White Plains Housing Auth. v. BP Prods. N. Am. Inc.

OPINION & ORDER   Plaintiff White Plains Housing Authority (“Plaintiff” or “WPHA”) brings this action against Marianina Oil Corporation (“Defendant” or “Marianina”),¹ asserting claims under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901 et seq., and the New York Navigation Law (“NYNL”), N.Y. Nav. Law §181(5).² (ECF No. 59.) Plaintiff also asserts state common law claims for negligence, private nuisance, and trespass. (Id.) Plaintiff alleges that its property was contaminated by discharges of gasoline and toxic-biproducts of gasoline emanating from a former gasoline station at 34 East Post Road, White Plains, New York (the “Service Station”), which is currently owned, and was formerly operated, by Defendant. (Id.) Before the Court is Plaintiff’s motion for summary judgment on the issue of liability. (ECF No. 103.) For the following reasons, Plaintiff’s motion is GRANTED. BACKGROUND I. Materials Considered by the Court A. Defendant’s Failure to Comply with Local Rule 56.1 Plaintiff argues that this Court should deem as undisputed the facts in its Local Civil Rule 56.1 Statement. (Pl. Reply in Further Supp. of Mot. for Summ. J. (“Reply”), ECF No. 108, at 4.) The Court agrees. Local Civil Rule 56.1 provides that “[u]pon any motion for summary judgment,” the moving party shall annex “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civil Rule 56.1(a). The party opposing the motion is then to “include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts.” Id. 56.1(b). “Each statement by the movant or opponent . . . including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible.” Id. 56.1(d). If the opposing party fails to submit a responsive statement, then the facts set forth in the moving party’s 56.1 statement are deemed admitted. Id. 56.1(c); see Cress v. Wilson, No. 06 Civ. 2717(JGK), 2008 WL 5397580, at *5 (S.D.N.Y. Dec. 29, 2008) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)). Here, Plaintiff filed a Statement of Undisputed Facts and accompanying declarations and exhibits as required under Local Rule 56.1. (See Pl. 56.1 Statement of Undisputed Facts (“Pl. 56.1″), ECF No. 106.) Defendant, in response, failed to submit any responsive statement, and, in fact, did not file an opposition to Plaintiff’s motion. Instead, Defendant, who is represented by counsel, submitted a three-page affirmation signed by Defendant’s president, Frank Codella (the “Codella Affirmation”). (ECF No. 107.)³ Because Defendant failed to comply with Local Rule 56.1, the Court will deem as admitted those facts set forth in Plaintiff’s 56.1 Statement, to the extent they are supported by the record. B. Plaintiff’s Request to Preclude Portions of the Codella Affirmation Plaintiff contends that, under Rule 37(c) of the Federal Rules of Civil Procedure, paragraphs 13, 14, and 16 of the Codella Affirmation should be stricken from the record because the facts therein had not been previously disclosed under Rule 26(e). (Reply 4-5.) In any event, Plaintiff maintains, the Codella Affirmation does not dispute any material fact in Plaintiff’s moving papers. (Id. at 3.) Under Rule 26(e) of the Federal Rules of Civil Procedure, a party “who has responded to a[]…request for production” must “supplement or correct its disclosure or response…in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A). Here, Defendant apparently did not previously disclose the facts regarding the City of White Plains’ stop work order until it “opposed” Plaintiff’s motion for summary judgment. Such a failure to disclose is a clear violation of Rule 26(e). See Xiao Hong Zheng v. Perfect Team Corp., 739 F. App’x 658, 662 (2d Cir. 2018). The question then is whether preclusion of the new factual assertions is warranted. The Court concludes that it is. If a party fails to provide information required under Rule 26(e), it may not “use that information…to supply evidence on a motion…unless the failure was substantially justified” or was harmless. Fed. R. Civ. P. 37(c)(1). The decision of whether to apply this “drastic remedy” is up to the discretion of the court. Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004). In evaluating whether to preclude evidence, courts will look to “(1) the party’s explanation for the failure to comply with the [disclosure requirement]; (2) the importance of…the precluded [evidence]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new [evidence]; and (4) the possibility of a continuance.” Capitol Records, LLC v. Escape Media Grp., Inc., No. 12-CV-6646 (AJN), 2015 WL 1402049, at *22 (S.D.N.Y. Mar. 25, 2015) (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)). A review of these factors reveals why preclusion is warranted. To begin, Defendant provided no explanation for why this information is being provided for the first time in opposition to Plaintiff’s motion. Meanwhile, although the factual assertions are not of great importance — they do not even seem to raise a triable issue of fact — the prejudice to Plaintiff appears readily apparent. Plaintiff was forced to file Freedom of Information Law requests to investigate and respond to these previously undisclosed factual assertions in the middle of briefing its motion. (See Reply Aff. of Norman W. Bernstein in Supp. of Pl.’s Mot. for Summ. J. (“Bernstein Reply Aff.”), ECF No. 109, Ex. 3.) Finally, with discovery closed, continuance appears to be unfeasible. Therefore, in resolving Plaintiff’s motion, the Court will not consider paragraphs 13, 14, and 16 of the Codella Affirmation. See Highland Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 181 (S.D.N.Y. 2008) (excluding an expert’s declaration and testimony because plaintiff provided no explanation for its failure to supplement the expert disclosure under Rule 26(e), the information was not of great importance, the filing was prejudicial, and continuance would have been impracticable); see also Madden v. Town of Hempstead, No. 16-CV-6835(SJF)(AKT), 2019 WL 1439935, at *12 (E.D.N.Y. Mar. 29, 2019) (precluding affidavit of a witness who was not previously identified under Rule 26 because plaintiff had “not offered any explanation…for her failure to identify” the witness, the affidavit was cumulative and would not affect the court’s determination of the motion, the defendants would be prejudiced by the lack of an opportunity to depose the witness, and the action was at the summary judgment stage). C. Defendant’s Failure to File an Answer to the Second Amended Complaint The operative complaint in this matter is Plaintiff’s Second Amended Complaint, which was filed on November 30, 2018. (ECF No. 60.) Although it filed an answer to Plaintiff’s First Amended Complaint (see ECF No. 23), Defendant did not file an answer to the Second Amended Complaint. Plaintiff now requests that the Court conclude that Defendant has admitted all well pleaded claims in the Second Amended Complaint. (Pl. Mem. of Law in Supp. of Mot. for Summ. J. (“Mot.”), ECF No. 105, at 14.) A review of the Second Amended Complaint reveals that Plaintiff largely just added claims and allegations against the new defendant, Atlantic Richfield Company. In doing so, Plaintiff did not meaningfully alter the allegations to which Defendant had previously answered.⁴ Given that Defendant has essentially responded to the current allegations against it, the Court will construe Defendant’s Answer to the First Amended Complaint as responding to the Second Amended Complaint. See, e.g., CIT Bank, N.A. v. Vasquez, No. 17-CV-4654 (MKB)(PK), 2019 WL 4418883, at *1 n.2 (E.D.N.Y. Aug. 19, 2019), adopted by, 2019 WL 4415291 (E.D.N.Y. Sept. 16, 2019) (construing answer to initial complaint as an answer to amended complaint where amended complaint only made clerical corrections and plaintiff did not seek default judgment). II. Factual Background The following facts are derived from Plaintiff’s Rule 56.1 Statement and a review of the record. As noted above, they have been deemed uncontested unless otherwise noted. A. The Parties and the Service Station i. WPHA WPHA is a municipal public housing authority that exists