Bishop Tube Development Proposal
Update: February 10, 2021 the East Whiteland Board of Supervisors approved the proposal to build 92 homes on the highly contaminated Bishop Tube site without even a remediation plan in place, let alone the full and protective remediation needed, was approved by the Board of Supervisors at their February 2021 meeting. This shocking turn of events needs an immediate legal response. We need your support so we can take the Township to court for their failure to properly protect the community, enforce applicable law, and fulfill their constitutional duty to protect the environmental rights of township residents and those who live downstream.
More than 200 people showed up at a June 7 informational meeting to challenge the Pennsylvania DEP about the proposed development of the Bishop Tube site in East Whiteland Township. Residents are concerned about the proposed clean-up of toxic TCE at the formal industrial site. PADEP officials were also challenged by the Delaware Riverkeeper Network about details of the case that had not been released to the community
The Bishop Tube Site is a former metals processing plant located in East Whiteland Township, PA. The site is bordered by Little Valley Creek, a tributary to the exceptional value Valley Creek. Portions of the site are wooded. As a result of the historic uses at the site it has been designated as a Brownfields site.
Groundwater, soil and surface water at the Site are contaminated with TCE, which is classified as a probable human carcinogen by the EPA, and related products. TCE is chlorinated solvent and one of the problematic volatile organic compounds (VOCs) identified at the site, first in 1987. Chlorinated solvents are dense non-aqueous phase liquids, or DNAPLs. They are denser than water and have a low solubility. However, they are sufficiently soluble to cause a problem in both ground and surface water. The EPA maximum contaminant level (MCL) for TCE is 0.005 mg/l, with a zero desirable concentration (https://www.epa.gov/ground-water-and-drinking-water/table-regulated-drinking-water-contaminants#Organic, visited 2/18/17). EPA lists it as a discharge from metal degreasing sites or other factories and that it causes liver problems and an increased risk of cancer (Id.). Related compounds could include 1,1,1-trichloroethane and 1,1,2-trichloroethane (Id.).
Constitution Drive Partners, the current owner, is proposing a residential development at the site. They had sought to secure a $1 million grant of state funds to undertake a partial remediation of the site so they can cut the trees, alter the landscape and build over 200 residential townhomes. Saturated soils and groundwater, including discharges to neighboring Little Valley Creek, would remain with plans for full remediation unknown. Community concern and opposition to this misuse of taxpayer dollars prevented the $1,000,000 payout to the developer. This was a big victory in the battle for cleanup of the site and its ultimate protection as natural open space.
The developer has continued to advance options for developing the site, the most recent proposal being submitted in the Fall, 2020 for over 92 residential townhomes -- while this is a decrease from the original footprint it is still a major threat to the community and Little Valley Creek both in terms of cleanup and enduring environmental harms.
The Delaware Riverkeeper Network opposes development of the site. We are joining the community in calling for full remediation of the site, at the expense of the known responsible parties, the natural woods, wetlands and creek protected, and the property turned over to the community as preserved natural open space.
The 13.7 acre Bishop Tube site (located in Chester County, PA, on the east side of Malin Road, south of US Route 30) has been abused by industry for over 50 years. The site, formerly used to process precious metals and fabricate tubing and pipeline products, is heavily contaminated with chlorinated solvents, acids and heavy metals. This contamination has impacted neighboring communities and the environment.
Rather than continue the abuse, and destroy all the natural beauty of the site for a massive, oversized, development, the community wants the site contamination fully cleaned up by responsible parties and the site protected as natural open space. Protection will benefit all who live around the site in Frazer, Malvern and East Whiteland, and will benefit all who appreciate, enjoy, and live along Little Valley Creek, tributary to Valley Creek, the stream directly in jeopardy from the proposal.
Contaminants currently at the site include TCE, nitric and hydrofluoric acids; various oils; and other hazardous materials not properly handled or disposed of. Industrial operations began in 1951. The plant closed in 1999.
While the site is dangerously contaminated, there is also beautiful nature worthy of saving. Woodlands, wetlands and Little Valley Creek, part of the exceptional value Valley Creek watershed, grace the location as well.
The proposed development, including approximately 200 new homes, would cut trees, damage the creek and wetlands, and only partially address contamination at the site. Saturated soils and groundwater would remain highly contaminated. Contamination would continue to affect the surrounding environment and community, including ongoing discharges of contaminated groundwater to Little Valley Creek. When full remediation would take place and at whose expense continues to be totally unknown.
Major Developments and Stages of the Fight for Cleanup & Protection:
SLAPP Suit to Silence Community
June 27, 2017, Brian O'Neill and his corporate counterparts filed a SLAPP suit against the Delaware Riverkeeper Network, Delaware Riverkeeper Maya van Rossum, a private citizen and threatened to include 10 additional residents as defendants.
On August 22, 2017 the SLAPP suit was quickly dismissed with the judge ruling: "This is what we call constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution..."
