Where regulators failed, citizens took action — testing their own air

Introduction

TONAWANDA, N,Y. — For the past three decades, Jeani Thomson has been pleading with New York state officials to protect her and her neighbors from air pollution that regularly spreads into her yard from an industrial plant a mile away. Many mornings, a foul-smelling, thick fog settles around her modest house in Tonawanda, a working class town of 16,000 just outside Buffalo. The “toxic blue haze,” as Thomson calls it, smells like ammonia, sulfur and “an oily exhaust.”

She believes it has made her sick. Ailments have transformed her, she said, from a fit mail carrier who walked a 13-mile route into a survivor of multiple illnesses who takes 22 medications and now moves with difficulty on stiff legs. Though only 57 years old, she has only one lung, and half a stomach. Her doctors have diagnosed her with a rare skin rash, as well as asthma and arthritis. Though she claims never to have had a cigarette, her voice has the raspy sound of a smoker. On bad days, she says, she inhales oxygen.

“It’s not anything that I ate. It’s not anything that I drank,” said Thomson. “It’s from living here and breathing the air.”

Whether her illnesses, or anyone else’s, came from the plant’s pollution can be difficult to prove. Still, concerns about toxic emissions rallied Thompson and a small group of other local people — most of them sick, later joined by dozens of other citizens complaining of similar ailments — to force complacent regulators to clean up their air.

Residents started in 2004 by using buckets and hand-held vacuums to test the air. They found shockingly high levels of benzene. With a hint from a state regulator, they figured out the main source was a plant called Tonawanda Coke Corp., a relic of the industrial age that since 1917 has been producing material needed for smelting iron.

They enlisted the help of a plant insider to help them expose practices at the plant. They recruited residents who lived closest to the plant to report to the state and the media when plumes of soot and the odors became intolerable. And they wouldn’t give up.

It took five years of prodding before state regulators formally blamed Tonawanda Coke for the high levels of benzene and moved aggressively to enforce the Clean Air Act. Finally in 2009 the state, together with the U.S. Environmental Protection Agency, swooped down on the plant for a week-long surprise inspection. Inspectors found it in such a state of disrepair that huge amounts of benzene and other dangerous chemicals were seeping from cracks in worn-out equipment and leaky pipes.

In a cascade of civil and criminal enforcement actions since then, the EPA has accused the plant of vastly underestimating its toxic emissions, operating illegal equipment that pumped untreated toxic gas into the air and failing to use pollution controls required by its permit that would have prevented releases of hazardous particles.

The case highlights not just possible corporate wrongdoing but the risks posed to communities around the country by an environmental regulatory system that largely entrusts companies to disclose how much toxic pollution they emit, and can take years to act once violations are discovered.

State and federal records in the Tonawanda Coke case illustrate the failure of that honor system. For many years, regulators apparently had no idea the company was discharging into the air benzene, formaldehyde and other chemicals — known to be harmful to health — in quantities many times greater than the company estimated to regulators.

Even after regulators forced the firm to fix blatant sources of benzene, sophisticated measuring equipment found the solvent seeping out of the plant at a rate of 91 tons per year, according to an EPA analysis. That was almost 30 times higher than the 6,754 pounds the firm had reported to the EPA in 2009 as part of the Toxics Release Inventory. Benzene has been associated with blood disorders, infertility, and cancer, especially leukemia.

EPA officials acknowledged in interviews with the Center for Public Integrity’s iWatch News and NPR that the Tonawanda Coke case demonstrated a weakness in tracking and curbing toxic air pollution. “The monitoring and reporting systems that have been in place for many years may not be telling us everything we need to know to identify and reduce toxic air pollution,” said Assistant Administrator Cynthia Giles, who oversees enforcement.

Executives with Tonawanda Coke declined to be interviewed for this story because of pending criminal, civil and administrative cases. A lawyer representing the company, Rick Kennedy, said Tonawanda Coke denies the allegations in each case and “intends to contest the allegations vigorously in formal legal proceedings.”

Several key state and federal regulators, explaining that they are potential witnesses in the case, also refused to be interviewed.

Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.

Judith A. Enck, the EPA’s administrator for the region that includes New York — and a former top environmental official in the state — said a larger lesson can be learned from the Tonwanda experience: Communities get cleaner air when people demand it.

“If this was in an affluent city where thousands of people lived, I think there would have been more of a laser-like focus on this earlier,” Enck said.

Many people in this community wonder why it took government agencies so long to start scrutinizing such an obvious source of toxic air. But the story of Tonawanda Coke is also a modern day parable about the clout citizens can wield when they dig in their heels and demand healthy air.

‘Why are people so sick?’

For years, some Tonawanda residents have battled itchy eyes, scratchy throats, constant headaches, and illnesses such as cancer, blood disorders, gastrointestinal diseases, miscarriages, and asthma — always wondering, often suspecting. Were these conditions in some way tied to Tonawanda Coke?

Jackie James-Creedon, who grew up within a few miles of the plant, sometimes felt a strange tightness move through her body. Her hands would turn numb; her cheeks would ache. Within a year, her doctor would diagnose her chronic body pain and intense fatigue as fibromyalgia, a neuromuscular disease.

Shortly after her diagnosis, James-Creedon read an article about a state-sponsored study in Tonawanda, which was examining the health effects of radioactive contamination left from uranium processing in the 1940s. The state found “statistically significant excesses” of thyroid, breast, and bladder cancer in Tonawanda — but said radiation wasn’t to blame.

The study got James-Creedon wondering: Was something in her hometown’s industrial environment making her sick? She remembered falling off a sled when she was 10, and into a polluted creek that reeked of chemicals; the water was so thick with pollution it was almost gooey.

Seeking answers, she visited nearby Tonawanda — and smelled the familiar odor from her youth. It’s the kind of scent that ends games on ball fields; players flee from the smell. People slam windows and stay inside when it gets bad.

Everyone, it seems, has a different way of describing it. Burning matches. Rotten eggs.

The stench reminded James-Creedon of “a bad perm.”

She met people with bronchitis, autoimmune diseases, and all kinds of cancer. Many were sicker than she was; most had no explanation for their ailments. “We were questioning: ‘Why are people so sick?’” she recalled.

As in many communities, the area lacked air pollution monitors. Few neighborhoods downwind of polluters have any reliable way of detecting whether chemicals in the air have reached an unsafe level. Nor do regulators generally do much monitoring unless citizens push for it.

Then James-Creedon learned that other communities were testing their own air with household buckets, baggies and tiny vacuums. She built the original bucket with parts from a hardware store for about $100.

When the first bucket samples came back from a lab in 2004, James-Creedon wasn’t sure what to make of them. The tests showed high levels of benzene – 54 micrograms per cubic meter of air. An official from the state Department of Environmental Conservation told James-Creedon the benzene level in the sample was 500 times higher than the state’s health guideline — .13 micrograms per cubic meter.

Roughly 50 industrial polluters have air permits in Tonawanda, but James-Creedon said the state official suggested the main offender might be Tonawanda Coke. Regulators had found no major violations at the plant, and the bucket test was a crude measurement. But it got regulators’ attention, especially after the tiny neighborhood group held a press conference downwind from the plant.

“It really stirred up a hornet’s nest,” remembered Adele Henderson, one of the original bucket testers. She remembers regulators were “pissed off” that the group didn’t warn them that they were going to blame Tonawanda Coke and a couple other plants by name.

The state did its own air samples — confirming high benzene levels in the air — then sought federal money for air monitors.

Meanwhile, James-Creedon’s group did more bucket tests. They went door-to-door in the residential streets near the plant, recruiting neighbors to monitor its pollution. Whenever the plant’s odors or plumes of black smoke appeared worse than usual, they filed complaints with the Buffalo office of the state Department of Environmental Conservation.

At first the group called itself “Toxic Tonawanda,” later, the “Clean Air Coalition of Western New York.”

With their bucket test results in hand, the fledgling activists requested meetings with J.D. Crane, hoping the Tonawanda Coke owner and CEO would agree to clean up his plant. He refused to meet.

