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UNITED STATES v. ALLEY

June 11, 1990

UNITED STATES OF AMERICA
v.
ROBERT ALLEY, U.S. PLATING CORPORATION, and PIONEER PLATING COMPANY, INC.



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Robert Alley, U.S. Plating Corporation, and Pioneer Plating Company, Inc., have moved under Rule 12(b)(2), Fed.R.Crim.Pro., to dismiss the superseding indictment *fn1" against them for failing to state any offense on their part, or alternatively for failing to allege all of the necessary elements of an offense. *fn2" See United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985) (purposes of indictment are to "state all of the elements of the offense charged," "inform the defendant of the nature of the charge so that he may prepare a defense," and "enable the defendant to plead the judgment as a bar to any later prosecution for the same offense"); U.S. v. Napue, 834 F.2d 1311, 1316 (7th Cir. 1987). Having reviewed the eighty-one counts of the indictment, the court concludes that each count states an offense and alleges all of the necessary elements of that offense. The court will thus deny the defendants' motion.

 The indictment charges that at all times relevant to this case, Robert Alley was the President and owner of both U.S. Plating and Pioneer Plating, two Chicago-based electroplating companies. The defendants operated facilities which discharged an average of greater than 10,000 gallons of industrial wastewater per operating day into sewers connected to a publicly owned sewage treatment works (known in regulatory parlance as a "POTW") located in Chicago. The POTW in turn discharged into the Chicago Sanitary and Ship Canal, a navigable water of the United States.

 Between January 3, 1985 and August 31, 1989, the wastewater discharged by the defendants on eighty-one different days contained various levels of cyanide, chromium, copper, lead, cadmium, nickel, and zinc in excess of those permitted under pretreatment standards promulgated by the Administrator of the U.S. Environmental Protection Agency ("EPA") in 40 C.F.R. §§ 413.10 et seq. (1989), pursuant to 33 U.S.C. § 1317(b) (1982). The defendants discharged this wastewater with varying degrees of intent. The indictment alleges in Counts 1-13 that Alley and U.S. Plating willfully and negligently discharged wastewater containing impermissible levels of pollutants between January 3, 1985, and August 20, 1986. It alleges in Counts 14-72 that between August 3, 1987, and August 31, 1989, these same defendants knowingly discharged illegal wastewater. In Counts 73-75, the indictment alleges that Alley and Pioneer Plating willfully and negligently discharged illegal wastewater between September 30, 1985, and April 17, 1986; it alleges in Counts 76-81 that similar discharges by Alley and Pioneer Plating were done knowingly.

 Title 33 U.S.C. § 1319(c)(1) (1982) states: "Any person who willfully or negligently violates section . . . 1317 of this title . . . - 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." After February 4, 1987, "any person who knowingly violates section . . . 1317 . . . shall be punished by a fine of not less than $ 5,000 nor more than $ 50,000 per day of violation, or by imprisonment for not more than 3 years, or both." 33 U.S.C. § 1319(c)(2)(A) (1987 Supp.). *fn3" Section 1317(d) of Title 33 provides: "After the effective date of any . . . pretreatment standard promulgated under this section, it shall be unlawful for any owner or operator of any source to operate any source in violation of any such . . . pretreatment standard." For purposes of § 1317(d), a "source" is "any building, structure, facility or installation from which there is or may be the discharge of pollutants." 33 U.S.C. § 1316(a)(3) (1982).

 From these statutes the court discerns two different, yet similar, offenses. The indictment alleges both. The elements of the first offense, which stems from the pertinent version of § 1319(c)(1), are that the defendant (1) willfully and negligently (2) operated a source (3) in violation of a pretreatment standard promulgated under § 1317(b). *fn4" This offense is stated in each of Counts 1-13 and 73-75 of the indictment. The elements of the second offense, which stems from § 1319(c)(2)(A), are that the defendant (1) knowingly (2) operated a source (3) in violation of a pretreatment standard promulgated under § 1317(b). *fn5" This offense is stated in each of Counts 14-72 and 76-81.

 The defendants contend that the indictment may not state an offense merely by claiming a violation of the pretreatment standards set forth under 40 C.F.R. Part 413. The defendants begin with 33 U.S.C. § 1317(b)(1), which states:

 
The Administrator shall [propose and properly promulgate] regulations establishing pretreatment standards for introduction of pollutants into [POTWs] for those pollutants which are determined not to be susceptible to treatment by such [POTW] or which would interfere with the operation of such [POTW]. . . . Pretreatment standards . . . shall be established to prevent the discharge of any pollutant through [POTWs], which pollutant interferes with, passes through, or otherwise is incompatible with such [POTW]. If, in the case of any toxic pollutant under subsection (a) of this section introduced by a source into a [POTW], the treatment by such [POTW] removes all or any part of such toxic pollutant and the discharge from such [POTW] does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a [POTW], and does not prevent sludge use or disposal by such [POTW] in accordance with section 1345 of this title, then the pretreatment requirements for the sources actually discharging such toxic pollutant into such [POTW] may be revised by the owner or operator of such [POTW] to reflect the removal of such toxic pollutant by such [POTW].

