Tonawanda Coke probation expanded, remains open following federal sentence

Sep 21, 2018

While stating during his sentencing that Tonawanda Coke has continued to operate with a culture putting profits over public conscience, U.S. District Judge William Skretny did not order the shutdown of the company, saying government attorneys failed to prove that increased opacity in stack discharges elevated the level of harmful contaminants in the air.

Skretny on Monday found Tonawanda Coke guilty of violating conditions of its probation but stated at the beginning of Friday's proceedings that he would impose a sentence that is "sufficient but not greater than necessary." He added, as he imposed the sentence, that while more widespread violations by the company were discussed during last week's legal hearings, his legal task was more narrow in scope, focusing specifically on the opacity of discharges.

The stacks of Tonawanda Coke, as seen earlier this year from River Road in Tonawanda.
Credit WBFO file photo

He nonetheless offered a stern warning to Tonawanda Coke executive Michael Durkin, urging the company to fix its battery, or series of coke ovens, properly. If future testing reveals unacceptable levels of pollutants, he warned, they'll be back before him and, as Skretny told Durkin, "this is the last place you'll want to be."

Skretny sentenced the company to a modified, enlarged probation with new conditions including an ordered, mutually-agreed-upon third party inspector and new testing following the completion of repairs to its battery, which according to testimony last week is expected to be completed in mid October.

"On behalf of the company, we accept responsibility for the opacity issues at the facility. We respect the court's decision and we very much appreciate the amount of time the court has devoted to this case," said Reetuparna Dutta, one of several attorneys making up Tonawanda Coke's legal team. "We also respect the citizens who have been here every single day, and we hope to work with them in the future for the best interest of this community."

Tonawanda Coke was convicted in 2013 and sentenced in 2014 for more than a dozen environmental violations. The company was fined millions of dollars and one of its executives at the time, environmental compliance manager Mark Kamholz, was sentenced to a year in jail. The company has been cited numerous times for violations, as mentioned by Skretny prior to sentencing. 

In the courtroom, federal prosecutor Aaron Mango likened Tonawanda Coke's repeated violations to "an environmental ponzi scheme," in which they are caught time and time again, promise to fix problems but simply continue under business as usual.

Outside the courtroom, Durkin deferred to Dutta for comments on behalf of the company but did offer a brief remark vowing to keep Tonawanda Coke in compliance with environmental regulations.

"We're very committed to correcting the opacity issues as quickly as we can," he said. 

US Attorney James P. Kennedy says government officials will continue the monitor with vigilance the discharges from Tonawanda Coke's stacks. He acknowledged the judge wanted more information about what specifically was in the smoke billowing from the stack but, in his words, "they weren't baking cookies." 

"The production of coke and coke oven gas contains numerous carcinogens, neurological contaminants and other chemicals which can cause harm to humans," Kennedy said. "While we're disappointed, we'll abide by the court's sentencing. We're going to remain vigilant with our partners to monitor and continue to monitor, as we have, the operations at Tonawanda Coke.

Numerous neighbors, community activists and elected officials were in attendance and also expressed their own disappointment following sentencing.

"We are angry. We are mourning. We are grieving," said Rebecca Newberry, director of the Clean Air Coalition. "Throughout the sentencing, the judge referenced a culture and how Tonawanda Coke puts a culture of profit over environmental compliance. What we witnessed today was a continuation of allowing a culture of putting profit over environmental compliance and people."

Tonawanda Coke faces an October 10 hearing with the New York State Department of Environmental Conservation. Earlier this year the state ordered the revocation of Tonawanda Coke's air permits, in a move to shut down its facilities. Tonawanda Coke is appealing that order.

Jackie James Creedon, director of Citizen Science Community Resource Center, is among those hopeful that the state hearing will achieve what this federal hearing did not: present further evidence of the company's impact on the local community and the health of local residents.

"We as a community see that black, sooty smoke billowing out of those stacks every single day," she said. "Maybe we don't have the data as evidence but we know one thing for sure, it's causing our community harm."

She and others encouraged residents to post photos online, not just of the stacks but of any soot falling on their houses, children's toys or other properties.

The company insists it is not causing the environmental threat that opponents accuse them of creating, pointing in court to a New York State Department of Health study which concluded it couldn't necessarily trace detections of benzene directly to the company.

"We presented evidence indicating that we do not believe that there is significant hazardous air pollutants coming out of the heat stacks," Dutta said. "But as you heard the court say, there's going to be a battey stack test and that will happen shortly."