Tonawanda Coke sits on a plateau overlooking the Niagara River. It is walled off by a guarded gate and a razor-wire fence. From the outside, it’s hard to see more than its three, tall smokestacks. The decrepit equipment that spewed benzene into the air was out of sight. So were its cracked 50-year-old ovens and a huge tar sludge decanter that overflowed on to the ground during emergencies, according to an affidavit from a federal investigator and other federal documents.

Instead of fixing leaks, plant employees would fill them with wooden pegs or cover them with metal bands or strips of cloth, according to the EPA’s July 19 enforcement order.

One member of the Clean Air Coalition was married to a volunteer firefighter in town. He told the group what he saw when he went into the plant to put out fires or respond to false alarms.

“You go in there and you think you are in an abandoned facility. That’s how run down it is,” said Lou McNett, the firefighter. So much soot hung in the air at the plant, even when he went there on a false alarm, that he’d come out blackened to his skin, despite his waterproof gear and three layers of clothing.

Often, the plumes of smoke coming from the plant would appear so big and black that the fire station received 911 calls from people who thought the place was ablaze. But when the fire trucks arrived, McNett says, the security guard wouldn’t let them in.

“Just about every time we showed up they would try to block our way,” he recalled.

A company insider surfaces: ‘Our Deep Throat’

While James-Creedon and her group were taking bucket tests, Jennifer Ratajczak and her husband, Glenn, had been visiting doctors — trying to figure out why she was so sick. Six years passed before she would be diagnosed with leukemia. On that day, in May 2006, doctors explained that her disease was not genetic and asked whether she had worked with benzene.

She never had. The question stuck in her mind.

She was just shy of her 40th birthday, with two children in elementary school whom she feared she wouldn’t live to see graduate. Eventually, chemotherapy put her in remission but she must take the pills every day of her life. The disease and the medication’s side effects leave her so exhausted that she’s had to quit working as an engineering specialist for the local gas company. Now, she says, she saves all her energy for her kids.

Several years later, Ratajczak would discover at least one way she had been exposed to benzene.

In March 2008, four years after the initial bucket test, the state held a public meeting to share the first six months’ worth of data from its air monitors. One monitor showed benzene levels more than 10 times the state average. Later results suggested even higher levels, perhaps 75 times what the state considers to be an acceptable risk. Monitors also were tracking high levels of other toxic chemicals, including formaldehyde, carbon tetrachloride, acetaldehyde and acrolein.

For Jennifer and Glenn Ratajczak, who were in the audience, the news was stunning. “It was horrific,” recalls Jennifer. “I needed answers. Is it what triggered my disease? Could it be harming my husband, who is working in the industrial area? What about my two children?”

The Clean Air Coalition, the Ratajczaks learned, had long suspected Tonawanda Coke as the main source of the poisons. At that 2008 meeting, however, state officials didn’t implicate Tonawanda Coke. Nor did they announce plans to make the plant reduce its emissions.

James-Creedon remembers feeling vindicated – the benzene problem was real – yet angry that the state was still doing nothing about Tonawanda Coke. “It was maddening,” recalled Adele Henderson, an art professor who was one of the first members of the group. “I was really irritated and frustrated.”

Not long after, Ratajczak and her husband went to their first of many coalition meetings.

“After we left, I sat in the car and burst into tears,” Ratajczak recalls. “Something deep in my heart knew there was a huge problem going on in my hometown and my conscience would not allow me to turn away.”

During that summer of 2008, the pollution from Tonawanda Coke seemed especially bad. People living near the plant complained about black smoke, a burnt rubber smell. Some swore things were worse than ever. They stopped opening their windows at night or barbequing in their back yards. They kept their children away from home as much as possible. They suffered even more from sore throats, headaches and breathing problems.

Listening to the local TV news, Ron Snyder heard the residents’ health complaints, and decided to blow the whistle on his former boss. He had worked as a manager at Tonawanda Coke for 25 years but left the plant in 2005, when the owner wanted to demote him from his post as plant supervisor.

