Com. v. Farmer

• Citation: 750 A.2d 925
• Parties: COMMONWEALTH of Pennsylvania v. Michael W. FARMER and M.W. Farmer Company, Appellants.
• Decision Date: 05 April 2000
• Court: Commonwealth Court of Pennsylvania

750 A.2d 925

COMMONWEALTH of Pennsylvania v. Michael W. FARMER and M.W. Farmer Company, Appellants.

Commonwealth Court of Pennsylvania.

Argued December 6, 1999.

Decided April 5, 2000.

Gregory Barton Abeln, Carlisle, for appellants.

Mark A. Bellavia, Harrisburg, for appellee.

Joel R. Burcat, Harrisburg, for amicus curiae, PA Petroleum Marketers and Convenience Store Assoc.

Before SMITH, J., FRIEDMAN, J., and MIRARCHI, Jr., Senior Judge.

SMITH, Judge.

Michael W. Farmer and M.W. Farmer Company (the Company), of which Michael Farmer is president and sole shareholder (together, Farmer), appeal from the October 30, 1998 and January 6, 1999 orders of the Court of Common Pleas of Lycoming County that found both of them guilty of eight counts of a complaint charging them with violating provisions of the Solid Waste Management Act (SWMA), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003, and imposed sentences.¹ The trial court sentenced Michael Farmer to an aggregate period of five years' probation and payment of a fine of $18,000. The court sentenced the Company to pay an aggregate fine of $67,000. Together they were ordered to pay $5, 916.68 for the costs of prosecution.

Farmer questions whether the trial court erred in finding that the Attorney General and the former Department of Environmental Resources (DER), now the Department of Environmental Protection (DEP), did not violate Section 205(a)(6) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-205(a)(6), where DER assertedly referred the matter to the Attorney General without conducting an investigation, and whether the trial court erred in permitting the Commonwealth to proceed against Michael Farmer on a theory of strict liability. Further, Farmer questions whether the court erred in failing to determine that the Commonwealth did not meet its burden of proof for failure to provide testimony or evidence that the materials tested or observed were conclusively either a "waste" or a "product."

Farmer's business includes contracting to remove underground storage tanks from residential, municipal, commercial and industrial sites. Often the remaining contents would be separated into sludge at the bottom, then water, then petroleum material, which might be gasoline, diesel fuel, kerosene, heating oil or crankcase oil. Usable material at the top would be pumped out first and either kept by the client or put into tanks with like material at Farmer's property. Unusable contents were pumped into drums for storage on Company property or into the vacuum truck and then into a 10,000-gallon aboveground storage tank. When the material had accumulated sufficiently, Farmer would take it to a waste oil recycling facility such as Lancaster Oil Company to be recycled or reused in some beneficial manner other than burning.

On or about July 13, 1992, an individual came to the Williamsport Office of the Attorney General, Environmental Crimes Section, and alleged that Farmer was removing underground gas storage tanks and was improperly dumping contaminated soil at a site along Route 15 in Armstrong Township south of Williamsport. The individual was questioned by Steven Dunkleberger, Operations Manager of the Bureau of Waste Management of DER, at the offices of the Attorney General but without participation of that office at that time. Dunkleberger provided information from the interview to Richard Bittle, Environmental Protection Manager, who sent a memorandum to Leon Kuchinski, Chief of the Division of Environmental Enforcement, who decided to refer the matter to the Office of the Attorney General, Environmental Crimes Section.

On April 7, 1993, the Commonwealth along with DER executed a search warrant at Company property and seized business records, searched the premises and took samples of noticeably discolored ground and of the contents of some 55-gallon drums for testing. On June 22, 1993, DER issued a compliance order directing the Company not to remove hazardous or residual waste off-site without manifesting it as hazardous waste or obtaining prior approval. On July 13, 1993, DER took further samples from the 10,000-gallon tank, which samples it shared with Farmer. On April 19 and May 20, 1994, shipments from Farmer to Lancaster Oil Company manifested as "oily water" were rejected. The first was rejected for having too low a flash point and the second for that reason plus high lead content.²

I

Farmer first contends that the Attorney General and DER violated the Commonwealth Attorneys Act. It notes that the Supreme Court has held that pursuant to Article IV, Section 4.1 of the Pennsylvania Constitution, the powers of the Attorney General are solely those provided for by statute. Commonwealth v. Carsia, 512 Pa. 509, 517 A.2d 956 (1986). Section 205(a) of the Commonwealth Attorneys Act, 71 P.S. § 732-205(a), relating to prosecutions, limits the prosecutorial authority of the Attorney General to enumerated instances including: "(6) Criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the statute charging the agency with a duty to enforce its provision." (Emphasis added.) Farmer contends that the evidence does not establish that DER "investigated" charges against it.

