Tri-Realty Co. v. Ursinus Coll., Civil Action No. 11–5885

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: PRATTER, United States District Judge
• Citation: 124 F.Supp.3d 418
• Parties: Tri-Realty Company, Plaintiff, v. Ursinus College, Defendant.
• Decision Date: 24 August 2015
• Docket Number: Civil Action No. 11–5885

124 F.Supp.3d 418

Tri-Realty Company, Plaintiff,
v.
Ursinus College, Defendant.

Civil Action No. 11–5885

United States District Court, E.D. Pennsylvania.

Signed August 24, 2015

Michael R. Griffinger, Gibbons PC, Newark, NJ, Scott J. Etish, Gibbons P.C.,

124 F.Supp.3d 424

Michael C. Falk, Robert P. Frank, Jr., Reed Smith LLP, Philadelphia, PA, for Plaintiff.

Dennis J. Valenza, John C. McMeekin, Rawle & Henderson LLP, Philadelphia, PA, for Defendant.

OPINION

PRATTER, United States District Judge

Tri–Realty Company ("Tri–Realty") sued Ursinus College ("Ursinus"), alleging that the continuing effects of No. 6 fuel oil discharged from underground storage tanks ("USTs") on Ursinus's property violate the Resource Conservation Restoration Act ("RCRA"), 42 U.S.C. §§ 6901 –6992k, the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 –1387, and several state laws. Ursinus moves for summary judgment on the RCRA and CWA claims. For the reasons explained below, the Court will grant in part and deny in part Ursinus's Motions for Summary Judgment.

I. FACTUAL BACKGROUND ¹

A. The Parties and the Properties

Ursinus is a not-for-profit college. Its campus is located in Collegeville, Pennsylvania. To the south of and downhill from Ursinus is the College Arms Apartments ("College Arms"), a residential apartment complex occupied by approximately 350 people and consisting of seven residential apartment buildings, a clubhouse (the "Clubhouse"), and an outdoor swimming pool.² College Arms is owned by Tri–Realty and managed by the DiLucia Management Corporation.

The southernmost section of College Arms consists of a ravine known as Bum Hollow, at the base of which is a stream known as Bum Hollow Run. The parties dispute the character of Bum Hollow Run. Ursinus claims that Bum Hollow Run is made up of "intermittent water flow" attributable to stormwater, (see Def.'s CWA Ex. 11 at 60:10–20), but Tri–Realty claims that Bum Hollow Run is a seasonal stream, (see Pl.'s Ex. 80 at 7). The parties also dispute "the nature and extent of" the connection³ between Bum Hollow Run and the Perkiomen Creek, a navigable-in-fact body of water located approximately 160 feet east of College Arms and separated from College Arms by Pennsylvania Route 29 ("Route 29"). Ursinus claims that Bum Hollow Run disappears 200 feet before the Perkiomen Creek and that any water from Bum Hollow Run that reaches the Perkiomen Creek does so through the ground, (see Def.'s CWA Br. 38–39; Def.'s CWA Ex. 8 at 4–5), while Tri–Realty claims that Bum Hollow Run is directly connected to

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the Perkiomen Creek through a flow that travels underneath Route 29 and eventually emerges at two separate outfalls, (see Pl.'s Ex. 80 at 19–21). There is no evidence of a surface connection between Bum Hollow Run and Perkiomen Creek, nor is there evidence that any people swim or bathe in Bum Hollow Run, or ingest any of the water, plants, or animals in Bum Hollow.

Stormwater on the westernmost part of College Arms is collected in storm inlets and directed to an underground stormwater pipe (the "Stormwater Pipe") situated beneath the pavement. The Stormwater Pipe empties into a catch basin (the "Catch Basin") at the top of the northern hillside of Bum Hollow, just west of the swimming pool and the Clubhouse. The Catch Basin empties into an underground outfall pipe (the "Hillside Pipe"), which then discharges on the northern side of Bum Hollow. Four erosional features feed stormwater into Bum Hollow Run, and the western-most erosional feature is a drainage swale (the "Drainage Swale") starting at the point of the discharge from the Hillside Pipe. The lower section of the Drainage Swale (the "Lower Drainage Swale") is approximately 50 feet long, and the parties characterize the water present in the Lower Drainage Swale differently. Ursinus claims that the Lower Drainage Swale does not ordinarily contain any measurable flow of naturally occurring water, and that it is not a geographic feature because it would not exist but for the man-made placement of the Hillside Pipe. (See Def.'s CWA Reply Br. 9; Def.'s CWA Ex. 12 at 32:7–34:7). But Tri–Realty's expert Dr. James A. Schmid, a biogeographer, opines that the Lower Drainage Swale "receives groundwater seepage for extended periods of time" and carries "more than ephemeral surface water" down to Bum Hollow Run. (See Pl.'s Ex. 80 at 6–7). Dr. Schmid reports that the Lower Drainage Swale "has eroded down into the water table" and is visibly wet on days when no stormwater is flowing. (Id. at 15, 20). In other words, Dr. Schmid claims that springs in the Lower Drainage Swale create a small, but continuous flow of water to Bum Hollow Run within an identifiable bank. (Id. at 15).

