Firth v. State

• Citation: 493 So.2d 397
• Decision Date: 28 January 1986
• Docket Number: 1 Div. 49
• Parties: John Norman FIRTH, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 397

493 So.2d 397

John Norman FIRTH, alias v. STATE.

1 Div. 49.

Court of Criminal Appeals of Alabama.

Jan. 28, 1986.

Rehearing Denied Feb. 25, 1986.

W.A. Kimbrough, Jr. and Frank Woodson, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

John Norman Firth was indicted for the "unlawful disposal of a waste without a permit," in violation of § 22-22-14, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment." The appellant was sentenced to one year imprisonment, six months suspended, and fined $18,000.

Michael Anthony Jones testified that between October of 1982 and October of 1983, he was employed by Petro-Chem Services, Incorporated. The appellant was the president of this company during this time. Jones's job was to drive trucks and clean tanks and barges. The barges were located at a site at the port of Chickasaw on Chickasaw Creek in Mobile County. The company handled drilling mud, a by-product of a drilling rig owned by Superior Oil in Mount Vernon. The drilling mud would be transported from Mount Vernon to Chickasaw in small barges and then transferred to larger barges in Chickasaw.

The company received some equipment, termed "mud doctors," at this Chickasaw site. The equipment is designed to take 95 percent of the water out of the drilling mud so that the mud can then be hauled in trucks to a landfill. The "mud doctors" did not work and Jones was told to clean up the equipment. Jones washed the equipment and the mud ran into the creek.

In April of 1983, Jones was told to dump some drilling mud into Chickasaw Creek. It was raining hard that day. That afternoon, the appellant came out to the site where the dumping was in progress. The appellant told Jones they were "doing a good job" and to "keep the work up." (R. 30) The appellant then walked to his car and got a couple of bottles of Joy detergent and walked back to the edge of Chickasaw Creek where there was a light film on top of the water. The appellant squirted the detergent into the water and the film disappeared. He then said, "[N]ext time you see that film, just take this Joy and squirt it on there and we won't have nothing to worry about, and nobody can see any evidence...." (R. 31) Jones pumped drilling mud on a couple of other occasions when it was raining hard because the mud from the rain would cover up the drilling mud.

In June of 1983, Jones had a conversation with the appellant. Also present were his brother, Brett Jones, Brian Holderfield and Pete Crolich. At this time, the Chickasaw site had been closed and all of the equipment was no longer there. Two trucks from Louisiana had been brought over by the company and the appellant told Jones to take one of the trucks out to Chickasaw and see if it would pump the drilling mud out of the barges into the truck.

Jones did this and he told the appellant that the truck would pump the mud. Jones was then told to go out to the site and pump the mud into the creek.

The next night, Jones went out to Chickasaw Creek with his brother and Crolich. They put one end of a hose in the drilling mud in the barges and hooked the other end of the hose to the truck. The truck then pumped the mud into the truck. They then put one end of the hose into the creek and pumped the mud from the truck into the creek. Four truckloads of drilling mud were discharged into the creek that night. A truckload is 80 barrels. A barrel is 42 gallons.

The next two nights the same process was repeated. Brian Holderfield was also present on these occasions. During those two nights, 16 truckloads of drilling mud were discharged into the creek.

Jones quit his job in October of 1983 because his paychecks were no good. He was contacted by the State in regard to the discharge in the early part of 1984. He contacted Holderfield concerning this matter because the State asked him to get in touch with persons who were present when the discharge took place.

Jones stated that he wanted to "get" the appellant because he had not received his money from his paychecks. Jones also contacted Sam Tate and Doug Christopher to help "get" the appellant.

Brett Jones and Brian Holderfield testified to basically the same facts of the June discharges as Michael Jones had.

Gary Allen, an environmental investigator with the Department of Environmental Management, testified that, after talking with the Jones brothers and Holderfield, he went to the Chickasaw Creek site and took samples of the creek bottom. On February 6, 1984, Allen took six samples of the creek bottom in the immediate area where the discharging allegedly occurred. On February 9, 1984, Allen took three more samples of the creek bottom, one upstream, one downstream and one across the bank from the discharge site. He then took these samples to Montgomery to be analyzed. The samples were analyzed by Charles Sellers, a chemist with the Alabama Department of Environmental Management.

