Tonawanda News

March 19, 2013

Feds rest against Tonawanda Coke

By Jessica Bagley
The Tonawanda News

Tonawanda News — BUFFALO — The government rested its case Monday afternoon against Tonawanda Coke and the plant’s environmental manager, Mark Kamholz, after almost three weeks of extremely technical and often worrying testimony. 

Monday’s milestone came after Jim Strickland, of the state Department of Environmental Conservation, testified as an expert on the Resource Conservation and Recovery Act, a law that the River Road company allegedly violated by improperly storing and disposing of hazardous waste.

Last week, government witnesses, including an Environmental Protection official and a former employee of the company, said the plant improperly recycled a byproduct of the coke-making process called coke-tar sludge.

Strickland backed up those claims Monday in federal court by testifying that the company was not mixing the sludge on the required concrete pad, thereby allowing the ground to potentially absorb the hazardous waste. 

“Ultimately, we figured out that it was being mixed on the coal field and not on the concrete pad,” he said of the recycling process, in which the sludge is mixed with coal before being put back into the coke ovens. 

During cross examination, Gregory Linsin, Tonawanda Coke’s attorney, continued the same line of questioning he’s been employing throughout the case by implying that the DEC and EPA are at fault for not catching the company’s alleged violations after years of inspections.

Linsin asked Strickland why, time and again, he said, the violations were missed. 

“It’s quite possible the inspector did not see the recycling process and did not fully understand,” Strickland said in response. “Inspections are a snapshot of what is going on at a facility ... they would not observe it if the process was not going on.” 

The government and defense team’s difference in opinion Monday points to the heart of the issues in the case. While government attorneys Aaaron Mango and Rocky Piaggione have argued that the Clean Air Act and RCRA are, at their heart, self-reporting statutes, Linsin and Kamholz’s attorney, Rod Personius, have said that the DEC and the EPA were at fault for not noticing the plant’s violations. The governmental agencies then unfairly targeted the Town of Tonawanda plant, Linsin has argued.

At the end of the day Monday, the defense team entered motions to acquit Tonawanda Coke and Kamholz of the charges listed in the indictment — a common defense procedure after the prosecution rests its case. 

Attorneys then argued their respective positions on the motions before Judge William Skretny. 

Ariel Glasner, for Tonawanda Coke, argued that the first five counts of the indictment, which deal with the pressure relief valve, should be thrown out based on inconsistencies in the testimony and the indictment.

Glasner said the distinction between the term “emissions point,” used in testimony, and “emissions source,” used in the indictment, make it impossible for a reasonable juror to clearly find Tonawanda Coke guilty of the five charges. 

Glasner, along with Linsin, also argued that an exemption allowing the plant to refrain from installing an environmental barrier in one of its towers, based on its infrequent use, was still in effect throughout the time period covered by the indictment.

In response to those arguments, Mango said witness testimony proves that the plant was to install the barrier if the company began using the tower more than 10 percent of the time. Tonawanda Coke then failed to notify governmental agencies about their frequent use of the quench tower, Mango said. 

Personius also argued that the obstruction of justice charge against Kamholz should be thrown out, as his alleged criminal actions did not occur while a criminal proceeding, or in this case, an investigation of the plant, was “pending,” as the law requires. 

But Mango said the email notifying Kamholz of the impending investigation serves as that benchmark.

The court will deliver its decisions on the motions Tuesday, and if the charges are not dismissed, the defense team will begin calling witnesses Wednesday. 

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