IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gibraltar Rock, Inc., :

Petitioner :

:

 v. : No. 500 C.D. 2020

:

Pennsylvania Department of : Argued: November 8, 2023 

Environmental Protection, :

Respondent :

BEFORE: HONORABLE RENEE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge 

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION 

BY JUDGE McCULLOUGH FILED: May 8, 2024

This appeal comes to us on remand from the Supreme Court of 

Pennsylvania in Gibraltar Rock, Inc. v. Pennsylvania Department of Environmental 

Protection, 286 A.3d 713 (Pa. 2022) (Gibraltar Rock II), which reversed the decision 

of this Court in Gibraltar Rock, Inc. v. Pennsylvania Department of Environmental 

Protection, 258 A.3d 572 (Pa. Cmwlth. 2021) (Gibraltar Rock I), rev’d and remanded, 

Gibraltar Rock II. In Gibraltar Rock I, we reversed the decision of the Pennsylvania 

Environmental Hearing Board (Board) that rescinded Gibraltar Rock, Inc.’s 

(Petitioner) mining permits issued by the Department of Environmental Protection 

(DEP) and remanded to the Board. Petitioner appealed to our Supreme Court. The 

Supreme Court vacated our order and remanded the matter to this Court for a 

determination of the single question of whether the decision of the Board to rescind, 

rather than remand, the permits was supported by substantial evidence. We affirm.
2

I. Facts and Procedural History

The facts and procedural history of this case have been set forth at length 

in our original opinion, Gibraltar Rock I, and the opinion rendered by the Supreme 

Court in Gibraltar Rock II. We recount here only those necessary to this opinion.

For the past 22 years, Petitioner has attempted to obtain and renew permits 

for rock quarrying on land located on a 241-acre property in New Hanover Township 

(Township), near the northern edge of Montgomery County. The permits include a 

non-coal surface mining permit, a national pollutant discharge elimination system 

permit (NPDES),1and an authorization to mine permit. The permits were originally

issued to Petitioner in 2005. The Township and several citizens and citizen groups, 

“Paradise Watchdogs,” “Ban the Quarry,” and John C. Auman, have opposed the 

development of the rock quarry. Litigation over zoning issues ensued for years, which 

required a number of permit extensions.

2

 Due to the passage of time, Petitioner was 

also required, by regulation, to seek renewal of the NPDES permit.

3

 

Petitioner’s property is located adjacent to a former industrial site, the 

Hoffmansville Road and vinyl chloride site (Hoff VC Site). In 2011, DEP discovered 

that the Hoff VC Site was contaminated with hazardous substances, including several 

volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), and 

1 The NPDES permit is required by the federal Clean Water Act, 33 U.S.C. §§ 1251-1388. 

The NPDES permit sets limits on the pollutants that a permittee can discharge into water within the 

United States, imposes monitoring and reporting requirements, and contains other provisions to 

ensure that the discharge does not harm water quality or public health.

2

See In re Gibraltar Rock, Inc. (Pa. Cmwlth., No. 2287 C.D. 2011, filed October 11, 2013) 

(unreported).

3

 See 25 Pa. Code § 77.128(a), which provides that “[a] permit will be issued for the duration 

of the mining and reclamation operation except for the NPDES permit, which shall be renewed every 

5 years.”
3

other pollutants that have seeped into the groundwater, causing contamination in a 

number of residential drinking water wells in a geographic area that includes 

Petitioner’s proposed rock quarry.4 

While reviewing Petitioner’s most recent permit renewal applications, 

DEP instructed Petitioner to provide updated monitoring well sample results, and to 

address how Petitioner intends to monitor and provide for the possibility that 

contaminants from the Hoff VC Site may migrate onto its property due to its quarrying

activities. Petitioner, through its technical consultant, EarthRes, submitted its response, 

proposing to increase the samplings at its own monitoring wells and at those located 

on the Hoff VC Site, once it opened the quarry. Assuming that final remediation of the 

Hoff VC Site would not be completed before quarry operations began, Petitioner

explained that repeated sampling at its wells and at the Hoff VC Site would detect 

migration of contaminants. Petitioner agreed to treat any contaminants that appeared 

in groundwater on its property. 

In 2016, DEP discovered a concrete vault on the Hoff VC Site containing 

various hazardous compounds that had never been remediated. On January 4, 2017, 

DEP directed Petitioner to address the potential for the contaminants discovered in the 

concrete vault to migrate onto Petitioner’s property. Petitioner again responded that it 

would monitor the groundwater for contaminants and, if discovered, remediate them. 

On March 2, 2017, DEP notified Petitioner that it had completed its technical review 

of Petitioner’s permit renewal application but required a new mining and reclamation 

bond. Petitioner provided the new reclamation bond. A draft NPDES permit was 

published in the Pennsylvania Bulletin on July 15, 2017. 

