Petition — Lanigan v. United States

Office Supreme Court, U.S.

FlLED

No. APR 4 1983

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

October Term, 1982

PAUL A. LANIGAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RicHARD A. SPRAGUE

Bruce L. THALL

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

Counsel for Petitioner,

Paul A. Lanigan

Of Counsel:

SPRAGUE & RUBENSTONE

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-6711

QUESTIONS PRESENTED FOR REVIEW

1. Did not the court below err in failing to suppress

evidence seized as a result of warrantless searches under-

taken at the whim and caprice of government inspectors,

in the absence of any neutral, pervasive, random inspection

program?

2. Did not the court below err in failing to suppress

analyses of destroyed evidence?

3. Did not the court below err in failing to conclude

that Mr. Lanigan was charged under inapplicable statutes?

4, Did not tk court below err in failing to hold that

the Clean Water Act and Refuse Act are inapplicable to

landfill leachate discharges, especially since there was no

evidence whatsoever establishing any adverse impact on

any receiving stream?

5. Did not the court below err in er:oneously instruct-

ing the jury respecting the elements of the Clean Water

Act and the Refuse Act liability?

6. Since the reliability of the government expert’s

methodology was not established, and had never been ad-

mitted in any court of law, did not the court below err in

failing to exclude the expert’s testimony?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........ sees eeeeeeeee

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .....

ee eck enseeeereecencces

REASONS FOR GRANTING THE WRIT .........ccceccecevees

I.

II.

III.

The Repeated Warrantless Searches of the Landfill

Violated Lanigan’s Fourth Amendment Rights ....

A. The Searches Here Conducted Violate the Fourth

Amendment Due to the Absence of a Warrant or

an Equivalent Guarantee of Reasonableness ....

B. The Reasonableness Requirement Adheres Ad-

IT MNTENOD Sc ccccccccccnscsccceces

The Introduction of Analyses of Destroyed Leachate

Samples Violated Lanigan’s Rights to Due Process

and Effective Assistance of Counsel ..............

A. Destruction of Evidence Is Suppression of Evi-

dence, Violating the Duty to Preserve .........

B. Defendant Must Have the Opportunity to Have

His Expert Examine the Items Upon Which the

Government’s Expert Testimony Is Based .....

Mr. Lanigan Was Not Charged Under the Sole

Statute Governing Discharges From Landfills .....

A. The Charges Were Based on _ Inapplicable

CCU LCEGESSRes ke ¥ns6ss0cdr6eedcesens

12

12

15

15

TABLE OF CONTENTS (Continued)

Page

B. Even Had the RCRA Not Excluded Prosecutions

for Conduct Here Alleged to Violate the Refuse

and Clean Water Acts, Case Law Would Do So 20

IV. The Clean Water Act and Refuse Act Do Not Pro-

scribe the Discharge of Leachate From a Landfill .. 21

V. The Court Erroneously Instructed That Clean Water

Act Liability Could Ensue From Mere Negligence 22

VI. The Court Erroneously Instructed That Refuse Act

Liability May Be Predicated Merely on Lanigan’s

Status as a Corporate Officer .......csssccsscees 26

VII. The Government’s Expert’s Prejudicial Testimony

Was Improperly Admitted ..........cseeseeeees 29

Ce eet Pe Te Per Te ree Pee 30

APPENDIX:

Court of Appeals Judgment Order ............000000. Al

Court of Appeals Order Denying Rehearing ........... A4

STU CG TORE ba hess ces asicsecscdeesesens A5

(ii)

TABLE OF AUTHORITIES

Cases: Page

Babcock & Wilcox Co. v. Occupational Safety and Health Ad-

ministration, 622 F.2d 1160 (3d Cir. 1980) ........645. 25

Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) ........ 16

Bionic Auto Parts and Sales, Inc. v. Fahner, 518 F.Supp. 582

CN. OD. TS WBE). ci cvcccectcsecsecscerseneseccovns 14

Brady v. State of Maryland, 373 U.S. 83 (1963) ........... 15

Bryant v. United States, 439 F.2d 642 (D.C. Cir. 1971) ..... 15

Busic v. United States, 100 S.Ct. 1747 (1980) ......seeeeee 20

Camara v. Municipal Court, 387 U.S. 523 (1957) .......... 12, 13

Commonwealth v. Koczwara, Pa., 155 A.2d 825 (1959) ...... 27

Donovan v. Dewey, 101 S.Ct. 2534 (1981) ....cseeeeeeeeee 13, 14

Dow Chemical Co. v. United States, 536 F.Supp. 1355 (E.D.

