United States v. House of Raeford Farms, Inc., 1:12CR248-1
| Decision Date | 17 January 2013 |
| Docket Number | 1:12CR248-1 |
| Parties | UNITED STATES OF AMERICA v. HOUSE OF RAEFORD FARMS, INC. |
| Court | U.S. District Court — Middle District of North Carolina |
This matter is before the Court on three (3) Motions filed by Defendant House of Raeford Farms, Inc. ("House of Raeford"). On August 20, 2012, a jury found House of Raeford guilty on Counts 1, 3, 6, and 8-14, of a fourteen-count Indictment. The jury found House of Raeford not guilty on Counts 2, 4, 5, and 7. House of Raeford thereafter filed a Motion to Arrest Judgment [Doc. #69], a Motion for New Trial [Doc. #68], and a Motion for Judgment of Acquittal [Doc. #67]. The Motions are fully briefed and are ready for the Court's review. For the reasons set forth below, the Court will deny House of Raeford's Motions. Each Motion will be addressed in turn.
In its Motion to Arrest Judgment, House of Raeford contends that the conduct charged in the Indictment, that is, discharging untreated wastewater to the City of Raeford1 Publicly Owned Treatment Works ("POTW") in violation of a requirement of a pretreatment program,does not constitute a federal crime over which this Court has jurisdiction to enter judgment. In support of its Motion, House of Raeford re-raises several legal arguments that this Court previously addressed and dismissed in its Memorandum Opinion and Order [Doc. #55] denying House of Raeford's pre-trial Motion to Dismiss. Specifically, House of Raeford contends that the Indictment fails to charge any federal crime because (1) "the Clean Water Act violates the Constitution by delegating to local governments the legislative power to set federal criminal law without providing meaningful limitations and constraints on their authority;" (2) the City's pretreatment program fails to enumerate federal criminal penalties, as required by EPA regulations; (3) "the Indictment impermissibly extends the scope of federal criminal law to punish, as federal felonies, alleged violations of a local pretreatment requirement that did not cause pass-through or interference;" and (4) "the Double Jeopardy clause bars reprosecution of charges for which the City has already imposed punitive fines." (House of Raeford Br. at 2, [Doc. #77]). House of Raeford acknowledges that these arguments are the same as those raised previously in its Motion to Dismiss, and does not presently provide any new legal standard or argument as to these matters. Therefore, the Court need not and will not reconsider these matters at this time.
In addition, House of Raeford contends, as a new legal argument, that the Indictment fails to charge any federal crime because the City's pretreatment program falls outside of North Carolina's "federally approved program" under the Clean Water Act, 33 U.S.C. § 1342(b)(8). Section 1342(b)(8) governs the National Pollutant Discharge Elimination System ("NPDES") permitting process, under which the EPA may approve NPDES permits for states and grantsuch states the authority to operate their own NPDES permitting programs at the local level. As House of Raeford notes in its Brief in support of its Motion to Arrest Judgment, in order to obtain EPA approval to administer an NPDES permit program, "a state program must include a state-wide pretreatment program." (House of Raeford's Br. at 3, [Doc. #77] (citing 33 U.S.C. § 1342(b)(8))). House of Raeford acknowledges that North Carolina's state-wide pretreatment program requires the City to implement a pretreatment program. However, for the reasons discussed below, House of Raeford contends that federal law does not require the City to implement a pretreatment program, and, therefore, violation of a requirement of the City's pretreatment program could not form the basis for a federal crime.
In support of its position, House of Raeford cites to 40 C.F.R. § 403.8(a), which states as follows:
Any POTW . . . with a total design flow greater than 5 million gallons per day (mgd) and receiving from Industrial Users pollutants which Pass Through or Interfere with the operation of the POTW or are otherwise subject to Pretreatment Standards will be required to establish a POTW Pretreatment Program. . . . The Regional Administrator or Director may require that a POTW with a design flow of 5 mgd or less develop a POTW Pretreatment Program if he or she finds that the nature or volume of the industrial influent, . . . violations of POTW effluent limitations, contamination of municipal sludge, or other circumstances warrant in order to prevent Interference with the POTW or Pass Through.
