Editor’s note: This issue is currently dormant. We will continue monitoring the situation and may take up the issue in the future.
Overview
Geryville Materials, Inc, first submitted an application to the PA Department of Environmental Protection (PA DEP) to operate a noncoal surface mine in Lower Milford Township, Lehigh County in 2008. At that time a stream upgrade petition for the Upper Perkiomen Creek and Macoby Creek, submitted by DRN and partners was being considered. That petition closed with no change in the designations of the Upper Perkiomen Creek and Macoby Creek. However, the Delaware Riverkeeper Network (DRN) subsequently submitted an upgrade petition for the Hosensack Creek watershed. The proposed quarry would be located in this watershed.
As first proposed, this project would have opened a 628.5 acre quarry, impacting three unnamed tributaries to the Hosensack Creek and as well as an unnamed tributary to Macoby Creek. Geryville Materials’ withdrew its 2008 application proposed quarry operation, resubmitting a revised application in 2014. In 2015, Geryville Materials submitted a further revised application that reduced the area to be mined to 127 acres.
On June 3, 2015, the PA DEP held a public hearing in Lower Milford Township to take comments on a proposed quarry, stone crushing operation, and asphalt plant. These facilities would be located along the Hosensack’s cleanest tributaries. Local residents packed the Lower Milford Township Building to express their concerns about the impacts of the quarry and associated facilities on the quality of the environment and quality of life. View video of testimony from that hearing here.
On October 22, 2015, PADEP issued a deficiency letter to Geryville Materials regarding its quarry with a list of 95 deficiencies to be addressed. Among the listed deficiencies were many issues raised by DRN, including some issues that DRN alone appears to have raised. Geryville Materials had 30 days to let PADEP know how long it would take to address the list of deficiencies, but did not do so. The company did ask to meet with PADEP and, after an early 2016 meeting, Geryville Materials was given 14 months to address the list of deficiencies.
In May 2017, Geryville submitted additional materials in response PADEP’s 2015 list of deficiencies, but PADEP noted there were still many remaining deficiencies. PADEP issued a second deficiency letter to Geryville Materials on September 30, 2019. Again, Geryville Materials requested a meeting with PADEP. After a meeting in January 2020, PADEP gave Geryville Materials until June 30, 2020 to address the deficiencies in its application.
On July 29, 2020, Geryville Materials’ communicated to PADEP that it had decided to with draw its application to open a quarry in the Hosensack Creek watershed. On July 31, 2020, PADEP processed Geryville Materials’ request and affirmed that this application is no longer valid.
Geryville Materials has indicated it intends to refile in the future, but this project will be starting from scratch and will need to overcome the same barriers that prevented the project from moving forward previously.
Photo of juvenile Delaware River Atlantic Sturgeon, taken by Scientist Matt Fisher
On March 3rd, 2021, the Delaware Riverkeeper Network and a broad coalition of partner organizations demanded immediate action by the Delaware River Basin Commission with a supplemental petition to protect fish populations for higher dissolved oxygen standards. For over a decade, DRBC has promised prompt action to recognize and protect these resident and migratory fish, including the Delaware River’s population of critically-endangered Atlantic sturgeon. The new supplemental petition demands action to prevent extinction of this majestic fish, and recognizes both the enormous economic benefits of continued restoration in the estuary and the current risks in DRBC’s failure to act.
Since 2009, the Delaware Riverkeeper Network has fought for higher standards that are clearly required in the Clean Water Act, and which yield cascading benefits to our riverside communities and our region. This includes the first formal petition in 2013 by the Delaware Riverkeeper Network alongside the Delaware River Shad Fishermen’s Association and the Lehigh River Stocking Association. It also includes a major policy recommendation brokered by the Delaware Riverkeeper Maya van Rossum on January 24th, 2013, with majority support at the Water Quality Advisory Committee for a one-year-timeframe for DRBC to prepare a description of the existing aquatic life uses of the Delaware Estuary which would be used to craft a formal Finding of Existing Uses for the Commissioners. DRBC finally adopted Resolution 2017-4 in September 2017 but this resolution only sought further study, and DRBC has since postponed this already-protracted and harmful timetable.
