U.S. v. Adamo Wrecking Co., 75-1967

• Decision Date: 01 November 1976
• Docket Number: No. 75-1967,75-1967
• Parties: , 7 Envtl. L. Rep. 20,001 UNITED STATES of America, Plaintiff-Appellant, v. ADAMO WRECKING CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1

545 F.2d 1

9 ERC 1443, 7 Envtl. L. Rep. 20,001

UNITED STATES of America, Plaintiff-Appellant, v. ADAMO WRECKING CO., Defendant-Appellee.

No. 75-1967.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1976.

Decided Nov. 1, 1976.

Philip VanDam, U. S. Atty., Detroit, Mich., John J. Zimmerman, Edmund B. Clark, Jacques B. Gelin, Peter R. Taft, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

John E. Scott, Wiley Y. Daniel, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., Burton Y. Weitzenfeld, Stanley M. Lipnick, Arthur L. Klein, Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., for defendant-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

The United States appeals from dismissal without trial of a criminal indictment against defendant Adamo Wrecking Company. The first issue presented by this case is whether or not either the District Court § 61.22 Emission Standard . . .

or this court had or has jurisdiction to review an "emission standard" adopted as a regulation under the Clean Air Act, 42 U.S.C. § 1857 (1970). The second issue (if it is reached) is whether or not 40 C.F.R. § 61.22 (1975), which is quoted below, is or is not "an emission standard" within the meaning of 42 U.S.C. § 1857c-7 (1970):

(d) Demolition: Any owner or operator of a demolition operation who intends to demolish any institutional, commercial, or industrial building (including apartment buildings having more than four dwelling units), structure, facility, installation, or portion thereof which contains any boiler, pipe, or load-supporting structural member that is insulated or fireproofed with friable asbestos material shall comply with the requirements set forth in this paragraph.

(2) The following procedures shall be used to prevent emissions of particulate asbestos material to outside air:

(i) Friable asbestos materials, used to insulate or fireproof any boiler, pipe, or load-supporting structural member, shall be wetted and removed from any building, structure, facility, or installation subject to this paragraph before wrecking of load-supporting structural members is commenced. Boilers, pipe, or load-supporting structural members that are insulated or fireproofed with friable asbestos materials may be removed as units or in sections without stripping or wetting, except that where the boiler, pipe, or load-supporting structural member is cut or disjointed, the exposed friable asbestos materials shall be wetted adequately to insure that such debris remains wet during all stages of demolition and related handling operations.

40 C.F.R. § 61.22(d)(2)(i) (1975).

The importance of the emission standard question becomes obvious when we consider three provisions of the Clean Air Act. The first provision makes any violation of an emission standard a criminal act. See Section 113 (42 U.S.C. § 1857c-8(c)). The second provides:

(c)(1) After the effective date of any emission standard under this section

(B) no air pollutant to which such standard applies may be emitted from any stationary source in violation of such standard. . . . Section 112(c)(1)(B) of the Act, 42 U.S.C. § 1857c-7(c)(1)(b) (1970).

The third provision provides for petitions for "review of action of the Administrator in promulgating" any emission standard under " § 1857c-7" to be "filed only in the United States Court of Appeals for the District of Columbia" within specified time limits, and flatly prohibits "judicial review in . . . criminal proceedings for enforcement." Section 307(b) of the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1970), provides in full:

(b)(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c-7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857f-1 of this title (other than a standard required to be prescribed under section 1857f-1(b)(1) of this title), any determination under section 1857f-1(b)(5) of this title, any control or prohibition under section 1857f-6c of this title, or any standard under section 1857f-9 of this title may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under 1857c-5 of this title or section 1857c-6(d) of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title or under regulations thereunder, may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation, approval, or action, or after such date if such petition is based (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.

solely on grounds arising after such 30th day.

(Emphasis added.)