4 The Hoff VC Site was officially designated as a cleanup site under the Hazardous Sites 

Cleanup Act (HSCA), Act of October 18, 1988, P.L. 756, 35 P.S. §§ 6020.101-6020.1305.
4

On August 11, 2017, the Township, which objected to the permit renewal 

application, requested DEP to require Petitioner to produce a fate and transport 

analysis5that would measure the extent and movement of contaminants in 

groundwater, i.e., the “plume” of discharge from the Hoff VC Site. In response, 

EarthRes prepared a “Fate and Transport Analysis and Assessment of Hoff VC Site 

Contaminant Migration.” This assessment, referred to as the “EarthRes Model,”

concluded that the plume would not enter the proposed quarry mining area. 

Specifically, it concluded that the pumping of water at the quarry was unlikely to draw 

contamination from the Hoff VC Site because groundwater generally flows south and 

west from the Hoff VC Site, and Petitioner’s quarry will be located south and east of 

the Hoff VC Site. EarthRes concluded that because the quarry footprint would develop 

slowly, Petitioner would not do significant groundwater pumping for approximately 15 

years, by which time the contaminants at the Hoff VC Site would have been resolved, 

either by remediation or by natural degradation. Petitioner posted a $1,422,935.00 

reclamation bond. On July 2, 2018, DEP renewed Petitioner’s surface mining and 

NPDES permits.

The Township appealed and objectors, Paradise Watchdogs, Ban the 

Quarry, and John C. Aumen, intervened in the Township’s appeal. The Board held 

five days of hearings. 

The Township presented the testimony of Charles Francis McLane III and 

Toby Kessler, who are licensed geologists. McLane opined that the EarthRes Model 

was flawed. Based on his own model, McLane opined that pumping water at the quarry 

5 A fate and transport model is used to evaluate hydrogeologic contaminant movement from 

a source, predicting estimated contaminant concentration, direction, and arrival time to a selected 

destination while accounting for parameters such as contaminant degradation and aquifer porosity. 

(Board Adjudication, April 24, 2020 (Adjudication), at 34.)
5

would draw contaminated groundwater at the Hoff VC Site eastward in the direction 

of the quarry and away from its generally westward flow. Kessler opined that at least 

one contaminant reported by Petitioner in a monitoring well had originated at the Hoff 

VC Site. 

Three DEP employees testified. Colin Wade, DEP’s supervisor of the 

Hoff VC Site, explained that the remediation of the concrete vault was completed, and 

that DEP will continue sampling its monitoring wells at the site. He testified that DEP 

has initiated a pilot program to evaluate the groundwater contamination for 

remediation. Michael P. Kutney, the permits chief at DEP’s Pottsville Office, and 

Michelle Hamlin, a geologist specialist, testified that DEP accepted the EarthRes 

Model when it reviewed Petitioner’s permit renewal application. The witnesses agreed 

with the conclusion in the EarthRes Model that the groundwater at the Hoff VC Site 

would not migrate to the quarry. However, they admitted they had they learned of 

McLane’s criticisms of the EarthRes Model prior to renewing Petitioner’s permits, they 

would have required Petitioner to respond before rendering their decision. 

On April 24, 2020, the Board issued its 84-page Adjudication, with 253 

Findings of Fact and 20 Conclusions of Law, concluding that DEP erred by issuing the 

permits in light of the ongoing risks posed by the groundwater contamination at the 

adjacent Hoff VC Site. Based on the evidence presented at the hearings, the Board 

determined that the DEP improperly issued the permits because Petitioner failed to 

affirmatively demonstrate, inter alia, that the operation of its quarry complied with the 

Noncoal Surface Mining Conservation and Reclamation Act (Noncoal Act)6

6 Act of December 19, 1984, P.L. 1093, as amended, 52 P.S. §§ 3301-3326. The purpose of 

the Noncoal Act includes protecting land, decreasing soil erosion, preventing pollution of rivers and 

streams, generally improving the use and enjoyment of the lands, and most importantly here, 

preventing and eliminating hazards to health and safety. Section 2 of the NonCoal Act, 52 P.S. § 

(Footnote continued on next page...)
6

requirement that it “will not cause pollution to the waters of the Commonwealth.” 

Section 8(a)(3) of the Noncoal Act, 52 P.S. § 3308(a)(3). Relying on expert testimony 

presented by the Township, the Board cited the risk that quarrying activities would 

likely intercept and spread contamination plumes emanating from the Hoff VC site, 

leading to groundwater contamination. The Board entered an order rescinding the 

permits without prejudice, allowing Petitioner to amend its existing permit applications 

or submit new permit applications that would address the Board’s concerns. 

