By Jessica Bagley
The Tonawanda News
Tonawanda News — BUFFALO — An Environmental Protection Agency official, Philip Flax, testified in federal court Thursday as an expert on the Resource Conservation and Recovery Act, and said Tonawanda Coke violated the federal law by improperly disposing of a substance called “coal tar sludge.”
The sludge, a byproduct of the coke-making process at the River Road facility, is considered hazardous waste under the RCRA, and is named as such in three of the 19 criminal counts in the indictment against the company and its environmental manager, Mark Kamholz.
Those three counts allege that Tonawanda Coke stored, disposed and treated the coal tar sludge in a way not permitted by the federal law. And although a section of the law allows facilities to recycle the sludge back into the coal ovens, it’s only OK if the process is “done properly,” Flax said.
As has been a recurring theme in the government’s case thus far, prosecutors presented testimony suggesting Tonawanda Coke cut corners to skirt regulations, then covered it up.
During direct questioning, Flax said Tonawanda Coke violated the law by mixing the hazardous sludge back in with the coal on a surface that wasn’t “impermeable.”
When questioned about the sludge, Kamholz, prosecutors charged, misled the EPA when he wrote in a letter the mixing was completed on a clay surface, and therefore the hazardous material never touched the ground.
“At no time does the sludge contact the ground,” Kamholz wrote about the company’s production of coke, which is used to make steel. “Also there is no ground disposal of any tar sludge.”
But Flax said Thursday that Kamholz’s explanation wasn’t satisfactory.
“They have no knowledge of whether it is reaching the ground,” he said. “Contaminants can migrate.”
In response, Gregory Linsin, who is representing Tonawanda Coke, questioned Flax on his use of the word impermeable and argued the term isn’t used in the law, but is only part of Flax’s interpretation of it.
Flax also admitted during cross examination that plants can have accidental spillage of hazardous waste without violating the law — but said those incidents are not issues that the EPA takes lightly.
Sludge in and around old, deteriorating tanks installed at the foundry before Tonawanda Coke owned the plant was also brought up in questioning Thursday.
During questioning, Assistant U.S. Attorney Rocky Piaggione implied that because Tonawanda Coke attempted to “actively manage” the previous owner’s sludge near the tanks, the plant was responsible for the material, which contains a high level of a known carcinogen, benzene.
Samples of the tanks’ sludge were taken, Flax said, and 20 out of 26 of the samples recorded higher levels of benzene than the EPA’s regulatory level of .05 milligrams per liter. One of the samples recorded was nearly three times the regulatory level, and was listed as .14 milligrams per liter.
At the end of Flax’s testimony, jurors were allowed to ask questions, an unusual but likely helpful step in addressing some of the extremely technical aspects of the case.
Although the case as presented at trial is certainly dense, it largely grew out of a much simpler grassroots campaign by area residents who complained loudly for years that noxious industrial emissions were making them sick. Some 20 civil suits have been filed by individuals living near the foundry that allege the company’s environmental hazards have caused illness and serious disease. The outcome of those suits will likely be heavily impacted by jurors’ findings in the criminal proceedings.
The case, which is expected to last until the end of March, will continue Friday. So far, the prosecution has called former and current Tonawanda Coke employees, EPA officials and a state Department of Environmental Conservation engineer to testify.
Ron Snyder, a former plant superintendent who has been outspoken about the company’s environmental hazards, is scheduled to testify Friday.
Contact reporter Jessica Bagley at 693-1000, ext. 4150Contact reporter Jessica Bagley at 693-1000, ext. 4150