The parties also dispute whether wetlands exist in Bum Hollow on approximately .02 acres (859 square feet) of College Arms. (See Def.'s CWA Ex. 8 at 24). Based on a variety of factors, including visual observations of borings made in July 2013, the presence of "facultative" tree species (i.e., species that can grow in both wetland and non-wetland habitats) in Bum Hollow, the presence of the water table 13 inches below the surface, the presence of saturated soil 12 inches below the surface, the detection of the water table less than 24 inches below the surface in 3 of 50 soil borings, and the presence of a supposed surface water connection between the alleged wetlands and the Drainage Swale, Dr. Schmid opined that the alleged wetlands exist and are covered by the CWA. Ursinus's expert David B. Tompkins, a wetlands and stream biologist affiliated with Ursinus consultant Kleinfelder, Inc., found that the alleged wetlands are typically dry, have no surface water connection to the Lower Drainage Swale under typical conditions, and do not contain hydric soils.⁴

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B. Discovery of Release and Initial Remedial Measures

On February 5, 2004, after conducting an investigation in late 2003, Ursinus reported to the Pennsylvania Department of Environmental Protection ("PADEP") a release of No. 6 fuel oil from its USTs.⁵ Ursinus hired Center Point Tank Services, Inc. ("Center Point") to delineate and remediate the contamination. Center Point emptied, cleaned, and closed the Ursinus USTs in place in 2004. The tanks, unused, remain in the ground today.

Between mid–2004 and late 2006, Ursinus had over 33,000 gallons of "product/groundwater mixture" removed from the area surrounding the USTs. (Def.'s Ex. 7 at 4). Ursinus claims to have installed several monitoring wells during that period along the property line separating Ursinus from College Arms, but Tri–Realty disputes that assertion. As part of the initial response to the release, Ursinus and Tri–Realty attempted to negotiate an agreement granting Ursinus access to College Arms for investigative and remedial purposes. Negotiations broke down, and Ursinus terminated negotiations in 2006. Tri–Realty claims that notwithstanding the absence of an access agreement, Ursinus's consultants trespassed on Tri–Realty's property between 2006 and 2010 to investigate the release of oil. In 2007, Ursinus hired Marshall Geosciences Inc. ("MGI"), an environmental consulting company, to replace Center Point. Gilbert Marshall, the principal of MGI, was its point person in connection with the contamination and remediation issues at College Arms.⁶

C. Discovery of Oil on Tri–Realty's Property and Initial Access Agreement

In January 2010, Tri–Realty representatives discovered accumulations of oil in a sump and electrical box located in the basement of the Clubhouse. The oil was noted to be thick, dark in color, and tar-like. Also in January 2010, Mr. Marshall observed a black, highly viscous, tar-like material on the southern portion of Tri–Realty's property in Bum Hollow. Later tests confirmed the material to be "a weathered No. 6 fuel oil" similar to that "collected from" the monitoring wells on the Ursinus campus. (Pl.'s Ex. 26 at 7).

On March 4, 2010, at the suggestion of the PADEP, Ursinus filed a Notice of Intent to Remediate (the "NIR") with the PADEP pursuant to the Pennsylvania Land Recycling and Environmental Remediation Standards Act of 1995, 35 P.S. § 6026.101 et seq. , commonly known as "Act 2." Act 2 is a voluntary cleanup program under the auspices of the PADEP that sets forth specific procedures for remediators to follow, and pursuant to which remediators may obtain a limited release of liability under Pennsylvania law. Ursinus, the PADEP, and Tri–Realty also discussed the possibility of an administrative order authorizing Ursinus to enter College Arms for the purposes of environmental investigation and remediation pursuant

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to Act 2. On April 5, 2010, Tri–Realty and Ursinus reached an access agreement under which Ursinus could investigate and remediate the oil expressing in Bum Hollow. Ursinus was permitted to access College Arms for only two years, and was required to notify Tri–Realty in advance of entering the property.

Also in April 2010, an accumulation of oil was observed on the western portion of the northern hillside of Bum Hollow approximately 45 feet from Bum Hollow Run. For purposes of this litigation, this accumulation...