Tonawanda Coke Seeking Records From Clean Air Coalition

Tonawanda Coke Corp. owner James D. Crane for years has refused to meet with or speak to the Clean Air Coalition of western New York, which has waged a grassroots campaign against the company for several years.

Now, with Crane and his company facing lawsuits, his defense lawyers want to know whom the citizens group has talked to about the company and what was said, even though the group is not part of any of the lawsuits.

The company’s lawyers have subpoenaed the Clean Air Coalition for copies of documents and for information it has collected and shared with the state Department of Environmental Conservation and the U.S. Environmental Protection Agency about the coke foundry, as well as any other plant within 25 miles that might contribute to air pollution, according to court papers.

The company’s lawyers also want the group’s records on the residents of Buffalo’s Riverside section, the town of Tonawanda, Grand Island and Kenmore who have sued the company for emitting what the residents call “abnormally dangerous” amounts of benzene. The residents attribute the cancer-related illnesses among them to the chemicals emitted from the plant.

In recent years, the Clean Air Coalition has held rallies near the plant, met with regulators and elected officeholders, and gone door-to-door to get residents to sign petitions and provide information about how they have been affected by living near the River Road plant in the town of Tonawanda, about a mile north of Buffalo.

The Clean Air Coalition, however, is not a party in any of the lawsuits filed in 2010 and 2011.

Erin J. Heaney, the Clean Air Coalition’s executive director, called the subpoena “a retaliatory attack for exercising our right to promote the community’s right to be safe from Tonawanda Coke’s notorious anti-environmental practices.”

The Hodgson Russ attorneys representing Crane and Tonawanda Coke contend that the coalition’s records may help them determine when the plaintiffs knew or should have known any effects of their alleged exposure.

The environmental group likely has possession of unredacted complaints, filled out by the residents who have sued, which detail their complaints and symptoms, as well as what they believe to be the cause of the symptoms, Crane’s lawyers say. These records cannot be supplied by those suing the company or by government agencies, they say.

“We’re handcuffed trying to defend our case without it,” attorney Jeffrey C. Stravino said of the subpoenaed records last week during a state Supreme Court hearing.

“We’re entitled to know what communications plaintiffs have had with them about Tonawanda Coke,” Stravino said.

The company also wants copies of emails, text messages, photos and logs of telephone calls, among other records, sent between the Clean Air Coalition and local and national media regarding Tonawanda Coke, according to the subpoena.

“What in the world are they looking for – other than everything?” James J. Duggan, the environmental group’s attorney, said when he asked Justice Paula L. Feroleto to quash the subpoena.

Feroleto reserved judgment on the subpoena, calling the issue “very interesting.”

Feroleto denied a motion to dismiss Crane and Mark L. Kamholz, the plant’s environmental manager, as individually named defendants in the lawsuits.

As for the subpoena, Duggan said the Hodgson Russ lawyers are on a “fishing expedition.”

Duggan labeled their subpoena “clearly a SLAPP claim,” referring to a strategic lawsuit against public participation. Such court actions are filed to put a strain on the defendants’ time and money so they stop their criticism.

Indeed, Heaney referred to the costs the environmental group has already incurred.

“The Clean Air Coalition has had to pay from a limited budget for our attorneys to deal with this overbroad and unduly burdensome demand for all of the records of our organization,” Heaney said in an affidavit. “I request that Tonawanda Coke be required to repay the Clean Air Coalition’s attorney’s fees for defending the harassing claims made in this litigation.”

“I believe that your subpoena is an effort to retaliate by litigation against a community organization which had the right to participate with government officials about issues involving a permit without harassment from your client,” Duggan said in a recent letter to Hodgson Russ.

In court last week, Duggan said Hodgson Russ “threatened my client with attorney fees” unless the environmental group agreed “to roll over and turn over everything.”

Turning over the records would violate the confidentiality the environmental group has promised those with whom it works, Heaney said.

“Without protecting the privacy of the thousands of citizens that we work with on a yearly basis, we would not be able to fight for air quality and safety measures that are the basis of the organization’s integrity and being,” Heaney said in her affidavit.

Heaney said Tonawanda Coke’s lawyers “want to go through almost every record ever generated, read or reviewed by anyone associated with our organization, including highly confidential personal information from our citizen members, contacts, participants, informants and supporters.”

The group’s research projects sometimes require participants to submit health information, she said.

“In order to agree to provide Hodgson Russ with all of the organization’s records, I would violate rules of confidentiality which have been put in place to vigorously promote and protect the rights of the community to participate in communicating with government officials about the manner in which Tonawanda Coke implements its permits to burn raw materials that, without question, emit byproducts hazardous to human health with known cancer-causing agents,” Heaney said in the affidavit.

The company would pay for the copying costs, and its lawyers “are willing to work with CAC in whatever way is necessary to eliminate any burden,” the Hodgson Russ lawyers said in court papers.

The Hodgson Russ lawyers rejected the characterization of their subpoena as a SLAPP maneuver.

“We have no claim whatsoever against Clean Air Coalition,” Stravino said at the hearing.

“Tonawanda Coke is not taking issue with any statements made against it by CAC,” according to the company’s court papers. “Rather, Tonawanda Coke is interested in allegations made by plaintiffs in the civil litigation — allegations about TCC’s operation and about plaintiffs, exposure levels, health issues and property issues.”

The environmental organization’s documents “are material and necessary to Tonawanda Coke’s defenses,” according to the company’s court papers.

Those who have sued the company have waived confidentiality, the company’s lawyers say. As for others who participated in the group’s research projects, Tonawanda Coke agrees that their names can be redacted, Stravino said.

“The CAC as a citizens group has certain legal rights, including freedom of speech,” the company’s lawyers said in court papers. “However, all rights carry with them corresponding responsibilities. Where, as here, a citizens group has information material and necessary to civil litigation, they must provide that information, like any other nonparty, in this interest of justice.”