U.S. v. Hajduk, CRIM.04-CR-346-B.
| Decision Date | 16 March 2005 |
| Docket Number | No. CRIM.04-CR-346-B.,CRIM.04-CR-346-B. |
| Citation | 370 F.Supp.2d 1103 |
| Parties | UNITED STATES of America, Plaintiff, v. Albert David HAJDUK, and Luxury Wheels O.E. Plating Inc., Defendants. |
| Court | U.S. District Court — District of Colorado |
Patricia W. Davies, David Robert Steinman, United States Attorney's Office, Denver, CO, for Plaintiff.
John M. Richilano, Richilano & Ridley, PC, Bruce F. Black, Holme, Roberts & Owen, LLP, Denver, CO, Eric Bentley, Holme, Roberts & Owen, Colorado Springs, CO, for Defendants.
The Grand Jury returned a second superseding indictment against Defendants on March 10, 2005. The second superseding indictment contains 19 substantive counts relating to criminal violations of the Clean Water Act ("CWA") and Resource Conservation and Recovery Act ("RCRA"). Defendants move in their "Motion # 1" to dismiss Count 1, to strike overt acts, or, in the alternative, for a bill of particulars. In their "Motion # 4," they move to dismiss Count 18 (formerly Count 14) or in the alternative, for a bill of particulars. In their "Motion # 6," they move for a Bill of Particulars as to Counts 16 and 17 (formerly Counts 12 and 13). The parties submitted these motions on their papers.
Defendant Albert David Hajduk is the plant manager of Defendant Luxury Wheels O.E. Plating, Inc., of Grand Junction, Colorado. Luxury Wheels electroplates automobile wheels with chrome, and has done so since 1993. In the course of its operations, it generates hazardous wastes that are regulated under state and federal law.
Luxury Wheels was issued a wastewater discharge permit under CWA, 33 U.S.C. § 1251 et seq., which allowed it to discharge specified wastes into Grand Junction's Persigo Publicly Owned Treatment Works ("POTW").
Defendants contend that Luxury Wheels "did its best to comply with these permits although it would be the first to concede that its history of compliance is not perfect." Prior to the events forming the basis for the second superseding indictment, Luxury Wheels had been cited infrequently for discharge violations throughout its existence.
The wheel-plating operation involves the following elements. First, wheels are subjected to heated and pressurized chemical washes, corrosive baths, rinse tanks, and metal baths to layer and build up the wheels' surfaces with chromium, nickel, copper, and zinc. Second, an on-site wastewater treatment system pre-treats industrial waste waters. This system consists of a pH-neutralization tank; a clarification tank that removes heavy metals by polymer/flocculent adhesion and gravity; a settling tank where the liquid and particles further separate; a filter press, where the flocculent is made into solid filter cakes; and a final collection tank. Finally, a storage outbuilding separate from the plating line holds waste waters for on-site treatment or before sending it off-site to hazardous-waste handlers.
In November 2003, following administrative hearings conducted by Persigo, Luxury Wheels applied for a "zero-discharge" permit. It ceased all industrial discharges at that time, and suspended plating operations until a new closed-loop treatment system was installed in February 2004. It has been operating under the zero-discharge permit since December 2003, so that currently no wastes from plating operations are discharged into the POTW.
The second superseding indictment in this case followed investigative activity beginning in the fall of 2001, including secret sampling by Persigo and criminal investigators from the Environmental Protection Agency, who operated under a court-authorized search warrant. The second superseding indictment alleges nineteen counts: Count One is for conspiracy; the second count is for negligent violation of the Clean Water Act; Counts Three through Seven allege knowing violations of the CWA; Counts Eight through Fifteen allege knowing creation and use of false statements; Count Sixteen is for knowing storage of hazardous waste without a permit; Count Seventeen alleges knowing material omissions under RCRA; the eighteenth and nineteenth counts are for negligent violation of the CWA.
The government argues that Luxury Wheels substantially under-reported its hazardous waste production over a number of years. The government also alleges that when Luxury Wheels employees knew Persigo workers were sampling, they altered Luxury Wheels' operations to appear compliant with their permit. When Persigo became suspicious and sampled secretly, it found consistent and significant violations. The government alleges that Luxury Wheels employees made a hole through the wall of their building into Persigo's enclosed, locked sampling box to spy on Persigo's sampling efforts. It says that Luxury Wheels diluted its wastewater with tap water and/or forced tap water into Persigo's sampling bottles.
Because Persigo perceived that its notification to Luxury Wheels of CWA violations resulted not in compliance but in tampering with the samples, Persigo officials contacted the EPA's Criminal Investigation Division. The EPA obtained a search warrant in 2002 which allowed it to obtain surreptitious samples from a manhole location and retrieve documents and further samples from Luxury Wheels' premises.
The government contends that the clearest example of Defendants' unwillingness to comply with their permit obligations was their improper permit-less storage of reactive and toxic hazardous wastes that resulted in a July 15, 2002 uncontrolled chemical reaction and off-gassing from an illegal open storage tank. This resulted in Luxury Wheels, and Hajduk personally, contacting the Grand Junction Fire Department's HazMat Squad to report a "chemical reaction." The HazMat Squad responded, and evacuated Luxury Wheels and the surrounding area. Several city police and fire personnel complained of chest and lung pain. Despite witnessing and participating in the HazMat incident, Defendant Hajduk failed to disclose on the RCRA-required documentation that the waste, containing AlumEtch-G, was reactive and toxic.
Defendants do not argue that their compliance with the environmental laws was perfect or even adequate. They do contend, however, that their actions were not criminal.
In Count One, the government alleges that Defendants and "others known and unknown to the grand jury" conspired to: 1) operate Luxury Wheels in violation of its permit and the Clean Water Act; 2) knowingly discharge pollutants into the POTW in violation of the permit and the CWA; 3) make and use knowingly false statements and to submit false documents to the POTW; and 4) falsify, tamper with, and render inaccurate monitoring devices and methods required by the CWA in violation of the permit and the CWA. In support, the government lists 33 overt acts allegedly committed by Defendants.
The original indictment was returned August 11, 2004. A summons was served on Defendants the next day. Defendants made their initial appearances pursuant to Fed.R.Crim.P. 9 and 18 U.S.C. § 3161, on August 25, 2004. The original indictment alleged 12 separate overt acts in Count One. The first superseding indictment was returned on November 1, 2004. It alleged the same substantive conspiracy, but added 11 new overt acts to Count One.
The second superseding indictment-at issue here-was returned March 10, 2005, and adds another 10 overt acts to Count One. It expands the alleged conspiracy duration from May 1999-September 2003 to May 1999-November 2003. It also adds two entirely new conspiracy objectives: 1) making and using false documents in violation of 18 U.S.C. § 1001(a)(3) and Luxury Wheels' permit; and 2) falsifying, tampering with, and rendering inaccurate monitoring devices and methods required by the CWA in violation of the permit and 33 U.S.C. § 1319(c)(4). Finally, it lists two entirely new "means by which the objects of the conspiracy were to be accomplished": # 4, operating the electroplating operation when Defendants knew the on-site treatment system was malfunctioning, thereby failing to adequately treat wastewater; and # 7, knowingly and willfully making and using false documents including "Self-monitoring Reports" in which Defendants allegedly "substantially understated" their daily average and/or total monthly wastewater discharges.
Defendants first contend that Count 1 of the second superseding indictment should be dismissed because it violates the Speedy Trial Act. They argue that the second indictment merely "gilds" the initial Count 1 charge, and does not substantively change it.
Under the Speedy Trial Act, 18 U.S.C. § 3161(b), "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with the charges." The parties argue at length whether § 3161(b) applies to superseding indictments where, as here, defendants were indicted, then served with a summons, but never arrested. Defendants contend that the statute applies to this case, and that the second superseding indictment was not only a mere "gilded" version of the original, but was brought many months after the 30-day period, which began on the summons date of August 12, 2004. The government contends that Defendants "defy" the language and rationale of the Speedy Trial Act. I agree with the government.
The Speedy Trial Act was meant in part to ensure that accused individuals do not suffer for more than thirty days without being formally charged. ...
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