TRI-REALTY COMPANY, Plaintiff, v. URSINUS COLLEGE, Defendant, 124 F. Supp. 3d 418

OPINION PRATTER, United States District Judge Tri-Realty Company (“Tri-Realty”) sued Ursinus College (“Ursinus”), alleging that the continuing effects of No. 6 fuel oil discharged from underground storage tanks (“USTs”) on Ursinus’s property violate the Resource Conservation Restoration Act (“RCRA”), 42 U.S.C. §§ 6901-6992k, the Clean Water Act (“CWA”), 38 U.S.C. §§ 1251-1387, and several state laws. Ursinus moves for

summary judgment on the RCRA and CWA claims. For the reasons explained below, the Court will grant in part and deny in part Ursinus’s Motions for

Summary Judgment. I. Factual Background A. The Parties and the Properties Ursinus is a not-for-profit college. Its campus is located in Collegeville, Pennsylvania. To the south of and downhill from Ursinus is the College Arms Apartments (“College Arms”), a residential apartment complex occupied by approximately 350 people and consisting of seven residential apartment buildings, a clubhouse (the “Clubhouse”), and an outdoor swimming pool. College Arms is owned by TriRealty and managed by the DiLucia Management Corporation. The southernmost

section of College Arms consists of a ravine known as Bum Hollow, at the base of which is a stream known as Bum H°llow 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 between Bum Hollow Run and the Perkiomen Creek, a navigable-in-fact body of water located approximately 160 feet east of College Arms and separated from College Arms by Pennsylvania Route 29 (“Route 29”).

Ursinus claims that Bum Hollow Run disappears 200 feet before the Perkiomen Creek and that any water from Bum Hollow Run that reaches the Perkiomen Creek does so through the ground, (see Def.’s CWA Br. 38-39; Def.’s CWA Ex. 8 at 4-5), while Tri-Realty claims that Bum Hollow Run is directly connected to the Perkiomen Creek through a flow that travels underneath Route 29 and eventually emerges at two separate outfalls, (see Pl.’s Ex. 80 at 19-21).

There is no evidence of a surface connection between Bum Hollow Run and Perkiomen Creek, nor is there evidence that any people swim or bathe in Bum Hollow Run, or ingest any of the water, plants, or animals in Bum Hollow. Stormwater on the westernmost part of College Arms is collected in storm inlets and directed to an underground stormwater pipe (the “Stormwater Pipe”) situated beneath the pavement. The Stormwater Pipe empties into a catch basin (the “Catch Basin”) at the top of the northern hillside of Bum Hollow, just west of the swimming pool and the Clubhouse.

The Catch Basin empties into an underground outfall pipe (the “Hillside Pipe”), which then discharges on the northern side of Bum Hollow. Four erosional features feed stormwater into Bum Hollow Run, and the westernmost 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 storm-water 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. B. Discovery of Release and Initial Remedial Measures On February 5, 2004, after conducting an investigation in late-2003, Ursinus reported to the Pennsylvania Department of Environmental Protection (“PADEP”) a release of No. 6 fuel oil from its USTs.

Ursinus hired Center Point Tank Services, Inc. (“Center Point”) to delineate and remediate the contamination. Center Point emptied, cleaned, and closed the Ur-sinus USTs in place in 2004. The tanks, unused, remain in the ground today. Between mid-2004 and late 2006, Ursinus had over 33,000 gallons of “product/groundwater mixture” removed from the area surrounding the USTs. (Def-’s Ex. 7 at 4). Ursinus claims to have installed several monitoring wells during that period along the property line separating Ursinus from College Arms,, but Tri-Realty disputes that assertion.