under the laws of New York. (Pl. 56.1 1; Aff. of Norman W. Bernstein (“Bernstein Aff.”), ECF No. 106, Ex. 2.) Since 1949, WPHA has owned and operated a multi-family residential public housing complex known as the Winbrook Apartments, which is in downtown White Plains, New York. (Pl. 56.1 2; Bernstein Aff. Ex. 1 (“Carter Dep. Tr.”) at 29:7-32:3.) The Winbrook Apartments contain five apartment buildings, located at (1) 159 S. Lexington Avenue, (2) 135 S. Lexington Avenue, (3) 11 Fisher Court, (4) 33 Fischer Court (“Building 33″),⁵ and (5) 225 Dr. Martin Luther King Jr. Blvd. (Pl. 56.1 3; Carter Dep. Tr. at 30:23-32:3; Bernstein Aff. Ex. 3 1.) ii. Marianina Marianina is a domestic corporation, which was formed under the laws of the State of New York. (Pl. 56.1 6.) Mr. Frank Codella (“Codella”) is Marianina’s owner and serves as its President. (Id. 7; Bernstein Aff. Ex. 7 1; id. Ex. 8 (“Codella Dep. Tr.”) at 20:6-20:16.) The corporation was formed in 1986 for the purpose of purchasing the Service Station. (Pl. 56.1 8; Bernstein Aff. Ex. 7 1.) Since June 24, 1987, Marianina has been the owner and/or operator of the Service Station. (Pl. 56. 1 9; Bernstein Aff. Ex. 7 1.) iii. Proximity Between WPHA’s Property and Marianina WPHA’s parking lot and Building 33 are directly adjacent to, and to the north/northwest of, the Service Station. (Pl. 56.1 11; Carter Dep. Tr. 219:18-24; Bernstein Aff. Ex. 10 31.) Similarly, the distance between the Service Station’s property line and Building 33 is approximately 200 feet. (Pl. 56.1 12; Carter Dep. Tr. at 219:18-220:12; Bernstein Aff. Ex. 10 29 & figs. 1 & 8.) Building 33 is in plain view from the Service Station. (Pl. 56.1 13; Bernstein Aff. Ex. 13 (“Papitto Dep. Tr.”) at 93:22-94:1.) The north/northwest location of WPHA’s property is on a down gradient from the Service Station. (See Bernstein Aff. Ex. 11 (“Bendell II Dep. Tr.”) at 275:11-16.) Thus, the groundwater flow direction under the Service Station is to the north and/or northwest. (Pl. 56.1 10; Bernstein Aff. Ex. 9 (“Talimcioglu I Dep. Tr.”) at 116:13-23; id. Ex. 10 32 & fig. 8.) iv. The Service Station The Service Station was built as Sinclair Gasoline Station by the predecessors of BP Products North America Inc. in or about 1937.⁶ (Pl. 56.1 14; Bernstein Aff. Ex. 14 (“Reinhart Dep. Tr.”) at 9:22-12:17.) Decades later, in or about 1978, four new single hull steel underground storage tanks (“USTs”) were installed at the Service Station. (Pl. 56.1 15; Reinhart Dep. Tr. 41:24-46:5.) These USTs had no drip pans, spill buckets, catch basins, or containment sumps under the pumps. (Pl. 56.1 15; Codella Dep. Tr. at 40:15-41:3, 206:7-208:12; Papitto Dep. Tr. at 57:23-58:13; Reinhart Dep. Tr. at 30:7-23.) Critically, as testified to by Daniel Bendell, the New York Department of Environmental Conservation (“NYSDEC”) Regional Spill Engineer overseeing the Service Station, the lack of spill bucket was notable because gasoline spills “would go onto the ground” in their absence (Pl. 56.1 19; Bernstein Aff. Ex. 16 (“Bendell I Dep. Tr.”) at 63:5-10.) As part of the 1978 UST installation, pipes and conduits were also installed. These pipes and conduits were made of standard galvanized steel and lacked cathodic protection. (Pl. 56.1 16; Talimcioglu I Dep. Tr. at 304:11-305:23; Reinhart Dep. Tr. at 32:6-32:13; see also Bernstein Aff. Ex. 15 (“Castellano Dep. Tr.”) at 45:24-46:5.) B. History of Contamination at the Service Station i. Marianina’s Initial Inspection of the Service Station Marianina purchased the Service Station on or about June 24, 1987. (Bernstein Aff. Ex. 7 1; see also Codella Dep. Tr. at 22:10-13.) To obtain a mortgage to purchase the station, Marianina had to conduct a tank test and a line test. (Codella Dep. Tr. at 22:14-23:12.) Codella testified that the tank tests were to check for any leaks, while the line tests were to check the feed lines into the tank. (Id. at 23:3-12.) Marianina, however, did not obtain any information about the soils, groundwater, or any other environmental conditions at the Service