The summers of 2019 and 2020 remind all what is at stake. Dissolved oxygen levels these years repeatedly fell to lethal levels for the fish that depend on the spawning and nursery habitats of the Delaware River. Without immediate action by the DRBC to require simple conventional upgrades at the region’s treatment plants, the Delaware River will continue to suffer such insults for another decade or more, and we may forever lose the genetically unique population of Delaware River Atlantic sturgeon.
In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project. In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal. DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction.
When the Army Corps announced that it was going to proceed with the Deepening project at this time, it was announcing its arbitrary and capricious intent to violate the Administrative Procedures Act, based on non-compliance with no less than 6 federal environmental and community protection laws as well as state environmental and community protection laws.
In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand.
While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue. New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically. Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.
Responding To a Motion
Responding to a motion for a preliminary injunction filed in the Delaware case the Army Corps was allowed to begin one 12 mile stretch of the project with an injunction imposed on the forward movement of the rest of the project. That initial work began on March 1, 2010.
The New Jersey Judge denied a request by the Army Corps to transfer the New Jersey case to Delaware and therefore to allow the consolidation of the two cases. As a result the two District Court cases proceeded on parallel tracks. RN’s attorneys, on behalf of our coalition of clients, filed motions for summary judgment in both district courts.
Delaware Riverkeeper Network, on October 18, 2010, filed a notice of intent to sue regarding the deepening project and ensuring it does not violate the Endangered Species Act with regards to Atlantic Sturgeon, proposed October 6, 2010 for ESA listing by the National Marine Fisheries Service and identified as at particular risk from the deepening project.
On November 4th, Judge Joel Pisano of the federal District of New Jersey denied our motion to stay proceedings pending the Army Corps of Engineers’ compliance with its obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to protect Atlantic sturgeon in the Delaware River. We filed this motion after the National Marine Fisheries Service proposed the Atlantic sturgeon for listing under the Endangered Species Act on October 6, 2010. Judge Pisano ruled that our motion to stay was premature because the Corps needs more time to fulfill its obligations under NEPA and the ESA and that granting the stay would cause economic harm to the Port of Philadelphia. He also stated that granting our motion to stay is unnecessary because the Corps is currently under an injunction issued by Judge Robinson of the federal District of Delaware in our litigation in front of that court, preventing the Corps from proceeding with further dredging.
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.
On November 17, 2010, Judge Robinson of the federal district court in Delaware issued her decision on the parties’ cross-motions for summary judgment, rationalizing the Army Corps’ decision to proceed with a multi-year, multi-million dollar project to deepen the shipping channel by a full five feet as an action to “maintain” navigation. Her decision found for the Corps on all counts and enabled the Corps to avoid all responsibility for complying with environmental review, particularly review under Delaware state law. Simultaneously she also denied our motion to stay based on the Army Corps’ need to comply with the ESA and NEPA to ensure protection for the proposed endangered Atlantic sturgeon in the River. Judge Robinson lifted her injunction against the Deepening Project’s proceeding in all reaches of the River, giving the Army Corps the green light to proceed with its plans to deepen, straighten, and otherwise permanently degrade and alter the River and its habitats.
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation.
On January 13, 2011, Judge Joel A. Pisano, District Judge for the United States District Court District of New Jersey issued his opinion in which he denied the motions for Summary Judgment filed by the State of New Jersey and five environmental organizations, including Delaware Riverkeeper Network. In his decision, Judge Pisano gave the Army Corps deference for their actions and decisions, and used this as a firm basis upon which to rest his opinion. The Delaware Riverkeeper Network does not believe this deference is factually or legally warranted and that the judge reached a flawed conclusion.
Update: 2/1/2011
February 1, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed an appeal to the Third Circuit Court of Appeals of the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware.
Update: 2/16/2011
February 16, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed their appeal to the Third Circuit Court of Appeals of the January 13, 2011 ruling by Judge Joel A. Pisano, U.S. District Court in the District of New Jersey regarding the Delaware deepening project. This appeal is the second one filed by the five environmental organizations. The first appeal was filed on February 1, 2011 and challenged the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware.
