Federal prosecutors are misleading the public about emissions at Tonawanda Coke in an effort to stir up opposition, lawyers for the company said Wednesday.
The company's criticism of the government is at the heart of a new report that also recommends a third-party monitor be hired to oversee the River Road plant.
In the report, Tonawanda Coke urges U.S. District Judge William M. Skretny to keep the plant open despite the prosecution's demands for a shutdown.
Skretny, who received recommendations from the government earlier in the week, is expected to decide the company's fate on Friday.
"The government continues to rely on sweepingly broad statements that stoke fears of an unidentified 'risk of harm' to incite the public against the company," Jeffrey Stravino, a lawyer for the company, said in court papers.
Stravino said the prosecution has failed to provide any evidence of a health risk and instead has relied on experts who claim there's a "potential" for adverse health effects.
He also outlined efforts by Tonawanda Coke to work with the government and suggested those efforts have been ignored.
"The government has been unwilling to move from its position that Tonawanda Coke must shut down," Stravino told the court.
The company's court filing also includes a petition signed by Tonawanda Coke workers, many of whom live in the town, who support keeping the company open. The company employs between 75 and 100 workers.
Skretny — in contrast to citizen activists and elected officials who have called for a shutdown of the plant — has indicated he wants to hear alternatives to a plant closing.
The government, in its report to Skretny written by federal prosecutors, described Tonawanda Coke as a "rogue environmental actor" and suggested the judge shut down the company until it complies with the federal Clean Air Act.
Prosecutors also want Skretny to appoint an independent monitor who would watch over Tonawanda Coke's environmental compliance.
Tonawanda Coke's recommendations to Skretny came just two days after he found the company guilty of violating its probation.
Skretny's ruling was based on an allegation that the company was violating a 2014 federal court sentence by spewing new dangerous emissions into the environment.
Prosecutors say the company's emissions are resulting in more and more benzene — a carcinogen — entering the environment.
The company says the allegations of a health risk are unfounded.
Skretny, who is overseeing the case, ordered a hearing after federal probation officials pointed to the new emissions and alleged that the company was in violation of its probation.
"The probation department was very confident in the information it had obtained from the Environmental Protection Agency and later investigated," said Anthony San Giacomo, chief U.S. probation officer in Buffalo.
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.
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 "hot 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.
On Wednesday, the Town of Tonawanda company questioned the wisdom of the hot idle process and indicated it would cost $3.2 million to fuel the ovens with natural gas while they are repaired.
"During hot idle, the facility would not produce any saleable product and would therefore have no revenue," Stravino told Skretny.
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.