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United States v. Tonawanda Coke Corporation

United States District Court, W.D. New York

March 13, 2014

UNITED STATES OF AMERICA,
v.
TONAWANDA COKE CORPORATION and MARK L. KAMHOLZ, Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

On March 28, 2013, a jury convicted Defendant Tonawanda Coke Corporation ("TCC") and its manager of environmental control, Defendant Mark L. Kamholz, of violating environmental laws. The jury also convicted Kamholz of obstructing the proper administration of law. Defendants now move for judgments of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, alternatively, for a new trial pursuant to Rule 33. For the reasons discussed below, Defendants' motion is denied.

II. BACKGROUND

TCC is a merchant by-product coke facility that has been in operation since 1978. Coke is used in the steel-mill and foundry industries as an additive in the steel-making process. It is produced through the prolonged heating of bituminous coal in sealed ovens at high temperatures. During the heating process, volatile materials are driven from the coal and removed from the ovens as coke oven gas, which is then sent through a byproduct recovery system and reused or sold. One by-product of coke oven gas is coal tar sludge, which can be reused by adding it to coal before the coal is loaded into the coke ovens. Because of the potential impact coke production has on the environment, the industry is regulated by federal and state statutes and regulations.

On July 29, 2010, a federal grand jury returned a 20-count indictment against TCC and Kamholz, charging them with committing environmental crimes and obstructing justice in the course of operating the coke facility. (Docket No. 10.) Upon the government's motion, this Court dismissed Count 19 before trial pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. (Docket No. 113.) The redacted trial indictment therefore consisted of 19 counts. (Docket No. 191.)

Counts 1-15 of the trial indictment charged Defendants with violating the Clean Air Act ("CAA"), 42 U.S.C. § 7413(c)(1), from 2005 through 2009, by operating a stationary source of air pollution (i.e., TCC) in violation of its CAA permit. In particular, Counts 1-5 charged Defendants with emitting coke oven gas from a pressure relief valve in the byproducts department at TCC. Counts 6-10 charged Defendants with operating the western quench tower (quench tower 1) at TCC without a baffle system.[1] Counts 11-15 charged Defendants with operating the eastern quench tower (quench tower 2) at TCC without a baffle system.

Count 16 of the trial indictment charged Defendants with obstructing the proper administration of law, in violation of 18 U.S.C. § 1505, by directing a TCC employee in April 2009 to conceal from EPA inspectors that a pressure relief valve in the by-products department emitted coke oven gas into the atmosphere during normal operations, in violation of TCC's operating permit.

Counts 17, 18, and 19 of the trial indictment charged Defendants with violating the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(d)(2)(A). Count 17 charged Defendants with the unpermitted storage of a hazardous waste adjacent to two large deteriorating tanks, known as the Barrett Tanks, from May 1998 through December 2009. Count 18 charged Defendants with the unpermitted disposal of a hazardous waste originating in and around the Barrett Tanks, from June 2009 through September 2009. Count 19 charged Defendants with the unpermitted disposal of a hazardous waste by spreading it onto the coal field, from August 2005 through December 2009.

Trial began on February 26, 2013, and concluded on March 28, 2013. Upon the close of the government's proof, this Court denied Defendants' Rule 29 motions. (Docket No. 178.) Defendants then presented a defense case and the government presented a brief rebuttal witness. The jury subsequently found TCC and Kamholz guilty on Counts 1-5, 9, 11-15, and 17-19. (Docket No. 192.) It acquitted TCC on Count 16, but found Kamholz guilty of that charge. (Id.) It also acquitted both TCC and Kamholz on Counts 6-8 and 10. (Id.) Following the verdict, Defendants filed the instant motion for judgments of acquittal or, alternatively, for a new trial.

III. DISCUSSION

A. Defendants' Rule 29 Motion

1. Rule 29 of the Federal Rules of Criminal Procedure

Under Rule 29 (a), a court must, upon a defendant's motion, "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." A defendant may move for a judgment of acquittal after the government closes its evidence, after the close of all evidence, or after the jury has returned its verdict and been discharged. See Rule 29 (a) and (c)(1). A defendant may also renew a previously denied Rule 29 motion, so long as renewal occurs within 14 days after the guilty verdict or discharge of the jury, whichever is later. See Rule 29 (c)(1).