Station. (Pl. 56.1 20; Codella Dep. Tr. at 23:15-24.) From approximately 1987 to 1994, Marianina operated the Service Station. (Pl. 56.1 22; Codella Dep. Tr. at 28:15-17.) During this period, the Service Station lacked any containment devices under its tanks and did not have any leak detection or overfill protection. (Pl. 56.1 23; Codella Dep. Tr. at 39:15-41:3, 206:7-208:12.) As a result, every time the Service Station had received fuel deliveries, “there [was] always spillage” that “went into the ground.” (Pl. 56.1 24; Codella Dep. Tr. 39:22-40:7, 66:15-67:3.) ii. The 1994 Excavation, Removal, and Replacement of the Service Station’s USTs In 1994, Marianina determined that the Service Station’s USTs had to be changed due to their age. (Codella Dep. Tr. 28:18-20.) Thus, in or around August or September 1994, Codella retained Papitto Construction Co. (“Papitto Construction”) to excavate, remove, and replace the USTs.⁷ (Pl. 56.1 25; Codella Dep. Tr. 30:9-14; Papitto Dep. Tr. at 19:6-21:20: Bernstein Aff. Ex. 17.) Specifically, as stated in the parties’ contract, Papitto Construction was to remove the four existing steel tanks and replace them with two 10,000-gallon underground double wall fiberglass tanks and one 6,000-gallon underground double wall fiberglass tank. (Bernstein Aff. Ex. 17 at 1.) Papitto Construction then, via letter, notified NYSDEC of its intention to undertake this project on April 8, 1995. (Pl. 56.1 26; Papitto Dep. Tr. at 104:25-107:9; Bernstein Aff. Ex. 18.) The purpose of the letter was to inform NYSDEC that Codella and Marianina were complying with the state’s new regulations by replacing the USTs. (Papitto Dep. Tr. at 107:4-7.) As the project began, Marianina retained P.W. Grosser Consulting Engineer and Hydrologist, P.C. (“P.W. Grosser”) to perform environmental consulting. (Pl. 56.1 27.) P.W. Grosser’s consulting work included oversight of test pits, collection and analysis of samples, oversight of the UST removal, and endpoint sampling. (Id.; Castellano Dep. Tr. at 16:17-19:24, 69:14-17, 80:4-9, 83:6-14; Bernstein Aff. Ex. 19 (“P.W. Grosser Report”) at BPPL004495-4502; id. Ex. 20.) On August 16, 1994, Papitto Construction drilled four test pits to characterize the soil quality around the existing tank pad. (Castellano Dep. Tr. at 39:6-15; P.W. Grosser Report at BPPL004497-98.) A total of four test pits were created using a backhoe, and during the testing, soils and ambient air were monitored for the presence of volatile organic compounds (“VOCs”). (P.W. Grosser Report at BPPL004497-98.) During the testing, P.W. Grosser observed, in several test pits, product that was eight feet below grade and floating on the water table. (Pl. 56.1 29; Castellano Dep. Tr. at 29:18-30:11, Bernstein Aff. Ex. 21 at BPPL004639-41; P.W. Grosser Report at BPPL004499.) P.W. Grosser also observed strong odor on the soil samples and elevated photoionization detector (“PID”) readings at three of the test pits. (Pl. 56.1 30; Castellano Dep. Tr. at 46:13-47:21; Bernstein Aff. Ex. 21 at BPPL004639; P.W. Grosser Report at BPPL004499.) Based on these observations, P.W. Grosser reported a gasoline spill to the NYSDEC on August 17, 1994, and the site was subsequently assigned NYSDEC Spill No. 94-06684. (Pl. 56.1 31; Castellano Dep. Tr. at 46:13-47:23; P.W. Grosser Report at BPPL004495, BPPL004498; Bernstein Aff. Ex. 23.) Papitto Construction went on to remove a total of 1,601.11 tons of petroleum contaminated soil as part of the site excavation. (Pl. 56.1 33; Papitto Dep. Tr. at 28:10-25.) During the excavation process, P.W. Grosser observed stained soils and elevated PID readings above and below the four USTs. (Pl. 56.1 32; Castellano Dep. Tr. at 185:23-186:20; P.W. Grosser Report at BPPL004500.) However, as revealed by P.W. Grosser’s drawings, the excavation only involved the portion of the Service Station that was in the immediate vicinity of the USTs. (Pl. 56.1 34; Bernstein Aff. Ex. 20; see also Castellano Dep. Tr. at 118:13-17; Bernstein Aff. Ex. 21 at BPPL004642, BPPL004651, BPPL004655.) And, in some areas, the