In serving its function as factfinder and arbiter of credibility, the Board 

made detailed findings of fact to support these conclusions. Specifically, the Board 

found that, despite DEP’s clean-up efforts, more than a dozen contaminants, some of 

3302; see Tinicum Township v. Delaware Valley Concrete, 812 A.2d 758, 760 n.4 (Pa. Cmwlth. 2002) 

(“The Non[c]oal Act was passed to address the negative [effects] of surface mining by improving 

conservation of the land, protecting the health and safety of citizens and wildlife, and limiting 

pollution.”). No permit may be issued unless the applicant affirmatively demonstrates that

(1) The permit application is accurate and complete and that all 

requirements of this act and the regulations promulgated hereunder 

have been complied with.

(2) The operation and reclamation plan contained in the application can 

be accomplished as required by this act and regulations.

(3) The operation will not cause pollution to the waters of this 

Commonwealth.

Section 8 of the Noncoal Act, 52 P.S. § 3308. The applicable regulations provide that a permit, permit 

renewal, or revised permit application may not be approved unless the applicant affirmatively 

demonstrates and DEP finds in writing that, among other things, (1) the permit application is accurate 

and complete and that the requirements of the act, the environmental acts and regulations have been 

complied with; (2) the applicant has demonstrated that the noncoal mining activities can be reasonably 

accomplished as required by the act, and this chapter under the operation and reclamation plan 

contained in the application; and (3) the applicant has demonstrated that there is no presumptive 

evidence of potential pollution of the waters of this Commonwealth. 25 Pa. Code § 77.126(a). 

 Among other requirements, the applicant must show that it will ensure the protection of the 

quality and quantity of surface water and groundwater, both within the permit area and adjacent areas, 

as well as the rights of present users of surface water and groundwater. 25 Pa. Code § 77.457(a). See 

also 25 Pa. Code § 77.521 (mining to be planned and conducted to minimize disturbances to the 

prevailing hydrologic balance in the permit and adjacent areas).
7

which can persist for more than 100 years absent remediation, continue to be present 

at the Hoff VC Site at levels that exceed the medium-specific concentration established 

for used residential aquifers. (Findings of Fact (FOF) 113-24.) It found that samplings 

from monitoring wells at the Hoff VC Site in 2017 and 2019 uncovered the presence 

of previously undetected chemical contaminants. (FOF 125.) It determined that “the 

contaminated groundwater plume already extends onto [Petitioner’s] permit area” and 

that “[v]ery little distance remains for it to travel into the pits.” (Adjudication, at 61.) 

It further found that monitoring results confirm that contaminants are being 

encountered in the groundwater moving toward the quarry. (FOF 244.) It also 

determined that DEP issued the permits based on the belief (which turned out to be 

mistaken) that contamination from the Hoff VC Site would likely never reach the 

quarry. (FOF 168.) According to the Board, “[t]here is simply no doubt that quarry 

pumping will expand pollution.” (Adjudication, at 54.)

The Board noted “[t]here is no record evidence that anyone at [DEP] 

considered the effect that quarry pumping would have on the investigation, remedial 

design, or remedial action at the Hoff VC Site.” (FOF 138.) Critically, the Board noted 

that DEP’s permit chief, Michael Kutney, testified that “he would not have issued the 

permits if he knew then what he knows now” and that “[Petitioner] could expect to 

receive a letter requesting further explanation regarding the inconsistencies revealed at 

the hearing.” (FOF 248-49.) In the Board’s view, DEP was “premature” in issuing the 

permits “in light of the unanswered questions regarding the [Hoff VC] Site.” 

(Adjudication, at 70-79.) 

Based on the extensive factual findings and applicable law, the Board 

concluded that the “spread of multiple hazardous contaminants in the groundwater that 

would result from [Petitioner’s] quarry pumping constitutes presumptive evidence of 
8

potential pollution that cannot be permitted consistent with the Noncoal Act. 52 P.S. 

§ 3308(a); 25 Pa. Code § 77.126(a)(3).” (Adjudication, at 203.) Also, “[Petitioner] 

has not shown that the quarry can be operated without disturbance to the prevailing

hydrologic balance, without deleterious changes in groundwater quality, and without 

causing water pollution in violation of 25 Pa. Code § 77.521 and 52 P.S. § 3308(a). 

See also [the associated regulations,] 25 Pa. Code § 77.457.” Id. It further found that 

DEP did not uphold its constitutional duties as trustee of Pennsylvania’s public natural 

resources under article I, section 27 of the Pennsylvania Constitution7 because it did 

not “fully consider and understand the environmental effects of” issuing the permit, 

and it “failed to act with prudence and impartiality as the trustee of Pennsylvania’s 

public natural resources by permitting [Petitioner’s] quarry.” Id. at 204.

