June 7, 2017 (VIA EMAIL AND HAND DELIVERY) Dustin Armstrong PADEP 2 East Main Street Norristown, PA 19401 Dear Mr. Armstrong: We submit these comments regarding the 2010 amendment to a Prospective Purchaser Agreement (collectively, “PPA”) for the Bishop Tube site in East Whiteland Township (hereinafter the “site”).1 At the outset we note that this public comment period provided by the Pennsylvania Department of Environmental Protection (DEP or Department) comes a full seven years after the document was finalized and signed by the state. We note also, that from what we can see, there was no public comment period associated with the January 22, 2007 PPA Amendment prior to, or subsequent to, its signing by state officials. We also note that the public notices for the PPA documents, both the notice in the newspaper and in the PA Bulletin, fail to notify the public of crucial information, particularly:  That on January 28, 2014, DEP determined that CDP had engaged in action that “interfered with or impaired the SVE/AS system that DEP has implemented and potentially exacerbated the Existing Contamination at the site, in violation of the PPA and its two Amendments” and as a result, 1 For the sake of providing the history of our communications with the DEP regarding the PPA and the residential development project, we include the following attachments which documents our efforts and concerns regarding this site: Letter to Anderson Hartzell, dated March 20, 2017 (Exhibit “A”) Letter to Anderson Hartzell, dated March 27, 2017 (Exhibit “B”) Letter to Anderson Hartzell, dated March 28, 2017 (Exhibit “C”) Letter to Anderson Hartzell, dated April 5, 2017 (Exhibit “D”) Letter to Anderson Hartzell, dated April 6, 2017 (Exhibit “E”) Letter to Anderson Hartzell, dated April 19, 2017 (Exhibit “F”) Letter to Anderson Hartzell, dated May 16, 2017 (Exhibit “G”) “DEP now considers the CDP’s violation of the PPA to void the Covenant Not to Sue set forth in Paragraph 7…” (See Exhibit “H”, letter of January 28, 2014, Stephan Sinding to Brian Kroker)  That on December 1, 2015, in response to a request made by Manko, Gold & Katcher lawfirm on behalf of CDP that DEP reconsider its recission of the Covenant Not To Sue, DEP explicitly refused to do so. (See Exhibit “I”, letter of December 1, 2015, Stephan Sinding to Jonathan Spergel, Esq.) Based on our review of the facts, the law and the PPA documents, the Delaware Riverkeeper Network believes that the terms of the PPA are unacceptable and should not be agreed to by the PADEP on behalf of our communities. The project proposed by Constitution Drive Partners (CDP) and O’Neill Development for the Site fails to ensure protection of the public health, safety or welfare, and/or the health, safety and welfare of the environment in violation of the Hazardous Sites Clean Up Act and the Land Recycling and Environmental Remediation Standards Act. Procedurally, the actions described within the PPA are considered by the Department to be an interim response action. Importantly, the “interim response” has materially changed in the twelve years since the first PPA document was finalized and signed. Material changes include:  who will be doing the remediation (DEP is, per the 2010 amendment, now proposing to conduct the interim remediation itself as opposed to the developer),  what the cleanup goal for the remediation is both independently and in the context of the new intended use for the site (the 2005 PPA has the developer proposing to use the property for commercial purposes, the current intent is to develop the property for significant residential use, over 200 units),  how the Air Sparging/Soil Vaccuum Extraction (“AS/SVE”) remediation has failed due to ground water flooding issues, poor oversight, and unrepaired damage to the system,  how the developer’s new plans -- not mentioned in the agreement or amended agreement -- will impact the future interim and comprehensive remediation plans for the site,  how the past failure of the developer to fulfill its legal obligation to provide full access to the site for purposes of advancing full remediation of the site is to be addressed and prevented,  what is the full extent of the remediation to be implemented and what are the elements of that remediation for purposes of expert review and public comment. Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 2 We are further deeply concerned that there has not been a final comprehensive remedial work plan for this site in the almost two decades since the Department has identified this as a HSCA site. In this intervening time period, the site’s neighbors have been unnecessarily exposed to dangerous contamination from the site and any associated environmental and health impacts. Additionally, natural resources and the environment have also been continually exposed and impacted. Further, it seems clear that the Department has prioritized securing a deal acceptable to the site’s proposed developer, including helping secure a $1 million dollar grant for the developer’s benefit, over securing full remediation of the site at the expense of responsible parties. The Department’s actions at this site have been highly problematic and in derogation of DEP’s powers and duties pursuant to 35 P.S. § 6020.301, and as set forth by Article 1, Section 27 of the Pennsylvania Constitution, and the Pennsylvania Supreme Court in Robinson Twp, Delaware Riverkeeper Network, et. al. v Commonwealth of PA. While it is our understanding that the EPA has offered to oversee and assist in remediation of the site, DEP has largely refused such help, despite its obligation to cooperate with the Federal Government to protect the public and the natural resources. Significantly, although Little Valley Creek, an exceptional value