excavation was only 3-4 feet deep. (Pl. 56.1 35; Codella Dep. Tr. at 311:10-314:3.) Moreover, as testimony made clear, only the soil within the area of excavation was remediated. (Pl. 56.1 36; Codella Dep. Tr. 78:18 80:14.) No groundwater remediation was performed during the replacement project. (Pl. 56.1 41; Papitto Dep. Tr. at 68:6-71:6; Castellano Dep. Tr. at 194:7-15.) This resulted in substantial contamination being left behind. (Pl. 56.1 34; Castellano Dep. Tr. at 235:2-240:23.) On October 12 and 19, 1994, P.W. Grosser collected eight endpoint soil samples at the perimeter of the excavation to confirm the conditions of the soil left behind. (Pl. 56.1 37; Castellano Dep. Tr. at 151:14-152:25; P.W. Grosser Report at BPPL004501-02.) The endpoint analysis indicated that gasoline contaminated soil still remained at the Service Station at several locations, including the northern portion of the excavation near Building 33′s parking lot.⁸ (Pl. 56.1

38-39; Castellano Dep. Tr. at 193:8-194:2, 223:24-224:15, 239:24-240:23; P.W. Grosser Report at BPPL004502-03.) Despite these findings, neither soil nor groundwater samples were taken from outside of the excavation area to check for contamination. (Castellano Dep. Tr. at 118:7-12.) iii. Marianina Leases the Service Station Upon completion of the tank replacement project, Marianina leased the Service Station to Barrier Oil Corporation (“Barrier”). (Pl. 56.1 42; Codella Dep. Tr. at 27:5-28:5; Bernstein Aff. Ex. 22 31.) Barrier operated the Service Station for approximately five years between 1995 and 2000. (Pl. 56.1 43; Codella Dep. Tr. at 27:14-16; Bernstein Aff. Ex. 22 31.) After the Barrier lease ended, Marianina leased the Service Station to 34 Post Rd. Gasmart, Inc. (“Gasmart”) from approximately 2007 to 2017. (Pl. 56.1 44; Bernstein Aff Ex. 22 33; id. Ex. 24 (“Ibrahim Dep. Tr.”) at 15:17-17:21, 28:24-30:8.) During this timeframe, Gasmart operated the Service Station. (Pl. 56.1 45.) Pursuant to the lease, however, Marianina was responsible for maintaining the Service Station’s USTs, underground pipes, and Veeder-root system. (Id. 46; Ibrahim Dep. Tr. at 84:21-85:3, 131:13 132:6; Bernstein Aff. Ex. 25 at BPPL003430.) In or about late May or early June 2017, Gasmart stopped operating at the Service Station. (Pl. 56.1 94; Ibrahim Dep. Tr. at 139:2-15.) Although Gasmart vacated the Service Station, gasoline and diesel remained in the tanks. (Pl. 56.1 95; Ibrahim Dep. Tr. at 156:9-157:24.) Much of the remaining fuel could only be removed through a pump or hose in the tank. (Ibrahim Dep. Tr. at 157:13-24.) iv. WPHA’s 2014 Investigation of Soil and Groundwater Contamination In or about September 2014, Tyree Environmental Corporation (“Tyree”), a consultant to Getty Properties Corporation, installed two temporary monitoring wells, MW-110 and MW-111, to collect groundwater samples in the Brookfield Street sidewalk immediately adjacent to the east side of the Service Station. (Pl. 56.1 48; Talimcioglu I Dep. Tr. at 302:10-303:4; Bernstein Aff. Ex. 27 at GTKS_009155, GTKS_009157.) The monitoring wells were installed as part of a pre excavation assessment. (Bernstein Aff. Ex. 27 at GTKS_009155.) Thereafter, between September 8 and 19, 2014, First Environmental, Inc. (“FE”), WPHA’s environmental consultant, took split samples of the soil and groundwater at MW-110 and MW 111. (Pl. 56.1 49; Talimcioglu I Dep. Tr. at 302:17-303:4; Bernstein Aff. Ex. 28 (“2014 FE Report”) at WPHA002859.) FE’s Remedial Investigation and Split Sampling Results report (the “Report”) revealed that the soil samples for MW-110 included (1) 280 ppb of benzene, which exceeded NYSDEC’s soil cleanup levels of 60 ppb, and (2) 79,000 ppb of 1,2,4-trimethylbenzene, which exceeded NYSDEC’s soil cleanup levels of 3,600 ppb. (Pl. 56.1 50; 2014 FE Report at WPHA002862.) As to MW-111, the Report indicated that soil samples contained exceedances for chemicals such as xylene and n-propylbenzene. (Pl. 56.1 51; 2014 FE Report at WPHA002862.) The Report further provided groundwater results for MW-110 and