Tonawanda News

March 28, 2013


By Jessica Bagley
The Tonawanda News

BUFFALO — BUFFALO — Twelve jurors granted thousands of local residents a measure of vindication Thursday when they found Tonawanda Coke and its environmental manager guilty of illegally dumping acrid, cancer-causing toxins — ton after ton, year after year — into the air they breathe.

"It is a tremendous verdict for the United States ... and the community," Assistant U.S. Attorney Aaron Mango, who prosecuted the case, said. "This company violated environmental laws. They put materials into the air that shouldn't have been in the air, and they dumped hazardous waste onto the ground that shouldn't have been on the ground." 

Tonawanda Coke was found guilty on 14 of the 19 counts levied, while the plant's environmental manager, Mark Kamholz, was found guilty for the same 14 violations, as well as an obstruction of justice charge — meaning that he acted to "influence, obstruct or impede the due administration of justice" prior to a 2009 Environmental Protection Agency inspection.

The charges carry a maximum sentence of 75 years in prison for Kamholz and fines in excess of $200 million. Judge William Skretny, who presided over the trial, will sentence the coke-making corporation and Kamholz July 15.

The jury delivered their verdict after five-and-half hours of deliberation and more than a month of extremely technical, sometimes baffling testimony in a case that, according to prosecutors, is just the second trial to focus on the Clean Air Act's air pollution regulation of major industrial businesses. The landmark verdict immediately sets a precedent for any number of environmental cases to come, lawyers said.

Both defendants were found guilty of the indictment's first five counts, for operating with an unpermitted emissions source in violation of the Clean Air Act, from 2005 until 2009. One witness testified that the valve emitted 173 tons of coke oven gas per year — acrid smelling, cancer-causing chemicals that sometimes literally rained down on homes and businesses in the area. 

"That's a significant amount," Mango said. 

The next 10 charges deal with required environmental barriers, or baffles, in the plant's two quench towers. During the trial, the team claimed that an exemption granted by the state Department of Conservation applied to the plant's first quench tower, named in charges six through 10. 

That exemption was based on the plant's rare use of the first quench tower, but witnesses who worked at the plant weren't able provide a clear consensus on how often the tower was utilized, and some employees said that for months, and possibly years, the tower was out of commission. 

The jury acquitted the company and Kamholz on charges they did not instal baffles in 2005, 2006, 2007 and 2009, but guilty of the charge in 2008. 

The jury did find the defendants guilty of operating the second quench tower without baffles between 2005 and 2009 — which account for the charges listed in counts 11 through 15. 

The Tonawanda Coke defense team, headed by Gregory Linsin, made no effort to deny that the Clean Air Act violations took place. In fact, he even admitted that the plant was guilty of the crimes. 

Instead, Linsin argued that the DEC and the EPA "seemingly authorized" the plant to commit the violations, and that therefore, Tonawanda Coke was "entrapped" by the governmental agencies. 

But the jury didn't buy it. 

On count 16, the obstruction charge, Tonawanda Coke was found not guilty, while Kamholz, who became noticeably flushed when the guilty verdicts were read to a silent but packed courtroom, was not as fortunate.

Linsin declined to comment on the verdict when approached by reporters outside the courtroom. Rod Personius, the attorney representing Kamholz, was also asked if he wanted to comment. His reply: "Not when it happens like this."

On the obstruction count alone, Kamholz faces a maximum of 20 years in prison. He also left the courtroom without addressing the media.

Both defendants were also found guilty of counts 17 through 19, which deal with the plant's 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 the waste.

"From the evidence of this case, where literally hundreds of tons of coke oven gas containing benzene was released into the atmosphere and significant quantities of hazardous waste containing benzene were left out in the open, it would be hard to imagine a more callous disregard for the health and well being of the citizens of this community," U.S. Attorney William Hochul said in a statement after the verdict. 

And those citizens of the community were the ones who began the fight against Tonawanda Coke almost 10 years ago. The federal trial has even been recognized as the result of locals' grassroots work to improve air quality and crack down on the plant. 

And on Thursday, it was time for those organizers to celebrate. After the verdict was announced, Erin Heaney, director of the Clean Air Coalition, hugged Mango and thanked him for his work.

"He and the Department of Justice worked their butts off to make this day possible," Heaney said. "We now feel vindicated, we feel like government can work sometimes." 

Heaney said that, for once, coalition members who live near the plant are hopeful.

"It is somewhat of a unique feeling for them," she said. 

Jackie James-Creedon, the founder of the Clean Air Coaliton, was also quite emotional following Thursday's verdict.

"This is a message to all industrial factories that emit harmful materials that the onus is on them, and not the Environmental Protection Agency or the DEC" to follow the law. "But do we wish those agencies would have done more? Yes. We do. " she said. 



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