The samples were analyzed for barium, a component of drilling mud. Allen testified that barium is an element that occurs naturally in the environment. The normal level of barium for the Chickasaw Creek would be less than 100 parts per million.

The results of the six samples taken on February 6 where the discharge allegedly occurred were (all in parts per million): (1) 1,070; (2) 1,350; (3) 2,300; (4) 1,800; (5) 2,100; (6) 1,600. All of these samples were significantly above the normal barium content of the Chickasaw Creek. The barium content of the upstream, downstream, and across the bank samples were, respectively (all in parts per million), 60, 213, 28.

Allen testified that barium is a heavy element and when discharged into the water, it would sink almost directly to the bottom. This is the reason that the six samples were significantly higher in barium content than were the other three samples. The upstream and across the bank samples revealed a barium content level consistent with the normal levels for the area, which were established by a coastal area board study. The higher barium content of the downstream samples was most likely due to small concentrations of barium being carried downstream by the current before they settled to the bottom.

Allen was shown a copy of a letter written by John C. Carlton, supervisor of the Mobile Field Office of the Alabama Department of Environmental Management. The letter referred to two samples of the Chickasaw Creek site which were taken at the direction of the ADEM on August 8, 1983. The two samples revealed a barium content of 694 and 151. (95 parts per million.) While Allen admitted that there was a possibility that someone could have added barium to the water after August of 1983, he explained the discrepancy was probably due to the fact that the samples were randomly taken. He stated that, in his opinion, nine samples would be more representative of the actual barium content than would two samples.

Allen testified that a permit must be obtained to discharge anything into the waters of Alabama. To his knowledge, Petro-Chem Services did not have a permit to discharge anything into Chickasaw Creek. Further, he testified that a permit to discharge drilling mud cannot be obtained because it is not allowed.

Allen also testified that he visited the Chickasaw site after it had been closed by Petro-Chem Services. At that time, he observed drilling mud in the barges located at the site.

George Crozier, the director of the Dauphin Island Sea Lab, testified about a study conducted by the Coastal Area Board. The study revealed that the lowest values of barium found in the Mobile Bay area was 10 parts per million, while the highest values were 640 parts per million. The location of the 640 samples was at the site of a drilling mud spill. The average barium content for the area was 37 parts per million.

Crozier stated that the results of the six samples taken by Allen at the Chickasaw site are exceedingly high compared to the barium values included in the Coastal Area Board study. Those results are consistent with the discharge of drilling mud. A barium content of over 100 parts per million indicates something has been added to the natural environment.

Crozier was also shown the results of the August 1983 samples. He explained the discrepancies between the August and February samples could have been caused by the fact that when barium sinks to the bottom it does not evenly coat the floor of the creek bottom. The closer to the discharge site a sample is taken the higher the concentration of barium.

Charles Horn, the acting director of the water division of the ADEM, testified that Petro-Chem Services did not have a permit to discharge drilling mud into Chickasaw Creek.

Caldwell Hurdle employed Michael and Brett Jones in the fall of 1983. Brett Jones was upset because the appellant had not paid him and he told Hurdle that he would get his money from the appellant "one way or the other." (R. 188)

Sam Tate testified that he was employed by Petro-Chem Services during the period in question. In January of 1983, the Chickasaw site was closed and all of the equipment was brought to the warehouse in Prichard.

Tate stated that he was in charge of all the equipment in the warehouse and lived on the premises. To check out equipment, employees had to come to him and he would then clear it with the appellant. Tate testified that no trucks were ever used overnight.

He said that the company did have two 80 barrel trucks during the time in question. However, he testified that they would not be able to suck up drilling mud because they were only designed for pumping water slush.

Tate testified that Michael Jones called him about going to the EPA about the appellant. Jones said he wanted to get his money. Tate denied any knowledge of the discharge of drilling mud into Chickasaw Creek. He is still employed by the appellant.

Jerome Agee testified that he...