a note from the “newcomer”

Bishop Tube 2017 photographer unknown

It’s so confusing when developers decide to blame the blogger, isn’t it? I feel so Erin Brocavitch….

And I am confused because this developer refers to his neighbors in General Warren so I have to ask does he no longer live in Lower Merion Township?

As a “newcomer” resident of Chester County, am I supposed to be the perfect Victorian woman and be seen and not heard?

No, I haven’t written lovely large checks to the wonderful and deserving East Whiteland Fire Company, does that make me a bad person?

I do not write the flyers going out. I have expressed my opinions on my blog.  Opinion is not against the law is it? The First Amendment still exists right?

Maya van Rossum is one of the most ethical and dedicated and smart women I have ever met, I am honored to know her.  She is the Delaware Riverkeeper and it is her job to know about these sites like Bishop Tube.

The ultimate irony for me is I am a cancer survivor.  I do not wish cancer treatment on anyone. Ever.  That is why TCE terrifies me. So is that making me a bad person for caring?

The other thing is I have never said don’t develop the Bishop Tube site. I have said do lots and lots of clean-up based on past news articles and other documents and things like first hand accounts from former Bishop Tube employees and why is that bad? I have said I thought it was too much proposed density and why not an alternate, non-residential use but that is my opinion, yes?

So I am sorry the developer thinks I am being unfair, I think I am being justifiably concerned, and is that bad?

Also see this:

delaware riverkeeper to pa dep: can you hear us now about bishop tube?

Bishop Tube 2017 photographer unknown

The Delaware Riverkeeper is keeping up the pressure on the Pennsylvania Department of Environmental Protection (DEP).  Hot off the presses find these two letters:

Bishop Tube is a crazy tale that just keeps getting more interesting, doesn’t it? Trichloroethylene (TCE) is so damn toxic. Yet you have to wonder why is seems the Pennsylvania Department of Environmental Protection (DEP) seems to play dodge ball on it at Bishop Tube, right? (Here is something the EPA put out around 2015 *I think* and something else from Arizona  and how NASA deals with TCE.)

Pennsylvania Department of Environmental Protection (DEP) is the agency that is supposed to protect residents from toxic hazards, yet who is supposed to protect residents from them? I hear State Senator Dinniman’s office is starting to feel the pinch of Bishop Tube phone calls but what is he actually doing? (keep calling Phone: 610.692.2112 Fax: 610.436.1721 for West Chester PA and Phone: 717.787.5709 • Fax: 717.787.4384 for Harrisburg )

The Agency for Toxic Substances and Disease Registry has some fun facts to share about TCE :

Hey Erin Brocavitch can we interest you in a little good old PA TCE????

the tale of the bishop tube documents

Bishop Tube 2017 – Photographer Unknown – found on East Whiteland Township Community Huddle Page

Bishop Tube…yes…more, more, more on Bishop Tube. I  do not seek information out, it finds it’s way to me.  Today’s offerings are a slew of documents from the Pennsylvania DEP and other places going back into the 1990s and stopping a few years ago. People have been hanging onto stuff to save for a rainy day.

Someone said to me these few documents tell a story – and can you imagine all the documents we will probably NEVER see on Bishop Tube?

Anyway, after wading through these documents the story being told to me is someone should have cleaned this place up already, and why isn’t this on the EPA’s radar?

Since someone dropped a little “sunshine” in my lap, I am paying it forward and putting them out there.  Just for the record I am not trying to be another Erin Brocavitch. This stuff just found it’s way to me…..

1st Amendment to Consent Order and Agreement PA DEP 1.22.2007

Administrative Record Docket Bishop Tube Site Events from 1998 to 2006

Bishop Tube 1999 Ground Water Sampling Done for DEP

Bishop Tube Cost Recovery 2006

Bishop Tube old media clippings

DEP 1

DEP Analysis of Alternatives Bishop Tube 12.14.2006

DEP and CDP Consent Order and Agreement 3.17.2005

DEP Little Valley Creek Surface Water and Spring Monitoring 8.27.2003

DEP Scope of Work Air Sparging Hot Spot Response 1.26.2006

HSCA Response Justification Document Bishop Tube 3.13.2000

Notice of Prompt Interim Response 3.14.2000

Old Bishop Tube Company History Pamphlet

Prelimnary Remedial Action Work Plan for Soil Remediation at Bishop Tube 3.11.2005

Surface Water Investigation Bishop Tube 2005

And always interesting? Old invoices  Old Bishop Tube and Related Invoices

bishop tube plan met with a packed east whiteland zoning boardroom

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The developers did not show up with very many copies of site plans.  I do not think they were expecting a completely packed room which included people standing for the East Whiteland Zoning Hearing Board meeting on February 27th.

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It was so amazing to see all the people turn out.  General Warren Village and General Warren Village supporters did an AMAZING job.

17078041_1462119317134348_485323212_nAnd they had a powerful and unexpected ally in the room: Maya K. van Rossum, The Delaware Riverkeeper.

The role of the Delaware Riverkeeper is to give the Delaware River, and the communities that depend upon it and appreciate it, a voice at every decision-making table that could provide help or do harm. The Delaware Riverkeeper Network that van Rossum leads is the only citizen action organization that works the entire length and breadth of the Delaware River and its watershed, speaking and working for both its protection and its restoration. Delaware Riverkeeper Network has its main office in Bristol, PA and can be found on the web at www.delawareriverkeeper.org. van Rossum’s blog can be found at http://www.delawareriverkeeper.org/blog/ – they have a Water Watch hotline and well, in an era of David vs. Goliath, they give “David” an edge.

Maya was an incredible addition  to last night, and I will get to that later. (she is FIERCE!)

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We did have one of the three supervisors in attendance last evening, which I found heartening.

East Whiteland also sent a solicitor to represent at the zoning meeting on Bishop Tube.