Regarding DEP’s plans to remediate the Hoff VC Site, the Board 

determined that DEP is “not committed to anything other than continued monitoring if 

the monitoring wells show additional contamination” and that DEP simply says, “[a] 

series of scientific determinations must be made presently, as well as going forward.” 

Id. at 62 (citation omitted). It further noted that “[DEP] has not scheduled any further 

cleanup measures at the Hoff VC Site yet, and natural attenuation does not appear to 

be solving the problem anytime soon.” Id. at 61. The Board also found that DEP was 

not at that time “taking any action” with respect to the contamination of the monitoring 

7 Article I, section 27 of the Pennsylvania Constitution provides:

Natural Resources and the public estate.

The people have a right to clean air, pure water, and to the preservation 

of the natural, scenic, historic and esthetic values of the environment. 

Pennsylvania’s public natural resources are the common property of all 

people, including generations yet to come. As trustee of these 

resources, the Commonwealth shall conserve and maintain them for the

benefit of all the people.

PA. CONST. art. I, § 27.
9

wells and that “[DEP] has no immediate or specific plans at this time to conduct further 

studies and remediation activities at the Hoff VC [] Site, although there is no doubt that

there will be such activities.” (FOF 133.) With respect to the uncertainty of the clean 

up at the Hoff VC Site, the Board expressed its concerns as follows:

There is reason to believe that not all substances have been 

identified. Certainly not all sources have been identified and 

ameliorated, notwithstanding [DEP’s] interim measures. 

There is no consistent trend yet on whether groundwater is 

improving, getting worse, or stabilizing despite [DEP’s]

interim measures. Contamination at the site will persist 

indefinitely absent remediation. Natural attenuation alone 

cannot be counted upon to resolve the contamination. Yet 

there are no current plans for investigation, remedial design, 

or remediation.

* * * *

The Hoff VC Site still needs to be cleaned up. The plume of 

contaminated groundwater appears to be spreading even 

without the more active migration that quarry pumping will 

cause. The scope of the groundwater problem in particular 

and the contamination of the site in general has not been 

defined, let alone remediated. . . . [DEP] in vague terms 

appears to be batting around internally the idea of some sort 

of in situ treatment of groundwater, but there are no concrete 

specific plans for further investigation or remediation. 

Everything is up in the air. But what is certain is that 

somebody is going to be required to pay for future work. 

(Adjudication, at 47, 69-70.)

Finally, and relevant to the only substantive challenge raised by Petitioner 

on appeal, the Board addressed the remedy:

Clearly, [DEP] has issued the [] permits prematurely in light 

of the unanswered questions regarding the Hoff VC [S]ite. 

As investigation and remediation of that hazardous site 

evolves, it may become clear that quarrying can be 
10

accomplished in harmony with the cleanup. However, given 

the lack of any momentum on that site, we are concerned 

that a remand pending HSCA activities would drag on 

indefinitely, again giving rise to the staleness concerns 

that required a remand in our first Adjudication. 

Therefore, we will rescind the permits but without 

prejudice to [Petitioner’s] right to reapply for the permits 

if remediation of the Hoff VC [S]ite matures to the point 

that it becomes apparent that there will be no 

presumptive evidence of potential pollution and 

quarrying will not unreasonably interfere with the HSCA 

cleanup.

(Adjudication, at 78-79) (internal citations omitted) (emphasis added).

On appeal, Petitioner does not challenge the Board’s conclusion that DEP 

erred in issuing the permits. Instead, Petitioner asserts that the relief granted by the 

Board, i.e., its decision to rescind the permits rather than remand the matter to DEP 

to allow DEP and Petitioner the opportunity to address the Board’s concerns, was an 

abuse of discretion. (Petitioner’s Br. at 50-51.) In support, it argues that substantial 

evidence does not support the Board’s finding that there is a “lack of momentum” at 

the Hoff VC Site or that DEP’s cleanup activities will drag on indefinitely. It argues 

that, to the contrary, the record shows that DEP is actively engaged in cleanup. It 

further asserts that the record demonstrated a constant exchange of information 

between Petitioner and DEP about Petitioner’s agreement to address migration of 

contaminants onto its property. Specifically, Petitioner points to the Board’s findings 

that DEP’s steps to remediate the Hoff VC Site thus far were “interim” measures, 

meaning DEP still plans more comprehensive mitigation (FOF 135); DEP continues to 

monitor and take samples from the site and is planning to “develop a pilot study with 

a goal of gathering data that would be added to the administrative record” (FOF 57); 

DEP “is considering further remediation possibilities,” including “in situ treatment of 

groundwater” (FOF 56); “there is no doubt” DEP will “conduct further studies and 
11

remediation activities” at the Hoff VC Site (FOF 133); and the Hoff VC Site “remains 

the subject of an ongoing investigation and there is no plan to close out remediation 

efforts at the site.” (FOF 134.) Petitioner argues that these findings are inconsistent 

with the Board’s finding that DEP has no plans for the Hoff VC Site remediation.

