On the day Erie Coke Corp. and DEP were due to file their post-hearing briefs with the Environmental Hearing Board over whether or not the company should be permitted to continue operating during the appeal of its Title V operating permit denial, lawyers for the corporation also filed a petition to reopen the record so that two new reports can be considered.
Erie Coke petitioned the EHB on Wednesday to accept for consideration additional evidence that “did not exist at the time of the July 10-18, 2019 hearing, because it was only generated after the hearing concluded.”
Specifically, Erie Coke is asking that the EHB add a report showing opacity of its combustion stack for the month of July and an engineering assessment of the coke oven battery air shed (a hood that collects emissions when coke is pushed out of the ovens).
Erie Coke insists the evidence “is highly material to Erie Coke’s petition for supersedeas (and) demonstrates Erie Coke’s positive compliance trajectory.”
On Friday, the Department of Environmental Protection filed its response, asking the Board to deny the company’s request to introduce new evidence “at the 11th hour.” In doing so, DEP attorneys noted “Erie Coke does not explain why it waited until 4:00 pm on August 7, 2019, the day post-hearing briefs were due to be filed.”
This last-minute submission appears all the more dubious given that “(t)he July 2019 COMS Report is generated at the Erie Coke Facility and ends July 31, 2019. The Coke Side Shed Evaluation was complete on July 31, 2019. Obviously, these reports were available to Erie Coke before the very day the briefs were due.”
Attorneys for DEP laid out additional arguments for why Erie Coke’s petition should be denied. Among their concerns was that DEP did not have the opportunity to cross-examine any witnesses on the evidence presented prior to the company using the evidence in its post-hearing brief.
“An Erie Coke representative should be subject to cross-examination on why (the company) believes the July 2019 COMS Report is significant before Erie Coke presents it to the board in argument,” attorneys for DEP wrote. “Similarly, the professional engineer that sealed the Coke-Side Shed Evaluation should be subject to cross-examination on his conclusions. Because the briefs are now filed with this evidence included, the department is prejudiced by reopening the record at this time.”
GASP is reviewing the post-hearing briefs e-filed Wednesday evening by both DEP and Erie Coke Corp. In the meantime, you can view DEP’s 67-page filing here. Erie Coke’s 46-page filing can be viewed here.