DR NUN oasis tees nhs ca Pat ag nara neeen baurne kes é 14

Government of the Virgin Islands v. Testamark, 570 F.2d 1162

Re RR ern ere Pere ery Pre 16, 17

Irey v. OSHRC, 519 F.2d 1200 (3d Cir. 1974) aff'd. en bane

on other grounds, 519 F.2d 1215 (3d Cir. 1975), aff’d. on

other grounds, 430 U.S. 442 (1977) ..... cece cece ewes 25

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) ........0005 13

Matter of Oswego Barge Corp., 664 F.2d 327 (2d Cir. 1981),

petit. for rehearing denied, 673 F.2d 47 (2d Cir. 1982) .. 20

ee a 2 ee rer re 16

Minnehana Creek Watershed Dist. v. Hoffman, 597 F.2d 617

i ME Sea da cetua sun biaweiNek enews been nies 21

Morissette v. United States, 342 U.S. 246 (1952) .......... 27

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........cceeeees 20

Punnett v. Carter, 621 F.2d 578 (3d Cir. 1980) ............ 29

Rewis v. United States, 401 U.S. 808 (1971) .............. 20

SED, Inc. v. City of Dayton, 519 F.Supp. 979 (S.D. Ohio

DENY, aie NEs Bix Gi SOU WEE ED GAL baee ss Gua oad ek hens 21

See v. City of Seattle, 387 U.S. 541 (1967) .............06. 13

(iv)

TABLE OF AUTHORITIES (Continued)

Cases (Continued): Page

Simpson v. United States, 435 U.S. 6 (1978) ...... eee eenes 20

State v. Hamilton, Fla., 388 So.2d 561 (1980) .......ee sues 23, 24

State v. Joyce, 361 So.2d 406 (Fla. 1978) ...... cece ee eeee 24

State v. Winters, Fla., 346 So.2d 991 (1977) ... cece ceeees 24

United States v. Addison, 498 F.2d 741 (D.C. Cir. 1974) .... 29

United States v. Agurs, 427 U.S. 97 (1976) .....cceeeeeues 15

United States v. Aleyne, 454 F.Supp. 1164 (S.D. N.Y. 1978) 21

United States v. Ayo-Gonzalez, 536 F.2d 652 (5th Cir. 1976) 27

United States v. Balloy, 519 F.2d 403 (4th Cir.), cert. denied,

Ge Tis BORE CERRO) akc askdasvobescactnvesanweaneny 29

United States v. Bass, 404 U.S. 336 (1971) ......ccceeeee 20

United States v. Brady, 595 F.2d 359 (6th Cir. 1979) ...... 29

United States v. Brown, 557 F.2d 541 (6th Cir. 1977) ...... 29

United States v. Burns, 512 F.Supp. 916 (W.D. Pa. 1981) .. 20

United States v. Butler, 499 F.2d 1006 (D.C. Cir. 1974) .... 16

United States v. Consolidated Coal Company, 504 F.2d 1330

CU CI: TOPS ocevcdasnsecccdssseckesicesarerneuns 26

United States v. Dixie Carriers, Inc., 627 F.2d 736 (5th Cir.

BEE cc bavnd bs ekndsnsew dae kaupueeaens eee taneneuen 20

United States v. Erne, 576 F.2d 212 (9th Cir. 1978) ........ 27

United States v. Flum, 518 F.2d 39 (8th Cir. 1975) ........ 27

United States v. Hamel, 551 F.2d 107 (6th Cir. 1977) ...... 22

United States v. Hudson Farms, Inc., 12 E.R.C. 1444 (E.D.

SED a chs vicinnsskckse san Kaseni na een ka beeen 24

United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978) ...... 29

United States v. Margraf, 483 F.2d 708 (3d Cir. 1973) ..... 27

United States v. Oxford Royal Mushroom Products, 487

ee: Ge Cae. PFE aes vinci s caneacwcasees 24

United States v. Park, 421 U.S. 658 (1979) ...........000. 28

United States v. Pennsylvania Industrial Chemical Corp., 411

Ss UE PEPE 4 benches waswnes rdebhaec omen weeAN 22

United States v. Standard Oil Company, 384 U.S. 224 (1966)

22, 28

(v)

TABLE OF AUTHORITIES (Continued)

Cases (Continued): Page

United States v. White Fuel Corporation, 498 F.2d 619 (lst

Sel IED bo canskakndvuntins eee saaecicbsadecaneenee 26, 27

Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980) ....25, 26

White v. Maggio, 556 F.2d 1352 (5th Cir. 1977) .......... 16

Zenith Radio Corp. v. Matsushita Electric, 505 F.Supp. 1313

Cy SE SOD Vededausescudevet se seenveasvevasey’ 29

Constitutional and Statutory Provisions:

Be Ie MMR ED ccdsuscxeevderesbabonsesiensasxgaans l

5 USCCAN 6238-6354 (94th Cong., 2d Sess. 1976) ........ 19

Clean Water Act, 33 U.S.C. §§ 1251-1376 .........eeeeeee passim

Resource Conversation and Recovery Act (RCRA) 42 U.S.C.

(og g SPPrrrrrevererrereerliere rr rirer re passim

Refuse Act, 33 U.S.C. 401 Of 60q. wc ccccccccscccccovccces passim

United States Constitution :

PE SD Sib ov sacks cethteeaceeane hae wnan 12, 13

PE CUES Sn bike ko dv cntsh-osenbenusebeuceeeuh 28

(vi)

OPINIONS BELOW

There is no Opinion of the panel of the United States

Court of Appeals for the Third Circuit affirming the

Opinion of the United States District Court for the

Eastern District of Pennsylvania. The Judgment Order

affirming the Opinion without discussion, was entered on

January 7, 1983, and appears in the Appendix at Al.

