State v. Electroplating, Inc.
| Decision Date | 10 June 1998 |
| Citation | 990 S.W.2d 211 |
| Parties | STATE of Tennessee, Appellee, v. ELECTROPLATING, INC., and Ross Cunningham, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Jerry D. Hunt (Trial only), Lebanon, Bob Lynch, Jr. (Trial and Appeal), Nashville, TN, for Appellant.
John Knox Walkup, Attorney General & Reporter, Albert L. Partee, III, Senior Counsel, Victor S. Johnson III, District Attorney General, John Seaborg, John A. Moore, Assistant District Attorney Generals, Nashville, TN, for Appellee.
The appellant, Ross Cunningham, appeals his conviction for willfully failing to comply with the Tennessee Water Control Act of 1977 by discharging chromium into the Metropolitan Government Sewer System on September 5, 1994, a class E felony. 1 After the Davidson County jury returned a guilty verdict, the trial court sentenced the defendant to the minimum one-year sentence and a fine of $10,000. The trial court suspended the sentence and ordered Cunningham to serve two years on probation including 800 hours of community service and, in addition, required a cash bond securing payment of his fine and the costs. In this appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, Cunningham alleges that:
1. The trial court erred when it denied his motion for judgment of acquittal at the close of the state's proof and in the motion for a new trial.
2. The trial court erred by admitting evidence of the defendant's prior bad acts.
3. The trial court erred by admitting extrinsic evidence of specific instances of conduct to impeach the defendant's credibility.
4. The trial court erred in allowing the defendant to stand trial for the same charges both as an individual and as a corporate defendant.
5. The trial court erred in denying the defendant's request that he be granted judicial diversion under Tennessee Code Annotated section 40-35-313.
The state also raises an issue in this appeal. It contends that the trial court erred by not requiring the defendant to pay restitution.
We have reviewed the record and the law in this rather unusual case. Because the state does not have the right to appeal a trial court's failure to order restitution, the state's appeal is dismissed. See Tenn.Code Ann. § 40-35-402 (1997). Finding no error warranting reversal of Cunningham's conviction or any modification of his sentence, we affirm the judgment of the trial court.
Because of the complexity of the factual issues in this case, we discuss the facts in detail. During the early morning hours of September 6, 1994, an employee of the Metro Water Services Department at the Dry Creek facility took a sample from the Old Hickory line and noticed that the sample was yellowish-orange rather than its normal brown color. The employee preserved a gallon of the orange liquid, and later, James Pogue, a chemist for Metro Water Services, took the sample to the Central Waste Water Treatment Plant for analysis of its metals content.
Based on his knowledge and experience, Pogue immediately identified two possible sources for the discharge in the Old Hickory/Lakewood area. The first company he visited was Chem-Plate where he met with the owner and informed him of the discharge. Chem-Plate's owner stated that he had had no spills in the past couple of days, and on a walk-through of the plant Pogue found no evidence of anything similar to the sample taken at the treatment plant. The second company he visited was Electroplating, Inc., where he met with Ross Cunningham, the owner. Cunningham told Pogue that he had closed the plant due to the deteriorating condition of the roof. He denied any responsibility for the discharge and explained that he had been out of town until late in the evening on September 5. 2 Pogue testified that he was able to eliminate Chem-Plating as the source of the discharge rather quickly. First, the analysis of the sample taken at the treatment plant showed that the discharge contained a high concentration of chromium, and he knew that Chem-Plate did no chrome plating. Second, after examining a sewer plat map of the Lakewood Sanitary Sewer System, Pogue found that Chem-Plating and Electroplating, Inc., were on the opposite sides of a hill which prevented the sewer flow from the two plants from combining until they were out of the Lakewood district. 3
Pogue then concentrated his attention on the Electroplating facility. On September 7, he and William Bryant, a senior chemist for the Metro Water Service, returned to conduct an inspection. During this inspection, they found two plating tanks at the back of the building. One tank was empty except for some yellow-orange sludge at the bottom, and the other contained approximately 250 gallons of a yellow-orange solution. The official discharge point for the plant's waste water was a shallow manhole directly behind the facility. The inspectors were unable to take a sample from this manhole because it was completely dry.
The official discharge point, however, connects to manhole 68 which also receives the sanitary discharges from the plant's bathroom and sink. Only Electroplating is connected to manhole 68. No sample was taken from this manhole. Sewage from number 68 flows approximately 268 feet to manhole 15 into which four residences also empty their sewage. Gravity flow carries the sewage through manholes 13, 14, and 17 and ultimately to the Lakewood and Old Hickory Pumping Stations. While Pogue was inspecting manhole 15 on September 9, a yellow-orange substance flowed through the manhole, and he was able to secure a sample. To provide for continuing observation, an automatic sampler that took samples at regularly scheduled intervals was installed that same day.
