Com. v. Scarpone
| Decision Date | 15 December 1993 |
| Docket Number | No. 103,No. 104,104,103 |
| Citation | 634 A.2d 1109,535 Pa. 273 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant atW.D. Appeal Docket 1991. v. Dave SCARPONE, Appellant atW.D. Appeal Docket 1991. |
| Court | Pennsylvania Supreme Court |
Ernest D. Preate, Jr., Atty. Gen., Anthony Sarcione, Executive Deputy Atty. Gen., Robert A. Graci, Chief Deputy Atty. Gen., Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Com.
Before NIX, C.J., FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
Two issues are presented for our consideration in this appeal by Dave Scarpone and the Commonwealth. These issues involve the Solid Waste Management Act (SWMA), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.101 et seq., §§ 6018.606(f) and 6018.401, and the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, eff. June 6, 1973, as amended, 18 Pa.C.S. § 101 et seq., § 5101.
Scarpone appeals from the affirmance of his conviction of obstructing the administration of law and other governmental function (18 Pa.C.S. § 5101) and the Commonwealth cross-appeals from the reversal of Scarpone's conviction of causing and assisting in the operation of a hazardous waste disposal facility without a permit (35 P.S. §§ 6018.606(f) and 6018.401) 141 Pa.Commonwealth 560, 596 A.2d 892.
Dave Scarpone was the general manager of the Municipal and Industrial Disposal Company (MIDC) which is located in Elizabeth Township, Allegheny County. It operated a fly-ash disposal facility and a demolition waste disposal site. In 1979, the facility received a permit to dispose of various wastes including hazardous wastes. MIDC is owned by Scarpone's co-defendant at trial, William Fiore.
For each type of waste or "waste stream" which the company intended to receive at this site, it was required to submit a form or "module" to the Department of Environmental Resources (DER) for approval. The form known as "Module 1" indicates the type of waste, how it is generated, its chemical and physical characteristics, where it will be placed and how it will be disposed. The information is certified by an engineer employed by the landfill operator. DER then reviews the proposal to determine whether the particular waste stream is compatible with: 1) other waste deposited on that site, and 2) the site liner. Upon receipt of a module, DER's technical staff reviews it. DER will then either approve or reject the module. If rejected, the landfill operator may not deposit this particular waste at his facility.
MIDC's disposal facility contained, inter alia, a Phase I disposal pit, a temporary disposal pit, and a demolition site. The facility was licensed to receive certain streams of hazardous waste and deposit them in the temporary pit and later the Phase I pit. The Phase I pit was lined with natural clay which had been found to be sufficient to contain the wastes and keep them from seeping out. After the Phase I pit was full, it was eventually to be closed and covered in order to return the site to its natural condition. In order to be sure that the hazardous wastes were not seeping into the environment, various monitoring systems were established.
Running under the Phase I pit was an under-drain which was identified as pipe 810. This under-drain converges with the 711 pipe in a manhole near the pit and emits a single discharge. The purpose of the under-drain was to convey mine water beneath the disposal pit carrying it away from the liner. If the liner failed, materials seeping out of the pit through the liner would appear in the under-drain.
In late 1982 and early to mid 1983, a DER Solid Waste Supervisor, Mr. Dan Peterson, during routine inspection visits, detected a strong organic odor coming from the manhole. He described this odor as very similar to the type of odor that one gets when one is around a disposal pit. Also, it was considered similar to odors one gets at a U.S. Steel coke-making facility. Numerous samples of the discharge from the 711 and 810 pipes were collected by the DER and tested at their laboratory in Harrisburg. The samples tested positive for the presence of organic chemicals (i.e., Benzene, Toluene and Xylene).
DER officials informed Mr. Fiore that no additional requests to dispose of hazardous wastes would be approved until the matter was resolved. Subsequently, several meetings were held between MIDC and DER officials. As a result of these discussions, MIDC and the Commonwealth entered into a "Consent Order and Agreement." The agreement provided that MIDC would apply for a water quality permit (NPDES) which would set certain limits on the chemicals discharged from the site. If the discharge exceeded those limits, MIDC agreed either to establish a treatment plant on the site or collect the discharge and transport it to a treatment plant.
Subsequently, in November of 1983, James R. Shack, a solid waste specialist for the DER, who took samples from both the 810 pipe and the 711 pipe, noticed that the discharge flow from the 810 pipe had lessened significantly and the odors no longer existed. On July 26, 1984, Mr. Shack observed that there was no discharge flow coming from the 810 pipe. Since he was curious about this phenomenon, Mr. Shack climbed down into the manhole and then maneuvered himself up into the 810 pipe. When he did so, he discovered that the 810 pipe had been capped with three or four metal plates.
Charles Kroll, a welder, testified that he was contacted and hired by Mr. Scarpone during the summer of 1983 to cap the 810 pipe, install an elbow pipe and another smaller pipe which led to a disposal pit which was not yet in use. Mr. Kroll also indicated that Mr. Scarpone directed this capping activity. Another welder, Elmer Holmes, testified that during the same time period, he was hired and directed by Mr. Scarpone to install a two-inch pipe below ground between two larger pipes. Stemming from the two-inch pipe was a stand pipe which stood perpendicular to it and reached the surface of the ground. Inside this stand pipe and attached to the two-inch pipe was a valve which, with the aid of a socket-type wrench, could be turned on and off.
The capping of the 810 pipe prevented the flow of water from under the Phase I pit into the 810-711 monitoring point. This was the discharge which previously had given off organic odors leading to the finding that hazardous wastes were seeping into the aquifer running under the pit. The newly installed connecting pipe brought water from the unopened disposal pit to a point in front of the cap. Had this alteration not been made, the capping of the 810 pipe would have prevented any flow at all at the monitoring point. A third alteration consisted of a hidden pipe operated by a buried valve covered over with rocks. When the valve was opened, this pipe permitted the drainage which had backed up behind the cap of the 810 pipe to flow through the monitoring point and on into an unnamed tributary of the Youghiogheny River. Employees of MIDC testified that they observed Mr. Scarpone, and others,...
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