The making of a motion for a judgment of acquittal before the court submits the case to the jury is not a prerequisite for making such a motion after the jury is discharged. See Rule 29 (c)(3). "[W]hen a motion for judgment of acquittal made at the close of the government's case-in-chief is denied and a defendant presents a case, then the evidence put in by the defense will also be considered in deciding a [Rule 29] motion made after the trial ends." United States v. Truman, 762 F.Supp.2d 437, 445 (N.D.N.Y. 2011).

A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008); United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001). "In evaluating whether the evidence was sufficient to convict a defendant, [a reviewing court] consider[s] all of the evidence, both direct and circumstantial, in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government.'" United States v. Velasquez, 271 F.3d 364, 370 (2d Cir. 2001) (quoting United States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999)).

When considering the trial evidence, "the court must be careful to avoid usurping the role of the jury." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). The court may not "substitute its own determination of... the weight of the evidence and the reasonable inferences to be drawn for that of the jury." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal quotation marks and citations omitted). Determining the witnesses' credibility falls strictly within the province of the jury. Guadagna, 183 F.3d at 129 (noting that the court must defer to the jury even if the evidence would also support, in the court's opinion, a different result).

A judgment of acquittal is warranted only if the court concludes that the evidence is non-existent or so meager that no rational trier of fact could find the defendant guilty beyond a reasonable doubt. Velasquez, 271 F.3d at 270; Guadagna, 183 F.3d at 130. The court must consider the evidence "in its totality, not in isolation, and the government need not negate every possible theory of innocence." United States v. Cote, 544 F.3d 88, 98 (2d Cir. 2008); see Guadagna, 183 F.3d at 130 ("each fact may gain color from the others").

2. Clean Air Act Counts

a. Counts 1-5

Defendants maintain that they are entitled to a judgment of acquittal on Counts 1-5 because no reasonable juror could have found that Condition 4 of TCC's Title V operating permit applied to operation of the pressure relief valve in the by-products area. Specifically, Defendants argue that the pressure relief valve is an emission "point, " not an emission "source."

Counts 1-5 charged Defendants with violating TCC's Title V permit requirements "by emitting coke oven gas from a pressure relief valve in the by-products department, an unpermitted emission source." Consistent with New York law, this Court instructed the jury that "emission source" is defined as any apparatus, contrivance, or machine capable of causing emission of any air contaminant to the outdoor atmosphere, including any appurtenant exhaust system, air cleaning device. 6 NYCRR 200.1(f). It further instructed the jury that "emission point" is defined as any conduit, chimney, duct, vent, flue, stack, or opening of any kind through which air contaminants are emitted to the outdoor atmosphere. 6 NYCRR 200.1(t).

Whether the pressure relief valve is an "emission source" or "emission point" is a question of fact for the jury. By its verdict, the jury concluded that the pressure relief valve was an "emission source." This is a reasonable determination supported by the trial evidence. Two of the government's expert witnesses - Al Carlacci and Larry Sitzman - testified that the terms "emission source" and "emission point" are synonymous and often used interchangeably. Carlacci also testified that Defendants' operation of the pressure relief valve violated TCC's Title V permit, the fair inference being that the pressure relief valve was an "emission source."

Defendants also argue that they are entitled to a judgment of acquittal on Counts 1-5 because there was insufficient proof that the pressure relief valve was subject to permitting requirements at the time it was constructed or modified. Defendants maintain that the government failed to offer evidence concerning the dates of construction or modification of the pressure relief valve, yet they concede that Sitzman testified that the pressure relief valve was a "process" that was modified each time it was adjusted, such that condition 4 of the Title V permit would apply. Defendants' argument also fails to consider that several witnesses testified that the pressure relief valve had been in a different location before the current pressure relief valve was constructed. This testimony, along with the ...


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