stream, has been and continues to be impacted by the released contamination, it has not been identified for cleanup even though it borders, and is impacted by, this HSCA site. Accordingly, this letter in its entirety and all attached exhibits are deemed to be our comment to the PPA and we highlight the following specific points for which we seek the Department’s specific response as is required under 35. P.S. § 6020.1113. I. DEP has failed to fulfill its legal obligations to properly notice the PPA documents. e written record upon which a party adversely affected can appeal. As such, it is entirely clear, that the Department has completely failed to properly notice any new interim response actions and to compile and publish an administrative record in accordance with its obligation under 25 Pa. Code 3.22. The Department has belatedly solicited comment to the 2010 amendment to the Prospective Purchaser Agreement in violation of its obligations pursuantto Section 1113 of HSCA and also failed (we believe) to appropriately solicit comment on the interim 2007 amendment. We note that the modifications made by way of the 2007 and 2010 PPA documents to the deal struck with CDP are not minor, they are significant and substantive and the failure to subject them to notice and comment is a serious breach by the Department. Accordingly, while the Delaware Riverkeeper Network is providing our comments to the PPA as amended in 2010 as requested in the Notice dated April 1, 2017, we are not waiving our right to object to the Department’s failure and refusal to properly and timely notice any new interim response plan, or adhere to requisite applicable procedures.2 The current 2 It is our position that the failure to follow the requisite procedure in a timely manner does create a significant difference in how the remediation should have progressed had the public been properly notified and given the opportunity to comment. Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 3 notice and comments are no substitute for the aforementioned requirements if there is to be a new interim response. We note that the broad Covenant Not to Sue the developer (including for impacts to ground and surface water beyond the site) in this instance is not in the public interest, see 35 P.S. § 6020.706(d), and is in further derogation of the Department’s duties and mandates under the law. 35 P.S. §6020.301. That being said, we also believe the Department has improperly noticed the 2010 PPA. Given that DEP has determined that the Covenant Not to Sue within the document is void this provision should not have been included as being among the terms of the 2010 PPA subject to public comment. The Covenant Not To Sue is no longer a part of the PPA documents and therefore should not be represented as being still applicable or viable. II. The Goals and Purposes of Applicable Laws are Not Supported by the Proposed PPA and Anticipated Development Among the goals of the Hazardous Sites Cleanup Act (“HSCA”) are: (1) The citizens of this Commonwealth have a right to clean water and a healthy environment, and the General Assembly has a responsibility to ensure the protection of that right. (2) Hazardous substances which have been released into the environment through improper disposal or other means pose a real and substantial threat to the public health and welfare of the residents of this Commonwealth and to the natural resources upon which they rely. (3) The cleanup of sites that are releasing or threatening the release of hazardous substances into the environment and the replacement of contaminated water supplies protects the public health, preserves and restores natural resources and is vital to the economic development of this Commonwealth. (12)(vi) Protect the public health, safety and welfare and the natural resources of this Commonwealth from the short-term and long-term effects of the release of hazardous substances and contaminants into the environment. 35 P.S. § 6020.102 (emphasis added) Among the goals/policies of the Land Recycling and Environmental Remediation Standards Act are: (1) The elimination of public health and environmental hazards on existing commercial and industrial land across this Commonwealth is vital to their use and reuse as sources of employment, housing, recreation and open-space areas. The reuse of industrial land is an important component of a sound land-use policy that will help prevent the needless development of prime Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 4 farmland, open-space areas and natural areas and reduce public costs for installing new water, sewer and highway infrastructure. (2) Incentives should be put in place to encourage responsible persons to voluntarily develop and implement cleanup plans without the use of taxpayer funds… (6) Cleanup plans should be based on the actual risk that contamination on the site may pose to public health and the environment, taking into account its current and future use and the degree to which contamination can spread offsite and expose the public or the environment to risk, not on cleanup policies requiring every site in this Commonwealth to be returned to a pristine condition. (7) Cleanup plans should have as a goal remedies which treat, destroy or remove regulated substances whenever technically and economically feasible as determined under the provisions of this act. 35 P.S. § 6026.102 (emphasis added). The Hazardous Sites Cleanup Act (35 P.S. § 6020.101 et seq.) and the Land Recycling Act (35 P.S. § 6026.101 et seq.) were passed to protect public health, safety and welfare, and for the protection and restoration of the environment in order to advance the many benefits a healthy environment provides. These goals are not only not advanced by