Pollution trial of New York coke producer heads to jury
Date: 28-Mar-13
Country: USA
Author: Neale Gulley
Jury deliberations were set to begin on Thursday in the federal trial of Tonawanda Coke Corp, which has been charged with fouling the air for years, and whose environmental manager is accused of hiding plant deficiencies from U.S. regulators.
Chief U.S. District Judge William Skretny issued instructions to the jury for several hours on Wednesday and told the panel to begin deliberations on Thursday morning.
The western New York company faces a 19-count indictment that
lists numerous violations of the federal Clean Air Act, the Resource
Conservation and Recovery Act and obstruction of justice for an
alleged cover up of emissions prior to a 2009 investigation by the
Environmental Protection Agency. If found guilty, the company faces
fines for each count.
The company, which has operated for 30 years in the Buffalo suburb of Tonawanda, produces a coal-based additive called coke that is used to make steel.
Prosecutors said the company's air permit application did not mention a pressure relief valve emitting noxious coke oven gas. Other violations of federal law, they said, include the failure to install required emission control devices called baffles.
"Time and again, the defendants chose to deceive, not comply, all in an attempt to put profit above all else," Assistant U.S. Attorney Aaron Mango said in closing arguments on Tuesday.
"Money drove this business into deception," he added.
The cost of installing baffles was estimated at $125,000, prosecutors said. However, defense attorneys said that sum would not have made compliance cost-prohibitive had the plant been aware that baffles were an issue.
"This is not a substantial cost that reasonably and rationally would drive criminal acts," defense attorney Gregory Linsin said during his closing argument.
Instead, Linsin took aim at the New York State Department of Environmental Conservation, which he said had granted the plant an exception to the baffles in one area of the plant. While the agency knew the devices were not installed elsewhere as required, he said, it failed to enforce the issue.
Of the relief valve, Linsin said the apparatus was in a "clear and obvious location" and that DEC inspectors were well aware of it for decades.
Linsin said DEC officials failed to take action even though they had granted exceptions and knew of other violations.
"The conduct that is the subject of this indictment was known, at least tacitly if not explicitly, to the DEC for years," he said.
Linsin accused DEC officials of entrapment - the company's primary defense - saying they led plant managers to believe the facility was in compliance. The state officials, he said, allowed problems to linger for years before EPA investigators conducted their own review in 2009.
Linsin said the plant passed inspections for a long time and worked hard to comply with state and federal regulations.
"The only thing that changed, ladies and gentlemen, in 2009, was a new sheriff came to Tonawanda Coke in the form of the EPA," he said.
The surprise weeklong investigation by the state and EPA led to the indictment.
Previously, nearby residents had formed a coalition because they were concerned about high cancer rates in the area.
A state Department of Health study released this year found "statistically significant elevations" of cancer and birth defects among Tonawanda residents. But health officials say the study does not prove local industry caused the health problems.
Mark Kamholz, the environmental manager named in the indictment, could face prison if convicted of the lone obstruction charge against him.
Prosecutors accuse Kamholz of using "his position of control to manipulate and deceive investigators from identifying areas of non-compliance."
(Editing by Barbara Goldberg, Lisa Von Ahn and Ellen Wulfhorst)
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