By Jessica Bagley
The Tonawanda News
BUFFALO — Attorneys on opposing sides of the Tonawanda Coke trial depicted the company’s ethical convictions in two very different ways during closing arguments Tuesday afternoon.
In the first of two lengthy narratives, Assistant U.S. Attorney Aaron Mango portrayed the coke-making facility and its environmental manager, Mark Kamholz, as deceitful polluters.
“To comply or to deceive, that is the question,” Mango began. “Tonawanda Coke and its manager of environmental control faced that question — whether to comply with the regulations that protect the very air we breathe in ... but time and time again, the defendants chose to deceive, not comply, in an attempt to put profit above all else.”
According to Mango, the prohibitive costs of installing environmental protections required by federal law “drove the plant into the deception business.”
Although Tonawanda Coke’s attorney Gregory Linsin had a much different story to tell, he didn’t deny many of the company’s alleged environmental violations. Instead, he argued that the governmental agencies, not Tonawanda Coke, are to blame.
“The truth is in fact that the conduct that is now subject of this indictment was tacitly, if not explicitly, authorized by the Department of Environmental Conservation for years,” Linsin said.
That argument is in line with the defense’s legal strategy, entrapment by estoppel, which requires the defense to prove by a preponderance of the evidence that the governmental agencies “seemingly appeared to authorize the conduct.”
If the jury finds that the defense has sufficiently proved entrapment by estoppel, they must then find the defendants not guilty — even if the government has succeeded in proving their case.
But in contrast, Mango said the DEC and Environmental Protection Agency’s potential failure is irrelevant to the trial. He compared the issue to a hypothetical criminal investigation: one in which police officers catch a bank robber after a holdup, and then afterward, discover he was guilty of many more robberies.
“Does the fact that the police missed it somehow absolve him of the earlier robberies?” Mango asked. “This is not Monopoly — there is no get out of jail free card because they missed it.”
Apart from the closing arguments’ overarching themes, Mango and Linsin also went through each of the 19 counts in the indictment against the company, detailing their own spin on the evidence that’s been presented over the past month.
Fifteen of the 19 counts charge the defendants with violating the Clean Air Act by improperly discharging coke oven gas with an unpermitted emission source, a pressure relief valve, as well as operating two quench towers, used for cooling down the coke, without baffles to stop large particles from floating into the air.
The 16th count charges the defendants with obstruction of justice, “relating to the defendants’ role in concealing the emission of coke oven gas from government regulators during an inspection,” the indictment said.
The three remaining counts deal with the defendants’ alleged violations of the Resource Conservation and Recovery Act, including their unpermitted storage of hazardous waste next to two large deteriorating coal tanks, the unpermitted disposal of hazardous waste, as well as prohibited treatment and disposal of waste.
The lawyers expectedly disagreed on a number of issues within the charges, including whether a DEC exemption covered the plant’s alleged baffle violations and whether Tonawanda Coke appropriately notified the DEC about their use of the pressure relief valve, which, Linsin said, was “out in the open” and “obvious” for any inspector to see.
Mango and Linsin also discussed their respective RCRA expert witnesses, who in their testimony disagreed over whether the law applies to Tonawanda Coke’s alleged violations.
Mango recalled the prosecution’s expert testimony, which was offered by Philip Flax. Flax argued that the plant improperly recycled coal tar sludge, a byproduct of the coke-making process, and then disposed the harmful product into the land.
But Marcia Williams, a consultant who testified for Tonawanda Coke, said the sludge was exempt from the law as it was properly recycled as part of a continuous manufacturing process at the plant.
Mango however, tried to debunk Williams’ credibility.
“All you have from defense is Marcia Williams, a witness who has never done a RCRA inspection in her life, a witness who has never been at Tonawanda Coke,” Mango said before noting that Williams’ firm was paid $95,000 for her work on the case.
But despite Mango’s stance, Linsin argued that Williams was the superior witness.
“She did her homework, she was simply more credible,” Linsin said.
Closing arguments from Kamholz’s attorney, Rod Personius, as well as a rebuttal from the prosecution are scheduled for today.
Contact reporter Jessica Bagley at 693-1000, ext. 4150