the proposed 2010 PPA that is the subject of this comment, but these goals will be specifically undermined by the 2010 PPA. The proposed interim remediation of the site set forth in the PPA – AS/SVE technology – will not protect the public health, safety and welfare and the natural resources of this Commonwealth from the short-term and long-term effects of the release of hazardous substances and contaminants into the environment from the Bishop Tube site. Under the PPA, contamination at the site will continue for an undetermined period of time and result in an undetermined level of clean up, and as a result will result in ongoing public health and environmental harms, both on the site and beyond the site boundaries, as contamination continues to be released into the environment, including through contaminated groundwater and other pathways for release of contaminants. The Land Recycling and Environmental Remediation Standards Act urges DEP to consider the future use of a site when evaluating remediation plans. 35 P.S. § 6026.102(6). In this case, the near-term use is to build 228 homes, and after securing only partial clean up. While it is not stated in the four corners of the document, it is known to the DEP and evident in the public record that Constitution Drive Partners intends to develop the site for a high density residential use. This sets up a dangerous precedent of bringing families, including children and other vulnerable people such as pregnant women and elderly individuals, to a site where ongoing contamination will persist and continue to be released. The releases will include discharges to Little Valley Creek, a place where people are known Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 5 to enjoy and play – it is foreseeable that the children who will eventually occupy homes in the new development will come into direct contact with the Creek. The developer’s planned use will place new residents at risk of exposure, and in any event has expended, and will continue to expend, significant public resources towards negotiating and supporting a partial clean up proposal, diverting resources needed to advance full clean up. While the 2005 PPA specifically mentions the then anticipated commercial use, the 2010 PPA fails to identify the current intended residential use. The proposed residential development will exacerbate the preexisting contamination by creating new sources and pathways for pollution and environmental degradation from the site. Given that the Little Valley Creek, associated wetlands and other associated natural resources are already compromised due to the serious contamination at the site, imposing additional nonpoint source pollution from the development, an increased volume of runoff, and the drastic reduction of a naturally-vegetated buffer will inflict a magnified level of harm to the natural resources, further compromising their condition and impacting the plants and other living organisms that they support. The Land Recycling and Environmental Remediation Standards Act further urges DEP to encourage cleanup projects that do not burden taxpayers. 35 P.S. § 6026.102(2). Constitution Drive Partners and Brian O’Neill have made clear that they plan to pursue, and may even require, a state grant on the order of $1 million to support their clean up if it is to proceed. The grant being sought is through Industrial Site Reuse Program. The developers have also made clear that despite the significant level of profit they are poised to receive from the massive development and partial cleanup plan, they are apparently limiting their investment to this effort to a maximum $500,000. It seems clear that taxpayers are in fact expected to be burdened with significant costs of this proposal, despite there being known responsible parties who have the financial wherewithal to fund the remediation effort in full.3 3 See June 24, 2016 email from Jonathan Spergel to PADEP (emphasis added) “1. ISR Grant, Scope of Work Discussion. a. Scope: Hot Spot soil removal and off-site disposal or ex-situ treatment and reuse (after remediated to residen0al standards); excavation includes saturated soils. b. $1 Million grant, plus up to $500,000 private match from Constution Drive Partners (CDP). c. If little to no soil needs to be managed as hazardous waste (which will be known before 7/7 meeting), all three hot spot areas can be remediated with $1.5 Million or less; if a significant portion of soils are characteris0c hazardous, not all 3 areas will be able to be remediated, and other funding source will be required: PRPs?. d. Department approval of scope of work needed for ISR grant applica0on to move forward. 2. Redevelopment Concerns a. In order for CDP to be able to contribute up to $500,000 of private matching funds for the grant, the brownfield redevelopment project must work economically. Without permitting relief as described below, the required level of density to jus0fy the redevelopment cannot be achieved, the hot spot removal remedia0on will not take place, and a dilapidated and unredeveloped eyesore will remain in the community.” Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 6 The Land Recycling and Environmental Remediation Standards Act stresses environmental protection goals including implementing the program as a way to avoid needless development of open space and natural areas. 