There’s no shortage of people who feel they are victims of Tonawanda Coke.
The question now being asked is whether they are victims under the law.
If federal prosecutors have their way, some of those people will get a chance to tell their stories of illness, disease and emotional distress to the judge who will sentence the company.
They also could ask for restitution from Tonawanda Coke.
“I’d like to tell the judge what I’m living with,” said Alphonse Esposito, a City of Tonawanda resident who lost his wife, Joan, to bone cancer two years ago. “I’d like to tell the judge my true feelings.”
Esposito is one of more than 120 people who wrote letters to the judge. And now he and others may have an opportunity to testify in person at a sentencing hearing.
Prosecutors, in an about-face of sorts, are recommending individuals from Tonawanda and Grand Island be allowed to make the case that they are indeed victims of Tonawanda Coke’s criminal activity.
It’s the latest wrinkle in a court case that started with an indictment charging the company with Clean Air Act violations and culminated in a jury finding it guilty of 14 felony charges.
The company is awaiting sentencing, and until now, prosecutors have argued that the community as a whole is the victim.
They now believe it’s possible for the court to identify individual victims and, in court papers filed this week, recommended that Chief U.S. District Judge William M. Skretny hold a hearing for that purpose.
“Let’s get it all out on the table,” said Jackie James-Creedon, director of the Tonawanda Community Fund and a potential victim. “It’s important for our community to be heard.”
For months, the government argued that it would be nearly impossible for Skretny to identify victims because of the difficulty in determining a cause-and-effect relationship between Tonawanda Coke’s illegal air emissions and the physical illnesses cited by neighboring residents.
For that reason, Assistant U.S. Attorney Aaron J. Mango argued that the community as a whole is a victim. He hasn’t changed his position, but he now thinks it’s possible for the court to identify individual victims as well.
“We are trying to provide the judge with as much available authority as possible,” said U.S. Attorney William J. Hochul Jr. “This could give the judge more options.”
If Skretny agrees, it also could open the door to restitution for individuals, many of whom are suing the company in state court.
Hochul declined to comment on that possibility but acknowledged that one of his goals is to keep some of the monetary penalties against Tonawanda Coke in the region.
“We want to keep as much restitution as possible here in Western New York,” he said.
The government’s change in position came just two weeks after an attorney for Tonawanda Coke referred to the prosecution’s community-as-a-whole argument as a “novel concept.”
“The statute doesn’t allow for it,” Gregory Linsin, a lawyer for the company, said of the laws governing federal sentencing.
Linsin has been pushing for a sentencing hearing for weeks, but for other reasons.
He wants Skretny to hear from experts who will testify about the seriousness of the air and ground contamination that came from Tonawanda Coke.
“Any criminal offense is going to be serious, but how serious?” Linsin asked.
In his court papers asking for a sentencing hearing, Mango argues that it’s necessary in order to identify victims who suffered emotional distress or physical harm because of the benzene-laced air they were forced to breathe.
He also pointed to a Clean Air Act prosecution of Citgo in Texas and the judge’s decision to allow a representative sample of alleged victims to testify at a hearing.
The court initially rejected the individuals’ claims that they were victims under the law but later, after an appeal, found them to be victims.
Citgo has yet to be sentenced in that case, but Mango says the court’s final ruling on allowing individual victims to testify is significant.
He also sees similarities in the harm caused by Citgo and the harm caused by Tonawanda Coke and Mark L. Kamholz, its environmental controls manager. Kamholz was found guilty of 15 felony charges during the trial.
“For a period of almost 20 years, the defendants criminally polluted the air with known carcinogens and particulate matter,” Mango said of the company and Kamholz. “It is the government’s view that the defendants’ conduct essentially involved the indiscriminate and prolonged poisoning of an entire community.”
The sentencing of Tonawanda Coke and Kamholz is currently scheduled for March 19. The company faces up to $200 million in fines, and Kamholz faces up to 75 years in prison.