Tonawanda News

March 29, 2013

Thursday's verdict years in the making for citizen activists

By Jessica Bagley
The Tonawanda News

TOWN OF TONAWANDA — Neighbors in those first small living room gatherings, wondering aloud about what was causing those foul odors, could never have imagined it leading to this.

Those first members could never have known their small group of committed citizens could change so much. 

But they did.

"We finally feel that our work for the past five to 10 years has been worth it," Clean Air Coalition Director Erin Heaney said. 

That work culminated Thursday in a stunning victory for the little guys when a jury convicted Tonawanda Coke and its environmental manager on nearly all of the 19 counts against them in federal court.

They set out to prove the air they were breathing was dangerously polluted — and that one local business was to blame. Pressing forward day after day, year after year, they made their case.

Here's how they did it.

The early days

Slowly but surely, the number of concerned residents began to swell. In 2005, activist leader Jackie James-Creedon officially founded the Clean Air Coalition. 

The coalition's work quickly became focused on Tonawanda Coke, a facility that's been open since 1917 and operated by the current owner, J.D. Crane, since 1978. Through the coalition, residents lobbied the state Department of Environmental Conservation, and informed them of their concerns about the town's air quality.

The DEC responded to the campaign by installing air quality monitors in July 2007, and as the agency was collecting its data, written complaints about health issues — residents reporting burning sensations in their eyes and throats among other health problems — began flooding into the DEC.

It was the first acknowledgment by state regulators that something might be amiss and the data collected could once and for all settle the debate. Were those odors truly harmful or just a nuisance that many wrote off as a trade-off for job-providing industries operating in the town?

Fuel to the fire

A year after the air monitors were installed, in July of 2008, a grassfire ignited a deteriorating tank of hazardous waste — both literally and figuratively adding fuel to the fire. 

It left residents with another very public piece of evidence that something behind those grassy berms, up the winding road from a tiny guard shack to the heart of a facility hidden from view, could be seriously wrong.

But the events surrounding the heart of the case that would come to pass against Tonawanda Coke Environmental Manager Mark Kamholz didn't occur until months after the air monitors were already recording data that would shock even the plant's biggest critics.

On Friday, April 10, 2009, Kamholz completed a walkthrough of the plant to check on its conditions in advance of an Environmental Protection Agency compliance inspection, and discussed a Clean Air Act violation with an employee. 

According to witness testimony, Kamholz pointed to an unpermitted pressure relief valve and said, "We can't have that going off while they're here." 

That statement and his attempt to influence the EPA's inspection, which occurred the following week, ultimately led to the obstruction of justice conviction — which carries a maximum sentence of 20 years in federal prison. 

Numbers are in

The situation grew even worse for Tonawanda Coke when the DEC's air monitoring study was released in June 2009. The study indicated the levels of the carcinogen benzene surrounding the facility were off the charts.

"Higher daily concentrations of benzene were found when the wind came from the direction of the largest known point source of benzene, the Tonawanda Coke Corporation," the report states. 

That's the technical language. What the monitors found in layman's terms was a quantity of benzene in the area 10 times higher than what's considered safe — and it pointed to Tonawanda Coke as the single largest source.

Just months after the negative publicity in October 2009, Crane granted his only interview and tour of the plant to former Tonawanda News reporter Daniel Pye. In that interview, and in an exhaustive two-day series, Crane said he had worked to reduce emissions at the plant, and didn't believe his company posed a significant health risk.

"I've been around coke plants all my life," he said. "I have 125 people here who all work 40 hours a week and hardly any of them fall over. We're all at least as healthy as any average person out there."

He pointed to traffic back-ups at the south Grand Island bridges and the dozens of other businesses in the area as contributing to the problem.

Two months later on Dec. 17, 2009, federal agents raided the plant in execution of a criminal search warrant. They seized 36 boxes of documents and took photos of the plant's conditions, many of which were entered as proof of the violations in the federal trial. 

Weeks after the criminal search warrant, Kamholz was arrested, and in July 2010, the grand jury delivered an indictment charging Kamholz and the plant with 20 federal crimes — one of which dropped prior to the trial's start. 

Health study foreshadows trial outcome

The plant later signed a consent order with the EPA agreeing to make a series of changes at the plant in order to reduce benzene emissions, and by the fall of 2011, the DEC released a report indicating that benzene in the air had been reduced by 86 percent.

Many organizers declared victory, but didn't stop campaigning against the plant. Their worries were further vindicated in February when a state Department of Health study was released indicating statistically significant elevated rates of cancer among residents living in the industrial corridor. And although the DOH couldn't clearly identify a source for the problems, many continued to blame Tonawanda Coke. 

Just two weeks later on Feb. 27, the long-winded federal criminal began, and after a month of testimony, the jury returned its verdict Thursday. 

The fate of the plant has yet to be determined — but the sentencing, scheduled for July 15, will likely offer some indication of what will happen to the River Road facility. If anything approaching the $200 million in possible fines come to pass it would almost certainly lead to the plant's closure.

Despite Thursday's landmark victory after nearly 10 years of work, organizers say the fight is still not over. A slew of civil cases are still pending and remedies for many residents have yet to be won. 

"The criminal case is behind us, but there's still more work to be done," Heaney said. "There's still more to this story."



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