Update: 1/18/2012:
Oral argument before the Third Circuit Court of Appeals took place on this date. The organizations await decision.
Outcome:
Sadly the courts sided with the Army Corps of Engineers and have allowed the project to proceed without further environmental assessment or consideration.
PennDOT is pursuing two bridge projects over Tributaries of Tinicum Creek at Tettemer and Cafferty Roads in Tinicum Township, Bucks County, PA.
The Tinicum Creek basin is designated as an Exceptional Value stream because it has very high quality waters and healthy habitats. As a result, the law requires that the water quality of the Tinicum and its tributaries be maintained and protected.
The two bridge projects being proposed and pursued by PennDOT will result in water quality, habitat and other degradation of the Exceptional Value streams that comprise the Tinicum Creek. In addition to the damaging nature of the work to be done, when PennDOT submitted materials for the two bridge projects it represented that each of these projects would result in less than one acre of disturbance – the result was that PennDOT was granted waivers from having to pursue certain Clean Water Act permits (NPDES permits). But, expert reviews conducted by the Delaware Riverkeeper Network with the support of our local members now prove that in fact each of the projects disturbs more than one acre of land, and as a resultNPDES permits are required by law. That means that PennDOT is pursuing these two projects without the permits required by federal law.
Not only is the implementation of these projects without the necessary permits a violation of law, had this permitting been pursued there would have been more careful reviews into the degradation these two projects would inflict on the Tinicum Creek because of its Exceptional Value status.
DRN
The Delaware Riverkeeper Network has been pursuing several legal pathways in an attempt to protect the creek.
The first was to file for an injunction to try to stop the project until necessary permits were obtained — that effort was well fought but ultimately failed.
Second and concurrently the Delaware Riverkeeper Network filed the legal notice necessary to pursue a Clean Water Act challenge to the project.
The Delaware Riverkeeper Network is opposed to the destruction and replacement of the historic Headquarters Road Bridge (also known as Sheephole Bridge and Burnt Mill Bridge), a 200 year old historic structure. Experts have analyzed the bridge, the PADOT proposed replacement plans, and implications of both for the Exceptional Value Tinicum Creek. Based upon these expert analyses it is clear that replacement of the bridge:
Will harm ecological and historic resources
Will impact the health and quality of Tinicum Creek
Will diminish quality of life in Tinicum Township and Bucks County, will adversely affect the ecotourism experience in the region
Could undermine the Wild & Scenic designation of the Lower Delaware River and Tinicum Creek
Is not necessary to serve the traffic needs of the community
Will take longer and cost more than the rehabilitation of the existing structure
Despite our repeated efforts to convey this message to PADOT, they have continued to insist upon sticking to their predetermined course of action. In the process, PADOT is violating the mandates the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Department of Transportation Act (DOTA). They have failed to adequately consider alternative options, consult the public, or consider the environmental and historic harm of their plans—as required by law. In addition, expert review of their claims has exposed PADOT’s misrepresentation of crash data in an effort to bolster their false safety claims.
Moreover, PennDOT’s misrepresentation of facts in attempt to ensure their desired outcome of demolishing and rebuilding historic bridges in Bucks County is not unique to the Headquarters Road Bridge. Expert analysis demonstrates that both the Tettemer and Cafferty bridge projects were achieved through similar misrepresentations of data and avoidance of appropriate laws— at the detriment of the stream’s ecology and integrity, the town’s historic and cultural value, and safety conditions. These projects were not only unnecessary and damaging, but also expensive and hugely wasteful.
The DRN is working with Tinicum residents and relevant experts and agencies to hold PennDOT accountable and ensure they comply with required regulations in order to ensure the best outcome for both Tinicum Creek and the community.
The Delaware Riverkeeper Network continues to monitor and challenge ongoing bridge replacement projects near sensitive streams in the Delaware River Watershed.