Here are some notes taken on the fly – so feel free to add to them or correct:

  • Board of Supervisors responded last evening via attorney to concerns. Township is closely monitoring remediation, impact of remediation, standards and monitoring of remediation etc etc.
  • Township wants safer environment. Township right now in opposition of variance according to lawyer unless certain conditions met with Township.
  • DEP has approved conditions*  BUT township reviewing. BOS is reviewing with EAC and then they will decide whether to object to variance request.
  • March 15 special meeting being asked for by Zoning. The meeting (hearing) was ultimately continued to March 15, 2017 at 7:15 PM  
  • * “Conditions” referred to above Developer expert is talking about conditions discussed with DEP- didn’t catch all – witness for developer was speed speaking:
    ~ Establish a separate environmental escrow associated with development $20 k
    ~ Non refundable deposit to future HOA
    ~ Applicant will remediate 3 major hotspots in accordance with scope of work submitted to DEP – digging out soil as per Act 2. But it isn’t Act 2
    ~No disturbance in 3 soil hot spots until remediation complete (New construction?)
    ~ Applicant will install vapor mitigation systems. Most stringent available designed by engineer. Review said systems, maintain?
    ~ Developer would obtain stormwater permit – county/state – did not catch acronym
    ~developer will provide access to DEP etc
    ~ utilities will be developed to prohibit vapor migration/ groundwater migration
    ~environmental covenant
    ~ developer will comply with local zoning
    ~ developer will document remediation
    ~ until 3 hot spots remediated no construction of residential units.
    ~ developer would submit demolition plans to township and DEP

(NOTE: very abridged version of above – expert was speaking so very quickly and I don’t take dictation professionally so I did my best – I know I missed one of the conditions – feel free to add or clarify in comments.  It would be helpful if media had covered meeting, but I did not see any media there at all.)

  • Something about collecting storm water and capture and release to stream? Not sure if I heard that right . ZHB has concerns about retaining wall and safety- 20+ storm water “systems” – all release to stream. What environmental impact does that have considering existing toxicity of site? How is water cleaned? Whose job will it be to stay on top of that?
  • Final stormwater discharge into / near emergency access so does that mean General Warren gets water?
  • GWV residents are pointing out a shallow stream expected to take developer’s stormwater. Is GWV in part going to be part of stormwater management plan? They say no construction vehicles on village way (developer)?
  • Maya (Delaware Riverkeeper) asking about volume reduction and other things relating to creeks. Asking about correspondence on sampling between developer and DEP. Asking about TCE staying in place?
  • Residents questioning stormwater retention basin(s) and retaining wall.
  • More questions on stormwater runoff into stream and does stream have capacity to handle it?
  • Vapor intrusion being discussed by older gentleman- potential cancer cluster – people with cancer in General Warren Village? (couldn’t hear all of it clearly)
  • ZHB kept quizzing on removing top soil, Remediation , etc
  • Elevation from General Warren Village to retention walls eye level according to developer witness? Residents asking what they would see from Village Way? Someone from General Warren remarked about being able to see from “bathroom windows”
  • Maya the Delaware Riverkeeper talked about the planting of trees and trees they were removing – good point as developers tend to remove and replace NOT with the same size plantings.  And they spoke of riparian buffers, but not what they consisted of or if they would be substantial.
  • Keith Hartman who worked at Bishop Tube is asking questions. He is extremely knowledgeable about site. He spoke about how they used to “dispose” of the toxic chemicals in one part of site in the old days (sounded like they just dumped stuff kind of wherever?)
  • Mr Hartman pointing out toxic hotspots – see dark grey areas – and asking about mineral salts.16997882_1656917767655212_7768959074626449609_n

 

 

  • Mr. Hartman asking about sampling near old parking lots that were near spill. Not sure but it might have been that 1981 incident?

1981-bishop-tube-acid-spill

  • A gentleman (I guess investigator?) from PA DEP   visited Mr. Hartman recently – Marinelli or Martinelli? (Not sure but found a Martinelli listed HERE.)

16996122_1656917777655211_6973859171944418389_nHere are  articles where Mr. Hartman was in the paper – he knows the site SO well:

For Bishop Tube workers, danger lurked for decades

 By Anne Pickering Daily Local

 

Bishop Tube site possibly up for development

POSTED: 07/26/15, 6:47 PM EDT

“Don’t let them blow smoke up your tailpipe,” said Keith Hartman, “those mineral salts must be cleaned up.”

Hartman worked for Bishop Tube when the plant was still in operation. He, like many neighbors who attended the meeting, are concerned of possible health risks to potential residents if the site is not cleaned up properly.

 

In January there was a follow up article in Daily Local about Bishop Tube:

Plans to develop contaminated East Whiteland site resubmitted

POSTED: 01/25/17, 2:09 PM EST

…..When asked what kind of remediation the site needs to undergo before construction can begin, Virginia Cain, a DEP spokeswoman, wrote in an email that the former tubing plant will need soil and groundwater remediation in accordance with cleanup standards set forth in Act 2.

Act 2, also known as the Land Recycling Program encourages “the voluntary cleanup and reuse of contaminated commercial and industrial sites,” according to the DEP.

Cain wrote that the standards in Act 2 can include both statewide health standards and site-specific standards.

When asked if the site is considered a “Superfund” site, Cain wrote that “Superfund” sites refer to a federal program, but that the Bishop Tube site “is currently on the Pennsylvania Priority List and under the authority of the DEP’s HSCA (Hazardous Sites Cleanup Act) program, which is similar to the federal Superfund program.”

17022164_1656917744321881_1116283631204593680_nNow one of the most interesting parts of the meeting occurred between Maya The Delaware Riverkeeper and one of the developer witnesses (some sort of engineer I thought).  It was at the end of the meeting before they called it to continue March 15th.

I was taking notes like crazy and this one exchange was so interesting – I did my best to be accurate but again I do not take dictation and I am not a court reporter, although there was one there:

Maya: “I would have you speak to what in fact what is left for DEP to to review and decide upon and what process is still left?

