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EHB Judge: Erie Coke Can Continue Operating Pending Permit Appeal…But with Conditions

Updated: Dec 23, 2022

Photo courtesy of the HECA website.

Environmental Hearing Board Judge Steven C. Beckman on Wednesday ruled Erie Coke Corp. can continue operating – subject to certain limitations – pending its appeal of DEP’s decision to deny the company’s Title V operating permit.

“We recognize that allowing Erie Coke’s operations to continue, even for a limited time, extends the timeframe that people located in the area surrounding the facility will likely experience the negative impact of those operations on their lives,” the Judge wrote in his Opinion. “Those impacts are real and clearly disrupt the daily lives of individuals who testified at the hearing.”

Beckman continued:

“We are sympathetic to your concerns and have taken steps in this decision to address those concerns.”

He wrote:

“It is certainly reasonable to question why it has taken so much time and effort by the Department to get Erie Coke’s full attention on these issues. Even with that full attention, it is by no means certain that Erie Coke will be able to meet its obligations under the environmental regulations.”

He continued:

“If Erie Coke cannot convince the Board that the Department was wrong about its lack of intention and ability to comply with those requirements, it is difficult to imagine Erie Coke prevailing at the full hearing. We will have to see what the fully developed evidence presented at that hearing will demonstrate to the Board, but ultimately, we think that it is only fair to allow Erie Coke the opportunity to present its case.”

Judge Beckman’s Order detailed 18 total provisions Erie Coke must meet in order to continue operating during the appeal. Many addressed specific operations at the facility but one of note called for Erie Coke to deposit $1 million into a newly created bank account designated for capital improvement projects that would be subject to review by the DEP.

And what happens if Erie Coke fails to comply? According to the Order, DEP may petition the EHB to lift the supersedeas, “if (DEP) concludes that Erie Coke is out of compliance with any of the conditions set forth in this Order.” Beckman also noted there is “nothing in this Opinion or Order that restricts the (DEP) from continuing its inspections and taking appropriate enforcement action if it finds that Erie Coke has committed additional violations.”

These restrictions notwithstanding, the Opinion and Order failed to provide an explanation as to how the “18 conditions” Erie Coke must now follow would protect public health.

Indeed, Erie residents might not find great comfort in steps that “hopefully will minimize the environmental impacts” during further operations at the facility and that are “intended to limit the impact of Erie Coke’s operations during the time necessary to conduct a full hearing on the Department’s denial of Erie Coke’s Title V permit renewal application.” (italics added)

GASP was disappointed with the outcome of the proceedings to date but the case is far from over. As Judge Beckman noted, “a Board ruling on a petition for supersedeas is a limited decision that addresses the status of the Department’s action during the time interval between the filing of the appeal and the full Board’s final ruling on the merits of the appeal. It is not, nor is it intended to be, the final word on the legality of the Department’s action.”

“Erie Coke ‘won’ this round but it is under a microscope now,” said GASP staff attorney Ned Mulcahy. “The community and DEP both are watching Erie Coke like a hawk and you can bet Judge Beckman will hear about any hiccup from that facility in February, if not sooner.”

The Order set a Feb. 3, 2020 date for an evidential hearing on Erie Coke’s appeal. That hearing will be held at 10 a.m. at the EHB’s Erie facility. “No requests for extensions of the hearing date will be granted by the Board,” the Order reads.

Editor’s Note: Here’s associated media coverage:

The order and opinion can be viewed here. 

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