Snyder knew the plant’s operations and pollution violations, and he kept in close contact with former coworkers. He arranged a meeting with state environmental regulators, including Larry Sitzman, the state official who had been inspecting the plant.

For Snyder, a Catholic, it was like a long-overdue confession. He spilled his guts for hours.

Sitzman’s handwritten notes from the encounter, released in response to an earlier Freedom of Information Request filed by some members of the coalition, confirm Snyder’s memory.

The former plant supervisor outlined a long list of practices at Tonawanda Coke that sent noxious emissions into the air. For instance, the plant produced a dirtier type of coke, furnace coke, at night so people wouldn’t see big the “black mushroom clouds” it created, Snyder asserted. Pollution standards are more stringent for furnace coke. And frequent power failures were shutting down the plant’s exhaust system, forcing workers to open up the ovens and release untreated gases full of benzene.

Snyder expected a hero’s welcome from regulators, but, he said, didn’t get it. He also expected them to press for more information. He said he didn’t hear from anyone for more than a year.

So he chose to sleuth for the Clean Air Coalition. He asked members to conceal his identity because he feared he could face prosecution for his own actions as a plant manager.

It was a breakthrough for the group; it finally had someone to contact when it suspected something was happening inside the plant.

“He was our ‘Deep Throat,’” recalled Adele Henderson. “I always thought it was Ron Snyder’s testimony that triggered the raid on Tonawanda Coke because he knew so much and saw so many bad things happening and so many violations. Otherwise it’s a place on the hill behind fences. There’s no way of knowing what goes on there.”

Snyder’s information gave the coalition facts to go toe-to-toe with state regulators. Its new leader, Erin Heaney, said Snyder’s inside knowledge boosted members’ confidence.

“Often it’s women going up against male engineers,” said Heaney, who succeeded James-Creedon as executive director of the Clean Air Coalition. “And to be able to go in knowing that, ‘no, we actually do know what is going on in that plant’… is really, really important.”

In 2009, Snyder said, he finally heard from state and federal investigators. He met officials on several occasions, describing in detail how the plant had long been ignoring environmental requirements. Among other things, he told them the plant didn’t have basic pollution control devices called baffles, which are required by the state.

Coke comes out of the ovens at more than 1,000 degrees and goes to what’s called a “quench tower” to be drenched with thousands of gallons of water. Giant wooden louvers sit on top of the tower to catch the toxic particles that rush out with the massive plumes of steam.

Snyder said one of Tonawanda Coke’s towers never had baffles and the baffles on the other tower fell apart long ago. It would be easy for an inspector to check whether or not they were there, Snyder said; all he’d have to do is look up in the tower. To prove this point, he went to Google Earth and showed the investigators the quench towers without any baffles covering them.

Snyder recalled that he also told authorities that every 20 to 30 minutes the plant released untreated gas from the ovens into the atmosphere through a valve that was only supposed to open in emergencies.

“That’s been spewing into the atmosphere for 25 or 30 years,” Snyder said. “The DEC and the EPA would, apparently, just walk right past it.” When inspectors were expected at the plant, he said, workers would change the settings so the valve wouldn’t go off.

Claim is a ‘bun with no burger,’ CEO tells senator

State and federal inspectors finally swooped down on Tonawanda Coke in April 2009 for that week-long, surprise inspection. They found many violations of clean air, clean water, and toxic waste laws. They documented how the plant didn’t have baffles, and they caught a worker trying to change the settings on the pressure release valve so it wouldn’t open — two of the problems exposed by Snyder. Inspectors questioned the worker, who told them he was following the environmental manager’s direction.

Two months later, in June 2009, the state held another public meeting. This time, officials identified Tonawanda Coke as the main source of the benzene plaguing the community.

Jackie James-Creedon remembered jumping to her feet and applauding.

That August, the company’s owner, Crane, wrote a letter to Sen. Charles Schumer, D-N.Y., in which Crane disputed the state’s air study claiming Tonawanda Coke was the main source of benzene.

“It’s a red herring, bun with no burger claim,” Crane wrote.

