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Tri-Realty Co. v. Ursinus College

United States District Court, Third Circuit

September 19, 2013

TRI-REALTY COMPANY, Plaintiff,
v.
URSINUS COLLEGE, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING MOTION FOR PRELIMINARY MANDATORY INJUNCTION

GENE E.K. PRATTER, United States District Judge

Based upon the following findings of fact and conclusions of law, the Motion for Preliminary Mandatory Injunction is DENIED.

I. The Parties and Procedural History

1. Plaintiff Tri-Realty Company (“Tri-Realty”), a closely held real estate company, is a Pennsylvania limited partnership, and owner of the College Arms apartment complex in Collegeville, Pennsylvania. Tr. I at 25-26.[1]

2. Defendant Ursinus College (“Ursinus”) is a non-profit institution of higher education with its administrative offices at 601 East Main Street, Collegeville, Pennsylvania. Exs. P-17, D-67.

3. On September 16, 2011, Tri-Realty commenced this litigation by filing a complaint against Ursinus. On December 1, 2011, Tri-Realty filed its Amended Complaint [Doc. No. 4]. The upshot of Tri-Realty’s claim is that Ursinus is legally responsible for the alleged actual and/or impending environmental contamination of the Bum Hollow ravine on the Tri-Realty property and the Bum Hollow Run, a stream in the ravine, caused by heating oil that has escaped from Ursinus’s property. Tri-Realty claims entitlement to injunctive relief, together with attorneys’ fees pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. (“RCRA”), because, it claims, the oil presents an imminent and substantial endangerment to human health and to the environment. Specifically, Tri-Realty asks the Court to order Ursinus to “take all actions necessary to investigate, delineate, and remediate the contamination to the College Arms Property caused by [Ursinus’s] acts and omissions regarding the Solid Waste.” Am. Compl. ¶180.

4. The Court has original jurisdiction of this dispute pursuant to 28 U.S.C. § 1331, 33 U.S.C. § 1365(a), 2717(b) and 42 U.S.C. § 6972(a).

5. On February 13, 2013, Tri-Realty filed the instant motion for a preliminary mandatory injunction [Doc. No. 16]. Following a pre-hearing conference on March 1, 2013, the Court permitted the parties to conduct expedited discovery between March 1, 2013 and April 5, 2013. The Court held a three-day hearing on Tri-Realty’s motion during the period April 15-17, 2013, at which the parties were permitted to submit such evidentiary and advocacy offerings as they saw fit. At the conclusion of the hearing the parties were ordered to file proposed findings of fact and conclusions of law, and they have ably done so. The Court rules upon the motion as follows.

II. College Arms Apartments & Bum Hollow

6. Tri-Realty owns real property located at 74 East Fifth Avenue in Collegeville, Montgomery County, Pennsylvania, known as the College Arms Apartments (the “College Arms Property”). Ex. P-1, ¶2.

7. A residential apartment complex consisting of seven residential apartment buildings, a clubhouse and an outdoor swimming pool are situated on the College Arms Property. Tr. I at 29; Ex. P-1, ¶2.

8. DiLucia Management Corporation (“DiLucia Management”) manages the College Arms Property. Tr. I at 25-26.

9. The College Arms Property is adjacent to, downgradient and immediately south of the Ursinus campus. Ex. P-1, ¶3.

10. A ravine known as Bum Hollow runs along, and comprises the southernmost portion of, the College Arms Property. Tr. I at 27-28, 29-30; Ex. P-1, ¶5.

11. At the base of Bum Hollow, on the College Arms Property, is a stream known as Bum Hollow Run. Tr. I at 29-30; Ex. P-1, ¶5.[2]

12. Bum Hollow Run is a tributary of the Perkiomen Creek. Ex. P-8 (November 4, 2010 General Inspection Report of the Pennsylvania Department of Environmental Protection (“PADEP”)).

13. Bum Hollow Run and the remainder of the College Arms Property are downgradient of the Ursinus campus. Ex. P-1, ¶3.

14. Stormwater on the westernmost part of the College Arms Property is collected in storm inlets and then directed to an underground stormwater pipe situated beneath the pavement. Tr. I at 32-33; Ex. P-1, ¶10. This stormwater moves from the stormwater pipe to a catch basin installed at the top of the northern hillside of Bum Hollow (the “Catch Basin”), to the west of the swimming pool and the clubhouse. Tr. I at 32-33; Ex. P-1, ¶10.

15. Stormwater exiting the Catch Basin enters into an underground outfall pipe (the “Outfall Pipe”), and is then discharged into Bum Hollow. Tr. I at 33. A natural drainage swale (the “Drainage Swale”) has been formed starting at the point of this discharge from the Outfall Pipe and conveys stormwater to Bum Hollow Run. Tr. I at 34-35; Ex. P-1 at Ex. 1-B.