We must consider still another portion of this record before we can turn toward a reasoned decision. The dismissed first count ¹ of the indictment read:

COUNT ONE

On or about the 19th day of February, 1974, at 2612 Carter Street, also known as 8751 Linwood Street, in the City of Detroit, County of Wayne, within the Eastern District of Michigan, ADAMO WRECKING COMPANY, the defendant herein did knowingly cause the emission of asbestos from a four and one-half story commercial masonry building at the aforementioned location by failing to wet and remove firable (sic) (friable) asbestos material, used to insulate and fireproof a boiler in the basement of said building, before demolition of the load-supporting structural supports had begun; in violation of Title 42, United States Code, Section 1857c-7(c)(1)(B), and the rules and regulations promulgated thereto, 38 F.R. 8829 (April 6, 1973), 40 C.F.R. § 61.22(d)(2)(i).

Appellee phrases the appellate question in this case as follows:

Whether the trial court correctly dismissed Count I of the superseding indictment for its incurable failure to allege an essential element of the crime purportedly charged therein.

Plainly, however, the indictment does charge that defendant Adamo "did knowingly cause the emission of asbestos" by failing to wet friable asbestos before demolition. Hence appellee's question only makes sense when its brief explains that it does not consider the regulation, 40 C.F.R. § 61.22 to be "an emission standard" within the meaning of the Act. And, indeed, the District Judge found that 40 C.F.R. § 61.22 was not an emission standard.

Before turning to his reasons for taking that point of view, however, we note that preliminary thereto he rejected appellee's argument that the indictment was facially defective in failing to charge an essential element:

Inasmuch as there is no particular magic in the use of verbatim statutory language, it is not a requisite for sufficiency. As the Sixth Circuit explained in Rudin v. U. S., 254 F.2d 45, 48 (1958), cert. den. 357 U.S. 930 (78 S.Ct. 1374, 2 L.Ed.2d 1371):

"It is, of course, settled law that in order for an indictment to be valid it must allege all of the elements which are necessary to constitute a violation of the statute. But it is not necessary that the indictment follow the exact wording of the statute." (Emphasis added).

The test is whether the language used "plainly describes each element," (Glenn v. U. S., 303 F.2d 536, 538 (5th Cir. 1962), cert. den. 372 U.S. 920, (83 S.Ct. 734, 9 L.Ed.2d 725)) so that it apprises defendant of what he must be prepared to meet (Rudin, supra, at 48). In the words of one recognized commentator:

"The fundamental purpose of the pleading is to inform the defendant of the charge so that he may prepare his defense, and the test for sufficiency ought to be whether it is fair to defendant to require him to defend on the basis of the charge as stated in the particular indictment * * *. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just suggested. (Wright, supra, (1 C. Wright, Federal Practice and Procedure § 125, at 233-34 (1969)); see also U. S. v. Berlin Richman and Denmon, supra, (United States v. Berlin, 472 F.2d 1002 (2d Cir. 1973); United States v. Richman, 369 F.2d 465 (7th Cir. 1966); United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973)) in support of that basic test)."

The instant indictment fulfills that function. Rather than simply adverting to the statute, it virtually quotes the regulation which embodies the standard. In so doing, it alleges that the emission charged is traceable to a violation of the standard, more specifically, to a failure to wet and remove the material as a prelude to demolition.

The indictment charges that defendant:

" * * * did knowingly cause the emission of asbestos from a four and one-half story commercial masonry building at the aforementioned location by failing to wet and remove firable (sic) (friable) asbestos material, used to insulate and fireproof a boiler in the basement of said building, before demolition of the load-supporting structural supports had begun * * * " (Emphasis added).

The emission charged is directly attributable to the failure to wet and remove the asbestos prior to demolition. The indictment alleges that defendant caused the emission by failing to wet and remove "before demolition had begun." Use of the tense "had begun" indicates that demolition was commenced thereafter. Thus, the substance of the element is present, in some detail. Substitution of the more specific language of a regulation intended to define a statutory term, in the place of that term, is certainly adequate to apprise defendant of the charge and the nature of the cause against it. (Russell, supra (Russell...