property that were submitted as exhibits. The EHB explained a review of 

these communications showed DEP was not consistent in how it communicated 

with Andrew Lester about issues with the tanks.

To that end, in December 2009, DEP sent a notice of violation relating 

to the November 2009 inspection. The notice of violation was addressed to 

Kenneth Lester only and was not clearly directed to Andrew Lester. Despite 

executing the November 2009 inspection form as the facility operator, Andrew 

Lester was only copied on the December 2009 notice of violation. A follow-up 

notice of violation, however, issued in February 2010, was addressed to both 

Kenneth Lester and Andrew Lester. DEP stated that the failure to fully comply 

with these two violation notices led to DEP issuing an un-appealed 2011 order in 

which it identified Andrew Lester as operator of the tanks.
11

The EHB further stated, despite the fact that DEP clearly identified 

Andrew Lester as the operator of the tanks in that order, subsequent 

communications in 2013 about the ongoing tank issues were addressed only to 

Kenneth Lester. Neither a January 2013 letter about the temporary out-of-service 

deadline for the tanks nor a September 2013 notice of violation resulting from a 

compliance evaluation conducted by DEP were addressed or copied to Andrew 

Lester.

However, the EHB stated, when DEP issued the closure order in 

February 2014, which is currently under appeal, it once again asserted Andrew 

Lester was the operator of the tanks. The final piece of written correspondence 

from DEP, a Storage Tank Registration/Permit Invoice dated October 6, 2014 

listed “Andy Lester” as the “Owner/Contact” of Ken’s Keystone. Id. at 11. The 

EHB stated it found the inconsistencies in DEP’s written communications 

troubling, given the serious consequences that can result from a determination that 

a party is an operator. It stated that individuals who are potentially subject to the 

Storage Tank Act and its regulations and obligations deserve clear communication 

from DEP regarding their status. Nevertheless, when viewed in conjunction with 

the evidence as a whole, the EHB explained, these inconsistencies were 

insufficient to outweigh other evidence supporting its decision regarding Andrew 

Lester’s status as an operator.

The EHB explained that DEP identified various actions undertaken by 

Andrew Lester after 2009 to support its contention that he was the operator of the 
12

tanks. From 2009 until 2014, it appeared DEP only spoke with Kenneth Lester 

once; all other verbal communication about the facility was with Andrew Lester.

In February 2010, Andrew Lester, on his own, attended a meeting 

with DEP at its Regional Office in Meadville to discuss the resolution of violations 

with the tanks. Additionally, the EHB stated, there was testimony from both 

Andrew Lester and DEP witnesses that, on more than one occasion over the years, 

Andrew Lester attempted to obtain delivery of gasoline from a wholesale fuel 

provider to restart gasoline sales at Ken’s Keystone. He was ultimately 

unsuccessful in those efforts, but in the EHB’s opinion, this supported a 

determination that Andrew Lester exercised a certain degree of control over, and 

responsibility for, the tanks consistent with that of an operator.

The EHB explained there was no question that Andrew Lester’s 

course of conduct was consistent with having greater control over the tanks and the 

facility than that of a mere employee. The main issue regarding his actions was 

whether he acted in his own interest or for his father’s interest as a representative. 

The EHB explained it generally found the testimony of DEP’s witnesses, David 

Hall and Arthur Meade, credible on this point. Neither witness recalled any 

statement from Andrew Lester indicating he was merely acting on his father’s 

behalf. Andrew Lester testified to the contrary, but, the EHB stated, there was 

nothing in the written record to support his contention that he acted solely on his 

father’s behalf. Overall, the EHB did not find sufficient evidence to support a 

conclusion that Andrew Lester’s actions were only undertaken as a representative 

of his father. Reviewing the record as a whole, the EHB concluded DEP 
13

reasonably determined Andrew Lester exercised sufficient control over and 

responsibility for operation of the tanks such that he met the Storage Tank Act’s 

definition of an “operator.” See Section 103 of the Storage Tank Act.

Finally, the EHB examined whether, as an operator, Andrew Lester 

was responsible for closure of the tanks. The EHB noted Andrew Lester appeared 

to argue that, because he had no ownership interest in the property, he could not be 

liable for the costs of closing the tanks. He relied on two cases, one of which was 

Lehigh Gas & Oil v. Pennsylvania Department of Environmental Resources, 671 

A.2d 241 (Pa. Cmwlth. 1995). There, the EHB explained, Lehigh Gas & Oil 

appealed the EHB’s determination that the company did not overcome the Storage 

Tank Act’s statutory presumption that an owner or operator of an underground 

storage tank is liable for all damages, contamination, or pollution within 2,500 feet 

of the facility, without proof of fault, negligence or causation. This Court affirmed 

the EHB’s adjudication, determining that “Lehigh [Gas & Oil] failed to overcome, 

by clear and convincing evidence, the rebuttable presumption.” Id. at 247.

The EHB found it difficult to decipher the purpose of Andrew 

Lester’s citation to Lehigh Gas & Oil—at this stage, neither damages, nor 

contamination, nor pollution was at issue. Rather, the EHB was concerned with 

whether Andrew Lester was responsible for closure of the tanks. The EHB noted 

the Storage Tank Act clearly holds owners and operators responsible for closure of 

tanks. See Section 502(c) of the Storage Tank Act, 35 P.S. §6021.502(c); see also

Section 501(a)(6), (9), (10) of the Storage Tank Act, 35 P.S. §6021.501(a)(6), (9), 

(10) (requiring DEP to adopt and implement an underground storage tank program 
14

which includes, among other things, “requirements for the closure of tanks,” 

“methods and procedures for the removal of reporting underground storage tanks 

from service,” and, “requirements for intended and completed closure of tank 

facilities by owners and operators.”).

The EHB noted Andrew Lester also cited Luther P. Miller, Inc. v. 

Underground Storage Tank Indemnification Board, 965 A.2d 398 (Pa. Cmwlth. 

2009), for the proposition “that the owner of the underground storage tank is 

presumptively the one required to register” with DEP. Andrew Lester’s PostHearing Br. at 3. The EHB stated this was hardly a controversial position—both 

the Storage Tank Act and its regulations provide that the owner of an underground 

storage tank is required to register the tank. See Section 503(a) of the Storage 

Tank Act, 35 P.S. §6021.503(a); 25 Pa. Code § 245.41. The EHB explained the 

question in Miller, which is not at issue here, was whether a corporation was

eligible to receive indemnification from the USTIF after it failed to comply with 

DEP’s registration requirements.

In contrast, the case presently before the EHB concerned whether 

Andrew Lester could be held responsible for closing the tanks at Ken’s Keystone, 

with the answer turning on whether he was an “operator” under the Act and its 

regulations. Having found Andrew Lester was an “operator” of the tanks, the EHB 

explained, he was responsible under the Storage Tank Act, along with his father 

(the owner), for their closure.
15

In its conclusions of law, the EHB stated, both an “owner” and an 

“operator” are responsible for closure of underground storage tank facilities in 

conformance with the Storage Tank Act. Section 502 of the Storage Tank Act. 

The EHB explained DEP proved by a preponderance of the evidence that Andrew 

Lester was an “operator” of the tanks as that term is defined in Section 103 of the 

Storage Tank Act and its regulations. Thus, it dismissed Andrew Lester’s appeal. 

