04/26/2019

COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

DELAWARE RIVERKEEPER NETWORK
AND MAYA VAN ROSSUM,
THE DELAWARE RIVERKEEPER
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, and CONSTITUTION
DRIVE PARTNERS, LP, Permittee

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EHB Docket No. 2018-020-L

Issued: April 26, 2019

ADJUDICATION
By the Environmental Hearing Board
Synopsis
The Board finds that the 2007 Amendment and the 2010 Amendment (collectively the
“Amendments”) to a prospective purchaser agreement entered into between the Department and
a developer for the remediation and redevelopment of the Bishop Tube HSCA Site are arbitrary
and capricious.

The Amendments are considered settlements under Section 1113 of the

Hazardous Sites Cleanup Act. Under Section 1113, the Department shall provide notice of any
settlements when they are proposed, and the settlements are not final until the Department has
provided public notice of the settlements and responded to any public comments. Although the
Amendments were executed in 2007 and 2010, the Department did not publish notice as required
by Section 1113 until 2017, and it did not issue its comment response finalizing the Amendments
as settlements until 2018.

Conditions at the Bishop Tube HSCA Site evolved during the

intervening years and the Department’s actions with regards to the Amendments failed to meet

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the requirements of Section 1113 and failed to identify and account for the changed
circumstances and conditions at the Site.

FINDINGS OF FACT
1.

The Department of Environmental Protection (the “Department”) is the agency of

the Commonwealth of Pennsylvania vested with the duty and authority to administer and enforce
the provisions of the Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. §§ 6020.101 – 6020.1305,
the Land Recycling and Remediation Standards Act (“Act 2”), 35 P.S. §§ 6026.101 – 6026.908,
Section 1917-A of the Administrative Code, 71 P.S. § 510-17, and the rules and regulations duly
promulgated thereunder. (Administrative Record Page No. (“AR”) 0001.)
2.

The site at issue in this appeal is known as the Bishop Tube HSCA Site (“Site”),

which is located on Malin Road, south of U.S. Route 30, in Frazier, East Whiteland Township,
Chester County. (AR 0002, 0117, 0119, 0485.)
3.

The 13.7-acre Site is currently owned by Constitution Drive Partners L.P.

(“Constitution Drive”), which purchased it from the Central and Western Chester County
Industrial Development Authority in 2005 in order to redevelop the property. (AR 0002, 0117,
0485.)
4.

Constitution Drive is a Pennsylvania Limited Partnership with a business address

of 700 South Henderson Road, Suite 225, King of Prussia, Pennsylvania 19406. (AR 0002.)
5.

The Delaware Riverkeeper Network and Maya van Rossum, the Delaware

Riverkeeper, the appellants in this appeal (hereinafter collectively “the Riverkeeper”), make up
an organization based in Bristol, Pennsylvania that has actively participated in the Department’s
oversight of the Bishop Tube Site. (AR 0157-0210.)

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6.

Beginning in the 1950s, the J. Bishop Company used the Site for manufacturing

steel tubes. (AR 0486.)
7.

The manufacturing and processing of metal alloy tubes and associated equipment

continued at the Site until 1999 under the ownership of several companies, including successors
to the J. Bishop Company. (AR 0486.)
8.

A 2005 remedial action work plan developed for the Site and approved by the

Department noted that manufacturing operations at the Bishop Tube facility included the
cleaning, shaping, welding, degreasing, annealing, straightening, sandblasting, polishing, and
painting of stainless steel and specialty metals into tubes and pipes and other various metal
products. (AR 0024, 0120.)
9.

The work plan found that the facility utilized a variety of raw materials and

chemicals in the manufacturing process, including nitric acid, hydrofluoric acid, caustic
materials, motor and gear oils, specialty drawing lubricants, degreasing solvents (primarily
trichloroethene (TCE)), anhydrous ammonia, coolants, polishing compounds, and paints. (AR
0024.)
10.

The Department has found that hazardous substances were employed in the

manufacturing processes throughout the history of manufacturing at the Site, particularly TCE,
which it says was utilized in two vapor degreasers, processed in onsite distillation units, and
stored in an above-ground tank at the Site. (AR 0486.)
11.

The Department has evidence that TCE was released into soil and groundwater as

early as the mid-1960s. (AR 0487.)

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12.

In addition to TCE, monitoring wells at the Site have detected fluoride,

chromium, and nickel in exceedance of Pennsylvania’s residential medium specific
concentrations. (AR 0487.)
13.

Soil samples have also detected tetrachloroethene, 1,2-dichloroethene, and 1,1,1-

trichloroethane. (AR 0488.)
14.

The Department has described the Site as having “extremely high levels of

contamination in the subsurface….” (AR 0478.)
15.

The Department has determined that a large plume of contaminated groundwater

now exists at the Site that originates from the property and extends off-site in a northern and
eastern direction, as well as toward portions of Little Valley Creek, a designated exceptional
value (EV) stream. (AR 0002, 0023, 0119.)
16.

Constitution Drive did not cause the historic releases of hazardous substances or

contaminants at the Site. (AR 0003.)
17.

On March 17, 2005, the Department entered into a prospective purchaser

agreement (the “2005 PPA”) with Constitution Drive in the form of a consent order and
agreement pursuant to various statutory authorities, including HSCA and Act 2, in connection
with Constitution Drive’s proposed acquisition and planned redevelopment of the Site. (AR
0120.)
18.

The 2005 PPA contained the following provision at Paragraph 3 regarding the

work to be performed by Constitution Drive:
Work To Be Performed: In exchange for the benefits conferred by the
Department to Developer [Constitution Drive] under this CO&A, and as
compensation for response costs incurred and to be incurred by the Department in
connection with the Site, Developer hereby agrees that, by March l, 2009,
Developer shall undertake investigation and/or remediation of soils at the Site
necessary to demonstrate attainment with a non-residential statewide health

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standard or site-specific standard under Act 2 for soils at the Site in accordance
with the Remedial Action Work Plan (“Plan”') attached hereto as Exhibit B and
incorporated herein by reference. In this regard, Developer shall follow all
required procedures and notices under Act 2 within the time frame set forth in this
paragraph.
(AR 0005-0006.)
19.

Subject to a list of exceptions, the Department in the 2005 PPA covenanted not to

sue Constitution Drive for any claims relating to the historic contamination at the Site. (AR
0007-0008.)
20.

The Department provided in the agreement that Constitution Drive was entitled to

contribution protection pursuant to Section 705 of HSCA, 35 P.S. § 6020.705, and Section
113(f)(2) of CERCLA, 42 U.S.C. § 9613 (f)(2), relating to hazardous substances previously
released at the Site. (AR 0008-0009.)
21.

Constitution Drive agreed to complete this work by March 1, 2009. (AR 0005.)