35 P.S. § 6026.102. While this policy encourages redevelopment of contaminated sites, it does so for the purposes of greater environmental protection, including open space preservation. The best way to advance this public policy at this site is to clean up the contaminated areas, not to develop the site, but to advance its preservation as natural open space for the benefit of the public. A significant portion of the site is wooded and there are significant areas of exceptional value wetlands. As stated above, Little Valley Creek, which borders the site, is part of the exceptional value Valley Creek stream system. In short, the site is, in large part, the kind of natural, open space (minus the toxic contamination) the law is designed to protect for its community and ecological benefits. The natural portions of the site are appreciated by the community in their current undeveloped state. Despite the contamination, the natural portions of the site provide ecological, quality of life and property value benefits to the community, as well as providing habitat, water cleansing and other ecological benefits. The community appreciates having the trees, wetlands and stream to view from their homes, and as they walk the community. They enjoy hearing the birds and being able to view them from their neighborhoods. They enjoy the ecological sounds and values of having this natural green space nearby. They are benefitted by the pollution prevention, stormwater management, ecological habitat, property value enhancement, erosion protection, and noise and light buffering the trees and wetlands at the site provide. Preserving the site as a natural open space also furthers the goals of HSCA to protect “the public health and welfare of the residents of this Commonwealth and … the natural resources upon which they rely.” 35 P.S. § 6020.102(2). The community and environment will be adversely impacted if the trees are cut, the stream and wetlands encroached upon, the natural habitats lost, and all of it replaced by roads, retaining walls, houses, driveways, and stormwater systems that discharge increasing and contaminated stormwater runoff (including being contaminated by nonpoint source pollution resulting from development of the site) into the creek and wetlands that are already impacted by contamination from the site. Loss of the woodlands and adverse impacts to the wetlands would have a profound negative impact on the community and the environment – an impact they are not willing or wanting to bear, nor should they be required to bear. This community has suffered enough as a result of the significant contamination of the Bishop Tube site. The community is entitled to full clean-up of the site and its protection as natural open space. III. The amended PPA does not account for the developer’s changed plan for the site, and DEP has failed to consider the material nature of the change While the original PPA signed in 2005 was entered into for purposes of accommodating commercial development, the developer is now proposing construction of 228 residential homes (primarily townhomes). This dramatic change in use is not considered in the PPA, neither for compliance with the goals and standards of applicable laws, nor for its impacts Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 7 on the existing neighboring community or residents who would live in the newly constructed homes onsite. Had the 2007 and 2010 versions of the PPA included an accurate description of the residential development, it is likely the DEP would have approached the matter differently. Had the 2007 and 2010 PPA documents included the residential development goal and been released for public review and comment, it is certain the community, including the Delaware Riverkeeper Network, would have provided significant comments. Given the lack of an appropriate endpoint (i.e. commercial vs. 228 residential units), coupled with a failing to secure public comment, the PPA cannot properly and responsibly be permitted to stand. IV. The PPA is Not in the Public Interest; Full Remediation and Preservation ofthe Site as Natural Open Space Best Serves the Community. The DEP is required to consider the public interest when entering into a “Covenant Not to Sue”. Rather than serve the public good, the PPA, along with its expansive liability protection, is clearly designed to facilitate the Developer’s residential development plan for the site. This is not in the public’s interest and is contrary to the duties and responsibilities of the department. Full remediation and preservation of the site as open space provides the greatest level of community and ecological benefit and protection. In addition, this open space use would also help meet identified goals for increasing open space in the East Whiteland Comprehensive Plan Update, 2016.4 Converting the site to open space would be beneficial to the community for recereational purposes, as well as providing habitat for wildlife and plants. Protection as natural open space will also be beneficial for water quality, flood damage reduction, erosion protection, for the benefit of aquatic habitat, for protection of air quality, and for the aesthetics of the community. Conservation of woodlands on and near residential sites enhances property values as well as the marketability of nearby homes. People are willing to pay a premium to live near protected open space areas. The radius of economic benefits covers at least a mile. 5 For example, Pennypack Park has been credited for increasing the market value of nearby homes by as much as 38%. In addition to the property value increases there are complimentary property tax benefits as well.6 Full remediation of the Bishop Tube site and protection as natural open space also contributes to enhanced quality of life, stress reduction and increased public safety. Allowing for redevelopment of the site in a way that destroys the majority of the natural ecology of the site in order to secure some near term, partial remediation is not appropriate. The public and environment are better served by a plan that pursues full 4 http://www.eastwhiteland.org/DocumentCenter/View/132 