Tonawanda Coke. August 2018 (WBEN Photo/Mike Baggerman)

Tonawanda Coke to Remain Open Despite Violating Probation

Judge: Government Provided Insufficient Evidence to Warrant Shutdown

September 21, 2018 - 11:42 am
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BUFFALO, N.Y. (WBEN) - A federal court Judge has ruled that Tonawanda Coke does not need to shut down despite exceeding the amount of emissions allowed in their probation agreement.

Judge William Skretny ruled that prosecutors representing the government did not provide enough evidence that emissions were harmful, but ruled that Tonawanda Coke must follow an enlarged probation. The corporation must hire an independent third party monitor which will submit monthly reports about Tonawanda Coke's compliance. The company must also complete a battery test protocol, which is scheduled to be done by October 13 and to implement a root cause analysis on an expedited basis.

All other probation requirements will remain in effect, including a $2 million payment to the community for its previous conviction in 2014.

Judge Skretny said that the government spent more time at the hearing arguing about things unrelated to the waste heat stack, which was the primary cause of the increased opacity that lead to the cease and desist order on July 20. Tonawanda Coke was convicted of violating its probation on Monday.

Despite the government not proving that the increased opacity was harmful to the community, Judge Skretny criticized Tonawanda Coke for little change over the last four years and for arguing that it continues to put company profits over environmental concerns. He also said they are reactive to their problems rather than proactive.

"We do not think that is the case," Reetuparna Dutta, an attorney for Hodgson Ross representing Tonawanda Coke, said. "We do think the company is working very hard and will be continuing to do so to make the changes it needs to make."

"We're very committed to correcting the opacity issues as quickly as we can," Tonawanda Coke CEO Michael Durkin said.

Prosecutors were disappointed in Judge Skretny's ruling today. In the courtroom, Assistant United States Attorney Aaron Mango compared Tonawanda Coke to an "environmental ponzi scheme", with continuous violations and the shrugging of the company's shoulders any time a violation is found.

United States Attorney JP Kennedy said they established that the opacity levels were above the regulations required by the Clean Air Act, but noted that the courts wanted to know more about the pollutants emitted.

"We're going to continue to monitor and vigilantly figure out a way to give the court the information it's looking for in terms of the substances emitted there," Kennedy said. "They weren't baking cookies there. The production of coke and coke oven gas contains numerous carcinogens, neurological contaminants, and other substances that cause harm to humans."

Kennedy noted that his team asked Tonawanda Coke to provide an analysis on emissions from the smoke stack several months ago but did not receive the report.

"They have access to that smoke stack," he said. "We'll figure out a way to get after it."

Kennedy said he was glad to see a third party ordered to monitor the corporation because it means another set of eyes watching it.

Prosecutors asked the judge to impose a sentence where Tonawanda Coke is ordered to comply by the law or cease operations. Tonawanda Coke's representatives wanted an extension of their probation.

Following the sentencing, Judge Skretny asked Durkin to step forward. He told the judge before that the company accepts responsibility and are working to lower opacity caused by the collapse of the waste heat tunnel. Durkin said they will commit "significant resource" to address its problems and that they want to be a good neighbor in Tonawanda. However, he did say that he asks the public to give the company "time and space" to do their work.

Neighbors affected by the smoke from Tonawanda Coke said they can't trust the company due to its repeated violations.

"We're a little frustrated," Jackie James Creedon said. "...It's the status quo for this company. How many times do we have to go through this?"

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