As Farmer concedes, the trial court determined that Dunkleberger's interview of the complainant constituted an investigation of the Armstrong Township complaint sufficient to satisfy the Commonwealth Attorneys Act. The court cited Commonwealth v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988), where the Supreme Court stated that an ordinary citizen who reports a crime stands on different ground than a paid police informer, and such a person's trustworthiness may be presumed. The Commonwealth notes that the Superior Court has held that under Section 206(a) of the Commonwealth Attorneys Act, 71 P.S. § 732-206(a), which specifies that the Attorney General has the power to investigate any criminal offense that he or she has the power to prosecute under Section 205, the Attorney General need only establish by a preponderance of the evidence that a factual basis existed that supported a reasonable belief of authority to prosecute. Commonwealth v. Usa, 411 Pa.Super. 474, 601 A.2d 1265 (1991).

The Court agrees that the entire proceedings against Farmer were not fatally defective under the Commonwealth Attorneys Act. As the trial court noted, the Office of Attorney General was not overreaching; DER had investigated Company property on several occasions before the complaint from the individual. Although DER might have conducted a more extensive investigation, the Court cannot accept the contention that DER's receipt of a citizen complaint and evaluation of it at several levels within the agency before referral to the Attorney General constituted no investigation at all.

II

Next Farmer argues that the trial court erred in permitting the Commonwealth to proceed against Michael Farmer on a theory of strict liability. Section 401 of the SWMA, 35 P.S. § 6018.401, provides in part:

(a) No person or municipality shall store, transport, treat, or dispose of hazardous waste within this Commonwealth unless such storage, transportation, treatment or disposal is authorized by the rules and regulations of the department;... and no person or municipality shall transport hazardous waste within the Commonwealth unless such person or municipality has first obtained a license for the transportation of hazardous waste from the department.

Farmer asserts that this is the first time that the Commonwealth has imposed strict felony liability upon an individual for an incident that did not involve illegal dumping or even a threat of pollution.

Farmer contends that Section 401 of the SWMA violates the due process clauses of the Fourteenth Amendment and of Article I, § 9 of the Pennsylvania Constitution.³ Farmer cites Downs v. Commonwealth, 150 Pa.Cmwlth. 455, 616 A.2d 39 (1992), where an individual and the company of which he was the sole shareholder were charged with violations of Section 401 and other sections of the SWMA for abandoning drums containing hazardous waste in a field. The trial court sentenced the individual to a term of imprisonment. The Court noted that Section 606(f) of the SWMA, 35 P.S. § 6018.606(f), provides that any person who violates Section 401, or who transports, treats or disposes of hazardous waste "in violation of any order of the department" is guilty of a second degree felony, and Section 606(i), 35 P.S. § 6018.606(i), expressly provides that "[w]ith respect to the offenses specified in subsections (a), (b), (c) and (f), it is the legislative purpose to impose absolute liability for such offenses." This Court stated in Downs that the trial court's charging the jury that it must find the defendant at a minimum criminally negligent, when the statute imposes strict liability, was harmless error where the jury had convicted on the basis of ample evidence even under the higher standard. Therefore Downs provides Farmer no support.

Farmer acknowledges that it is involved in a highly regulated industry and that Section 401(b) of the SWMA clearly subjects persons who store, transport, treat or dispose of waste to liability for harm even though they have exercised the utmost care. Nevertheless, Farmer contends that statutes and regulations relating to the handling of petroleum products are so unclear as to render application of strict criminal liability to be fundamentally unfair. He asserts that he was regulated by DER for years, and no one ever told him that blending petroleum products would constitute creating a hazardous waste requiring a permit. In addition, DER informed Michael Farmer in a letter in 1982, Defendants' Ex. 1, that it was up to the generators, i.e., his customers, to determine that the materials they were giving him were hazardous. None ever did.⁴ Michael...