The Order of the Third Circuit Court of Appeals deny-

ing the Petition for Rehearing and Rehearing En Bane was

entered on February 3, 1983, and appears in the Appendix

at A4.

There are no reported Opinions of the United States

District Court for the Eastern District of Pennsylvania.

JURISDICTION

The Judgment of the United States Court of Appeals

for the Third Circuit at Al, was entered on January 7,

1983. On February 3, 1983, the Court denied a Petition

for Rehearing and Rehearing En Banc filed by Petitioner

herein. This Court’s jurisdiction is invoked under 28

U.S.C, § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution,

Amendment V

No person shall . . . be deprived of life, liberty or

property without due process of law;...

United States Constitution,

Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

(1)

2 Provisions Involwed

Resource Conversation Recovery Act

42 U.S.C. § 6901 et seq.

42 U.S.C. §6928(d). Criminal penalties—Any person

who—

(2) knowingly treats, stores, or disposes of any haz-

ardous waste... .

(A) without having obtained a permit;

(B) in knowing violation of any material condi-

tion or requirement of such permit;

(4) knowingly generates, stores, treats, transports, dis-

poses of, or otherwise handles any hazardous waste

(whether such activity took place before or takes place

after October 21, 1980) and who knowingly destroys, alters,

or conceals any record required to be maintained under

regulations promulgated by the Administrator under this

subchapter shall, upon conviction, be subject to a fine...,

or to imprisonment. ...

Refuse Act

33 U.8.C. § 401 et seq.

33 U.S.C. § 407. Deposit of refuse in navigable waters

generally

It shall not be lawful to throw, discharge, or deposit,

or cause, suffer, or procure to be thrown, discharged, or

deposited either from or out of any ship, barge, or other

floating craft of any kind, or from the shore, wharf, manu-

facturing establishment, or mill of any kind, any refuse

matter of any kind or description whatever other than that

flowing from streets and sewers and passing therefrom in

a liquid state, into any navigable water of the United

States, or into any tributary of any navigable water from

which the same shall float or be washed into such navigable

water;...

Statement of the Case 3

Clean Water Act

33 U.S.C. § 1251 et seq.

33 U.S.C. § 1819(¢)

(1) Any person who willfully or negligently violates

sections 1311, 1312, 1316, 1317, or 1318 of this tiJle, or any

permit issued under section 1342 of this title by the Ad-

ministrator or by a State or in a permit issued under

section 1344 of this title by a State, shall be punished by a

fine ..., or by imprisonment....

STATEMENT OF THE CASE

Shortly after World War II, Howard Moyer began

using land which he owned as a site for open dumping of

municipal and private refuse. The land, known as Moyer’s

Mountain, was located on rock formations which sloped

rapidly down on the South and West sides to two water-

ways, Eagle Stream and Skippack Creek. The land be-

tween Moyer’s Mountain and the Skippack was owned by

the Commonwealth of Pennsylvania. That between Moyer’s

Mountain and Eagle Stream was owned by another indi-

vidual, not here involved. The landfill site was lined with

underground streams which surfaced on the landfill face.

These streams, subsequently covered by an average of

sixty feet of trash deposited on the landfill, establish the

futility of any attempt to wholly control leachate, the

generic name for the end product of water percolating

through anything, in this case materials deposited on a

landfill.

In the late 1960’s, on the creation of the Division of

Environment Resources of the Commonwealth of Penn-

sylvania and the passage of the State’s Solid Waste Man-

agement Act, DER approached all landfill owners, includ-

ing Moyer, to work out schedules to bring landfills into

compliance with DER regulations. Pursuant to such nego-

tiations, Moyer entered into a consent decree on May 16,

4 Statement of the Case

1972. That agreement required Moyer to build an interim

and final leachate control system approved by DER. In

1972, Mr. Lanigan was hired by Moyer to construct the

interim system. Lacking monies to pay Mr. Lanigan for

services rendered, in 1974 Moyer offered him twenty-five

(25%) percent interest in a corporation, Moyer’s Landfill,

Inc., to own the landfill operation, the land beneath remain-

ing owned by Moyer. The agreement marks Mr. Lanigan’s

involvement with the operation of the landfill.

Ronald Landon, a hydrogeologist working extensively

with leachate generation and control in landfills, and who

was accepted without an objection as an expert, testified

that he was retained by an engineering firm to design an

interim and final collection system. Given the substantial

site limitations, Landon proposed the construction of a

‘*state of the art’’ leachate interceptor trench excavated

along the toe of the landfill. The trench, approximately

1000 feet long, was designed to collect most, but not all, of

the leachate. The trench, constructed with a uniform

gradiant to provide for gravity drainage, was hacked by

Mr. Lanigan out of competent bedrock, from several feet

to twenty or more feet deep.

