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United States v. Louisiana Pac. Corp.

ELR Citation: 26 ELR 20726
Nos. No. 95-CR-215-B, 908 F. Supp. 835/42 ERC 1033/(D. Colo., 11/28/1995) CAA indictment charges federal crimes

The court holds that an indictment alleging that a plywood manufacturer violated the Clean Air Act (CAA) by knowingly falsifying continuous opacity monitoring system (COMS) reports and tampering with COMS equipment that a 1988 state permit required charges federal crimes. The court first rejects the manufacturer's argument that because a 1990 settlement agreement between the manufacturer and the Colorado Department of Health (CDH) dropped the COMS requirements and because the requirements were not part of the Colorado state implementation plan (SIP), the COMS requirements were not federally enforceable. Federally enforceable requirements include operating permits issued under an EPA-approved program that is incorporated into a SIP that expressly requires adherence to any permit issued under the program. Here, the 1988 permit unequivocally required installation and use of a COMS; the requirementswere imposed pursuant to the CDH's authority under state regulations that are part of the Colorado SIP, which is an approved permitting program; and the permit requires adherence to its terms. The court next holds that read together, the CAA and its implementing regulations at 40 C.F.R. §51.214 authorize the CDH to impose COMS requirements on any individual operator of an emission source. The court notes that COMS monitoring and reports were required by federal law because the CAA and its implementing regulations require monitoring and reporting. The choice of a COMS as opposed to other monitoring equipment does not make the requirement more stringent than federal law. The court next holds that the 1990 settlement agreement, which specified that another monitoring method was the only method of enforcement, did not drop the COMS requirements or alter the terms of the 1988 permit. Although the COMS reports could not be used to enforce violations during the term of the agreement, they were still necessary to monitor the effectiveness of pollution control equipment as well as compliance with the opacity limitation. The court next holds that alleged violations of resin reporting requirements are not federally enforceable, and dismisses those counts. These requirements rested on oral communication between the manufacturer and the CDH; they were not required by the SIP or incorporated into an operating permit.

The court next holds that the COMS counts are not unconstitutionally vague, even in light of the 1990 settlement agreement and a 1992 permit that canceled the 1988 permit and eliminated the COMS requirement. A person of ordinary intelligence subject to the provisions of the 1988 permit would have fair warning of the required conduct, and the 1990 agreement did not amend or modify the 1988 permit. The court next holds that the question whether the alleged violations were sufficiently material to be prosecuted under the CAA is for the jury. The court next dismisses two counts regarding false reports filed after the 1992 permit was issued, because reports were no longer required to be filed at that time. The court refuses to dismiss a count regarding tampering with the COMS on the day before the 1992 permit was issued, because the COMS requirement was still in effect. The court refuses to dismiss a count regarding tampering on the day the permit was issued, because the effective time of the permit is a jury question. The court next holds that the manufacturer is properly charged with felonies under the 1990 CAA amendments rather than misdemeanors under the original CAA. Although the violations occurred before implementation of the new permitting scheme that the amendments require, the 1988 permit gave the manufacturer fair warning. Regarding the conspiracy count, the court holds that although the alleged overt acts may not constitute acts in furtherance of a conspiracy to violate CAA §113, they may constitute acts in furtherance of a conspiracy to violate 18 U.S.C. §1001, which deals with submitting false information regarding matters within the jurisdiction of any department or agency of the United States. The court holds the motion to strike this count in abeyance pending further briefing on whether the section applies to the CDH. The court finally severs the CAA counts from counts alleging that the manufacturer attempted to defraud its customers. The two alleged schemes had distinct purposes, and the indictment fails to allege a common objective sufficient to support joinder of the offenses.

Counsel for Plaintiff
Henry L. Solano, U.S. Attorney
U.S. Attorney's Office
1200 Federal Office Bldg.
P.O. Drawer 3615, Denver CO 80294
(303) 844-3400

Counsel for Defendants
Elliott R. Peters
Keker & Van Nest
710 Sansome St., San Francisco CA 94111
(415) 391-5400