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.
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.
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 connection
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.
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.
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.
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
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 is known as the "First Seep." MGI believes that the oil expressing at the First Seep originated on the Ursinus campus, migrated downhill through the subsurface, intercepted groundwater, followed along a pathway created by the Stormwater Pipe, and ultimately discharged at the foot of the northern hillside of Bum Hollow. Since the discovery of the First Seep, oil discharges on rocks have been noted at the Hillside Pipe, and MGI has observed weathered oil in the Clubhouse basement sump, the Clubhouse basement electrical box, and at the outfall of the Clubhouse basement sump.
In early May 2010, MGI constructed an earthen basin (the "Impoundment") to contain the oil and oil-contaminated water expressing at the First Seep. The Impoundment is now covered with absorbent pads and surrounded by tubular sorbent booms and silt fencing, although Tri-Realty disputes that such measures were installed as early as May 2010. The Impoundment is connected to a shallow, man-made channel (the "Spillway") that, in the event of an overflow, intentionally directs excess fluid from the southeast corner of the Impoundment into the Lower Drainage Swale. The Spillway is lined with absorbent pads and topped with tubular sorbent booms intended to capture contamination and ensure that only water discharges from the Spillway. Tri-Realty claims that the Spillway was constructed about six months after the Impoundment, and that oil and oil-contaminated water routinely spills over the edge of the Impoundment into the Spillway and then empties into the Lower Drainage Swale.
In 2010, MGI installed an electronic Abanaki Petroextractor oil skimmer (the "Skimmer") in the Catch Basin to intercept and remove oil that may enter from the Stormwater Pipe. Ursinus pays the electrical bill for operating the Skimmer. Despite the presence of the Skimmer, a video taken in September 2010 appears to show oil and/or oil-contaminated water entering the Stormwater Pipe and flowing untouched through the Catch Basin, past the Skimmer, and toward the Hillside Pipe.
In November 2010, in response to purported complaints of fuel odor, Tri-Realty installed a vapor mitigation system in the Clubhouse. Ursinus reimbursed Tri-Realty for the cost of the system's components, installation, and operation, but not for its design. There have been no reported detections of fuel odors in the Clubhouse since the installation of the vapor mitigation system. MGI also installed 40 shallow groundwater wells at College Arms and periodically vacuums liquids from them.
Apart from the installation of the vapor mitigation system, Tri-Realty has not performed any remedial actions, temporary or
From May 2010 to April 2012, MGI inspected Bum Hollow and the interim remedial measures on a bi-weekly basis. The tubular sorbent booms were replaced on an as-needed basis and, beginning sometime after March 2011, accumulated oil, oil-contaminated water, and sediment were removed periodically from the Impoundment using a vacuum truck. To date, there have been no reports that the oil has reached the Perkiomen Creek, has caused any harm to people, plants, or wildlife, or has adversely affected Tri-Realty's ability to lease units at College Arms.
On June 21, 2011, Ursinus proposed to Tri-Realty and the PADEP a remedial system designed to capture impacted groundwater from locations that had been previously investigated. The PADEP purported to have previously given a "verbal go-ahead to Ursinus" to execute the proposal, (Pl.'s Ex. 43), but Tri-Realty rejected the proposal, citing concerns that the system would disturb the College Arms parking lot and was premature due to perceived gaps in the data recovered from the remedial investigation. Additionally, Tri-Realty disputes that the PADEP was empowered to approve the proposal.
The access agreement between Tri-Realty and Ursinus expired on April 19, 2012, and Tri-Realty refused to renew it on the same terms. Tri-Realty denied MGI access to College Arms until a new agreement was reached, so except for a site visit by the PADEP and MGI in May 2012, no activity was performed in Bum Hollow from May 2012 to September 2012. Tri-Realty did not ask its hydrogeologist, Raymond Duchaine of ENVision Environmental, Inc. ("ENVision"), to perform any remedial actions during that period, and Mr. Duchaine recommended that Tri-Realty not touch the Impoundment. On October 2, 2012, the parties agreed to a limited access agreement for the purpose of allowing MGI to operate and maintain the Impoundment and the Skimmer.
On November 16, 2012, after Hurricane Sandy struck College Arms at the end of October 2012, Mr. Marshall discovered oil approximately 20 to 25 feet downslope of the Impoundment, within 15 to 16 feet of Bum Hollow Run. This accumulation of oil is known as the "Second Seep." Mr. Marshall "mopped up" the Second Seep contamination with absorbent booms and pads and removed oil-contaminated fallen leaves. (Pl.'s Ex. 57 at 68:21-69:12). Mr. Marshall's actions were the extent of the efforts at College Arms at that time with regard to the Second Seep.
On January 10, 2013, Mr. Marshall observed additional accumulation of oil at the Second Seep, and MGI again "mopped up" the oil with absorbent pads. On January 15, 2013, Tri-Realty representative Albert Ambron, Mr. Duchaine, and another ENVision representative observed a standing puddle of water where Mr. Ambron had seen water five days earlier, and an accumulation of weathered oil. After they reported their observations to Ursinus's attorney, MGI undertook various remediation efforts to deal with the new accumulation of oil. Thus, on January 16, 2013, MGI mopped up the oil with sorbent booms and pads, dug a 6- to 8-inch trench around the Second Seep, and installed a silt fence in the trench. MGI has continued to monitor the conditions in Bum Hollow on a weekly basis.
From May 2010 to April 2012, MGI and ENVision performed a series of vapor studies and soil-gas studies in and adjacent to some of the buildings at College Arms. They found no detections of ambient fuel oil constituents in excess of Pennsylvania statewide health standards. Over that same period, water samples from the confluence of the Lower Drainage Swale and Bum Hollow Run (the "Confluence") and from two points downstream
Over that same period, additional testing for petroleum constituents listed on the PADEP "short list" was performed at 22 shallow-zone monitoring wells located on the Ursinus and College Arms properties. In six of the shallow-zone monitoring wells, tests found benzene and 1,2,4 trimethylbenzene at concentrations ranging from 0.5 to 5.2 times the Pennsylvania statewide health standards. (See Def.'s RCRA Ex. 44). Chrysene was detected in excess of Pennsylvania statewide health standards in 17 of the 22 shallow-zone wells. Additionally, from 2007 to 2013, tests performed on six deeper-zone monitoring wells detected only 1,2,4 trimethylbenzene in two wells and on three occasions, and never in excess of the relevant statewide health standard for groundwater.
In May 2013, ENVision hand augered five borings into the subsurface of Bum Hollow between the Impoundment and Bum Hollow Run. One of those borings found oil in the subsurface at a point "beyond the Second Seep and ... markedly closer to Bum Hollow Run than previously known." (Pl.'s Ex. 60). In July 2013, ENVision installed stakes and markers between Bum Hollow Run and the Impoundment. ENVision advanced 139 borings into the subsurface in July and August 2013, and Mr. Marshall was present to witness those borings.
On August 6, 2013 and September 5, 2013, ENVision sampled the discharge from the Impoundment flowing through the Spillway and to the Drainage Swale. Ursinus responded by having Mr. Marshall sample the discharge from the Spillway on August 20, 2013 and October 24, 2013, resulting in a total of four samples taking over that two-month period. Two of those samples contained benzene at 1.3 ppb, and another sample contained benzene at 1.4 ppb. Ursinus claims that the relevant Pennsylvania statewide health standard is 5 ppb, but Tri-Realty claims that the relevant Pennsylvania statewide health standard is 1.2 ppb. Ursinus therefore claims that testing revealed benzene at levels below the statewide health standard, but Tri-Realty claims that testing detected benzene at levels above the statewide health standard. Similarly, two of the samples contained chrysene at .54 and .757 ppb, respectively, while another sample contained chrysene at 2.0 ppb. Again, the parties disagree about the relevant statewide health standard: Ursinus claims that the statewide health standard for chrysene is 1.9 ppb, so only one test detected chrysene at levels above the statewide health standard; Tri-Realty claims that the Pennsylvania statewide health standard for chrysene in surface water is .0038 ppb, which means that the chrysene levels detected in three of the four samples exceed the relevant statewide health standard. Finally, ENVision detected phenanthrene in its samples at 1.93 and 2.88 ppb, respectively, but Ursinus detected phenanthrene in only one of its samples and only at 0.64 ppb. By all accounts, ENVision's phenanthrene detections exceed the relevant Pennsylvania statewide health standard of either 1.0 microgram per liter (per Tri-Realty) or 1.1 ppb (per Ursinus), but Ursinus's phenanthrene detection does not. Ursinus did not detect chrysene or phenanthrene in its sample taken on August 20, 2013. According to Ursinus, this indicates safe levels of chrysene and phenanthrene in the discharge from the Spillway; according to Tri-Realty, Ursinus's testing was invalid because the lowest concentration that the test could detect exceeded one or more statewide health standard.
The PADEP is an agency of the Commonwealth of Pennsylvania charged with responsibility for administering Pennsylvania's environmental laws and regulations, including "responding to complaints from persons affected by releases from storage tanks, overseeing and tracking the status of responsible party-led cleanups, and taking and overseeing state-led corrective action." (See PADEP, Storage Tank Cleanup Program, available at http://www.portal.state.pa.us/portal/server.pt/community/storage_tank_cleanup_program/20605). The PADEP has been kept advised of the situation at College Arms since 2004. Ursinus has provided periodic updates to the PADEP on or about the following dates: April 7, 2007; February 24, 2010; March 10, 2010; December 30, 2010; June 21, 2011; March 14, 2012; August 24, 2012; February 27, 2013. Thus far, the PADEP has only made written recommendations that Ursinus take remediation steps and otherwise comply with Act 2 requirements for pursuing voluntary cleanup.
The parties dispute the role that the PADEP has played. Ursinus claims that the PADEP has been closely watching the remediation efforts at the site and has not
Tri-Realty, on the other hand, claims that the PADEP encouraged Ursinus to trespass onto College Arms and has not been forthcoming about the remediation efforts in Bum Hollow. For example, Tri-Realty claims that the PADEP met with Ursinus in Bum Hollow in 2007 — without Tri-Realty's permission — to discuss remediation efforts, but that certain facts about what was observed in Bum Hollow were never disclosed. Additionally, Tri-Realty claims that the PADEP recommended that Ursinus change some of its remedial measures (e.g., putting a felt liner in the Hillside Pipe to help capture oil emerging from underground into the Hillside Pipe) and that Ursinus has not followed those recommendations.
On June 10, 2014, PADEP issued a letter disapproving of the revised RIR. On July 7, 2014, MGI submitted a supplement to its revised RIR, purporting to address certain deficiencies in the revised RIR that the PADEP identified. Upon reviewing the supplement, the PADEP accepted the March 14, 2014 RIR by letter dated July 8, 2014. Tri-Realty disputes that the PADEP had the authority to reverse its decision on the revised RIR by letter.