Petitioner also points to the testimony of Colin Wade, the DEP official in 

charge of remediation at the Hoff VC Site, which it maintains “directly contradicts”

the Board’s finding in FOF 133 that DEP has no immediate or specific plans at this 

time to conduct further studies and remediation efforts at the Hoff VC Site. 

(Petitioner’s Br. at 36.) Wade testified that DEP regularly does testing at the Hoff VC 

Site and that DEP “would not continue to sample the site if it had no plans to do 

anything.” (Reproduced Record (R.R.) at 153a.) He also testified that “the current 

goal of [DEP’s] actions has been to develop a pilot study with a goal of gathering data 

that would be added to the administrative record to determine what type of 

administrative response can be conducted at this site for groundwater contamination” 

and that “[DEP] has no plans currently to terminate either its investigation or its current 

activities related towards it[s] pilot [study] at the [Hoff VC S]ite.” (R.R. at 60a, 81a.) 

Wade also testified that DEP tests the Hoff VC Site regularly. Id. at 152a. Petitioner 

submits that Wade’s testimony in this regard “does not support FOF 133” that DEP 

“has no immediate and specific plans to conduct further studies or remediation 

activities at the Hoff VC Site.” (Petitioner’s Br. at 36-37.) 

Petitioner further contends that preparing an application for a noncoal 

surface mining permit and an NPDES permit is “enormously expensive” and timeconsuming, and that to require Petitioner to start all over again is “manifestly unjust.” 

Id. at 50. Further, it asserts, on remand, DEP may consider the concerns raised by 
12

McLane and credited by the Board.8 According to Petitioner, a remand will allow DEP 

to evaluate the issue and include conditions to address the concerns identified by the 

Board. 

II. Discussion

The Board reviews DEP’s issuance of a permit de novo, meaning it can 

properly consider evidence produced after DEP’s action in question and in anticipation 

of litigation. United Refining Co. v. Department of Environmental Protection, 163 

A.3d 1125, 1136 (Pa. Cmwlth. 2017). The Board’s duty is to determine if DEP’s action 

can be sustained or supported by the evidence taken by the Board. Warren Sand & 

Gravel Co. v. Department of Environmental Resources, 341 A.2d 556, 565 (Pa. 

Cmwlth. 1975). If DEP acts pursuant to a mandatory provision of a statute or 

regulation, then the only question before the Board is whether to uphold or vacate 

DEP’s action. If, however, DEP acts with discretionary authority, then the Board, 

based upon the record made before it, may substitute its discretion for that of DEP and 

modify any DEP action based on the evidence presented before the Board. Id.; Marcon, 

Inc. v. Department of Environmental Resources, 462 A.2d 969, 971 (Pa. Cmwlth. 

1983); Pequea Township v. Herr, 716 A.2d 678, 698 (Pa. Cmwlth. 1998). 

It is well-settled that the Board has the clear authority to revoke permits. 

See, e.g., Sentinel Ridge Development, LLC v. Department of Environmental 

Protection, 2 A.3d 1263, 1267 (Pa. Cmwlth. 2010) (“After [] DEP conducts its review, 

[the Board] will either restore the permit or revoke it.”); Berks County v. Department 

of Environmental Protection, 894 A.2d 183, 193 (Pa. Cmwlth. 2006) (where the 

petitioner sought to have permits rescinded by the Board, the Board’s refusal to do so 

was upheld). 

8 This argument is perplexing in light of the undisputed fact that McLane’s testimony was that 

the proposed mining will cause pollution. 
13

The Board’s decision to rescind, rather than remand the matter to DEP for 

further review, is an exercise of the Board’s discretion. “[T]his Court cannot overturn 

an agency’s exercise of its discretion absent proof of fraud, bad faith, or blatant abuse 

of discretion.” Pennsylvania Game Commission v. Department of Environmental 

Resources, 509 A.2d 877, 880 (Pa. Cmwlth. 1986) (en banc). “An abuse of discretion 

occurs if, in reaching a conclusion, the law is overridden or misapplied[,] or the 

judgment exercised is manifestly unreasonable or is the result of partiality, prejudice, 

bias, or ill will.” Sierra Club v. Department of Environmental Protection, 211 A.3d 

919, 924-25 (Pa. Cmwlth. 2019). This Court may not substitute judicial discretion for 

administrative discretion in matters such as these, which involve technical expertise,

and which are within the special knowledge and competence of the members of the 

Board. Swartwood v. Department of Environmental Resources, 424 A.2d 993 (Pa. 

Cmwlth. 1981). “There is no doubt, of course, that the findings of fact necessary to 

support such orders must be based upon substantial evidence, but, as we have stated 

before, substantial evidence means such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Department of Environmental Resources 

v. Borough of Carlisle, 330 A.2d 293, 298 (Pa. Cmwlth. 1974).