This appeal followed.5

II. Issues

On appeal,6 Andrew Lester states two issues:

1. Is an individual with no ownership interest in a closed 

gasoline station and real estate or to the empty storage 

tanks situated thereon who was induced to sign a 

document by an agent of [DEP] as an ‘operator’ 

financially liable for the removal of the storage tanks?

2. Does the imposition of a financial responsibility for 

the removal of empty gasoline storage tanks on a person 

with no ownership interest therein constitute a taking of 

his property in violation of Article 1, Section 1 of the

Pennsylvania Constitution to enjoy and defend life, 

liberty, and acquiring, possessing, and protecting 

property and Amendment 5 of the United States

Constitution prohibiting depriving a person of property 

without due process of law?

 

5

In a single-judge memorandum opinion and order, the undersigned permitted Andrew 

Lester’s appeal to this Court nunc pro tunc, or “now for then,” on the ground that his failure to 

timely appeal from the EHB’s adjudication was caused by non-negligent circumstances resulting 

from confusion caused by the EHB’s email notification of its adjudication to Andrew Lester’s 

counsel.

6 Our review of an EHB order is limited to determining whether the EHB’s findings were 

supported by substantial evidence and whether constitutional violations or errors of law were 

committed. Leatherwood, Inc. v. Dep’t of Envtl. Prot., 819 A.2d 604 (Pa. Cmwlth. 2003).
16

Pet’r’s Br. at 4 (Statement of Questions Involved).

III. Discussion

A. “Operator” Responsibility

1. Contentions

Andrew Lester first asserts DEP is attempting to impose financial 

responsibility for removal of underground storage tanks and remediation of any 

spillage against him despite the fact that he has no ownership interest in the 

property or the underground storage tanks. Rather, they are owned by his father, 

Kenneth Lester, who is the owner by deed and holder of the mortgage on the 

property. Andrew Lester argues the basis of DEP’s action against him is its 

Storage Tank Registration Amendment Form, which was completed by Arthur 

Meade, a DEP employee, and presented to Andrew Lester who signed the contact 

information, which Meade highlighted. Andrew Lester contends Meade testified 

he did this in an attempt to give guidance to individuals such as Andrew Lester 

who needed assistance completing the form.

Andrew Lester maintains the tanks were placed out of service and 

were pumped down by their owner as required by DEP. He asserts the tanks 

contained a de minimis amount of product and the service pumps were 

disconnected from the tanks. As such, there was nothing to operate. Andrew 

Lester argues it is solely on the basis of DEP’s Storage Tank Registration 

Amendment Form that liability is sought against him. He contends this was a 

misrepresentation and fraud committed on him by an individual with superior 

knowledge of the law and the consequences of his execution of the form to his 

detriment.
17

Andrew Lester argues that at the EHB hearing, he and DEP entered 

into a stipulation of facts. He asserts it is undisputed that he is not the owner of the 

gas station or the underground storage tanks. Additionally, the stipulation 

establishes: (1) Kenneth D. Lester is an adult with a mailing address of 892 Lance 

Street, Sebastian, Florida, 32958; (2) Kenneth D. Lester owns the property, which 

was formerly operated as a retail fueling station; (3) at the property, Kenneth D. 

Lester owns and operated underground storage tanks; (4) Kenneth D. Lester is the 

owner of the tanks; and, (5) the tanks have been temporarily out-of-service since 

June 23, 2010 and have not been operated.

Andrew Lester contends that at the hearing David Hall, a DEP Water 

Quality Specialist Supervisor, testified that between November 2009 and 

December 2014, the tanks were pumped and contained less than an inch of 

product. N.T. at 85. Andrew Lester testified his father emptied the tanks and 

nothing further was done because there was no need to do so given that he pumped 

the tanks down. N.T. at 140. Andrew Lester asserts that, what should be readily 

apparent is that DEP is attempting to hold him financially responsible for removal 

of the underground storage tanks that have been out of service on the basis that he 

is an “operator.” He argues his father, who owns the tanks and the gas station, 

lives in Florida and was declared bankrupt. As a result, he contends, it is easier to 

proceed against him for the cost of removing the tanks than his father.

If DEP is concerned the tanks may be leaking and causing an 

environmental hazard, of which there is absolutely no evidence, Andrew Lester 

argues, it already has an order permitting it to remove the tanks. It has not done so 
18

and apparently it does not intend to do so until it can find someone financially 

responsible. As testified to by Hall, Andrew Lester maintains, the owner and 

operator would be responsible for out-of-pocket costs of remediation rather than 

the taxpayers.

Andrew Lester further maintains the tanks have less than an inch of 

product in them which is de minimis. See 25 Pa. Code §245.1. Andrew Lester 

also argues it is obvious from the statutory definitions of “owner” and “operator” 

that Kenneth D. Lester is the owner and the question becomes how Andrew Lester 

is an operator when there was nothing to operate in light of the fact that the tanks 

were out of service in 2010 and were emptied in 2011.

Andrew Lester asserts there is no question that at various times, at the 

instruction of DEP representatives, he was induced to sign as facility operator or 

operator, on forms prepared by DEP representatives.

Andrew Lester argues DEP offered Meade’s testimony in his capacity 

as Water Quality Specialist. He inspected the tanks beginning in 2002 and 

interacted with Kenneth Lester. He was well aware of the fact that between 2006 

and 2009, Kenneth Lester did not respond to written communications. Meade 

testified in 2009 after Kenneth Lester left the state, he met with Andrew Lester. 

Andrew Lester indicated he was the contact person as Kenneth Lester was not in 

the area. In 2009, DEP sent a notice of violation to Kenneth Lester with a courtesy 

copy to Andrew Lester. All interaction was with Andrew Lester because Kenneth 

Lester did not respond.
19

Andrew Lester asserts that the operative document is the Storage Tank 

Registration Amendment Form. Meade testified he completed Section I, Facility 

and Client Information, Section II, Purpose of Submittal, and Section III, Tank 

Information. In Section IV, Contact Information, Meade testified as follows in 

response to a question from DEP’s counsel:

Q. Did you direct Andrew Lester in any way to check the 

boxes that are checked in – well, the box particularly 

checked facility operator in section four?

A. Well, I didn’t direct him. It was an option for him to 

resolve the violations. I highlighted the sections that he 

should complete; and on the form, I highlighted facility 

operator.

R.R. at 56a. When asked why he did so, Meade responded that he assists many 

tank owners with the forms and the information requested. He testified he “might 

highlight facility operator.” R.R. at 57a. Meade further testified that when tanks 

are temporarily out of service they have to be emptied, and Kenneth Lester called 

him in 2011 and told him he pumped the tanks down and found one tank still had 

two inches of product in it, and he told Andrew Lester it needed to be emptied.

Andrew Lester argues his counsel searched diligently for any reported 

decision imposing liability on a person who is not an owner for remediation and 

removal of tanks merely because he signed a form as “operator” or “facility 

operator” at the suggestion of a DEP agent. He believes this is a case of first 

impression in this regard because there is a lack of authority to support the action 

taken by DEP. Rather, he maintains, this case is more akin to one of material 

misrepresentation or fraud, which contains the following elements: (1) 
20

misrepresentation of a material fact; (2) made falsely with knowledge of its falsity 

or recklessness as to whether it is true or false; (3) intent of misleading another into 

relying on it; and, (4) justifiable reliance on the misrepresentation resulting in 

injury with proximate cause by reliance. Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994).