Two – There also seems to be this suggestion that anytime additional contaminants are found that they are going to be cleaned up, and so this site is going to be cleaned up…and so  I would like you to speak to this issue of whether or not in fact when you are done at this site that all of the TCE and toxic contaminants will be removed, so people don’t have to be concerned about it, or in fact is that not true and you have specifically and carefully with all your  communications with DEP actually limited the scope of your remediation including not going to uhhh saturated soils for example, 12 feet below ground surface, etc?”

 

Witness for developer: “That’s absolutely correct.”

 

Maya cuts back in “You are not? You are limiting, you are capping how much work you will do and you will intentionally leave contaminants on the site and people need to know that.”

 

Witness “That is correct.  Allow me to explain in a way that is no way nefarious…”

 

He (witness)  goes on to explain liability and  an old consent order (??is that right???)  with DEP and state version of hazardous clean up – PRPs – potentially responsible parties.  He goes on into known contamination beyond the scope of their legal responsibility – about how they will clean up so much and then it seems it will be up to DEP to enforce clean up by PRP potentially responsible parties that I guess are former manufacturing occupiers of site?

 

Witness acknowledges issues, discusses how developer will be doing more beyond satisfying their part of old (?) consent order (?) and will excavate three known soil contamination issues of the site above water table, excavate, clean up according to most stringent PA standard, residential statewide heath standard…acknowledges caused contamination of groundwater on site that migrates off site, affects tributaries of Little Valley Creek.  They believe their  soil excavations will have a beneficial effect towards clean up.

 

I do not think enough monies being set aside by developer to pay for experts East Whiteland may need to hire are much because experts are expensive – environmental lawyers and environmental engineers. Monies quoted could disappear quite quickly – those experts bill expensively, right? And what about any monies for future HOA? How does East Whiteland know if THAT is sufficient?

Other questions that  I have include the fire department – as the plans are currently drawn up are there any indications from East Whiteland Fire Department about cartways and whatever you call them? Will all fire apparatus be able to navigate site?  I feel that this  is VERY important – it is not just abut emergency access from General Warren, but will ALL of their apparatus safely navigate the plans as currently available? Those big rigs need room!

A related aside – here are the LLCs on the developer side:

16991694_1656361451044177_7467780664617090460_o 17038963_1656361521044170_6151837136672422606_o16998658_1656361344377521_3476224322423310321_n

As I said previously, O’Neill knows how to do brownfield developments, but what about Benson Companies? I can only find Benson on Houzzz, no current website.  No mention of Bishop Tube on O’Neill’s website so that is somewhat concerning and want to know why? Two words: Linden Hall. Remember when Benson was thought to have been the savior of old Linden Hall? If they received their approvals for townhouses at Linden Hall, how they were going to restore Linden Hall itself as a new office for them? What did we see instead?  Wasn’t it selling approved plans to Pulte and no rehabilitation thus far only minimum maintenance?

And then there is the issue brewing in Tredyffrin Pattye Benson alerted everyone to. Historic Howelleville being their location for yet a total community destroying cram plan? And what of how Radnor residents feel about Benson?  I have to ask can Benson actually be trusted here? Or will residents go through all the heartache and meetings to have these plans sold off to someone else?

I do not recall last evening that the developer’s attorney got into the whys of it all concerning WHY the developer is seeking zoning variances, so will it be the battle cry of “economic hardship”? Or, they can’t build without a variance which would increase density in an already dense plan? And why is any developer’s potential economic hardship a burden a community getting a plan inflicted upon them not by their desire in the first place?

This site is going to be developed, I am not arguing that.  I have never argued that.  But it is a very toxic site because of the TCE and whatever else was left behind and is lodged in the land, the aquifer. How the site gets developed has always concerned me and I ask again, is this the best use for the property?

What of impact on the school district?  How are a few more hundred to potentially few thousand kids from this plan combined with Atwater and any other development large or small going to affect the school district? Has the school district weighed in on this?

Traffic lights proposed?  Who is paying for that if variance is waived? The previous zoning is in place to help preserve open space or farms or industrial from being over developed.

And what kinds of complementary businesses will be added to the surrounding area to support these new homes? Will that zoning need to be changed too?  What is it costing East Whiteland residents in legal fees for all of this now (let alone the future)? Will this plan be one that is truly economically viable for East Whiteland or become another millstone around East Whiteland’s proverbial neck?

Why always townhouses instead of single family homes?  Lighting and noise? How will this development affect General Warren Village with regard to those issues?

I do believe that the Zoning Hearing Board is weighing this all carefully, but I would say that residents MUST keep up the pressure.  Packing the boardroom last evening was a great start.  But there is a while to go.

I have done my best to relay my meeting notes accurately.  Others may add to them.  Of course it would be helpful if the media took an interest. And it would be helpful to hear what development happy Brian O’Leary of the Chester County Planning Commission thinks? Does he have an opinion?  He was around serving in Lower Merion when ROHO and O’Neill’s now defunct Rock Hill Road project came about, so realistically he knows a similarly dense plan THERE was horribly unpopular as was the B.S. developer driven zoning overlay that allowed it, doesn’t he?

And what of the PA DEP? Don’t they have an obligation to make the PRP (Potentially Responsible Parties) freaking clean up the Bishop Tube site???  After all the developer will not be responsible for all that should be done so why when discussion of clean up started here so long ago, it has never happened? Remember that Law360 article from 2014 in addition? Or the memorandum from the case that was in Federal Court over this site most recently? How is it a Federal judge did not get the gravity of Bishop Tube?

There you have it in conclusion – the worst part about Bishop Tube is the longer this goes on the more we have to ask ourselves how we got here and what exactly is the PA DEP going to do about it, let alone the EPA on a Federal Level?  Or what about state elected officials? Duane Milne and Andy Dinniman? Duane Milne was all Mr. Press Release in 2007 but what has he done for anyone lately?

Where is Erin Brocovitch and Tom Girardi when you need him? Call me crazy but I think General Warren Village and neighboring Malvern Borough residents deserve the best thing possible with regard to this plan, don’t you?