As part of the initial response to the release, Úrsinus 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. C. Discovery of Oil on Tri-Realty’s Property and Initial Access Agreement In January 2010, Tri-Realty representatives discovered accumulations of oil in a sump and electrical box located in the basement of the Clubhouse. The oil was noted to be thick, dark in color, and tar-like. Also in January 2010, Mr. Marshall observed a black, highly viscous, tar-like material on the southern portion of TriRealty’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 PA-DEP 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 to Act 2. On April 5, 2010, TriRealty and Ursinus reached an access agreement under which Ursinus could investigate and remediate the oil expressing in Bum Hollow. Ursinus was permitted to access College Arms for only two years, and was required to notify Tri-Realty in advance of entering the property.

Also in April 2010, an accumulation of oil was observed on the western portion of the northern hillside of Bum Hollow approximately 45 feet from Bum Hollow Run. For purposes of this litigation, this accumulation is known as the “First Seep.” MGI believes that the oil expressing at the First Seep originated on the Ursinus eampus, 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. Tri-Realty’s residents have been made aware of the contamination in Bum Hollow through letters and numerous warning signs near the First Seep. D. History of Remedial Measures and Subsequent Access Agreements 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 dis: putes 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 permanent, at the site at any time.

However, Tri-Realty has demanded that Ursinus take various additional remedial actions at College Arms, such as replacing certain monitoring wells, vacuuming the Catch Basin, installing sorbent booms in the Drainage Swale, and lining the Storm-water Pipe to prevent oil from entering into it. 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. TriRealty 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 January 16, 2013 to the present, MGI has monitored the Impoundment and has continued its testing, maintenance, and remedial efforts. On May 17, 2013, the parties entered into a new access agreement whereby MGI was permitted to perform investigative and remedial action at the site in furtherance of its Act 2 remediation.

The agreement was limited to two years and required five-days advance notice prior to every site visit, except in case of emergency. Ursinus installed additional monitoring wells at College Arms in the summer of 2013. E. History of Testing at Ursinus and College Arms 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 were tested 16 times for petroleum constituents on the PADEP’s “short list” of chemicals of concern. Thirteen of the 16 tests found no oil constituents in excess of Pennsylvania statewide health standards.

The three tests finding oil constituents in excess of statewide health standards, performed on April 29, 2010, August 3, 2010, and January 31, 2011, detected only chrysene and only at the Confluence, as the two samples collected from downstream were reported to be “non-detect” for oil constituents, including chrysene. The Pennsylvania statewide health standard for chrysene in groundwater is 1.9 parts per billion (“ppb”), and the standard for chrysene in surface water is .0038 ppb.

The parties dispute which standard applies to the fluids at the Confluence, whether the standard for chrysene in surface water applies only to. drinking water, (compare Def.’s RCRA Br. Statement of Facts ¶ 56, with Pi’s RCRA Br. Counterstatement of Facts ¶ 56 (citing 25 Pa.Code § 250 app. A, tbl. 1)), and whether the standard for chrysene in groundwater is a health-based standard, (compare Def.’s RCRA Ex. 41 at 4, with Pi’s RCRA Br, Counterstatement of Facts ¶ 55 (citing 25 Pa.Code § 250 app. A, -tbl 1)).

Regardless of which statewide health standards are relevant, there is no evidence in the record regarding. the significance of any statewide, health standards or the risks associated with contamination in excess of any statewide health standards. 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.

ENVision found evidence of oil contamination in 52 of the 139 borings advanced after the preliminary injunction hearing within Bum Hollow downslope of the Impoundment and north of Bum Hollow Run. In 19 of the 52 borings, oil itself was found below the surface; soil discolored with oil and oil odors were noted in the remaining 33 borings. TriRealty installed piezometers in seven of the borings.

The concentration of benzene in one well on the Ursinus campus nearly doubled from August 2013 to October 2013, while in another monitoring well, the concentration of benzene doubled and that of 1,2,4-trimethylbenzene more than tripled. 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 TriRealty) 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. F.