Mr. Landon also testified, without contradiction, that

the leachate seeps occurring on land adjacent to the land-

fill in 1978-1980, which seeps formed the gravamen of the

charges lodged, were of leachate generated long prior to

1978, having been stored in rock crevices underlying the

landfill and slowly moving through such rocks towards the

waterways. Mr. Landon, moreover, testified that the source

of the seeps was likely to be Troop Farm, a 100 odd acre

plot next to the landfill on which a piggery had existed,

municipal trash and sludge been deposited, and chemical

fertilizers placed. Further, Mr. Landon testified that re-

gardless of the source of the leachate, had landfilling

stopped in 1972, and the landfill been fully capped at the

time the Consent Order was signed by Moyer, the seeps

and oozes on the adjacent property would still be occurring

in 1978-1980, and that Mr. Lanigan could have done nothing

Statement of the Case 5

to control those seeps. His testimony was echoed by Dr.

Edgar Meiser, a geologist working extensively with ground

water pollution relating to landfills.

Richard Bodner, a registered professional engineer

who brought Mr. Landon to Moyer’s in 1972 in connection

with the implementation of the Consent Order, also testi-

fied, reaffirming the conclusions of Landon and Meiser.

Bodner also testified that Mr. Lanigan had neither created

nor designed the system, but rather had constructed and in-

stalled it; that the system was designed by experts; that

the system was designed to intercept as much of the

leachate as was possible, but not all leachate; that DER

approved the system; that the work Lanigan did in con-

structing the system was ‘‘unbelievable’’; and that leachate

control at the landfill had dramatically and continually im-

proved from 1971 through 1980.

These three experts, each of whom had been previously

retained by the landfill in connection with matters extra-

neous to the criminal charges lodged against Mr. Lanigan,

testified that the leachate problems were attributable to

system design, which could not be alleviated, and certainly

not to negligence on Mr. Lanigan’s part. Furthermore,

six witnesses who worked for Moyer’s from 1978 through

1980 testified that Lanigan insisted that leachate seepage,

leaks and control was their major priority, regardless of

their assigned task.

The government’s evidence did show that on a precious

few days liquid escaped from the vicinity of the landfill.

It did not show that any such escape was the result of

negligence of Mr. Lanigan, nor could it have been. More-

over, the government never established that any water near

the landfill was adversely affected by receipt of escaping

leachate. Dr. John Keenan, a professor of environmental

engineering at the University of Penasylvania, testified

that on comparing ‘‘storet’’ data for Skippack Creek, a

waterway several hundred feet below Moyer’s, for the

periods 1950-1978, and 1978-1980 (the periods for which

EPA maintained and established such data), both imme-

6 Statement of the Case

diately upstream and downstream from Moyer’s, obtained

by and for the EPA at independent sampling stations,

there was no evidence whatsoever that the landfill had any

adverse impact on the Skippack. Indeed, no samples of

Skippack water allegedly altered by leachate were ever

attempted to be introduced into evidence.

The government’s case consisted of lay persons claim-

ing they saw leachate escaping from Moyer’s or entering

the Skippack on precious few dates over a three year

period. Assuming that their testimony was credible, these

persons neither established negligence on the part of Mr.

Lanigan, nor any measurable impact on receiving streams.

For the former proposition, the government relied

upon Gary Brown, a technical consultant hired for the

prosecution of this case, who never saw the landfill until

months after Mr. Lanigan had involuntarily been evicted

from it by Moyer.’ Brown testified based on a ‘‘water

balance method analysis’’, which analysis had never been

a-eepted as valid in any court of law, and which required

Brown to assume conditions on the landfill about its opera-

tions which were affirmatively incorrect and matei‘al.?

1. The non-payment of rent from Moyer’s Landfill, Inc. to

Moyer as owner of the ground on which the landfill sat, was the

cause of the eviction. Mr. Lanigan continually sparred with Moyer

over the latter’s refusal to make corporate monies available for use

on the landfill to fund leachate control measures in place and planned.

2. Brown’s conclusions as to the amount of water the landfill

could absorb were premised on the volume of trash, each cubic yard

of which holds 50 gallons of water on the 4 acre new landfill which

he assumed was thirty-five feet deep; the absence of recirculation;

and the absence of a closed system precluding rain water from mixing

with leachate. In fact, the evidence disclosed that the depth of fill

averaged 60-100 feet; that recirculation did occur on the 40 acre old

landfill; and that the system was closed. Brown even admitted that

his assumptions were incorrect. The significance of the erroneous

assumptions is critical and prejudicial. For example, Brown found

a saturation capacity—the amount of liquid which the landfill could

hold—of only 10.4 million gallons, believing that recycling only

Statement of the Case 7

Based on his erroneous assumptions, Brown found that

leachate generated which could not be absorbed by the

landfill was 16.2 million gallons.

Brown also testified, however, that by correcting his

erroneous assumptions, the amount of excess leachate gen-

erated was 3.8 million gallons. Since Brown testified that

ten (10%) percent of the saturation capacity of the landfill,

which he computed to be 115 million gallons, could be used

to store leachate, then the landfill could absorb 11.5 million

gallons of what the expert termed excess leachate.’ Since

only 3.8 million gallons were excess, according to Brown,

there was no excess leachate.

Not only did Brown testify to facts disproving the

claimed existence of excess leachate, but also Dr. John

Keenan similarly testified. Taking all Brown’s stated as-

sumptions save one, altered in turn to conform to the facts

concerning the actual operation of the leachate control

system at Moyer’s, Dr. Keenan testified that: (a) since

leachate was recycled to the old landfill, the amount of

excess leachate generated was zero; or (b) with 500 to 700

tons per day of trash deposited on the old landfill (which

figure was derived from DER inspection reports intro-

duced into evidence) the amount of excess leachate gen-

erated was zero.

