Tonawanda News

March 5, 2014

Prosecutor urge locals to apply as Tonawanda Coke victims

By Jessica Bagley
The Tonawanda News

Tonawanda News — TOWN OF TONAWANDA — At a town assembly Monday night that drew more than 150 people, Assistant U.S. Attorney Aaron Mango encouraged those locals affected by Tonawanda Coke’s federal crimes to apply to be classified as victims. 

“The point is — we want you to be heard,” he said. “We need people to tell the judge what the seriousness of this case is.”

Mango and Assistant U.S. Attorney Rocky Piaggione, who prosecuted the case against the River Road coal-burning facility, have asked U.S. District Judge William Skretny to consider residents as victims pursuant to the Crime Victims Rights Act, which, they argue, “was designed to protect victims and guarantee them some involvement in the criminal justice process.”

They are also arguing that a sentencing hearing should be held to allow members of the community to testify about the harm they suffered. 

Last year, a federal jury found the plant and Kamholz guilty of criminal violations of the Clean Air Act and the Resource Recovery and Conservation Act. They face a maximum sentence of more than $200 million in fines and 75 years in prison for Kamholz.

Sentencing of Tonawanda Coke and its environmental manager is set for March 19, but the judge has not ruled on the prosecutors’ motions — and there is no guarantee that Skretny will agree with the government’s approach and classify residents as victims.

To apply to be a victim, locals must have been “directly and proximately harmed as a result of the commission of a federal offense.” Mango said that he’s not imposing any geographical restrictions on those who wish to apply, but those interested should have lived or worked in the area between 2005 and 2009. 

“If you believe you have inhaled pollution from the Tonawanda Coke Corporation, then we are telling you we believe you are a victim,” Mango said at the event, which was held at the Sheridan Parkside Community Center. “If you can’t go outside and spend time in your garden because of smells coming from Tonawanda Coke, that is a harm.”

Mango cautioned attendees that if Skretny does rule in favor of the government, victims may need to testify under oath, and they would be subject to cross examination. He also reminded residents that completing the form is separate from victim impact statements, which have already been sent to the judge for his review.

Defense attorneys have argued that that there is no legal basis to name the community as a victim in the case and that a victims’ sentencing hearing should not be held.

“I see a very treacherous invitation to inject a wide range of testimony, the competency of which we have no way of measuring,” defense attorney Gregory Linsin said at an October hearing in federal court.

The victim form is available on the Department of Justice’s website, Mango will also attend a Clean Air Coalition meeting at 6 p.m. Monday at the Kaufman Fire Hall, 39 Kaufman Ave., Town of Tonawanda.

Citizen Science Community Resources, the group that hosted the Department of Justice on Monday night, also presented results from soil testing that was completed near the plant.

The preliminary test revealed that samples near Tonawanda Coke had elevated levels of the carcinogen Benzo[a]pyrene, or BaP. Jackie James-Creedon, the leader of the CSCR group, has tested for BaP and other contaminants near Tonawanda Coke before, and has found similar results.

“It at least appears based on this preliminary data that those sites maybe a half-mile south of the plant seem to have some elevated levels of this BaP equivalent,” said Michael Milligan, a chemistry professor at Fredonia State College who assisted with the testing.

There is no clear benchmark of what constitutes an unsafe level of BaP, Milligan said, but the Environmental Protection Agency has initiated remediation projects in neighborhoods with levels of 1.5 parts per million.

Many of the test results were above that figure, but organizers stressed that they cannot be sure Tonawanda Coke is to blame.

“One source could be truck emissions and auto emissions, but there’s opportunities to do more sophisticated work with the data that would allow us to say whether it comes from the coking process versus the truck traffic,” said Joe Gardella, a University at Buffalo professor who also assisted with the study. 

James-Creedon has asked Skretny to allocate $700,000 of the plant’s fine money toward a soil and water testing project that could trace the origins of BaP, as well as other contaminants.

U.S. prosecutors have included James-Creedon’s project in their recommendation, as well as an $11 million health epidemiology study and other initiatives. In total, the government has recommended that Tonawanda Coke fund nearly $12.8 million in community service projects as part of its sentence.

The recommendation also includes a $44.3 million criminal fine, a five-year probation, a remedial investigation of the coal field and the implementation of an environmental compliance plan.

Prosecutors have recommended that Kamholz be sentenced to a term of six to eight years in prison and pay a fine of $250,000.

Contact reporter Jessica Bagley at 693-1000 ext. 4150, or follow her on Twitter @JessicaLBagley.