U.S. v. Hajduk

Decision Date19 October 2005
Docket NumberNo. CRIM. 04-CR-346-B.,CRIM. 04-CR-346-B.
Citation396 F.Supp.2d 1216
PartiesUNITED STATES of America, Plaintiff, v. Albert David HAJDUK, Luxury Wheels O.E. Plating, Inc., Defendants.
CourtU.S. District Court — District of Colorado

John M. Richilano, Marci A. Gilligan, Richilano & Ridley, PC, Bruce F. Black, Holme, Roberts & Owen, LLP, Denver, CO, Eric Bentley, Colorado Springs, CO, for Defendants.

David Robert Steinman, United States Attorney's Office, Denver, CO, for Plaintiff.

MEMORANDUM OPINION AND ORDER ON MOTION TO SUPPRESS AND MOTION FOR FRANKS HEARING

BABCOCK, Chief Judge.

Defendants Albert David Hajduk ("Hajduk") and Luxury Wheels O.E.Plating, Inc. ("LW") move to suppress evidence and information gathered by plaintiff United States of America ("Government") in a criminal case against Defendants for violating federal environmental laws; or in the alternative, for a Franks hearing. The motion is fully briefed and orally argued. Defendants' motion is DENIED, for the reasons set forth below.

I. Background
A. Regulatory Framework

LW is a privately owned company based in Grand Junction, Colorado in the business of applying chrome plating to aluminum wheels. Hajduk is LW's Operations Manager. LW's operations involve discharging chemicals through its wastewater that are regulated under city, state and federal law. The City of Grand Junction ("City") operates the Persigo Publicly Owned Treatment Works ("Persigo" or "POTW"), a city owned facility that regulates water discharges from industrial facilities like LW into Persigo's facility, to ensure that all waters Persigo discharges into the waters of the United States comply with state and federal law. Persigo operates under a National Pollution Discharge Elimination System ("NPDES") Permit under the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251 et seq., and is charged under federal, state and municipal law with regulating entities like LW to ensure compliance with these laws.

Persigo's authority to monitor dischargers like LW is set in federal and state law, as well as in the Grand Junction City Code ("City Code"). Under federal law, Persigo is required to develop a regulatory program that prescribes limits for effluent that enters its facility, sets the amount of effluent each industrial user may contribute and establishes a permit system for industrial users. These permits must include a monitoring system that includes self monitoring by the discharger and allows for sampling and inspection by Persigo. Persigo is required to obtain compliance information independent of the permitees' own information. Federal law authorizes Persigo to:

"Carry out all inspections, surveillance and monitoring procedures necessary to determine, independent of information supplied by Industrial Users, compliance with applicable Pre-treatment Standards and Requirements by Industrial Users. Representatives of the POTW shall be authorized to enter any premises of any Industrial users in which a Discharge source or treatment system is located or in which records are required to be kept under § 403.12(m) to assure compliance with Pretreatment Standards."

40 C.F.R. § 403.8(f)(1)(v) (2003.).

Persigo, and other POTWs, are also authorized to:

"Randomly sample and analyze the effluent from industrial users and conduct surveillance activities in order to identify, independent of information supplied by industrial users, occasional and continuing non compliance with pre-treatment standards. Inspect and sample the effluent from each Significant Industrial User at least once every year."

40 C.F.R. § 403.8(f)(2)(v) (2003).

In addition, LW is a "Significant Industrial User" under federal law, because it is an electroplater/metal finisher. It is therefore subject to specific "categorical" limits on chemicals and heavy metals that it may discharge. 40 C.F.R. §§ 403.3(t), 433.10 (2003).

The City Code describes the requirements for industrial users who discharge into Persigo, to enable the City to comply with state and federal clean water laws. Grand Junction City Code ("G.J.C.") § 38-26 et seq. These requirements include requiring all industrial users who discharge into Persigo to install a sewer with a manhole to allow sampling and measuring the wastes, requiring industrial users to acquire a City permit, and allowing the City to monitor and enforce these permits. Users also must provide and maintain, at their own expense, monitoring and sampling facilities, and allow City staff and agents the right to inspect areas of the facility where waste water is created or discharged. G.J.C. § 38-67(d). The City may set up on the user's property sampling and compliance monitoring devices. G.J.C. § 38-67(d) & (e).

LW discharges its waste water into the Persigo system through its own sewer line that runs from its facility to the public sewer line. It runs under property that is owned by LW but outside of its fence line, adjacent to the street. Two manholes provide access to City inspectors, one 45 feet from the LW property line and two feet from where LW's line connects to the City's main sewer line ("Manhole 1") and another at the point where LW's pipe connects to Persigo's sewer line ("Manhole 2.")

B. Luxury Wheels' Permits

LW has operated under a succession of City Permits since 1993. These Permits comply with applicable City laws and regulations. Among other provisions, the Permits under which LW operated in 2001 and in 2002 state that LW shall allow Persigo staff, upon presentation of credentials, to "enter the premises," have access to any records required by the permit, inspect facilities, equipment and operations, sample or monitor for purposes of compliance and inspect any areas where pollutants can originate. Permit, III.D. Discharges regulated by the Permits must comply with all other "applicable laws, regulations, standards and requirements" contained in city, state or federal law. Permit, II.D.

There is no dispute over the substantive provisions of the Permits. However, there is disagreement over the meaning and implication of the provision requiring Persigo staff to present credentials before exercising the other provisions of the permit, as will be discussed below.

C. The Disputed Searches

Defendants challenge four separate searches conducted by Persigo, the Grand Junction City Fire Department and the United States Environmental Protection Agency ("EPA.")

1. The October 2001 Inspection of the Sampling Box

On October 11, 2001 Persigo staff entered LW's premises without a warrant and drew a sample from a sampling box on LW property. The sample indicated that LW had violated the terms of its Permit, and forms the basis for Count 2 of the Government's indictment against Defendants (negligent violation of the Clean Water Act.) It was also used to support the warrants for EPA's search of the Manhole in January and February of 2002 (see below). Defendants move to suppress this evidence.

The facts of the sampling box search are clear. Dan Tonello ("Tonello") and Scott Williams ("Williams") the Persigo officials responsible for sampling and inspection both testified at the Hearing September 30, 2005 and no defense witness testified to rebut or refute their testimony. The box is located on an outer wall of the LW plant, and takes samples from the wastewater treatment tank located inside the facility. The sampling box can be accessed without entering into any LW facility, but does require crossing LW property. The sample box is padlocked, and accessible only by Persigo officials, who have the only key to the box. In order to obtain a sample from the box, it is necessary for Persigo staff to open the box, place a bottle inside it to draw a sample, and then to return to the box later to remove the bottle. The sample of wastewater contained in the box is then sent to a laboratory to determine if it complies with the applicable effluent limits.

Prior to 2000, Persigo drew samples from LW inside its facility at the waste water treatment tank to assess LW's compliance with the applicable effluent limits. Tonello testified that he contacted LW in the fall of 2000 to discuss with them revising the methodology used to verify LW's compliance. Although LW's samples had up to that point demonstrated compliance, Persigo was concerned that LW always had notice of Persigo's inspection visits and, as a result, Persigo could not prove LW's compliance. Tonello presented these concerns to LW officials at a meeting October 30, 2000. Tonello testified that he had originally proposed that the solution to this problem was to have LW install a sampling device at their sewer at Manhole 1, under G.J.C. § 38-53. LW proposed instead that they install an external sampling box to draw liquid from the tank, at the same sample location Persigo had been using, to allow Persigo to draw samples without notice to LW. This solution was less expensive and preferred by LW. Tonello agreed to this suggestion. LW's Permit was not amended to demonstrate the installation of the sampling box.

Tonello testified that there was no question that the purpose of installing this new equipment was to allow Persigo to obtain samples without notice to LW, even to sample covertly. Tonello stated, and his notes of the meeting make clear, that he informed LW that if it wished to continue discharging into the Persigo works, it would need to install either a sampling box or a sampling mechanism in its sewer pipe.

Tonello and Williams both testified that at all times when they took samples from the box, they used a clearly marked city vehicle, carried credentials and would have showed credentials if asked. They also stated that they did not call in advance or stop by the main office to announce their presence. They drove up and walked across LW property to the sample box, without crossing a gate or security...

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