Court of Appeals splits on administrative law issues about gas tank fund

In 7-Eleven, Inc. v. Department of Environmental Quality, the en banc Court of Appeals reversed an earlier panel decision, concluding that the DEQ erred in its determination of how much money 7-11 was entitled to receive in reimbursement from a state fund for leaking gas storage tanks, after 7-11 settled a claim with Home Depot for damage to the Home Depot property. The majority, in an opinion by Judge Benton (the lone dissenter on the original panel, joined by six members of the en banc Court), ruled that 7-11 by not including the settlement as recoverable costs. The dissenters Judge Humphreys (joined by Judge Bumgardner) and Judge Annunziata were the majority from the panel, and they complain, among other things, about the majority's lack of deference to the agency's view of the case, in violation of established administrative law principles.

I suspect that this case will be taken up further by the Commonwealth, having suffered a reversal of fortune before the en banc court of appeals.