Documents | Delaware Riverkeeper Network

Bishop Tube Toxic Site

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 a chlorinated solvent and one of the problematic volatile organic compounds (VOCs) identified at the site, first found in 1987. TCE causes liver problems and an increased risk of cancer, among other health harms. (https://www.epa.gov/ground-water-and-drinking-water/table-regulated-drinking-water-contaminants#Organic, visited 2/18/17).

Constitution Drive Partners, the current owner, is proposing a residential development at the site. The original plan was to cut the trees, alter the landscape and build over 200 residential townhomes. In the face of community and Delaware Riverkeeper Network opposition the developer has reduced his planned proposal but is continuing to advance development plans for the site despite its toxic condition. The most recent proposal being submitted in the Fall, 2020 was for ~ 92 residential homes -- 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 neighboring and downstream communities, and Delaware Riverkeeper Network oppose development of the site. We are joining together in calling for full remediation of the site at the expense of the known responsible parties (including Johnson Matthey and Whitaker Corporation), and that the natural woods, wetlands and creek be protected, and the property be preserved as natural open space.

Where Things Stand:

After years of community and Delaware Riverkeeper Network advocacy that began in 2017, multiple rounds of legal action, followed by robust community engagement and expert comment, the Pennsylvania Department of Environmental Protection is finally enforcing the Hazardous Sites Cleanup Act (HSCA) mandating site cleanup. On September 12, 2022 the Pennsylvania Department of Environmental Protection issued a Statement of Decision identifying the remediation plan it would require for cleanup of the toxins at the Bishop Tube Site.

Of major continuing concern, Constitution Drive Partners, a developer, continues its pressure campaign to secure township approvals for development of the site, even before remediation begins and an assessment of its effectiveness is known. The Township seems sadly inclined to side with the developer rather than stand in defense of the residents who have been so severely impacted by the decades of toxic contamination.

In June, 2023, the developer submitted an application to secure Final Approval from the East Whiteland Township Supervisors to develop the site with residential homes. In response, the Delaware Riverkeeper Network and community opposition, submitted letters demanding the township deny the request and enforce the conditions it put in place when it wrongly granted preliminary approval to the developer in 2021. In addition to the failure of the project to have met the pre-conditions set by the township, the developer included misleading information in their application. Not only did the Delaware Riverkeeper Network call out this misinforamtion, but so too did the Pennsylvania DEP.

On Tuesday, September 12, 2023, responding to a public demand for more information and an opportunity to ask questions and give comments on the plan, PADEP will host an in person public meeting to discuss the Site and the implementation of the remediation response action the state has selected. The community is urging all who are interested to show up, listen and ask the hard questions that still are in need of answer.

Location: General Wayne Elementary School - Auditorium, 20 Devon Road, Malvern, PA 19355
Time: 6:30 pm -8:30 pm

There are many details for implementation of the remediation plan yet to be decided upon. The proposed remediation plan continues to raise concerns for the Delaware Riverkeeper Network and the community regarding its effectiveness, including the failure to fully monitor and address critical issues such as known PFAS contamination. The selection and advancement of remediation is far superior to the over 30 years of state neglect.

To learn more about the concerns associated with the proposed remediation plan, Delaware Riverkeeper Network's comment expressing legal, scientific and environmental concerns regarding the remdiation proposal put forth by the PA DEP can be found here.
Powerful comments were also submitted by the Valley Creek Trustee Council (a collaboration between the Pennsylvania Fish and Boat Commission and the National Park Service)

Background & Details:
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.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.

large_Little Valley Creek BT site 6.JPG — Exceptional Value Stream
& Wetlands

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.

Proposed development by Constitution Drive Partners, including ~ 92 new homes, would cut trees, damage the creek and wetlands.

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.

Watch the documentary to learn of the community's plight and its hard work to secure essential government protection.

Documentary by Alex Djordjevic

Major Milestones in the Effort to Ensure Clean Up, Stop Development, and Secure Natural Open Space Protection.

September 12, 2023, responding to a public demand for more information, PADEP hosts an in person public meeting to discuss the Site and the remediation response action the state has selected; the community will be given the opportunity to ask questions, get answers, and give input.

August 2023, The community, Delaware Riverkeeper Network and the Pennsylvania DEP respond to the developer's June 20, 2023 request for final development approval. The Delaware Riverkeeper Network and community urge the township to reject the request. Community concerns regarding the application materials submitted are bolstered by a Pennsylvania DEP letter to the Township.

September 12, 2022, Remediation Plan Selected and Advancing After nearly 40 years of ignoring the site's toxic condition and the ramifications for the environment and neighboring communities, PADEP selects a remediation plan for the site.

February 10, 2021 the East Whiteland Board of Supervisors grant preliminary approval of the proposal to build 92 homes on the highly contaminated Bishop Tube site without a remediation plan in place. While the approval was a significant disappointment to the community, responding to public opposition, the Township Board of Supervisors includes numerous conditions that would have to be met before final approval or any development could be allowed. In 2023, the community is now holding the supervisors accountable to honor these conditions prior to providing any final development approval.

October 21, 2021, Improved Public Engagement Opportunity Secured. Delaware Riverkeeper Network challenged the PADEP public comment process regarding its then proposed remedial response action as showing "callous disregard" for the community and urged a respectful process that supports full, fair and meaningful public comment & engagement. Read the Delaware Riverkeeper's letter here. Other members of the community joined in the call for DEP to overhaul the public comment process. On October 26 Delaware Riverkeeper Network learned that significant changes were to be made with DEP agreeing to nearly an additional month for comment, 5 minutes for individuals to testify as opposed to 3, and a video to describe the remediation.

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 indicates 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.

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."

You can read the whole comment here.

Government Grant To Developer Defeated. After learning that county government was proposing to give the developer a $1 million dollar grant to support their development of the toxic Bishop Tube site, the community organized in opposition. In response, the grant was never given.

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.

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. 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.
Residents attend the an 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.

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. While this is progress, it is not the victory the community will accept. Only full remediation and protection of the site as natural open space will satisfy the community and the Delaware Riverkeeper Network, and so the battle continues. You can find copies of the land development submissions at: http://www.eastwhiteland.org/351/Bishop-Tube-Land-Development

Overview of Litigation Delaware Riverkeeper Network Has Advanced to Secure Cleanup and Protection of the Bishop Tube Site.

As of February, 2018, the Delaware Riverkeeper Network has pursued three legal actions regarding the Bishop Tube site:

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.
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.
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

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.

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

Recent Press:

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