2. (Cont’d.)

occurred on the 4 acre 35 feet deep new landfill area. {i¢d he known

that the recycling was occurring on the old fill area, which he claimed

was 40 feet deep and 39 acres, then Brown testified to an additional

saturation capacity of over 115 million gallons. Since Brown had

concluded that 16.2 million gallons of leachate were generated over

what the landfill could absorb, without considering the additional

saturation capacity, there obviously was no excess leachate gencrated.

3. Intriguingly, in his report, Mr. Brown calculated that 100%

of the saturation capacity could be used to store leachate. Only when

his calculations, corrected for his factual errors, disclosed no excess

leachate did he mention his 10% figure. The figure is unsupported

by any literature or trial evidence.

8 Statement of the Case

Moyer’s had an agreement with Bridgeport Sewer

Authority permitting it to dispose of up to 50,000 gallons

of leachate per week, which agreement was claimed to be a

part of Moyer’s permit conditions. The ‘‘negligence’’ of

Mr. Lanigan was essentially claimed to be his failure to

haul leachate from the landfill, thereby permitting excess

leachate to build up beyond the ability of the landfill to

absorb it. However, Dr. Keenan’s testimony, and that of

Gary Brown, using Mr. Brown’s uncorrected assumptions,

established that removal of 50,000 gallons of leachate per

week would have reduced the uncorrected excess leachate

figure from 16.2 million gallons to only 10.5 million gallons,

so that leachate hauling would have had no measureable

impact on discharges escaping from the landfill. Similarly,

using Mr. Brown’s corrected assumptions, and/or Dr.

Keenan’s calculations based on Mr. Brown’s assumptions,

there was no excess leachate generated. Therefore, it

could not be negligent for Mr. Lanigan to fail to haul the

leachate to Bridgeport.

In an attempt to establish impact on receiving streams,

the government relied on leachate samples obtained from

or around collection basins and storage tanks located on

Moyer’s property and on state property between the land-

fill and Skippack Creek. No such samples were taken of

the Skippack itself. The government contended that these

samples contained high levels of pollutants which must

somehow have had an adverse impact upon the Skippack.

In addition, however, they should have been excluded as a

matter of law for constitutional infirmities.

The samples obtained from the collection basins and

containment vessels over a three year period resulted from

warrantless searches and seizures of Moyer’s property by

DER and EPA personnel. All such personnel testified,

without contradiction, that: (a) no search or administra-

tive warrant was ever obtained or sought for any such

entry; (b) no consideration was ever given as to whether

to seek such warrant; (c) Mr. Lanigan was never advised

by anyone that the sample results could be used against

Statement of the Case 9

him or the landfill for any civil or criminal purpose what-

soever; (d) Mr. Lanigan was never advised that escapes

of leachate to receiving streams violated even civil, much

less criminal, statutes; (e) that on many occasions when

DER/EPA personnel sought access to Moyer’s property,

Mr. Lanigan was not present so that no consent was ob-

tained or that were he present, no attempt was made to

contact him; and (f) even after a federal grand jury in-

vestigation into leachate discharges had commenced, war-

rantless entries for the purpose of obtaining samples con-

tinued, and Mr. Lanigan was not even approached for his

‘‘consent’’ to such search.

The evidence also disclosed the total absence of any

routine, periodic, administrative inspection program under-

taken by either DER or EPA. Robert Orwan, Chief of

Compliance Section of DER, testified that although DER

has policies and procedures for obtaining consents and con-

ducting warrantless searches, and that the policies refer toa

‘‘consent to inspection’’ form, Orwan had never seen such

form. Moreover, there is no requirement—statutory, regu-

latory or internal—which purports to establish how often

landfills are to be inspected, or which landfills should be

inspected. Thus, there is no routine administrative in-

spection plan. Similarly, the record was wholly devoid of

any evidence from which the existence of an EPA routine

administrative inspection plan could even be inferred.

Indeed, each EPA entry onto landfill property was affirm-

atively triggered by either a specific complaint and follow

up or a desire to obtain information for the grand jury.

Thus, the sine qua non of a valid administrative warrant-

less search—routine, neutral indiscriminate administrative

plan—was wholly absent.

More perniciously, the government destroyed all

samples of leachate obtained from the warrantless searches

and seizures. The EPA samples, the analyses of which

were introduced at trial, had heen destroyed in October

1981, the same month as the indictment was returned.

No samples were kept in sufficient quantity to permit one

10 Statement of the Case

to disprove or verify the analyses of samples seized, and

Mr. Lanigan was never told that samples could be ‘‘split’’

so that he could have such samples independently tested

and verified. Moreover, the standard deviation in analyses

of samples may range from 30-40%. Given the obvious

significant range of expected error, the failure to provide

samples to Mr. Lanigan for testing was extremely

prejudicial.

In response to this prejudice, the government argued

that even had the samples been retained, their analysis

after ‘‘holding times’’® had expired would not permit an

accurate measure of the amount of each parameter tested

for. This response, of course, misses the mark.

