Tonawanda News

February 7, 2013

Plant spars over data

By Jessica Bagley
The Tonawanda News

Tonawanda News — BUFFALO — Although official proceedings won’t begin for a few more weeks, United States attorneys and lawyers representing Tonawanda Coke faced off for the first time in federal court Wednesday morning.

The plant, which is located on River Road in the town and produces a coal-based additive that is used to make steel, has come under fire in recent years from the Clean Air Coalition and some 20 civil suits from individuals that allege the company’s environmental hazards have caused illness and serious disease. 

But the recent pre-trial proceedings were a matter of federal criminal charges, not civil, and are a result of a grand jury indictment against the corporation and the plant’s environmental manager, Mark Kamholz, who was in attendance Wednesday. 

According to the document, 15 of the 20 counts charge the defendants with violating the Clean Air Act by emitting coke oven gas with an unpermitted emission source and operating two quench towers without baffles, which stop large particles being emitted 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 four remaining counts deal with the defendant’s alleged violations of the Resource Conservation and Recovery Act, including their alleged 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.

Wednesday, Aaron Mango and Rocky Piaggione, for the U.S. government, and Gregory Linsin, for Tonawanda Coke, argued before William Skretny, chief United States district judge, on what will and won’t be admitted as evidence when the trial commences on Feb. 26.

Much of the discussions dealt with the admissibility of a chemical test that reportedly shows a high level of benzene, a known carcinogen, near Tonawanda Coke’s plant on River Road. 

The evidence would support the counts charging the defendants with violating the Clean Air Act. 

Linsin argued the evidence should not be admitted at trial, citing an expert witness who believed the process used “injected a series of unknown variables” and error rates. He asked for a hearing to determine if the evidence should be admitted. 

”We are saying that the government has failed to demonstrate the reliability of these tests,”  Linsin said. 

Piaggone said that the lab that performed the testing, however, was certified in both the benzene test and the method used.

But Skretny said he could not accept the test’s reliability on just the prosecution’s say-so, and asked Piaggone and Mango to provide the court with a copy of an affidavit from the lab, along with a copy of the certification. 

”I won’t make my final determination until after I receive it,” Skretny said. “But I’m leaning toward a limited hearing.”

The prosecution is scheduled to submit the affidavit by Friday, and Linsin said he will respond by Tuesday.

Mango and Linsin also discussed the governments’ desire to incorporate evidence regarding Kamholz’s alleged retrieval of an unknown substance from where it was being stored in a railroad car. 

According to Mango, the substance was only minimally tested before being sprayed onto coal, which was then burnt. 

”Whenever you have an item at Tonawanda Coke that you want to get rid of, the solution is, let’s mix it with coal and burn it,” Mango said.

To which the judge responded, “Which is perfectly OK if they made the determination that it is not hazardous.” 

Mango also described the substance’s smell, while Kamholz scoffed at his comments. 

But Linsin said the regulations that govern the procedure are not part of the case, and argued the government cannot prove whether the substance is hazardous.

The court will make the decisions in advance of the trial at the end of the month. 

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