The Tinicum Creek basin is designated as an Exceptional Value stream because it has very high quality waters and healthy habitats. As a result, the law requires that the water quality of the Tinicum and its tributaries be maintained and protected. Despite that, PennDOT has been pursuing a number of damaging bridge projects, evading the requirements of the law that would avoid or minimize harms.
Sheephole Bridge
After witnessing degradation of the Little Tinicum Creek from two PennDOT bridge replacement projects along Headquarters Road in Tinicum Township the Delaware Riverkeeper Network is closely monitoring developments for the Sheephole Road Bridge over the Tinicum Creek. Documents obtained by the DRN indicate PennDOT may be moving toward replacing the current historic structure with a two lane bridge.
The current one lane bridge is considered the 4th oldest bridge in Bucks County and one of the oldest bridges in Pennsylvania. Many local residents want to keep the crossing at one lane. Construction of a new bridge could lead to more erosion and silt being dumped into the Tinicum Creek, an exceptional value stream as well as increasing the runoff of pollutants from the roadway.
Jugtown Hill Road Bridge
DRN supported efforts by local residents to try and block the demolition of the Jugtown Hill Road Bridge. Bucks County and PennDOT officials moved ahead with demolishing the bridge in late April despite opposition from local residents. The bridge was located within the Delaware Canal State Park, a national historic landmark. The Delaware Riverkeeper Network conducted an outreach to federal and state officials to determine if an appropriate review of the historical value of the bridge had been conducted.
Tettemer & Cafferty Road Bridges
PennDOT has been pursuing and carrying out two bridge projects over Tributaries of Tinicum Creek at Tettemer and Cafferty Roads in Tinicum Township, Bucks County, PA.
Tinicum at Cafferty Rd Bridge.jpgThe two bridge projects being pursued by PennDOT resulted in water quality, habitat and other degradation of the Exceptional Value streams that comprise the Tinicum Creek. In addition to the damaging nature of the work done, when PennDOT submitted materials for the two bridge projects it represented that each of these projects would result in less than one acre of disturbance – the result was that PennDOT was granted waivers from having to pursue certain Clean Water Act permits (NPDES permits). But, expert reviews conducted by the Delaware Riverkeeper Network with the support of our local members now prove that in fact each of the projects disturbs more than one acre of land, and as a result NPDES permits are required by law. That means that PennDOT pursued these two projects without the permits required by federal law.
Not only is the implementation of these projects without the necessary permits a violation of law, had this permitting been pursued there would have been more careful reviews into the degradation these two projects would inflict on the Tinicum Creek because of its Exceptional Value status.
The bridge projects expanded the sizes of the existing bridges, resulting in polluting land disturbance. In addition, the Cafferty Road site included approximately 330 linear feet of retaining wall along Sundale Creek, a tributary to the Tinicum. The proposed retaining walls encroach into the active channel of the creek, narrowing it, constricting stream flow, and increasing instream velocity. The ramifications will be to change the flow of the creek in such a way that it could result in increased erosion, sedimentation, degraded water quality and harmed stream habitats. Tettemer also includes damaging instream and stream side work that could cause similar harms.
According to the Delaware Riverkeeper Network’s stream restoration expert:
“…it is my professional opinion that proposed plans for the Headquarters Road – Cafferty Road and Headquarters Road – Tettemer Road bridges do not adequately address antidegradation standards for EV streams, and that if implemented as proposed will result in unmitigated water quality impacts and a permanent loss of habitat. “
Through advocacy and litigation, the Delaware Riverkeeper Network has been working to enforce the requirements of the law – both directly by legally challenging the PennDOT projects, but also by pressing the Pennsylvania Department of Environmental Protection to step in and do its job to enforce applicable environmental protection laws.
As videos show, the ongoing construction is having adverse effects on this stream. Run off from the construction has traveled down Headquarters Road and eventually put more sediments in the stream. Low flows have made it difficult for wildlife such as Great Blue Herons to forage for food.