 The defendants suggest that this subsection has focused the Administrator's attention on POTWs, and thus a proper pretreatment standard should focus on the extent to which it regulates pollutants which "interfere[] with, pass[] through, or otherwise [are] incompatible" with the operations of the POTW which serves a particular source. Indeed, one can find such regulations. See 40 C.F.R. § 403.5 (prohibiting defined "users" of POTWs from introducing pollutants which cause defined "Pass Through" or "Interference"). Assuming for the moment that 40 C.F.R. Part 413 states proper pretreatment standards, the defendants argue that since the indictment fails to allege anything about the effect of their discharges on the POTW which served the defendants' facilities, the indictment is deficient.

 A careful review of the regulatory scheme which the Administrator has erected pursuant to § 1317(b) indicates that not every aspect of that scheme is as directly tied to the output of POTWs as the defendants contend. Instead, the Administrator has set up two different sets of regulations. See 52 Fed.Reg. 1585, 1586 (Jan. 14, 1987) (explaining recent history of regulation of POTWs). The first, found principally in 40 C.F.R. Part 403, governs those pollutants which pass through or interfere with the treatment processes of POTWs. See id. at § 403.1. These rules are entitled "General Pretreatment Regulations for Existing and New Sources of Pollution." Throughout the General Pretreatment Regulations, however, the Administrator asserts the power to enact regulations applicable to particular industries, independent of his or her power to govern the operations of or discharges from POTWs. See, for example, id. at § 403.5(a)(1) (general prohibitions of § 403.5 "apply to each User introducing pollutants into a POTW whether or not the User is subject to other National Pretreatment Standards or any national, State, or local Pretreatment Requirements"); id. at § 403.6 (National Pretreatment Standards unless noted otherwise "shall be in addition to the general prohibitions established in § 403.5 of this part"). Such independent, industry-specific regulations currently begin with 40 C.F.R. Part 405, and extend through and include the pretreatment standards applicable to certain electroplating firms in 40 C.F.R. Part 413.

 Like the other industry-specific or so-called "national categorical" standards, those found in Part 413 expressly augment those in Part 403. See 52 Fed.Reg. 1526 (national categorical standards regulate industries in a manner separate from General Pretreatment regulations); 40 C.F.R. at § 413.14 ("any existing source subject to this subpart which introduces pollutants into a publicly owned treatment works must comply with 40 CFR Part 403 and achieve the following pretreatment standards for existing sources . . . ."). Section 413.14's use of the word "and" indicates that the Administrator has chosen to regulate electroplating companies by controlling both a company's effect on its POTW, through the regulations set forth in Part 403, and the company's own discharges, through the standards appearing Part 413.

 The defendants have not found any authority which suggests that the Administrator intended for the general standards contained in Part 403 to be predicates for the pretreatment standards set forth in Part 413. The defendants refer the court to National Ass'n of Metal Finishers v. E.P.A., 719 F.2d 624 (3d Cir. 1983) ("NAMF"), portions of which were reversed in Chemical Manufacturers Assn. v. NRDC, 470 U.S. 116, 84 L. Ed. 2d 90, 105 S. Ct. 1102 (1985). There the court ordered the Administrator to redefine the term "interference" in Part 403 to bring it within Congress's intent in enacting the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-240, 86 Stat. 47. The court also directed the Administrator to resubmit his definition of "pass through" in Part 403, as the Administrator had not promulgated it with proper notice and comment. The court noted, however, that these deficiencies in the General Pretreatment Regulations of Part 403 "play no part in either the setting or the administration" of the pretreatment standards found in Part 413. See NAMF, 719 F.2d at 638-41, 656 & n. 50; see also 52 Fed.Reg. 1587 (Administrator's response to NAMF ; Administrator notes that his new definitions of "pass through" and "interference" do not play "a direct role" in national categorical standards).

 The defendants contend that if this is how the Administrator envisions the regulation of discharges from electroplating firms, then the Administrator has acted outside of the authority delegated to him under 33 U.S.C. § 1317(b), and thus the pretreatment regulations set forth in Part 413 are unlawful. This argument will not detain the court for long, as the court may not consider it. Title 33 § 1369(b)(1) (1982) provides for judicial review of any pretreatment standard issued under § 1317(b) in the circuit courts of appeals, not the district courts. Even then, a person must seek such judicial review within ninety days of the Administrator's promulgation of the standard. *fn6" Section 1369(b)(2) states: "Action of the Administrator with respect to which review could have been obtained under paragraph (1) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement." The Administrator ...


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