On November 14, 2014, pursuant to Act 2, Ursinus submitted to the PADEP a cleanup plan detailing proposed actions for College Arms and their purported remedial effects. On February 20, 2015, citing several alleged deficiencies in Ursinus's cleanup plan that do not affect the resolution of the pending motions in this case, the PADEP disapproved of the cleanup plan. (See Pl.'s Request to Take Judicial Notice of Agency Action, Mar. 6, 2015, ECF No. 86; Def.'s Resp. to Request to Take Judicial Notice of Agency Action, Mar. 16, 2015, ECF No. 87; Pl.'s Reply in Further Support of Request, Mar. 19, 2015, ECF No. 89).
Tri-Realty retained Dr. Walden E. Dalbey as an expert toxicologist. He issued an expert report dated May 26, 2014. Dr. Dalbey opined that benzene, chrysene, and phenanthrene are considered to be toxic chemicals, but he did not offer any opinions regarding the dose of those chemicals that would lead to adverse effects in humans, animals, or plants. Dr. Dalbey based his opinions, in part, on analytical results obtained from tests performed on three samples: one from a monitoring well on Ursinus's property, one from the Clubhouse electrical box, and one from the Impoundment.
Dr. Dalbey opined that each of the three samples "can be considered mutagenic." (Def.'s RCRA Ex. 78 at 3). Dr. Dalbey also opined that each of the three samples "qualitatively ... raise concerns of possible noncarcinogenic effects ... if repeated
Mr. Duchaine, an expert geologist hired by Tri-Realty, created an expert report dated May 26, 2014. In it, he opined that "Ursinus oil ... is moving and will continue to move through the subsurface across the entire western portion of College Arms." (Def.'s RCRA Ex. 60 at 1). He opined that "Ursinus oil will reach and discharge into [Bum Hollow Run] ... and, in the future, may also discharge to Bum Hollow in an area downslope of the Clubhouse." (Id.). Mr. Duchaine does not have an opinion regarding the rate at which the oil is moving or will move beneath the subsurface, and explains that such a calculation is not possible on the basis of the current information available. Mr. Duchaine concluded that Ursinus oil is "an imminent and substantial endangerment to the environment at College Arms...." (Def.'s RCRA Ex. 60 at 2). Although Mr. Duchaine is not a toxicologist and offered no opinion regarding the likelihood or type of harm that humans, animals, or plants might suffer from exposure to No. 6 fuel oil at College Arms, (see Def.'s RCRA Ex. 61 at 91:1-95:24), he opined that Ursinus oil presents a substantial and imminent endangerment to the environment.
Dr. James S. Smith, an expert chemist hired by Tri-Realty, issued an expert report dated May 26, 2014. Dr. Smith reviewed the analytical results obtained by labs that ran tests on "product" samples collected from various locations across College Arms, including the maintenance shed septic system, the Hillside Pipe, the basement of the Clubhouse, the Impoundment, and the soil south of the Impoundment. Dr. Smith opined that, with the exception of the product found in the maintenance shed septic system, all of the product samples analyzed were No. 6 oil attributable to Ursinus. Dr. Smith opined that the analysis showed a product with a viscosity similar to fresh No. 6 fuel oil from a refinery. While Dr. Smith acknowledged and premised some of his opinions on the fact that the natural environment will biodegrade and change the viscosity of oil constituents released to the environment, he testified that he "never, ever" issues opinions regarding the rate of biodegradation for any chemical due to the number of unknown factors affecting the rate of biodegradation. (See Def.'s RCRA Ex. 39 at 62:14-62:9). Dr. Smith did not perform a risk assessment of any kind or issue any opinions concerning any measure of risk exposure at College Arms, but concluded that oil and oil-contaminated water has moved and will continue to move beyond the
In June 2012, for purposes of obtaining a loan, Environmental Consulting, Inc. ("ECI"), an environmental consulting firm hired by Tri-Realty, created a Phase I Environmental Site Assessment for College Arms. ECI visited the College Arms property in April 2012 and June 2012, but did not sample any soil or groundwater. ECI recognized that the oil at College Arms posed a risk to humans by way of direct contact, ingestion, and inhalation. (See Def.'s RCRA Ex. 33 at 9). However, ECI concluded that "there is no complete pathway to exposure either via direct contact to the groundwater contamination or via ingestion of the groundwater," and that the risk of harm from vapor intrusion "is low and is unlikely to occur" due to the age of the discharge, the mitigation systems that are in place, and the absence of data showing high concentrations of contamination in indoor air. (Id. at 29-30). Tri-Realty ultimately relied on ECI's report to refinance the College Arms property, although Mr. DiLucia personally guaranteed the lender against environmental liability that might exist.
Ursinus retained James A. Schaefer as an expert geologist and Dr. Scott D. Dwyer as an expert toxicologist. They co-authored a report dated June 27, 2014. After reviewing MGI's March 14, 2014 RIR and portions of Tri-Realty's expert reports, Mr. Schaefer and Dr. Dwyer developed a conceptual site model outlining the general categories of sources, chemicals of concern, transport mechanisms, exposure media, exposure routes, and receptor groups. They analyzed potential exposures at the buildings at College Arms, the Clubhouse drain and sump pump system, the Impoundment, the Drainage Swale, the Hillside Pipe, Bum Hollow Run, the Detention Basin, and the Perkiomen Creek. They concluded that there is no imminent and substantial endangerment to health or the environment associated with the oily material released at College Arms because the magnitude and frequency of potential exposures to human or ecological receptors cannot present such an endangerment. In support of their conclusion, they noted that the release occurred in 2004 and that no actual adverse effects have been reported in the ensuing years. With respect to the endangerment to the environment, they concluded that no further ecological evaluation is required under the PADEP's guidance to rule out such an endangerment because the affected area totals less than 2 acres and the area of contaminated sediments is less than 1,000 square feet.
In discussing the risk posed by oil constituents, these experts noted that adverse effects depend on the concentration of each fuel oil constituent, the pattern of exposure, the duration of exposure, and the route of exposure, as well as the characteristics of the receptor. Without much explanation, they stated that No. 6 fuel oil demonstrates a low level of toxicity after acute duration exposures, and opined that single exposures or related exposures over a short period of time require high concentrations to cause an adverse health effect. They concluded that non-cancerous effects are unlikely to occur in the receptor groups identified at College Arms based on the infrequent exposures to small amounts of oil that might occur.
Tri-Realty filed this lawsuit almost four years ago, on September 16, 2011, and filed an Amended Complaint on December 1, 2011. After Ursinus moved to dismiss on January 13, 2012, but before the Court issued a ruling, Tri-Realty filed a Motion for Preliminary Injunction (Docket No. 16). The Court held a two-day preliminary injunction hearing in April 2013, and the Court denied the preliminary injunction on September 19, 2013. The Court then granted in part and denied in part Ursinus's Motion to Dismiss (Docket No. 7), converting Ursinus's motion into a Motion for Summary Judgment on Tri-Realty's RCRA claim. Ursinus filed its Motions for Summary Judgment on Tri-Realty's CWA claim (Docket No. 64) and RCRA claim (Docket No. 65) on August 25, 2014. The Court heard the parties' oral arguments on the motions for summary judgment.
A court shall grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, "[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment." Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir.2010).
The movant bears the initial responsibility for informing the court of the basis for the motion for summary judgment and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. After the moving party has met the initial burden, the non-moving party must set forth specific facts showing that there is a genuinely disputed factual issue for trial by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information,
Ursinus challenges Tri-Realty's standing to sue under both RCRA and the CWA, arguing that Tri-Realty has not suffered an "injury in fact" and, alternatively, that Tri-Realty has not proven an injury within either statute's "zone of interests." Article III limits the federal judicial power to the resolution of "Cases" and "Controversies." U.S. Const., art. III § 2. "One element of the case-or-controversy requirement" is that plaintiffs "must establish that they have standing to sue." Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Article III standing is a "threshold jurisdictional requirement" for any case in federal court. Public Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.1997). "The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have [presented evidence of] `such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). "[A] plaintiff must demonstrate standing for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).
Article III standing requires three elements: "(1) an `injury in fact'; (2) `a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court'; and (3) a showing that it `be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" N.J. Physicians, Inc. v. President of United States, 653 F.3d 234, 238 (3d Cir.2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To prove an injury in fact at the summary judgment stage, the plaintiff must make "a factual showing," Lujan, 504 U.S. at 565, 112 S.Ct. 2130, of an injury that is both (1) `concrete and particularized' and (2) `actual or imminent, not conjectural or hypothetical.' Each of these definitional strands imposes unique constitutional requirements. An injury is `concrete' if it is `real,' or `distinct and palpable, as opposed to merely abstract,' while an injury is sufficiently `particularized' if it `affect[s] the plaintiff in a personal and individual way.' The second requirement — `actual or imminent, not conjectural or hypothetical' — makes plain that if a harm is not presently or `actual[ly] occurring, the alleged future injury must be sufficiently `imminent.' Imminence is `somewhat elastic,' but requires, at the very least, that the plaintiffs `demonstrate a realistic danger of sustaining a direct injury.' In other words, there must be a realistic chance — or a genuine probability — that a future injury will occur in
N.J. Physicians, Inc., 653 F.3d at 238 (citations omitted). In the context of environmental law, evidence of pollution on one's land ordinarily satisfies the standing inquiry. See Fishel v. Westinghouse Elec. Corp., 617 F.Supp. 1531, 1540 (M.D.Pa. 1985); see also Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir.2004) (finding the injury-in-fact requirement satisfied where plaintiff presented evidence that the soil on plaintiff's land was contaminated, that the defendant's USTs were leaking, and that solid waste migrated from defendant's USTs onto plaintiff's land).
Ursinus argues that Tri-Realty lacks standing to bring its CWA and RCRA claims because Tri-Realty has failed to allege and/or prove that it has suffered an injury in fact. (See, e.g., Def.'s RCRA Br. 64 ("Tri-Realty has not introduced any evidence whatsoever to show damage to [College Arms], whether or not it is caused by the alleged hazardous waste."). For the reasons that follow, the Court finds Tri-Realty has established standing for purposes of summary judgment because (1) Tri-Realty's Modified Amended Complaint contains sufficient allegations that it has suffered an injury in fact, and (2) Tri-Realty has produced sufficient evidence that it has suffered an injury in fact.
