The State College Borough Water Authority board is likely to vote on an easement request submitted by Toll Brothers/PennTerra on Thursday, May 17 at 4 p.m. at 1201 West Branch Road. Public attendance and comment welcome.
Context information below.
Three risk assessments, five Right to Know requests, three DEP Sewage Planning Module documents, 28 facts and probabilities, with caveats, and three costly contamination scenarios.
Three risk assessments:
- 1.7.13 CMT Labs WRRP Geotechnical Report
- 5.28.13 CMT Cottages Infiltration Report
- 12.22.14 CMT Cottages Infiltration Report
Five Right to Know requests, asking for:
- Complete, unredacted [SCBWA/UAJA/Ferguson Township/CRCOG/CRPRA] insurance policies, including any and all provisions voiding said policies if the insurer can prove misrepresentation, fraud and/or non-disclosure of risks and/or risk factor reports by the insured entity to the insurer, and/or negligence and/or gross negligence on the part of the insured party during engagement in project siting, design, review, endorsement, approval, permitting, financing, construction, operation and/or maintenance.
- Emails, letters, reports, meeting minutes and all other written records relating to legal identification of responsible party and assignment of financial liability for potential public water contamination related to a sewage pump station, sewage transmission pipelines and/or stormwater basins to be located on or adjacent to facilities and/or land owned and controlled by [the public entity] – such records created, transmitted by and/or received by your public entity between Jan. 1, 2015 and the present.
Three DEP Sewage Planning Module documents from 2015:
- 2.6.15 Sewage Mod Applicat Comp3
- 2.6.15 Sewage Mod Part F – Narrative
- 2.6.15 Sewage Mod Part H – Alternatives Analysis
28 facts and probabilities, with caveats:
- The Ferguson Township Board of Supervisors, on November 16, 2015, granted final approval to a Planned Residential Development (PRD) land development plan for construction of a1,093-bed Cottages student housing development, on roughly 46 acres of land then owned by Penn State, but now owned by State College Apartments LLC.
- The approved Cottages land development plan did not include a sewage management system for the 1,093 students to be housed at the site.
- All but 5.5 acres of the 46 acres were, since 2004, zoned Multifamily Residential (R-4) and, as of November 16, 2015, all but 5.5 acres of the 46 acres were zoned PRD (Planned Residential Development). The remaining 5.5 acres were not made part of the PRD plan, but instead remain outside the PRD and remain zoned Rural Agricultural (RA).
- The Cottages development was designed with two large stormwater detention basins sited on those 5.5 acres that are not included in the Planned Residential Development zoning, and are zoned Rural Agricultural, but are still part of the parcel-complex owned by State College Apartments LLC.
- The municipal zoning violation – stormwater detention basins as a primary use on RA land – was the subject of a lawsuit (land use appeal) filed by Nittany Valley Water Coalition in December 2015. The Ferguson Township approval was overturned in July 2016 by Centre County Court of Common Pleas Judge Jonathan Grine. Judge Grine’s ruling was reversed in May 2017 by Pa. Commonwealth Court. The Pa. Supreme Court declined a petition for appeal in November 2017.
- Under the Terms and Conditions of the Cottages PRD approval by Ferguson Township on November 16, 2015, an executed Stormwater Management Agreement was to be signed and on file before approval of the PRD. As of April 9, 2018, Ferguson Township had no executed Stormwater Management Agreement on file.
- Under the Terms and Conditions of the Cottages PRD approval by Ferguson Township on November 16, 2015, sections regarding responsibility for stormwater management facilities refer only to facilities “within the PRD.” However, the two main stormwater management facilities (large detention basins) are located on 5.5 acres that are not “within the PRD.” This strongly suggests that the private owner of the Cottages PRD land (State College Apartments LLC) and their successors are not legally responsible for the maintenance, operation and damages from failure of the stormwater detention basins and resulting public water contamination.
- The Centre Region Parks & Recreation Authority submitted a Land Development Plan (LDP) to Ferguson Township for the Whitehall Road Regional Park several years ago. The LDP was withdrawn after several years of delays. There is currently no active LDP submitted to or under review by Ferguson Township. The CRPRA is currently working on design, permitting and construction plans to present to the Centre Region Council of Governments General Forum at General Forum’s late-May meeting.
- The WRRP land development is to be funded by taxpayers, through the Centre Region Council of Governments General Forum by way of the CRCOG Parks Capital Committee, through the Centre Region Parks & Recreation Authority, through a Fulton Bank loan.
- The Cottages land development is to be funded by private investors, through Toll Brothers, doing businesss as Springton Pointe, doing business as “State College Apartments LLC,” which was incorporated in Delaware on December 13, 2017, through registered agent “The Corporation Trust Agency,” headquartered at 1209 Orange Street, Wilmington, along with about 285,000 other shell corporations as of 2012, according to the New York Times: (“How Delaware Thrives as a Corporate Tax Haven,” June 30, 2012).
- After incorporation on December 13, 2017, State College Apartments LLC closed a transaction with Penn State University on December 21, 2017, purchasing the 46 acres for $13.5 million. The deed transfer was recorded December 22, 2017. It’s possible that State College Apartments LLC is a wholly-owned subsidiary shell corporation of Penn State University formed to protect Toll Brothers from the financial risks of additional project delays; the names of the directors are not public information.
