Tonawanda News

March 21, 2013

Tonawanda Coke mounts defense

By Jessica Bagley
The Tonawanda News

Tonawanda News — BUFFALO — Former state Department of Environmental Conservation official Gary Foersch testified Wednesday morning that during 15 different inspections he completed in Tonawanda Coke’s byproduct unit, he never noticed the existence of pressure relief valve that has become central to the federal case against the plant. 

When showed a picture of the so-called “bleeder,” Foersch, the defense’s first witness, admitted that the valve “appears to be an emissions source.”

”And isn’t it your job to look for emissions sources?” Rodney Personius, who is representing defendant Mark Kamholz, the plant’s environmental manager, asked Foersch.

“Yes,” Foersch responded.

In the criminal indictment against the plant, the pressure relief valve is described as an “unpermitted emissions source,” as it wasn’t listed in the company’s Clean Air Act Title V permit. The prosecution contends that the company never reported the valve’s emissions to the DEC or Environmental Protection Agency, as required by the Clean Air Act’s self-reporting statute. Government witnesses testified earlier in the federal trial that the plant wantonly emitted coke oven gas and thereby a known carcinogen, benzene, into the air through the valve. 

Personius also questioned Foersch on the plant’s alleged failure to install required environmental barriers, or baffles, in the quench towers, which are used for cooling down coke after it is burnt in the coal ovens. 

Foersch said he personally witnessed a Clean Air Act violation in one of the quench towers during an inspection, but said he couldn’t remember if the baffles were only partially installed or if there were none at all.

Foersch reminded Kamholz of the regulation during that inspection, he said. But Foersch also testified that he never checked again to confirm that the plant installed the baffles, after noting that the technology is only “rudimentary” and offers “very little reduction” in emissions. 

The questioning of Foersch is in line with the defense team’s overall strategy. The attorneys are claiming that DEC and EPA officials implicitly and explicitly approved the plant’s conditions, which are “out in the open” and easy to see. 

The testimony came after Judge William Skretny ruled on the acquittal motions submitted by the defense team Monday — a standard request by defense lawyers at trial, asking the judge to toss out indictments because prosecutors failed to meet their burden of proof before a jury has a chance to decide guilt or innocence. Skretny denied the motions and all of the 19 counts still stand. 

Last week, the latest civil case among dozens already filed against the plant, became one step closer to starting when the Appellate Division of Supreme Court of New York in Rochester filed a decision allowing the owner and CEO of the company, J.D. Crane, to be named personally in the complaint. 

”Plaintiffs commenced this action seeking ... damages for personal injuries and property damage that resulted from exposure to various toxic emissions allegedly released by defendant Tonawanda Coke Corporation,” the court wrote.

Roughly 200 named plaintiffs in the case, Jennifer Abbott et. al vs. Tonawanda Coke, alleged that J.D. Crane is personally liable because he “participated in and approved of decisions that resulted in the toxic emissions from the Tonawanda Coke plant.”

Following the filing of the case, Hodgson Ross defense lawyers made a motion to dismiss the complaint against Crane. Erie County Court previously dismissed the motion, and the appellate division then affirmed the decision March 15.

”Although a ‘corporate officer is not held liable for the negligence of the corporation merely because of his official relationship,” the individual can be held liable if it is established ‘that the officer was a participant in the wrongful conduct,” the court wrote. 

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