40 C.F.R. § 403.8(a). House of Raeford further cites to 40 C.F.R. § 123.1(i)(2), which states that "[i]f an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program." 40 C.F.R. § 123.1(i)(2). Based on these two regulations, House of Raeford contends that federal law requires a POTW to implement a pretreatment program only if the POTW has a total design flow of greater than5 million gallons per day. Therefore, House of Raeford contends that pretreatment programs operated by POTW's with a total design flow of 5 million gallons per day or less would fall outside of the scope of a federally approved pretreatment program.
With regard to the present case, House of Raeford contends that the Indictment does not allege that the City POTW has a total design flow of greater than 5 million gallons per day and, therefore, the City would not be required under 40 C.F.R. § 403.8(a) to operate a pretreatment program. As such, House of Raeford contends that to the extent that North Carolina has required the City to operate a pretreatment program, that pretreatment program exceeds the scope of North Carolina's "federally approved" pretreatment program, and any violation of a requirement of the City's pretreatment program would not be subject to federal criminal prosecution.
In considering House of Raeford's Motion to Arrest Judgment, the Court must look only to the record in the case, that is, the "indictment, the plea, [and] the verdict," and not to the evidence adduced during the trial in this case. See United States v. Sisson, 399 U.S. 267, 281-82 & n.10, 90 S. Ct. 2117, 2125 & n.10, 26 L. Ed. 2d 608 (1970) (). In the present case, the Indictment charges House of Raeford with multiple violation of the Clean Water Act, pursuant to 33 U.S.C. § 1319(c)(2)(A). Under 33 U.S.C. § 1319(c)(2)(A), the federal government has the authority to prosecute knowing violations of any requirement imposed in a pretreatmentprogram approved under 33 U.S.C. § 1342(b)(8). The Indictment in this case alleges that the EPA approved North Carolina's NPDES program, and granted North Carolina the authority to impose and enforce local pretreatment programs pursuant to Section 1342(b)(8). Furthermore, the Indictment alleges that, pursuant to its federally-delegated authority, North Carolina approved the City's pretreatment program in 1983 and required enforcement of that program through the City's NPDES permit. Although House of Raeford is correct that the Indictment does not allege that the City POTW has a design flow of greater than 5 million gallons per day, for the reasons set forth below, that fact does not require the conclusion that the Government has failed to charge a federal crime for the violation of a requirement of the City POTW's pretreatment program.
Title 40, Code of Federal Regulations, Section 403.8(a), expressly grants the Regional Administrator of the EPA or the Director of the State NPDES program the authority to require that a POTW with a design flow of 5 million gallons per day or less develop a pretreatment program under certain circumstances. Therefore, it follows that to the extent that a Regional Administrator or Director exercises his authority under Section 403.8(a) to require that a POTW with a design flow of 5 million gallons per day or less develop a pretreatment program, such a program would be part of the "federally approved" program. See Welch Foods, Inc. v. Borough of North East, 46 Fed. App'x 678, 683 (3rd Cir. 2002) ("As a general matter, POTWs . . . that have design flows less than five million gallons per day are not required to implement pretreatment programs; however, they may be required to do so if the [Regional Administrator or the Director] determines that a program is warranted in order to prevent 'pass through' or'interference.'"). The Indictment in this case alleges that North Carolina exercised its authority under federal law to approve the City's pretreatment program and require its implementation through the City's NPDES permit, such that the City's pretreatment program would fall within North Carolina's "federally approved" program.
Furthermore, to the extent that House of Raeford contends that North Carolina acted pursuant to state law only, and not federal law, when it required the City to implement its approved pretreatment program, the Court notes that the North Carolina regulation titled "Required Pretreatment Programs" incorporates by reference 40 C.F.R. § 403.8(a), the very provision House of Raeford cites as the basis for its argument. See 15A N.C.A.C. § 2H.0904. Therefore, to the extent that House of Raeford contends that North Carolina law requires pretreatment programs for a different, broader, group of POTWs than does federal law, such a contention fails, as both North Carolina and federal law require pretreatment programs in accordance with the provisions of 40 C.F.R. § 403.8(a). Based on the foregoing, to the extent that the Indictment in this case alleges that the City...
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