The PADEP’s Involvement 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/portaVserver.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 recommended or required that Ursinus alter its existing interim remedial measures since they were installed in May 2010. According to Ursinus, the PADEP has afforded Tri-Realty the opportunity to participate in the Act 2 process; and TriRealty in fact did so. Tri-Realty com-’ mented on the March 14, 2012 Remedial Investigation Report (“RIR”), a report required under Act 2, which the PADEP ultimately rejected.

After MGI did work aimed at curing the problems with the March 14, 2012 RIR, MGI met with TriRealty’s- expert geologist, Mr. Duchaine, and the PADEP to discuss additional remedial tasks needed to cure the deficiencies in the RIR and resolve Tri-Realty’s concerns. As a result, the parties signed a plan of action. Ursinus attempted to perform the work the PADEP had requested, and submitted a revised RIR to PADEP and Tri-Realty on March 14,2014.

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, TriRealty 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, TriRealty claims that the PADEP recommended that Ursinus change some of its remedial measures (e.g., putting a felt liher 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 PA-DEP 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). G. Tri-Realty’s Experts and the ECI Report 1. Dr. Dalbey’s May 26, 2014 Report 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.” (Del’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 dermal exposure occurs.” (Id.). Dr. Dalbey’s “qualitative sense” for how many “repeated dermal exposures” would need to occur to the components of the three samples analyzed to cause nonearcinogenic effects has not been quantified. (Def.’s RCRA Ex. 79 at 132:6-17). Dr.

Dalbey did not perform a quantitative risk assessment, but opined that the levels of polycyclic aromatic hydrocarbons in each of the three samples analyzed were high enough to raise “concerns about possible nonearcinogenic effects on multiple organs in the body as well as on unborn fetuses if repeated dermal exposure occurs.” (Pl.’s Ex. 96 at 3). 2. Mr. Duchaine’s May 26, 2014 Report 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 Defi’s RCRA Ex. 61 at 91:1-95:24), he opined that Ursinus oil presents a substantial and imminent endangerment to the environment. 3. Dr. Smith’s May 26, 2014 Report 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 Clubhouse. (See Pl.’s Ex, 97 at 1, 7; PL’s Ex. 98 at 7 & fig. 1). 4. The ECI Report 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). TriRealty 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.

H.- Ursinus’s Expert 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. Similarly, they opined that the development of chemically-induced cancer in humans usually depends on repeated exposure to a carcinogen over a long period of time (i.e., months to years). Thus, they opined that the development of cancer in the receptor groups at College Arms is highly unlikely.

Finally, these two experts concluded that indoor air exposures are highly unlikely to occur because tests have revealed no problem with vapor intrusion other than at the Clubhouse, and the situation at the Clubhouse has been remediated by way of the installation of the vapor mitigation system. I.- Procedural History 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. II. Legal Standard 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, “Unsupported 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 non-moving 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, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” or by “showing that the' materials cited do not establish the absence or .presence of a genuine dispute.” Fed.R.Civ.P. 56(c).

Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. III. Discussion A. Standing 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 order for that injury to be sufficiently imminent.

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 plaintiffs land was contaminated, that the defendant’s USTs were leaking, and that solid waste migrated from defendant’s USTs onto plaintiffs land). 1.

Injury in Fact 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 l’easons 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) TriRealty 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 plaintiffs 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, 2007 WL 542016, at *5 (W.D.N.Y. Feb. 16, 2007) (finding that evidence of contaminated water flowing, on plaintiffs property satisfies -the injury-in-fact requirement). In. addition, Tri-Realty has produced sufficient evidence to show that waters covered by the CWA have been contaminated by the No.6 oil released from the Ursinus USTs. See infra

Part III.C.3. On this record,, there is sufficient evidence of an injury in fact that Tri-Realty has standing to proceed. 2. Zone of Interests Next, Ursinus argues that TriRealty’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^] 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-Real..ty’s claims are beyond the “zone of interests”, of RCRA or the CWA because TriRealty’s motivation for pursuing those claim's 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 TriRealty has presented evidence that No. 6 oil that was released from the Ursinus USTs now exists on the College Arms Property. The Court will not bar TriRealty’s claim simply because it wishes to recover fees and costs that it, wisely or otherwise, has incurred in connection with this lawsuit. B.

