Federal appeals court rejects Tonawanda Coke case

A three-judge panel at the U.S. Second Circuit Court of Appeals on Jan. 11 rejected an appeal filed by Tonawanda Coke Corp. (TCC) of a March 2014 U.S. District Court judgment finding it guilty of offenses under the Clean Air Act and the Resource Conservation and Recovery Act (RCRA), and imposing a sentence that includes, among other elements, a requirement of community service.

Tonawanda operates an aging plant in upstate New York that bakes coal into coke for use in various industrial processes.

TCC’s principal contention on appeal is that its conviction on Counts 17, 18 and 19 of the indictment — the RCRA counts — should be reversed because TCC lacked fair notice that its conduct was criminal under RCRA. It further argues that its conviction on Count 17 should be reversed because the charged conduct occurred outside the limitations period; that the District Court erred in failing to deliver to the jury a so-called specific unanimity instruction with respect to Count 17; and that the District Court “abused its discretion” in requiring that TCC, as a form of community service, fund two studies designed to evaluate the effects of its conduct. “We reject each of these arguments and affirm,” said the Jan. 11 appeals court ruling.

The appeals court ruling noted that TCC in part argued that Count 17 of its July 2010 indictment charged conduct that occurred outside of the applicable five-year statute of limitations and should therefore have been dismissed as time-barred. Count 17 alleged that TCC knowingly “stored” hazardous waste without a permit, from May 1998 to December 2009. The government contends that Count 17 was not time-barred because the unpermitted storage of hazardous waste is a so-called continuing offense, and the limitations clock therefore did not start until December 2009. The appeals court agreed with the government, saying a statute of limitations typically begins to run “when the crime is complete.” The court added: “TCC advances several arguments in support of its position that storage of hazardous waste is not a continuing crime, but none is convincing.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.