This project should have received an anti-degredation permit from the Pennsylvania DEP. PennDot didn’t bother to get one and PADEP didn’t bother to enforce the law — the result has been damage to the stream and the community. Dry Little Tinicum Creek, Runoff
The Salem Nuclear Generating Station is the Largest Predator in the Delaware Estuary. Delaware Riverkeeper Network continues our multi-year legal challenge to defeat the permit that allows the unprecedented fish kills inflicted by Salem unnecessarily as there is an alternative technology that would reduce those kills by over 95%.
Overview
The Salem Nuclear Generating Station, located on Artificial Island in Salem County, NJ kills over 14 billion Delaware River fish, eggs and larvae every year impingement and entrainment including:
Over 59 million Blueback Herring
Over 77 million Weakfish
Over 134 million Atlantic Croaker
Over 412 million White Perch
Over 448 million Striped Bass
Over 2 billion Bay Anchovy
(Source: correspondence from US Fish & Wildlife Service to NJDEP, June 30, 2000 relying on PSE&G permit application data)
By retrofitting the Salem plant with a closed cycle cooling system those fish kills could be reduced by over 95%.
In the past, rather than require this existing, used and proven technology, the State of NJ has primarily allowed PSE&G, the owner and operator of Salem, to “mitigate” its fish kills by changing the ratios of vegetation in wetlands. The problem is, this program does nothing to reduce the fish kills and according to PSE&G’s own data is not improving fish habitat or fish abundance in the Delaware River. Court rulings, of which the Delaware Riverkeeper Network has been a part, have made clear that mitigation is not an appropriate path for fulfilling the requirements of the Clean Water Act to minimize these fish kills.
Salem’s permit expired in July, 2006. February 2006 PSE&G submitted a permit renewal application. As a result the facility has been allowed to continue to operate under its expired permit.
DRN Work
In October 2013, the Delaware Riverkeeper Network filed on behalf of the Delaware Riverkeeper Network, New Jersey Sierra Club and the New Jersey Environmental Federation initiating a legal action requesting an order demanding that the NJDEP take action on PSE&G’s permit renewal application for the Salem Nuclear Generating Station located in Lower Alloways Creek Township, New Jersey.
On November 13, 2014, the Delaware Riverkeeper Network, New Jersey Sierra Club and Clean Water Action settled their legal action against the New Jersey Department of Environmental Protection (NJDEP) and in-so-doing have secured a commitment from NJDEP to issue a draft discharge permit to PSE&G’s Salem Nuclear Generating Station by June 30, 2015. Issuance of the draft permit will cause NJDEP to take a position on whether the facility’s cooling water intake structures, which kill more than three (3) billion fish per year, must be updated to significantly reduce these fish kills and the facility’s water usage. Once the draft permit is issued the public will have a chance to submit comments and thereafter challenge any final NJDEP decision if it believes NJDEP has not required the proper level of environmental protection at the facility.
June 30, 2015, complying with the settlement agreement, the New Jersey Department of Environmental Protection (NJDEP) issued a draft permit. The permit largely allows PSE&G to operate Salem business as usual – that means drawing in over 3 billion gallons of water a day to use in their cooling operations, killing over 3 billion (with a ‘B’) fish a year, discharging super heated water into sensitive estuarine waters, along with other pollutants.
