United States v. Tonawanda Coke Corp., 10–CR–219S.

• Decision Date: 14 March 2014
• Docket Number: No. 10–CR–219S.,10–CR–219S.
• Parties: UNITED STATES of America, v. TONAWANDA COKE CORPORATION and Mark L. Kamholz, Defendants.
• Court: U.S. District Court — Western District of New York

5 F.Supp.3d 343

UNITED STATES of America,

v.TONAWANDA COKE CORPORATION and Mark L. Kamholz, Defendants.

No. 10–CR–219S.

United States District Court,

W.D. New York.

Signed March 14, 2014.

Aaron J. Mango, U.S. Attorney's Office, Buffalo, NY, Rocky J. Piaggione, U.S. Department of Justice, Washington, DC, for United States of America.

Ariel S. Glasner, Gregory F. Linsin, Jeanne M. Grasso, Blank Rome LLP, Washington, DC, John J. Molloy, West Seneca, NY, for Tonawanda Coke Corporation and Mark L. Kamholz.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

This matter is scheduled for sentencing on Defendants' convictions for violations of the Clean Air Act, 42 U.S.C. § 7413(c)(1) and 18 U.S.C. § 2, and the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d)(2)(A) and 18 U.S.C. § 2, all of which are class D felonies. Defendant Mark L. Kamholz alone was convicted of obstruction of an administrative proceedingin violation of 18 U.S.C. § 1505 and 18 U.S.C. § 2, also a class D felony. The following sentencing decision addresses motions and objections raised in the parties' sentencing submissions, and is also intended to provide a background for this Court's pronouncement of sentence on March 19, 2014.

Specifically, this Court will first address the Government's motion for a sentencing hearing for the purposes of determining whether certain community members are victims as defined by the Crime Victims' Rights Act, 18 U.S.C. § 3771. Such a designation assures certain rights to a victim, including the right to speak at sentencing and the right to restitution for any harm caused by Defendants' criminal conduct.

Defendants have also requested a sentencing hearing at which their experts would be permitted to testify regarding factors reflecting the seriousness of the convicted offenses relative to other environmental crimes. These factors include the lack of proof of environmental harm, the purported ineffectiveness of the baffle system with respect to the Clean Air Act offenses, and the atypical agency proceedings that resulted in the criminal charges. Because this Court is declining the hearing request, this decision will also discuss those factors on which this Court will rely in determining an appropriate sentence for each Defendant, including Defendant Kamholz's objection to his offense level calculation.

Next, this Court will resolve Defendant Tonawanda Coke's objection to the imposition of any term of probation that would require the company to fund a community service project. Finally, the Court will explain how it will proceed in resolving the issue of Defendant Tonawanda Coke's ability to pay a significant fine.

II. DISCUSSION

A. Designation of Individual Victims

There is no question that this case is one of extreme importance to the Tonawanda and Grand Island communities. Prompted by concerns regarding the black soot they were regularly seeing over their property and the number of family members and neighbors that were being diagnosed with various forms of cancer, community members independently organized to conduct their own testing in an effort to better understand what effect the nearby industrial plants were having on themselves and their families. Their activities prompted the commencement of the air quality study by the New York State Department of Environmental Conservation in 2007, and it was this study that ultimately highlighted the increased concentration of benzene, a known carcinogen, near the Tonawanda Coke plant.

The Government reflects this community concern in its initial sentencing memorandum, asserting that, although it could not “point to any particular individual victim, there can be no dispute that through the [D]efendants' widespread contamination of the air and ground, that all of Tonawanda has suffered.” (Docket No. 216 at 32.) At the status conference in October 2013, this Court requested that the Government provide authority for its argument that the community as a whole could be considered a victim of the offenses on which Defendants were convicted. (Docket No. 260 at 17.) The Government asserts that in preparing to respond to the Court's request, it reevaluated the 128 impact statements previously submitted by individual community members. (Docket No. 261 at 2–3; Docket No. 228, 230, 231.) “Based on this factual and legal review, the legislative history of the [Crime Victims' Rights Act, 18 U.S.C. § 3771], and the [G]overnment's ongoing commitment to advocate on behalf of all deserving victims harmed by the [D]efendants' crime, the [G]overnment submits that in this case the harms inflicted by the [D]efendants extend to individuals who were forced to breathe benzene-contaminated air illegally and deliberately released by the defendants.” (Docket No. 261 at 3.)