Here, Andrew Lester argues, Meade was in a position of superior 

knowledge. He worked for DEP as a water quality specialist and dealt with 

Kenneth Lester since at least 2006. Andrew Lester naturally wanted to protect his 

father if possible and merely operated an automobile repair shop on the same 

property with the tanks still in the ground. Andrew Lester asserts it was obvious 

that Meade knew what a “facility operator” or “operator” entailed, and, as Meade 

previously stated, he highlighted the words “facility operator” on the form.

Andrew Lester asserts it is clear that Meade highlighted the sections 

to involve Andrew Lester who ran an automobile repair shop at his father’s now 

closed gas station that had underground storage tanks that were in violation of the 

statute. Thus, he argues the elements of material misrepresentation or fraud are 

met.

2. Analysis

Questions of resolving conflicts in the evidence, witness credibility 

and evidentiary weight are within the exclusive discretion of the EHB, the fact 

finding agency, and are not matters for a reviewing court. Leatherwood, Inc. v. 

Dep’t of Envtl. Prot., 819 A.2d 604 (Pa. Cmwlth. 2003). Thus, we will examine, 

but not weigh evidence because the EHB, as fact-finder, is in a better position to 
21

find facts based on the testimony and demeanor of the witnesses. Id. Additionally, 

we may not substitute our judgment for that of the EHB. Id.

Section 502(c) of the Storage Tank Act states (with emphasis added):

(c) Discontinued use.--Upon abandonment or 

discontinuance of the use or active operation of an 

underground storage tank, the owner and operator shall 

remove the tank and its contents or shall seal the tank, 

and restore the area in a manner that prevents any future 

release, and shall remedy any adverse impacts from any 

prior release in a manner deemed satisfactory to 

[DEP].[

7

]

In turn, Section 103 of the Storage Tank Act defines an “Operator” as: 

“Any person who manages, supervises, alters, controls or has responsibility for the 

operation of a storage tank.” The Storage Tank Act’s regulations contain the same 

definition. 25 Pa. Code §245.1.8 Further, the Storage Tank Act and its regulations 

 

7

See also Section 1311(a) of the Storage Tank Act (“Except as provided in subsection 

(b), it shall be presumed as a rebuttable presumption of law in civil and administrative 

proceedings that a person who owns or operates an ... underground storage tank shall be liable, 

without proof of fault, negligence or causation, for all damages, contamination or pollution 

within 2,500 feet of the perimeter of the site of a storage tank containing or which contained a 

regulated substance of the type which caused the damage, contamination or pollution. ...)

(emphasis added).

8

In addition, the Storage Tank Act regulations define a “Responsible party” as:

A person who is responsible or liable for corrective action under 

the act. The term includes: the owner or operator of a storage tank; 

the landowner or occupier; a person who on or after August 5, 

1990, knowingly sold, distributed, deposited or filled an 

underground storage tank regulated by the act which never held a 

valid registration, with a regulated substance; and a person who on 

or after August 5, 1990, knowingly sold, distributed, deposited or 

filled an unregistered aboveground storage tank regulated by the 

(Footnote continued on next page...)
22

“shall be liberally construed in order to fully protect the public health, welfare and 

safety of the residents of this Commonwealth.” Section 109 of the Storage Tank 

Act, 35 P.S. §6021.109.

Here, based on the credited evidence, the EHB determined DEP met 

its burden of proving Andrew Lester was an “operator” as that term is defined in 

the Storage Tank Act. In particular, the EHB explained (with emphasis added):

After careful consideration, we find that Andrew 

Lester is an operator of the [t]anks at Ken’s Keystone 

under the Storage Tank Act. While no single piece of 

evidence or action taken by [Andrew Lester] is 

dispositive, in the aggregate, we find [DEP] met its 

burden of demonstrating that [Andrew Lester] ‘manages, 

supervises, alters, controls or has responsibility for the 

operation’ of the [t]anks. 35 P.S. § 6021.103. The 

[EHB] is sympathetic to the difficulties Andrew Lester 

encountered trying to reopen or sell Ken’s Keystone—

whether for his own benefit or that of his father, Kenneth 

Lester. Nevertheless, we found the testimony of [DEP’s] 

witnesses to be credible and that the weight of evidence 

is against [Andrew Lester].

Forms/Written Communication

[DEP] relies heavily upon various forms signed by 

[Andrew Lester] to support its belief that Andrew Lester 

meets the definition of an operator of the [t]anks under 

the Storage Tank Act and regulations. In November 

 

(continued...)

act, with a regulated substance, prior to the discovery of the 

release.

25 Pa. Code §245.1 (emphasis added). Further, federal regulations governing underground 

storage tanks define the term “operator” as “any person in control of, or having responsibility 

for, the daily operation of the [underground storage tank] system.” 40 C.F.R. §280.12.
23

2009, a third party inspection of the [t]anks was 

completed. On the [DEP] form documenting the 

November 2009 Inspection, Andrew Lester is listed as 

the representative present during the inspection. Andrew 

Lester checked the box on the form identifying himself as 

‘Operator’ instead of the other possible choices of 

‘Owner,’ ‘Employee,’ or ‘None.’ On the signature line 

of the same inspection form, Andrew Lester listed his 

title as ‘Manager.’ In June 2010, after being contacted 

by Arthur Meade ... about violations related to the 

[t]anks, [Andrew Lester] submitted a Storage Tank 

Registration Amendment Form, on which he checked 

two boxes identifying himself as ‘Facility Operator’ 

rather than ‘Facility Owner,’ ‘Responsible Official,’ or 

‘Property Owner.’ Finally, in November 2013, another 

third party inspection took place. On the November 2013 

Inspection form, [Andrew Lester] again marked the box 

identifying himself as an ‘Operator’ rather than ‘Owner,’ 

‘Employee,’ or ‘None.’ On the November 2013 

Inspection form, however, [Andrew Lester] listed his title 

as ‘Operator’ on the form’s signature line as opposed to 

‘Manager’—the designation he used on the November 

2009 Inspection form. ...

Andrew Lester testified that both [DEP] and the thirdparty inspectors induced him to, or at least suggested that 

he, mark his status as ‘Operator.’ However, [Andrew 

Lester’s] explanations of why he identified himself as an 

‘Operator’ or ‘Manager’ when he believed himself to 

merely be an employee were not convincing. The [EHB] 

notes that the record demonstrates that Arthur Meade 

highlighted a box for Andrew Lester to check that would 

designate him as the ‘facility operator’ on the 

Registration Amendment Form from June, 2010. 