22.

On April 9, 2005, pursuant to Section 1113 of HSCA, 35 P.S. § 6020.1113, the

Department published notice of the 2005 PPA in the Pennsylvania Bulletin, 35 Pa.B. 2166, and
opened a 60-day public comment period. (AR 0033-0034, 0120.)
23.

No person commented on the 2005 PPA during the public comment period, and

the 2005 PPA became final under Section 1113 of HSCA when the Department notified
Constitution Drive that no comments had been received. (AR 0014, 0120.)
24.

The Department and Constitution Drive subsequently sought to amend the 2005

PPA on two separate occasions. (AR 0120.)
25.

In the first amendment, dated January 22, 2007, the parties agreed to modify

certain performance obligations of Constitution Drive related to the investigation and
remediation of unsaturated soils at the Site (the “2007 Amendment”). (AR 0035-0095, 0120.)

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26.

The 2007 Amendment “amended and restated” Paragraph 3 of the 2005 PPA in

several key respects. (AR 0037-0042.)
27.

Apart from modifying Constitution Drive’s performance obligations, the 2007

Amendment generally left the 2005 PPA unmodified and in full force and effect. (AR 0044,
0122.)
28.

The 2007 Amendment provided that Constitution Drive would partner with the

Department to design, install, and operate a physical treatment technology, known as an air
sparging/soil vapor extraction system (the “AS/SVE system”) at the Site and provided a timeline
for the specific tasks necessary to complete the work on the AS/SVE system. (AR 0037-0042,
0092-0093, 0120, 0478.)
29.

The AS/SVE system was intended to reduce contamination present in soils and

groundwater. (AR 0065-0066.)
30.

Among other things, Constitution Drive was required to operate the AS/SVE

system for a 30-day start up period, and then operate the system for 60 days in accordance with
certain specifications, while removing an average of ten pounds of volatile organic compounds
(VOCs) per day. (AR 0039-0040.)
31.

The 2007 Amendment at Paragraph 1(c)(2) provided in part that, once it was

determined that the AS/SVE system was operational in accordance with the performance
standards, Constitution Drive “shall have no further remedial obligations to the Department
relating to the Site pursuant to the CO&A [the 2005 PPA], and the Department shall be solely
responsible, with no cost or liability to Developer, to operate the AS/SVE System at the Site,
with the objective of demonstrating attainment with one or a combination of remediation
standards pursuant to Act 2 for unsaturated soils at the Site.” (AR 0040-0041.)

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32.

In 2008, the AS/SVE system was installed and operated by Constitution Drive.

(AR 0121.)
33.

The AS/SVE system ultimately did not meet the performance standards. There

were operational difficulties resulting from the shallow water table and system flooding. As a
result, operation of the system was halted. (AR 0121.)
34.

On June 4, 2010, the Department and Constitution Drive entered into a second

amendment to the 2005 PPA (the “2010 Amendment”) that further modified Constitution Drive’s
work obligations that were established in the 2005 PPA and amended by the 2007 Amendment.
(AR 0100-0103, 0121.)
35.

The 2010 Amendment contained the following WHEREAS clauses:

WHEREAS, Developer has installed and commenced operation of the AS/SVE
System and has made significant progress towards meeting the system operational
criteria established in the First Amendment, and Developer and the Department
believe that future operation of the AS/SVE System will assist in the remediation
of hazardous substances in soil and groundwater at the Site;
WHEREAS, Developer and the Department desire to further amend the CO&A to
allow the Department to assume operational control of the AS/SVE System ….
(AR 0099.)
36.

The 2010 Amendment “amended and restated” Paragraph 3 of the 2005 PPA in

several key respects. (AR 0100-0103.)
37.

The 2010 Amendment required Constitution Drive to: (1) make repairs to the air

sparging system as necessary for the system to be fully operational for a 72-hour startup period;
(2) be solely responsible for the system during the startup period and demonstrate that it operated
continuously without incident for 72 hours; (3) provide the Department with operational manuals
and as-built drawings for the system; (4) pay the Department $30,000; (5) repair a road along the

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north side of the main building at the Site in accordance with certain specifications; and (6)
install 7-foot fencing around certain areas of the Site. (AR 0100-0102.)
38.

In exchange for completing this work, the 2010 Amendment included the

following provision:
Upon satisfaction of Developer’s obligations pursuant to Paragraph 3(a) above,
the Department shall provide Developer with a letter within fourteen (14) days of
satisfaction of Developer’s obligations confirming that Developer has satisfied its
obligations pursuant to Paragraph 3(a), and Developer shall have no further
remedial obligations at all to the Department relating to the Site pursuant to the
CO&A and First Amendment (including, but not limited to any obligation to
remediate soil, groundwater, or surface water at or beyond the Site, or for the
operation and maintenance of the AS/SVE System at the Site).
(AR 0102-0103.)
39.

As with the 2007 Amendment, the 2010 Amendment provided that it was to be

made a part of the original 2005 PPA, which otherwise would remain unmodified and in full
force and effect. (AR 0103.)
40.

During the 72-hour startup period, the AS/SVE system is estimated to have

removed 23.75 pounds of contaminant mass. (AR 0108-0112.)
41.

In total, the system is estimated to have removed approximately 680 pounds of

VOCs during a two-month period that it operated. (AR 0132.)
42.

On September 11, 2010, the Department placed the Site on the Pennsylvania

Priority List of contaminated sites to be addressed by the Department under HSCA. (AR 0119.)
43.

In a letter dated December 22, 2010, the Department determined that Constitution

Drive had satisfied its obligations under the 2010 Amendment to the 2005 PPA. (AR 0115.)
44.

However, during visits to the site in June 2011, the Department discovered that a

consultant hired by Constitution Drive damaged the AS/SVE system through the use of heavy
equipment on the Site. (AR 0263-65.)

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45.

In a letter dated July 26, 2011, the Department requested that Constitution Drive

repair the AS/SVE system. (AR 0263-0265.)
46.

As of January 2014, the AS/SVE system had not been repaired. (AR 0267.)

47.

On January 28, 2014, the Department sent Constitution Drive a letter which

advised it that, because of the damage to the AS/SVE system caused by Constitution Drive’s
contractor and it potentially exacerbating the existing contamination at the Site, the Department
viewed Constitution Drive as having violated the 2005 PPA and its Amendments, and the
Department considered these violations to have voided the covenant not to sue established in the
2005 PPA. (AR 0267-0268.)
48.

Constitution Drive disputed the Department’s factual findings and asked that the

Department rescind its January 28, 2014 letter. (AR 0269-0274.) Constitution Drive appealed
the Department’s letter to the Board but that appeal was dismissed because the Board determined
that the letter was not an appealable action. Constitution Drive Partners, L.P. v. DEP, 2014 EHB
465. (AR 0275-0309.)
49.

