Clean Air case yields rare criminal convictions in New York

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A view of the Tonawanda Coke plant in Tonawanda, NY. The New York Department of Environmental Conservation has confirmed that the factory was emitting benzene and other carcinogens at many times the state's limit.

In a rare criminal prosecution under the Clean Air Act, the U.S. Department of Justice scored a double victory this year, winning convictions against a western New York coke manufacturing plant and its former environmental manager.

Next up: sentencing for the company and its manager in July — and hope, in the town of Tonawanda, just upstate from Buffalo, that the prosecution will help end decades of concern over the toxins tainting the community.

The federal case focused on Tonawanda Coke Corp. and environmental manager Mark L. Kamholz, of West Seneca, N.Y.

For years, residents had complained that elevated levels of benzene, a carcinogen, emanated from the plant. Homeowners began taking evidence with their own hands, testing the air with special buckets and pressing authorities to take action. Their contention: The plant had for years underreported its emissions. The community’s struggle for clean air was explored as part of a 2011 series, Poisoned Places, by the Center for Public Integrity and NPR.

In March, a federal jury confirmed the community’s long-standing fears.

Charged in a 19-count indictment, the company and executive were convicted of 14 and 15 felonies, respectively. Each was convicted of five counts of violating the Clean Air Act by emitting coke oven gas from an unpermitted emission source, along with other convictions for operating the plant without required pollution control devices called baffles. Other violations involved the Resource Conservation and Recovery Act.

They were acquitted of four Clean Air Act counts. Kamholz, but not the company, was convicted of obstruction of justice for instructing an employee to conceal emissions during an inspection.

“Citizens of this community are entitled to breathe clean air and drink clean water,” U.S. Attorney William J. Hochul Jr. said in a prepared statement after the verdict. “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.”

Tonawanda Coke and Kamholz are scheduled to be sentenced July 15 in federal court in Buffalo, though the defense is asking for a delay. While the convictions could yield prison time and millions in fines, the plant itself still produces worry for the working-class western New York town, where many living near the facility suffer from health problems.

For Joyce Hogenkamp, watching lawyers present evidence in the downtown Buffalo courthouse made her think of her late mother.

Growing up on Hackett Drive about two miles from the plant, Hogenkamp remembers how her mother always slept with the window open, out of a fear of closed spaces, even though winds from the southwest blew in smoke from the coke plant that smelled like burning tires. She, like many in the community, eventually became sick.

When the trial recessed one day, “I cried the entire drive home that day,” Hogenkamp said.

Jackie James-Creedon, who founded a local group that used buckets and hand-held vacuums to test the air near the plant, watched nearly every day of the four-week trial. For years, she and her neighbors pressed state regulators to act. It took five years before New York regulators formally blamed Tonawanda Coke for the town’s air pollution; it took another four years for the criminal trial to begin.

Still, James-Creedon said she had been “concerned” that the jury wouldn’t see the evidence as she did.

“I literally was shaking, just with anticipation,” James-Creedon said.

Uncommon Criminal Case

Yet Tonawanda’s case proved to be nearly unique: A rare criminal prosecution of the federal Clean Air Act.

Prosecutors say the complexity of Clean Air Act cases makes them difficult to prove — one reason prosecutions are so rare, the Center for Public Integrity reported in Poisoned Places. Since 1990, fewer than 800 Clean Air Act cases had led to fines or prison time — the fewest of any of the three major environmental laws designed to protect air, water and land, the Center found.

Instead of criminal prosecution, the federal government is far more likely to pursue civil cases, which typically result in corporate fines and agreements to curtail emissions. Companies would surely prefer to settle cases with civil fines — than face criminal prosecution.

"Usually it doesn't get to this point," said Richard Lippes, an environmental attorney representing about 400 personal injury cases against Tonawanda Coke. “Usually once a company’s hands are found in the cookie jar, they’ve got to put the cookies back and maybe have to beg for more cookies.”

The EPA says that fewer criminal cases were initiated in part because of personnel cuts, and as part of a strategy to focus on the worst polluters. According to agency data, the EPA initiated 320 criminal investigations overall in 2012 and charged 231 defendants — both down from 2011. Of all Clean Air Act cases the agency has opened since January 2012, 41.5 percent involved asbestos — still the most common, but down from previous years. Cases involving false statements, tampering with equipment or permit violations were 23.6 percent of all cases opened, the agency said.

“The criminal enforcement program identifies and investigates cases with significant environmental, human health, and deterrence impacts while balancing its overall case load across all pollution statutes,” the EPA said in a statement.