With respect to the RCRA claim, the Modified Amended Complaint alleges that the No. 6 oil released from the Ursinus USTs has contaminated Tri-Realty's property. (See Mod. Am. Compl. ¶¶ 139-51). Tri-Realty further alleges that it "has incurred, and will continue to incur, expenses in order to investigate this contamination and work towards removing the contamination," and that it "has been damaged by the contamination of the College Arms Property." (Id. ¶ 154). These allegations are sufficient to establish an injury in fact. See Duke Power Co., 438 U.S. at 73-74, 98 S.Ct. 2620 (finding the "environmental and aesthetic consequences" of pollution adequate to satisfy the injury-in-fact requirement); Consolidated Companies, Inc. v. Union Pacific R.R. Co., 499 F.3d 382, 385-86 (5th Cir.2007) (finding the presence of contamination on plaintiff's property, along with costs incurred to monitor that pollution, constitute "actual, concrete, and particularized" injuries). In addition, Tri-Realty has presented evidence suggesting that College Arms has been contaminated by the No. 6 oil released from Ursinus's USTs. See infra Part I.D-E. The presence of unwanted pollution at College Arms is an injury in fact capable of supporting standing for a RCRA claim. See Parker, 386 F.3d at 1003-04 (concluding that the plaintiff introduced sufficient evidence to satisfy the injury-in-fact requirement because there was evidence that "the soil on her land was contaminated, that USTs were leaking, and that solid waste migrated onto [her] property...." (citing Covington v. Jefferson County, 358 F.3d 626, 638 (9th Cir. 2004))); Consolidated Companies, Inc., 499 F.3d at 385-86 (finding evidence of an injury in fact where the plaintiff "produced evidence that contaminants are present in the soil" on its property).
With respect to the CWA claim, the Modified Amended Complaint alleges that No. 6 oil released from the Ursinus USTs reached Bum Hollow Run and other navigable waters located on College Arms. (See Mod. Am. Compl. ¶¶ 185-98). This is sufficient to confer standing on Tri-Realty as the owner of the property on which the contaminated navigable waters are located. See Parker, 386 F.3d at 1003-04; Patterson v. Barden & Robeson Corp., No.04-803,
Next, Ursinus argues that Tri-Realty's claim should be dismissed because its alleged injuries are not within the "zone of interests" that either RCRA or the CWA were designed to protect. "In addition to the constitutional standing requirements, federal courts have developed prudential standing considerations `that are part of judicial self-government.'" Davis by Davis v. Phila. Housing Auth., 121 F.3d 92, 96 (3d Cir.1997) (quoting UPS Worldwide Forwarding, Inc. v. U.S. Postal Serv., 66 F.3d 621, 626 (3d Cir.1995)). Among those considerations is whether or not "a litigant demonstrate[s] that her interests are arguably within the zone of interests intended to be protected by the statute, rule or constitutional provision on which the claim is based." Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir.1994). "[T]he breadth of the zone of interests test varie[s] according to the provisions of law at issue." Davis by Davis, 121 F.3d at 97 (citing Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). The zone of interests test is "not meant to be especially demanding." Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 398, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).
Ursinus claims that Tri-Realty's claims are beyond the "zone of interests" of RCRA or the CWA because Tri-Realty's motivation for pursuing those claims are "purely economic" (i.e., to recover sizeable attorneys' fees). The Court disagrees. RCRA establishes a comprehensive regulatory framework for the handling and disposal of solid and hazardous waste, See Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), and there can be no question that the owner of property threatened by contamination from a neighboring property is the intended beneficiary of RCRA. Similarly, the purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a), so there can be no question that the CWA is intended to benefit the owner of property on which flow waters that are allegedly jurisdictional and polluted. Tri-Realty's alleged motivation for bringing the lawsuit, even if true, does not change the fact that Tri-Realty has presented evidence that No. 6 oil that was released from the Ursinus USTs now exists on the College Arms
"RCRA's primary purpose ... is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, `so as to minimize the present and future threat to human health and the environment.'" Meghrig, 516 U.S. at 483, 116 S.Ct. 1251 (quoting 42 U.S.C. § 6902(b)). Section 6972(a)(1)(B) of Title 42 of the United States Code, the citizen-suit provision of RCRA, permits a person to bring suit
42 U.S.C. § 6972(a)(1)(B). To prevail on a claim under § 6972(a)(1)(B), a plaintiff must prove "(1) that the defendant is a person, including, but not limited to, one who was or is a generator or transporter of solid or hazardous waste or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment." Interfaith Community Organization v. Honeywell International, Inc., 399 F.3d 248, 258 (3d Cir.2005) (quoting Parker, 386 F.3d at 1014-15).
Ursinus moves for summary judgment on Tri-Realty's RCRA claim on two grounds: (1) under the primary jurisdiction doctrine, the Court should refrain from deciding the RCRA claim; and (2) Tri-Realty "has not and cannot prove that there exists an imminent and substantial threat to health and the environment caused by Ursinus's release of no. 6 oil more than a decade ago." (Def.'s RCRA Br. 37).
Ursinus argues that the Court should decline to consider Tri-Realty's RCRA claim under the primary jurisdiction doctrine because the PADEP and, if
Although there is no fixed test for determining whether the primary jurisdiction doctrine applies, courts generally consider four factors when deciding whether to stay a proceeding pending agency action: "(1) Whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise; (2) Whether the question at issue is particularly within the agency's discretion; (3) Whether there exists a substantial danger of inconsistent rulings; and (4) Whether a prior application to the agency has been made." Baykeeper, 660 F.3d at 691. Upon careful consideration of these four factors, the Court finds that the primary jurisdiction doctrine does not apply in this case.
First, RCRA claims are within the conventional experience of judges and do not involve technical or policy considerations with the PADEP's particular field of expertise. By adopting the citizen-suit provision of RCRA, Congress intended that federal courts would decide RCRA claims notwithstanding the limited involvement of state environmental authorities. See Baykeeper, 660 F.3d at 691 (concluding that Congress decided that federal courts are competent to decide RCRA cases "when it wrote the RCRA ... to authorize citizen suits in federal courts"); see also PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir.1998) (concluding that abstention "would be an end run around RCRA" given that "Congress has specified the conditions under which the pendency of other proceedings bars suit under RCRA" (emphasis in original)). Although the PADEP "has expertise in environmental matters, federal courts are nonetheless competent to decide cases such as the one before us." Baykeeper, 660 F.3d at 691. Indeed, "listening to the testimony of expert witnesses, assessing their credibility, and determining whether the litigant has carried the devoir of persuasion" is "very much within the competency of a federal district court." Maine People's Alliance & Natural Resources Defense Council v. Mallinckrodt, Inc., 471 F.3d 277, 294 (1st Cir.2006); See Interfaith Community Org. Inc. v. PPG Indus., Inc., 702 F.Supp.2d 295, 311 (D.N.J.2010). Because there is nothing special about Tri-Realty's RCRA claim that places it within the PADEP's "particular field of expertise" or outside the "conventional experience of judges," the first factor weighs against the application of primary jurisdiction.
Second, the issues involved in adjudicating Tri-Realty's RCRA claim are not particularly
Third, there is minimal risk of inconsistent rulings. The PADEP's involvement is limited on account of the voluntary nature of remediation under Act 2, and the PADEP is not being called upon to determine whether the situation at College Arms may present an "imminent and substantial endangerment to health or the environment." Indeed, the PADEP is deciding a materially different question (and applying a materially different standard) in its evaluation of remediation efforts under Act 2. See 35 Pa. Cons.Stat. § 6026.501(a) ("Any person demonstrating compliance with the environmental remediation standards ... shall be relieved of further liability for the remediation of the site ... for any contamination identified in reports submitted to and approved by the [PADEP] to demonstrate compliance with these standards and shall not be subject to citizen suits or other contribution actions brought by responsible persons."); see also 35 Pa. Cons. Stat. § 6026.304(l) (detailing the reports that must be filed under Act 2 and the information that those reports must include); 25 Pa.Code § 250.408 (same). Moreover, to the extent that the Court might eventually impose additional burdens on Ursinus above and beyond those that may be imposed by the PADEP, "a more stringent remediation standard ... is not a reason to invoke the primary jurisdiction doctrine." Baykeeper, 660 F.3d at 692 (quoting Interfaith, 702 F.Supp.2d at 312). Thus, the third factor weighs against the application of primary jurisdiction.
Only the fourth factor — whether application to the agency has already been made — favors the application of primary jurisdiction. Indeed, the fact that Tri-Realty has been actively participating in the remediation efforts under Act 2 before the PADEP suggests that this lawsuit is "little more than an indirect collateral attack on the [PADEP's] present regulatory course." Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1348 (D.N.M.1995). However, Act 2 is sufficiently distinct from RCRA so that even application to the PADEP under Act 2 is not enough to justify abstention. For example, compliance with Act 2 requires analysis and reporting of only those oil constituents on the Pennsylvania short list, but there are "hundreds and possibly more" oil constituents present in No. 6 fuel oil and many of the constituents not on the short list may be dangerous enough to result in RCRA liability. (See Pl.'s Ex. 118 at 56:10-21, 59:2-24, 60:1-61:5; see also supra note 8). Therefore, the PADEP's involvement is sufficiently limited that even taking into account Tri-Realty's participation in the proceedings under Act 2, there is insufficient justification for abstention under the primary jurisdiction doctrine.
The parties dispute whether the situation at College Arms "may present an
Interfaith, 399 F.3d at 258 (quoting Parker, 386 F.3d at 1015 (internal quotations and citations omitted)). The RCRA standard thus builds in two layers of probability that may result in liability: anything that may present (but not necessarily has presented) a threat of immediate and serious harm (but not necessarily actual harm) is actionable under RCRA.
The leading case in the Third Circuit on the standard for RCRA liability is Interfaith Community Organization v. Honeywell International, Inc., 399 F.3d 248 (3d Cir.2005). In Interfaith, a local community organization sued the owner of a chromate chemical plant under RCRA. Id. at 252. The manufacturing process at the plant produced waste residue with a high pH and high concentrations of hexavalent chromium, a highly soluble chemical that is a known to be very carcinogenic to humans and toxic to the environment. Id. The plant owner had piled this waste at a tidal wetlands site along the Hackensack River, and the site contained 1.5 million tons of waste, 15 to 20 feet deep, across approximately 34 acres. Id. The district court ruled that "a site may present an imminent and substantial endangerment within the meaning of RCRA where: (1) there is a potential population at risk; (2) the contaminant at issue is a RCRA `solid' or `hazardous waste'; (3) the contaminant is present at levels above that considered acceptable by the state; and (4) there is a pathway for current and/or future exposure." Id. at 259 (quoting Interfaith Community Organization v. Honeywell Intern., Inc., 263 F.Supp.2d 796, 838 (D.N.J. 2003)) (internal quotation marks omitted).
