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Prosecutors want Tonawanda Coke temporarily shut down

If federal prosecutors have their way, Tonawanda Coke will shutter its doors until it complies with clean air standards.

They also want the company to pay for a court-appointed monitor to keep tabs on its compliance with environmental laws and regulations.

The government's recommendations for punishing Tonawanda Coke, released on Tuesday, are the latest step in a weeklong process that may ultimately decide its fate.

U.S. District Judge William M. Skretny, the judge overseeing the case, is expected to sentence the company on Friday.

On Wednesday, in the next step of the process, lawyers for Tonawanda Coke will get their chance to make recommendations to the judge.

In court papers recommending the company temporarily shut down, the government described it as a "rogue environmental actor" with no regard for the law.

"Each day that the court allows Tonawanda Coke to continue its coke-making operations is another day that Tonawanda Coke is allowed to violate the law and effectively to disregard the authority of this court," the government said in its report to Skretny.

Hanging over the proceedings is the very public demand by citizen activists and elected officials for a shutdown of the River Road plant. In contrast, the judge has indicated he wants to hear alternatives to a plant closing.

In their filing, prosecutors Aaron J. Mango and Patrick Duggan provided Skretny with a range of sentencing options, including a judicial finding that the company cannot operate within the confines of the law and is therefore operated "primarily by criminal means."

They also suggested the judge bar the company from coke making until it can comply with the Clean Air Act.

Skeptical of the company's intentions, the government also asked Skretny to appoint an independent monitor who would watch over Tonawanda Coke's environmental compliance.

The government's recommendations to Skretny came just a day after he found Tonawanda Coke guilty of violating its probation.

"One would have hoped that after being convicted and sentenced for serious environmental crimes, Tonawanda Coke would have strived for faithful compliance," the prosecutors said in court papers. "However, as history has already exhibited, Tonawanda Coke had no intent to comply with the law."

The judge, in announcing his decision, said the company is clearly violating the federal Clean Air Act. He also suggested it take aggressive steps to reduce emissions.

As part of his ruling Monday, Skretny gave the government until 5 p.m. Tuesday to file court papers outlining its sentencing options. Tonawanda Coke will file its papers Wednesday.

While detailing his ruling, Skretny made it clear Monday that he wants to hear alternatives to shutting down Tonawanda Coke and, at one point, referred to a recommendation from a federal Environmental Protection Agency official.

He said the EPA official suggested a process that would allow the company to idle its coke ovens in order to make repairs. He said the process involved heating the ovens with natural gas, not coke oven gas, a process that would eliminate the risks of pollution.

In the past, company officials have argued that a shutdown, even a temporary one, would cause Tonawanda Coke to close for good. Shutting down the plant, they said, would cause coke oven walls to deteriorate rapidly and make repairs economically unrealistic.

Skretny's sentence on Friday will be the culmination of a process that began with an allegation from federal probation officials that the company was violating its 2014 sentence by spewing new dangerous emissions into the environment.

Prosecutors say the emissions are sending more and more benzene and other dangerous pollutants into the environment. The company says the allegations of a health risk are unfounded.

Skretny, who is overseeing the case, ordered the hearing after federal probation officials pointed to the new emissions and alleged that the company was in violation of its probation.

Convicted by a jury of violating the Clean Air Act in 2013, the company was fined $25 million and ordered not to violate any more local, state or federal laws.

Early on in the hearing process, two state Department of Environmental Conservation officials testified about increased opacity rates at the company, including a four-day period last month when they were as high as 66 percent – more than three times the 20 percent threshold set by the federal Clean Air Act.

Opacity is defined as the percentage of background that can be obscured by a smokestack plume.

Tonawanda Coke's lawyers countered by suggesting the government is exaggerating the environmental effect of the company's emissions.

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