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DEP Asks EHB Judge to Certify Appeal in Erie Coke Supersedeas Case

On Aug. 28, Environmental Hearing Board Judge Steven C. Beckman issued an order allowing Erie Coke Corp. to continue operating while it appeals the Pennsylvania Department of Environmental Protection’s denial of its application to renew its Title V Operating Permit. This week, DEP took the somewhat unusual step of asking Beckman to certify that his ruling is appealable.

On Monday, attorneys for DEP filed a Motion to Amend Interlocutory Order Granting Petition for Supersedeas “to provide that the order involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter,” according to the Motion.

Much of DEP’s motion revolved around whether or not continued operations at Erie Coke, which Beckman’s Aug. 28 Order made subject to 18 specific conditions, would negatively impact the health and welfare of the environment, as well as folks who live and work nearby. DEP is adamant that continued operations would present an air pollution threat to both residents and the environment.

“The Board’s Opinion and Order did not make a finding regarding whether pollution or injury to the public health, safety, or welfare exists or is threatened during the period when the supersedeas will be in effect,” the DEP motion reads.

Counsel for the Department argued that while a decision to issue a supersedeas is “ordinarily within the Board’s discretion” a supersedeas “may never issue where pollution or injury to public health, safety, or welfare exists or is threatened during the period when (it) would be in effect.”

But that’s not the only reason the department is seeking to appeal. DEP attorneys continued:

“In addition, three of the 18 conditions set forth in the opinion and order…relieve Erie Coke from operating a facility in accordance with the terms of Erie Coke’s expired Title V Permit, and the Pennsylvania air quality regulations.”

According to DEP lawyers, one of the Judge’s conditions “allows more minutes of opacity violations each month than Erie Coke averaged per quarter in the eight quarters preceding its compliance problems that began in 2017.”

Another condition Beckman handed down “allows more minutes of opacity violations each quarter than Erie Coke has had since 2015,” DEP attorneys wrote.

DEP further argued that an immediate appeal would “advance the termination of the matter.”

How?

“As Erie Coke has stated throughout these proceedings, it will choose to shut down if supersedeas is denied. The present appeal will become moot and terminate. At a minimum, denial would incentivize Erie Coke to reconsider its settlement position in this matter,” DEP lawyers wrote. “If Erie Coke does not shut down, a decision on this issue will provide probative evidence regarding the ultimate issue in this appeal. The central issue in the underlying appeal is Erie Coke’s ability to comply with the law and regulations applicable to the operation of its air contamination sources at its coke production facility.”

You can read the entire motion here.

You can get caught up on Beckman’s Aug. 28 ruling here.

Editor’s Note: Here’s some associated media coverage from YourErie.com.

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