Tonawanda Coke states case in federal court to stay open

Sep 14, 2018

Attorneys from the US Government and Tonawanda Coke Corporation were in federal court Friday, questioning witnesses as the latter argues to stay open, despite numerous recent environmental citations.


Tonawanda Coke was tried in 2013 and found guilty of multiple counts of violating the Clean Air Act. The company was fined millions of dollars and invested several million to fund a study on the environmental impact of its discharges.

Reenaparna Dutta and other members of Tonawanda Coke's legal team leave the federal courthouse in downtown Buffalo Friday, after arguing their case for preventing a shutdown of the facility in light of several recent violations.
Credit Michael Mroziak, WBFO

Since the start of this year, the company has faced several complaints about continued violations in relation to the discharges from its waste heat stack. Tonawanda Coke's team of attorneys, including Reetuparna Dutta, acknowledged there's an opacity problem but they say it's a temporary matter that the company is addressing.

"The company takes opacity very seriously and is aggressively working hard to address it. But the evidence today shows that opacity is not showing harm to the community," Dutta said outside the courtroom.

Of the four witnessed called to testify by the goverment, two were from the New York State Department of Environmental Conservation. Lester Weinheimer, an environmental engineering technician and an employee of the DEC for about 40 years, testified about numerous visual observations of discharges from Tonawanda Coke's stack. 

An acceptable level of opacity, it was stated, is around 20 percent but Weinheimer testified of occasions when the opacity exceeded 40 percent, 50 percent and even 60 percent at times. He conceded in cross-examination, meanwhile, that visual observations of opacity do not determine the contents of the discharge.

The company admits having higher-than-acceptable opacity and blames it on a waste heat tunnel collapse earlier this year. Richard Westbrook, president of Westbrook Thermal Technology, was the first witness to testify for Tonawanda Coke. Westbrook, whose company provide coke technology and consultation to iron and steel industries, said the tunnel collapse has adversely affected combustion within the battery, or series of ovens, on the grounds. He testified a plan is in place to fix the problem and he told US District Judge William Skretny that if the company is able to follow the plan, it could be back in opacity compliance by mid October.

"Where was this back in 2001? Where was this back in 2013?" said Rebecca Newberry, executive director of the Clean Air Coalition. "Where was the aggressiveness given the egrigious situation at that company? It sounded like the attorneys for the company wanted to say they are taking this seriously but we agree with the US government. In order to get this company to move, in order to get this company to make changes to this plant, it requires a large amount of government enforcement, a tremendous amount of taxpayer resources and we're tired of it."

Another witness from the DEC, Michael Emery, testified about air samples taken from several points on the company site. One of the samples measured benzene at a level of 97.2 parts per million. However, he stated in cross-examination that the sample featuring that level of benzene did not come from the stack. The benzene level measured from the stack sample was 2.25 parts per million. 

Dr. Allen Dittenhoefer, of New Jersey-based Montrose Air Quality Services, testfied on behalf of the defendant that while opacity levels are higher in the stack's discharge, there is no correlating elevation of hazardous checmical discharge. He testified there are a "myriad" of benzene sources in the region and past studies indicate only about six percent of the benzene affecting the nearby Brookside Terrace neighborhood can be linked to Tonawanda Coke.

Three witnesses - two for the government and one for Tonawanda Coke - never made it to the witness stand. Judge Skretny had hoped for the government to present its witnesses and wrap up by the first half of the day, while Tonawanda Coke would get the afternoon to state its case. The government continued beyond noon and Tonawanda Coke didn't make its opening statement until court returned to session about 2:15 p.m.

In lieu of testimony by the witnesses not called to the stand, Skretny ordered affidavits be submitted by 8:30 a.m. Monday morning. He scheduled a meeting with attorneys for Monday afternoon.

"I think the judge is setting a schedule that is based on the importance of what's happening," Newberry said. "This company is a company with a long track record of criminal and civil violations, a long track record of worker safety and health issues and I think he's taking that seriously."