ChesterNewMatterWinter2017 - 20

Save Our Environment

Is it a Strategic Litigation Against Public
Participation ("SLAPP") Suit or a Defamation
Action? Freedom of Speech Wins Round One
in Proposed Development of the Bishop Tube
TCE Contamination Site
By John R. Embick, Esquire
Chairman of the Environmental
Law Section

T

he former Bishop Tube Site, located in East
Whiteland Township, just outside of Malvern
Borough and near the intersection of Route 29
and Route 30, was an industrial property used for many
years for metal fabrication activities. In connection
with the fabrication activities, the halo carbon
trichloroethylene ("TCE", or one of its isomers) was
used to clean grease from metal parts prior to finishing
or painting. Spent TCE was released on areas of the site
and resulted in contaminated soil and groundwater. The
site was never fully remediated, and has been rezoned for
residential housing uses.
Mr. Brian O'Neill, a developer, his company, and
Constitution Drive Properties, LP, ("CDP") developed
a plan to remediate the site and build approximately
200 homes on the site. CDP entered into a Prospective
Purchaser Agreement with PaDEP to remediate the
site according to certain standards set forth in The
Land Recycling and Environmental Remediation
Standards Act, commonly known as "Act 2." 35 P.S. ยงยง
6026.101, et seq. Act 2 provides standards for cleanup
and affords some protection to the buyer for liability for
contamination cleanup in the future.
The development plan was opposed by a number
of local and regional groups, including the Delaware
River Keeper Network ("DRN"), headed by Maya van

20 | New Matter

Rossum. The development plan was opposed for a
number of reasons, including that the development
plan allegedly did not address all of the contamination
at the Bishop Tube Site, and that TCE soil and ground
water contamination would likely continue to discharge
from the site and would adversely affect the Little
Valley Creek, a tributary to the Valley Creek. Valley
Creek is designated as an exceptional value water by the
Commonwealth of Pennsylvania, and merits the highest
level of protection.
DRN made numerous allegations about the
proposed development to the host municipality and to
Pennsylvania Department of Environmental Resources,
including the environmental impact of the development,
the possible contamination of Valley Creek, the
insufficiency of the clean-up, and the danger to future
residents of the proposed development.
CDP subsequently filed a lawsuit against DNR and
others, in Chester County Court of Common Pleas (Doc.
No. 2017-03836-MJ), alleging claims sounding in: (1)
defamation or corporate disparagement; (2) tortious
interference with contract; and (3) civil conspiracy. DRN
filed 9 preliminary objections in response.
On August 22, 2017, Judge Jeffrey R. Sommer
dismissed the complaint. In his Order, Judge Sommer
only addressed the first of DRN's preliminary objections,
which stated that the defendants, including the DRN,
were immune from suit under the Noerr-Pennington
Doctrine. The Noerr-Pennington Doctrine holds that a
person is immune from liability for exercising his First
Amendment right to petition the government. The
doctrine, as first developed, stated that individuals and
organizations were immune from liability under antitrust
laws for actions constituting petitions to the government.
E. R.R. Presidents Conference v. Noerr Motor Freight,



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