My first experiences with the Pennsylvania History Code (Title 37 of the Pennsylvania Statutes) happened in the late 1980s. I was in graduate school at the University of Pennsylvania and working as an archaeologist. My employers had lucrative regulatory compliance contracts: working for agencies and private sector entities required to comply with federal and state laws. These laws (the National Historic Preservation Act, the National Environmental Policy Act, and the Pennsylvania History Code) required parties receiving federal and state funds, permits, and licenses to identify historic places, evaluate their significance, and resolve adverse effects to them introduced by the projects triggering regulatory compliance.
Until 1995, compliance with the Pennsylvania History Code meant doing intensive and costly archaeological surveys and excavations. At the time, Pennsylvania’s state archaeologist had a thing for deeply buried prehistoric sites. Consultants had to prove to his satisfaction that they had dug deep enough and used the appropriate technical expertise to reach soils deeper than what the first Native Americans who lived in Pennsylvania ever walked upon. That meant very deep holes and hiring expensive soils science specialists called geomorphologists.
I remember cursing the state archaeologist many times as I dug or supervised the excavation of neat square holes — sometimes using backhoes and other heavy machinery because the soils were so deep — to identify sites that dovetailed with his research interests. Some of my most vivid archaeology fieldwork memories involve working in subfreezing cold temperatures with negative windchill numbers to meet project deadlines and the state archaeologist’s obsession with so-called Paleo sites.
Back in late 1990 I and a colleague excavated a deep test unit in temperatures so cold that the dirt re-froze between the excavation unit and the screen being used to recover artifacts — if any were to be found. It was so cold that we had to use a mattock pick (typically used for breaking rock) to excavate in the usually fine river bottom soil because it was frozen. We then had to wait in the cold for the geomorphologist to arrive to tell us what we could see for ourselves: there was no archaeological site where a Weis supermarket was going to be built.
Pennsylvania’s archaeological requirements became so onerous that the private sector successfully convinced sympathetic legislators to eliminate most archaeological compliance obligations from the Pennsylvania History Code. They called the repeal effort “Act 70.”
Archaeologists around the state decried the move shifting the burden to find and protect archaeological sites from the private sector to the state government. While vilifying “bad developers” and legislators, archaeologists and historic preservationists didn’t look into a mirror and explore what role they might have played in Act 70’s enactment. In addition to complaining about Act 70’s impacts on the Commonwealth’s archaeological heritage, archaeologists also bemoaned the economic hit on their bottom lines fed by the historic preservation regulatory compliance industrial complex.
But the History Code and historic preservation regulatory compliance aren’t limited to archaeology. They also embrace old buildings. Fast forward to 2021 and a weakened Pennsylvania History Code that continues to place regulatory burdens on the private sector through what I call performative regulatory compliance: going through the motions to document and “preserve” old places with no real benefits — other than to the consultants getting the contracts and the Pennsylvania State Historic Preservation Office getting “data” it previously got through federal funding — to the people in communities where historic properties were located.
Pittsburgh’s former Federal Cold Storage Company building is a prime example of performative regulatory compliance with the Pennsylvania History Code. A private developer had to hire a consultant to produce a written report and photographs in order to get a permit from the Pennsylvania Department of Environmental Protection.
Unlike federal compliance projects with rigorous documentation and review standards, compliance with the Pennsylvania History Code is pretty loose and arbitrary. To “mitigate” the impacts to the Federal Cold Storage Company building, the Pennsylvania Historical and Museum Commission instructed the developer’s consultant to produce:
Digital Photographic Documentation. The purpose of the photographic documentation is to record current conditions and significant features of the property. Photographs must show all exterior elevations of the buildings as well as any interior spaces and features. The digital images must be named and numbered in order. The photograph submission should be accompanied by a photo log which will include photographer, photo date, photo number and description.
Historical Narrative. The narrative should present: the significance of the building, indicating why it is worthy of documentation; a brief description of the physical characteristics of the building; and a history of the building, including any information on construction, the design/building, ownership information, and the various uses of the building over time. The narrative should be supplemented by a bibliography of sources used. The narrative should be provided in pdf format.
The consultant submitted a perfunctory 13-page report that left out more information about the building’s history and why it was important than it included. The report and photos are locked behind a complicated PHMC database portal and away from the people most invested in knowing and preserving the building’s history, the people of Pittsburgh.
Last week, City & State Pennsylvania published my op-ed calling for the repeal of the Section 508 in the Pennsylvania History Code. That is the provision requiring private sector entities to engage in acts of regulatory compliance theater resulting in the completion of “mitigation” projects like the one for the Federal Cold Storage Company building.
My op-ed and this post aren’t anti-preservation efforts; they are meant to try and improve historic preservation. If the efforts to enact changes that benefit history, historic preservation, and the people of Pennsylvania need to be initiated by anti-regulatory legislators taking a machete to the History Code, so be it. The law’s shortcomings aren’t a secret to Pennsylvania’s historic preservation professionals afraid of making moves that might further endanger a profitable regulatory framework. But as I wrote in my op-ed, who is reaping those profits?
© 2022 D.S. Rotenstein
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