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DEP, Erie Coke (Coal) Plant Submit Final Arguments In Environmental Hearing Board Case

By Group Against Smog & Pollution

Whether or not Erie Coke [Coal] Corp. will be permitted to operate while it appeals the state Department of Environmental Protection’s (DEP) denial of its Title V [Air Quality] permit is now in the hands of an Environmental Hearing Board judge.

Attorneys for both the DEP and Erie Coke Corp. on Wednesday submitted their post-hearing briefs for consideration by presiding Judge Steven C. Beckman following six days of testimony.

In their final arguments to the EHB, attorneys for Erie Coke largely reiterated claims previously presented: That if the Board does not grant supersedeas allowing it to continue operations pending the appeal, it would be forced to shut its coke ovens down, causing what it referred to as “irreparable harm.” They further argued that there was “no justification on the record before the Board that would permit the department to “inflict such a drastic injury on Erie Coke, the Erie community, and American industry more broadly.”

The Company specifically cited the loss of 137 jobs and further argued its petition for supersedeas should be granted because:

-- DEP failed to provide advanced notice and the opportunity for public comment on its intent to deny its Title V permit renewal

-- It has the financial ability and intent to comply with air emissions standards set forth in its Title V operating permit

-- Erie Coke did not operate contrary to DEP-approved plans and specifications

-- Allowing it to continue to operate would not cause harm to the public or the environment

Attorneys for DEP pushed back strongly in their own post-hearing briefs, arguing that the Company’s “lengthy history of noncompliance” with air emissions standards is “undisputed.”

“The facts when viewed in their totality demonstrate that Erie Coke chronically and systematically fails to comply with the law,” DEP attorneys wrote. “For years, these violations have subjected the environment and residents of the City of Erie to ongoing emissions of particulate matter and coke oven gas – a hazardous air pollutant – and Erie Coke’s own witnesses testified there is no end in sight.”

They continued:

“Erie Coke’s violations and ongoing pollution episodes, and the threat these episodes pose to the public’s health, safety or welfare, prevent Erie Coke from obtaining the supersedeas it seeks.”

Counsel for DEP made two key arguments for why the EHB should deny supersedeas:

-- That Board rules dictate that supersedeas “shall not be issued in cases where pollution or injury to the public health, safety, or welfare exists or is threatened during the period of time when (it) would be in effect.” Attorneys further argued that regulatory and state criteria dictate that because Erie Coke is unable to prove that continued operations will NOT harm the public or environment, means that supersedeas is a no go.

-- That granting supersedeas would “not preserve the status quo.” DEP attorneys wrote that Erie Coke is seeking an “extraordinary remedy” because “there is not an existing permit” and the status quo was that the Company was not legally permitted to operate. Attorneys further argued that “any right of Erie Coke to continue operating air contamination sources at the facility expired with it.”

DEP counsel also asserted that Erie Coke should have been aware that its Title V operating permit renewal application would be denied when it was placed on the department’s compliance docket. Attorneys also noted that the Department gave the Company ample time to comply with its demands – waiting nearly 22 months to take action on Erie Coke’s permit renewal.

In its brief, the Department discussed at length the potential impacts on the health and wellbeing of nearby residents and the environment. The document quotes the testimony of several residents who claimed to be impacted by air pollution from Erie Coke’s bayside facility – describing black soot on their homes and boats, as well as a pervasive foul odor that often forced them to stay indoors and close their windows.

DEP attorneys further argued that Erie Coke failed to prove that its continued operation would not further contribute to these harms.

“There can be no question that citizen’s rights to ‘clean air’ and ‘to the preservation of natural scenic, historic and esthetic values of the environment’ are implicated by the continuing emissions of particulate matter and coke oven gas from the Erie Coke facility,” DEP attorneys wrote. “Its location on the shore of Lake Erie and adjacent Presque Isle State Park makes these infringements even more egregious.”

DEP also alleged that the Company had and has neither the ability nor the intention to comply with its Title V operating permit – something Department lawyers said was reiterated by the Erie Coke’s own witnesses, including Chief Executive Officer Paul Saffrin.

“(Mr. Saffrin) admitted that Erie Coke has exceeded the allowable minutes of opacity from its battery stack every quarter since 2016,” their brief reads. “Mr. Saffrin testified that ‘there is never going to be a situation where there’s zero opacity violations.”

The Department outlined a spate of battery stack violations at Erie Coke and said it noted fugitive leaks that surpassed opacity limits from doors, lids, offtakes and collector mains. Further, they said DEP personnel were “more likely than not” to find a violation there during a facility inspection.

DEP expressed a great deal of concern over the Company’s failure to comply with requests to install a backup hydrogen sulfide absorber, especially since Erie Coke admits that its main absorber is routinely taken offline for maintenance.

“Despite being told as early as August 29, 2017 that the Department would not be able to renew the Title V permit without a backup hydrogen sulfide control device, Erie Coke did not submit a plan for approval for a backup control device until late June 2019,” the Department’s brief reads.

Lawyers for the Department also noted 78 unresolved violations at the facility between June 2017 and April 2019. They added that despite the company’s assertions that they are on a positive compliance trajectory, Erie Coke racked up the most minutes of opacity violations ever recorded by the facility’s Continuous Opacity Monitoring System (COMS). In the second quarter of 2019, there were more than 3,000 minutes of opacity violations, according to the brief.

Indeed, since the third quarter of 2017, the number of days per quarter where there was at least one exceedance of battery stack opacity ranged from 54 to 86 – with six of the last eight quarters seeing more than 80 days with violations.

DEP attorneys also argued that the Company lacks the proper finances to bring the plant – and keep it – in compliance with its permit. It noted that Erie Coke has no capital improvement plan or training budget.

“What this means is Erie Coke will try to squeeze out some funds for environmental compliance from its operating budget,” DEP attorneys wrote.

They added that Erie Coke witness testimony showed the Company “has no firm source of capital to install (the hydrogen sulfide absorber)” and has set aside zero dollars to pay for the project.

Efforts to comply “amount to only fending off the department as long as it can,” lawyers for the Department wrote.

Finally, it said that any financial harm Erie Coke suffers is “self-inflicted.”

“Any economic harm to Erie Coke arises from its inability to operate in accordance with the Clean Air Act and regulations, not the Department’s denial.”

“DEP has made a strong case for why supersedeas should not be granted,” Group Against Smog and Pollution Executive Director Rachel Filippini said. “Both Erie Coke’s long history of violations and its current lack of finances to undertake improvements give us little hope that it will be able to comply with the Clean Air Act moving forward.”

We now await the Judge’s decision on this matter and ECC’s previously filed petition to extend the record.

Documents related to this case can be found at Environmental Hearing Board Case Number: 2019069.

To keep up-to-date on this issue, visit the Group Against Smog and Pollution’s Blog webpage.

For more information, visit the Hold Erie Coke Accountable website.

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