This is, of course, a change in position from the Government's prior agreement with the conclusion in the presentence report (“PSR”) that “the environmental impact and potential victim injury or loss is immeasurable and a causal link cannot be definitively defined.” (Docket No. 261 at 3 n. 1.) The Government highlights, however, that the PSR ultimately concluded that “the instant offense is not a property offense and did not involve victim injury or loss.” ( Id. (emphasis in original).)

Therefore, it appears that the Probation Department, similar to the government's initial position regarding victim status, focused on whether identifiable persons suffered a physical injury rather than acknowledging that victim status may attach as a result of psychological and emotional harm from being forced to breathe noxious gases illegally released by the defendants. Importantly, the government does agree with the PSR that at present, there is insufficient evidence to conclude that the offenses of conviction constitute property offenses. However, in light of the government's request to allow community members to testify at a sentencing hearing, such a finding will likely need to be revisited in the event community members can establish harm to their property or physical injury, which may include particulate matter originating from the Tonawanda Coke plant that settled onto their property and short term health effects from air pollution.

(Docket No. 261 at 3 n. 1 (emphasis added).) Accordingly, the Government “now moves this Court to designate any members of the Tonawanda and Grand Island communities who were harmed by the [D]efendants' illegal air pollution as crime victims under the Crime Victims' Rights Act (“CVRA”), and additionally urges this Court to hold a sentencing hearing at which time community members can testify regarding the harm they suffered as a result of the defendants' conduct.” (Docket No. 261 at 4.)

The Government argues that community members have been harmed by defendants' actions in two ways: (1) “the community members have had to endure the emotional trauma of living in a polluted environment and being subjected to uncontrolled noxious emissions;” and (2) “the community members are at increased risk of contracting future illnesses relating to the defendants' pollution, which is certainly an unsettling and deeply disturbing notion.” (Docket No. 261 at 13–14.) Highlighted from the victim impact statements are examples of quality of life issues, property damage, and medical problems. ( Id. at 14–17.) The Government therefore argues that a sentencing hearing is necessary because “there are open questions as to which individual community members will qualify as crime victims under the CVRA.” ( Id. at 19–20.)

Under the CVRA, certain specific rights are acknowledged, including the “right to be reasonably protected from the accused;” the “right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding;” and the “reasonable right to confer with the attorney for the Government in the case.” 18 U.S.C. § 3771(a). The term “crime victim”is defined as “a person directly and proximately harmed as a result of the commission of a Federal offense.” 18 U.S.C. § 3771(e); see In re Rendon Galvis, 564 F.3d 170, 173 n. 1 (2d Cir.2009). “The requirement that the victim be ‘directly and proximately harmed’ encompasses the traditional ‘but for’ and proximate cause analyses.” Galvis, 564 F.3d at 175 (citing In re Antrobus, 519 F.3d 1123, 1126 (10th Cir.2008) (Tymkovich, J., concurring)); United States v. Sharp, 463 F.Supp.2d 556, 568 (E.D.Va.2006). “The necessary inquiry is a fact-specific one.” Galvis, 564 F.3d at 175. Further, “in determining whether one qualifies as a victim, a sentencing court can only consider the offense or offenses for which the defendant was convicted.” United States v. Battista, 575 F.3d 226, 231 (2d Cir.2009) (citing Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990)). Thus, it is “[t]he loss caused by the conduct underlying the offense of conviction [that] establishes the outer limits of a restitution order.” Battista, 575 F.3d at 231.

The potential individual CVRA victims, as described by the Government, are “any members of the Tonawanda and Grand Island communities who were harmed by the defendants' illegal air pollution.” (Docket No. 261 at 4.) This category potentially includes any person who lived in these two geographic areas from July 29, 2005 through December 31, 2009, the time period for which Defendants were convicted of emitting coke oven gas into the atmosphere in violation of the Clean Air Act. This Court notes that, as the Government concedes, these potential victims will need to be individually vetted to determine whether he or she was either directly and proximately harmed as a result of these violations. (Docket No. 261 at 19–20.) Each individual determination would be extremely fact specific. Galvis, 564 F.3d at 175. Further, because the Government was not required to establish harm as an element of any offense for which Defendants were convicted, each...