Sigh…to be continued….feel free to leave comments anyone who was in that packed room last night.

plan-1

what bishop tube looks like (and more legal stuff filed)

DSC_8760I went to Malin Road and stood outside the fences of Bishop Tube today.  Totally creepy and deserted.  I was glad to see an unmarked police car do a drive by a couple minutes after I got there, the place gave me the willies.

DSC_0009

I took photos from outside the fencing on the road. What a weird feeling to be out on such a gloriously beautiful day, yet there was the overwhelming creepiness of the Bishop Tube Site, all abandoned and the only way to describe it was the place seems to radiate negative energy.  Don’t see how that feeling will be eradicated by plastic townhouses marching row after row.  The site doesn’t appear to be particularly secure and given what appears to be vandalism, nor does itappear as if it has been for years has it?

DSC_0013

Staring at the site, I couldn’t help but wonder where the PA DEP was on this? I can find on the Internet where they were in the past, but not in the present. Or the EPA, which is so screwed up just read THIS and THIS and THIS.  Here let me share this:

The EPA Should Resign in Shame over Orange River

Let States Step Up to the Plate on the Environment

The cause? None other than a mistake by the US Environmental Protection Agency. The Wall Street Journal reported details on the incident Sunday, noting that the spill was initially downplayed by the EPA, and that it was much larger than first reported. Most importantly, as of Sunday, the mine is still releasing wastewater at a rate of about 500 gallons per minute. The pollution incident is ongoing.

This latest toxic release is yet another example of the EPA spectacularly failing at its primary mission. As I’ve expressed in this space before, the government is not particularly competent at environmental remediation and management.

When you read things written by critics of the PA DEP, it is often not much better. Look these government agencies have good intentions but they all seem to get in their own way and in the end are the accomplishing their goals of protecting all of us?

Just check out this article from 2014 about fracking contaminating drinking water :

The Pennsylvania DEP has been criticized for its poor record of providing information on fracking-related contamination to state residents. In April, a Pennsylvania Superior Court case claimed that due to the way DEP operates and its lack of public record, it’s impossible for citizens to know about cases where private wells, groundwater and springs are contaminated by drilling and fracking.

“The DEP must provide citizens with information about the potential harm coming their way,” John Smith, one of the attorneys representing municipalities in the lawsuit, told the Pittsburgh Post-Gazette. “If it doesn’t record and make available the violations records then it is denying the public accurate information, which is unconscionable.”

When is the last time the PA DEP or EPA took a good look at sites like Bishop Tube in Pennsylvania?  These aren’t new sexy disasters, they are plodding along existing trouble spots so now that there don’t appear to be lots of  government money floating around for clean up ( a la “Growing Greener“) who cares about these toxic sites like Bishop Tube?

Now the PA DEP mentions Bishop Tube in it’s 2014 report, yes but it isn’t in so much detail is it? I found the annual reports on the DEP website which crashes a lot. So where are State Representative Duane Milne and State Senator Andy Dinniman on Bishop Tube?  Aren’t they supposed to be looking after Chester County residents on this topic as well?

I happened to check the court dockets on the Bishop Tube litigation mention in prior posts when I came home and there are a few more filings on the case of ordinary hard-working people vs, everyone involved around Bishop Tube.  Here are the two most interesting:

Plaintiff Memorandum Response Bishop Tube 2015

Amended Complaint With Jury Demand Bishop Tube 2015 Aug 12

Apparently although The Daily Local did that curtain raiser of an article a couple of weeks ago, no other media seems interested in a toxic superfund site in bucolic Chester County? Or are there media inquiries and other inquiries starting to foment and ferment behind the scenes?

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Here are a couple of gems from all this legal stuff:

From the plaintiffs’ memorandum (2:15-cv-01919 (GJP) filed 8/10/15):

Table of Auth

Page 4: “The Plaintiffs have alleged that, during the Defendants’ respective ownership and operation thereof, they discharged hazardous substances into the environmental which have migrated onto and into the Plaintiffs’ property including the Plaintiffs’ drinking water. It is further alleged that the Defendants have failed to remediate the contamination, the regulatory authorities have failed to require the Defendants to remediate the contamination and additional response work will be necessary.”

Page 6 “It is alleged in the Complaint that, during their respective periods of ownership and operation of the Bishop Tube site, the Defendants used or permitted the use of hazardous substances, including trichloroethylene (“TCE”), during the manufacturing processes for their seamless stainless steel and other products and that, as a result of the Defendants’ ownership and operations at the Bishop Tube site, hazardous substances, including TCE, were disposed into the environment, including the Bishop Tube site’s soils and groundwater. See Complaint,¶¶34-35. It is further alleged that subsurface migration of contaminated groundwater from the Bishop Tube site has and continues to contaminate the aquifer beneath the Bishop Tube site and beneath off-site premises including the Plaintiffs’ home. See Complaint, ¶36.”

Page 7 “Accordingly, in or about 1999, the PADEP took over response actions at the Bishop Tube site, which included periodic sampling of soil, surface water, groundwater, vapor intrusion pathway analysis and maintenance of monitoring wells in the contaminated aquifer as well as the installation of a soil vapor extraction and air sparging system designed to capture and remove contamination from subsurface soils at the Bishop Tube site. See Complaint, ¶¶42-43.

However, none of the Defendants have taken any steps to actively remediate the contamination that originated on the Bishop Tube site, which has and continues to migrate onto the Warren property and neither the EPA nor the PADEP have taken any steps to compel such remedial activity. See Complaint, ¶44. Further response action is necessary to abate the release of the hazardous substances at the Bishop Tube site which have and continue to migrate onto the Warren property. See Complaint, ¶45.”

A Notice of Intent to Sue was served on all Defendants as well as the EPA and PADEPon December 8, 2014, to which no one responded”

Page 11: “III. Plaintiffs’ RCRA Claim Must Not Be Dismissed

Johnson Matthey next argues that the Plaintiffs’ RCRA claim must be dismissed because it does not adequately allege an “imminent and substantial endangerment to health or the environment” and because the State is diligently addressing the contamination.