MW-111. The groundwater at MW-110 contained 240 ppb of benzene (against a NYSDEC standard of 1 ppb) and 3,900 ppb of 1,2,4-trimethylbenzene (against a NYSDEC standard of 5 ppb). (Pl. 56.1 52; 2014 FE Report at WPHA002864.) Meanwhile, the groundwater at MW-111 contained 1,400 ppb of benzene and 83 ppb of 1,2,4-trimethylbenzene, both of which were amounts that exceeded NYSDEC’s groundwater standards. (Pl. 56.1 53; 2014 FE Report at WPHA002864.) v. The 2015 Site/Remedial Investigation of WPHA’s Property In April 2015, FE conducted a site and remedial investigation at portions of WPHA’s property, including at Building 33, that were adjacent to the Service Station. (Pl. 56.1 55; Bernstein Aff. Ex. 30 at BPPL000503.) As part of the investigation, FE installed six temporary monitoring wells, TWB-1 through TWB-6, to the north and northwest of the Service Station. (Pl. 56.1 56; Bernstein Aff. Ex. 30 at BPPL000510, BPPL00516.). FE also sampled the existing monitoring well at MW-106. (Pl. 56.1 56.) Thereafter, FE issued its October 2015 Site Investigation and Remedial Investigation Report (the “Oct. 2015 SI/RI Report”). FE had found gasoline-associated VOCs at levels above NYSDEC’s standards in the soil and groundwater migrating from the Service Station to WPHA’s property. (Pl. 56.1 57; Bernstein Aff. Ex. 30 at BPPL000513-14.) For example, soil samples from TWB-2, which was to the north and downgradient of the Service Station (Reinhart Dep. Tr. at 67:22-68:6), contained 33,000 ppb of 1,2,4-trimethylbenzene (against NYSDEC’s standard of 3,600 ppb), and 2,100 ppb of xylenes (against NYSDEC’s standard of 260 ppb). (Pl. 56.1 60; Bernstein Aff. Ex. 30 at BPPL000517.) Meanwhile, soil samples for TWB-5, which was also to the north and downgradient of the Service Station (Reinhart Dep. Tr. at 68:7-11), contained 23,000 ppb of 1,2,4-trimethylbenenzen and 9,700 ppb of xylenes, both of which were amounts that exceeded NYSDEC’s soil cleanup levels. (Pl. 56.1 61; Bernstein Aff. Ex. 30 at BPPL000517.) Regarding the groundwater samples, results from TWB-2 revealed contamination level of (1) 30 ppb of benzene (against NYSDEC’s water quality standard of 1 ppb), (2) 2,600 ppb of 1,2,4 trimethylbenzene (against NYSDEC’s water quality standard of 5 ppb), and (3) 2,700 ppb of m&p xylenes (against NYSDEC’s water quality standard of 260 ppb). (Pl. 56.1 62; Bernstein Aff. Ex. 30 at BPPL000519.) Similarly, groundwater results from TBW-5 revealed contamination levels of 2,900 ppb of 1,2,4-trimethylbenzene and 5,100 ppb of m&p-xylenes, both of which were amounts that exceeded acceptable water quality standards.⁹ (Pl. 56.1 63; Bernstein Aff. Ex. 30 at BPPL000519.) As the report concluded, “the results of the field investigation indicate[d] a larger area of impact than previously believed.” (Bernstein Aff. Ex. 30 at BPPL000514.) The report further explained that “based on the [s]ite geology, the horizontal and vertical extent of petroleum impacts in soil groundwater, and the fact that the area is adjacent to the BP station,” it was reasonable to assume that the investigated area was “impacted by the [Service Station].” (Id.) Relying on the results from FE’s 2014 and 2015 investigations, WPHA served Marianina a RCRA Notice of Endangerment, which provided notice of actual and threatened endangerments, releases, injuries, and damages emanating from the Service Station on to WPHA’s property. (Pl. 56.1 66; Bernstein Aff. Exs. 31 & 32.) vi. FE’s December 2015 Site Investigations Around December 2015, FE installed five monitoring wells to better define the groundwater flow direction and the extent of the contamination plume migrating from the Service Station. (Pl. 56.1 68; Bernstein Aff. Ex. 10 10 & fig. 8.) As reflected in FE’s Groundwater Flow Direction map, one monitoring well, MW-201, was located directly between the Service Station and Building 33, on the southwest corner of the Building 33 parking lot, while a separate monitoring well, MW-203, was located between the Service Station and Building 33, near the southern wing of Building 33. (Pl. 56.1