5 See, e.g., http://www.delawareriverkeeper.org/sites/default/files/River_Values_Report_0_0.pdf; http://www.dvrpc.org/Reports/11033A.pdf 6 See, e.g., http://www.delawareriverkeeper.org/sites/default/files/River_Values_Report_0_0.pdf; http://www.dvrpc.org/Reports/11033A.pdf Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 8 remediation at a cost to be borne by the responsible parties, and protects the environmental resources found on the site. The public and environment are better served by including environmental restoration and preservation of the site. Given the health, safety, and economic burdens otherwise placed on the community, the preservation, restoration and open space goal is appropriate, deserved, and in fact morally owed to this community. The DEP should not enact a PPA contrary to these more appropriate uses and goals. V. Toxic Contamination Continues The PPA amendment sets forth only a partial emergent cleanup of the site which we now know failed and was abandoned. Subsequently, Constitution Drive Partners and O’Neill Development made plans to undertake a massive residential development project on the site and has engaged in development of an additional partial remediation plan in order to accommodate said development. But as documented by Dr. Tom Myers (see Exhibit “B”), the remaining remediation planned by the Developer and facilitated by the PPA, intentionally leaves egregious levels of toxic contamination on the site that will continue for an undetermined period of time. Contamination at the site, which will be left in place post the proposed development, leaves the site via a number of pathways, including through the discharge of groundwater. According to Dr. Tom Myers, contaminants in the groundwater will remain after proposed excavation and site development. The developer has no plans for remediating groundwater at the site, and expert Hydrologic Consultant Tom Myers has described the potential for contaminated groundwater migrating to Little Valley Creek as, “the most important offsite risk to the environment”. Little Valley Creek is part of the Valley Creek Basin designated as Exceptional Value by the State. Dr. Myers further identified ways the proposed remediation and development plan could exacerbate contamination coming from the site. For example, excavation could “add contaminants to the groundwater and downstream waters” through “mud sticking to trucks” and dust being kicked up by equipment. Issues such as these are not addressed by the PPA or even considered. DEP appears to continue to engage with responsible parties about site contamination, but there is no confirmed plan that identifies, when, in what way, and to what degree additional contamination at the site will be addressed. Former Bishop Tube employees witnessed improper dumping of waste during its operations and identified additional areas to investigate for contamination which are not included in any known remedial plan or PPA. Their concerns, and the potential for additional pollution, should be taken seriously. Given the failure to publicly notice either the 2007 or the 2010 PPA for public comment, there was no official opportunity for the public to provide this kind of input. Efforts to voluntarily submit such information does not appear to have had any impact on Agency decisionmaking regarding the site. Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 9 According to Dr. Myers, a March 2017 letter from PADEP to the developer “essentially accepts the new [remediation] scope [of work] with little substantive comment, including failing to ensure that all previous PADEP questions, concerns and recommendations have been appropriately addressed.” See Myers Report at Exhibit “B.” It is concerning that the DEP has modified its recommendations for remediation in a way that makes them less protective and is contrary to its HSCA duty to act as a trustee for the environment and to implement Article 1 Section 27 of the State Constitution. In addition to the ongoing environmental concerns, it is a concern that new residents will be invited to buy and reside in homes at a location still underlain by dangerous contamination that continues to enter our surface environment. VI. Degradation of Little Valley Creek, an Exceptional Value Stream, and EV Wetlands Will Continue and Increase Under the PPA, the site will continue to be a source of contamination to groundwater and nearby surface water. Additionally, uncertainties regarding the extent of contamination at the site continue with additional assessments ongoing. It is a dereliction of duty for DEP to be advancing deals regarding development and uses of the site without knowing the full extent of the contamintation to be addressed. As documented by Dr. Myers, ongoing contamination from toxins at the site will continue past the proposed PPA remediation effort and development: The remediation plan implemented as part of developing this site would not protect downgradient or downstream resources from TCE contamination because it leaves too much TCE in place. Also, it would expose the existing contamination to wind and rain which would cause it to erode and pass downstream or downwind where it would contaminate additional areas. Also, much of the contamination would remain in place, especially in groundwater and soils outside of the targeted excavation zone. Other than the additional contamination caused by water and wind erosion, this residential development and remediation will expose substantial amounts of contamination that would be left in place to increased erosion. The development would not contribute substantially to the necessary remediation of downstream and downgradient resources. Delaware Riverkeeper Network comment re PPA for Bishop Tube site Pg 10