The Board’s decision to rescind the permits, rather than remanding the 

matter to DEP for further review, did not lack the support of substantial evidence or 

constitute an arbitrary and unreasonable abuse of discretion contrary to law. This case 

at its core is about health, safety, and public welfare. The Board clearly has the legal 

authority to rescind a permit if mining would or is causing an unavoidable and serious 

hazard to health and safety. See 52 P.S. § 3302 (purposes of Noncoal Act), 52 P.S. § 

3308 (permit requirements). The Board determined that the permits should not have 

been issued because Petitioner did not satisfy a critical requirement for the issuance of 
14

a permit under the Noncoal Act, specifically the permitting requirement to show “no 

presumptive evidence of potential pollution of the waters of the Commonwealth.” 52 

P.S. § 3308(a). The statute dictates that “no permit shall be issued” unless the applicant 

affirmatively demonstrates that it meets the statutory requirements. 52 P.S. § 3308(a).

The Board clearly stated in the Introduction section of the Adjudication that this was 

the reason for rescinding the permits:

[T]here is really only one issue in this appeal: Did [DEP] err 

by issuing the permits in light of the risk posed by the 

groundwater contamination at the adjacent Hoff VC [] Site? 

For the reasons that follow, we hold that it did, and therefore, 

we rescind the permits.

(Adjudication, at 2.)

Petitioner did not appeal any aspect of the determination that it failed to 

meet the criteria for issuance of a permit. The Board’s uncontested conclusion that the 

permits should never have been issued in the first place because Petitioner failed to 

meet the statutory criteria alone is enough to validate the Board’s rescission of the 

permits. For example, in Leatherwood, Inc. v. Department of Environmental 

Protection, 819 A.2d 604 (Pa. Cmwlth. 2003), DEP issued a permit to construct and 

operate a landfill near an airport. Following an appeal by the objectors, the Board

revoked the permit because it was issued without an analysis of, and remedy for, a 

known risk of birds to aircraft in the vicinity of the landfill in violation of state and 

federal regulations. The objectors presented credible expert evidence on the issue, and 

DEP acknowledged its fault. We affirmed revocation of the permit. 

Moreover, once it was determined that the permits should not have been 

issued, the Board had broad discretion in selecting a remedy. This Court has held that 

“[r]emedies and accompanying sanctions will not be disturbed on appeal absent a 

showing of manifest and flagrant abuse of discretion or purely arbitrary execution of 
15

the agency’s duties or functions.” Eckhart v. Department of Agriculture, 8 A.3d 401, 

407 (Pa. Cmwlth. 2010) (quoting Slawek v. State Board of Medical Education and 

Licensure, 586 A.2d 362, 365 (Pa. 1991)). Administrative bodies that have expertise 

in specific areas of law are to be entrusted to fashion administrative remedies that are

fair and appropriate. Id. Finally, there is no statutory right to have a permit remanded. 

See generally Sections 1-26 of the Noncoal Act, 52 P.S. §§ 3301-3326. 

Petitioner wholly fails to meet its burden to show that the Board abused 

its discretion. Although it baldly claims that the Board’s decision to rescind the permits 

was an abuse of discretion, Petitioner fails to address the legal standard to establish an 

abuse of discretion or to establish that the standard is satisfied. Petitioner has offered 

nothing showing that the Board’s action was fraudulent, an abuse of power, or purely 

arbitrary, or that any such abuse may have been manifest and flagrant. Also, Petitioner

cites no authority as support for its contention that the Board abused its discretion or 

was “manifestly unjust” in determining that the permits should be rescinded rather than 

remanded. The argument is seriously undeveloped. There is no discussion whatsoever 

of what additional efforts or expenses are involved in obtaining new permits. 

Nevertheless, if, in fact, there are any economic consequences in having to reapply for 

the permits, we cannot fault the Board. We find no hardship in imposing the time and 

costs of reapplying for permits upon Petitioner, which failed, in the first instance, to 

demonstrate that its quarrying activities “will not cause pollution to the waters of the 

Commonwealth.” 52 P.S. § 3308(a)(3). Thus, Petitioner has not shown that the legal 

standard for abuse of discretion has been met.