Because courts consider the totality of the circumstances in citizen suits under RCRA, the specific factors previously considered by the Interfaith court are by no means exhaustive, and proof that one or several of those factors cuts against RCRA liability does not necessarily preclude the possibility of RCRA liability or justify summary judgment for the defendant. See, e.g., Bd. of Cnty. Comm'rs v. Brown Grp. Retail, Inc., 768 F.Supp.2d 1092 (D.Colo.2011) (concluding that the involvement of a state environmental agency weighed against finding an imminent and substantial endangerment); Davies v. Nat'l Cooperative Refinery Ass'n, No. 961124, 1996 WL 529208, at *8-9 (D.Kan. July 12, 1996) (concluding that "any imminent risk to the plaintiffs' health has been diminished by plaintiffs' awareness that their water should not be consumed and by the availability of an alternative water supply"). Indeed, a variety of factors — including "the dose (how much), the duration (how long), the route or pathway by which you are exposed (breathing, eating, drinking, or skin contact), the other chemicals to which you are exposed, and your individual characteristics such as age, sex, nutritional status, family traits, lifestyle, and state of health," (Public Health Statement, Polycyclic Aromatic Hydrocarbons (PAHs), Agency for Toxic Substances and Disease Registry (Aug.1995), available at http://www.atsdr.cdc.gov/ToxProfiles/tp69-c1-b.pdf) — will determine the type and severity of harm that contamination may cause to human health or the environment. Therefore, although courts consider the totality of the circumstances when evaluating a RCRA claim, evidence regarding the likelihood and degree of human and/or environmental exposure to contamination, along with the risks associated with such exposure, is most likely to assist courts in making endangerment determinations under RCRA. See id. at 259, 261-62; Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 213-14 (2d Cir.2009).
This Court is not alone in requiring that RCRA plaintiffs present evidence regarding the likelihood and degree of human and/or environmental exposure to alleged contamination. In Cordiano v. Metacon Gun Club, Inc., the plaintiffs alleged that the defendant's operation of a shooting range resulted in discharges of lead that violated RCRA. 575 F.3d at 209. Despite the existence of an expert report stating
Similarly, there is ample judicial precedent for requiring that RCRA plaintiffs present evidence regarding the risks associated with exposure to alleged contamination. In Leese v. Lockheed Martin Corp., for example, the plaintiff sued the defendant under RCRA for allegedly releasing two harmful substances into the environment. See No. 11-5091, 2014 WL 3925510, at *1 (D.N.J.2014). The plaintiffs' evidence that the substances "may present an imminent and substantial endangerment" consisted of (1) a federal regulation deeming the substances at issue to be hazardous waste, (2) the fact that the substances were present on plaintiffs' properties, (3) a description of the substances, including background exposure levels, reference concentrations, and "health hazard information" regarding its effects, (4) an expert's opinions about the possible health effects of the substances,
To determine whether the situation at College Arms may present a substantial and imminent endangerment to health or the environment, the Court will (1) consider the evidence of pathways by which humans or the environment may be exposed to the No. 6 oil from the Ursinus USTs, (2) consider the evidence of the threatened harm that may result from exposure to the No. 6 oil from the Ursinus USTs, (3) determine whether the evidence of exposure pathways and risks associated with No. 6 oil satisfy the requirements for liability under RCRA; and (4) articulate the proper standard for determining whether there may be an imminent and substantial endangerment to the environment "in and of itself."
To survive summary judgment, Tri-Realty must present non-speculative evidence of a potential exposure pathway at College Arms that may present an imminent and substantial endangerment to health or the environment. Because different exposure pathways exist for humans as opposed to
With respect to human exposure pathways, it is undisputed that there is no evidence that humans drink any of the allegedly contaminated water in Bum Hollow or eat any of the animals or plants that live or grow in Bum Hollow. Rather, Tri-Realty has presented three types of evidence relating to potential human exposure: (1) evidence that people are present in Bum Hollow,
The fact that people spend time in Bum Hollow is practically beyond dispute. In numerous affidavits, various employees of the DiLucia Management Corporation and other witnesses claim to have seen people, including teenagers and college students, in Bum Hollow. (See, e.g., Pl.'s Ex. 141 ¶¶ 5-12). Tri-Realty has also presented circumstantial, albeit regrettable, evidence that people spend time in Bum Hollow, such as an empty Gatorade bottle and other trash. (See Pl.'s Ex. 142). In addition, the fact that a nature trail passes through Bum Hollow and that two residential complexes exist in close proximity to Bum Hollow constitutes circumstantial evidence that people likely do spend time in Bum Hollow. (See Pl.'s Ex. 80 at 7; Pl.'s Ex. 142). From this evidence, a reasonable factfinder may infer that there is some risk that people may be exposed to oil and oil-contaminated water on the surface of Bum Hollow.
At the same time, Tri-Realty asks the Court to draw two impermissibly attenuated inferences from this evidence. First, Tri-Realty claims that there is substantial evidence that children are likely to be exposed to oil and oil-contaminated water in Bum Hollow, but much of the evidence about the likelihood of such exposures is speculative. For example, Dr. Dalbey testified that "there is a certain possibility" of children playing in Bum Hollow coming into contact with the Impoundment. (See id. 69:8-17 ("And I would think that they would get down into the area and it would be easy for them to get into the impoundment.")). Similarly, Mr. Marshall testified
Second, the Court cannot infer from the evidence in the record that there is a serious risk of extended or repeated human exposures to oil or oil-contaminated water in Bum Hollow. The fact that people spend time in and live near Bum Hollow demonstrates only that there is a periodic human presence in Bum Hollow. It does not demonstrate that the same individuals regularly spend time in Bum Hollow or that those individuals engage in activities in Bum Hollow that might lead to repeated exposures to oil or oil-contaminated water. From the evidence in the record, the only reasonable inference that a factfinder may draw is that there is a risk of acute, intermittent exposures to oil or oil-contaminated water.
Nevertheless, the Court finds that if Tri-Realty proves that there is a serious risk that the oil at Bum Hollow will spread and pond on the surface of a nearby residential complex such as College Arms, then there may be sufficient evidence to establish a serious risk of extended or repeated exposures to oil or oil-contaminated water. Tri-Realty has presented evidence that oil is ponding on the surface at College Arms and that oil has moved and will continue to move beyond the Clubhouse. (See Pl.'s Ex. 97 at 1, 7; Pl.'s Ex. 98 at 7 & fig. 1; but see Pl.'s Ex. 114 at 19:13-22:14). Tri-Realty's expert opined that underground oil is spreading across College Arms and threatens to surface at locations in Bum Hollow, as well as inside different buildings at College Arms. (See Pl.'s Ex. 46 at 10; Pl.'s Ex. 97 at 10 & fig. 5; Pl.'s Ex. 98 fig. 1; but see Pl.'s Ex. 97 at 10). Although Ursinus's expert reached the opposite conclusion, drawing all reasonable inferences in favor of Tri-Realty, the Court finds that Tri-Realty may have presented sufficient evidence to demonstrate complete exposure pathways not just for acute, intermittent exposures, but also for prolonged, repeated exposures. For example, if the Court credits Tri-Realty's expert, it could find that there is a serious risk of repeated exposures, either through dermal exposures or inhalation, if oil expresses in or around one of the buildings at College Arms.
In response to the above-mentioned evidence, Ursinus relies on the Kleinfelder Report, in which Ursinus's expert concluded that there is no pathway for human exposure to oil. Ursinus argues that Tri-Realty's failure to introduce into evidence an expert report in response to the Kleinfelder Report means that Tri-Realty's RCRA claim must fail. However, the Court finds that Tri-Realty's evidence is sufficient to establish that the human presence in Bum Hollow may result in acute human exposures to oil, and that the spread of oil may result in prolonged human exposures to oil. The Kleinfelder Report concluded that the oily material at College Arms will not present an imminent and substantial endangerment to human health due to the magnitude and frequency of potential exposures to human receptors. (See Def.'s RCRA Ex. 20 at 1). To reach this conclusion, the Kleinfelder Report considered numerous exposure points — including the buildings at College Arms, the Clubhouse drain and sump pump system, the Impoundment, the Drainage Swale, the Hillside Pipe, Bum Hollow Run, the Detention Basin, and the Perkiomen Creek — and
With respect to animal and plant pathways for exposure, a reasonable factfinder could conclude that there is a serious risk that complete pathways may exist for both acute and prolonged exposures. Tri-Realty has presented several pieces of evidence suggesting that animals can and do encounter oil and oil-contaminated water in Bum Hollow. (See, e.g., Pl.'s Ex. 80 at 5 (reporting sightings of salamanders and crayfish in Bum Hollow Run); Pl.'s Ex. 121 at 43:4-16 (reporting sightings of "frogs in the [I]mpoundment" and salamanders "underneath absorbent pads" near the Impoundment); id. at 51:7-52:8 (reporting sightings of people walking their dogs along Bum Hollow Road, and deer and squirrels near Bum Hollow); Pl.'s Ex. 141 ¶¶ 5-12 (reporting sightings of teenagers, college students, dogs, wild turkeys, ducks, deer, squirrels, skunks, raccoons, rabbits, and feral cats in Bum Hollow); Pl.'s Ex. 139 ¶¶ 5-6 (reporting sightings of red foxes and opossums in Bum Hollow); Pl.'s Ex. 142 at Exs. F, G, H (appearing to show a frog, a salamander, and worms in oil-contaminated water and soil)). Tri-Realty has also presented evidence suggesting that various plants in Bum Hollow encounter oil and oil-contaminated water. (See, e.g., Pl.'s Ex. 80 at 55-56 (appearing to show oil and oil-contaminated water outside the Impoundment and in close proximity to plants). Although Tri-Realty's evidence is virtually entirely anecdotal, the Court may infer from it that the animals and plants in Bum Hollow are at risk of encountering oil and oil-contaminated water on a routine basis.
The inquiry does not stop there, however. To survive summary judgment, Tri-Realty must also present evidence of the degree of exposure that "may present an
Tri-Realty's evidence regarding the risks associated with exposure to the alleged contamination at College Arms consists of (1) Dr. Dalbey's expert report finding samples from College Arms to be carcinogenic and mutagenic, (2) Dr. Dalbey's post-discovery affidavit, and (3) numerous Material Safety Data Sheets for No. 6 oil.