However, as described in detail above, the Complaint alleges that TCE contamination from the Bishop Tube site has migrated into the Plaintiffs’ well water. TCE is a volatile organic compound “used mainly as a solvent to remove grease from metal parts, but it is also an ingredient in adhesives, paint removers, typewriter correction fluids, and spot removers.

Trichloroethylene is not thought to occur naturally in the environment. However, it has been found in underground water sources and many surface waters as a result of the manufacture,use, and disposal of the chemical.” There is evidence that TCE affects the developmental and nervous systems in humans and is also carcinogenic. Specifically, there is evidence that TCE can cause kidney cancer and limited evidence for non-Hodgkin lymphoma and liver cancer as well as various tumors in animals. See United States Centers for Disease Control and Prevention, Agency for Toxic Substances and Disease Registry, Toxic Substances Portal for TCE, http://www.atsdr.cdc.gov/substances/toxsubstance.asp?toxid=30 (last visited August 7,2015).

Accordingly, it is respectfully submitted that it is disingenuous for Johnson Matthey to claim that Plaintiffs have not adequately alleged sufficient imminent and substantial endangerment to health or the environment to sustain a RCRA claim.”

Page 13: “Conclusion

Simply stated, in support of their federal CERCLA and RCRA claims, the Plaintiffs have alleged that: (1) the Defendants, including Johnson Matthey, discharged hazardous substances, including TCE, into the environment at the Bishop Tube site which have migrated onto the Plaintiffs’ property and, specifically, into their drinking water; (2) that the Defendants have failed to remediate the contamination; (3) that the regulatory authorities have failed to require the Case 2:15-cv-01919-GJP Document 6 Filed 08/10/15 Page 12 of 13 10 Defendants to remediate the contamination; and (4) that additional response work will be necessary. Indeed, TCE is a carcinogenic. Based on the foregoing, it is respectfully submitted that the Plaintiffs have alleged sufficient facts, which must be presumed true for purposes of this Motion, to withstand a Motion to Dismiss pursuant to Rule 12(b)(6) of the FRCP”

From First Amended Complaint With Jury Demand:

Page 5: 37: “During their respective periods of ownership and operation of the Bishop Tubesite, the Defendants used or permitted the use of hazardous substances, including trichloroethylene (”TCE”), during the manufacturing processes for their seamless stainless steel and other products.”

 TCE

const dr ptnerbish tuNegligence Bishop Tube80 81Ok above are just snippets of the legal documents, quotes, excerpts. You can read for yourself the entire thing as they are uploaded in this post:

Amended Complaint With Jury Demand Bishop Tube 2015 Aug 12

Plaintiff Memorandum Response Bishop Tube 2015

I did not create any of this it is all on the court record.

I am a cancer survivor. I would not wish that on anyone. I have also known people who have seen their children through cancer and trust me, it is too gut wrenching for words. In my opinion based on the research available to publicly peruse, this is site is toxic is it not? And then there is General Warren Village.  Those residents deserve peace of mind don’t they?  They have always been directly affected by Bishop Tube haven’t they?

I am a realist. This might be a creepy site but it is this chunk of land that developers are salivating over (don’t know if they are glowing in the dark from walking around it, however.) This site will be made into something although really it should be cleaned up and left alone since it is also my opinion that this site will take years to properly remediate, and can’t you agree that is reasonable?

But the thing is this: a plan like that not only affects people who want their piece of the American Dream and want to live in gorgeous Chester County who might purchase these cram plan slab on grade no basement wonders if they are built, but potentially every east Whiteland resident in the future, correct?

How can East Whiteland say for certain they would not ever become a party over litigation surrounding this site?  They can’t, can they?  And they have an obligation to current and future residents to see beyond the shiny promises of developers oh so familiar to them, see beyond and some new ratables  down the road, and must put their heads down and see that this site is properly remediated and even get alternate land uses investigated, right? The bottom line is the owner of the land knows how to remediate this properly, they have the experience, correct?

Approving a development plan here while this litigation is ongoing and remediation isn’t complete can be considered a case of putting the cart before the horse, yes? And why is it all we hear is about the developer planning on “capping vapors” with the concrete slabs for the townhouses, yet the current litigation mentions aquifer again and again which is ground water, drinking water, and so on, right? A little different from vapors, right?

East Whiteland has a lot of development balls in the air and should we worry about how the land planning with all the developer driven zoning overlays are getting done?

East Whiteland, you have to do this right. Lives depend upon it. Please.

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is the bishop tube site in malvern completely remediated for environmental hazards?

Bishop Tube in Malvern PA courtesy of Abandoned Not Forgotten

It is a fairly simple question: has the Superfund toxic waste dump of a site known as Bishop Tube been completely remediated? And if not where is it in the process?

According to court records from 2005, the Bishop Tube site groundwater contamination was first formally recognized in 1980:

In 1980, Congress enacted CERCLA. Groundwater contamination associated with the
Malvern Site was first identified in the spring of 1980 in residential wells. (Pl.’s Resp. Ex. 2 at
56412.) In September 1983, the Malvern Superfund Site was listed on the National Priorities
List. (Id.)

Yesterday I wrote a post on Bishop Tube and the latest proposed development. I had the link to a health report. So…Ok look but the thing is this – that health report thing says a LOT about Bishop Tube. The site has been targeted as toxic and been investigated a bunch of time since 1972, correct?  A cancer cluster was alleged in March 2007 by the community, correct?

Community folks reported 1-2 cancer cases in every household at that time, correct? A plume of contaminants from on-site has spread and is in the groundwater and local wells, correct?  A creek flows through there. Traces of the crud have been discovered a mile away, correct? There has been activity to clean up the contaminants at the site, but is it REALLY complete? Until it is complete, crud will continue to move in the plume, correct?

Additionally, since I posted my post I have seen the post shared on social media.  Residents of the area who grew up in and around General Warren have shared memories like this one:

” I remember being evacuated in June 1982 due to chemical spills and clouds of toxic stuff being in the air. Still clear in my mind since was studying for finals and we had to spend the night up in the old school in town. Also remember how my parents felt since there were fire police knocking on peoples’ doors to get out of their homes while the cops stayed in their cars and were using  speakers to get people out.”