Nevertheless, [Andrew Lester] had already represented 

himself as the ‘Operator’ on the Operations Inspection 

form completed approximately seven months prior in 

November 2009. The [EHB] does not find the various 

forms entered into the record indicating [Andrew Lester] 

to be ‘Manager’ or ‘Operator’ of the [t]anks to be 

dispositive, but on the whole, the evidence from these 

forms weighs in favor of [DEP]. ...
24

Actions

[DEP] next identifies various actions undertaken 

by [Andrew Lester] after 2009 to support its contention 

that Andrew Lester was the operator of the [t]anks. From 

2009 until 2014, it appears that [DEP] only spoke with 

Kenneth Lester once; all other verbal communication 

about the facility was with Andrew Lester. In February

2010, [Andrew Lester], on his own, attended a meeting 

with [DEP] at the Regional Office in Meadville to 

discuss resolving violations with the [t]anks. In addition, 

there was testimony at the hearing from both Andrew 

Lester and [DEP] witnesses that, on more than one 

occasion over the years, [Andrew Lester] attempted to 

get a delivery of gasoline from a wholesale fuel provider 

to restart gasoline sales at Ken’s Keystone. He was 

ultimately unsuccessful in those efforts, but in the 

[EHB’s] opinion, it supports a determination the Andrew 

Lester exercised a certain level of control over, and 

responsibility for, the [t]anks consistent with that of an 

operator.

There is no question that [Andrew Lester’s] course 

of conduct is consistent with having greater control over 

the [t]anks and facility than that of a mere employee. 

The main issue regarding his actions is whether Andrew 

Lester was acting in his own interest or for his father’s 

interest as a representative. We generally found [DEP’s] 

witnesses, David Hall and Arthur Meade, to be credible 

on this point. Neither recalled any statement from 

Andrew Lester indicating he was just acting on his 

father’s behalf. [Andrew Lester] testified to the contrary 

at the hearing, but there is nothing in the written record to 

support his contention that he was acting solely on behalf 

of his father. Overall, we did not find sufficient evidence 

to support a conclusion that Andrew Lester’s actions 

were only undertaken as a representative for his father. 

Reviewing the whole record before us, [EHB] concludes 

that [DEP] reasonably determined that Andrew Lester 

exercised sufficient control over and responsibility for 

the operation of the [t]anks such that he meets the Act’s 

definition of an ‘operator.’
25

EHB Adj. at 9-10, 12-13. The record supports the EHB’s necessary factual 

determinations. See R.R. at 27b, 28b, 30b, 38b; N.T. at 196-97, 206, 210-11.

In turn, the EHB’s factual determinations support its ultimate 

conclusion that Andrew Lester was an “operator” of the tanks in that he 

“manage[d], supervise[d], alter[ed], control[led] or ha[d] responsibility for the 

operation of [the] storage tank[s]” in 2009, before taking action to temporarily take 

them out of service in 2010. Section 103 of the Storage Tank Act. Further, after 

2009, he continued to manage, exercise control or take responsibility for the tanks.

Also, contrary to Andrew Lester’s assertions, and as set forth in the 

above-quoted excerpt of the EHB’s analysis, the EHB did not rely solely on the 

2010 Storage Tank Registration Amendment Form, which he claims a DEP agent 

induced him to sign as “operator.” Rather, as the EHB explained, its determination 

rested on a review of the record in its entirety, including documentary evidence 

and proof of Andrew Lester’s actions since 2009, prior to the time he registered the 

tanks as temporarily out of service.

Further, the EHB rejected Andrew Lester’s claim that Arthur Meade 

induced him to sign the 2010 registration form as “facility operator.” In particular, 

the EHB stated, although Meade highlighted the box for “facility operator” on that 

form, Andrew Lester previously represented himself as the “Operator” on the 

operations inspection form he completed approximately seven months prior in

November 2009. EHB Adj. at 10; R.R. at 30b. Moreover, Meade testified that, 

although he highlighted the box for “facility operator” on the 2010 registration 
26

form, he did not direct Andrew Lester to sign it. R.R. at 22b. Also, as set forth 

above, the EHB did not rely exclusively on the 2010 Storage Tank Registration 

Amendment Form in determining Andrew Lester was an “operator” of the tanks. 

Thus, his assertions on this point fail.

In addition, contrary to Andrew Lester’s assertions that there was 

“nothing to operate,” the operation of the tanks did not end merely because 

Andrew Lester registered the tanks as temporarily out-of-service. To that end, 

operation of the tanks does not end when they are temporarily taken out of service. 

Indeed, the Storage Tank Act’s regulations define “operational life” as: “The 

period beginning when installation of the tank system has commenced until the 

time the tank system is properly closed.” 25 Pa. Code §245.1 (emphasis added). 

Here, the tanks were not properly closed.

As set forth above, according to Section 502(c) of the Storage Tank 

Act, upon abandonment or discontinuance of the use or of an underground storage 

tank, the owner and operator shall remove the tank. Further, after underground 

storage tanks are temporarily taken out-of-service, owners and operators are 

required to continue operation and maintenance of corrosion protection systems 

and release detection until the tanks are empty. 25 Pa. Code §245.451(b). The 

tanks must be emptied within 30 days. 25 Pa. Code §245.451(c). A tank is 

considered empty when less than an inch of residue remains in the tank. Id.

Further, although considered “empty” when containing less than an inch of residue, 

underground storage tanks are not actually empty of regulated substances. Thus,

after the tanks are emptied, owners and operators must still ensure that vent lines 
27

are open and functioning and must inspect to ensure lines, pumps, manways and 

ancillary equipment are capped and secure. 25 Pa. Code §245.451(f).

Moreover, while the Storage Tank Act’s regulations allow an 

underground storage tank to be taken temporarily out-of-service for a period before 

it must be closed, Andrew Lester’s submission of the 2010 Storage Tank 

Registration Amendment Form delayed removal of the tanks by registering them as 

temporarily out-of-service. To that end, underground storage tanks that are placed 

temporarily out-of-service cannot remain in that status indefinitely. Instead, they 

are required to be permanently closed within three years of being placed 

temporarily out-of-service, unless DEP grants an extension to this temporary 

closure period. 25 Pa. Code §245.451(h). Here, Andrew Lester temporarily took 

the tanks out of service in June 2010; thus, they were required to be permanently 

closed by June 2013 if they were not put back into service. This did not occur 

here. And, DEP did not grant an extension to the temporary closure period.

For all the reasons set forth above, we reject Andrew Lester’s 

assertions that the EHB erred in determining that he was an “operator” of the 

underground storage tanks on the property and, therefore, that he was responsible 

for closure of the tanks under the Storage Tank Act.

B. Substantive Due Process/”Taking” Claims

1. Contentions

Andrew Lester next argues that, in his pro se appeal to the EHB, he 

attempted to raise constitutional issues under Article 1, Section 1 of the 

Pennsylvania Constitution and the 5th Amendment of the U.S. Constitution for the 
28

taking of his property, namely his financial resources, to remediate the 

underground storage tanks. After he retained counsel, his counsel attempted to 

amend his notice of appeal to raise constitutional claims. However, on DEP’s 

motion, the EHB denied the request. Andrew Lester asserts he has challenged the 

statute in this appeal as permitted by Section 703 of the Administrative Agency 

Law, 2 Pa. C.S. §703.

Andrew Lester contends that during the period in which he proceeded

pro se, he filed a notice of appeal and a pre-hearing memorandum. See R.R. at 7a17a. In his notice of appeal, he objected to being held jointly and severally liable 

for the tanks when he was not the owner of the tanks or the property. R.R. at 10a. 

He also stated he did not operate a petroleum fueling station, but rather only agreed 

to be a contact person. Id.

