On September 7, 2017, Hangley Aronchick attorneys Steven Miano, Robert Wiygul, and Peter Keays, with the assistance of paralegal Robert Hrouda, obtained another victory for their client Solebury School in litigation involving a neighboring stone quarry operated by New Hope Crushed Stone & Lime Company (NHCS). Following a two-day bench trial and post-trial briefing, the Pennsylvania Environmental Hearing Board issued a 33-page Adjudication completely vindicating the Solebury School’s position and rejecting in its entirety NHCS’s challenge to reclamation requirements imposed by the Department of Environmental Protection (DEP).
The Adjudication is the latest chapter in an environmental dispute that dates back several years. Solebury School, an independent, co-educational boarding and day school founded in 1925 and located in Bucks County’s Solebury Township, first engaged Hangley Aronchick’s environmental law group in response to collapse sinkholes that were opening on the School’s campus. Working with environmental experts, the firm assembled substantial evidence that the sinkholes were being caused by NHCS’s mining operations at the adjacent quarry, which had dramatically lowered the groundwater levels underneath the School. Despite this evidence, DEP approved – over Solebury School’s vigorous objections – NHCS’s application for permission to mine 50 feet deeper than its existing permit allowed.
On behalf of Solebury School, Hangley Aronchick appealed DEP’s decision to the Environmental Hearing Board. After a ten-day hearing, during which numerous fact and expert witnesses testified and hundreds of exhibits were admitted into evidence, the Board issued a 65-page Adjudication on July 31, 2014. Observing that “the School assembled a top-notch team of experts,” the Board ruled that Solebury School had proven with “overwhelming” evidence that “[t]he drop in groundwater caused by the quarry is what is … causing the sinkholes.” Based on its findings, the Board rescinded DEP’s approval of NHCS’s application to mine deeper and declared that action to abate the sinkholes “should commence immediately.”
Following the Board’s 2014 Adjudication, DEP issued a series of orders requiring NHCS to modify its reclamation plan so as to begin immediately abating the sinkhole problem in accordance with the Board’s decision. NHCS, however, continually submitted unacceptable reclamation plans. Finally, on January 29, 2016, DEP modified NHCS’s reclamation plan to require NHCS to immediately devote a specific amount of resources to reclamation. Most crucially from Solebury School’s perspective, DEP also imposed a limit on the amount of water NHCS could pump from the quarry so that water levels in the pit – and, ultimately, groundwater levels under the School – would begin to rise. NHCS appealed DEP’s January 29, 2016, order to the Environmental Hearing Board, contending that the requirements were unreasonable and not supported by the facts. It is this appeal that was the subject of the Board’s most recent Adjudication.
Solebury School intervened in the appeal in support of DEP’s requirements and played a prominent role in the litigation. Shortly after the appeal was filed, NHCS filed a petition for supersedeas requesting immediate injunctive relief from the pumping limit during the pendency of the appeal. Solebury School opposed the petition, and following a hearing at which the Hangley Aronchick team presented and cross-examined numerous witnesses, the Board denied NHCS’s petition.
During the pre-trial proceedings, the firm filed two successful motions that significantly narrowed the scope of the litigation, thereby substantially shortening the hearing in the appeal. First, the firm obtained a protective order barring extensive and overreaching discovery that NHCS propounded to Solebury School. In granting Solebury School’s motion, the Board found that NHCS’s discovery requests were improper and unduly burdensome. Second, the firm filed, and the Board granted, a motion in limine barring the opinions of two of NHCS’s three proffered experts in their entirety, and barring all but one of the remaining expert’s opinions, on the grounds that they improperly sought to re-litigate issues that had been conclusively determined in earlier proceedings.
At the two-day trial in March 2017, Solebury School presented testimony by two expert witnesses in support of DEP’s requirements: Michael Byle, P.E., a reclamation and geotechnical engineering expert, and Jennifer Wollenberg, Ph.D., an expert on aquatic systems assessment and stream ecology. In its Adjudication rejecting NHCS’s appeal, the Board expressly credited and relied on the testimony of Solebury School’s experts. And on the critical question of whether DEP’s water-pumping limitation should be upheld, the Board agreed with Dr. Wollenberg’s testimony that the pumping limit was reasonable.
In response to the most recent Adjudication, lead Hangley Aronchick attorney Steven Miano said, “We are very pleased that the Environmental Hearing Board has once again ruled in favor of Solebury School. As we have consistently advocated before both DEP and the Board, it is imperative that the quarry take immediate steps to abate the risk of sinkholes in the area surrounding the quarry. The Board’s recent decision will hopefully ensure this result.”
