Tonawanda News

March 22, 2014

Residents' fight with Tonawanda Coke is far from over

By Jessica Bagley
The Tonawanda News

Tonawanda News — The U.S. government’s criminal case against Tonawanda Coke wrapped up Wednesday when a federal judge sentenced the plant to pay a total of $25 million for its environmental crimes, but for the residents who live in the area, the fight is far from over. 

Locals began targeting the plant a decade ago, complaining of medical illnesses, acrid smells, headaches and black soot on their properties. Their work spurred a criminal investigation of the coal-burning facility, and in 2010, a federal indictment was filed against Tonawanda Coke. 

After a 30-day trial last year, a jury found the plant guilty of violating the Clean Air Act and Resource Recovery and Conservation Act, and on Wednesday, Chief U.S. District Judge William Skretny sentenced the plant to pay $12.5 million in fines and to fund $12.2 million in community service projects. 

But Skretny rejected the government’s request to classify local residents as victims of the plant’s crimes pursuant to the Crime Victims’ Rights Act – a designation that would have given them the right to speak at sentencing and the possibility of receiving a restitution payment. In his presentence decision, Skretny stated that the process of determining whether each resident’s suffering was caused by Tonawanda Coke — and not one of the other 52 plants in the area — would be cumbersome. 

“It is important to note that the issues raised during a CVRA or restitution hearing or series of hearings would be essentially the same as those currently being considered by the New York State Supreme Court of Erie County in the 20 related lawsuits currently pending against defendants,” Skretny wrote, noting that his findings could adversely affect those civil cases. 

The lawsuits include a mass tort action involving more than 300 plaintiffs, attorney Richard Lippes, one of the attorneys handling the case, said. The case alleges that residents’ illnesses and cancer diagnoses were caused by the plant’s emission of benzene, a carcinogen found in coke oven gas.

Lippes said the mass tort suit is in the discovery stage, meaning that the two sides are exchanging evidence and subpoenaing information.

“There was certain material Tonawanda Coke didn’t want to disclose until after the criminal trial because of the Fifth Amendment right against self-incrimination,” Lippes said. “The phase will now move forward now that the sentencing is complete.”

The two sides still have to conduct depositions, which will include questioning of all the plaintiffs. Lippes’ team and Tonawanda Coke, which is being represented by Hodgson Russ, will then exchange expert reports, have a trial date set and negotiate a potential settlement.

“There haven’t been any settlement talks to date,” Lippes said. “There still is a while to go.”

A class action suit against the plant is also pending. Unlike a mass tort suit, in which each plaintiffs’ case is considered separately, a class action suit involves one or several people seeking compensation for a large group. The class must be certified before the suit can move forward. 

“Members of the class action suit don’t have their separate day in court,” Lippes explained. 

Government investigations of the plant are still ongoing, as well. Tonawanda Coke has recently received two notices of violation from the state Department of Environmental Conservation following an explosion in January that injured three workers. The DEC is “continuing to investigate and evaluate enforcement options” in relation to those violations. 

The Environmental Protection Agency and the Occupational Safety and Health Administration are also investigating the incident.

Officials admitted that despite Wednesday’s criminal victory, the ongoing monitoring of the plant remains a challenge. But prosecutors said the five-year term of probation will aid governmental agencies in their inspections, and EPA Regional Administrator Judith Enck said her office is committed to protecting the community’s health.

“There’s still more work to be done. This is an important chapter, but the book is not completely written and we have to keep protecting the public’s health,” she said following the sentencing. “We are committed to cleaning the place up.” 

Contact reporter Jessica Bagley at 693-1000 ext. 4150, or follow her on Twitter @JessicaLBagley.