Tonawanda News

March 28, 2013

Jury begins Coke deliberation

By Jessica Bagley
The Tonawanda News

BUFFALO — Attorneys working on the Tonawanda Coke case completed their closing arguments Wednesday afternoon, and now, the fate of the River Road company lies in the hands of the jury.

Before adjourning Wednesday, Judge William Skretny gave the jury lengthy instructions, including an explanation of the required elements for a guilty verdict in each of the 19 charges against the company and its environmental manager, as well as relevant legal definitions that have been discussed in the case. 

Those instructions came after Rodney Personius, an attorney representing Tonawnada Coke’s environmental manager Mark Kamholz, presented his closing argument.

Much of the evidence allegedly implicating Kamholz is based on a conversation he had with a plant employee, Pat Cahill, prior to an Environmental Protection Agency inspection that was completed in April 2009. 

During a walkthrough of the plant before the EPA arrived, Kamholz and Cahill allegedly had a brief discussion about the plant’s pressure relief valve, which the government has argued emitted coke oven gas quite frequently, and that the use of the emissions source violated the Clean Air Act. 

During Cahill’s testimony, he said Kamholz pointed to the valve during that walkthrough and said “we can’t have that going off when they’re here.”

Cahill said he then increased the pressure on the valve in an attempt to prevent it from releasing while EPA officials were on site, which, in the government’s view, was encouraged by Kamholz — and, among other evidence, constitutes the obstruction of justice charge. 

But during his closing arguments Wednesday, Personius argued the conversation between Cahill and Kamholz is insignificant to the case. 

“You cannot take (the statement) — whether it’s six words or nine words, and ignore everything that surrounds it,” Personius said. 

Personius noted that after the conversation, there wasn’t any additional correspondence between the pair about the valve. And after the valve did release during the EPA inspection, Kamholz never approached Cahill, Personius said. 

“He didn’t come to Mr. Cahill and say, ‘what did you do?’” Personius said. 

But Assistant U.S. Attorney Rocky Piaggione argued Kamholz may have been purposely avoiding Cahill, and that Kamholz simply mentioning the valve during the walkthrough is central to the case.

“If Mr. Kamholz didn’t think it was a violation, why did he point it out?” Piaggione said.  

Personius and Piaggione also discussed the defense team’s legal strategy, entrapment by estoppel, which provides that if a governmental agency “seemingly authorized” the environmental violations, the defendants can be found not guilty as a result.

“It isn’t fair to prosecute a company for something they’d been doing for 30 years and thought was OK,” Personius said, calling the trial a “textbook case” for the defense strategy. 

But for the second day in a row, the prosecution countered that argument with a hypothetical example.

“Suppose someone in Buffalo decided to drive around without a license for 20 years,” Assistant U.S. Attorney Rocky Piaggione said during his rebuttal arguments. One day, that driver was arrested, Piaggione explained.

And because he had been driving around without a license for 20 years without getting caught, he believed the police approved of the behavior and accused authorities of misleading him. 

“Does that make sense to you?” Piaggione asked the jury.

Piaggione also provided further evidence to support the government’s claim that the defendants are guilty of all 19 counts listed in the indictment. In addition to the counts concerning the valve and the obstruction of justice charge, the plant is also accused of operating two quench towers, used for cooling down the coke, without environmental barriers, and of improperly recycling hazardous waste.

But in his final statement Wednesday before handing the case over to the jury, Piaggione again referenced the defense’s tactic of laying the blame on the DEC, and employed a popular quote: “Fool me once, shame on you; fool me twice, shame on me.”

“The defendants managed to fool the DEC and the system designed to protect the air we breathe once,” Piaggione said. “But the defendants shouldn’t be allowed to fool the DEC and that system again.” 

Contact reporter Jessica Bagley at 693-1000, ext. 4150