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One Win for Gibraltar Quarry, Three Challenges to Go

Written by Kelly Chandler, Staff Writer
2011-09-29

New Hanover officials continue to fight quarry operating “outside the law” in the township

Despite losing the first of four appeals to Pennsylvania’s Environmental Hearing Board (EHB), New Hanover officials said they aren’t backing down in their fight for the township’s best interests when it comes to the Gibraltar Rock quarry located at Big, Layfield, Colflesh and Church roads.

We’re not surprised on our end, but we’re still going to keep on fighting,” said Township Manager Ed Wagner Tuesday. “We’ll continue to fight it another way from another angle in court.”

On Sept. 19 the EHB, which hears appeals on the actions of the state’s Department of Environmental Protection (DEP), denied the township’s appeal which questioned the legality of Gibraltar Rock’s NPDES permit renewal. NPDES permits regulate groundwater discharge.

While DEP renewed that permit, and in that permit mandated that Gibraltar Rock must follow local zoning laws and ordinances, the EHB says that the DEP is not responsible for making sure Gibraltar Rock obtains all necessary land use approvals from the township or are they responsible for “helping” the township enforce its land use requirements.

EHB said renewals of those permits are automatic, as long as they are done in a timely manner, and that the township should have appealed DEP’s original issuance of Gibraltar’s noncoal surface mining permit back in 2005.

The township’s position is that they thought DEP would enforce the permit’s conditions before mining activities were allowed to commence at the site.

In essence, said Christopher Mullaney, attorney for Paradise Watchdogs/Ban the Quarry, a citizens watchdog group, DEP can do what they please.

“The message to the public from the court contained in this appeal is clear – that the DEP has broad discretion to enforce conditions regarding permits or not to enforce them and to do nothing at all. They may sit on the sidelines, despite the fact they have mandated Gibraltar to follow township zoning conditions/ordinances…DEP does not protect the citizens; this is very obvious. Worse, they mislead citizens to believe there are protective enforceable conditions in the permit, when there are few to none.

“In addition, on Oct. 3, 2006, at a public comment hearing regarding the permit, DEP specifically told township residents, ‘The plan approval states that permissible activities shall not be conducted at the site unless approved by New Hanover Township.’ They obviously did not keep their word.”

In the court document, the EHB said DEP wants to “remain on the sidelines while New Hanover and Gibraltar Rock resolve the local land development and zoning disputes that began in 2001 and are still raging.”

In a press release issued last week by Uday Patankar, vice president of Environmental and Public Affairs for the Silvi Group Companies, owners of the quarry, the company contends that since the EHB denied the appeal, Gibraltar Rock was not in violation of the permit’s conditions.

They also make a point to state the township has spent more than $1.25 million in legal and consultant fees to fight the quarry.

“I hope that this sends a message to the township to resolve the quarry issue through mutual discourse rather than through costly litigation,” commented Gibraltar Rock co-owner John Silvi in the release. “We stand ready to open the quarry and employ 30 qualified individuals from the local area as soon as the township agrees to work with us rather than against us. Given today’s economy, local employment and saving taxpayer dollars by avoiding continuing litigation should carry some weight in government decision-making!”

The township has three remaining court appeals, said Wagner, with their next appearance scheduled for Oct. 27 at 9:30 a.m. Those appeals revolve around the DEP’s decision to grant Gibraltar’s application for extensions to continue mining activities. Those decisions were made in November 2010, May 2011 and August 2011. Those appeals are being consolidated into one in court, said New Hanover special counsel Bob Brant.

The township’s counsel contends that DEP’s decision to grant those extensions is an abuse of discretion and in error of the law since Gibraltar had not filed a land development plan.

A Montgomery County Court of Common Pleas judge ruled earlier this year that operations must cease at the site until a land use plan is filed and approved.

“DEP is acting very friendly to the quarry industry,” said Brant of the latest court decision. He noted as Gibraltar activated the mining permit without filing a land development plan, when they started work at the site in 2010, the township’s position is that DEP did not have the authority to grant extensions.

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