Given the EPA acknowledged standard deviations, Dr.

Keenan testified that analysis beyond the holding times

would be most crucial in order to help verify the original

analyses. Although Dr. Keenan agreed that such analyses

ought not provide an accurate measure of the precise

amount of each component element, it would disclose an

accurate determination of the presence of such element.

Thus, the destruction of this evidence precluded Mr. Lani-

gan from ever verifying the quality of the samples.

The affirmative evil of the introduction of Brown’s

testimony was magnified by the Court’s instructions. In

connection with the Clean Water Act charges, the Court

instructed that the standard of criminal law to which Mr.

Lanigan would be held accountable was the ordinary due-

4. The EPA “Methods Manual”—Method for Chemical Analy-

sis of Water Wastes—the “Bible” for the field, notes the following

standard deviations: for chromium, given a known sample of 370

micrograms per liter, the standard deviation is 105 micrograms per

liter; for iron, given a known sample of 350 micrograms per liter,

the standard deviation is 131 micrograms per liter.

5. Holding time is defined as that period within which a

properly preserved sample may be tested for a specific “parameter”

(component element) and give reasonably accurate measurements of

both the presence and amount of such parameter.

Statement of the Case 11

care standard of civil negligence, not gross negligence.°

Respecting the Refuse Act, the Court instructed that crimi-

nal convictions could ensue ‘‘without the necessity of prov-

ing that he committed any act ... knowingly, wilfully, or

even negligently’’ if the jury found that Mr. Lanigan was

a responsible corporate official. As discussed infra, both

charges are erroneous.’

Trial commenced on February 8, 1982. On March 5,

1982, after two days of deliberations, the jury returned its

verdict. Of the 34 counts remaining from a 37 count in-

dictment, the jury acquitted Mr, Lanigan on counts 1-15,

each relating to claimed discharges in 1978, and convicted

him of 15 counts of violations representing discharges oc-

curring on seven days in 1980. Mr. Lanigan was also

acquitted on four counts of 1980 violations, two of which

had been alleged to have occurred on each of two dates for

which the jury returned guilty verdicts.

Notice of appeal was timely filed following the impo-

sition of a sentence of one year’s incarceration and a fine,

on May 14, 1982. On January 7, 1983, the Third Circuit

affirmed per curiam the District Court’s determinations,

without discussion. On February 3, 1983, the Third Circuit

denied petitioner’s ‘‘ Petition for Rehearing and Rehearing

En Bane.’’ The Third Circuit has stayed issuance of its

mandate pending disposition by this court of the instant

Petition for a Writ of Certiorari.

6. At post trial motions, the court acknowledged that such

error, if error, is plain error requiring the granting of a new trial,

even if not objected to by counsel. Neither the government nor the

court seriously contended that wilfulness was at issue.

7. The court also charged that no actual harm or damage to

the receiving stream need be shown to make out Clean Water or

Refuse Act violations. This, too, is erroneous. See IV, infra.

12 Reasons for Grating the Writ

REASONS FOR GRANTING THE WRIT

I, The Repeated Warrantless Searches of the Landfill Vio-

lated Lanigan’s Fourth Amendment Rights

A. The Searches Here Conducted Violate the Fourth

Amendment Due to the Absence of a Warrant or

an Equivalent Guarantee of Reasonableness

The right to be free from governmental intrusion is

guaranteed by the Fourth Amendment,

The challenged searches are constitutionally defective

in several respects. First, they were not based on a war-

rant. Second, they were not part of a regularized neutral

administrative inspection program, the sine qua non of

reasonableness where no warrant is obtained. Third, the

statutes purporting to establish authority for the warrant-

less searches are wholly devoid of criteria from which a

regularized, routine administrative inspection plan may be

created, so that no congressional intent to deem warrant-

less searches reasonable may be inferred.

B. The Reasonableness Requirement Adheres Admin-

istrative Searches

The reasonableness requirement adheres to admin-

istrative searches not randomly undertaken for general

purposes. In Camara v, Municipal Court, 387 U.S. 523

(1957), the Court held that administrative inspection pro-

grams violate the Fourth Amendment unless predicated

upon a validly issued warrant, supported by probable cause.

Camara drew a bright line between two separate and dis-

tinct types of searches, each predicated upon a different

standard of ‘‘reasonableness’’. Where the government

focuses on a specific offense, possessing specific evidence

of an existing violation, the requisite ‘‘probable cause’’ is

the traditional, criminal law standard. Where the govern-

ment does not focus on a specific individual for a specific

offense, but seeks to conduct an administrative search pur-

suant to a routine, periodic inspection program, which

Reasons for Granting the Writ 13

search is essential to an overriding public interest, a dif-

ferent situation is presented.

Reasoning that such inspections ‘‘are neither personal

in nature nor aimed at the discovery of evidence of crime’’,

and are based on important civil government purposes,

Camara held that although a lesser standard of probable

cause was permitted, nonetheless a warrant based upon

some showing of probable cause was required. Accord,

See v. City of Seattle, 387 U.S. 541 (1967).

