Tonawanda News — 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