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Appeals judges to meet on Tonawanda Coke

A panel of federal judges will gather in a Lower Manhattan courtroom Wednesday to begin the process of, once and for all, deciding the punishment for Tonawanda Coke Corp.

At stake is a 10-year, $11 million study into the health of Tonawanda and Grand Island residents, an evaluation that many people hope will determine the impact on those exposed to the company’s toxic emissions and hazardous waste.

The study, viewed by supporters as a potential landmark public health study, is at the core of Tonawanda Coke’s appeal of its criminal conviction and sentencing. The company is also appealing a $12.5 million fine.

“There’s a lot at stake,” said Jackie James-Creedon, head of Citizen Science Community Resources, a Tonawanda citizens group. “But the truth is the truth.”

Even now, more than two years after a jury found Tonawanda Coke guilty of 14 felony charges, there remains a large and looming question: Did the company’s manufacturing operations cause people to get sick?

Public health researchers at the University at Buffalo say the “Tonawanda Health Study” approved by U.S. District Judge William M. Skretny would go a long way toward answering that question. The UB study would track the health of 38,000 residents, as well as current and former Tonawanda Coke employees.

A second study by UB, this one a soil investigation, would look at the environment in and around the company’s plant on River Road in the Town of Tonawanda with an eye toward determining whether ground contamination levels are high enough to pose a health risk.

Both studies are on hold while Tonawanda Coke appeals its sentence. The company continues to set aside money for the research.

“Tonawanda Coke, like any other defendant who feels errors were made by the court, has the right to appeal,” said Kevin M. Kearney, the Buffalo attorney arguing the company’s appeal. “And that’s what we’re doing.”

Kearney will tell the judges from the U.S. 2nd Circuit Court of Appeals that the studies represent a kind of “creative sentencing” by the lower court and should be rejected because they lack any connection to Tonawanda Coke’s offenses.

He will also argue that the district court sentence puts Tonawanda Coke in the “improper” position of funding studies that could ultimately hurt the company in future civil suits over its emissions and hazardous waste.

“In what civil case would a court direct a defendant to finance the plaintiff’s expert witnesses to assist the plaintiffs in proving causation?” Kearney said in a earlier court brief.

In that same brief, Kearney argued that the studies are designed to address “harm” that the company caused even though the lower court expressed a desire to avoid making findings as to damages or harm.

He also referred to the lower court’s reference at sentencing to residents “living with the fear of the unknown” and suggested that it was an ill-defined psychological harm.

“The fear identified by the district court is wholly unsupported, as is the assumption that the results of any evaluative study will alleviate that fear and repair the harm,” Kearney said in his court papers.

Tonawanda Coke is also appealing several of its convictions related to the handling and storage of hazardous waste.

In the eyes of prosecutors, Tonawanda Coke’s criminal conduct was so egregious that it deserved a sufficiently severe punishment. Skretny agreed and ordered the company to pay more than $24 million for actions he described as “singularly inexcusable.”

The judge also made it clear that the company’s financing of the UB studies is an appropriate penalty.

“The immediate long-term effects of this contamination are not easily discovered or quantified,” Skretny said, “but what is apparent, what is palpable, is that this community has suffered in the form of unexplained medical conditions, unwanted property contamination and unknown future effects.”

The sentencing followed a four-week trial that ended with a jury finding Tonawanda Coke guilty on 14 criminal charges. Mark L. Kamholz, the company’s retired environmental controls manager, was found guilty on 15 charges.

The verdict followed testimony by more than 30 witnesses, many of them former and current Tonawanda Coke employees, who testified about toxic emissions and the improper handling of hazardous waste. The testimony included accounts of a little-known pressure-release valve that spewed coke oven gas with benzene into the air.

Prosecutors also accused the company of using “quenching” or cooling towers that lacked necessary anti-pollution equipment and of illegally disposing of coal tar sludge, one of the byproducts of its coking operation.

In the end, the jury found the company guilty of all but a handful of charges.

In their briefs to the appeals court, prosecutors argued that Skretny’s sentence was, at its roots, probation and community service.

“The court acted well within its ‘wide latitude’ and exercised sound discretion in ordering (Tonawanda Coke) to fund those studies as a condition of probation,” prosecutors said in their court papers.

They also dismissed Tonawanda Coke’s concerns about the studies’ potential prejudicial impact on civil suits filed against the company

“If the completed studies should find a causal link between TCC’s environmental offenses and the harm alleged by the state-court civil plaintiffs, the state court would be the proper forum to address such issues as the admissibility of the studies,” they said.

James-Creedon, who is involved in one of the UB studies, is hoping the appeals court agrees and reaffirms Skretny’s sentence.

“The judge thought there was harm to the community and that these studies were necessary,” she said.

The panel of judges in Manhattan will decide whether her hope is well-placed.

email: pfairbanks@buffnews.com