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978), ad-

hered to the traditional probable cause standard, absent a

generalized, indiscriminate regulatory inspection program,

and required a showing of relaxed probable cause for ran-

dom administrative searches:

‘* For purposes of an administrative search such as this,

probable cause justifying the issuance of a warrant

may be based not only on specific evidence of an exist-

ing violation but also on a showing that ‘reasonable

legislative or administrative standards for conducting

an... inspection are satisfied with respect to par-

ticular [establishment].’ Camara v. Municipal Court,

387 U.S. 523, 588 (1967).’’ Barlow’s, supra, U.S. at

320-21.

Thus, Barlow’s requires a showing that a specific busi-

ness was chosen for inspection pursuant to a general ad-

ministrative plan, and not for belief of a specific violation

predicated on a specific complaint. As in Camara, the

generalized administration plan is equivalent to reason-

ableness under the Fourth Amendment, and the overriding

governmental interest supplies the probable cause.

In Donovan v, Dewey, 101 S.Ct. 2534 (1981), the court

held valid a warrantless search of mining facilities based

upon an explicit and statutorily defined regulatory search

scheme, opining that the comprehensive nature of the

random and neutral regulatory criteria themselves, spe-

cially tailored to fit the unusual requirements of mine

safety, comported with the Constitution:

14 Reasons for Granting the Writ

‘«(T }he only real issue before us is whether the statute’s

inspection program, in terms of the certainty and

regularity of its application, provides a constitution-

ally adequate substitute for a warrant. We believe

that it does. Unlike the statute at issue in Barlow’s,

the Mine Safety and Health Act applies to industrial

activity with a notorious history of serious accidents

and unhealthful working conditions. The Act is specif-

ically tailored to address those concerns, and the regu-

lation of mines it imposes is sufficiently pervasive and

defined.... Thus, rather than leaving the frequency

and purpose of inspections to the unchecked discretion

of government officers, the Act establishes a predict-

able and guided federal regulatory presence.’’ Don-

ovan, supra, 101 8.Ct. at 2540-41,

Here, neither statute nor regulation provides such

routine plan nor does conduct of EPA/DER suggest the

existence of such plan. Indeed, it places ‘‘unbridled dis-

cretion on executive and administrative officers’’.6 More-

over, there is no history of serious accidents, unhealthful

working conditions, or allegations of hazardous waste

storage or leakage.

Cases interpreting Donovan have followed these dis-

tinctions in invalidating warrantless searches. Bionic

Auto Parts and Sales, Inc. v. Fahner, 518 F.Supp. 582

(N.D. Il. 1981). Further support of this conclusion is

suggested by Dow Chemical Co, v. United States, 536

F.Supp. 1855 (E.D. Mich. 1982), suppressing wzrantless

EPA aerial photographs of a chemical manufacturing

plant for want of a valid administrative inspection.

8. The Clean Water Act merely parrots language found infirm

in Barlow’s, permitting the administrator a “right of entry” exer-

cisable at “reasonable times” to copy records and sample effluents,

33 U.S.C. §1318(a)(B)(i) and (ii). The Refuse Act does not

purport to permit warrantless entries for enforcement purposes.

Even the RCRA access provisions, had they been applicable, mirror

the vague, standardless language of the Clean Water Act. 42 U.S.C.

§ 6927 (a).

Reasons for Granting the Writ 15

Reading Donovan to hold that the validity of the search

centered upon the presence of ‘‘sufficiently comprehensive

and defined criteria’’, the court analyzed EPA’s statute

and found them wanting upon analogizing EPA’s rights

under the Clean Air Act to the Clean Water Act.

Applying these principles to the case at bar, it is

crystal clear that some reasonableness standard applies

here. Lacking any, by warrant, statute, regulation or prac-

tice, the searches and seizures are necessarily infirm so

that each search is unconstitutional.

II. The Introduction of Analyses of Destroyed Leachate

Samples Violated Lanigan’s Rights to Due Process

and Effective Assistance of Counsel

A. Destruction of Evidence Is Suppression of Evi-

dence, Violating the Duty to Preserve

In Brady v. State of Maryland, 373 U.S. 83, 87 (1963),

the court held that suppression of evidence favorable to

the accused violates a defendant’s constitutional right to

due process of law, regardless of the prosecution’s intent.

Brady was further refined in United States v. Agurs, 427

U.S. 97 (1976), wherein the court applied the Brady rule

to pretrial request for specific evidence not honored, hold-

ing that a failure to respond to a specific relevant request

is material so long as such suppressed evidence reasonably

might affect the jury verdict.

Here, petitioner had specifically requested that he be

provided with portions of all samples of ‘‘leachate’’ ob-

tained on or around Moyer’s Landfill, Inc., and upon which

the government relied for trial. The government replied

that all samples had been destroyed. Under Brady and

Agurs, the DER and EPA samples were suppressed, as if

the government had failed to disclose their existence, be-

cause Mr. Lanigan was deprived of any use of the samples.

Bryant v, United States, 439 F.2d 642 (D.C, Cir. 1971).