Tri-Realty’s RCRA Claim “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 488, 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 against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 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). 1. Primary Jurisdiction Doctrine Ursinus argues that the Court should decline to consider Tri-Realty’s RCRA claim under the primary jurisdiction doctrine because the PADEP and, if necessary, the Pennsylvania Environmental Hearing Board, are the proper decisionmakers with whom Tri-Realty should lodge its objections to the ongoing remediation efforts at College Arms. (See Pl.’s RCRA Br. 67).

The primary jurisdiction doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011) (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)).

Because federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them,” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), “[a]bstention ... is the exception rather than the rule,” Riley v. Simmons, 45 F.3d 764, 771 (3d Cir.1995). 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.” Bay-keeper, 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 TriRealty’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 -within the PADEP’s discretion. “Although [the PADEP] generally has discretion over environmental matters,” the PADEP is not charged with enforcing RCRA. Baykeeper, 660 F.3d at 691. Indeed, RCRA “authorized federal courts to address environmental issues.” Id. at 691-92.

The fact that the PADEP may have special discretion with respect to the enforcement of other environmental statutes does not mean that every environmental issue that arises in the Commonwealth is particularly within the PADEP’s discretion. Thus, “[t]he questions before this Court arise under the language of the RCRA, a statute which the [PA]DEP has no discretion to interpret,” Interfaith, 702 F.Supp.2d at 311-12, and the second factor therefore weighs against the application of primary jurisdiction. 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 PA-DEP 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(i) (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 TriRealty 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 PA-DEP’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. 2. “May Present an Imminent and Substantial Endangerment to Health or the Environment” The parties dispute whether the situation at College Arms “may present an imminent and substantial endangerment to health or the environment.” With respect to that critical phrase from the RCRA statute, the Third Circuit Court of Appeals has explained that [t]he operative word ... [is] ‘may— [Plaintiffs need only demonstrate that the waste ,., ‘may present’ an imminent and substantial threat____' Similarly, the term ‘endangérment’ means a threatened or potential harm, and does not require proof of actual harm....

The endangerment must also be ‘imminent’'[meaning that it] threatens to occur immediately.... Because the operative word is ‘may,’ however, the plaintiffs must [only] show that there is a potential for an imminent threat of serious harm ... [as] an endangerment is substantial if it is '[serious] ... to the environment or health. 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. However, injunctive relief is inappropriate “where the risk of harm is remote in time, completely speculative in nature, or de minimis in degree.” United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1109 (D.Minn.1982); cf. W.R. Grace & Co. v.

EPA, 261 F.3d 330, 339-40 (3d Cir.2001) (citing this language in connection with EPA’s emergency authority 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).

On appeal, the Court of Appeals rejected two parts of the district court’s analysis as “irreconcilable” with the standard for liability under RCRA. Id. First, because RCRA uses disjunctive rather than conjunctive phrasing in connection with possible endangerments to health or the environment, the Court of Appeals concluded that a possible endangerment to either health or the environment would be sufficient to find RCRA liability.

The Court of Appeals rejected the notion that RCRA liability requires that there be a potential population at risk, and found instead that “environmental endangerment” may be “all that is required under § 6972(a)(1)(B), which imposes liability for endangerments to the environment, including water in and of itself.” Id. at 263. Second, the Court of Appeals noted that RCRA’s. language “does not support one particular type of quantification measurement,” and there are no cases that “require a particular quantitative showing as a sine qua non for liability.” Id. at 260.

