Attorneys spar over 'forgotten' notebook of pictures from Springdale power plant visit

It appears neither party in the Springdale power plant injunction case is budging from its stance regarding a “forgotten” notebook of pictures from a site visit of the former power plant.

Residents seeking the injunction say the notebook of photographs from an on-site inspection are a valid piece of evidence in their case. The companies trying to implode the former power plant’s boiler house say the photos should be excluded because their lawyers never got the chance to contest them.

The disagreement led to a flurry of court filings this week as the parties tried to convince the judge on how to handle the photos.

Sixteen residents filed for an injunction in September to stop the planned implosion of the power plant’s boiler house, the largest structure still remaining on the site.

They allege the June 2 chimney implosion at the site caused harm to themselves and the community and argue an implosion of the boiler house would cause additional harm.

However, throughout court proceedings held in Allegheny County Judge John T. McVay Jr.’s courtroom, Charah, demolition contractor Grant Mackay Co. and explosives subcontractor Controlled Demolition Inc. say that implosion is the safest way to take down the boiler house.

Attorneys and experts participated in a site visit of the property in October.

As proceedings wrapped up Nov. 15, attorney Janice Savinis, whose firm represents the residents, presented into evidence, to be “taken under advisement,” a “forgotten” notebook of images her team took during a court-approved Oct. 23 site visit of the power plant.

The following day, Charah’s attorneys moved to strike the exhibit, arguing the photographs “have the propensity to confuse and mislead” McVay by introducing images of neither the boiler house nor the administration building.

The plaintiffs responded to that filing Monday, arguing that Charah’s motion failed to provide a rational basis to throw out the exhibit.

But Charah’s attorneys Tuesday reiterated support of the motion to strike the exhibit. They claim Savinis’ team has not provided them with a copy of the notebook, which they are referring to as the “last exhibit.”

“And even if plaintiffs provided defendants with a copy of the last exhibit, defendants would still have to accept plaintiffs’ word that the photos were, in fact, taken at a site inspection in this matter,” the filing said.

Charah’s filing said the photos were not presented to any witness during the course of the weekslong hearing, let alone a witness who could authenticate them. It said authentication is mandatory to admit documents into evidence.

Another concern Charah’s attorneys had with the plaintiff’s “intentional skirting of fundamental legal principles” is they “are left with documents that plaintiffs will characterize in any manner they want in post-hearing briefing, misleading or not, while defendants have been deprived of the opportunity to cross-examine a witness on that very characterization during the hearing.”

That, Charah wrote, is “particularly troublesome” because the hearing spanned weeks and was stalled so the plaintiff’s attorneys could conduct a site inspection they claimed was critical to their case and their experts’ testimony.

Jon Pina, one of the residents’ expert witnesses, attended the site inspection, took pictures, submitted a report, and testified during the hearing.

But no photographs from the site visit were in Pina’s report and no photo was put in front of him during the hearing, Charah’s filing said. The situation left Charah’s attorneys with no opportunity to cross-examine such a witness.

The right to cross-examination is mandatory, Charah’s filing said.

“These tactics violate bedrock legal principles, including due process, and should not be excused by this court,” the filing said.

The residents’ attorneys responded to Charah’s reply Wednesday. In it, they said Charah’s attorneys were present, and consented to, the on-site inspection.

“Plaintiffs were ordered to produce all photographs taken at the site inspection to (Charah.) Plaintiffs complied with that order of court, and produced all such photographs to Defendant,” the response said.

The plaintiffs also submitted all pictures taken by a professional photographer to the court, the response said.

“(Charah) is fully aware that those photographs were taken on the site inspection and has not claimed otherwise. To imply anything otherwise would not only be a waste of judicial resources, but also more than a little disingenuous,” it said.