Constitution Drive has been unsuccessful in redeveloping the Bishop Tube Site

for commercial purposes. (AR 0269-0273.)
50.

Constitution Drive engaged in discussions with East Whiteland Township about

the potential rezoning of the Site to allow for residential redevelopment.

In 2014, East

Whiteland Township approved Constitution Drive’s request to adopt a zoning amendment that
changed the zoning of the Site from industrial to residential. (AR 0121-0122, 0125, 0144.)
51.

In 2016, Constitution Drive submitted a Remediation Scope of Work to the

Department that proposed targeted soil removal activities to reduce or eliminate the risk of future
Site occupants. (AR 0333-0352, 0447-0451, 0481.)

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52.

In January 2017 and April 2017, Constitution Drive submitted a first and second

revised Remediation Scope of Work for Targeted Soil Excavation in response to comments from
the Department on the Remediation Scope of Work. (AR. 0333-0352, 0371-0375, 0445-0451.)
53.

As part of the Remediation Scope of Work, a consultant for Constitution Drive

stated that Constitution Drive planned to develop the Site for townhouses and apartments. (AR.
0337.)
54.

Under HSCA, the Department is required to publish notice of proposed

prospective purchaser agreements and any amendments thereto in the Pennsylvania Bulletin and
a newspaper of general circulation in the area of the Site and provide a 60-day public comment
period. 35 P.S. § 6020.1113.
55.

Public notice for the 2007 Amendment and the 2010 Amendment was not

published at the time Constitution Drive and the Department drafted the respective Amendments.
(AR 0122.)
56.

There is no support in the administrative record for the Department’s assertion

that the failure to publish timely notice was an “inadvertent administrative oversight.” (See, e.g.,
DEP Brief at 2, 10, 10 n.8.)
57.

On April 1, 2017, the Department for the first-time published notice in the

Pennsylvania Bulletin of the Amendments. 47 Pa.B. 1902. The notice provided as follows:
The Department of Environmental Protection (Department), under the authority of
the Hazardous Sites Cleanup Act (HSCA), 35 P.S. §§ 6020.101—6020.1305, and
the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C.A. § 9601—9675, has entered into an amended
Prospective Purchaser Agreement (PPA) with Constitution Drive Partners, L.P.
(CDP) regarding the Bishop Tube HSCA Site (Site).
The Site is located approximately .25 mile south of US Route 30 in East
Whiteland Township, Chester County. The Site consists of land totaling
approximately 13.7 acres and was formerly used as a precious metals and

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stainless steel manufacturing facility. The Department has determined that there is
significant soil and groundwater contamination at the Site.
The Site was acquired by the Central and Western Chester County Industrial
Development Authority for potential redevelopment and was subsequently sold to
CDP for purposes of redevelopment. Under the terms of the Agreement with the
Department, which was executed immediately prior to CDP’s acquisition of the
Site, CDP agreed to (1) assess and clean up soil contamination at the Site to one
of the standards set forth in the Land Recycling and Environmental Remediation
Standards Act (Act 2), 35 P.S. §§ 6026.101—6026.908; (2) not to exacerbate any
existing contamination at the Site; and (3) to provide access and right of entry to
the Department for potential future remediation of groundwater contamination in
exchange for a covenant not to sue and contribution protection from the
Department. The Department and CDP subsequently amended the PPA on two
occasions. On January 22, 2007, the Department and CDP agreed that, in order to
satisfy its remediation obligations under the PPA, CDP would design, provide
mechanical equipment and demonstrate performance of a soil vapor extraction
and air sparging remedial system (AS/SVE System), which the Department would
install and take over upon performance demonstration. On June 4, 2010, the
Department and CDP amended the PPA for a second time and agreed that, to
satisfy its remediation obligations, CDP would repair and run the AS/SVE system
for a seventy-two (72) hour period, after which it would relinquish control to the
Department and pay the Department an amount of $30,000.
This notice is provided under section 1113 of HSCA, 35 P.S. § 6020.1113. The
agreements may be examined at the Department's offices at 2 East Main Street,
Norristown, PA 19401 by contacting Dustin Armstrong at 484.250.5723 or
Robert Schena at 484.250.5865. The Department will accept public comments for
a period of 60 days from the date of publication of this notice. Interested persons
may submit written comments regarding this PPA and its amendments by
submitting them to Dustin Armstrong at the Department’s address as listed above.
(AR 0117.)
58.

The Department also published notice in The Daily Local News on March 18,

April 1, April 29 and June 14, 2017. (AR 0122.)
59.

The public comment period initially ran from March 18 through June 7, 2017, but

the Department agreed to extend the public comment period to July 7, 2017 at the request of East
Whiteland Township. (AR 0122.)
60.

The only mention in the public notice of the failure of the AS/SVE system is in

noting that Constitution Drive was required to repair the system as part of the 2010 Amendment.

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There is no mention of the subsequent damage to the system and it being rendered inoperable.
(AR 0117.)
61.

The public notice does not mention Constitution Drive’s plan to now redevelop

the Site for residential use or the 2014 change in zoning at the Site. (AR 0117.)
62.

The public notice does not mention the 2016/2017 Remediation Scope of Work

for Targeted Soil Excavation submitted by Constitution Drive and reviewed by the Department.
(AR 0117.)
63.

The Riverkeeper, among several others, submitted written comments to the

Department on the Amendments. (AR 0157-0210.)
64.

East Whiteland Township submitted comments regarding the 2010 Amendment in

a letter dated July 7, 2017. (AR 0217-0220.)
65.

Among other things, the Township provided the following comments:

2. The 2005 PPA and its amendments are predicated on a non-residential
remediation of the Site. As DEP is aware, the proposed use of the Site is now
residential. How will DEP address this change of use at the Site within the context
of the existing PPA, which was based upon a non-residential use of the Site? Will
DEP require another amendment to the PPA or other agreement to address
residential-related issues, specifically the more stringent remediation standards
required for residential use purposes?
3. Although the PPA was entered into under HSCA, does DEP have any plans to
now require attainment with Act 2 and its remediation standards, given the
proposed residential use of the Site? Does DEP have any plans to negotiate
additional amendments to the PPA to include, among other things, the more
stringent statewide health standards for soil under Act 2?
….
11. The 2005 PPA provides CDP with both a Covenant Not To Sue and
Contribution Protection under HSCA for any “Existing Contamination”
determined to be present at the Site. In 2014, DEP advised CDP that the Covenant
Not To Sue provision is void. Please confirm that DEP’s present position is that
the Covenant Not To Sue provision is indeed void. If DEP does not consider the
Covenant Not To Sue provision to be void, then please explain any change in
position since DEP’s 2014 determination. Furthermore, do the Contribution
Protection provisions in the PPA still apply to CDP? (PPA, Paragraph K).