The State
While the State took 9 years to craft and issue this draft, they only gave the public 60 days and 1 hearing in which to review and comment. And both the comment period and the hearing occured during the height of vacation season (July and August with the hearing on August 5). Nonetheless, the Delaware Riverkeeper Network submitted significant comments and expert reports on the draft permit issued by NJDEP for public comment. Amongst the findings of our experts:
Two major analyses show that stopping the killing of fish with closed cycle cooling could provide economic benefits worth up to $577 million….. ECONorthwest, p. vii
14.7 billion fish a year are impinged and/or entrained at Salem. Closed cycle cooling at Salem would reduce this mortality by over 12.8 billion. ECONorthwest, p. 4
14.7 billion fish impinged & entrained at Salem a year translates into 360 million fish killed in an average year that, but for Salem, would have survived to age one. ECONorthwest, p. 4
“The total installed cost of [closed cycle cooling at Salem] ($852 million) represents about 31 percent of the companies [PSEG & Exelon, Salem’s owners] combined annual capital expenditure, and the annual loan payment pf just two percent.” ECONorthwest, p. 24
Installing closed cycle cooling at Salem “would increase electricity rates by $0.0036 per kWh.” ECONorthwest, p. 25
Copies of the Delaware Riverkeeper Network comment and expert reports can be found at:
Despite the signficant expert, legal and factual challenges contained in our permit, on June 10, 2016, NJDEP issued a final permit that allowed PSEG to essentially continue business as usual when it came to their operations that result in the killing of over 14 Billion fish, eggs and larvae every year from our Delaware River. In response, on July 8, 2016 the Delaware Riverkeeper Network filed a legal challenge with the Office of Legal Affairs in New Jersey’s Department of Environmental Protection seeking a new hearing to review the renewed permit issued by NJDEP to PSE&G’s Salem Nuclear Generating Station located on Artificial Island in Salem County, NJ. The permit, as issued, would extend the Salem facility’s use of once through cooling (OTC), a controversial technology that has been challenged as being outdated, unnecessary, and responsible for annually killing billions of fish, including the endangered Atlantic sturgeon.
Throughout the legal battle NJDEP has sought to hide information from the public, forcing the Delaware Riverkeeper Network to have to engage in lengthy battles to gain access to text messages and emails sent by NJDEP staff regarding the issue and to secure the right to depose key NJDEP staffers who worked on the permit. Finally, on October 28, 2019, the New Jersey Office of Administrative Law granted the Delaware Riverkeeper Network’s motion to compel the deposition of three New Jersey Department of Environmental Protection (NJDEP) employees regarding the Salem Nuclear Generating Station’s New Jersey Pollution Discharge Elimination System (NJPDES) permit and to secure access to emails that had so far been denied the organization. While the Judge did not require NJDEP to produce unredacted pre-decisional drafts of the 2015 draft permit and the 2016 final permit, he overwhelmingly found in DRN’s favor on other requests. In a decision issued October 28, the judge granted DRN’s motion to compel the production of relevant emails. In addition, finding DRN demonstrated good cause, the judge granted the Delaware Riverkeeper Network’s request to take the depositions of key NJDEP employees. The judge’s determination in part states, “I CONCLUDE that petitioner has demonstrated “good cause” – specifically there has been a showing that information requested is highly technical in nature and cannot be obtained in other ways.”
NJDEP appealed the October ruling. In a remarkable twist, in this administrative proceeding, the arbiter to whom the NJDEP appealed was the head of the NJDEP, Commissioner Catherine McCabe. On December 16, 2019, Commissioner McCabe ruled against DRN’s right to take the depositions of three NJDEP employees. In her ruling, Commissioner McCabe suggested that allowing the depositions would “set a precedent that makes depositions routine in all permitting matters and will cause an undue burden on the Department.”
Despite this unsavory legal development, discovery in the case has continued to advance as has our legal challenge. It has been a slow slog but we continue to pursue this precedent setting legal challenge essential for protecting our Delaware Estuary and the fish and aquatic life essential ecologically, recreationally, and economically.
On a related note: on August 13, 2019, once again, the Delaware Riverkeeper Network has reached out to the National Marine Fisheries Service (NMFS) to urge them to take action protect the endangered Atlantic Sturgeon of the Delaware River. Time and again we have reached out about the excessive takes of sturgeon by both the Army Corps of Engineers and by PSEG’s Salem Nuclear Generating Station. Every time they turn a blind eye. When will it stop? See the letter and horrific photos here.
Fact sheets discussing previous battles with Salem:
The US Environmental Protection Agency determined that Salem entrains 14.7 billion fish, eggs and larvae every year and impinges an additional 6.6 billion a year. This is a direct loss of fish, but also removes the abundance of aquatic life from the food chain and all of the cascading benefits they provide to a host of other species.