Andrew Lester further points out that in his pre-hearing memorandum, 

he claimed he was being deprived of his personal property contrary to the 

protections of the 5th Amendment to the U.S. Constitution. R.R at 13a. After he 

retained counsel, he filed his amended notice of appeal in December 2014. DEP 

objected to the amendment by filing a motion to strike, which the EHB granted 

through a January 2015 opinion and order.

Andrew Lester maintains that, in its opinion, the EHB correctly 

pointed out that DEP has an order that is binding on Kenneth Lester, who owns the 

gas station and the tanks. The EHB concluded Kenneth Lester was not a party to 

the appeal; as such, it lacked jurisdiction to address any “taking” claim by Kenneth 
29

Lester. The EHB further stated, “[w]hile it is not necessary to our decision to grant 

[DEP’s] motion, we additionally note that it is undisputed that Andrew Lester has 

no property interest in the tanks or the land on which they are situated.” EHB Op., 

1/15/15, at 3. The opinion also states: “Where [Andrew Lester] asserts no 

ownership interest in the property subject to a [DEP] administrative order, it is 

difficult to conceive how [Andrew Lester] would have standing to challenge the 

order as an unconstitutional taking of private property.” Id. (citation omitted). 

Additionally, the opinion rejected Andrew Lester’s attempt to file an amended 

notice of appeal as he did not seek leave to do so. The opinion further stated that, 

to allow the amendment would unduly prejudice DEP, primarily because discovery 

closed in July 2014. Andrew Lester asserts that was a time when he did not have 

counsel.

He further contends the EHB’s statement that he did not have an 

ownership interest in the property should be dispositive here. He asserts that if he 

is not the owner of the property, DEP should not have pursued this action against 

him, especially where it has an order against Kenneth Lester, and it has every right 

to go onto the property and remove the tanks and remediate any contamination, 

which Andrew Lester denies exists on the property.

Andrew Lester further argues the EHB was incorrect in its reasoning 

as to the constitutional issues he raised in his appeal. To that end, Section 703 of

the Administrative Agency Law states that a party who proceeded before a 

Commonwealth agency under the terms of a particular statute shall not be 

precluded from questioning the validity of that statute on appeal. He asserts it is 
30

readily apparent that he was a party to a proceeding before a Commonwealth 

agency, namely the EHB. Thus, under Section 703, he is not precluded from 

questioning the validity of the statute on appeal. See, e.g., In re Friedman, 457 

A.2d 983 (Pa. Cmwlth. 1983). Here, he contends he is certainly challenging the 

constitutional validity of the Storage Tank Act as applied to him where he has no 

ownership interest in the tanks or the property subject to the Storage Tanks Act.

As to the merits of this issue, Andrew Lester argues, Article 1, Section 

1 of the Pennsylvania Constitution states that all men are equal and have certain 

inherent and indefeasible rights in life and property. Here, DEP seeks to impose 

financial liability by taking his financial resources to cover the cost of removing 

underground storage tanks in which he has no ownership interest. Again, he 

asserts, DEP has a valid order against his father, and it can proceed accordingly; 

but, it cannot impose financial liability on him. He further maintains it is beyond 

dispute that his financial resources are property protected by the Pennsylvania and 

U.S. Constitutions. See Commonwealth v. Brown, 8 Pa. Super. 339 (1898). Thus, 

the money he earned in pursuit of his business of running an automobile repair 

shop is his property and to take his property to pay the cost of removing the

underground storage tanks he neither owns nor has any claim to is taking his 

property without due process of law. Andrew Lester asserts he was unable to find 

any reported appellate case directly on this point; however, Pennsylvania courts 

have addressed analogous situations. See Khan v. State Bd. of Auctioneer 

Exam’rs, 842 A.2d 936 (Pa. 2004).
31

Andrew Lester further contends that imposing financial responsibility

on him for removal of the tanks in these circumstances is clearly a taking of 

property without due process on a trumped up theory that he was the “operator” 

based on a form prepared by a DEP agent. He maintains this violates substantive 

due process principles. Taylor v. Pa. State Police, 132 A.3d 590 (Pa. Cmwlth. 

2016).

2. Analysis

a. Procedure

Procedurally, in his initial pro se appeal of DEP’s closure order, filed 

in March 2014, Andrew Lester did not raise any constitutional issues, including his 

present assertion that the imposition of financial responsibility against him 

constitutes a taking. See R.R. at 8a-10a. Thereafter, in his pro se pre-hearing 

memorandum filed in November 2014, Andrew Lester briefly asserted:

Any statute, law or regulation that deprives citizens of 

the United States of America of personal property has to 

comply with the United States Constitution. More 

specifically but not limited to the fifth and fourteenth 

amendments [sic]. Any law that deprives personal 

property simply because the property has not been used 

for a set amount of time seems unlawful unconstitutional 

and therefor[e] null and void.

R.R. at 13a.

Thereafter, Andrew Lester, through counsel, attempted to file an 

amended notice of appeal in which he sought to add a claim that the closure order 

constituted a taking of property in violation of Article I, Section 1 of the 

Pennsylvania Constitution and the 5th Amendment of the U.S. Constitution. R.R. 
32

at 56b-57b. DEP filed a motion to strike the amended notice of appeal. Certified 

Record (C.R.), Item No. 15. The EHB heard argument on DEP’s motion to strike. 

It then issued an order granting the motion to strike, which limited the issues 

presented at the EHB hearing to those set forth in Andrew Lester’s original notice 

of appeal. C.R., Item No. 16. The EHB subsequently issued an opinion explaining 

the reasons for its order in which it set forth “numerous problems which 

independently and collectively counseled [it] against adjudicating the proposed 

additional [taking] claim.” C.R., Item No. 17 at 2.

First, the EHB stated, by its own terms, the amended notice of appeal 

sought to add a claim on behalf of a person who was not a party to the appeal. To 

that end, although DEP directed its closure order to both Kenneth Lester and 

Andrew Lester, Kenneth Lester did not appeal. Thus, Kenneth Lester was not a 

party to the appeal. As a result, the EHB stated it lacked jurisdiction to adjudicate 

a “taking” claim on Kenneth Lester’s behalf.

Further, while not necessary to its decision to grant the motion to 

strike, the EHB noted it was undisputed that Andrew Lester had no property 

interest in the tanks or the property. To that end, DEP’s closure order described 

Kenneth Lester as both the owner of the property and the tanks. Additionally, 

Andrew Lester specifically denied any ownership interest. Where Andrew Lester 

asserted no ownership interest in the property, the EHB stated, it was difficult to 

conceive how he had standing to challenge the closure order as an unconstitutional 

taking of private property.
33

The EHB set forth two additional reasons to strike Andrew Lester’s 

amended notice of appeal. First, it had discretion to permit a party to amend his

appeal after the 20-day period to amend as of right elapsed. 25 Pa. Code 

§1021.53(b). However, a party must file a motion for leave to amend. Id. Further, 

the party is required to verify and support a motion for leave to amend with 

affidavits. 25 Pa. Code §1021.53(c). Here, Andrew Lester neither sought leave to 

amend nor supported the amended notice of appeal with an affidavit.