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(AR 0218-0219.)
66.

Whittaker Corporation and Johnson Matthey, Inc., potentially responsible parties

(PRPs) at the Site, submitted lengthy comments to the Department on June 7, 2017,
supplemented on July 7, 2017. (AR 0141-0153.)
67.

Among other things, they commented that the Amendments do not properly

account for the changed proposed use of the Site from nonresidential to residential purposes.
They commented that the 2005 PPA and its Amendments inaccurately provide that Constitution
Drive is entitled to contribution protection. They point out that the Department rescinded its
covenant not to sue, yet the Amendments were proposed for finalization. (AR 0141-0151.)
68.

On January 26, 2018, the Department issued its comment response document

titled “Response to Significant Public Comments Regarding Second Amendment to Prospective
Purchaser Agreement Between the Department and Constitution Drive Partners,” in which the
Department determined that entry and finalization of the Amendments complied with the
requirements of HSCA. (AR 0119-0137.)
69.

Pursuant to Section 1113 of HSCA, the Amendments became final on the date the

Department issued the comment response document. 35 P.S. § 6020.1113.
70.

In response to comments regarding the delay in public notice of the Amendments,

the Department only stated that “the Department provided proper notice and an opportunity for
public comment on the initial PPA and received no comments. Consequently, the initial PPA
became final.

The purposes of the 1st and 2nd PPA were to modify CDP’s performance

obligations, and the Department has now provided proper notice and opportunity for public
comment on the 1st and 2nd Amended PPAs as required by Section 1113 of HSCA.” (AR 0126.)

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71.

In response to comments regarding the change in development to a residential use

and the change in zoning at the Site, the Department stated that “zoning and land use decisions
are outside of the Department’s purview but are the responsibilities of local municipalities. In
addition, the Department has limited control over the timeline associated with land use and
development so long as the development activities don’t interfere with investigation and
remediation activities.” The Department further stated that “it is pure speculation as to whether
the Department would have acted differently in 2010 had the Site been zoned residential.
Nevertheless, the comment does not persuade the Department that its entries into the 1st and 2nd
Amended PPAs are inappropriate or should be rescinded.” (AR 0125, 0127.)
72.

In response to comments regarding the covenant not to sue and contribution

protection, the Department said that “[t]hose arguments may ultimately be litigated in a court of
law, but they do not persuade the Department that its entries into the 1st and 2nd Amended PPAs
are inappropriate or should be rescinded.” (AR 0126.)
73.

The Department did not address the substance of many of the comments because

the Department viewed them as irrelevant to the Amendments. Instead, the Department invited
commenters to “continue with active interest in this matter” as their comments “may be germane
to the Department’s selection of a final remedy for the Site.” (AR 0125, 0126, 0127, 0129-0133,
0135, 0136, 0137.)
74.

While the Department was working with Constitution Drive, in 2008 and 2009 the

Department entered into a consent order and agreement with Johnson Matthey Inc. and
Whittaker Corporation, two PRPs at the Site. (AR 0121, 0241-0262.)

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75.

Pursuant to this consent order and agreement, Johnson Matthey and Whittaker

agreed to complete a Remedial Investigation and Feasibility Study for the Site. (AR 0121, 02410262.)
76.

According to the Department, upon completion of the Remedial Investigation and

Feasibility Study, a final comprehensive Site remedy will be proposed by the Department, and
the Department says the public will have an opportunity to review and comment on the proposed
remedial response. (AR 0121.)
77.

Once this process is complete, the Department says it will select a final remedial

response for the Site that meets the substantive and procedural requirements of HSCA. (AR
0121.)
78.

As of January 2018, the Remedial Investigation and Feasibility Study agreed to in

2008 and 2009 has not been completed. (AR 0121.)

DISCUSSION
The Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper
(hereinafter collectively “the Riverkeeper”), have appealed the Amendments to the 2005 PPA
entered into by the Department of Environmental Protection (the “Department”) and Constitution
Drive Partners, L.P. (“Constitution Drive”). The 2005 PPA was executed on March 17, 2005, in
the form of a consent order and agreement and addressed an abandoned steel tube manufacturing
facility located in East Whiteland Township, Chester County, known as the Bishop Tube HSCA
Site (“Site”).

The Site has a history of contamination with hazardous waste, primarily

trichloroethene (“TCE”). Constitution Drive bought the contaminated property originally with
the intent of redeveloping it for commercial purposes. Pursuant to the 2005 PPA, Constitution

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Drive agreed by March 1, 2009, to undertake an investigation and/or remediation of soils at the
Site necessary to demonstrate attainment with a nonresidential statewide health standard or sitespecific standard under Act 2 in accordance with a remedial action work plan that was attached
and incorporated into the PPA. In exchange for Constitution Drive’s work relating to the
existing contamination at the site, the Department entered into a covenant not to sue Constitution
Drive and agreed that Constitution Drive was afforded contribution protection pursuant to HSCA
and CERCLA.
The 2005 PPA was amended twice, the first time on January 22, 2007, and the second
time on June 4, 2010. The 2007 Amendment “amended and restated” Constitution Drive’s
remedial obligations established under the 2005 PPA. The 2007 Amendment mostly concerned
the installation of an air sparging/soil vapor extraction system (“AS/SVE system”), which was
intended to expedite the remediation of soils and groundwater at the Site. (AR 0036.) Among
other things, Constitution Drive was required to operate the system for 60 days under certain
specifications while removing an average of ten pounds of volatile organic compounds (VOCs)
per day in order to complete its remedial obligations. (AR 0039-0041.) After Constitution Drive
had fulfilled these obligations, it would be released of its remedial obligations at the Site and the
Department would then assume operation of the AS/SVE system. (AR 0040-0041.)
Unfortunately, the AS/SVE system never worked as planned and Constitution Drive could not
get it to meet the agreed-upon performance standards.
The Department and Constitution Drive then entered into a second amendment to the
2005 PPA in June 2010 that again “amended and restated” Constitution Drive’s remedial
obligations. Under the 2010 Amendment, Constitution Drive was to repair the AS/SVE system
and get it to operate continuously without incident for 72 hours (a significantly shorter time than