On September 12, Pogue returned to manhole 68. He found a blueish-green liquid in the bottom of the manhole. Although no samples from this site were analyzed, he presumed that the liquid contained a concentrate of nickel because of the color. The concrete in the manhole had been eaten away by what appeared to be some type of acid. Pogue testified that out of the thousands of manholes he had seen, he had never found one as corroded and eaten away as this one. Later, Pogue stated that Ferguson Harbor, an environmental clean-up company, had removed the metal-bearing waste found in the sewer line near manhole 68 at a cost of $7,413.60. 4
Pogue and Bryant made another inspection of Electroplating's plant on September 14. Cunningham allowed them to walk through the plant but denied permission to take pictures. During this visit, Cunningham stated that, although he had dumped some "stuff" before, he was not responsible for the current problem.
At trial, Bryant explained the Metro Water permit system. Users that discharge more than 25,000 gallons per day or that discharge pollutants must have an industrial user's permit. Electroplating's permit was issued on March 15, 1994 and was effective through March 15, 1997. The permit defines the amount of various pollutants that may be discharged into the sewer system, spells out the methods to be used for collection and analysis of samples, and requires that certain records be kept. Electroplating's permit specifically limits the amount of chromium, nickel, copper, zinc, cadmium and other metals the plant could discharge into the system both at a given moment of time and in a twenty-four hour period. For example, the 'grab' sample limit on chromium was ten parts per million (ppm) and the limit for a twenty-four hour composite sample is five ppm. Dry Creek Water Treatment Plant also has limits which it cannot exceed.
The state introduced the test results from three different samples: # 1520, the original sample taken on September 5 at Dry Creek; # 1556, the 'grab' sample taken on September 9 from manhole 15; and # 1567, the composite sample obtained from the automatic sampler on manhole 15 from September 9 through September 12. Sam Seged, a laboratory chemist employed by Metro Water Services, testified that he analyzed each sample for the presence of various metals including chromium, nickel, copper and zinc. The reported results, expressed in part per million, and the permit limits are compared in the table below. The limits in # 1520 are from the limits imposed on influent at the Dry Creek treatment plant. The other two samples are compared to the limits in Electroplating's permit.
# Type Chromium Limit Nickel Limit Copper Limit Zinc Limit
1520 grab 560 .51 16 .32 11 .52 .4 .43
1556 grab 400 10 23 10 2.5 10 3.1 10
1567 composite 450 5 1300 5 160 5 130 5
According to William Bryant, once sewage at the treatment plant exceeds the limitations there is a possibility for environmental harm. Not only would the Cumberland River be harmed, but the toxicity of the metals could destroy the biological activity at the treatment plant itself and, as a result, the treatment system could fail. Bryant also concluded from the data that there were two separate discharges represented by samples 1520 and 1567. He described samples 1520 and 1556 as having the same "fingerprint" and, therefore, he considered them to be representative of the same spill. The first discharge was high in chromium with smaller amounts of the other metals; the second discharge, on the other hand, was extremely high in nickel. The state's experts conceded that it was possible that a backflow from the area below manhole 15 could occur; however, such a backflow was extremely unlikely except during periods of heavy rain. James Pogue explained that the yellow-orange flow he observed in manhole 15 on September 9 was probably caused by liquid emptied into the line earlier but trapped in a low spot. When a new surge of liquid passed through the line, the trapped discharge was released. On...
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...of the evidence can be raised for the first time on appeal." (citing Pa. R. Crim. P. 606(A)(7) ); State v. Electroplating, Inc. , 990 S.W.2d 211, 220 (Tenn. Crim. App. 1998) ("[N]othing in the rules requires the defendant to raise the sufficiency of the evidence either in a motion for judgm......
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... ... be raised for the first time on appeal." (citing Pa. R ... Crim. P. 606(A)(7)); State v. Electroplating, Inc. , ... 990 S.W.2d 211, 220 (Tenn. Crim. App. 1998) ("[N]othing ... in the rules requires the defendant to raise the sufficiency ... ...
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...of the elements of a crime, the error is fundamental and may be raised for the first time on appeal."); State v. Electroplating, Inc. , 990 S.W.2d 211, 220 (Tenn. Crim. App. 1998) ("[N]othing in the rules requires the defendant to raise the sufficiency of the evidence either in a motion for......
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...of the evidence is substantive fact rebuttal that incidentally impeaches a fact or fact witness. See State v. Electroplating, Inc., 990 S.W.2d 211, 231, n. 17 (Tenn.Crim.App.1998). In other words, when "fact contradiction" evidence is relevant to the issues on trial, it is generally admissi......