September 22, 2017 Brian Oneill and his counterparts appealed the decision, once again misusing the law to try to threaten opposition to his plans for Bishop Tube. September 6, 2018 the Pennsylvania Superior Court dismissed the appeal, finding no basis for overturning the case. In a September 20, 2018 filing, O'Neill et.al sought to have the court reconsider the decision.
November 2, 2018 the Superior Court summarily rejected the request for reconsideration.
Effort to Secure EPA Documents
On July 28, 2020, Delaware Riverkeeper Network (DRN) filed an administrative appeal against the Environmental Protection Agency’s Region 3 office (EPA) due to EPA’s failure to respond to DRN’s September 3, 2019 request for production of documents, under the Freedom of Information Act (FOIA). DRN’s request sought the production of all records in the EPA’s possession regarding the Bishop Tube Site. Under FOIA law, the EPA is legally mandated to fully respond to a request for records within 20 working days from the date that the request was received, unless unusual or exceptional circumstances exist. DRN argued that EPA continuously delayed the full production of documents for 10-months without asserting that unusual or exceptional circumstances exist. DRN also argued that the partial production of documents submitted by EPA were not responsive to DRN’s request.
On August 18, 2020, EPA’s General Law Office granted DRN’s appeal regarding the request for EPA documents and stated that DRN’s request would be remanded to Region 3 to conduct an additional search and release the responsive documents to DRN.
Development Proposal, Major Milestones in the Effort to Secure Clean up and Natural Open Space Protection (this timeline provides the most recent developments first)
February 10, 2021-- the East Whiteland Board of Supervisors approved the proposal to build 92 homes on the highly contaminated Bishop Tube site without even a remediation plan in place, let alone the full and protective remediation needed, was approved by the Board of Supervisors at their February 2021 meeting.
September 29, 2020 -- DRN and the community submit comments and testify at multiple township meetings over the course of the Fall/Winter 2020-2021 to urge the Planning Commission and the Township Board of Supervisors to reject the developer's plan given that there has been no substantive cleanup of the Site, the development proposal merely indicate the presence of contamination “to be remediated” by someone and at some undisclosed future time, the State has yet to approve a cleanup plan for the site leaving everyone in the dark as to what may or may not happen in terms of ongoing contamination, and as a result the health, safety, private property and public natural resources continue to be at risk. You can review the Sept 29, 2020 comments DRN submitted on this matter to the Twp Planning commission here.
July 2020 -- the Developer submits new plan for 92 homes while contamination at the site remains unaddressed. The Delaware Riverkeeper Network is undertaking expert reviews of the plans and will share our comments and thoughts shortly. You can find copies of the submissions at: http://www.eastwhiteland.org/351/Bishop-Tube-Land-Development
January 27, 2020 -- The Delaware Riverkeeper Network submits new comments regarding the Remedial Investigation and Feasibility Study submitted to DEP. You can read the whole comment here.
September 27, 2019 -- Delaware Riverkeeper Network submits new comments to the Township and PADEP. The closing paragraph of the comment reads:
"Clearly, the Township cannot provide an approval for proposed development, and PADEP cannot provide an honest and supportable Feasibility Study Report review, based on this morass of inaccurate, inconsistent, undefined, undetermined, and wishful thinking assumptions and assertions. It is time for the Township to reject the CDP development proposal and for PADEP to demand a defensible Feasibility analysis that is based on reality."
Want to learn more? You can see the whole comment here.
On August 14, 2019, the Township BOS approved a letter from O’Neill granting an extension of time to February 28, 2020 for the Township to act on the revised Preliminary Plan.
You can find information about the new development proposal on the township website at: https://www.eastwhiteland.org/351/Bishop-Tube-Land-Development
July 1, 2019 -- PA DEP has posted the remediation investigation documents for public review. You can find them here. We will provide additional detail on the proposal and comment opportunities as information emerges.
July 1, 2019
The Delaware Riverkeeper Network continues to submit comments to the Township and other officials expressing concerns regarding the October 2018 CDP development proposal. Read here for the first set of comments, here for the second set, here for the third set. If you would like to submit your own comment you can gather all the information to do so here.
April 29, 2019 — Delaware Riverkeeper Network Wins Challenge Over State Sweetheart Deal With Bishop Tube Site Developer
East Whiteland, Chester County, PA–Responding to a legal challenge filed by the Delaware Riverkeeper Network, the Pennsylvania Environmental Hearing Board (EHB), in a rather scathing opinion, has ruled that the Pennsylvania Department of Environmental Protection’s approval of amendments to a Prospective Purchaser Agreement that would allow development of the highly contaminated Bishop Tube site located in East Whiteland, PA is “arbitrary and capricious” and therefore the agreements are void. View the rest of the press release and decision here.
May 7, 2019 -- East Whiteland Open Space Advisory Committee Meeting.
