Tonawanda News

January 18, 2013

Clean Air earns legal victory

By Jessica Bagley
The Tonawanda News

Tonawanda News — BUFFALO — A state supreme court judge ruled in favor of the Clean Air Coalition, effectively quashing a subpoena by lawyers representing Tonawanda Coke, the corporation being sued for allegedly emitting dangerous chemicals into the air and soil. 

The lawsuit in question, of which the Clean Ait Coalition is not a plaintiff, is one of 20 filed against the corporation and its CEO, J.D. Crane, by dozens of residents who say they have experienced illness and injury due to illegal emissions coming from the plant.

In August, lawyers from the firm Hodgson Ross, including Jeffrey Stravino, representing Tonawanda Coke requested documents from the Clean Air Coalition for use in defense of a lawsuit filed by resident Jennifer Ratajczak. The coalition has led a crusade against Tonawanda Coke, attacking the company, lobbying environmental officials to act, organizing residents, documenting their illnesses and collecting their own environmental data. 

In the subpoena, company lawyers requested “any and all documents concerning Tonawanda Coke Corporation, J.D. Crane, or Mark Kamholz,” the plant’s environmental control manager who was arrested by federal investigators for violating the nation’s Clean Air Act. 

The subpoena also demanded documents sent to or received from the state Department of Environmental Conservation, the Environmental Protection Agency and any other governmental body, as well as the same information regarding entities operating within 25 miles of Tonawanda Coke. The suit also sought information gleaned from Facebook and Twitter updates, emails and media coverage. 

DEC air quality monitoring devices near the plant has found emissions of benzene, a known carcinogen, at levels far above state and federal limits — and well beyond what Tonawanda Coke has reported to regulators. Crane has long denied his foundry is the source of the noxious gas.

But the CAC, which isn’t a party in any lawsuit against Tonawanda Coke, called the subpoena a “retaliatory attack” for its efforts to curtail the emissions.

CAC representatives also argued that releasing the information would violate members’ privacy. 

“We take the privacy of our members, our contacts, or neighbors very seriously. It is very important to the work we do,” coalition Executive Director Erin Heaney said in December. “Without folks trusting us, we can’t do our job.”

At a Nov. 28 hearing, the coalition, with the assistance of attorney James Duggan, asked state Supreme Court Justice Paula L. Feroleto to quash the subpoena, issue a protective order for the coalition from the lawyers and have the defendant pay the coalition’s legal fees. 

Tonawanda Coke’s lawyers submitted a document to the court to support its subpoena, arguing the corporation is entitled to materials from non-parties, that the CAC did not meet the legal qualifications for a quashed subpoena and the CAC didn’t have any valid, legal objections to the request, among other arguments.

“The CAC attempts to distract this court’s attention from the real issues by asserting that a motion to compel compliance somehow falls within the protection of civil rights laws,” the document states. “The CAC cites no case law in support of this red-herring.”

Feroleto initially reserved judgment on the issue in November. Tuesday, she released her decision, siding with the coalition and quashing the subpoena. Feroleto also granted a the requested protective order, but denied the coalition’s demand for legal fees. 

In the four-page decision, Feroleto said the defendant and their lawyers have access to many of the records that were requested and that some of the documents are not in the possession of the CAC, as they’ve been sent to the Department of Environmental Conservation.

She also wrote that because the CAC is not party to the suit, the group does have some legal protection.

“Further, it appears that much of the material the defendants are seeking would be in the possession of the individual plaintiffs, actual parties to the litigation,” Feroleto wrote. “The subpoena as written is extremely broad, and certainly not within the framework of records kept in the ordinary course of a business.”

The CAC and Hogson Russ received the copy of Feroleto’s decision Wednesday. 

“We got most of what we wanted — especially what we were really concerned about,” Heaney said. “We were super excited ... we are not going to have to turn anything over, and it affirms everything we have been saying all along.”

Heaney said if they had to comply with the request, thousands of documents would have to be sent to Hodgson Russ. 

“We would have had to empty out our office,” she said. “We hope this sends a message not just to Tonawanda Coke, but other polluters ... that you can’t just harass community organizations.” 

The man on the other side of the issue, Stravino, of Hodgson Ross, was disappointed with the decision and said he and his client are “discussing how they will proceed.”

“The coalition has made a number of claims about Tonawanda Coke and its operation,” Stravino said. “We do believe the CAC has information and documents that are relevant to the cases ... we’ve got a right to defend Tonawanda Coke.” 

It is not clear yet whether Stravino will attempt to obtain the documents a second time. 

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