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the 30-day startup period and 60-day operational period called for under the 2007 Amendment).
Constitution Drive was also required to pay the Department $30,000, repair a road, and install
some security fencing.1 Constitution Drive completed its remedial obligations under the 2010
Amendment, and in December 2010, the Department released Constitution Drive from all further
remedial obligations established in the 2005 PPA and the Amendments.2
A number of additional events involving Constitution Drive have taken place at the Site
after the remedial tasks were completed and the Department’s release letter was issued in
December 2010. In June 2011, the Department discovered that a contractor for Constitution
Drive had damaged the AS/SVE system and rendered it inoperable. (AR 0115, 0263-0267.) In
July 2011, the Department requested that Constitution Drive repair the AS/SVE system.
Constitution Drive and the Department appear to have conducted discussions regarding the
continuing necessity and viability of the AS/SVE system but, as of January 2014, the AS/SVE
system had not been repaired. In a January 2014 letter, the Department declared the covenant
not to sue to be void because of Constitution Drive’s failure to repair the AS/SVE system. The
covenant not to sue was important to Constitution Drive and its efforts to redevelop the Site and
formed part of the consideration for the 2005 PPA and the Amendments. (AR 0007-0008, 02690273.) Constitution Drive appealed the January 2014 letter to the Board, but the Board ruled that
the letter was not an appealable action by the Department. (Constitution Drive Partners, L.P. v.
DEP, 2014 EHB 465, Judge Beckman dissenting.) Also, in 2014, East Whiteland Township
changed the zoning at the Site from industrial to residential at the request of Constitution Drive,
which decided to pursue a residential development at the Site after being unsuccessful in
1

Constitution Drive paid the Department $32,000 over two installments in 2010 and 2011, which
included a $2,000 delay penalty. (AR 0121.)
2
The 2010 Amendment did provide that Constitution Drive would be financially responsible for certain
additional Engineering Controls if the Department deemed them necessary as part of Remedial Action for
the Site. (AR 0103.)

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redeveloping it for commercial purposes. (AR 0121-0122, 0125, 0144, 0337.)

Finally, in

2016/2017, the Department reviewed and commented on a new remediation workplan for the
Site proposed by Constitution Drive that provided for targeted soil excavation that Constitution
Drive claimed would reduce or eliminate the risk of exposure to the compounds of concern for
the future occupants. In addition to these post-2010 actions involving Constitution Drive, there
also were other remediation activities and Department actions at the Site that did not directly
involve Constitution Drive based on documents included in the administrative record.
There is no disagreement among the parties that the Amendments to the 2005 PPA
constitute orders issued pursuant to Section 1102 of the Hazardous Sites Cleanup Act (HSCA),
35 P.S. § 6020.1102. There is also no disagreement that the Amendments to the 2005 PPA are
settlement agreements within the purview of Section 1113, 35 P.S. § 6020.1113. See also
Chirico v. DEP, 2002 EHB 25, 34. Section 1113 of HSCA states certain procedures for noticing
settlement agreements and it defines how the Board must review these agreements if there is an
appeal:
When a settlement is proposed in any proceeding brought under this act, notice of
the proposed settlement shall be sent to all known responsible persons and
published in the Pennsylvania Bulletin and in a newspaper of general circulation
in the area of the release. The notice shall include the terms of the settlement and
the manner of submitting written comments during a 60-day public comment
period. The settlement shall become final upon the filing of the department’s
response to the significant written comments. The notice, the written comments
and the department’s response shall constitute the written record upon which the
settlement will be reviewed. A person adversely affected by the settlement may
file an appeal to the board. The settlement shall be upheld unless it is found to be
arbitrary and capricious on the basis of the administrative record.
35 P.S. § 6020.1113.
Notably, under Section 1113, settlements do not become final until notice is provided,
and the Department responds to any comments. This is where we find an odd wrinkle in this

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case. Although the Amendments were drafted and signed in 2007 and 2010, due to what the
Department without any record support terms an “inadvertent administrative oversight,” the
notice required under Section 1113 was not published for either the 2007 Amendment or the
2010 Amendment until 2017, seven and ten years after the fact. A notice for both of the
Amendments was published in the Pennsylvania Bulletin on April 1, 2017, and notice was
published in The Daily Local News on March 18, April 1, April 29, and June 14, 2017. In
response to the Department’s notice, extensive comments were submitted, including by the
Riverkeeper, East Whiteland Township, local residents, and potentially responsible parties
(PRPs).

The Department issued its response to those comments on January 26, 2018.

Accordingly, even though Constitution Drive and the Department undertook performance
pursuant to the 2007 and 2010 Amendments, the Amendments did not legally become final until
the Department issued its comment response document in January 2018.
The Riverkeeper filed this appeal of both of the Amendments on February 21, 2018.
Under Section 1113, any appeal of a HSCA settlement is to be decided on the basis of an
administrative record, as opposed to the de novo review afforded by the typical Board appeal, see
United Ref. Co. v. Dep’t of Envtl. Prot., 163 A.3d 1125, 1135-36 (Pa. Cmwlth. 2017). The
administrative record for purposes of Section 1113 is limited to the notice of the settlements,
written comments to the settlements, and the Department’s responses to the comments. Under
the language of Section 1113, the Riverkeeper has the burden of showing that the Amendments
are arbitrary and capricious on the basis of the administrative record that has been filed with the
Board.3 The Department, in its Brief, states the “standard for the Board’s review in this appeal is

3

The Department tells us in its brief that there are a number of other actions pertaining to the Bishop
Tube site in other courts. Despite acknowledging at the outset of its brief that the Board’s review is
“based exclusively” on the administrative record filed with the Board, the Department invites us to take
“judicial notice” of the other court actions and pleadings filed in them. The Department even goes so far

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limited solely to whether the Department acted arbitrarily or capriciously in finalizing the
Amendments through the DEP Response.” (DEP’s Response Brief, at 6.)
On June 21, we issued an Order staying all proceedings and scheduling an in-person case
management conference with the parties on June 26. At the conference, we discussed with the
parties how this matter should move forward in terms of compiling the administrative record and
submitting briefs. We thereafter issued an Opinion and Order on Case Management wherein we
outlined procedures for the appeal going forward, including when the Department would provide
the other parties with a proposed administrative record, when the Department would file the
administrative record with the Board and in what form, and when the other parties could move
the Board to include additional documents or exclude certain documents from the administrative
record. 2018 EHB 666. We also issued an Opinion and Order on the Department’s motion to
quash the Riverkeeper’s discovery requests, wherein we determined that discovery was generally
inconsistent with the administrative record review envisioned by Section 1113 of HSCA. 2018
EHB 672. The parties were subsequently able to agree upon the contents of the administrative
record and filed the administrative record on our docket. We accepted that record as the basis for
our review.
Before delving into the merits of this appeal, it is important to keep in mind the
underlying goals and policies of HSCA and Act 2 in terms of advancing the cleanup of
contaminated sites. “HSCA’s Declaration of Policy expressly declares that the cleanup of

as to attach to its brief a petition for review filed by the Riverkeeper in a matter before the
Commonwealth Court. Relying on case law to make legal arguments is one thing; relying on pleadings in
actions before other tribunals and courts in an administrative record review proceeding is quite another.
We think this attempt to essentially supplement the administrative record is inappropriate and it is
contrary to Section 1113, what the parties agreed upon during our in-person case management conference,
and what we laid out in our Opinion and Order on Case Management, 2018 EHB 666. We decline the
Department’s invitation to dig into the pleadings in those matters for purposes of evaluating the propriety
of the PPA amendments.