Finally, the EHB stated, its discretion to grant leave to amend was 

limited to those situations in which “no undue prejudice will result to the opposing 

parties.” 25 Pa. Code §1021.53(b). Here, discovery closed in July 2014, and the 

hearing was already rescheduled once. The EHB stated Andrew Lester made no 

effort to show DEP would not suffer prejudice by the addition of an entirely new 

claim on the eve of the hearing that arguably implicated a person who was not a 

party to the appeal. Thus, the EHB found DEP would be severely prejudiced.

As such, the EHB rejected Andrew Lester’s attempt to file an 

amended notice of appeal to include a claim that the closure order resulted in a 

“taking” of his property. Andrew Lester does not directly and persuasively 

respond to all of the various reasons the EHB set forth in its opinion in support of 

its denial of his request to amend his notice of appeal. Additionally, in its brief to

this Court, DEP does not address the EHB’s opinion granting DEP’s motion to 

strike Andrew Lester’s amended notice of appeal.
34

Nevertheless, we question the appropriateness of the EHB’s opinion 

granting DEP’s motion to strike Andrew Lester’s amended notice of appeal. To 

that end, contrary to the EHB’s determination, Andrew Lester arguably has 

standing to raise a “taking” claim as it pertains to the loss of his financial resources 

arising from his compliance with the closure order. Additionally, the EHB’s 

finding regarding prejudice to DEP is questionable. Specifically, the EHB 

presumed prejudice. However, the EHB did not specify what prejudice DEP 

would suffer as a result of Andrew Lester’s requested amendment to his notice of 

appeal to add a “taking” claim. Indeed, the issue of whether the closure order 

resulted in a “taking” of Andrew Lester’s financial resources appears to be a pure 

legal issue, which would not require additional discovery or further factual 

development. Because we question the propriety of the EHB’s action on the 

amended notice of appeal, we address Andrew Lester’s intertwined substantive due 

process and “taking” claims on their merits below.

b. Substantive Due Process

A state’s police power is one of the most essential powers of 

government that allows it to promote the public health, morals or safety and the 

general well-being of the community. Adams Sanitation Co., Inc. v. Dep’t of 

Envt’l Prot., 715 A.2d 390 (Pa. 1998). The state’s police powers are also one of 

the state’s least limitable powers. Id. While the state’s exercise of its police power 

often causes tension between the Commonwealth and property owners, courts will 

not invalidate the Commonwealth’s exercise of its police powers unless it is 

performed in an unreasonable and arbitrary manner. Id. Thus,

[a]lthough the police power may, indeed, seem harsh in 

its exercise, [and] usually is on some individual ... the 
35

imperative necessity for its existence precludes any 

limitation upon it when not exerted arbitrarily. Therefore 

as long as the Legislature exercises that power in a 

reasonable and nonarbitrary manner, the judiciary will 

not invalidate the enactment.

Nat’l Wood Preservers, Inc. v. Dep’t of Envtl. Res., 414 A.2d 37, 43 (Pa. 1980)

(citations and quotations omitted).

A party challenging the constitutionality of an exercise of the state’s 

police power affecting a property interest bears a heavy burden of proof. Id. The 

standard to be used by courts when considering whether there has been an 

unconstitutional exercise of the state’s police power has been stated as follows:

To justify the State in ... interposing its authority in 

behalf of the public, it must appear, first, that the interests 

of the public generally, as distinguished from those of a 

particular class, require such interference; and second, 

that the means are reasonably necessary for the 

accomplishment of the purpose, and not unduly 

oppressive upon individuals.

Adams Sanitation, 715 A.2d at 395 (quoting Lawton v. Steele, 152 U.S. 133, 137

(1894)).

Here, Andrew Lester does not dispute that DEP is acting with a valid 

objective when exercising its authority on behalf of the general public to prevent 

the proliferation of unused or abandoned underground storage tanks and to protect 

the environment from releases of petroleum products in underground storage tanks. 

To that end, Section 102 of the Storage Tank Act states (with emphasis added):

(a) Findings enumerated.--The General Assembly of 

the Commonwealth finds and declares that:
36

(1) The lands and waters of this Commonwealth 

constitute a unique and irreplaceable resource from 

which the well-being of the public health and 

economic vitality of this Commonwealth is 

assured.

(2) These resources have been contaminated by 

releases and ruptures of regulated substances from 

both active and abandoned storage tanks.

(3) Once contaminated, the quality of the affected 

resources may not be completely restored to their 

original state.

(4) When remedial action is required or 

undertaken, the cost is extremely high.

(5) Contamination of groundwater supplies caused 

by releases from storage tanks constitutes a grave 

threat to the health of affected residents.

(6) Contamination of these resources must be 

prevented through improved safeguards on the 

installation and construction of storage tanks.

(b) Declaration.--The General Assembly declares these 

storage tank releases to be a threat to the public health 

and safety of this Commonwealth and hereby exercises 

the power of the Commonwealth to prevent the 

occurrence of these 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.

Further, requiring owners and operators to close abandoned 

underground storage tanks is reasonably necessary to accomplish the above-stated 
37

purposes. Indeed, an express purpose of the Storage Tank Act is to protect land 

and water from contamination by releases and ruptures of regulated substances 

from both active and abandoned storage tanks. Id. Additionally, as DEP points 

out, where, as here, an owner abandons the underground tanks and leaves the 

jurisdiction, the operator’s liability may be the only means of reducing the burden 

on taxpayers.

Andrew Lester appears to focus his argument on his claim that the 

means must not be “unduly oppressive upon individuals.” In Adams Sanitation, 

our Supreme Court observed that there are two general factors of significance in a 

judicial determination of whether governmental action is unduly oppressive. The 

first consideration is the economic impact of the regulation on the property holder. 

Id. The second factor is the character of the governmental action. Id. The greater 

the extent to which governmental interference with property can be characterized 

as a physical intrusion, the more likely it is that such interference will be 

considered an unreasonable exercise of police power. Id.

Here, Andrew Lester claims that application of the Storage Tank Act 

is unduly oppressive because it imposes financial responsibility on him despite the 

fact that he is not the property owner. Our Supreme Court rejected an analogous 

claim in National Wood Preservers. There, the appellants asserted Section 316 of 

the Clean Streams Law9 was unduly oppressive because it imposed liability on 

them to remedy water pollution damage solely on the basis of their ownership or 

 

9 Act of June 22, 1937, P.L. 1987, added by the Act of August 23, 1965 P.L. 372, as

amended, 35 P.S. §691.316.
38

occupancy of the land at issue. They argued it was unconstitutional for the 

Department of Environmental Resources (now DEP) to issue a corrective order to 

a landowner or occupier absent a showing of the party’s responsibility for causing 

the polluting condition. The Supreme Court rejected this argument, concluding the 

corrective order was based on far more than mere ownership or occupancy. 

Instead, the corrective order was based on legislation designed to eliminate all 

water pollution, and the EHB’s findings that a substance, determined to be 

pollution, resided under the appellants’ land and could feasibly be removed. Thus, 

there was a reasonable and concrete basis for the corrective order. Additionally, 

the Court pointed to U.S. Supreme Court cases, which hold that a property holder’s 

responsibility for the condition to be regulated is not an important factor in 

assessing the validity of the regulation. Thus, “the validity of an exercise of police 

power over land depends little upon the owner or occupier’s responsibility for 

causing the condition giving rise to the regulation.” Nat’l Wood Preservers, 414 

A.2d 45.