Important opportunity to speak for preservation of the Bishop Tube site as natural open space. Please attend the upcoming East Whiteland Open Space Advisory Committee meeting and urge that preservation and protection of the Bishop Tube site as natural open space for the benefit of the community be given highest priority in open space and township planning and investment. View the details here. RSVP by Thursday, May 2nd to: Brittany Bulger at email@example.com or at 610-648-0600 x398.
October 9, 2018 -- New Development Proposal submitted to East Whiteland Township:
October 9, 2018 new plans for developing the bishop tube site were submitted. The development is limited to the actual bishop tube manufacturing site and so the number of units is limited to what was originally proposed (or thereabouts) for this area. The proposal is for 93 units. While this seems far less than the original 228 proposed, because we are talking about a significantly smaller area of land, in fact what is being proposed is comparable to what was proposed in the past.
Please express your thoughts, concerns and ask your questions of the East Whiteland Supervisors. They meet at 7 pm on the second wednesday of each month.
As of February, 2018, the Delaware Riverkeeper Network has pursued three legal actions regarding the Bishop Tube site:
1. February 21, 2018, the Delaware Riverkeeper Network filed an appeal with the Environmental Hearing Board challenging the Pennsylvania Department of Environmental Protection’s (DEP) ratification of two amended Prospective Purchaser Agreements (PPA) (which are settlement agreements) entered into with a proposed developer of the former Bishop Tube site, a highly contaminated site located in East Whiteland, PA. The organization challenged the agency for being a rubber stamp on the deal that were not publicly noticed until 7 to 10 years after they were signed by the state. The challenge asserted that the state failed to acknowledge critical changing facts, including that the DEP had voided key elements of the agreement which it chose not to disclose to the public, and that the anticipated development shifted from commercial to residential, but this too was not acknowledged by the state. In April 2019, the Pennsylvania Environmental Hearing Board (EHB), in a rather scathing opinion, ruled that the Pennsylvania Department of Environmental Protection’s approval of amendments to the Prospective Purchaser Agreement that would allow development of the highly contaminated Bishop Tube site located in East Whiteland, PA is “arbitrary and capricious” and therefore the PPA agreements are void. Learn more here. The developer has appealed the decision and so the case is ongoing.
2. November 8, 2017, the Delaware Riverkeeper Network filed a legal challenge against the Pennyslvania DEP for its “manifest neglect and dilatory conduct, over a period of seventeen or more years to clean up or cause the cleanup of past and present hazardous releases at the Bishop Tube Hazardous Waste Site (“Site”), which have caused contamination to spread off-Site, and impacting the off-Site groundwater quality, and to impact the Little Valley Creek, an Exceptional Value stream. The main contaminants of concern are Trichloroethylene (“TCE”) and other chlorinated Volatile Organic Compounds (“VOCs”) and metals. These contaminants were released at this Hazardous Site and may continue to be released due to the malfeasance of the DEP and potentially responsible parties.” The case is ongoing.
3. The Delaware Riverkeeper Network submitted two Right to Know Requests to PADEP on February 23, 2017, and PADEP denied access to all responsive records, citing the internal predecisional deliberation exemption, the attorney-client privilege and the attorney work-product doctrine. On April 20, 2017, the organization appealed that decision. On July 5, 2017 the Delaware Riverkeeper Network received a favorable decision from Pennsylvania’s Office of Open Records (OOR), who found that the Pennsylvania Department of Environmental Protection (PADEP) improperly withheld public records regarding the Bishop Tube site in East Whiteland/Malvern, PA.
July 26, 2017: Click here to see video of residents speaking out in defense of their first amendment right to oppose development of, and demand full clean up, the Bishop Tube site.
June 7, 2017: Click here for DRN Comment re PADEP deal with the developer
Plan to Build Housing on Contamined Bishop Tube Site in Chester County Faces Major Setback, Phila Inquirer, 2019-04-29
Environmnetal group challenges decision on bishop tube site, Daily Local, 2018-02-22
DEP accused of neglecting cleanup of contaminated Chesco site, State Impact, 11/09/2017
Chester County Judge Issues Opinion on SLAPP Suit Dismissal (2017-10-24) DRN Press Release, 10/24/2017
Community Protests Bishop Tube Site, Daily Local News, 10/14/2017
Judge throws out developer’s ‘SLAPP suit’ against environmental group, State Impact, 08/23/2017
Chesco advocates accuse developer of trying to muzzle free speech over toxic site, State Impact, 07/27/2017
Activists response to legal battle with developer at bishop tube site, Daily Local News, 07/26/2017
East Whiteland Officials Pull Support for $1 Million Development Grant, Daily Local News, 07/16/2017
Residents Pack East Whiteland Meeting to Oppose Bishop Tube Plan, Daily Local News, 06/9/2017
Chesco Residents Urge Officials to Reject Development Plan for Contaminated Site, State Impact, 04/25/2017
Foes: Don't Develop Bishop Tube Site, Daily Local News, 04/21/2017
On Toxic Site Abandoned for Decades, Developer Sees Townshouses Sprouting in Chesco, Philly.com, 04/10/2017