Similarly, Dr. Dalbey's affidavit contains no facts from which a reasonable factfinder could conclude that infrequent exposure to No. 6 oil may result in severe adverse effects in humans, animals, or plants. The statements in Dr. Dalbey's affidavit are either conclusory or insufficient. For example, Dr. Dalbey avers that an "imminent and substantial endangerment to humans, animals and the environment in Bum Hollow exists," (Pl.'s Ex. 144 ¶ 5), but he does not state the particular facts that lead him to reach that conclusion. Similarly, Dr. Dalbey's assertion that "one has to question whether the general public should be exposed to a material" like No. 6 oil is hardly sufficient grounds for denying summary judgment. (Id. ¶ 10). Dr. Dalbey also avers that "any estimate of possible effects following limited dermal exposures would need to compensate for exposures of children and also the possibility that exposures to other agents might exacerbate such effects." (Id. ¶ 9). However, Dr. Dalbey himself does not provide any estimate that specifically accounts for exposure to children
In contrast, the MSDSs for No. 6 oil attached to Dr. Dalbey's affidavit could permit a reasonable factfinder to conclude that intermittent contact with No. 6 oil poses a potentially serious risk to humans and animals.
Viewing the evidence in the record in the light most favorable to Tri-Realty, as the Court is obligated to do at this stage of the litigation, the Court finds that disputed issues of material fact preclude the entry of summary judgment with respect to Tri-Realty's RCRA claim based on any alleged endangerment to humans and/or animals. In particular, the parties specifically dispute (1) the danger posed to humans and animals by intermittent contact with No. 6 fuel oil, and (2) the likelihood of a complete pathway for prolonged human exposures to No. 6 fuel oil. However, the Court will grant summary judgment in favor of Ursinus with respect to Tri-Realty's RCRA claim based on any alleged endangerment to plants at College Arms.
Tri-Realty has presented evidence demonstrating that humans and animals may suffer some apparently mild adverse effects due to acute dermal exposures to No. 6 oil. But in the Third Circuit, an endangerment is "substantial" if "there is some reasonable cause for concern that someone or something may be exposed to a risk of harm ... if remedial action is not taken." Interfaith, 399 F.3d at 259 (quoting United States v. Union Corp., 259 F.Supp.2d 356, 399-400 (E.D.Pa.2003)). There is nothing in the record to indicate that intermittent contact with No. 6 oil will only result in insubstantial skin irritation, and the Court must draw all reasonable inferences in favor of Tri-Realty. Thus, at this stage of the litigation, the Court will not assume that the risk of skin irritation from oil at College Arms is not potentially serious enough to meet the low bar established by precedent, so the risk of skin irritation may, under appropriate circumstances, pose a sufficiently serious danger to result in RCRA liability. Although the Kleinfelder Report states that No. 6 fuel
Tri-Realty has also presented evidence suggesting that animals in Bum Hollow may be subject to prolonged exposure to No. 6 oil, and that such prolonged exposure may result in legally "serious" risks of harm. See supra Part III.B.2.a.ii. There is evidence that that the oil at College Arms is mutagenic and carcinogenic, and that living populations are exposed to oil constituents when animals like frogs and salamanders gain access to the Impoundment. Viewing those facts together, there is sufficient evidence from which a reasonable factfinder may conclude that an imminent and substantial endangerment to living populations in the environment may exist. See Prisco v. State of New York, 902 F.Supp. 374, 395 (S.D.N.Y.1995). Although Tri-Realty has presented no evidence of any animals dying or being sick as a result of the oil at College Arms, Tri-Realty has one study finding that the oil constituents present at College Arms are toxic and anecdotal evidence about the amount of exposure that animals may have to those constituents. Drawing all reasonable inferences in favor of Tri-Realty, that evidence is just enough to survive summary judgment because it suggests that animals are present near mutagenic and carcinogenic oil, that their exposure to oil may be continuous and prolonged, and that adverse effects may result.
In contrast, the evidence suggesting that humans might face prolonged exposure to No. 6 oil is extremely limited. As explained above, the only evidence to that effect is the opinion of Tri-Realty's expert that No. 6 oil from the Ursinus USTs is moving across College Arms, threatening to surface in places frequented by College Arms residents. See supra Part III. B.2.a.i.
There is no evidence in the record to suggest that circumstances at College Arms may present a substantial endangerment to human health in any other way. In other words, apart from these two potential pathways of exposure, there is no evidence to substantiate Tri-Realty's RCRA claim with respect to human health. Thus, at trial, Tri-Realty will not be permitted to revisit the issue of whether there is a risk of acute exposure via ingestion or a risk of prolonged exposure from human presence near the Impoundment or otherwise in Bum Hollow. Rather, the trial with respect to the endangerment to human health will be restricted to the two theories of liability described above, namely the likelihood and seriousness of any harm that may result from isolated dermal exposures to oil and oil-contaminated water, and the likelihood and seriousness of completed pathways for prolonged dermal and respiratory exposures to humans based on the threat that oil might surface at new locations, including within additional buildings at College Arms. Apart from those two theories of liability, the record in this case suffers from the same deficiencies with respect to human health as the records in Leese and Cordiano, and no reasonable factfinder could conclude that a substantial endangerment to human health may exist at College Arms because there is insufficient evidence connecting the danger posed by the levels of contamination to any imminent pathways for human exposure.
Similarly, the Court will grant summary judgment with respect to any claims that Ursinus is liable under RCRA for an imminent and substantial endangerment to plants at College Arms. As noted above, there is no evidence in the record of any plants suffering or dying as a result of the oil at College Arms, and there is no evidence — factual or opinion — explaining how the level of contamination at College Arms constitutes an imminent and substantial endangerment to the plants at College Arms. The expert opinions offered by Tri-Realty address only the endangerment posed to humans and animals, so a reasonable factfinder would have to speculate in order to determine the danger posed by oil to the plants at College Arms. Claims may not survive summary judgment based on speculation. See, e.g., Lexington Ins. Co. v. W. Pennsylvania Hosp., 423 F.3d 318, 333 (3d Cir.2005) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." (quoting Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir.1995)).
The Court gives all due deference to the word "may" in the statute, but Tri-Realty relies too much on the notion that an endangerment to human health need not actually exist for there to be a finding of RCRA liability. The word "may" must be assessed at this stage of the litigation, and at summary judgment, the issue is whether the movant is entitled to judgment as a matter of law based on the undisputed material facts of record. See Fed R. Civ. P. 56. The movant is permitted to point to the absence of evidence to explain that the Plaintiff cannot meet its burden given the evidence in the record. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. That is the case here. Just like the plaintiffs in Leese and Cordiano, Tri-Realty has introduced some evidence that No. 6 oil can be toxic and that it is present in some form at College Arms. However, except for a few narrow theories of liability, Tri-Realty has failed to connect the necessary dots for its claim to survive summary judgment.
Under Interfaith, an imminent and substantial endangerment to the environment may give rise to RCRA liability even in the absence of a threatened living population. See 399 F.3d at 263; see also supra Part III.B.2. In the words of our Court of Appeals, § 6972(a)(1)(B) "imposes liability for endangerments to the environment, including water in and of itself." 399 F.3d at 263 (emphasis added). Thus, in Interfaith, assuming arguendo that there was no human endangerment, the court observed that the defendant "concede[d] the groundwater at the Site [wa]s in `danger' because it [wa]s so highly contaminated by hexavalent chromium," and "multiple experts in the areas of human health and/or ecological risk opined as to the cumulative facts establishing the substantialness of the endangerments." Id. And at least one other court of appeals embraced the Interfaith court's conclusion that endangerments to the environment may exist even in the absence of a living "population" of humans, animals, or plants. See Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1021 (10th Cir.2007).
The standard for finding that there may be an imminent and substantial endangerment to the environment "in and of itself" (i.e., in the absence of a living population) is underdeveloped. As a result, Tri-Realty's claim that the environment at College Arms "in and of itself" may be imminently and substantially endangered leads to a difficult and, as of yet undiscussed, question: what does it mean to endanger something that is not alive? To "endanger" means to "put (someone or something) at risk or in danger." The New Oxford American Dictionary 557 (2d ed.2005). "Danger" is "the possibility of suffering harm or injury." Id. at 428. In reference to a living population, the notion of an imminent and substantial endangerment is rather straightforward: if there is a serious risk that the living population may become ill or die, the living population may
Courts in the Third Circuit applying Interfaith have largely ignored the question of what may constitute an endangerment to the environment in and of itself. For example, in Leese, the district court granted summary judgment in favor of defendants despite "the recorded presence of TCE and PCE on Plaintiffs' properties" because "[p]roof of the mere detection of some measurable amount of hazardous materials on a property is not enough to maintain a RCRA claim." 2014 WL 3925510, at *11. But the district court did not explain why the TCE and PCE detected on the plaintiff's property did not mean that the environment itself was in danger. Indeed, the Leese court is not alone in finding, without reference to the "in and of itself" language from Interfaith, that hazardous materials in the environment may not present an imminent and substantial endangerment to the environment. See Two Rivers Terminal, L.P. v. Chevron USA, Inc., 96 F.Supp.2d 432 (M.D.Pa. 2000); City of Fresno v. United States, 709 F.Supp.2d 934, 943 (E.D.Cal.2010).
The Court can interpret the Third Circuit Court of Appeals' statement in Interfaith regarding the endangerment of water "in and of itself" in one of two ways. Under the stricter interpretation, an endangerment to the environment may exist whenever there is a risk that the environment will be altered negatively
The Court declines to adopt this stricter interpretation of Interfaith for several reasons. First, RCRA's text does not support finding a violation for trivial discharges. For example, RCRA liability exists when waste "may present an imminent and substantial endangerment" to the environment. 42 U.S.C. § 6972(a)(1)(B). To hold that any amount of pollution that impairs the purity or natural state of some element of the environment endangers the environment would be to render the word "substantial" superfluous, as practically any addition of a pollutant into the environment would give rise to liability. Second,
Instead, the Court adopts a more functional interpretation of Interfaith and concludes that an imminent and substantial endangerment to the environment in and of itself may exist if contamination threatens the ability of a non-living element of the environment to serve some potential function in the local ecosystem. The Court's analysis proceeds in two stages. First, the Court considers what potential purpose the non-living element of the environment could serve in the local ecosystem. Importantly, because endangerments may exist in the absence of a living population, the Court need not find that the non-living element of the environment is actually serving its potential purpose in the local ecosystem. Second, the Court considers whether the alleged contamination impairs the ability of that non-living element of the environment to serve that potential purpose in the local ecosystem. Returning to the example of the salt added to the freshwater lake, under the functional interpretation of Interfaith, an imminent and substantial endangerment to the lake in and of itself may exist if there is some potential purpose that freshwater might serve in the local ecosystem that the freshwater from the lake can no longer serve due to the additional salt. For example, if the original freshwater from the lake could potentially support the growth of certain plants in the local ecosystem, then the addition of salt to the lake may present an imminent and substantial endangerment to the lake in and of itself if the additional salt impairs the ability of the lake's freshwater to support the growth of those plants.
