People who think they’re a victim of Tonawanda Coke’s environmental crimes will get their day in court – but not this week.
A federal judge has rejected a request that Grand Island and Town of Tonawanda residents be allowed to seek restitution as part of his sentencing of the company on Wednesday.
Chief U.S. District Judge William M. Skretny said individuals who believe they are victims have several other legal avenues at their disposal.
He pointed to the 20 or so lawsuits, including an uncertified class-action suit, currently pending against Tonawanda Coke in state court.
“I’m disappointed with Judge Skretny’s decision,” said Jackie James-Creedon of Citizen Science Community Resources, a Tonawanda group. “But as he pointed out, we’ll have our day in court.”
The judge’s ruling on victims is part of a major decision that came just days before an even bigger decision – his sentencing of Tonawanda Coke and environmental controls manager, Mark L. Kamholz.
Federal prosecutors argued initially that the community as a whole was the victim but then reversed themselves and said the victims are anyone who was forced to breathe the “benzene-contaminated air illegally and deliberately released by the defendants.”
Skretny made it clear that while he is closing the door to individual victim compensation as part of his sentencing, there are other legal options for victims seeking compensation from Tonawanda Coke.
“This certainly won’t be the end,” Erin Heaney of the Clean Air Coalition said of the victim lawsuits still pending in state court.
Lawyers for both sides declined to comment Monday, but it was clear they viewed the judge’s ruling as a mixed bag.
For the first time, Skretny signaled that he is likely to include at least one community service project in his sentencing of the company.
“That gives me hope that some of the community projects will be funded,” said Heaney.
The judge stopped short of mentioning any project by name, but there are two community service projects that prosecutors have endorsed in their recommendations to Skretny.
Of the $57 million in fines they think should be levied by the judge, they want $11 million spent on a University at Buffalo study of toxic emissions from Tonawanda Coke and their impact on people’s health.
The UB study would monitor residents in the Town of Tonawanda and Grand Island for a period of time in an effort to document the public health impact of the company’s criminal activity.
In their report to Skretny, prosecutors also suggested $711,000 be set aside for a comprehensive air and soil investigation of particulate material from Tonawanda Coke’s foundry emissions.
The study would focus on neighborhoods immediately surrounding the River Road plant. Residents claim previous studies have been inconclusive.
At several points in the order, Skretny is asked to address the seriousness of Tonawanda Coke’s criminal conduct.
He notes that even when the emissions or discharges were minimal, the “prolonged nature of the violations” warrant a finding of severity.
James-Creedon said she was especially pleased that Skretny credited the Tonawanda community with uncovering the problems at Tonawanda Coke.
In his ruling, the judge takes note of the case’s importance to the Tonawanda and Grand Island communities and their role in answering questions about the “black soot” they would regularly find on their property and “the number of neighbors that were being diagnosed with various forms of cancer.”
“Wow, because of the work we did,” said James-Creedon. “It’s really something to hear the courts recognize that. It just really hits home.”
While Skretny insisted that Tonawanda Coke’s criminal conduct was severe, he also reduced the likely prison sentence for Kamholz, the only individual defendant in the case, to no more than 41 months.
In reducing the sentencing range, Skretny questioned a number of the sentencing enhancements being sought by the government.