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properties contaminated with hazardous materials is vital to the economic development of the
Commonwealth and that the Department should be provided with flexible and effective means to
enter into various settlement agreements with responsible parties at contaminated sites.” Chirico
v. DEP, 2002 EHB 25, 32 (citing 35 P.S. §§ 6020.102(3), 6020.102(12)(vii) and (ix)). See also
Guerin v. DEP, 2014 EHB 18, 24-25 (HSCA provides the Department broad authority to
effectuate its provisions and further its goals).

Along the same lines, the Pennsylvania

Legislature has created programs to incentivize the cleanup of contaminated sites, see, e.g., 35
P.S. § 6026.102 (Act 2 declaration of policy), while the Department pursues responsible persons
to recover costs, see, e.g., 35 P.S. § 6020.507 (recovery of response costs under HSCA).
Cognizant of these policies, we must not lose sight of the fact that Constitution Drive did not
cause the historic contamination at the Site. Rather, at the time of the 2005 PPA, it was an
innocent purchaser seeking to redevelop a brownfield property for a new use, a property that
might otherwise remain abandoned and contaminated. We do not wish to erect unnecessary
barriers to cleaning up a site or discourage innocent purchasers from contributing to cleaning up
and redeveloping contaminated property.
The crux of the Riverkeeper’s primary argument in this appeal is that the Department’s
ratification of the Amendments was arbitrary and capricious due to the passage of time, the
inadequacy of the 2017 public notice and the changed circumstances between when the
Amendments were signed by the Department and Constitution Drive in 2007 and 2010, and
when they became final in January 2018. The Riverkeeper contends that, by January 2018, (1)
the AS/SVE system was not operable because it had been damaged by one of Constitution
Drive’s contractors, (2) the Department indicated that the covenant not to sue established in the
2005 PPA was either void or would be deemed void at some point in the future, (3) the

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redevelopment plans for the site changed from commercial to residential without appropriate
changes in the Amendments, and (4) the Bishop Tube site has remained severely contaminated
and the Amendments did not materially advance any cleanup. The Riverkeeper also argues that,
in finalizing the Amendments, the Department has failed to uphold its duties as a trustee of the
Commonwealth’s natural resources under Article I, Section 27 of the Pennsylvania Constitution.4
Initially, the Riverkeeper focuses on the Department’s public notice of the Amendments
and argues that the notice was defective because it was so late. The Riverkeeper cites the
language in Section 1113 providing that notice shall be published “[w]hen a settlement is
proposed,” and says that this means notice must be published at the time a settlement is entered
into, not years later. In addition to the arguments that the statutorily required notice took place
several years too late, the Riverkeeper also challenges the wording of the notice and argues that
it did not contain any meaningful information on what had changed in the intervening years. It
says the late and inadequate notice published by the Department denied the public its right to
comment on the agreements when they were proposed, which could have affected the public’s
ability to meaningfully comment and potentially influence the final agreements.
The Department repeatedly asserts that the failure to publish timely notice was an
“inadvertent administrative oversight,” but it fails to point to anything in the administrative
record substantiating that claim.5 The Department merely states that no one in this appeal has
questioned that the failure to publish notice was an administrative oversight. There is nothing in
the administrative record that explains or justifies the belated notice.

In response to the

Riverkeeper’s comments directed at the untimely notice and its inadequate wording, the

4

Because we find the 2007 and 2010 Amendments arbitrary and capricious for other reasons, we do not
reach, and there is no need to decide the Riverkeeper’s Article 1, Section 27 argument.
5
We note that the procedures for publishing notice and receiving comments, and an explanation of the
effect of the Department responding to comments, are detailed in the 2005 PPA. (AR 0013-0014.)

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Department, in the January 2018 comment response document, unhelpfully states that it “has
now provided proper notice and opportunity for public comment on the 1st and 2nd Amended
PPAs as required by Section 1113 of HSCA.” (AR 0126.) Constitution Drive for its part asserts
that the Department’s failure to timely publish public notice of the 2007 Amendment and the
2010 Amendment was cured with the 2017 publication. It also contends that the delay allowed
the public to comment on a more informed and developed record for the site, and that the public
had a more meaningful opportunity to review and comment on the Amendments because of the
delay.

Constitution Drive points to nothing in the administrative record to support these

assertions.
The Board has not previously addressed the issue presented in this case by the
Riverkeeper’s claim of untimely and inadequate notice of a HSCA settlement agreement. The
Department identified Chirico v. DEP, 2002 EHB 25, as the only prior case in which the Board
has considered a challenge to a similar agreement and states that the outcome of this case is
controlled by the Board’s decision in Chirico upholding the Department’s entry into the
prospective purchase agreement in that case. We disagree with the Department’s conclusion that
Chirico controls this case. The facts in Chirico regarding the Department’s actions in finalizing
the agreement under Section 1113 of HSCA are completely different. In Chirico, the agreement
was entered into on May 24, 2000 and notice of the agreement was published in the
Pennsylvania Bulletin a month later on June 24, 2000. Chirico, 2002 EHB at 26-27. There is
nothing in the Board’s opinion in Chirico to suggest that the challengers raised inadequate
wording in the public notice as an issue in the case. Further, there is no indication that any
significant changes took place at the site in Chirico in the one month of time that elapsed

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between the execution of the agreement and the publication of the required notice in the
Pennsylvania Bulletin.
In other cases, unlike Chirico, the Board has been required to evaluate public notice
issues, and we have been hesitant to overturn Department actions in these cases. These cases
have involved challenges to permitting actions by the Department and have raised both untimely
notice and inadequate notice issues. See Groce v. DEP, 2006 EHB 856; Hopewell Township v.
DEP, 1996 EHB 956, Fontaine v. DEP, 1996 EHB 1333; Anjar Trust v. DEP, 2001 EHB 927,
aff’d, 806 A.2d 482 (Pa. Cmwlth. 2002); Kleissler v. DEP, 2002 EHB 737.