As another useful example of the functional interpretation of Interfaith, consider a segment of soil in a clearing in a forest. Assume that no animals live on the soil, and, although the soil is capable of supporting the growth of plants, no plants
The Court adopts the functional interpretation of Interfaith for several reasons. First, in the same way that the stricter interpretation of Interfaith was inconsistent with the RCRA statute, the functional interpretation of Interfaith is consistent with the language of the RCRA statute and does not render superfluous an essential word of the statute. Second, the functional interpretation of Interfaith is consistent with the Supreme Court's characterization of the RCRA statute in Meghrig, in that it limits RCRA's applicability to non-trivial environmental problems. Finally, the functional interpretation of Interfaith is more consistent with RCRA's purposes than is the stricter interpretation of Interfaith. Although strict environmental preservation is certainly an objective consistent with RCRA, Congress intended RCRA to be a practical solution to serious environmental problems, not a statute that authorizes citizen suits for trivial instances of pollution. Thus, RCRA's purpose is "to promote the protection of health and the environment," not to guarantee the protection of health and the environment. Id. § 6902(a). RCRA does not make it the policy of the United States that the generation of hazardous waste be prohibited, but rather that, "wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible." Id. § 6902(b) (emphasis added). RCRA does not make it the policy of the United States that waste be handled so as to eliminate altogether the threat of harm to the environment, but rather that waste be handled "so as to minimize the present and future threat to human health and the environment." Id. (emphasis added).
Under the relevant legal standard as articulated above, the Court finds that Tri-Realty has introduced sufficient evidence to survive summary judgment on the issue of an endangerment to the environment in and of itself. For example, there is evidence that the First and Second Seeps would be freshwater springs in the absence of any pollutant, but both are presently contaminated with No. 6 oil. (Pl.'s RCRA Br. 36). A sample of the water discharging from the First Seep into the Impoundment, and from there into the Spillway, contained 2.0 ppb of chrysene and the Pennsylvania health standard for dissolved chrysene in surface water is.0038 ppb. Thus, before the spill, water in Bum Hollow could potentially be used for safe drinking; after the spill, water in Bum Hollow may be incapable of use for safe drinking. So even though there is no evidence that the water is actually used for drinking, there is evidence to suggest that the water in Bum Hollow is endangered in and of itself.
Ursinus's arguments to the contrary are unpersuasive. First, the fact that the water at College Arms does not support aquatic life and is not used for drinking by humans is not enough to justify summary judgment because the Interfaith court specifically rejected the notion that a living population was required to find RCRA liability.
The CWA prohibits "the discharge of any pollutant by any person" unless the discharge complies with various statutory requirements and occurs pursuant to the terms of a valid National Pollutant Discharge Elimination System ("NPDES") permit. See 33 U.S.C. §§ 1311, 1342. The CWA defines "discharge of any pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). To establish liability under the CWA, Tri-Realty must prove that Ursinus "(1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from a point source (5) without [an NPDES] permit." Reynolds v. Rick's Mushroom Serv., Inc., 246 F.Supp.2d 449, 454 (E.D.Pa.2003). The parties agree that No. 6 oil is a pollutant and that Ursinus lacks a permit to discharge No. 6 oil, but the other three elements of CWA liability are matters of dispute. The Court will address each of these elements in turn, namely: (1) the existence of a point source; (2) the existence of navigable waters; and (3) the addition of a pollutant to navigable waters from a point source.
The CWA defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). "Congress intended a broad definition of `point source:' `[t]he concept of a point source was designed to further [the CWA's regulatory] scheme by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the United States." W. Indies Transp., Inc., 127 F.3d at 309 (quoting United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.1979)). At the same time, there is an outer limit to what may constitute a "point source." For example, "[a] discharge of pollutants into navigable waters occurring only through migration of groundwater and uncontrolled soil runoff represents `nonpoint source' pollution" and is outside the scope of the CWA. (Mem. Op. 13, Nov. 21, 2013, ECF No. 48).
Ursinus moves for summary judgment and argues that, as a matter of law, there are no point sources discharging pollution in this case. Tri-Realty responds that there are four point sources: (a) the Impoundment, (b) the Spillway, (c) the Hillside Pipe, and (d) the Drainage Swale. For the reasons that follow, the Court finds that Tri-Realty has presented sufficient evidence from which a reasonable factfinder could conclude that one or more of those features may be point sources.
The evidence in the record may be sufficient to prove that the Impoundment and/or the Spillway are point sources under the CWA. The Impoundment and the Spillway are man-made conveyances that collect and direct the mixture of oil and groundwater expressing at the First Seep. Ursinus built the Impoundment to capture and contain pollutants emerging from the First Seep and to prevent oil and oil-contaminated water from reaching the Drainage Swale and Bum Hollow Run. In response to the risk that oil and oil-contaminated would overflow from the Impoundment and escape uncontrolled into the environment, Ursinus built the Spillway. The Spillway is intended to control and limit the escape of oil and oil-contaminated water from the Impoundment by capturing pollutants and releasing non-pollutant fluids into the Lower Drainage Swale. To the extent those conveyances fail and pollution discharges from them into navigable waters, they may be point sources under the CWA. See, e.g., Shellfish Growers Ass'n v. Holly Ridge Associates, LLC., 278 F.Supp.2d 654, 679-80 (E.D.N.C.2003) (finding several dams and sediment traps, "constructed in an effort to reduce the discharge of pollutants," to be point sources); Reynolds, 246 F.Supp.2d at 457 (finding that a system "designed to prevent the discharge of pollutants" may be a "point source" if it breaks down and results in a discharge of pollutants into navigable waters); Earth Sciences, 599 F.2d at 374 (finding that a "closed circulating system" may be a point source when it fails and liquid escapes).
Although oil reaches the Impoundment (and ultimately the Spillway) through diffuse groundwater migration, which the Court has held to be nonpoint source pollution, the Impoundment and the Spillway may nevertheless be point sources because they are discernible conveyances from which pollutants are or may be discharged. Ursinus interprets the Court's Memorandum Opinion denying Ursinus's motion to
Ursinus argues that mechanisms designed to remediate pollution can only be point sources when they collect "channeled surface pollutants and/or contaminated stormwater runoff," (Def.'s CWA Reply Br. 3), and that it was clearly not the purpose of the CWA to expose a party remediating previously contaminated groundwater to liability. The Court disagrees. First, the Court sees no material difference between channeled surface pollutants, contaminated stormwater runoff, and the oil and oil-water mixture expressing into the Impoundment and the Spillway from the First Seep. Although Tri-Realty relies on cases involving mechanisms that collected channeled surface pollutants and/or contaminated stormwater runoff, Ursinus gives no principled reason why the holdings of those cases should be limited to those types of pollutants or should not apply with equal force to mechanisms intended to collect and remediate pollutants emerging from groundwater. Indeed, assuming arguendo that remedial mechanisms may be point sources only if they collect channeled surface pollutants and/or contaminated stormwater runoff, the Impoundment and the Spillway could still qualify as point sources: although oil and oil-contaminated water reach the First Seep through diffuse groundwater migration, the Impoundment and the Spillway channel those pollutants only as they express on the surface of Bum Hollow. As a result, the Court rejects Ursinus's distinction without a difference and, in any event, finds that the Impoundment and the Spillway could be point sources even under Ursinus's theory.
Second, although the Court's holding suggests that a party who takes action to remediate previously contaminated groundwater in the vicinity of navigable waters may create a potential point source that did not previously exist, Ursinus's assertion — without any citation — that this was clearly not the purpose or intention of the CWA cannot be correct. Under Ursinus's approach, parties that remediate previously contaminated groundwater would be immune from CWA liability for no discernible reason, even if their actions perhaps exacerbate the problem by introducing contamination from other areas of the environment to previously uncontaminated "navigable waters." The Impoundment
Tri-Realty has also presented sufficient evidence from which a reasonable factfinder could conclude that the Hillside Pipe and the Drainage Swale are point sources. The Hillside Pipe and the Drainage Swale are discernible, confined, and discrete conveyances that the evidence suggests might carry oil and oil-contaminated water to navigable waters. Aside from the fact that the CWA defines the term "point source" to include any "pipe," "channel," and "ditch" — and the record evidence shows that many have used those and similar words to describe the Hillside Pipe and the Drainage Swale, (see, e.g., Pl.'s Ex. 80 at 6-7 (referring to the Drainage Swale as a "channel")) — "[t]he essence of a point source discharge is that it be from a `discernible, confined, and discrete conveyance.'" O'Leary v. Moyer's Landfill, Inc., 523 F.Supp. 642, 655 (E.D.Pa.1981) (quoting 33 U.S.C. § 1362(14)); See PennEnvironment v. PPG Indus., Inc., 964 F.Supp.2d 429, 454-55 (W.D.Pa.2013). Indeed, as the Court explained in its Memorandum Opinion addressing Ursinus's motion to dismiss, "Accepting as true Tri-Realty's allegations that pollutants have reached Bum Hollow Run and the navigable waters of Perkiomen Creek via stormwater runoff collected and channeled through the `Stormwater Pipe' and the `Drainageway,' the Court must accept that Tri-Realty has adequately alleged the addition of a pollutant to `navigable waters' from a `point source' and can avoid dismissal of that claim at this juncture." (Mem. Op. 13-14, Nov. 21, 2013, ECF No. 48). Now, with respect to summary judgment, there is some evidence in the record to substantiate those allegations. (See, e.g., Pl.'s Ex. 33 (appearing to show oil-contaminated groundwater entering the Hillside Pipe); Pl.'s Ex. 97 at 13). Consequently, the Hillside Pipe and the Drainage Swale may be point sources under the CWA and summary judgment on that issue is inappropriate.