Lots of current and former residents who also had relative who worked for Bishop Tube have commented. And have you ever read any of the obituaries of people who worked for Bishop Tube? How many of those people died of cancer? Also getting a lot of reads is a 2007 Daily Local article that was part of a series on Bishop Tube:

Keith Hartman and Dave Worst have many things in common.

They were both born in the 1950s, two years apart. They both grew up in General Warren Village, the modest, working class subdivision located south of Lancaster Avenue near the intersection of Route 29, and named for the historic General Warren Inne.

Like many of their neighbors in General Warren, Hartman and Worst worked at the nearby Bishop Tube Co.

Most significantly, the two men know of former Bishop employees who suffer from potentially fatal illnesses that they believe may have been caused by their exposure to trichlorethylene (TCE), a suspected carcinogen, during their tenure at the plant.

Hartman’s father, Lester Hartman, who worked alongside him at the plant, suffers from Parkinson’s disease, a neurodegenerative disease. Worst has stage two melanoma and lesions on his liver and kidneys that his doctors are monitoring.

According to a report from the U.S. Agency for Toxic Substances and Disease Registry, breathing high levels of TCE may cause nervous system effects, liver and lung damage, abnormal heartbeat, coma and possibly death.

Hartman and Worst can also run off a list of fellow Bishop Tube workers who either died from cancer or nerve diseases, or currently suffer from them.”

Ok so then you peruse all the East Whiteland Planning Commission meeting minutes you can find online that discuss Bishop Tube and here is a sampling:

EAST WHITELAND TOWNSHIP PLANNING COMMISSION MEETING February 25, 2015

ZONING ORDINANCE AMENDMENT; CONSTITUTION DRIVE PARTNERS (BISHOP TUBE) – RRD RESIDENTIAL REVITALIZATION DISTRICT.
Represented by Lou Colagreco, Esquire and Bo Erixxon and Chuck Dobson
The proposed ordinance is amending the “Table of Development Standard for Residential Districts” for the RRD Residential Revitalization District for the maximum tract density by reducing the number from 20 units to 12 units per developable acre. Other changes provide for reduction in setbacks from street and building spacing. The applicant had held a meeting with the adjacent tank farm owners and residents from General Warren Village. They have been able to satisfy the access of school buses, tanker trucks and emergency access under the railroad overpass. The total number of units being proposed has decrease from 303 to 264 units.

EAST WHITELAND TOWNSHIP PLANNING COMMISSION MEETING April 23, 2014

ZONING ORDINANCE TEXT AND MAP AMENDMENT – RRD –RESIDENTIAL REVITALIZATION DISTRICT – SOUTH MALIN ROAD – BISHOP TUBE

Represented by Lou Colagreco, Esquire, Brian O’Neill, Frank Tavani, John Benson

The applicant is requesting to add a new permitted residential district by amending Section 200-19 “Permitted Uses for Residential Districts.” The property is located on the south side of Malin Road formerly known as Bishop Tube property. The intent of the RRD Residential Revitalization District is to provide for and encourage reuse, redevelopment and revitalization of tracts that have undergone remediation. Mr. O’Neill advised that he has partnered with Benson Companies to construct townhouses on South Malin Road.

Mr. O’Neill stated that he met with the Township’s Fire Marshal who expressed his concern with the ability to handle a fire for multi-story structures at this location. Therefore, Mr. O’Neill has reduced the number of units to 305 down from 537 units. Density has been reduced by two-thirds from the original proposal. There will be no building on “hot spot” within the property, thereby, providing more green space. These “hot spots” will be capped. The new design is a rear entry building with 16 or 20 foot widths, three stories and approximately 1,900 sq. ft. The issue of a school buses being able to maneuver was investigated and determined not to be a problem. Changes to the intersection timing at Route 30 and South Malin Road will require modifications. Emergency vehicles only will have access to a keyed gate through Village Way. Members were advised that stormwater runoff will be controlled and the water will be cleaning before discharged to protect the Valley Creek. Discussion ensued.

Mr. David Babbitt presented his finding of the Fiscal Impact Study. He advised that the financial impact is positive for all entities: township, school district and county. He reviewed the report and stated that this development will not have a negative impact on the school district. Discussion ensued.

Members were advised that stacked townhouses are three and one-half stories tall and approximately 1,600-2,300 sq. ft. Mr. O’Neill addressed the screening for the units on the west side facing the tank farm and the exterior building materials being proposed. He offered to provide a four foot berm in front of the homes facing the tank farm for additional protection. Members suggested: 1) further review by the Fire Marshal for the new plan configuration; 2) traffic study review; and 3) approval of the building heights.

EAST WHITELAND TOWNSHIP PLANNING COMMISSION MEETING February 26, 2014

ZONING ORDINANCE TEXT AND MAP AMENDMENT – RRD –RESIDENTIAL REVITALIZATION DISTRICT – SOUTH MALIN ROAD – BISHOP TUBE

Represented by Lou Colagreco, Esquire, Brian O’Neill, Guy Wolfington

They are requesting to add a new permitted residential district by amending Section 200-19 “Permitted Uses for Residential Districts. The property is located on the southeast side of Malin Road formerly known as Bishop Tube property. The permitted uses are by right, special exceptions and conditional uses. The intent of the RRD Residential Revitalization District is to provide for and encourage reuse, redevelopment and revitalization of tracts that have undergone remediation.

Mr. O’Neill advised that the Bishop Tube property access is restricted due to the railroad tunnel. Various other development proposals have failed due to these restrictions. He is suggesting developing the property by demolishing the buildings. He will build 34 townhouses and 360 loft apartment with underground parking. There has been a cooperative effort from all parties to clean up the site. Discussion ensued concerning the safety limitations out of this area. Mr. O’Neill offered other developments where similar access limitation exists. He offered to provide the members a tour of these other locations he’s developed.

