Tonawanda News

October 23, 2013

Tonawanda Coke attorneys question sentencing, fines

By Jessica Bagley jessica.bagley@tonawanda-news.com
The Tonawanda News

Tonawanda News — BUFFALO — After months of demands that potential fine money from the Tonawanda Coke sentencing go back to local residents, the company’s defense attorney argued Tuesday that there is no legal basis to name the community as a victim in the case.

During a status conference Tuesday in federal court, attorney Gregory Linsin said that the government’s effort to name “the community as a whole” was a “novel concept not identified in sentencing guidelines.”

In a court document filed in August, the government said it will ask the court to “impose certain community service obligations on defendant Tonawanda Coke to repair the harm caused by the defendants’ crimes.”

The Clean Air Coalition and local governments have also requested that the company fund environmental projects in the area surrounding the River Road plant.

But Tuesday, Linsin said Chief Judge William Skretny should not consider such options.

“There is no legal basis for a community service component in sentencing,” Linsin said, later noting civil suits and enforcement actions already underway.

Assistant U.S. Attorney Aaron Mango disagreed.

“The fact that any hazardous materials went into the air, that alone is harm,” he said. “The community as a whole is a victim in this case.”

The discussion took place in front of Skretny almost seven months after a jury found the River Road coke-making facility guilty of violating the Clean Air Act and the Resource Recovery and Conservation Act. Mark Kamholz, the company’s environmental compliance manager, was also found guilty of obstruction of justice, a charge that stems from his actions prior to a 2009 Environmental Protection Agency inspection.

The owner of the facility, J.D. Crane, was not named in the indictment.

The charges carry a maximum of 75 years in prison and more than $200 million dollars in fines. Although the sentencing was initially set for July, it was postponed due to two main issues that were discussed Tuesday. The sentencing has now been set for March 19 at 1 p.m.

A hearing may be held before that date, as Linsin argued Tuesday that expert testimony on the seriousness of the crimes could benefit the court with its sentencing decision.

“It would be very helpful to inform the court on where these offenses fit,” he said, noting that federal environmental cases are rare.

In response, Mango said a hearing is unnecessary and that cases from other districts can provide context to the evidence that was presented at the 30-day trial. 

“Are we going to retry this case?” he asked.

Both sides will submit written arguments on the need of a hearing and Skretny will then issue a decision. If a hearing is ordered, the government will request that community members be allowed to testify about the harm the crimes have caused. 

Linsin objected to that request.

“I see a very treacherous invitation to inject a wide range of testimony, the competency of which we have no way of measuring,” he said. 

Linsin and Mango also discussed the government’s analysis of the company’s ability to pay a fine, yet still remain viable. Tonawanda Coke will provide financial records to the prosecution under an agreement that will keep the documents confidential. 

Mango also requested that the financial records of Erie Coke, another facility owned by Crane, be made available to ensure that company assets are not being transferred from the Tonawanda plant to its sister corporation.

But Skretny refused to grant the request, saying that it was based on speculation and not evidence. 

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