16. Heating oil was stored on Tri-Realty’s College Arms Property between 1968 and 1990, Ex. D-42, and there was at least one reported incident during that time period when heating oil was released from an underground storage tank at the College Arms Property in 1968. Tr. II at 158.

17. In 2004, a release of “No. 6” oil from an underground storage tank was discovered on Ursinus’s property. Tr. II at 148. Ursinus reported the release to the PADEP. Tr. II at 142; Ex. D-1.

18. Upon discovering the release, Ursinus also engaged Center Point Tank Services, Inc. to delineate and remediate the contamination. Ex. D-22.

19. On June 30, 2004, the PADEP formally raised with Ursinus the Land Recycling and Environmental Remediation Standards Act of 1995 (familiarly known as “Act 2”), [3] 35 P.S. §§ 6026.101, et seq., in connection with remediation activities and efforts. Tr. II at 142-143; Ex. D-1.

20. Ursinus subsequently entered into the Act 2 program by filing a Notice of Intent to Remediate in 2010. Tr. II at 185.

21. In August 2004, Ursinus requested access to Tri-Realty’s College Arms Property in order to install a monitoring well to investigate the extent of the release of oil. Exs. D-2, D-6. Tri-Realty declined access for this purpose in the absence of the execution of a formal access agreement which, inter alia, required Ursinus to pay Tri-Realty’s legal fees. Ex. D-6; Tr. II at 149. The parties were unable at that time to agree on a formal access agreement. Tr. II at 148-149.

22. Subsequent efforts to negotiate an access agreement proved unsuccessful as well. Tr. II at 150-151; Ex. D-6.

23. In 2007, Ursinus engaged Marshall Geosciences Inc. (“MGI”), an environmental consulting company, to replace Center Point Tank Services, Inc. Tr. III at 21. Gilbert Marshall, the principal of MGI, became the primary MGI representative in connection with the contamination and remediation issues at the College Arms Property. Tr. III at 3-7.

24. Mr. Marshall has professional experience in the field of remediating underground storage tank release sites and in Act 2 remediations. Id. Mr. Marshall’s office is approximately a quarter-mile from Bum Hollow. Tr. III at 21.

25. Beginning in 2004 and continuing through March 2010, Ursinus’s environmental consultants and their contractors emptied and decommissioned underground No. 6 oil tanks on Ursinus’s property, removed thousands of gallons of released No. 6 oil and contaminated water from Ursinus’s property, and installed various monitoring wells on Ursinus’s property to continue to investigate the extent of subsurface oil contamination on the Ursinus property and the potential for migration of oil. Exs. P-13, D-55.

26. In March or April of 2010 Raymond Duchaine of ENVision, Inc., Tri-Realty’s environmental consultant, discovered an accumulation of oil on the slope of Tri-Realty’s portion of Bum Hollow. Tr. I at 36; 61; Ex. D-85; Ex. P-2, ¶10. The oil was very thick, dark in color and of tar-like viscosity, being colloquially described by Ursinus as “weathered oil”. Tr. II at 8; Tr. III at 46; Exs. D-22, D-40. The parties have referred to this 2010 discovery as the “First Seep.”

27. The First Seep was manifest at approximately 45 feet from Bum Hollow Run at the point of least distance between the errant oil and the stream. Tr. I at 61-62; Ex. P-2, ¶10.

28. Following the discovery of the First Seep, Tri-Realty initially refused Ursinus access to its property, and on March 15, 2010 the PADEP proposed the issuance of an administrative order that would authorize Ursinus to enter the College Arms Property for purposes relating to environmental investigation and possible remediation efforts. Tr. II at 154-155.

29. An Access Agreement for a two-year term was executed by the parties on April 5, 2010. Ex. P-12 at 3; Tr. II at 160. Under the terms of the Access Agreement, among other matters, MGI was required to notify a Tri-Realty representative in advance of entering Bum Hollow to undertake remedial work. Tr. I at 48-49.

30. In May 2010 MGI constructed an impoundment in the form of a pit carved in the Bum Hollow ravine. This impoundment was intended to contain the oil in the First Seep. Tr. I at 37; Tr. III at 106; Ex. P-2, ¶11.

31. In addition to the impoundment pit, MGI installed a skimmer to intercept and forestall or prevent oil from entering a storm water drainage pipe that empties into Bum Hollow. Ex. P-1 at ¶15. MGI also applied sorbent materials around the impoundment and the Drainage Swale. Tr. I at 37-38, 42-43; Ex. P-1, ¶21.

32. In March 2011 and thereafter MGI has undertaken to vacuum the impoundment on a periodic basis to remove oil and oil-contaminated water captured in the impoundment. Tr. I at 43-44; 108; Ex. P-1, ¶22.

33. For at least two years, from the spring of 2010 into the spring of 2012, MGI maintained the impoundment and skimmer, as supplemented by the use of the sorbent ...


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