Erie Coke rips federal indictment for referring to 'hypothetical victims' of air pollution

Erie Coke Corp. and a former plant superintendent are attacking the wording in the indictment as they advance their pretrial defense in their federal criminal case.

The codefendants want a judge in U.S. District Court in Erie to strike swaths of the indictment, which they claim is filled with "irrelevant and prejudicial language."

In newly filed court documents, Erie Coke and the former superintendent said they are upset that the indictment, among other things, refers to what they describe as "hypothetical victims" of the air-pollution violations that the government alleges occurred at the 137-employee Erie Coke until it closed at the end of 2019 due to environmental issues.

Erie Coke and the former superintendent, Anthony Nearhoof, also want the judge to dismiss six of the eight counts in the indictment, claiming that those counts fail "to state an offense."

The documents represent the first major filings of Erie Coke and Nearhoof since a federal grand jury returned the indictment against them in November 2022. Lawyers for the codefendants filed the documents on Wednesday, the deadline that U.S. District Judge Susan Paradise Baxter set for filing pretrial motions.

Defense files pretrial motions in response to 2022 indictment

The eight-count indictment charges Nearhoof and Erie Coke Corp. with conspiring to violate the Clean Air Act for four years, ending in December 2019. It alleges they deliberately bypassed the air-pollution monitors at the plant at the foot of East Avenue as it made coke — a derivative of coal produced by heating coal in high-temperature ovens. The plant encompassed more than 180 acres on the shores of Lake Erie.

Nearhoof and Erie Coke are also accused of tampering with measurements on heating systems that emitted contaminants and pollutants into the air.

The indictment alleges Nearhoof and Erie Coke bypassed the pollution monitors to reduce "the likelihood of enforcement actions by state and federal regulators," avoid the cost of repairs and maximize "revenues and profits by running the plant as much as possible."

Nearhoof and Erie Coke, which was charged as a corporation, have pleaded not guilty. Erie Coke faces fines if convicted. Nearhoof, of Pittsburgh, is free on an unsecured bond of $10,000.

Defense says indictment contains improper 'surplusage'

In asking Baxter to strike certain language from the indictment, the lawyers for Erie Coke and Nearhoof — S. Wesley Gorman, of Pittsburgh, and Rodney Personius, of Buffalo — are arguing that a number of passages have nothing to do with the charges that allege the codefendants violated permitting requirements.

They are arguing that the indictment unfairly refers to the possible effects of air pollution on those who lived near the plant, including clients of the nearby Barber National Institute, without alleging any actual harm.

"In an effort to provoke moral outrage against the Defendants and sympathy for hypothetical victims," according to the motion, "the government drafted an Indictment in this matter that includes references to, among other things, 'cancer,' 'birth defects' and 'the Barber National Institute for adults and children with disabilities.'

"But this is an environmental fraud prosecution alleging violations of permit requirements, not a civil matter alleging environmental harms. Indeed, such references to harms and vulnerable populations have no relevance at all to this case — for either side."

The lawyers want Baxter to strike several passages as "surplusage" to avoid what they claim would be bias against the codefendants at trial. The U.S. Attorney's Office will get a chance to to respond to the motion in court.

Defense also wants a number of charges dismissed

The office will also get a chance to respond to the second defense motion filed on Wednesday. In that document, the lawyers for Erie Coke and Nearhoof are asking Baxter to dismiss six of the eight counts in the indictment.

One of the disputed counts is a felony charge of tampering with a monitoring device. The other five disputed counts contain the same charge — a violation of what is known as Title V permit requirements, referring to the type of environmental permit that the plant needed to operate.

The defense is contending that the indictment uses imprecise or otherwise flawed language to describe the disputed counts, making those counts legally insufficient because they do not state a specific offense.

The defense is not challenging the indictment's other two counts. They are lead charge of the felony of conspiracy to violate the Clean Air Act and another felony count that deals with a separate Title V violation.

Though Erie Coke no longer operates the plant, it remains in existence as a corporation. It is owned by holding companies owned by trusts controlled by the family of J.D. Crane, the Buffalo-area businessman who owned Erie Coke until he died at 92 in 2014, according to court records.

Erie Coke also still owns the plant site, which is undergoing a government-funded environmental remediation.

The Erie-Western Pennsylvania Port Authority and the Erie County Redevelopment Authority announced in late 2023 that they are developing a plan to acquire the site of the former plant and clean it up.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on X @ETNpalattella.

This article originally appeared on Erie Times-News: Erie Coke Corp. blasts federal indictment in environmental fraud case