Periconi, LLC

Tonawanda Coke Corporation Enters into a $12 Million Settlement with DEC and EPA for Alleged Violations of State and Federal Environmental Law

The U.S. Federal Government and the State of New York jointly announced on May 11, 2015 a $12 million settlement with Tonawanda Coke Corporation for a litany of alleged environmental violations at TCC's western New York coke manufacturing facility.

The settlement comes largely as a result of a concerted effort by the local community to attract regulators' attention to operations at the facility. The community conducted its own air toxic monitoring which identified pollution problems emanating from the facility, and EPA Regional Administrator Judith Enck stated that it was the community's actions that "spurred government action to protect the community" against what she dubbed an "environmental outlaw."

The community monitoring has previously attracted attention from criminal law enforcement officials. In March 2014, TCC and its Environmental Control Manager were convicted of several criminal violations of the Clean Air Act and the Resource Conservation and Recovery Act. In that criminal case, TCC had been sentenced to a $12.5 million penalty and $12.2 million in community service payments.

To avoid a protracted litigation over the new alleged civil violations, TCC entered into a consent decree with the Justice Department, U.S. Environmental Protection Agency, New York State Attorney General's Office, and the New York State Department of Environmental Conservation. Unlike a typical settlement agreement between two sides to a dispute, in a consent decree, the court enters into the agreement along with the parties. This allows the court to exercise a higher level of supervision over the implementation of the decree.

While the terms of the consent decree allowed TCC to resolve the allegations against it without admitting any liability, the consent decree and the complaint filed by the federal and New York State governments against TCC include a wide variety of alleged violations. The alleged violations include a variety of violations of the Clean Air Act, Clean Water Act, the Emergency Planning and Community Right-to-Know Act, and the New York State Environmental Conservation Law.

Under the terms of the consent decree, TCC will spend approximately $8 million on upgrading its pollution control technology (both for air emissions and liquid wastes) and will pay a $2.7 million civil penalties to the state and federal governments. In addition, TCC has committed to carry out approximately $1.3 million in other projects to benefit and restore the local community and environment.

Combinations of civil penalties and environmental projects are typical outcomes for environmental enforcement actions, but what is less typical is the magnitude of the penalty amounts in the TCC case. The large magnitude of penalties speaks to the variety and seriousness of the violations alleged by the state and federal governments.

For more information on civil and criminal environmental law enforcement, contact one of the environmental attorneys at Periconi, LLC.

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