Water Pollution Claims May Leave School Liable

     (CN) - A liberal arts college must face claims that oil from its power plant contaminated neighboring land and waters to the tune of at least $7 million, a federal judge ruled.
     Tri-Realty Co. sued Ursinus College, claiming that heating oil leaked through campus soil onto Tri-Realty's neighboring College Arms Apartments in Collegeville, Pa.
     The federal complaint alleges that, over 50 years ago, Ursinus installed two 20,000-gallon storage tanks under its power plant, about 200 feet from Tri-Realty's property, and about 500 feet from the Bum Hollow Run ravine, which flows into Perkiomen Creek.
     Suspecting that one of the tanks was leaking, Ursinus emptied it in January 2003, but kept using the other tank and did not conduct any testing on it, the complaint states.
     The next year, Ursinus allegedly ignored reports of both tanks having holes and of the "potential for off-property impact" such as air-quality problems.
     Tri-Realty says the college never informed it of these issues, though Ursinus did repeatedly tried to access the complex to perform unauthorized water tests, according to the complaint.
     Reports of visible oil discharge and smells in fall 2009 led to tests showing that liquid beneath College Arms was contaminated with gas and diesel range organics, Tri-Realty claims.
     An environmental consultant allegedly alerted the Pennsylvania Department of Environmental Protection in January 2010, but Tri-Realty says Ursinus did not file a notice of intent to remediate until March 4, 2012.
     The department allegedly told Tri-Realty a year earlier that "significant contamination" may have resulted from when a College Arms storage tank spilled 4,000 gallons of oil in 1968.
     Tri-Realty countered that College Arms soil sampling between 1990 and 2009 did not indicate the presence of oil contamination from the company's spill.
     Since June 2004, more than 33,000 gallons of oil-tainted liquid have been removed from the college campus, and oil continues to pollute nearby waterways, according to the complaint.
     In its 10-count amended complaint, Tri-Realty also expresses doubt toward the efficacy of an oil skimmer and sorbent booms Ursinus placed to intercept oily discharges.
     Tri-Realty seeks at least $7 million in damages under the Clean Water Act and other state and federal laws.
     After Ursinus moved to dismiss, Tri-Realty allegedly discovered a second "seep" of oil and moved for a preliminary mandatory injunction for a full investigation and remediation.
     Though the company's motion was denied, U.S. District Judge Gene Pratter refused to fully dismiss the complaint on Nov. 21.
     "The court concludes that the diffuse down-gradient migration of pollutants on top of or through soil and groundwater alleged here is nonpoint source pollution outside the purview of the CWA," Pratter wrote, abbreviating Clean Water Act.
     "However, when such runoff is collected or channeled by man, it constitutes point source pollution within the meaning of the statute," the judge added. "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."
     In dismissing the claim under the Oil Pollution Act of 1990, Pratter said the company "failed to allege a discharge of oil into or upon navigable waters or adjoining shorelines."
     The court converted Ursinus' motion to dismiss the claim under the federal Resource Conservation and Recovery Act to one for summary judgment, and held it and the state law claims in abeyance.