We are not

convinced that these permitting cases are a good analog for our current case because of their
different and distinct notice requirements when compared to those in Section 1113. The overall
principal we derive from these cases is that issues with public notice should be viewed from the
perspective of the Department action and what impact the public notice shortcomings had on the
public’s ability to meaningfully comment on the Department’s actions. For various reasons,
including the role of public comments in permitting decisions, in most cases, it seems likely that
the party challenging the action will have an uphill climb to convince the Board that public
notice issues rise to a level where the party has been denied an opportunity for meaningful
comment and, as consequence, the Board should undo the Department’s action.
Despite our concerns expressed above, we find that the Riverkeeper’s notice arguments
have merit under the relevant HSCA statute and the unique facts present in this case. The notice
and public comment process play a key role in HSCA settlements under the terms of Section
1113 of HSCA. The legislature expressly provided that a settlement agreement is not final until
certain enumerated steps are completed including: (1) notice is sent to all responsible parties and
published in the Pennsylvania Bulletin and a local newspaper; (2) a 60-day window for public

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comment is completed; and (3) the Department responds to the significant written comments.
Consistent with the central role that the notice and comment procedures created by the legislature
play in HSCA settlements, we conclude that the Department is required to provide a timely and
meaningful notice and comment process in order to finalize HSCA settlements under Section
1113. The steps taken by the Department in this case were woefully inadequate in satisfying this
requirement. Therefore, in the language of the standard of review set forth by the Department in
its Response Brief, we hold that “the Department acted arbitrarily or capriciously in finalizing
the Amendments through the DEP Response.” (DEP’s Response Brief, at 6.)
We agree with the Riverkeeper that the Department’s egregiously late public notice is a
clear violation of the requirement that notice of a HSCA settlement be published when it is
proposed.

There is no reasonable reading of the Section 1113 language that allows for

publication seven and ten years later and the Department’s excuse—that there was an
“inadvertent administrative oversight”—finds no support in the administrative record and in any
event is hardly a legitimate excuse. This is not a case where the required notice was a few weeks
or even a few months late, a circumstance where any impact from the late notice might be
negligible and/or readily mitigated by subsequent publication. The Department’s action initially
placed the public, and now places the Board, in a bizarre situation of evaluating the propriety of
the Department finalizing the Amendments to the 2005 PPA years removed from the execution
of those Amendments with Constitution Drive. The lapse in time presents obvious challenges
for the public’s ability to provide timely and meaningful comment on the Amendments.
The problems created by the unacceptably late publication of the notice are compounded,
in our opinion, by the shortcomings in the content of the notice and how it fails to address the
changed circumstances at the Site between 2010 and 2017. The notice is not at all forthcoming

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on revealing how dramatically late it is or what has changed in the intervening years since the
Amendments were entered into. For instance, the AS/SVE system had not worked for several
years before the Department sought comment on whether it would be a good idea to install an
AS/SVE system. The only allusion in the public notice to any issues with the AS/SVE system
occurs in the description of the 2010 Amendment wherein it states that Constitution Drive agreed
to “repair” the AS/SVE system. (AR 0117.) The notice does not reveal that a contractor for
Constitution Drive subsequently damaged the AS/SVE system and it has not been operated ever
since. The Riverkeeper also notes that the notice does not mention the Department’s rescission
of the covenant not to sue that followed the contractor’s damaging of the AS/SVE system. Nor
does the notice mention that the zoning of the site changed from industrial to residential in 2014.
Further, the notice makes no mention of the 2016/2017 Remediation Scope of Work for Targeted
Soil Excavation submitted by Constitution Drive and under review by the Department. Although
most of the commenters appear for the most part to be aware of the ongoing issues with the
remediation of the site, the notice is wholly unhelpful to anyone who was not paying close
attention to the developments over the course of the last decade.
The Department’s response to comments is at times equally frustrating. For example, the
Department asserts that the Riverkeeper’s comments do not address the Amendments, but this is
just not true. The Riverkeeper’s comment says that the AS/SVE system “will not protect the
public health, safety and welfare and the natural resources of this Commonwealth from the shortterm and-long-term effects of the release of hazardous substances and contaminants into the
environment from the Bishop Tube site.” (AR 0161.) The AS/SVE system, of course, was not
part of the 2005 PPA and only became part of the remediation during the 2007 Amendment. The
Department deals with this comment in its response by saying the actions taken pursuant to the

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2005 PPA and the Amendments are just an interim response and a final response action is
forthcoming. (AR 0127.) Indeed, the Department repeatedly tries to minimize the importance of
the Amendments by assuring the commenters that further investigation and cleanup is needed
and a final response action will come someday. However, this is a bit of a dodge that is not
particularly helpful in evaluating whether the Amendments should have been finalized by the
Department. The AS/SVE system was almost a complete failure and appears to have not
materially advanced the cleanup of the site, yet the Department seems unwilling to acknowledge
this reality in its response to comments. The Amendments are premised on basic assumptions
that have not existed for years.
This is somewhat emblematic of the Department’s entire comment response document.
The Department says that the majority of comments it received were not related to the
Amendments themselves and the modifications of Constitution Drive’s performance obligations.
Perhaps some of that that can be forgiven since the commenters were asked to comment on two
agreements that the passage of time had rendered nearly superfluous. Further, the notice of
public comments says that “[i]nterested persons may submit written comments regarding this
PPA and its amendments….” (AR 0117 (emphasis added).) Yet in its response the Department
repeatedly criticizes the commenters for offering comments on the 2005 PPA. The Department
says in its brief that the Amendments may not have been fully understood by the public without
reference to the original PPA, so the notice offered the public the opportunity to comment solely
on the Amendments but viewed in the context of their relation to the 2005 PPA. Although we
are in no way saying that the language in the notice opens up the 2005 PPA to challenge, it is
illustrative of the Department’s less than careful approach to seeking public input on the
Amendments. The Department defends its response and construes its effort in responding to

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comments as “painstaking,” but it instead reads like a series of pro forma statements meant to
belatedly satisfy its obligations under Section 1113 but go no further. The Department goes
through the motions but does not earnestly address some of the comments, and its response
almost treats it as a foregone conclusion that the Amendments would be finalized, without
modification or further consideration.
The Department’s response to extensive comments about the change in zoning of the
Bishop Tube site from industrial to residential is similarly unsatisfying. The zoning change was
made by East Whiteland Township in 2014 at the request of Constitution Drive. The 2005 PPA
provided that Constitution Drive “plans to develop the site for commercial purposes.” (AR
0003.) It also provides that Constitution Drive would remediate the soils at the site to a level
“necessary to demonstrate the attainment of a non-residential statewide health standard or sitespecific standard….” (AR 0005.) The 2007 Amendment to the PPA altered that obligation. In
exchange for Constitution Drive getting the AS/SVE system up and running for 60 days, the
2007 Amendment provided that the Department would assume the responsibility of
demonstrating attainment with an unspecified remediation standard:
[t]he Department agrees…to expeditiously perform (or require responsible parties
other than Developer [Constitution Drive] to perform) other necessary remedial
actions at the Site in order to demonstrate attainment with one or a
combination of remediation standards under Act 2 for soils and groundwater
at the Site that are consistent with Developer’s intended redevelopment
activities.
(AR 0041 (emphasis added).) It is unclear whether the 2010 Amendment further modifies that
obligation or not. The 2010 Amendment again provided a mechanism to relieve Constitution
Drive of any further remediation obligations at the Bishop Tube site under the PPA in exchange
for running to AS/SVE system for 72 hours:

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Upon satisfaction of Developer’s obligations pursuant to Paragraph 3(a) above,
the Department shall provide Developer with a letter within fourteen (14) days of
satisfaction of Developer’s obligations confirming that Developer has satisfied its
obligations pursuant to Paragraph 3(a), and Developer shall have no further
remedial obligations at all to the Department relating to the Site pursuant to the
CO&A and First Amendment (including, but not limited to any obligation to
remediate soil, groundwater, or surface water at or beyond the Site, or for the
operation and maintenance of the AS/SVE System at the Site).
(AR 0102-0103.)
There is very little support in the administrative record to show that the Department gave
serious consideration to the change in zoning from industrial to residential. One commenter
noted that “[n]owhere in the 2007 [Amendment] did the parties address whether these
remediation measures were appropriate for property that would later be rezoned for residential
use.” (AR 0143.) But the Department widely panned such comments on the change in zoning,
saying “zoning and land use decisions are outside of the Department’s purview but are the
responsibilities of local municipalities.” (AR 0125.) Nor did the Department make any mention
in the comment response document of the ongoing discussions between itself and Constitution
Drive regarding the 2016/2017 Remediation Scope of Work for Targeted Soil Excavation that
appears related to the zoning change and revised development plans. While zoning decisions
themselves are largely outside of the Department’s authority, that is not to say that zoning
decisions do not influence the cleanup for the site. The 2007 Amendment makes clear that
remediation must be consistent with the Site’s intended use after redevelopment. Nowhere in the
comment response document does the Department explain why the AS/SVE system will further
the cleanup of the Site for its use for residential purposes
Instead, the Department simultaneously attempts to use the passage of time as a sword
and a shield by saying things like it is “pure speculation” whether the Department would have
acted differently in 2010 if the property had been zoned residential. (AR 0127.) This completely

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ignores the fact that the 2010 Amendment was not final until the Department issued its response
to the public comments. We do not have to speculate what the Department would have done in
2010 because the 2010 Amendment is being finalized in 2018, and the Department does not at
any point explain what it will do now on the basis of the zoning change. The Department also
says that “at the time of the amendments to the PPA, the Department’s understanding of the
proposed usage of the Bishop Tube property had not yet changed. East Whiteland later changed
the zoning at [Constitution Drive’s] request to residential in 2014.” (AR 0121-0122.) But that
again misses the point. The Amendments were not final and were still subject to change. The
Department could have changed the Amendments in light of its understanding of the proposed
use of the property in 2018. The Department never explains why, based on its understanding of
the zoning now, and the apparent ongoing efforts surrounding the 2016/2017 Remediation Scope
of Work, these Amendments are still appropriate to finalize. The Department cannot cure its
initial failure to comply with the notice and comment requirements in Section 1113 by the
significantly late publication of an inadequate notice compounded with responding to the public
comments it did receive as though nothing had changed at the Site or relative to the provisions of
the Amendments since 2010.
The Department’s action to finalize the Amendments in the face of the unique
circumstances in this case is arbitrary and capricious in the opinion of this Board. We therefore
sustain the appeal of the Riverkeeper and find that the 2007 Amendment and the 2010
Amendment are void because they were never properly finalized under Section 1113 and, at this
point, we see no pathway for properly finalizing them in their current form.6

6

We take no position on the continuing viability of the 2005 PPA. The Riverkeeper’s appeal did not
challenge that HSCA settlement document. Constitution Drive, in its Brief in Response, asserts that
among the Riverkeeper’s proposed relief is a request that the 2005 PPA be declared null and void.
(Constitution Drive’s Brief in Response, at 22.) In its Reply Brief, the Riverkeeper states that “DRN did

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CONCLUSIONS OF LAW
1.

The Environmental Hearing Board has jurisdiction over this matter. 35 P.S. §

7514; 35 P.S. § 6020.1113.
2.

The Board’s review of a settlement under HSCA is limited to determining

whether the settlement is arbitrary or capricious on the basis of an administrative record. 35 P.S.
§ 6020.1113.
3.

A prospective purchaser agreement in the form of a consent order and agreement,

and any amendments thereto, are settlements of a proceeding under Section 1113 of HSCA.
Chirico v. DEP, 2002 EHB 25, 24.
4.

A person appealing a settlement under Section 1113 of HSCA bears the burden of

proving that the settlement is arbitrary and capricious on the basis of the administrative record.
35 P.S. § 6020.1113.
5.

The Department’s actions addressing the 2007 Amendment and the 2010

Amendment under Section 1113 of HSCA were arbitrary and capricious and render those two
settlements themselves arbitrary and capricious.
6.

The Amendments were never properly noticed and made final in accordance with

Section 1113 of HSCA and are, therefore, void because the Department’s attempt to notice and
finalize the Amendments in 2018 was inadequate, untimely and failed to identify and account for
the changed circumstances and conditions at the Site

not request that the Board do anything about that 2005 PPA” while restating its belief that the 2005 PPA
is void because it was unperformed by the March 1, 2009 deadline. (Riverkeeper’s Reply Brief, at 15.)

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COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

DELAWARE RIVERKEEPER NETWORK
AND MAYA VAN ROSSUM,
THE DELAWARE RIVERKEEPER
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, and CONSTITUTION
DRIVE PARTNERS, LP, Permittee

:
:
:
:
:
:
:
:
:
:

EHB Docket No. 2018-020-L

ORDER
AND NOW, this 26th day of April 2019, it is hereby ordered that this appeal is
sustained. The 2007 Amendment and the 2010 Amendment are declared void.

ENVIRONMENTAL HEARING BOARD
s/ Thomas W. Renwand
THOMAS W. RENWAND
Chief Judge and Chairman
s/ Michelle A. Coleman
MICHELLE A. COLEMAN
Judge
s/ Bernard A. Labuskes, Jr.
BERNARD A. LABUSKES, JR.
Judge
s/ Richard P. Mather, Sr.
RICHARD P. MATHER, SR.
Judge

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s/ Steven C. Beckman
STEVEN C. BECKMAN
Judge
DATED: April 26, 2019
c:

DEP, General Law Division:
Attention: Maria Tolentino
(via electronic mail)
For the Commonwealth of PA, DEP:
Anderson Lee Hartzell, Esquire
(via electronic filing system)
For Appellants:
Deanna Kaplan Tanner, Esquire
(via electronic filing system)
For Permittee:
Jonathan Spergel, Esquire
Nicole R. Moshang, Esquire
James McClammer, Esquire
(via electronic filing system)

33