Here, the EHB’s adjudication upheld DEP’s closure order requiring 

Andrew Lester to permanently close the underground storage tanks, which he 

temporarily removed from service several years earlier. DEP’s closure order 

comports with the legislative purpose of the Storage Tank Act, which is to 

eliminate contamination and remove abandoned underground storage tanks. The 

fact that Andrew Lester must expend financial resources to do so does not render 

the requirement unduly oppressive. As set forth above, the Storage Tank Act 

expressly imposes such responsibility on owners and operators. Further, the 

EHB’s supported factual determinations reveal that Andrew Lester acted as an 
39

“operator” of the underground storage tanks; thus, the imposition of financial 

responsibility on him for their permanent closure is not so disproportionate to the 

degree of responsibility he exercised as to render it unduly oppressive. And, the 

character of the governmental action here cannot be characterized as a “physical 

intrusion” so as to render any governmental interference with property “an 

unreasonable exercise of police power.” Adams Sanitation, 715 A.2d at 395.

Finally, while Andrew Lester briefly references Khan and Taylor for 

the general propositions that are relevant when considering a substantive due 

process challenge, he does not explain how these cases apply here. See Pet’r’s Br. 

at 21-23. Indeed, the Court in Khan ultimately rejected a substantive due process 

challenge to a provision of the Auctioneer and Auction Licensing Act (now 

referred to as the Auctioneer Licensing and Trading Assistant Registration Act),10

while in Taylor, this Court overruled preliminary objections to an individual’s 

claim that the Sexual Offender Registration and Notification Act11 violated his 

substantive due process rights by infringing on his fundamental constitutional right 

to reputation. In the absence of further explanation by Andrew Lester, it is unclear 

how his citations to Khan and Taylor support his substantive due process claim.

c. “Taking”

In addition, to the extent Andrew Lester claims that requiring him to 

expend his financial resources in order to permanently close the underground 

storage tanks constitutes a “taking,” this argument fails. First, as the EHB 

 

10 Act of December 22, 1983, P.L. 327, 63 P.S. §§734.1-734.34.

11 Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41.
40

explained, Andrew Lester lacks standing to assert a “taking” claim on behalf of his 

father, Kenneth Lester, who did not appeal the closure order.

Moreover, Andrew Lester’s “taking” claim on his own behalf fails. 

To that end, “[i]t is well-settled that the exercise of the police power is not a 

taking.” Estate of Blose, 889 A.2d 653, 659 (Pa. Cmwlth. 2005) (citing 

Commonwealth v. Barnes & Tucker Co., 371 A.2d 461 (Pa. 1977)). However, 

when regulation “goes too far,” it will be recognized as a taking. Domiano v. 

Dep’t of Envtl. Res., 713 A.2d 713, 716 n.4 (Pa. Cmwlth. 1998) (citation omitted).

In United Artists’ Theater Circuit Inc. v. City of Philadelphia, 635 

A.2d 612 (Pa. 1993), the Pennsylvania Supreme Court enumerated three conditions 

for determining whether a valid regulatory restriction constitutes a taking requiring 

just compensation (which are essentially identical to the factors set forth in our 

analysis of the substantive due process claim).

(1) the interest of the general public, rather than a 

particular class of persons, must require governmental 

action;

(2) the means must be necessary to effectuate the 

purpose; and

(3) the means must not be unduly oppressive upon the

property holder, considering the economic impact of the 

regulation, and the extent to which the government 

physically intrudes upon the property.

In United Artists’, the Court recognized that “action in the form of 

regulation can so diminish the value of property as to constitute a taking.” Id. at 
41

617 (citations and emphasis omitted). “However, the mere fact that the regulation 

deprives the property owner of the most profitable use of his property is not 

necessarily enough to establish the owner’s right to compensation.” Id.; see also

City of Pittsburgh v. Weinberg, 676 A.2d 207 (Pa. 1996); In re Silverman, 90 A.3d 

771 (Pa. Cmwlth. 2014).

Here, as set forth above in our analysis of Andrew Lester’s 

substantive due process claim, the interest of the general public, rather than a 

particular class of persons, requires governmental action (with regard to closure of 

abandoned underground storage tanks), and the means (requiring owners and 

operators to remove or seal abandoned tanks) are clearly necessary to effectuate 

this purpose. Additionally, as explained in greater detail above, the fact that 

Andrew Lester must expend financial resources to do so does not render the 

requirement unduly oppressive. In short, because the action at issue here is not 

“unduly oppressive,” the required underground storage tank closure does not 

satisfy the elements for a “taking” requiring just compensation.

Moreover, where the Commonwealth validly employs its police 

power in a reasonable manner to abate an immediate public nuisance, there can be 

no finding of an unconstitutional “taking” through the imposition of an abatement 

order despite the impact that this exercise of the police power may have on an 

appellant. Barnes & Tucker (abatement of acid mine discharges into streams, 

where such discharges were found to be detrimental and a nuisance, was a valid 

exercise of the police power, not a taking).
42

Here, as set forth above, the protection of the public from 

contamination caused by petroleum products is a valid state objective. Section 

101(a) of the Storage Tank Act.

In addition, Section 1304 of the Storage Tank Act makes an owner or 

operator’s failure to close an underground storage tank (when required to do so) a 

public nuisance. It states (with emphasis added):

A violation of this act or of any order or regulation 

adopted by [DEP] or of permits issued by [DEP] shall 

constitute a public nuisance. [DEP] shall have the 

authority to order any person causing a public nuisance to 

abate the public nuisance. In addition, [DEP] or any 

Commonwealth agency which undertakes to abate a 

public nuisance may recover the costs of abatement in an 

action in equity brought before any court of competent 

jurisdiction. Whenever such nuisance shall be 

maintained or continued contrary to this act or such 

orders, regulations or permits the same may be abatable 

in the manner provided by this act. Any person who 

causes such public nuisance shall be liable for the cost of 

abatement.

Id.

As Andrew Lester states in his brief, the owner of the underground 

storage tanks, his father, left the Commonwealth and filed for bankruptcy. And, as 

set forth above, the EHB properly found Andrew Lester was an operator of the 

tanks. The failure to permanently close the tanks based on the facts presented here 

violates the Storage Tank Act and its regulations, and, therefore, constitutes a 

public nuisance. Id. Thus, requiring Andrew Lester, as an operator, to remove the 

tanks that were abandoned by their owner, is a proper exercise of the 
43

Commonwealth’s police power to address a public nuisance and is not a “taking.” 

Barnes & Tucker, 371 A.2d at 467 (“[G]iven our determination that the 

Commonwealth is validly employing its police power in a reasonable manner to 

abate the immediate public nuisance, there can be no finding of an unconstitutional 

‘taking’ by the imposition of the present abatement order, despite the impact this 

exercise of the police power may have on the appellant.”) (citations omitted).