Instead, and despite its concession that the permits should not have been 

granted, Petitioner attempts to undermine the factual support concerning the Board’s 

decision, arguing that certain findings of the Board were not supported by substantial 
16

evidence – specifically, the Board’s findings that (1) DEP had no immediate or specific 

plans to conduct further studies or remediation activities at the Hoff VC Site (i.e., FOF

133); and (2) there was a lack of momentum at the Hoff VC Site. A thorough review 

of the record, however, will not support this contention. Our careful review of the 

entire record in this case permits us to conclude that these findings of fact made by the 

Board are amply supported by substantial evidence.9 

Central to the Board’s decision was the lack of evidence regarding how 

quarry pumping would affect the Hoff VC Site remediation. Throughout the 

Adjudication, the Board detailed its concerns about the uncertain status of the Hoff VC 

Site when faced with the prospect of having a nearby quarry actively pumping 

groundwater. The Board identified its specific concerns that there were no concrete 

plans to remediate the contamination plume at the Hoff VC Site, which is moving and 

expanding in size, as follows: only interim responses have been taken thus far, and 

currently, other than periodic sampling, there is no active investigation or remediation 

taking place and there is no schedule for taking any action (FOF 135-136); DEP intends 

at some unspecified time to develop a pilot study with a goal of gathering data that 

would be added to the administrative record to determine what type of interim response 

can be conducted at the site for groundwater contamination (FOF 137); source 

contaminants appear not to have stabilized notwithstanding DEP’s interim measures 

(FOF 145); DEP’s HSCA program is not currently taking any action with respect to 

the contamination in monitoring well OW-6, which is no more than 500 feet from 

Petitioner’s southern pit and showing increasing concentrations of contaminants, and 

it has no immediate plans to take any action (FOF 150-151, 154); the extent of the 

9 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Department of Environmental Resources v. Borough of 

Carlisle, 330 A.2d 293, 298 (Pa. Cmwlth. 1974). 
17

contaminated groundwater plume from the Hoff VC Site has not been determined (FOF 

158); there are not enough wells in place to fully define the extent of the contamination 

plume (FOF 226); DEP’s investigations to date have not included any consideration of 

how quarry pumping would affect remediation of the Hoff VC Site (FOF 138, 140); 

DEP has not performed any analysis of what treatment processes would work or how 

they would or could be installed, or how quickly they could be brought online, or what 

would be done with contaminated water in the pit in the meantime (FOF 241); and there 

has been little coordination among DEP offices responsible for the matter (FOF 162).

The Board also concluded that “every step in [DEP’s] analysis is either 

wrong or does not support issuance of the permits,” that “[t]here has been no analysis 

of the economic or technical feasibility of any treatment option at the quarry,” and that 

“[DEP] has yet to do any evaluation of how to treat the existing groundwater plume, 

let alone the expanded plume that would accompany quarry pumping.” (Adjudication, 

at 61, 64, 66.) It is clear from these observations that the Board was not at all confident 

that DEP was proactively managing the situation and that unless and until these 

uncertainties were addressed and abated, the permits could not continue to remain 

active. We cannot characterize this as an abuse of discretion.

We also reject Petitioner’s attempt to have this Court reweigh the 

evidence. Petitioner seems to argue that because contrary evidence exists, a finding 

of fact is not supported by “substantial evidence.” Petitioner selectively highlights 

contrary evidence and invites this Court to reevaluate and reweigh evidence and 

credibility determinations. For example, Petitioner takes issue with FOF 133, which 

states:

[DEP] has no immediate or specific plans at this time to 

conduct further studies and remediation activities at the Hoff 

VC [] Site, although there is no doubt that there will be such 

activities.
18

Petitioner argues that testimony that something in the way of testing and remediation 

was occurring at the Hoff VC Site supports a conclusion opposite of what the Board 

found. (Petitioner’s Br. at 25-26, 33-39.) However, the fact that DEP was occasionally 

testing some wells, and planning to conduct a pilot study, does not mean that the Board 

was required to leave the permits in place and remand the matter to DEP. It was entirely 

up to the Board, in its discretion, based upon its specialized knowledge and experience, 

to decide if the remedial measures and efforts by DEP at the Hoff VC Site justified a 

remand, as opposed to the rescission of the permits. Based on the evidence it found 

credible, it concluded that there are no concrete plans to remediate the Hoff VC Site, 

which is expanding in size, and that known and unknown sources of dangerous 

contaminants still exist at the Hoff VC Site, many of which have migrated and will 

migrate farther if there is pumping in connection with Petitioner’s quarrying activities. 

We have been instructed by our Supreme Court that in the absence of a purely arbitrary 

exercise of an agency’s duties or functions, judicial discretion may not be substituted 

for administrative discretion. We are told that our review is particularly restrictive 

where an administrative agency resolves complex questions of technology. 

Commonwealth v. Harmar Coal Company, 306 A.2d 308, 321 (Pa. 1973); East 

Pennsboro Township Authority v. Department of Environmental Resources, 334 A.2d 

798, 804 (Pa. Cmwlth. 1975). See also Westinghouse Electric Corporation v. 

Department of Environmental Resources, 705 A.2d 1349, 1357 (Pa. Cmwlth. 1998). 

