Niagara Gazette

April 17, 2014

Tonawanda Coke appeals conviction and sentence

By Jessica Bagley
Niagara Gazette

Niagara Gazette — Tonawanda Coke, the River Road plant that was found guilty of violating two federal environmental crimes, has filed a notice of appeal, a document filed with the U.S. District Court of Western New York indicates. 

The appeal, which was filed April 9, states that the plant appeals both its conviction and sentence. The U.S. Court of Appeals for the Second Circuit, which is based in New York City, will now handle the case. 

“We will now be given an opportunity to respond, and ultimately file briefs,” U.S. Attorney William J. Hochul Jr. said Wednesday. “This is a very frequent occurrence. Whenever there is a conviction, the defendant files an appeal ... in my 27 years of being a prosecutor, I can’t think of a case that didn’t involve an appeal. It’s very routine.” 

Last year, a jury found the coke-burning plant guilty of violating the Clean Air Act and the Resource Conservation and Recovery Act for releasing cancer-causing toxins into the air and dumping hazardous material on the ground. In March, Chief U.S. District Judge William M. Skretny sentenced the plant to pay $12.5 million, and ordered it to fund $12.2 million in community service projects. 

The plant’s environmental manager, Mark Kamholz, was also a defendant in the case. He was found guilty of violating the Clean Air Act, Resource Recovery and Conservation Act, as well as obstructing justice. Kamholz was sentenced to one year in prison and ordered to pay $20,000 in fines. He has not filed an appeal. 

After a panel of three Second Circuit judges set a schedule for the process, Tonawanda Coke’s attorney, Gregory Linsin, will file a brief, and the U.S. Attorney’s Office will file an argument in response.

Attorneys on both sides will then present their arguments in person before the judges, and three-judge panel will issue a decision. 

“There’s no way of knowing exactly how long it will take,” Hochul said. “Once the oral argument is completed, it’s up to the judges on how long they need to render the decision on the issues.”

The plant’s payment of the fines and community service funds should not be affected by the appeal. 

“Our preliminary indication is that the payments are still due,” Hochul said. “It will not delay the fine payments or the community service projects ordered by the court.” 

The community service projects include an $11.4 million health study and a $700,000 soil study. Residents, environmental activists and local politicians pushed for a portion of the fine money to go back to residents, and Skretny granted those requests when he ordered the plant to fund the projects over the course of five years. 

The appeal marks another step in a lengthy fight against the plant. Ten years ago, residents began organizing after years of experiencing acrid smells, soot on their homes and unusual illnesses. 

Locals publicly campaigned for air monitoring to determine the cause and nature of the pollution problem. State and federal regulators responded and found benzene, a known carcinogen and byproduct of the coke-making process, at levels 10 times higher than what’s considered safe in the air around the plant.

Their years of work eventually led to a federal indictment, 30-day trial and the guilty verdicts.