Tonawanda News

February 28, 2013

Tonawanda Coke trial kicks off

By Jessica Bagley
The Tonawanda News

Tonawanda News — BUFFALO — In opening arguments Wednesday prosecutors in federal court charged Tonawanda Coke purposely violated environmental law and then knowingly hid the plant’s defects during inspections.

“The notion of a good corporate citizen is one that values the community,” Assistant U.S. Attorney Aaron Mango said. “And this corporation violated environmental compliance laws to enhance the bottom line.” 

But during the defense’s opening statement, lawyers argued repeatedly that the two government regulatory agencies, the Environmental Protection Agency and the state Department of Environmental Conservation, had the deck “stacked” against the plant and purposely targeted the corporation for intense scrutiny.

“No company has a perfect environmental compliance record,” said Gregory Linsin, the lawyer representing Tonawanda Coke. “But the EPA ... decided it was going to apply a different set of rules to Tonawanda Coke.” 

The plant is located in the Town of Tonawanda and produces a coal-based additive, coke, that is used to make steel. The corporation has come under fire for years by a citizens’ group, the Clean Air Coalition, for its emissions. 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.

Many of the Clean Air Coalition’s concerns were validated after DEC air monitors installed in 2009 found levels of benzene in the air surrounding the plant 10 times greater than what the state says is safe. Tonawanda Coke representatives have steadfastly denied they’re the source, citing the dense industrial corridor’s dozens of other factories that could be contributing to the problem.

Still, residents have long complained of noxious odors and black soot covering their homes and property making them sick — and point the finger squarely at Tonawanda Coke as the source. 

A study recently completed by the state Department of Health confirmed “statistically significant” increased rates of various types of cancer among residents living near the facility, though the study’s authors cautioned they couldn’t link the cancer rates to Tonawanda Coke or any one cause.

The federal criminal trial is a result of a 19-count indictment against Tonawanda Coke and its environmental manager, Mark Kamholz, for allegedly violating two federal laws: the Clean Air Act and the Resource Conservation and Recovery Act. Mango laid out those indictments for the jury during his opening arguments.

Fifteen of the 19 counts charge the defendants with violating the Clean Air Act by improperly discharging coke oven gas with an unpermitted emission source and operating two quench towers, used for cooling down the coke, without baffles to stop large particles from floating into the air.

The 16th count charges the defendants with obstruction of justice, “relating to the defendants’ role in concealing the emission of coke oven gas from government regulators during an inspection,” the indictment said.

The four remaining counts deal with the defendants’ alleged violations of the Resource Conservation and Recovery Act, including their 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 waste.

At the center of the government’s indictment lies the plant’s pressure relief valve, or a “bleeder,” which Mango said released benzene, a known carcinogen, into the air for varying amounts of time.

“Sometimes it was just 15 or 30 seconds ... but sometimes, it was continuous,” he said.

Mango also discussed the required baffles in the quench towers at length. 

“Evidence will show that at Tonawanda Coke, neither of the quench towers had baffles,” Mango said. 

But Linsin, and Kamholz’s attorney, Rod Personius, are expected to argue that the corporation’s use of the valve and failure to install baffles were results of exemptions in the law and exceptions given by the state DEC and the EPA. 

“The allegations in this indictment are riddled with inconsistencies,” Linsin said. “They were approved either expressly or implicitly by the DEC.” 

After the opening statements, the prosecution called its first expert witness, Alfred Carlacci, a Regional Air Pollution Control Engineer for the DEC who performed inspections at Tonawanda Coke and many other local plants. 

Carlacci is serving as an expert on the Clean Air Act for the prosecution, and Mango began questioning him Wednesday afternoon amid numerous objections from the defense team, heard by Judge William Skretny.

During direct examination, Mango entered a number of documents into evidence, including photographs of the plant, letters from Kamholz and Tonawanda Coke founder and CEO J.D. Crane to the DEC, and letters from the DEC to the corporation. 

In one of the letters, Kamholz and Crane asked the DEC if they could refrain from installing a baffle in one of the quench towers, which they said was only used on an emergency basis — or about 10 percent of the time. 

The DEC cautiously agreed. 

“If at a future time, any of the justifications are no longer valid, compliance ... may be required,” the DEC wrote back. 

Mango is likely to argue the tower was being used much more frequently, and therefore the plant should have voluntarily reported the changes to the DEC and installed the baffles.

Direct and cross examination of Carlacci, as well as Tonawanda Coke employees who will serve as witnesses, will continue today. Attorneys said the trial is expected to last between three and four weeks.

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

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