The EPA closed 28 criminal cases involving the Clean Air Act in fiscal year 2012 and so far in 2013, the Center found, yet few involved air pollution from industrial plants. Instead, more than 60 percent involved asbestos disposal violations. About 10 percent covered violations of ozone rules, two prosecutions targeted scammers who sold biofuel credits for fuel they didn’t produce, and two cases targeted vehicle inspectors who accepted payoffs to falsely pass cars that didn’t meet pollution standards.

Four cases concerned industrial polluters like Tonawanda Coke that reported false information to the EPA as part of Clean Air Act-mandated permits.

Prosecutions don’t always lead to prison time. Belvan Corporation, which operates a natural gas processing plant in Crockett County, Texas, and three of its executives pleaded guilty in 2012 to a Clean Air Act violation for failing to correct malfunctioning equipment that diverted acid gas into the plant’s flare system, releasing hydrogen sulfide, sulphur dioxide and other pollutants. The company waited years to report the emissions, “and thus placed people in imminent danger of death and serious bodily injury,” the EPA said.

The company was fined $500,000. The executives paid $50,000, $22,000 and $15,000 fines — and were ordered to spend eight hours completing an environmental awareness training program.

In the Tonawanda Coke case, jurors took five and a half hours to reach a verdict. At trial, prosecutors said the plant released coke oven gas, containing benzene, through an unreported pressure relief valve. The company skirted other anti-pollution laws through its “practice of mixing its coal tar sludge, a listed hazardous waste that is toxic for benzene, on the ground in violation of hazardous waste regulations,” according to prosecutors.

Just before a 2009 EPA inspection, Kamholz told a fellow employee “to conceal the fact that the unreported pressure relief valve, during normal operations, emitted coke oven gas directly into the air, in violation of the TCC’s operating permit,” the DOJ said.

Attorneys for Kamholz and Tonawanda Coke did not respond to interview requests. In court papers, the lawyers are asking the judge to dismiss most of the convictions.

In theory, the convictions could bring significant sentences: Tonawanda Coke faces a $200 million maximum fine, and Kamholz could be sentenced to prison for as long as 75 years. But few expect maximum sentences to be handed out.

A fine of $8 million to $10 million, and a year or two of jail time might be more realistic, said Erin Heaney, the executive director of the Clean Air Coalition of Western New York.

Assessing the damage

In Tonawanda, state officials are still trying to measure the damage to the air, water and soil — and to people’s bodies — in an effort that will continue long after sentencing.

According to a draft health outcomes review published in February by the New York Department of Health, residents living near the plant have been more likely to suffer lung and bladder cancer; men showed more cases of esophageal cancer, while women were more likely to have uterine cancer than the rest of the state. The study cautioned, however, that it couldn’t prove what caused the illnesses.

When residents started using homemade air tests using buckets and vacuums almost 10 years ago, they found levels of benzene 500 times above state health guidelines. State tests later found benzene levels between 10 and 75 times above the guidelines, plus high levels of formaldehyde, carbon tetrachloride and other toxins. Federal officials then forced the company to install monitoring equipment that pinpointed benzene emissions at 91 tons per year — about 30 times more than its previous reports to air regulators had indicated.

Investigators later found the plant didn’t have required pollution control devices. For years, the omission went unnoticed by state officials. The plant also opened an emergency valve every 20 to 30 minutes that released untreated gas laced with chemicals.

Now, residents say money is needed to continue the monitoring long-term, and help people pay for health services. Activists are concerned that, under the EPA’s rules, there’s no guarantee fines remain in the community. In theory, Heaney said, they could simply be deposited in the U.S. Treasury.

Hoping to prevent this, residents have launched a frantic campaign to gather victim impact statements. The hope, James-Creedon said, is that U.S. District Judge William Skretny will order fine money allocated for community improvement projects. The Clean Air Coalition is holding a series of community meetings to let the public brainstorm and ultimately vote on which projects residents prefer.

Still, the uncertainty has James-Creedon nervous. “We’re not sure we’re even going to see one penny of that money,” she said.

And, Tonawanda Coke must comply with numerous EPA violations that began with the initial investigation — and manage pollution levels if production, which dipped during the economic downturn, begins to rebound.

“It’s a relatively obsolete plant,” said community attorney Lippes, “so bringing themselves into compliance may not be that easy.”

Editor's Note: This story has been updated to clarify that Clean Air Act asbestos statistics involve cases since 2012.

 

 

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