Niagara Gazette

March 31, 2013

Tonawanda Coke plant suits to take a civil turn

By Neale Gulley
Niagara Gazette

Niagara Gazette — With news of Thursday’s landmark verdict against Tonawanda Coke Corp. still sinking in, questions remain as to what will happen regarding multiple civil lawsuits against the company.

The charges carry a maximum combined penalty up to 75 years in prison for the plant’s environmental control officer Mark Kamholz, and fines in excess of $200 million, all of which might be altered at sentencing July 15. 

Jackie James-Creedon, founder of the Clean Air Coalition and who now conducts air and soil testing in the town, is currently helping to oversee a one such civil case naming some 200 residents in the vicinity of the plant. Other, similar cases are also pending.

Attorney Richard Abbott, a lawyer practicing in the Town of Tonawanda but who has no connection to the case, said the burden of proof in such civil cases is less than in criminal cases like the one concluded this week. Subsequent civil cases require only a preponderance of evidence as opposed to reasonable doubt.

In other words, in addition to the potential weight the recent criminal verdict may have on pending civil cases, jurors must only agree that evidence in civil trials proves the company “more likely than not” is guilty.

”There probably are certain findings in federal court that may be binding against Tonawanda Coke in the civil cases. I would think the civil plaintiff’s lawyers would be ecstatic with this,” he said of Thursday’s verdict.

However, Abbott, in offering a purely general impression of the proceedings, said issues of causation and other elements are open to argument.

”To prove that someone got cancer, for example, because they live in an area with extremely high levels of benzene will still have to be litigated,” he said.

While the money will be collected by the government, little is yet known about what exactly will be done with the fines, in whatever amount, or if they will be paid out and to whom.

North Tonawanda City Attorney Shawn Nickerson, called for his general impression of the verdict, acknowledged the presence of certain victims’ funds and the like, but stopped short of suggesting one exists in the matter.

He said he believes the verdict, if upheld on appeal, might mean pending civil cases are settled more often than not, possibly avoiding lengthy trials. 

Erin Heaney, of the Clean Air Coalition, said she’d like the money to go toward maintaining air monitoring stations near the town’s industrial corridor. 

”We hope that that money will stay local, and that how the money is spent will be decided by the community ... the community is how this started, and we think the community should decide how this money is spent. We think its really important,” she said.

“Protecting the health and safety of our residents is one of the most paramount responsibilities of this office,” U.S. Attorney Hochul said in a statement Thursday. “Citizens of this community are entitled to breathe clean air and drink clean water. From the evidence of this case, where literally hundreds of tons of coke oven gas containing benzene was released into the atmosphere and significant quantities of hazardous waste containing benzene were left out in the open, it would be hard to imagine a more callous disregard for the health and well being of the citizens of this community. Considering the nominal costs required to install safety devices and other equipment that would have alleviated these toxic hazards, the conduct was especially egregious.”