U.S. v. Distler, 79-5339

Decision Date31 March 1981
Docket NumberNo. 79-5339,79-5339
Citation671 F.2d 954
Parties, 11 Envtl. L. Rep. 20,340, 7 Fed. R. Evid. Serv. 1380 UNITED STATES of America, Plaintiff-Appellee, v. Donald E. DISTLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.

John L. Smith, U. S. Atty., Michael R. Tilley, Asst. U. S. Atty., Louisville, Ky., Raymond W. Mushal, Pollution Control Section, Dept. of Justice, Washington, D. C., James R. Williams, and David Everett, U. S. Dept. of Justice, Cleveland, Ohio, for plaintiff-appellee.

Before EDWARDS, Chief Circuit Judge, and BROWN and KENNEDY, Circuit Judges.

BAILEY BROWN, Circuit Judge.

Appellant, Donald E. Distler, was convicted after a jury trial in the Western District of Kentucky of two violations of the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.). Criminal penalties are imposed by 33 U.S.C. § 1319, which provides in part:

(c)(1) Any person who willfully or negligently violates section 1311, 1312, 1316, 1317, or 1318 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State or in a permit issued under section 1344 of this title by a State, shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both....

33 U.S.C. § 1319 (1977). 1 In this appeal appellant presents several issues for review including challenges to certain evidentiary rulings made at trial, a challenge to the constitutionality of Fed.R.Evid. 801(d)(1), and a contention that the evidence offered at trial was insufficient to sustain a verdict of guilt. For the reasons expressed below, we affirm appellant's conviction in all respects.

I.

The pollutants involved in this case are hexachlorocyclopentadiene (hexa), octachlorocyclopentene (octa), and hexachlorobenzene (HCB). Appellant was convicted of discharging a mixture of these pollutants, called PCL bottoms, into the Ohio River, by way of the sewers of the Louisville and Jefferson County Metropolitan Sewer District (MSD).

PCL Bottoms

Hexa, a chlorinated hydrocarbon, is an intermediary product used in the production of other chemical compounds, including pesticides and flame retardant resins. Commercial hexa is produced in batches, which have as a byproduct waste chemicals called PCL bottoms. PCL bottoms are comprised of a combination of approximately 10-15% hexa, 30% octa, 5% HCB, and a variety of miscellaneous polymers. During the time period relevant to the indictment, the Velsicol Chemical Corporation (Velsicol) plant in Memphis was the only manufacturer in the United States of hexa, and therefore the only source of PCL bottoms, the chemical wastes associated with its production.

PCL bottoms do not mix with water and are heavier than water. If they are placed in water, a very small amount rises to the surface, while the great bulk of the material remains at the bottom. The portion exposed to the air volatilizes, emitting a distinctive odor, and in some instances, a haze. If volatilized, PCL bottoms cause eye and skin disorders similar to those caused by tear gas.

Because of the propensity of PCL bottoms to solidify at normal temperatures, these waste chemicals were kept in suspension for transportation by mixing them with a Number 4 grade fuel oil. The Number 4 grade oil, not normally refined directly, was produced by mixing a metered quantity of light cycle Number 2 grade oil, similar to kerosene, with an estimated quantity of heavier Number 6 grade oil. Because no two estimates of the quantity of Number 6 grade oil needed to complete the mixture were the same, each tankerload of PCL bottoms contained a unique blend of oils.

Closedown of the Morris Forman Wastewater Treatment Plant

Beginning in mid-March, 1977, employees of MSD's Morris Forman Wastewater Treatment Plant (Morris Forman Plant) began complaining of a variety of physical ailments caused by particularly noxious fumes and odors. These complaints came predominantly from employees working in the Screen and Grit Building. This building contains four rectangular tanks, known as grit chambers, which are equipped with a series of screens that strain sewage as it enters the plant.

During the week of March 21, 1977, maintenance crews complained of chemical fumes that burned their eyes, noses, throats, and skin. On March 25, a crew directed to clean grit chamber three removed the water from the chamber, and the fume problem became worse. Attached to the walls of the chamber was a very thick, viscid, brownish residue. Noxious fumes frustrated efforts to clean the chamber with water and steam.

