BUFFALO, N.Y. —The Tonawanda Coke Corporation and its attorneys were back in federal court on Friday for a probation violation hearing, but the judge wasn't ready to rule on the company's future even after hours of testimony and cross examination.
Attorneys for both sides will be back in court Monday at 1:30 p.m.
The judge had said he wanted to rule on this rather quickly, even delaying another case scheduled for Friday. Court went after hours Friday, and the judge announced that he felt there were too many loose ends to tie up before he could make a decision.
The U.S. attorney requested more documents from the defense's second witness, a coke industry professional who does risk assessment and helps companies reduce emissions.
Prosecutors say that Tonawanda Coke continues to release poisonous gas from its coke oven operations, violating its probation. However, the plant says that it is making changes and wants a judge to allow the company more time to continue to do this.
Before the probation hearing started Friday morning, Tonawanda Coke’s attorneys filed a motion for continuance of the hearing, but judge ruled they had sufficient time to prepare and began the hearing around 9:30 a.m.
The government said in court they had seven witnesses and 150+ exhibits of evidence. They only got to 4 witnesses on the stand for testimony and cross examination. Judge William Skretny, who is presiding over the case, said the government was “dragging its feet” with witnesses and allowed no more witnesses to the stand. He said the additional witnesses can file "concise affidavits" by 8:30 a.m. Monday in lieu of being on the stand.
In his opening statement, U.S. Attorney Aaron Mango said Tonawanda Coke “just ignores environmental regulations, ignores environmental statutes.”
The first witness for the government was Melissa Colley, a U.S. probation officer. She was assigned to oversee Tonawanda Coke. She said violations by Tonawanda Coke were outlined in a monthly report that the company had to give her.
Lester Weinheimer, 41-year DEC employee, was the second witness. He is currently an environmental engineering technician. He testified about ‘visual emission observation’ — opacity of the emissions coming from the waste heat stack and how they looked. Twenty percent opacity (how see-through the emissions are) is allowed. Anything higher is a violation. The defense argued that his observations are only visual, but don’t reveal what’s actually in the plume.
Defense attorneys said in court that visual observations don't give any insight into potential toxicity and visual readings and percentages can sway 15% in either direction, citing the witnesses comments about his training and allowable standards.
Weinheimer testified about Tonawanda Coke emissions violations from May to September 2018. The highest opacity violation 2 On Your Side saw evidence of in court was 66%.
Wade Griffin, a former Tonawanda Coke employee testified for the government. He described the conditions as "messy, hot, almost made you want to puke." He said workers changed the way they did things when inspectors were there. Griffin testified that he and others were ordered to remove flue caps when an opacity alarm went off. That, he said, released pressure and reduced opacity.
The defense tried to disqualify/discredit Griffin, saying he was biased because he was fired and that he lied about employment dates. Griffin said that he had quit. Judge Skretny allowed him to testify.
The final government witness was Michael Emery. He has worked with the NYS DEC for 24 years. He is currently a regional air pollution control engineer. He testified about opacity reports and plant inspections he conducted. He said Tonawanda Coke was cooperative with the DEC, even on unannounced visits to the plant. He said in court he believes Tonawanda Coke has a "low commitment to fix opacity problems" and has suspicions the company changes its operations when inspectors are there.
Emery said in court benzene levels were 97.2 ppm (parts per million) from coke oven door 75 during an inspection on September 10. He said that wouldn't affect opacity coming from the stack. Benzene levels from the stack were 2.25 ppm during that same time period.
In opening statements, the defense said they will prove that Tonawanda Coke is working to fix opacity issues, opacity doesn't cause harm, and that the company is working with government agencies to fix problems. An attorney for the defense said shutting the plant down completely would be a "death sentence" for the company because a complete cool down of the plant would cause coke oven walls to collapse. They say it would cost $75 million to rebuild entirely.
The first defense witness was Richard Westbrook. He testified that he has been a coke industry professional since 1981. He worked for a company called Suncoke for 20 years but now has his own engineering business.
Tonawanda Coke retained Westbrook's company this past June or July to analyze stack opacity and come up with an action plan to achieve compliance.
He testified that opacity can be caused by poor combustion and improper mixing or gas, air, and other combustibles or leakage within a coke oven.
Westbrook testified that he believes Tonawanda Coke's opacity from the waste heat stack is due in part to the collapse of the waste heat tunnel back in May of this year.
He described his company's action plan for Tonawanda Coke to repair its battery, which is a series of coke ovens.
Westbrook said he recommends silica welding to fix cracks and advised TCC to repair and return empty coke ovens back to service. He also said they need to clean goosenecks, reinspect battery walls, and offer more training.
Westbrook said TCC is currently running just 16 to 18 ovens each day when they could have as many as 56 in service. He said they're not meeting production demand while they work on fixing opacity problems. He said opacity reports from the company on Thursday showed opacity levels of 32 to 34 percent. Twenty percent is allowable. Westbrook said after repairs are made, he believes TCC can get opacity down to 15%. He thinks this can be achieved by mid October.
The government argued that Westbrook and his company are doing today what TCC was required to do back in 2015 to clean up emissions.
Dr. Allen Dittenhoefer from Montrose Air Quality Services in New Jersey testified for the defense. He has worked in the coke industry for 30 years. His job is to help companies improve emissions and do risk assessment.
He testified that he did air analysis for TCC from May to the present and found no increases in air pollution or increased health risks downwind of the plant because of an increase in opacity.
He reiterated that opacity doesn't measure toxicity, and opacity is not a health-based standard. Dittenhoefer also said he found no increasing trend in inhaled particulates despite increased opacity.
Judge William Skretny told the defense to submit an affidavit for the defense's third witness. The sworn statement will be in lieu of in court testimony. It must be submitted to the court by 8:30 a.m. Monday.
U.S. Attorney Mango also said that he wanted some additional reports from Dittenhoefer.