For all the foregoing reasons, we affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew Lester, :

Petitioner :

:

v. : No. 1778 C.D. 2015

:

Department of Environmental :

Protection, :

Respondent :

O R D E R

AND NOW, this 13th day of January, 2017, the order of the 

Environmental Hearing Board is AFFIRMED.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew Lester, :

Petitioner :

:

v. : No. 1778 C.D. 2015

: Argued: November 15, 2016

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

CONCURRING OPINION BY

JUDGE COHN JUBELIRER FILED: January 13, 2017

I concur with the Majority’s decision to affirm the Order of the 

Environmental Hearing Board (EHB) dismissing Andrew Lester’s appeal of a 

Department of Environmental Protection (DEP) administrative order requiring him 

to permanently close the underground storage tanks at Ken’s Keystone based upon

his status as an “operator” under the Storage Tank and Spill Prevention Act 

(Storage Tank Act).1 I write separately to express my concern, similar to the 

EHB’s, that the language on DEP’s storage tank forms does not clearly 

communicate the responsibilities and potential liabilities under the Storage Tank 

 

1 Act of July 6, 1989, P.L. 169, as amended, 35 P.S. §§ 6021.101-6021.2104. “Operator” is 

defined as “[a]ny person who manages, supervises, alters, controls or has responsibility for the 

operation of a storage tank.” Section 103 of the Storage Tank Act, 35 P.S. § 6021.103; see also

25 Pa. Code § 245.1 (same definition).
RCJ - 2

Act and the applicable regulations that would arise by designating oneself as an 

“operator” on such forms, as Andrew Lester did at times in this case.

I agree with the Majority that the record in its entirety supports the EHB’s

conclusion that Andrew Lester was an operator of the tanks. However, I question 

whether Andrew Lester understood the nature of the forms he was signing or the 

responsibilities and liabilities that would be imposed upon him if he were 

determined to be an “operator” under the Storage Tank Act and applicable 

regulations.

The 2010 Storage Tank Registration Amendment Form, which Andrew 

Lester signed and checked “Facility Operator” below his signature, contains a 

certification that the person signing the form represents to DEP that he or she owns

or represents the owner of the storage tank(s) and is “aware of the responsibilities 

and potential liabilities as an ‘owner’ arising under the Storage Tank . . . Act . . . 

and all applicable regulations.” (Supplemental Reproduced Record (S.R.R.) at 27b

(emphasis added).) The other options on that form were “Facility Owner,” 

“Responsible Official,” and “Property Owner.” (Id.) On the 2009 and 2013 

Underground Storage Tank Facility Operations Inspection Forms, Andrew Lester

printed his name under “Representative Present During Inspection” and checked 

the box below that for “Operator.” (S.R.R. at 30b, 38b.) The other options on the 

forms were “Owner,” “Employee,” and “None.” To the right of that on the 2009 

form, there is a name and address line for “Operator (if different than owner),” 

which was left blank. On the 2013 form, there are lines for “Owner (must be a 

person)” and “Operator (if different than owner),” both of which were left blank. 

Andrew Lester signed and printed “Manager” as his title on the 2009 form, and 

“Operator” as his title on the 2013 form. Above the signature line on both forms, 
RCJ - 3

there is a certification stating, inter alia, that the person signing the form is “the 

representative of the owner or operator” and that the person has reviewed the 

completed inspection report. (S.R.R. at 30b, 38b (emphasis added).) 

Notably, the 2009 and 2013 inspection forms and the 2010 amendment form, 

in particular, say nothing about the responsibilities and potential liabilities of an 

“operator,” which I believe is problematic given that both owners and operators 

may be held liable under the Storage Tank Act and the applicable regulations.2 

Andrew Lester testified that he “really didn’t understand what [checking the box 

for “Operator”] meant[,]” that he saw himself as an employee, and further, with 

regard to his checking “Facility Operator” on the 2010 amendment form, Andrew 

Lester stated that he did so

because directly above that, it states that my signature represents to 

[DEP] that I own or represent the owner of the tanks and am aware of 

the responsibilities and potential liabilities as an owner . . . [a]nd I 

wasn’t the owner. And I did not want to accept liability for the tanks. 

So I didn’t want to check owner or owner’s representative.

(Hr’g Tr. at 119, 126.) The EHB recognized that it was not clear “that . . . 

[Andrew Lester] truly understood the nature of the forms or that his designation on 

the forms would impose legal obligations upon him.” (EHB Adjudication at 10-

11.) The EHB further acknowledged the troubling nature of the many 

inconsistencies in how DEP communicated with Andrew Lester, in writing, about 

the tanks, “given the serious consequences that can result from a determination 

that a party is an operator,” and that “[t]hose persons who are potentially subject 

 

2

Section 502(c) of the Storage Tank Act, 35 P.S. § 6021.502(c), provides that both owners 

and operators are responsible for removing an underground storage tank and its contents upon 

the tank’s abandonment or discontinuance of use or active operation of the tank.
RCJ - 4

to . . . [DEP’s] Storage Tank Act regulations and obligations deserve clear 

communication from . . . [DEP] regarding their status.” (Id. at 10-11 (emphasis 

added).)

Moreover, despite the fact that Andrew Lester was determined to be an 

operator based on his actions dating back to November of 2009, it appears there 

was some confusion as to who, exactly, would be considered an “operator” for 

purposes of the Storage Tank Act, and new regulations in that regard were 

promulgated a month later. While there is no dispute that both owners and 

operators are liable for the closure of underground storage tanks, the regulations 

provide that owners are required to designate and train operators and that facilities 

may not operate after August 8, 2012, unless operators have been designated and 

trained. See 25 Pa. Code § 245.436 (adopted Dec. 26, 2009).3 The regulations also 

comprehensively explain the responsibilities and duties of each class of operators

 

3 DEP’s storage tank regulations provide, in pertinent part, as follows:

(a) Requirement for trained operators.

(1) An owner shall designate Class A, Class B and Class C operators for each underground 

storage tank system or facility that has underground storage tanks permitted to operate by . . 

. [DEP].

(2) A facility may not operate after August 8, 2012, unless operators have been designated 

and trained as required in this section, unless otherwise agreed upon by . . . [DEP].

* * *

(4) Designated operators shall successfully complete required training under subsection (c) 

by August 8, 2012.

* * *

25 Pa. Code § 245.436(a)(1)-(2), (4).
RCJ - 5

and the operator training requirements.4 In his pre-hearing memorandum to the 

EHB, Andrew Lester claimed that he had not been trained. (Andrew Lester’s PreHearing Memorandum, R.R. at 14a (asserting that “an operator also is specified as 

a class A, B or C operator. [A] class [C] operator must be trained before beginning 

their [sic] job duties. I was never trained or certified as a Class A, B or C 

operator[.]”).) The EHB did not address this contention in its adjudication. I also 

note that the “Operator Training” section on the 2013 inspection form was left 

blank, notwithstanding the tanks’ temporarily out-of-service designation. (S.R.R. 

at 44b.) 

Based on these concerns, if the EHB and the Court would have relied on the 

forms Andrew Lester signed as the basis for finding him an “operator” of the tanks, 

I would require the EHB to more thoroughly consider the confusing nature of the 

forms. However, given the other evidence in this record upon which the EHB 

relied in finding Andrew Lester to be an “operator” of the tanks, including that 

almost all verbal communication from DEP about the facility was with Andrew 

Lester, he attended a meeting on his own with DEP to discuss the tanks’ violations, 

and he attempted to get deliveries of gasoline from a wholesale fuel provider on 

numerous occasions, I agree that the Order should be affirmed.

________________________________

RENÉE COHN JUBELIRER, Judge

 

4

See 25 Pa. Code § 245.436(b)(1)-(3), (c)-(e).