- PA-DEP and UAJA have both approved a “sewage planning module” related to the Cottages + Whitehall Road Regional Park sewage pump station and force main (i.e. uphill) sewage conveyance pipeline. As of February 2015 documents, the sewage pump station, wet well and pipeline were intended to process 46,900 gallons per day of raw sewage from the students living in the Cottages (268 EDUs @ 175 gpd), and 1,050 gallons per day of raw sewage from visitors to the Whitehall Road Regional Park (6 EDUs @ 175 gpd).
- The Cottages + WRRP Sewage Pump Station is not proposed to be constructed on private land owned by State College Apartments LLC.
- The Cottages + WRRP Sewage Pump Station is proposed to be constructed on public land owned jointly by Centre Region Council of Governments and Ferguson Township – on a portion of 100 acres slated for WRRP development, which is zoned Rural Agricultural (RA).
- It is possible – nay, likely – that the Cottages + WRRP Sewage Pump Station and sewage conveyance pipeline – with a combined capacity of 47,950 gallons per day, of which 2% is for park visitors and 98% is for Cottages residents – will be included in a forthcoming Land Development Plan submitted by the Centre Region Parks & Recreation Authority to Ferguson Township for the Whitehall Road Regional Park development.
- The Borough of State College has the sewage capacity and has in the past indicated a willingness to accept up to 1,050 gallons per day of WRRP sewage through a gravity (downhill) line conveying the public, park visitor sewage along Whitehall Road to an interceptor near the intersection of Waupelani and Whitehall and from there to the UAJA treatment plant off Shiloh Road.
- The Borough of State College has in the past indicated an unwillingness to accept the 46,900 gallons per day of student sewage from the Cottages, preferring to reserve large volume private-development sewage capacity for Borough development, rather than expend it on Ferguson Township development.
- Apparently sometime after the Pa. Supreme Court declined to review the Nittany Valley Water Coalition case in November 2017, and the present, the Centre Region Parks and Recreation Authority issued a letter to State College Apartments LLC/Toll Brothers/Springton Pointe and/or the project engineer, PennTerra Engineering, consenting to State College Apartments LLC siting the Cottages + WRRP Sewage Pump Station and associated pipeline on the public land owned jointly by CRCOG and Ferguson Township for the future public park.
- Ferguson Township was not notified of the CRPRA planned action or given an opportunity to review or approve the consent action taken by the Parks Authority board.
- There is no DEP public notice requirement for sewage systems proposed to increase sewage flows by less than 50,000 gallons per day.
- State College Apartments LLC/PennTerra will site, design, fund and construct the Cottages + WRRP Sewage Pump Station and force main conveyance pipeline.
- After construction, UAJA will own, operate and maintain the Cottages + WRRP Sewage Pump Station and force main conveyance pipeline.
- By email May 10, 2018 in response to a question about “the contingency plan if a sinkhole opens under or near the extra-large wet well at the Toll Brothers pumping station, and breaches the holding tank” upslope and near the two main SCBWA public drinking water supply wellfields (Harter and Thomas) UAJA Director Cory Miller replied: “UAJA does not have a contingency plan for a sinkhole opening under or near this pump station, or any other pump station.”
- By email May 11, in response to a question about “the contingency plan if a sinkhole opens under or near the extra-large wet well at the Toll Brothers pumping station, and breaches the holding tank” upslope and near the two main SCBWA public drinking water supply wellfields (Harter and Thomas), SCBWA Director Brian Heiser replied, “There is a plan to address sinkhole issues on the approved Cottages site plan. SCBWA would not necessarily shut down wells because of a sinkhole. Each case would be evaluated as needed.”
- State College Apartments LLC is currently seeking an easement from the State College Borough Water Authority board to construct the 4,200-foot force main sewage pipeline uphill and across the edge of 60 acres of SCBWA-owned land fronting Whitehall Road, along Whitehall Road to Stonebridge Drive. The easement would nullify a conservation deed restriction placed on the 60-acre parcel when Penn State sold it to SCBWA in 2008.
- All three parcels are topped by thin agricultural soils, underlain by bedrock and fragile – sinkhole and fracture-prone limestone karst
- A numbered drainage tributary (intermittent stream No. 23045) to Slab Cabin Run crosses all three parcels: the 46-acre Cottages parcel-complex (R-4 + RA-zoned), the 100-acre WRRP RA-zoned park parcel and the 60-acre SCBWA RA-zoned conservation parcel.
- The SCBWA board is likely to vote on the easement request on Thursday, May 17 at 4 p.m. at 1201 West Branch Road.
Three contamination scenarios:
Who will pay the costs of any public contamination resulting from the Cottages + WRRP land developments?
Scenario 1 – Pump station, wet well and force main completed, UAJA begins operations, sinkhole forms under wet well or wet well otherwise malfunctions due to poor siting, design, construction, operation, maintenance; raw sewage enters Harter Thomas wells, public water is contaminated, wells are shut down temporarily or permanently.
Scenario 2 – Pump station, wet well and force main completed, UAJA begins operations, pipeline conveying sewage across SCBWA land to Stonebridge Drive breaks or malfunctions, due to poor siting, design, construction, maintenance and/or operations, raw sewage enters Harter and Thomas wells, public water is contaminated, wells are shut down temporarily or permanently.
Scenario 3 – Stormwater basins completed, Toll Brothers or their successor begins operations/maintenance, sinkhole opens under basins or stormwater basins otherwise malfunction and overflow due to poor siting, design, construction, maintenance and/or operations; unfiltered runoff enters Harter and Thomas wells, public water is contaminated, wells are shut down temporarily or permanently.