BUFFALO, N.Y. — The smokestacks of Tonawanda Coke will continue to operate, as a judge handed down his decision Friday.
The plant, which towers over the Niagara River and is visible from Grand Island, heats coal in an airless chamber, making a solid coal byproduct. At issue here is the plant's waste heat stack emissions or opacity, a previous conviction of not complying with environmental regulations, and the company's stance that rebuilding its ovens would likely put it out of business.
U.S. District Court Judge William Skretny ruled Monday that Tonawanda Coke violated probation from a 2014 conviction for failing to comply with the Clean Air Act. The company was found guilty at the time of 14 environmental violations, including 11 related to the Clean Air Act.
Skretny said the focus of this case was purely on the waste heat stack and that the repeated violation of the Clean Air Act's 20 percent opacity standard triggered the guilty verdict.
He said he opted not to shut down the plant, though, because the government failed to prove whether excessive opacity caused increased health concerns for the surrounding community.
Here's what lies ahead for Tonawanda Coke:
As part of the amended probation, Skretny ordered a battery stack test protocol must be completed by December 12th. He says data from that testing will provide the information needed to determine what exactly comes from the waste heat stack.
The last test on the stack came in 2010.
U.S. Attorney JP Kennedy says they previously asked Tonawanda Coke to do the test, but were rebuffed.
"Several months ago, our enforcement partners did ask to perform exactly that analysis and tell us exactly what's coming from, being emitted from opaque smoke which was being emitted from their facility," Kennedy said.
The company was submitting monthly emission reports to its probation officer, who earlier testified that she hadn’t heard of any opacity issues until June, just before the state Department of Environmental Conservation issued a cease and desist order for smoke from Tonawanda Coke’s waste heat stack. Opacity was defined as the amount of background that is obscured by smoke released from a stack.
Richard Westbrook, hired by Tonawanda Coke in June to examine its operations, testified the repair work should be done by October 13 but he would not guarantee the remediation plan would bring the plant into compliance. He does believe, however, this should get the company to 15 percent opacity. (See report below.)
"Tonawanda Coke has a lot of work to do, and we're grateful for the opportunity to do it. And we're committed to doing it as quickly and aggressively as possible," said Reetuparna Dutta of Hodgson Russ LLP, which represents Tonawanda Coke.
Tonawanda Coke still has a permit revocation hearing with NYSDEC on October 10th, which will focus on the entire plant, rather than just the waste heat stack.
In response to Friday’s sentencing, NYSDEC released the following statement:
“Today’s decision has no bearing on DEC’s upcoming hearing on October 10th to revoke Tonawanda Coke’s operating permit. DEC, like the Tonawanda community, is fed up with Tonawanda Coke’s continued violations and we will continue to take all necessary legal actions to end this facility’s legacy of polluting the community. “