Consequently, the Court of Appeals concluded that RCRA does not require that the contaminant be present at levels considered unacceptable by the state. As the Interfaith court explained, “[w]e do not believe that Congress intended § 6972(a)(1)(

B) to be dependent upon the states in such a manner, and the statutory language provides no support for such dependency.” Id. Therefore, although quantitative showings are still important to any endangerment determination under RCRA, plaintiffs need not prove contamination in excess of relevant state standards. Ultimately, notwithstanding the district court’s error in requiring the plaintiff to meet a higher burden of proof than RCRA actually requires, the Court of Appeals found that the district court’s “imminent and substantial endangerment determination was not clearly erroneous.” Id. at 264.

In support of that conclusion, the Court of Appeals considered the totality of the circumstances, including: (1) evidence of the pollutant’s concentration, (2) evidence of pathways for exposure to both humans and the environment, (8) evidence of the failure or inadequacy of interim remedial measures, (4) evidence of human trespass or animal presence on the polluted site, (5) expert opinions that the pollutant was responsible for certain adverse effects, (6) evidence of the amount of contamination that was toxic, (7) evidence that the pollutant was present in groundwater in an amount hundreds or thousands of times greater than the relevant statewide health standard, and (8) experts opinions as to the cumulative facts establishing the substantialness of the endangerments.

Id. at 261-64. 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-cl-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 likeliJiood 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; Gordiano 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 Gordiano 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 that “firing-range-related contaminants on the site ... represent ] a potential exposure risk to both humans and wildlife,” id. at 204, the Second Circuit Court of Appeals concluded that

summary judgment in favor of the defendant was proper. In particular, although the court noted that there was evidence of potential risks to human health posed by long-term exposure to lead, the court observed that there was “no evidence that anyone is subject to long-term exposure to lead contamination at the [defendant’s] site, or that there are realistic pathways of exposure there.” Id. at 213.

Absent evidence of both the ñatee of the risk posed by the contamination and the potential for exposure of the necessary type and duration for that risk to result in harm, there was insufficient evidence for a reasonable factfinder to conclude that the waste may present an imminent and substantial endangerment to health or the environment. 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, and (5) a “Toxicological Profile” for one of the substances. Id. at *11.

The district court concluded that this showing was inadequate to support a claim under RCRA because the plaintiffs provided “no evidence and no expert testimony that [the substances] may pose a substantial risk of harm to health or the environment at levels detected on and around Plaintiffs’ properties.” Id. Without sufficient evidence that a pollutant may be dangerous in the form in which it may exist at the allegedly contaminated site, no reasonable factfinder could conclude that a substantial and imminent endangerment to health may exist there.

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.” a.

Evidence of Exposure Pathways 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 other living populations of plants and animals, the Court will address them separately. Additionally, because the endangerment determination with respect to non-living eleménts of the environment presents-substantially different considerations requiring additional explanation, the Court will address those separately. See infra

Part III.B.2.d. i. Pathways for Exposure to Humans 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, TriRealty has presented three types of evidence relating to potential human exposure: (1) evidence that people are present in Bum Hollow, (2) evidence that people live near Bum Hollow, and (3) evidence that oil might surface at new locations at College Arms.

The Court finds that all three types of evidence demonstrate the possibility of acute, intermittent exposures to oil and oil-contaminated water at College Arms, but that only the third type of evidence demonstrates the possibility of extended, repeated exposures. 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-ítealty 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 likelihóbd 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 that someone threw a chunk of concrete into the Impoundment and shot paintball pellets in Bum Hollow, and speculated that it was children who did so. (See Pl.’s Ex. 121 at 53:2-4).

Even drawing all reasonable inferences in favor of Tri-Realty, it would be pure speculation to conclude from such testimony that children (of unknown and unknowable ages) are particularly likely to be exposed to oil or oil-, contaminated water or that there is a serious risk of repeated exposure. 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 peri-" odie 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 Anns, 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 TriRealty, 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 TriRealty’s failure to introduce into evidence an expert report in response to the Kleirifelder 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 exposure's to oil. The Kleinfelder Report concluded that the oily material at College Arms will not present an imminent and substantial endangermenf 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 concluded that there was no evidence of likely human exposure to oily material at those sites. (Id. at 10-17).