Ursinus argues that the Hillside Pipe and the Drainage Swale cannot be point sources because Tri-Realty has no evidence that pollutants were directly channeled into them. According to Ursinus, "a man-made or a natural channel ... is only a point source when it conveys pollutants which are directly channeled into it." (Ursinus CWA Reply Br. 5). But Ursinus ignores the fact that nonpoint source pollution can become point source pollution once it is "collected or channeled by man." (Mem. Op. 14, Nov. 21, 2013, ECF No. 48; see id. ("A discharge of pollutants into navigable waters occurring only through migration of groundwater and uncontrolled soil runoff represents `nonpoint source' pollution." (emphasis added)). In other words, a discharge of pollutants into navigable waters occurring not only through migration of groundwater or uncontrolled soil runoff, but through
The cases Ursinus cites in support of its argument are not persuasive. In Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991), leachate escaped from a landfill and flowed "into Beaver Pond and thence through [a] culvert under [a] railroad embankment and into" a wetland. Id. at 1347. Even though the pollutant entered the wetland only after passing through Beaver Pond and a culvert, the Second Circuit Court of Appeals found that the culvert was a point source because it conveyed pollutants from Beaver Pond into the wetland. Id. at 1355. Just as the culvert was capable of being a point source because pollution from Beaver Pond migrated through it into the wetland, so too are the Hillside Pipe and Drainage Swale capable of being point sources because polluted groundwater allegedly migrates through them into the allegedly navigable waters of Bum Hollow Run. Similarly, in Aiello v. Town of Brookhaven, 136 F.Supp.2d 81 (E.D.N.Y.2001), plaintiffs alleged that a landfill contaminated a nearby creek and pond. Id. at 84. The district court found that culverts, located on the north and south ends of the pond, were point sources under Dague because water flowed through them into the pond. Id. at 118-19. In this case, the Hillside Pipe and the Drainage Swale are likewise point sources because pollutants allegedly flow through them into navigable waters. Neither Dague nor Aiello persuade this Court to limit the definition of "point source" to conveyances into which pollutants are directly channeled.
The CWA defines the term "navigable waters" to mean "the waters of the United States, including the territorial seas." Id. § 1362(7). Regulations adopted by the U.S. Army Corps of Engineers pursuant to the CWA interpret the phrase "the waters of the United States" broadly, so that they include not only those waters which are navigable-in-fact, but also:
33 C.F.R. § 328.3(a). In this case, it is undisputed that the Perkiomen Creek is navigable-in-fact and thus one of the waters of the United States. Therefore, under the Corps' regulation, tributaries of the Perkiomen Creek and wetlands "adjacent to" the Perkiomen Creek or its tributaries are among "the waters of the United States" subject to the CWA.
Ursinus argues that the undisputed evidence in the record demonstrates that there are no navigable waters on the College Arms Property, but Tri-Realty claims that the following three physical features of Bum Hollow qualify as navigable waters for the following reasons: (1) Bum Hollow Run, because it is both a tributary of the Perkiomen Creek and a water of the United States in its own right; (2) the Lower Drainage Swale, because it is both a tributary of Bum Hollow Run and a water of the United States in its own right; and (3) the portion of Bum Hollow in which the Impoundment is located, because it is a wetland subject to the CWA. For the reasons that follow, the Court finds that neither Bum Hollow Run nor the Lower Drainage Swale is among the waters of the United States in its own right, but that there are disputed issues of material fact regarding whether Bum Hollow Run and the Lower Drainage Swale are tributaries of the Perkiomen Creek. Therefore, the Court cannot grant summary judgment as to those alleged navigable waters. The Court will not address whether the alleged wetlands in Bum Hollow are subject to the CWA because Tri-Realty's CWA claim based on the alleged wetlands fails for other reasons discussed later. See infra Part III.C.3.
Both Tri-Realty and Ursinus rely on Rapanos v. United States, 547 U.S. 715,
Id. at 739, 126 S.Ct. 2208 (internal citations omitted). The plurality was careful to note that usually dry channels are never "streams," id., but "streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought" and "seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months," may be "relatively permanent" and qualify as one of "the waters of the United States." Id. at 733 n. 5, 126 S.Ct. 2208 (emphasis in original). In contrast, "intermittent and ephemeral streams," meaning "streams whose flow is coming and going at intervals ... broken, fitful, or existing only, or no longer than, a day; diurnal ... short-lived," are not covered by the CWA. Id. (internal quotation marks and citations omitted).
In a concurrence, Justice Kennedy concluded that "absent a significant nexus" between a given geographical feature and a body of water that is navigable in fact, "jurisdiction under the Act is lacking." Id. at 767, 126 S.Ct. 2208. According to Justice Kennedy, a "significant nexus" is properly understood in light of the purpose of the CWA, which is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). As a result, bodies of water possess the requisite nexus — and thus comes within the definition of "navigable waters" — if they "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term `navigable waters.'" Id. at 780, 126 S.Ct. 2208.
In the Third Circuit, geographical features may qualify as waters of the United States only if they satisfy either the plurality's standard or Justice Kennedy's
The parties dispute whether Bum Hollow Run or the Lower Drainage Swale is among the waters of the United States in its own right by virtue of satisfying or not satisfying at least one of the applicable legal standards from Rapanos. However, the Court finds that both parties misinterpret that Supreme Court decision and neither Bum Hollow Run nor the Lower Drainage Swale is among the waters of the United States in its own right. A geographical feature is a water of the United States "in its own right" if and only if it satisfies one of the standards from the Corps' regulation defining the phrase "the waters of the United States." In Rapanos, the plurality and Justice Kennedy decided only whether the Corps' regulation defining the phrase "the waters of the United States" was impermissibly broad. They did not create an alternative test, separate and apart from the Corps' regulation, for identifying jurisdictional waters. For example, the plurality explained that "navigable waters" may not be intermittent or ephemeral, and Justice Kennedy explained that "navigable waters" must have a substantial nexus with a body of water that is navigable in fact or reasonably capable of being made so. Those conditions are necessary, but not sufficient, to find that a given body of water qualifies as "navigable waters" subject to the CWA. Indeed, Rapanos uses the phrase "waters of the United States in their own right" only to describe waters that are navigable in fact or reasonably capable of being made navigable in fact. See 547 U.S. at 742, 126 S.Ct. 2208. In other words, the applicable opinions from Rapanos stand for the proposition that, under some circumstances, a geographical feature satisfying the Corps' regulation defining "the waters of the United States" could nevertheless not be "navigable waters" subject to the CWA.
Because the Supreme Court's decision in Rapanos did not establish a legal standard, separate and apart from the Corps' regulation, for identifying "the waters of the United States," whether or not something is among "the waters of the United States" in its own right remains a question decided primarily under the Corps' regulation. The Court is unaware of any decision by any court finding that a geographical feature that satisfies the legal standards articulated by either the plurality or Justice Kennedy in Rapanos is covered by the CWA without satisfying the Corps' regulation. Thus, to be a water of the United States in its own right (i.e., not a tributary feeding a water of the United States in its own right or a wetland adjacent to a water of the United States in its own right), a geographical feature must be navigable in fact, reasonably capable of being made navigable in fact, or satisfy one of the definitions in the Corps' regulation. The mere fact that a geographical feature may satisfy the legal standards articulated by the plurality and Justice Kennedy in Rapanos is not enough, in and of itself, to qualify as a water of the United States under the CWA.
Apart from evidence that Bum Hollow Run and the Lower Drainage Swale are arguably tributaries of the Perkiomen Creek, Tri-Realty has presented no evidence to suggest that Bum Hollow Run or the Lower Drainage Swale meet the
A tributary is "a river or stream flowing into a larger river or lake." The New Oxford American Dictionary 1798 (2d ed.2005). The Corps considers a geographical feature to be a tributary if it feeds into traditional navigable waters (or a tributary thereof) and possesses an "ordinary high water mark." 33 C.F.R. § 328.4(c). An ordinary high-water mark is a "line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." Id. §§ 328.3(e), 328.4(c). A tributary feeding a water of the United States is itself a water of the United States under the CWA, so long as it satisfies one of the standards outlined by the plurality or Justice Kennedy in Rapanos. See supra Part III.C.2.a.
Although much of the evidence is disputed, Tri-Realty has presented sufficient evidence from which a reasonable factfinder could conclude that Bum Hollow Run is a tributary feeding into the Perkiomen Creek. For example, the record shows that dye placed into the visible flow of Bum Hollow Run at College Arms and to the west of Route 29 emerged on the east side of Route 29 at the point where Bum Hollow Run supposedly meets with the Perkiomen Creek.
Ursinus argues that Bum Hollow Run is not a tributary subject to the CWA because it (1) lacks "a surface water connection to the Perkiomen Creek as required by the plurality in Rapanos," (Def.'s CWA Br. 38), and (2) "is intermittent and only the upper reaches of the stream have a relatively permanent flow," id. thus failing the tests articulated in Rapanos. Ursinus is in error. First, assuming that Bum Hollow Run lacks a surface water connection to the Perkiomen Creek
Second, disputed issues of material fact prevent the Court from finding that, as a matter of law, Bum Hollow Run fails to meet either of the legal standards announced in Rapanos. With respect to the Rapanos plurality, whether or not Bum Hollow Run is made up of "relatively permanent waters" is a disputed issue of material fact, as Tri-Realty has presented evidence from which a reasonable factfinder could conclude that it is. Dr. Schmid opined that Bum Hollow Run contains "relatively permanent waters" that, although perhaps seasonal, constitute "navigable waters" under the CWA. (See Pl.'s Ex. 80 at 7, 19-21 ("The stream flow of Bum Hollow Run was judged to be relatively permanent. Although the stream may dry up during the late summer and autumn dry season, as many intermittent headwater streams do in southeastern Pennsylvania, photographs taken by representatives of Tri-Realty Company over the last eighteen months regularly show flowing water.")). Dr. Schmid also noted that
Ursinus also argues that the Lower Drainage Swale is not among "the waters of the United States" because (1) the Lower Drainage Swale is "a function of artificially re-directed stormwater" rather than a "naturally-occurring" stream, (Def.'s CWA Reply Br. 9), and (2) the Lower Drainage Swale's possible effect on water quality in the Perkiomen Creek is "speculative or insubstantial," id. The Court finds that neither argument warrants summary judgment. First, Ursinus cites no cases to support the proposition that geographic features must be "naturally-occurring" in order to qualify as "navigable waters" under the CWA. Indeed, the Supreme Court characterized the relevant issue as whether a given geographic feature may be "described in ordinary parlance as [a] stream," Rapanos, 547 U.S. at 739, 126 S.Ct. 2208 (internal quotation marks omitted), not whether it may be described in ordinary parlance as a "naturally-occurring stream." To the extent Ursinus might rely on the language from Rapanos requiring that waters of the United States be "geographical features," see 547 U.S. at 732-33, 126 S.Ct. 2208, the Court notes that some geographical features are not naturally occurring, yet may qualify as "navigable waters" under the CWA. Indeed, numerous courts have concluded that artificial waterways may be jurisdictional waters under the CWA. See, e.g., United States v. Vierstra, 803 F.Supp.2d 1166, 1168 (D.Idaho 2011), aff'd 492 Fed.Appx. 738 (9th Cir.2012) (finding that a canal may constitute "waters of the United States" by virtue of being a tributary connected to a navigable waterway); ONRC Action v. U.S. Bureau of Reclamation, No. 97-3090, 2012 WL 3526833, at *23 (D.Or. Jan. 17, 2012) (same). Moreover, even if the distinction between natural and artificial geographic features were legally relevant, whether the Lower Drainage Swale is "naturally-occurring" or artificial appears to be a disputed issue of material fact. (Compare Pl.'s Ex. 58 at 34-35 (noting that the Drainage Swale is "naturally-occurring"), with Def.'s CWA Ex. 17 at 9-10 (noting that the Drainage Swale would not exist but for the man-made Stormwater Pipe)).
