The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Defendant's Motion to Dismiss Superceding Indictment for Violation of Due Process (d/e 85). For the reasons stated below, this Motion is denied.
Under Federal Rule of Criminal Procedure 12(b), a defendant can move the pretrial to dismiss a flawed indictment. If an indictment "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend" and "enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense," it is sufficient. United States v. Moore, 446 F.3d 671, 676-77 (7th Cir. 2006) (internal quotation marks omitted). A court examining the validity of an indictment must view all facts in the light most favorable to the Government, and it should avoid reviewing the indictment in a hypertechnical manner. United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999); United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). Thus, for purposes of this Motion, the Court accepts the factual allegations in the Superceding Indictment (d/e 79).
On July 12, 2007, the Government filed the Superceding Indictment against Defendant Gerald Lippold (Lippold). According to the Superceding Indictment, Lippold was part owner of a bulk hauling company until 1999. That year, Curry Ready Mix & Builders' Supply, Inc. (Curry Ready Mix) bought the property on which Lippold's hauling company operated. It also agreed to hire Lippold for consulting services. From 1999 until the summer of 2003, Lippold frequently worked from the property owned by Curry Ready Mix. Several Curry Ready Mix subsidiaries (with Curry Ready Mix, the Curry Companies) operated from this property, and the Government alleges that Lippold exercised substantial authority over the Curry Companies' facilities, agents, and employees.
According to the Superceding Indictment, the Curry Companies accepted at their facility approximately 35,000 tons of waste from a utility company in March and April of 2001. The waste included fly ash waste and bottom ash waste from coal combustion, and the Curry Companies used the waste to fill a large excavation at the property. Sometime in 2001, though, rainwater began filling the excavation, and boron leached from the waste into the water that accumulated. The boron contaminated the accumulated water. The Government alleges that the boron level in the water was 13 times greater than the concentration the Illinois Environmental Protection Agency (IEPA) allowed.
In June of 2001, the IEPA issued violation notices to the Curry Companies. That summer, the IEPA discussed and negotiated with Lippold and the Curry Companies the proper means for removal and disposal of the waste in the excavation. Later in 2001, the Curry Companies agreed to remove and dispose of the waste. According to the Superceding Indictment, from February 2002 until at least the summer of 2003, Lippold supervised the removal of the waste and the disposal of the boron-contaminated water.
An unnamed stream (Curry Stream) flows west through the Curry property, and a second unnamed stream (Second Stream) flows north just west of and sometimes on the Curry property. The Curry Stream joins the Second Stream just on or immediately adjacent to the Curry property, creating a third stream (Joint Stream). One mile downstream from the junction of the two initial streams, the Joint Stream flows into the Sangamon River.
In or before the Spring of 2002, the IEPA told the Curry Companies that the boron-contaminated water could not be discharged into the Curry Stream or Joint Stream without a National Pollutant Discharge Elimination System (NPDES) permit from the United States Environmental Protection Agency (EPA) or the IEPA. In March of 2002, the Curry Companies submitted an NPDES application to the IEPA. In May of 2002, Lippold allegedly was aware that an NPDES permit would be required before any of the boron-contaminated water could be discharged into the Curry Stream or Joint Stream. In May or June of 2002, the IEPA informed the Curry Companies that it intended to deny their NPDES permit application, and in June of 2002, the Curry Companies withdrew their application. That same month, the Curry Companies requested a provisional variance from the IEPA allowing them to discharge the boron-contaminated water into the Curry Stream and Joint stream, but they withdrew the request in July of 2002 and resubmitted it with modifications in August of 2002. In August of 2002, the IEPA denied the request.
The Government alleges that from March or April of 2003 until the beginning of June 2003, Lippold caused Curry Company agents or employees to discharge the boron-contaminated water into the Curry Stream and Joint Stream by four means. First, it alleges that Lippold had pumps and hoses installed at the facility to pump the boron-contaminated water from the excavation to slopes adjacent to the Curry Stream and Joint Stream, from which the water flowed into the streams. Second, Lippold allegedly had the water from the excavation pumped to a drainage ditch that emptied onto the slope above the Curry Stream, from which the water flowed into the stream. Third, the IEPA permitted Lippold to fill tanker trucks with the boron-contaminated water and spread the water on two parking lots at the facility, to control dust. The IEPA allowed this use of the water on the express condition that no runoff from the lots be allowed to enter the Curry Stream, but Lippold allegedly let the volume of water applied exceed the lots' abilities to absorb it, leading to runoff into the Curry Stream and Joint Stream. Fourth, on some occasions Lippold allegedly ordered that the tanker trucks be overfilled with the boron- contaminated water such that the water overflowed into the drainage ditch and flowed into the Curry Stream and Joint Stream.
The Government has charged Lippold with violating the Clean Water Act by knowingly causing pollutants to be discharged from point sources into the waters of the United States without an NPDES permit. The Government alleges that the boron and boron-contaminated water are "pollutants" under 33 U.S.C. § 1362(6) and that the pipes, hoses, and tanker trucks were "point sources" under 33 U.S.C. § 1362(14). It also asserts that the Curry Stream, the Joint Stream, and the Sangamon River are all "waters of the United States" under 33 U.S.C. § 1362(7) and 40 C.F.R. § 122.2.
On September 21, 2007, Lippold moved to dismiss the Superceding Indictment arguing that the terms "waters of the United States" and "pollutant" in the Clean Water Act are so vague that a conviction here would violate the Due Process Clause of the Fifth Amendment. The Government filed its Opposition to Defendant's Motion to Dismiss Superceding Indictment for Violation of Due Process (d/e 89) on October 12, 2007. The ...