Indeed, a separate report commissioned by Tri-Realty specifically concluded that the risk of harm from vapor intrusion in the buildings located at College Arms “is low and is unlikely to occur.” (Def.’s RCRA Ex. 33 at 29-30). However, as described above, Tri-Realty has presented evidence suggesting that there may be a risk of acute, intermittent exposures in Bum Hollow under the circumstances as they presently exist, and that there may be a risk of repeated exposures due to the potential spread of oil.

Therefore, whether or not there is a serious risk of complete exposure pathways is á disputed issue of fact that is material to the outcome of TriRealty’s RCRA claim. • See infra

Part III. B.2.c. ii. Pathways for Exposure to Animals & Plants 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.

There is no evidence to suggest (or reason to believe) that the anecdotal evidence is unrepresentative of the general situation in Bum Hollow. As a result, the Court finds that there is evidence from which a reasonable factfinder may conclude that there is a serious risk of animals and plants facing acute or prolonged exposure to oil constituents in Bum Hollow, b. Evidence of Risks from Exposure The inquiry does not stop there, however. To survive

summary judgment, TriRealty must also present evidence of the degree of exposure that “may present an imminent and substantial endangerment to health or the environment.” It is undisputed that prolonged exposure to high concentrations of No. 6 oil could seriously increase the risk of adverse effects in humans and animals. (See Pl.’s RCRA Ex. 96 at 6 (“The main concern with No. 6 fuel oil and other heavy fuel oils is toxicity from repeated contact.”); Def.’s RCRA Ex. 20 at 19 (explaining that the development of chemically-induced cancer usually depends on repeated exposure to a carcinogen over a relatively long period of time, such as months or years)).

However, the parties dispute whether intermittent contact with No. 6 oil may result in serious risks of adverse effects in humans and animals. Ursinus has presented evidence that intermittent contact with No. 6 oil does not create a serious risk of harm to humans, animals, or plants. The Kleinfelder Report states that the risk of adverse effects is a function of the composition of the No. 6 fuel oil, the pattern of exposure, the route of exposure, the characteristics of the individual exposed, and the duration of exposure. (See PL’s Ex. 20 at 19-20).

According to the Kleinfelder Report, absent high concentrations of harmful oil constituents, No. 6 fuel oil demonstrates a low level of toxicity after acute duration exposures, and cancerous and non-cancerous effects are unlikely to occur based on infrequent exposures to small amounts of oily material at College Arms. (Id.). 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. A reasonable factfinder could not find, based on Dr, Dalbey’s expert report and post-discovery affidavit, that intermittent dermal exposure to the No. 6 fuel oil released from the Ursinus USTs may present an imminent and substantial endangerment to humans, animals, or plants. The expert report “addresses some of the toxicological aspects of three samples of oil,” and concludes that the three samples Dr.

Dalbey analyzed from College Arms were each carcinogenic and mutagenic, meaning that they “induce tumors in virtually all the mice in a skin-painting assay.” (Pl.’s Ex. 96 at 4, 6). Although Dr.

Dalbey wrote that “some components used in No. 6 fuel oil can have significant toxicity when administered orally or dermally to lab animals at very high doses,” and that “the lowest daily dose that resulted in adverse effects was less than 8 mg/kg (<0.5 g for a 70 kg human),” his report provides no basis from which a reasonable factfinder could conclude that infrequent exposures to No. 6 fuel oil may have serious effects on living populations. (Id. at 6). Dr.

Dalbey at no point explains the type of adverse effects that may result from intermittent contact with small amounts of No. 6 oil, or the type of adverse effects that No. 6 oil may have on plants. 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 hu'máns, animals, or plants. The statements in Dr.

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