After the plant manager was notified of the problems in the grit chamber on March 27, 1977, a sample of the residue was taken from the chamber and sent to the Environmental Protection Agency (EPA) lab in Athens, Georgia. Tests performed there revealed the presence of hexa and octa. Velsicol's Memphis plant manager came to Louisville on March 29, 1977, and confirmed that the material in the grit chamber was "hex bottom." A sample of this substance, sample # 1110 (MFP), was later introduced in appellant's trial.

Because of the toxicity of PCL bottoms, the plant was essentially abandoned in late March, and virtually all the sewage normally entering it passed untreated into the Ohio River. Between March 29, 1977 and June 8, 1977, approximately 100 million gallons of untreated sewage passed into the Ohio River daily.

The only firm receiving PCL bottoms after mid-1976 that had any direct relationship to the Louisville area was the Chem-Dyne Corporation of Hamilton, Ohio (Chem-Dyne), near Cincinnati, which was under contract to Velsicol to transport its PCL bottoms to Canada for disposal. Review of available shipment records revealed that Chem-Dyne delivered PCL bottoms to Kentucky Liquid Recycling, Inc.

Kentucky Liquid Recycling, Inc.

Kentucky Liquid Recylcing, Inc. (KLR), a liquid waste disposal company, was incorporated in Kentucky on August 17, 1976. Appellant was the sole shareholder and sole member of the board of directors. Appellant was also the registered agent for service of process, and the principal office of KLR was appellant's home.

In late August, 1976, appellant contacted the Kentucky Department of Natural Resources to determine what permits were required in order to operate a liquid waste disposal company. In Louisville, on September 16, 1976, appellant leased portions of a Rowan Street warehouse, and in early March, 1977 he leased a brickyard. During this time, appellant also began operating a former Amoco tank farm, located in nearby New Albany, Indiana. KLR generated operating funds by accepting and hauling waste materials and by the sale of some of the drums and their contents.

From December, 1976, through April, 1977, Chem-Dyne was the exclusive transporter of Velsicol PCL bottoms. In late 1976 or early 1977, Chem-Dyne personnel came to Louisville to discuss the disposal of PCL bottoms with appellant. KLR's incinerator designer was informed of various aspects of PCL bottoms incineration, and he was questioned about the ability of the proposed KLR incinerator to adequately accomplish the task. Appellant was provided with a description of the various chemicals included in the Velsicol waste product and was given material data safety sheet that described the toxic properties of those chemicals.

In February, 1977, it was agreed that KLR would store the PCL bottoms in tanks until the incinerator was operational and the required permits were obtained. If KLR did not obtain the required permits within six months, or if Chem-Dyne's customer, Velsicol, did not approve of KLR, 2 then Chem-Dyne would remove the material.

Shipment of PCL Bottoms from Velsicol to KLR

To stabilize the PCL bottoms for shipment, Chem-Dyne drivers would pick up a PCL bottoms tanker, proceed to the Delta Oil Refinery in Memphis, and take on a load of Number 4 grade oil. The full tankers would then be delivered to KLR in Louisville. At some later time, the Chem-Dyne drivers would pick up the empty tankers, either at the New Albany site, or at a Holiday Inn on Dixie Highway, near Louisville. Chem-Dyne tankers were shiny metallic or stainless steel in color or finish and were shaped either as straight tubes or with a V-shaped drop in the middle. These were easily distinguishable from appellant's tractor tanker, which consisted of a blue Autocar truck tractor and an orange-red, straight tube tanker.

Location of the Source of the Contaminant

Between approximately March 29 and April 4, 1977, officials attempted to ascertain the location at which the toxic contaminant was introduced into the MSD sewer system, utilizing a trace procedure that combined sniff searching and actual sampling. Officials collected samples from the major trunk lines feeding into the Morris Forman Plant in their attempt to identify the contaminated lines. They concluded that the principal point of introduction of the contaminant into the sewer was within two or three blocks of the 28th Street and Broadway intersection in Louisville.

Investigation of KLR

In early April, KLR was investigated in the attempt to discover how the PCL bottoms could have entered the sewer system. On April 4, 1977, personnel from the EPA and other administrative agencies visited those properties known to be owned or controlled by KLR.

Random sampling of these sites revealed some drums with significant concentration values of hexa. Investigation of appellant's Rowan Street warehouse revealed about 5,000 stacked drums, some of which bore Chem-Dyne markings. At the KLR site in New Albany, EPA personnel took samples from each of the ten tanks. Sample # 1257 (KLR 1), was taken from Tank # 6, and was later introduced in...

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