EAST WHITELAND TOWNSHIP PLANNING COMMISSION MEETING May 28, 2014

ZONING ORDINANCE TEXT AND MAP AMENDMENT – RRD –RESIDENTIAL REVITALIZATION DISTRICT – SOUTH MALIN ROAD – BISHOP TUBE

Represented by Lou Colagreco, Esquire, Brian O’Neill, Frank Tavani, John Benson

The applicant is requesting to add a new permitted residential district by amending Section 200-19 “Permitted Uses for Residential Districts.” The property is located on the south side of Malin Road formerly known as Bishop Tube property. The intent of the RRD Residential Revitalization District is to

provide for and encourage reuse, redevelopment and revitalization of tracts that have undergone remediation.

They are proposing to construct 305 townhouses. The density has been reduced by two-thirds from the original proposal. Mr. Colagreco stated that this most recent plan has been presented to Ken Battin, Building Official/Fire Marshal, and he gave a favorable review of this plan. Members were advised that they can satisfactorily comply with the items listed in McMahon Associates letter, dated May 23, 2014. Changes to the intersection timing at Route 30 and South Malin Road can be accomplished. A discussion ensued relative to the County Planning Commission review letter. The solicitor felt that they had not been given them credit for the revitalization. Ms. Woodman asked, if the two properties under agreement with the Benson Company, contained any contamination? She suggested that the applicant investigate Section 200-25.1 (A) which requires that the properties either will or have undergone remediation standards. To date, the Township has no “brownfield” notification on these two parcels. The applicant was advised the the surrounding community is interested in the status of the cleanup. Mr. Colagreco suggested that information be forward to the Township for incorporation on the website.

ACTION:

Mr. Laumer made a motion to recommend to the Board of Supervisors approval of the Zoning Ordinance Text and Map Amendments to creating a new RRD- Residential Revitalization District and applying this District in lieu of the current I-Industrial Zoning District designation on three parcels including the former

Bishop Tube property located on South Malin Road east of the Buckeye Tank Farm. The motion was seconded by Todd Asousa and the vote was unanimous.

Ok, so all this craziness mostly talks ONLY about HOW many units. From a couple hundred to over five hundred, to three hundred to two hundred and sixty four and apparently after last evening’s meeting oh goodie two hundred and thirty some odd units.

But where is everyone on where exactly is the remediation of this toxic site? As of April of this year (as in 2015 in case you read this post years from now), there is a Federal Law Suit filed that is NEW about this site. Filing a Federal suit (Bishop Tube et al 2015 litigation) is not something someone wakes up one morning and decides to do like putting on a blue shirt versus a pink dress. It is a little more complex and complicated is it not?

Oh and as pursuant to the resident remembering an evacuation in 1981:

1981 Bishop Tube Acid Spill

So where is the remediation?  I have been checking old HSCA Remedial Sites Listing and De-listing Dates on the web from the state and have NOT found any de-listing of Bishop Tube, so what is going on?

If this site is NOT completely remediated , why the cart before the horse scenario? Isn’t it a little bass ackwards to be discussing a development plan if a site is not completely cleaned up?  And is it true it can take decades to properly clean up a site like this because you never know when little pools of toxic goodness will bubble up? And can’t these chemicals get trapped between rocks and stuff and get released anew if moved?

In 2007 State Senator Andy Dinniman talked a good game on TCE, or Trichloroethylene (reference July 2007 newsletter item “Dinniman Gets Tough on TCE“), so where is he now? Where is he on the Bishop Tube site? What about State Representative Duane Milne?

Ok so what about the court/legal pissing match between Constitution Drive Partners LP and the PA DEP?

Excerpt:

Philadelphia (July 18, 2014, 5:09 PM ET) — A Pennsylvania court ruled Thursday that the owner of a contaminated tract of Chester County land could not appeal a Department of Environmental Protection letter ending an agreement in which the landowner agreed to take measures to rehabilitate the site in exchange for protection from liability.   

The Pennsylvania Environmental Hearing Board said that the letter the DEP sent to Constitution Drive Partners LP — which purchased the site of a former precious metals and steel processing facility in 2005 — was not appealable because the letter itself had no effect on the company…..When CDP bought the former Bishop Tube site in East Whiteland Township, it reached an agreement with DEP to take certain steps to remediate the existing soil and groundwater contamination, according to the opinion.

Then, in 2011, an independent contractor hired by CDP damaged piping and protective covering on a soil vapor extraction and air sparging system while conducting salvage operations on the site…..But in January, DEP sent the company the letter citing the 2011 damage and accusing the company of breaking the 2005 agreement…..CDP is represented by Jonathan Sperger and Lynn Rauch of Manko Gold Katcher & Fox LLP.

The DEP is represented by in-house counsel Anderson Lee Hartzell.

The case is Constitution Drive Partners LLC v. Commonwealth of Pennsylvania Department of Environmental Protection, case number 2014-019-M, in the Environmental Hearing Board.

So how  does the above affect this potential development?  And should there even been anything in the approval process of a municipality when remediation doesn’t appear to be complete and there is a Federal level law suit pending?

In 2007 the PA DEP out a press release which says in part:

DEP TO HOLD HEARING OUTLINING TREATMENTS FOR CHESTER COUNTY SITE CONTAMINATION

Public Invited to Comment on Plans for Bishop Tube Property

NORRISTOWN — The Department of Environmental Protection will hold a public hearing at 7 p.m. Tuesday, Jan. 30, to give residents the chance to comment on a proposal to address soil and groundwater contamination at the Bishop Tube site in East Whiteland Township, Chester County. The former industrial facility is being cleaned up under the Hazardous Sites Cleanup Act (HSCA), a 1988 law that authorizes DEP to investigate and clean up hazardous waste sites. “We have a unique opportunity at this site to partner with the current property owner to make sure that groundwater and contaminated soil can be treated simultaneously and efficiently,” DEP Southeast Regional Director Joseph A. Feola said. “We will present these plans at the Jan. 30 hearing for public comment.”

