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Court rejects Tonawanda Coke’s appeal in civil case

Tonawanda Coke’s efforts to have a class action civil case against it dismissed have been rejected by a state appellate court, allowing the lawsuit to move ahead at the same time that a panel of federal judges is reviewing exactly what the company’s punishment should be for its criminal conviction.

The company had appealed State Supreme Court Justice Paula L. Feroleto’s January 2015 order that allowed the class action lawsuit to move ahead. Her ordered was affirmed by the state Appellate Division, Fourth Judicial Department.

The class action lawsuit, filed by Mary DeLuca as class representative for the neighbors of the plant, is seeking damages on two fronts: for the loss in property values and for loss of quality of life, both caused by Tonawanda Coke’s “negligent release of chemicals into the atmosphere.”

In March 2013, a federal jury found the Town of Tonawanda company and one of its executives guilty on 14 criminal charges of polluting the air from its River Road plant. The civil lawsuit names as defendants the company, convicted environmental controls manager Mark L. Kamholz and the estate of the company’s longtime owner, J.D. Crane, who died in 2014.

In appealing the validity of the class action suit, the company argued that the deadline for filing the lawsuit should not have been extended. The appellate judges responded that the plaintiffs showed good cause for the extension “by submitting evidence that further discovery was needed” and also noted that the defendants themselves had asked to delay discovery until the criminal proceedings were complete.

The panel also said that, although individual members of the class action might have sustained differing amounts of damages from the pollution, the commonality of their claims was sufficient to allow the lawsuit to move forward, since all arose “out of the same course of conduct and are based on the same theories as the other class members.”

Meanwhile, in the criminal case, the company is appealing the $12.5 million fine levied against it and a federal order that it fund a 10-year, $11 million study into the health of Tonawanda and Grand Island residents who may have been exposed to chemicals from the plant. The study would help determine the impact on those exposed to the company’s toxic emissions and hazardous waste and is at the core of Tonawanda Coke’s appeal of its criminal conviction and sentencing. It would be conducted by public health researchers at the University at Buffalo, who would track the health of 38,000 residents, as well as current and former Tonawanda Coke employees.