Many of the species PSEG impacts are either endangered (such as Shortnose and Atlantic Sturgeon as well as Kemps Ridley and Green Sea Turtles) or have already experienced population declines in the present or recent past, thus magnifying the adverse impact of the Salem impingement and entrainment takes they suffer. For example:
“The bay anchovy is a species whose numbers have been decreasing at an alarming rate.”[1]
Blueback herring and Alewife have been identified by NOAA as a species of concern and one that has been experiencing declines throughout their range, including in the Delaware River.[2]
The ASMFC has determined: “ The American shad stock in the Delaware River is considered stable but at low levels compared to the historic population.” (emphasis added) [3]
Weakfish populations in our region are in a “depleted state.”[4]
The Atlantic Sturgeon of the Delaware River are listed as endangered as part of the NY Bight DPS: “In the NYB DPS, there are two known spawning populations – the Hudson and Delaware Rivers. While the Hudson is presumably the largest extant reproducing Atlantic sturgeon population, the Delaware is presumably very small and extremely vulnerable to any sources of anthropogenic mortality.”[5]
The Federal Clean Water Act (CWA)
Despite a requirement in Section 316(b) of the federal Clean Water Act (CWA) that facilities like the Salem Nuclear Generating Station (“Salem”) use the best technology available on the design, location, construction and capacity of their cooling water intake structures to minimize their adverse environmental impact (i.e. their kills of fish and aquatic life), and despite the existince of cooling water intake technology that could reduce the fish kills at salem by over 95%, the state of New Jersey continues to issue permits that allow the facility to continue to operate using their deadly, existing, once-through cooling system.
The Delaware Riverkeeper Network has been fighting for over 30 years to stop the unnecessary death toll that is having such serious impacts on the aquatic life of our River. Learn more about our efforts here.
PSEG, the owner of Salem, has been looking to expand and to build yet another nuclear power plant called Salem 4 on the banks of the estuary in an area known to experience storm surge. A new nuclear plant on our River, particiularly in this location, will have unwanted dangerous consequences. Learn more about our efforts to stop the project here.
DRN is also fighting the proposal to take Salem Nuclear waste across the country to dispose of it in New Mexico near indigenous and other communities fearful of the environmental and safety ramifications. Follow DRN’s efforts to oppose this dangerous, unwise and immoral effort.
[1] Bay Anchovy Fact Sheet, NJDEP, http://www.state.nj.us/dep/fgw/pdf/delriver/artdel_sp_bayanchovy.pdf
[2] River Herring (Alewife & Blueback Herring), Species of Concern, NOAA National Marine Fisheries Service, 5/19/2009.
[3] Delaware River Sustainable Fishing Plan for American Shad, Prepared by the Delaware River Basin Fish & Wildlife Management Cooperative for The Atlantic States Marine Fisheries Commission Shad and River Herring Management Board, December 2011.
[4] Atlantic States Marine Fisheries Commission, ADDENDUM IV TO AMENDMENT 4 TO THE WEAKFISH FISHERY MANAGEMENT PLAN, Nov 2009.
[5] Final Rule, Threatened and Endangered Status for Distinct Population Segments of Atlantic, Sturgeon in the Northeast Region, Fed Reg Vol 77 No. 24, Feb. 6, 2012.
The Delaware Riverkeeper was appointed a member of the Delaware River and Bay Oil Spill Advisory Committee created by federal legislation in response to the Athos I oil spill. This Federal Advisory Committee, which held its first meeting in December, 2008, was given an 18-month life during which it is charged with identifying recommendations to better protect the Delaware River from oil spill events in terms of prevention, response, recovery and mitigation. The work load for participants of this Federal Advisory Committee has been daunting but clearly critical. There are few voices in the group to ensure that the needs of the River and all those who rely upon the River are given the highest priority. The Delaware Riverkeeper is a member of both the main committee as well as three of the four subcommittees that it has established.
The Report Remains In Stasis
The Committee’s work was to be completed by April 30, 2010. Due to opposition to key recommendations brought mainly by the Pennsylvania representative and a lack of voting members showing up for the last meeting the committee was unable to render a final vote on the report. As a result the report remains in stasis. Efforts are underway to secure a legislative extension that would allow the report to be revisited and finalized hopefully by the end of 2010.
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.
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.
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.
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.”
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.
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.
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