The site consists of a large area of contaminated groundwater associated with the former Bishop Tube Company. The company used, and most likely released, hazardous substances into the environment, including trichloroethylene (TCE), nitric acid, hydrofluoric acid and various heavy metals including nickel and chromium. TCE is of particular concern since it has been detected in groundwater on the former Bishop Tube property and in wells and springs off-site.

Although DEP activity on this site began in 1999, most recently, the agency has been concentrating its efforts on three distinct source areas of contaminated soil.

Last September, a DEP contractor installed monitoring wells to help determine the extent that contaminated groundwater from the Bishop Tube site is affecting the Little Valley Creek, part of the Exceptional Value Valley Creek Watershed.

From 1999 through 2006, DEP completed three phases of remedial investigation work at the site, mapping onsite soil contamination and conducting stream and sediment sampling while conducting groundwater investigation work. Within the last year, the agency has initiated a feasibility study to evaluate options for addressing the discharge of contaminated shallow groundwater to Little Valley Creek.

The 13.7-acre Bishop Tube property is currently owned by Constitution Drive Partners (CDP), who purchased the site in 2005 to redevelop it for commercial or light industrial use. As part of the site purchase agreement, CDP will finance the purchase and installation of equipment needed to remediate contaminated soils in the three source areas and work with DEP to address groundwater contamination issues. This will enable DEP to better coordinate cleanup actions with the developer’s plans to renovate the site for productive use.

So what happened? What is the latest? My research thus far that save development discussions as in how many units, will there be playing fields and so on I can’t find anything much over the past few years about where the clean up process is can you? Now yesterday on this contractor builder “smart bid” site I found an interesting drawing:
bishop tube site TCESo these are hot spots and contaminated areas that they know of? (And isn’t it amazing this project is being all put out for bid consideration like it is a done deal? Is it a “done deal”?)

Last night I heard a handful of residents attended the East Whiteland Planning Commission Meeting. Early reports of citizenry perspective can be summed up in one word: disappointment.  East Whiteland has a grave responsibility here don’t you think? Shouldn’t a plan with so many external balls in the air be tabled until things are settled? Like any litigation involving the site and site remediation being completed? What happens if they just close there eyes, hope for the best and approve without all of that stuff being taken care of? Litigation where the township could be added to, correct?

And a word to the wise to residents who think this plan doesn’t affect them: even if you don’t live in or around General Warren Village this affects you. Traffic, infrastructure, and costs associated with any future litigation over a site contaminated with toxic waste for starters, right? Couldn’t any potential township involved litigation related to this site be economically crippling to a municipality?

Residents in East Whiteland should stand with the residents of General Warren on this. Those people in General Warren have taken it on the chin with things like Cube Smart (and the stories of how some residents were treated are a little alarming, right?). The negatives thus far outweigh the positives of any development at Bishop Tube, don’t they?

And there is another thing to consider  – so once upon a time there was this moratorium on development in East Whiteland. See:

Fate Of Debated Building Moratorium Hinges On E. Whiteland Race

Posted: October 28, 1999

Town Eyes Construction Moratorium East Whiteland Would Take 18 Months To Develop A Comprehensive Plan. Some Say The Proposal Would Not Stand Up In Court.

Posted: February 23, 2000

East Whiteland has no regrets on moratorium Such measures were recently struck down. Still, the break from development was valuable, officials say.

Posted: July 05, 2001

Ok so this went all the way to the State Supreme Court. And it was struck down. Which isn’t any great surprise given things like, oh I don’t know…. the Municipalities Planning Code and whatnot?  At the time former supervisor Virginia McMichael was quoted as saying:

“We knew we were sticking our necks out a little bit, and people said we should wait to enact a moratorium,” Virginia McMichael, vice chairwoman of the East Whiteland supervisors, said recently.

“But by not waiting, we did have a year to work on our comprehensive plan without having to accept new plans, and that was helpful to us. Now, we’ve lost one of our arrows.”

The article continued:

The township’s 18-month moratorium was adopted in February 2000. It was suspended last July after the Zoning Hearing Board found it invalid because proper review procedures were not followed. Supervisors reinstated the moratorium in September.

On June 20, the state Supreme Court ruled that while a municipality can regulate land development, it cannot suspend it through moratoriums.

Eyes rolling. How much did Virginia’s Folly cost East Whiteland tax payers? We may never know, right? And the irony of this woman championing a moratorium on development back then and by the time she skeedaddled to  wherever she went after she stepped down she was a champion of development and do I have that straight?

Who says you can’t have it both ways?

So if you do the math starting with plans that started getting presented when McMichael was still supervisor to the present day how many living units are in the works for East Whiteland?  1200+?   1500+?   Or more?

East Whiteland is awash in a Where’s Waldo of development. But hey, since East Whiteland is working on another comprehensive plan maybe they should have a Groundhog Day and try another moratorium on development? (Kidding but if only it could happen, right?)

Look Bishop Tube is scary stuff. Why can’t they clean it up completely and get some sort of cleaned up certification from PA DEP or the EPA before proceeding on anything else? And why can’t East Whiteland ask for that?

And as far as development goes East Whiteland would be best served by taking a breath just because a developer decrees build it and they will come, it doesn’t make it so. Especially when you are talking about sites like Bishop Tube which have the distinct potential of becoming Silkwood meets Erin Brocavitch, right?

The bottom line here is we all have to care, all of us. We just have to.  Can we say  that lives and future lives depend upon it? Here is hoping in a strange collision of the universe that politicians and developers and municipal folk care about doing this one right.

Bishop Tube 20140908_Report_of_Findings Bishop Tube

Figure_12_-_TCE_Source_Area_Location_Map

Bishop Tube Environmental Impact Assessment

Chester County Hazard Vulnerability Analysis July 2009

PRESENTATION ON HAZARDOUS SITES CLEANUP FUND REPUBLICAN POLICY COMMITTEE HEARING DECEMBER 6 2007

Bishop Tube Earth Engineering Report Letter