Crane blamed the benzene on traffic from nearby highways instead. He also claimed that his plant was and had always been in compliance with regulations. (A state inspector corrected the record in a letter to the plant. He noted three times the state had ordered the plant to fix air pollution violations between 1981 and 2009, and pay a single fine of $6,000.)

Crane’s letter infuriated members of the Clean Air Coalition. For the first time, the group decided to hold a rally across from the main entrance of the plant. Heaney and James-Creedon went to Albany to demand action. There, they met Judith Enck, then deputy secretary for the environment.

It turned out to be an important meeting. James-Creedon and Heaney made a strong impression on Enck, who was about to become the EPA’s top official in the region. By December, armed federal agents raided Tonawanda Coke with search warrants in what had become a criminal case.

A 20-count federal indictment charges the company and its manager of environmental controls, Mark L. Kamholz, with violating the Clean Air Act by not having baffles and by illegally operating the pressure release valve. It also charges them with obstructing justice for trying to hide their illegal use of that valve.

The indictment alleges Kamholz “did corruptly influence” EPA’s inspection “by instructing a Tonawanda Coke Corporation employee to conceal” that the pressure release valve “during normal operations, emitted coke oven gas to the atmosphere,” in violation of the plant’s permit. The indictment also charges the company with violations of hazardous waste laws.

The company and Kamholz pleaded not guilty to the charges, which are still pending.

Rick Kennedy, Tonawanda Coke’s lawyer, said the company could not “tell its side of the story” because of the pending legal cases against it. But he stressed that the company has been cooperating “in good faith” with the regulators to reduce pollution despite the “serious nature of our disagreements.”

Rodney Personius, Kamholz’ lawyer, said the government’s “very aggressive position” against the company and his client reflected the “tremendous amount of pressure from the community.” The case, he said, was likely to go to trial because the company has “meritorious defenses.”

Since the raid, the EPA has been sending Tonawanda Coke official notices of its many alleged violations and demanding that it install pollution controls, fix leaks, and clean up toxic wastes.

The EPA said it proved the company was pumping out benzene at a rate of 91 tons per year. It did that by requiring Tonawanda Coke to pay hundreds of thousands of dollars for sophisticated monitoring by a device that uses lasers to measure concentrations of gases.

The ultraviolet Differential Absorption Lidar, or DIAL test, showed what the people of Tonawanda had suspected for years: Tonawanda Coke wasn’t releasing three to five tons of benzene into the air, as it had been reporting to regulators. Rather, it was pumping out benzene up to 30 times that amount, yearly, according to the EPA.

The DIAL test also gave the EPA support for its determination that Tonawanda Coke should be classified as a “major” source of benzene, which toughens its pollution control requirements. EPA’s threshold for being a major source: 10 tons per year of an individual toxic chemical, or 25 tons total of air toxics.

In July, the company agreed to an EPA order that requires it to reduce its benzene emissions by two-thirds by 2012. That agreement describes a plant still in disrepair: Many holes in piping and equipment were patched with cloth and metal bands or wooden plugs and still leak, for instance; the lid of a huge tank that catches liquids from the coke oven exhausts was falling apart, allowing toxic gases to flood on the ground.

“The poor mechanical and structural integrity of these components and equipment, and the air pollution control practices utilized, resulted in increases in preventable fugitive [coke oven gas] emissions, including emissions of VOCs and benzene,” EPA wrote in the order.

This fall, state officials told the community that the monitors downwind from the plant already show significantly reduced levels of benzene and other toxic chemicals. They estimate about half of that improvement is due to lower production at the plant. Improved pollution controls at Tonawanda Coke also may account for it.

Even so, many of Tonawanda’s pollution fighters are not satisfied with the government’s deal. “Benzene is very nasty. It’s a carcinogen,” said James-Creedon. “It is not enough for my community. The safe level for benzene is zero.”

This story was reported by Kristen Lombardi of the Center for Public Integrity and Elizabeth Shogren and Sandra Bartlett of NPR, and was written by Shogren. Jill Rosenbaum also contributed to this article.