Second, a reasonable factfinder may find that a substantial nexus exists between the Lower Drainage Swale and Bum Hollow Run (and, by extension, the Perkiomen Creek) based on Dr. Schmid's expert report. Dr. Schmid explains that oil and oil-contaminated water is discharging into the Lower Drainage Swale from the Hillside Pipe and/or the Spillway, and cites evidence suggesting that components of No. 6 fuel oil have reached the Lower Drainage Swale and Bum Hollow Run. (See Pl.'s Ex. 57 at 176:4-12; Pl.'s Ex. 80 at 10, 56; Pl.'s Ex. 97 at 4, 7, 11-13; Def.'s RCRA Ex. 61 at 65:1-2). This evidence suggests that pollution entering the Lower Drainage Swale is capable of damaging Bum Hollow Run and/or the Perkiomen Creek,
Because Ursinus has not demonstrated the undisputed material facts favor summary judgment on the grounds that there are no "navigable waters" on the College Arms Property, the Court cannot grant summary judgment on that issue. Rather, disputed issues of material fact regarding the geographic features of Bum Hollow remain, particularly with respect to the physical characteristics of Bum Hollow Run and the Lower Drainage Swale. Those issues must be resolved at trial.
The CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). Although proof that a pollutant is being released into or is present in navigable waters is extremely persuasive evidence of a "discharge of a pollutant," see, e.g., United States v. W. Indies Transport, Inc., 127 F.3d 299, 307-08 (3d Cir.1997), a plaintiff may survive summary judgment even without such proof. Indeed, there is substantial case law establishing that proof of a release of a pollutant that reaches a conveyance, combined with proof that the conveyance leads to navigable waters, may be sufficient to prove a "discharge of a pollutant" under the CWA. See, e.g., Rapanos, 547 U.S. at 743, 126 S.Ct. 2208 (noting that "lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates" the CWA (emphasis in original)); Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149-50 (10th Cir.2005) (holding that the presence of pollutants in water samples from either end of a 2.5 mile pipe could support the finding of a discharge of a pollutant). For example, in United States v. Velsicol Chemical Corp., 438 F.Supp. 945 (W.D.Tenn.1976), which was cited favorably in Rapanos, see 547 U.S. at 743, 126 S.Ct. 2208, the defendant released pollutants into a city sewer system that emptied into the navigable waters of the Mississippi River. The district court found that the release constituted a "discharge of a pollutant" because the defendant "[knew] or should have known that the city sewers lead directly into the Mississippi River." Id. at 947. Even though the prosecution presented no evidence of the pollutant actually reaching the Mississippi River, the district court found the record sufficient to support a conviction for violations of the CWA.
Similarly, in Reynolds v. Rick's Mushroom Service, Inc., 246 F.Supp.2d 449 (E.D.Pa.2003), a business that stored and processed waste generated by the mushroom industry constructed an impoundment to hold wastewater and channels to divert the flow of excess wastewater from the impoundment. The plaintiffs, neighboring property owners, alleged that wastewater escaping from the impoundment and the channels constituted discharges of a pollutant in violation of the CWA. To prove a "discharge of a pollutant," the plaintiffs sampled fluids from the channels just above their confluence with navigable waters, and tests performed on those samples revealed the presence of pollutants. The Court concluded that such evidence of pollution in the channels was sufficient to demonstrate the discharge of a pollutant into navigable waters, even though there was no direct evidence of increased pollution levels in the navigable waters themselves. Id. at 454 ("[W]hether a point source discharge creates a net increase in the level of pollution
The Court finds that there is sufficient evidence in the record to create a dispute as to whether Ursinus has discharged a pollutant into the Lower Drainage Swale and/or Bum Hollow Run. Although the dearth of testing performed on Bum Hollow Run is somewhat baffling, but see supra note 11, Tri-Realty has presented evidence from which a reasonable finder of fact might conclude that pollutants attributable to Ursinus have reached specific conveyances that likely carry those pollutants to navigable waters. Just like the plaintiffs in Reynolds, Tri-Realty has presented evidence that pollutants are present in a basin (i.e., the Impoundment) whose excess fluid allegedly empties into the waters of the United States by way of a channel (i.e., the Spillway), and that pollutants are present in the channel as well. Just as the Court found that the facts in Reynolds supported finding liability, so too might a reasonable fact finder conclude that Ursinus is liable under the CWA.
Moreover, Tri-Realty has arguably made a stronger showing than the plaintiffs in Reynolds because it has presented evidence of increased chrysene levels at the Confluence and Tri-Realty's expert attributed those chrysene levels to the No. 6 oil from Ursinus's USTs. Consequently, there is evidence from which a factfinder may infer that pollutants have actually been added to Bum Hollow Run. Although it is undisputed that there are numerous potential sources of chrysene, the elevated levels of chrysene at the Confluence, along with expert testimony identifying No. 6 oil as the source of that chrysene, create at least a dispute as to whether No. 6 oil released from the Ursinus USTs has actually reached navigable waters. Ursinus even admits that there is a "dispute about whether regulated waters are actually contaminated by oily material attributable to Ursinus." (Def.'s CWA Reply Br. 11). And disputes regarding the source of a particular pollutant, traces of which were found in allegedly navigable waters, are sufficient to survive summary judgment. See, e.g., Gache v. Town of Harrison, New York, 813 F.Supp. 1037, 1043 (S.D.N.Y.1993).
Ursinus, relying almost exclusively on George v. Reisdorf Bros., Inc., 696 F.Supp.2d 333 (W.D.N.Y.2010), argues that Tri-Realty has presented no evidence of a "discharge of a pollutant." In George, the owners of a dairy farm sued the owners of a neighboring property, alleging that the neighbors discharged various pollutants into Tonawanda Creek, a water of the United States that runs through the dairy farm. Id. at 335-36. The district court granted summary judgment in favor of the defendants because (1) based on tests of nonjurisdictional waters, the plaintiffs' expert opined only that pollutants may enter groundwater and flow into Tonawanda Creek, and such speculation did not create a triable issue of fact; (2) the presence in defendant's mill yard of a hose discharging water from defendant's grease pit and of a drain grate that runs into Tonawanda Creek did not establish that defendant had discharged a pollutant into Tonawanda Creek; and (3) speculative testimony about the source of a sheen on the surface of Tonawanda Creek did not create a triable issue of fact as to whether defendant had discharged a pollutant in violation of the CWA. Id. at 338-42. Ursinus argues that Tri-Realty's CWA claim suffers from the same deficiencies because (1) Tri-Realty presents only speculative evidence about the cause of sheens, iron staining, and biomasses allegedly observed in navigable waters, and (2) three isolated detections of chrysene in 2010 and 2011, and four tests of the Spillway in 2013, are
But the evidence in the record before the Court is distinguishable from the evidence in the record before the court in George. First, whereas the expert in George speculated that pollutants may enter navigable waters, Mr. Duchaine opined that No. 6 oil attributable to the Ursinus spill will continue to discharge into the Lower Drainage Swale and Bum Hollow Run Bum Hollow Run. (See Def.'s RCRA Ex.60 at 7-10). Second, although the George court did not explain its reason for finding that the presence of a hose and a drain gate were insufficient to establish the discharge of a pollutant into navigable waters, See id. at 340, the alleged pathway for pollutants to reach navigable waters in this case is much more direct and, in some ways, more predictable: pollutants have been detected in the Impoundment and the Spillway, and fluids escaping from the Impoundment and the Spillway can be expected to reach the Lower Drainage Swale and Bum Hollow Run. In light of the case law discussed above, see supra, the reasoning from George is inapposite. Third, even if there is no non-speculative evidence about the cause of sheens, iron staining, and biomasses allegedly observed in Bum Hollow, there is sufficient record evidence to potentially support CWA liability. For example, there is evidence suggesting that Ursinus's oil was detected in numerous monitoring wells on the College Arms Property, was detected in the Spillway, and will continue to discharge into the Lower Drainage Swale and Bum Hollow Run.
Drawing all reasonable inferences in favor of Tri-Realty, as the Court is required to do at this stage of the litigation, whether or not Ursinus discharged a pollutant into navigable waters is a genuinely disputed issue of material fact. A reasonable factfinder might conclude from the record evidence that Ursinus discharged a pollutant into the Lower Drainage Swale and/or Bum Hollow Run in violation of the CWA, so the issue must be resolved at trial.
At the same time, the Court will grant summary judgment in favor of Ursinus with respect to the alleged wetlands because the undisputed evidence in the record shows that there has been no discharge of a pollutant from a point source into the alleged wetlands. It is well established that the spread of pollution within a single body of water does not constitute the "discharge of a pollutant" under the CWA. In Los Angeles County Flood Control District v. NRDC, ___ U.S. ___, 133 S.Ct. 710, 184 L.Ed.2d 547 (2013), the Supreme Court decided that the flow of water out of a concrete channel within a river was not a "discharge of a pollutant" under the CWA because "pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA." 133 S.Ct. at 711 (citing South Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-112, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004)). This is because "no pollutants are `added' to a water body when water is merely transferred between different portions of that water body." Id. at 713. In other words, "the transfer of polluted water between `two parts of the same water body' does not constitute a discharge of pollutants under the CWA." Id. at 713 (quoting Miccosukee Tribe, 541 U.S. at 109-112, 124 S.Ct. 1537).
The essence of Tri-Realty's CWA claim with respect to the alleged wetlands is that pollutants from the alleged wetlands are being discharged back into the alleged wetlands via the Impoundment. As the Court previously explained, the discharge of a pollutant to navigable waters is actionable under the CWA only if it comes
The Court will grant in part and deny in part each of Ursinus's Motions for Summary
On July 22, 2015, Tri-Realty filed a Motion to Supplement the Summary Judgment Record (Docket No. 90). Tri-Realty asked the Court to consider the results of tests performed on Bum Hollow Run from August 2014 to July 2015, and the opinions of Mr. Duchaine based on those results. Tri-Realty contends that the new evidence demonstrates that oil from the Ursinus USTs is routinely present in Bum Hollow Run. The Court will not permit Tri-Realty to continue to supplement the record at this late stage, especially when Ursinus has not had a full opportunity to test the new evidence or the new post-deadline expert opinions offered by Mr. Duchaine. But even if the Court were to grant Tri-Realty's Motion to Supplement the Summary Judgment Record, the new evidence would not change the Court's decision with respect to Ursinus's Motions for Summary Judgment.
