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New Hanover Township wins latest Gibraltar Rock quarry appeal

NEW HANOVER — The township has won the latest skirmish in the two-decades-old legal battle over plans to open a 241-acre rock quarry off Route 73.

In a Dec. 21 decision, the Pennsylvania Supreme Court reversed a June 30, 2021, Commonwealth Court ruling which itself had reversed an April 2020 ruling by the Pennsylvania Environmental Hearing Board. The hearing board had rescinded mining permits issued to Gibraltar Rock by the mining office of the Pennsylvania Department of Environmental Protection.

The Environmental Hearing Board had ruled that until the contaminated groundwater site adjacent to the quarry’s property is cleaned up by the Department of Environmental Protection “Gibraltar cannot open a quarry on its property.”

Gibraltar had argued given its agreement to “monitor its property for intrusion of groundwater contaminants from the hazardous site, and to treat any contaminants” the “board should have remanded the permits to DEP for further consideration,” according to the court decision.

However, in its reversal of the reversal, the Supreme Court ruled that the Commonwealth Court erred in basing its decision on arguments Gibraltar Rock had never presented in court.

“When the Commonwealth Court reversed the order of the (Environmental Hearing) Board, it did not address whether there was substantial evidence to support the two findings as Gibraltar had urged. Instead, the court pursued three unique theories, finding that the Board erred in rescinding the permits based on the Department’s actions rather than Gibraltar’s; that the board’s decision effectuated an unconstitutional taking; and that the Board’s decision may have worked a harm on the environment in violation of Article I, Section 27. Gibraltar Rock, 258 A.3d at 581-84,” the Supreme Court decision reads.

By doing so, the Commonwealth Court deprived the township and Ban the Quarry/Paradise Watchdogs, the citizen group joined with the township in the case, from offering evidence or testimony to refute those arguments, the Supreme Court decided.

The ruling even quotes Gibraltar’s filing for the appeal writing “for its part, Gibraltar tactfully acknowledges that the ‘Commonwealth Court likely put more on paper than was needed.’”

The ruling vacates the Commonwealth Court’s decision and sends the matter back for re-consideration based solely on the evidence presented.

“The township has been arguing all along that it is beside the point to quibble over whether there is sufficient evidence to support a rescission versus a remand when the evidence clearly shows that the permits should never have been issued in the first place,” New Hanover Township Manager Jamie Gwynn wrote in an email seeking a reaction to the decision.

“So, we think Gibraltar Rock has a difficult road ahead given what the Supreme Court said in its opinion,” Gwynn wrote.

Stephen Harris, longtime attorney for Gibraltar Rock, did not respond to a message left Thursday seeking his office’s reaction to the decision.

“We are very pleased with the outcome,” wrote Chris Mullaney, attorney for Ban The Quarry/Paradise Watchdogs who has also been with the case for years. The citizens’ group “has been fighting the quarry for decades. It is urgent now more than ever that a quarry never be built, as it would pump water from the ground, which is contaminated by about 20 different chemicals, some of which are known carcinogens, into our environment,” he wrote.

“We are hopeful that after this decision, the Commonwealth Court will make the right decision to rescind the permits,” wrote Mullaney.


Source: Berkshire mont

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