Moreover, to accept this argument by Petitioner would be to ignore the more significant 

portions of the record which supported the Board’s decision to rescind the permits, 

instead of remanding the matter to DEP. Petitioner is not permitted to “pull bits and 

pieces of evidence from the record to support alternative findings of fact.” Brockway 

Municipal Authority v. Department of Environmental Protection, 131 A.3d 578, 587 
19

(Pa. Cmwlth. 2016). Weighing the evidence and assessing credibility are the sole 

prerogatives of the Board. Department of Transportation v. Herbert R. Imbt, Inc., 630 

A.2d 550, 551 n.1 (Pa. Cmwlth. 1993). As such, Petitioner’s arguments are 

fundamentally at odds with Pennsylvania administrative agency law and are rejected.

III. Conclusion

The record contains ample support for the rescission of Petitioner’s 

permits. There is substantial evidence supporting the Board’s findings pertaining to 

lack of direction and momentum at the Hoff VC Site. Testimony from DEP’s own 

witnesses confirmed that there are no immediate or specific plans for remediation. The 

de novo hearing before the Board revealed that significant application information 

provided by Petitioner, and relied upon by DEP, proved to be unreliable or inaccurate. 

Leaving the permits in place seems to this Court to be counterintuitive to the Board’s 

uncontested conclusion that DEP should never have issued permits for the operation of 

a large noncoal quarry next to an uncontained and ongoing HSCA site. Viewed in that 

light and considering the broad authority that the Board has to ensure that the provisions 

of the Noncoal Act are carried out, we find rescission of the permits is a remedy that is 

entirely reasonable and appropriate in these particular circumstances. 

We conclude, therefore, that the adjudication by the Board rescinding the 

permits was supported by substantial evidence and was not an abuse of the Board’s

discretion.10

10 We note that DEP argues that Petitioner waived the following two issues that were raised 

for the first time on remand: (1) its mining permit “is a property right that cannot be taken away 

lightly” (Petitioner’s Brief at 30-31); and (2) the Board applied the wrong “pollution” standard in the 

Adjudication by requiring a showing of “no potential for pollution to occur,” rather than “no 

presumptive evidence of potential pollution.” (Petitioner’s Brief at 44 n.12.)

The Court has reviewed Petitioner’s brief and concludes the excerpts from Petitioner’s brief,

cited by DEP, where it asserts these issues were “raised” cannot be construed as Petitioner’s attempt 

(Footnote continued on next page...)
20

________________________________

PATRICIA A. McCULLOUGH, Judge

to raise new issues. Regarding DEP’s first contention, on pages 30 and 31 of Petitioner’s brief, 

Petitioner only states:

Requiring that a permit rescission be supported by substantial evidence 

dovetails with the rule that a government permit is a property right that 

cannot be taken away lightly. See Young J. Lee, Inc. v. Dep[artment]

of Revenue, 474 A.2d 266, 270 (Pa. 1983) (“Government licenses 

generally constitute a form of property insofar as they are an 

entitlement to engage in a valuable activity.”). 

Contrary to DEP’s contention, Petitioner does not argue that its mining permit is a property 

right. It merely cites to the Young case in support of its argument that the Board’s decision was not 

supported by substantial evidence. With regard to DEP’s second contention, page 44, footnote 12 of 

Petitioner’s brief states:

Under Pennsylvania law, a permittee need not show there is “no 

potential for pollution to occur” to be entitled to permits; the test instead 

relates to presumptive evidence of potential pollution. See Birdsboro & 

Birdsboro Mun. Auth. v. Dep[artment] of Env[ironmental]

Prot[ection], 795 A.2d 444, 448 (Pa. Cmwlth. 2002); 52 P.S. § 

3308(a)(3); 25 Pa. Code § 77.126(a)(3). On remand, [Petitioner] and 

[DEP] can take steps to harmonize quarry operations with [Hoff VC

S]ite issues to minimize, treat and remediate groundwater pollution. A 

point your Honorable Court emphasized in its Initial Order. Potential 

steps include monitoring changes (to the number and location of wells 

and testing frequency), remedial measures (where contamination is 

detected or increases), permit conditions, and bond requirements. 

[DEP] also can reassess its obligations under [a]rticle I, [s]ection 27 of 

the Pennsylvania Constitution on remand. 

Nowhere in that footnote does Petitioner argue that the Board applied the wrong standard in 

the Adjudication by requiring a showing of “no potential for pollution to occur,” rather than “no 

presumptive evidence of potential pollution.” Because DEP is not basing its claims on anything in 

the actual argument, we reject the waiver argument.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gibraltar Rock, Inc., :

Petitioner :

:

 v. : No. 500 C.D. 2020

:

Pennsylvania Department of :

Environmental Protection, :

Respondent :

ORDER

AND NOW, this 8

th day of May, 2024, the April 24, 2020 order of the 

Pennsylvania Environmental Hearing Board is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge