United States v. Adamo Wrecking Co.

• Citation: 445 F. Supp. 1056
• Decision Date: 06 June 1975
• Docket Number: Cr. No. 5-80297.
• Parties: UNITED STATES of America, Plaintiff, v. ADAMO WRECKING COMPANY, Defendant.
• Court: U.S. District Court — Western District of Michigan

445 F. Supp. 1056

UNITED STATES of America, Plaintiff, v. ADAMO WRECKING COMPANY, Defendant.

Cr. No. 5-80297.

United States District Court, E. D. Michigan, S. D.

June 6, 1975.

COPYRIGHT MATERIAL OMITTED

Peter Jerome Kelley, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

John E. S. Scott, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT I AND HOLDING A DECISION AS TO COUNT II IN ABEYANCE

PHILIP PRATT, District Judge.

I.

Defendant, Adamo Wrecking Company, is charged in a superseding indictment with violating the Clean Air Act of 1970,¹ in connection with the demolition of a building at 2612 Carter, Detroit, Michigan. Count I alleges that defendant did "knowingly cause the emission of asbestos" before demolition of the structure, in violation of 42 U.S.C. § 1857c-7(c)(1)(B), and 40 C.F.R. § 61.22(d)(2)(i).² Count II alleges that defendant knowingly made false statements concerning the existence of friable asbestos materials at the demolition site, in violation of 42 U.S.C. § 1857c-8(c)(2) and 40 C.F.R. § 61.22(d)(1).

Defendant moves, pursuant to Federal Rule of Criminal Procedure 12(b), to dismiss both counts on the grounds:

1. That the indictment fails to allege an essential element of the offense; to-wit, emission of pollutants in violation of an emissions standard;

2. That even if the indictment is deemed facially sufficient in that respect, it fails to allege an emission in violation of a standard because 40 C.F.R. § 61.22(d) does not constitute an "emissions standard";

3. That the indictment fails to charge an offense because the government is unable to produce evidence of a prohibited emission;

4. That the indictment is impermissibly vague and unspecific in that it is premised on a "work practice" as opposed to a standard, fails to specify a subsection of § 1857c-7, and is based on an unconstitutionally vague regulation, namely, 40 C.F.R. § 61.22(d);

5. The indictment fails to charge an offense because the Administrator exceeded his statutory authority;

6. That it is defective because there is no "emissions standard" as required by 42 U.S.C. § 1857c-7(b)(1)(B);

7. That it fails to charge an offense in that 40 C.F.R. § 61.22 is an unauthorized dictate of the method by which buildings are to be demolished.

Defendant attacks the validity of Count II on the ground that 40 C.F.R. § 61.22 is unauthorized and that there can be no knowing failure to report an activity which is described by statute in an unconstitutionally vague manner.

The government responds, contesting both the merits of the motion and the jurisdiction of this Court to entertain the motion under 42 U.S.C. § 1857h-5(b)(1) and (2). In view of the jurisdictional assertions by the government, this Court must consider its power to hear each of defendant's contentions. Thus, the Court will first direct its attention to those arguments which are clearly within its purview (Part II). It will then proceed to evaluate, insofar as necessary, the remainder of the claims concerning Count I in both a jurisdictional (Part III) and substantive (Part IV) framework. Defendant's challenges to Count II will be discussed, in a limited sense, in Part V.

II.

The jurisdictional limitations of § 1857h-5 apply only to judicial review of "actions of the Administrator in promulgating an emissions standard." Thus, § 1857h-5 does not, in any sense, curtail this Court's jurisdiction to judge purely facial challenges to an indictment. Consequently, the Court may proceed to the merits of three of defendant's arguments: that the indictment omits an allegation of violation of the standard; that the indictment should be dismissed for insufficient evidence; and that it fails to state a particular subsection of § 1857c-7. It is perhaps prudent at the outset to note that the Court cannot perceive the relevance of these arguments to Count II³ of the indictment; and therefore, its discussion refers only to Count I.

A. Failure to Allege Violation of Standard.

Defendant argues that the indictment is fatally defective in that it fails to allege an essential element of the offense, namely, an emission in violation of a standard. Defendant is correct in its insistence that such an allegation is necessary, for it is well-settled that:

"An indictment is required to set forth the elements of the offense sought to be charged. `The true test of the sufficiency of an indictment is * * * whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.'" U. S. v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953); Russell v. U. S., 369 U.S. 749, 82 S.Ct. 1038 (1961); U. S. v. Levinson, 405 F.2d 971 (6th Cir. 1968)).

The instant offense consists of the emission of asbestos in violation of an emission standard, as provided in § 1857c-7:

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

* * * * * *

(B) No air pollutant to which such standard applied may be emitted * * * in violation of such standard * * *"

40 C.F.R. § 61.22(d)(2)(i) states the applicable standard:⁴

"Friable asbestos materials used to insulate or fireproof * * * shall be wetted and removed from any * * * structure * * * before wrecking of load-supporting structural members is commenced * * *"

Thus, Count I of the indictment must allege both the element of emission⁵ and violation of the standard. The latter allegation is conspicuously absent, in those terms. However, the Court does not view that omission as a fatal defect.

While an indictment must set forth each essential element in an intelligible manner, the standard for judging its sufficiency is governed by Federal Rule of Criminal Procedure 7(c), which provides, inter alia:

"The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * * *. It need not contain * * * any other matter not necessary to such statement * *"

Thus, the measure of sufficiency is not overly technical:

"Although an indictment is subject to careful examination * * * not all lapses from precision and correctness require that an indictment be quashed." (U. S. v. Levinson, supra, at 977).

In judging the existence of essential elements, courts have generally looked to the substance, rather than the form, of the indictment. Quotation of statutory language suffices only if it is clear and meaningful (U. S. v. Carll, 105 U.S. 611, 26 L.Ed. 1135 (1881)). An indictment must, therefore, compensate for imprecise, overbroad, or generic aspects of the statute. (See, e. g. U. S. v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875); Morissette v. U. S., 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1951); U. S. v. Russell, supra). Thus, an allegation that defendant was in violation of the standard, without more, though taken from the statute, might well be inadequate to apprise defendant of the nature of a necessary element.⁶

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 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.⁷ (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, § 125, at 233-4; see also U. S. v. Berlin, Richman and Denmon, supra, 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.⁸

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 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; U. S. v. Marra, 481 F.2d 1196 (6th Cir. 1973).

In reaching its decision, this Court does not perceive any conflict with the analysis adopted by prior judicial determinations.⁹ In the cases relied...