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UPDATED: Environmental Hearing Board Terminates Two Prior Erie Coke Appeals; Approves Supersedeas Modifications Agreed to by DEP, Company

UPDATE: At the joint request of lawyers for Erie Coke Corp. and the state Department of Environmental Protection, a Pennsylvania Environmental Hearing Board judge on Thursday approved modifications to the supersedeas the company had been operating under since this past summer.

“Counsel have discussed and resolved the Department’s objections to Erie Coke Corp.’s motion (filed earlier this week),” a lawyer for DEP wrote in the joint filing, which was also submitted Thursday.

The order vacates all pre-hearing deadlines, as well as a $1 million financial assurance requirement. It also clarifies what aspects of the supersedeas would remain in place pending the final closure of Erie Coke’s bayfront facility.

Following a Notice of Withdrawal filed by Erie Coke Corp., Pennsylvania Environmental Hearing Board (EHB) Judge Steven Beckman on Monday approved termination of the company’s appeal of the Department of Environmental Protection (DEP)s Feb. 4, 2019 administrative order demanding it take action to correct air quality violations believed to be “ongoing and continuous.” 

Judge Beckman also terminated Erie Coke’s appeal of DEP’s May 2019 Notification to the company that it was being placed on the Department’s Compliance Docket.

“In light of Erie Coke’s decision to permanently cease operations, these appeals are now moot,” Erie Coke attorney Paul K. Stockman wrote in the Jan. 6 Notice.

Still in place, however, is Judge Beckman’s Aug. 28, 2019, Order granting Erie Coke’s Petition for Supersedeas in the company’s appeal of DEP’s denial of its Title V permit application. That Order allowed the plant to operate pending the outcome of the appeal but imposed 18 conditions Erie Coke had to meet, including coal and coke storage and handling requirements, reduced production, and enhanced compliance targets, among others.

In light of Erie Coke winding up its operations, the company this week filed a Motion to Modify the Supersedeas Order, arguing that “(n)otwithstanding the termination of manufacturing operations, the Supersedeas is not wholly moot, because certain operations continue as part of the facility’s closure and should be governed by the Permit that remains in force by virtue of the Supersedeas.”

In the Motion, Erie Coke attorneys contended that three conditions governing coal and coke storage, as well as the minimization of fugitive emissions from other materials handling operations, should remain in place but that 11 of the 18 conditions are now either unnecessary or moot.

Included in that list was a request that the EHB vacate its $1 million financial assurance requirement in light of the Court of Common Pleas of Erie County ordering in December that the account be frozen. Erie Coke argued, “(a)s a result (of that decision), there is a direct conflict between the Court’s order and the Board’s Supersedeas.”

Lawyers for the company also argued that a hearing slated for February is no longer necessary, and requested that it be “stayed in anticipation of the ultimate dismissal of this appeal following the completion of closure activities.”

Erie Coke’s Motion to Modify did not address three of the 18 conditions in Judge Beckman’s Supersedeas Order.

In response to Erie Coke’s Motion, Judge Beckman ordered that DEP may file a response on or before Thursday, Jan. 9.

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