Since the samples suppressed by violation of the duty

to preserve were the sole vehicle through which Mr, Lani-

gan could dispel the motion that landfill discharges were

16 Reasons for Granting the Writ

pollutants, or, establish an alternate source for claimed

landfill discharges, the samples were clearly relevant and

material; therefore, intent of the prosecution in failing to

produce the evidence is of no moment to the constitutional

issue posed. At the very least, the test results themselves

should have been suppressed.

B. Defendant Must Have the Opportunity to Have His

Expert Examine the Items Upon Which the

Government’s Expert Testimony Is Based

In Miller v. Pate, 386 U.S. 1 (1967), petitioner had

been charged with the murder and brutal sex assault of an

eight (8) year old girl. In the absence of eye-witnesses,

the state relied upon a man’s underwear shorts covered

with large, dark, reddish-brown stains. A government

chemist testified that the stains were blood of the grouping

of the victim, and not of the petitioner. The state con-

tended that the petitioner had worn the blood-stained

shorts when committing the murder.

Petitioner had the shorts examined by bis expert, a

chemical microanalyst, who testified that the stains were

paint, finding not a trace of human blood. Pate, reversing

due to prosecutorial misconduct, highlights the importance

of providing a defendant with the physical evidence to be

used against him because the results of government testing

will often be inadequate and inaccurate,

In Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975),

the failure to grant defendant’s pretrial motion to have a

murder weapon and bullet examined by defendant’s expert

was deemed prejudicial, requiring reversal. The state

relied upon Brady for the failure to produce, stating that

there was no showing that suck. »xamination of the murder

weapon and bullet would be favorable to Barnard. The

court dismissed this assertion blithely, stating ‘‘due

process cannot be sidestepped by such a facile distinction’’.

See, United States v. Butler, 499 F.2d 1006, 1008 (D.C. Cir.

1974); White v. Maggio, 556 F.2d 1352, 1356 (5th Cir.

1977); Government of Virgin Islands v. Testamark, 570

F.2d 1162, 1165-66 (3d Cir. 1978).

Reasons for Granting the Writ 17

Testamark was prepared to overturn a conviction but

for the explicit testimony of “he defendant, which undercut

the possibility of his inebriation:

‘*In view of this direct testimony, even had the jury

been confronted with a high blood alcohol reading, it

could not reasonably retain a suspicion that the alcohol

had rendered Testamark incapable of forming an in-

tent to rape. Thus, even if the blood test contained

all that the defendant suggests that it might, there is

no reasonable possibility that the preservation of the

blood sample would have affected the outcome of this

case. We therefore conclude that the failure to pre-

serve the blood sample was harmless beyond a reason-

able doubt.’’ Testamark, supra, 570 F.2d at 1167.

The Third Circuit noted that its holding should be ‘‘nar-

rowly circumscribed’’, and that, were the police to prove

neglectful in regularly dealing with blood samples or other

failures to preserve evidence, ‘‘prophylactic sanctions’’

might be imposed.

Where, as here, the failure to preserve evidence is

part of an ongoing practice of ‘‘errant conduct’’, prophy-

lactic sanctions are called for. Testamark, supra, 570 F.2d

at 1168, n.15. At the very least, since the failure to pre-

serve the sampling is by no stretch of the imagination

‘*harmless beyond a reasonable doubt’’, the analyses should

have been suppressed. Indeed, that was the Zestamark

result. Even though Testamark could not introduce a

blood test to show he was intoxicated, the government

could not introduce a blood test to show he was sober.

Mr. Lanigan deserved no less.

III. Mr. Lanigan Was Not Charged Under the Sole Statute

Governing Discharges From Landfills

A. The Charges Were Based on Inapplicable Statutes

As set forth above, the convictions obtained resulted

from discharges of landfill leachate alleged to have violated

either the Refuse Act or the Clean Water Act, or both.

18 Reasons for Granting the Writ

The Refuse Act, a statute of almost unlimited sweep,

makes it a crime to discharge ‘‘any refuse matter of any

kind or description whatever . .. into any navigable

waters of the United States’’. 33 U.S.C. §§ 407, 411. The

Act has never before been judicially determined to extend

to a landfill, nor does its language lend itself to such

interpretation.

The Clean Water Act, another statute of broad ex-

panse, provides that any person, who willfully or negli-

gently discharges any pollutant from a point source into

navigable waters in violation of a permit may have com-

mitted an offense. The exhaustive list of categories of

point sources from which pollutants may be discharged,

omits landfills.

The absence of Refuse or Clean Water Act prosecu-

tions of landfills is not surprising. Since 1965, Congress

has specifically become immersed with the issues surround-

ing landfills and solid waste disposal. In 1965, Congress

adopted the Solid Waste Disposal Act, Pub. L. No. 89-272,

and five years later the Resource Recovery Act, Pub. L.

No. 91-512. These acts, passed prior to the Clean Water

Act and its amendments have been superseded by the

comprehensive Resource Conversation and Recovery Act

(RCRA), 42 U.S.C. § 6901 et seq., passed in 1976.

The RCRA is the act dealing solely with issues sur-

rounding the disposal of solid wastes. As is reflected in

the congressional findings of fact and objectives set forth

within the act® solid waste disposal is the sole subject

covered by the statute, whether such disposal occurs in

an open dump [42 U.S.C. § 6903(14)] or sanitary landfill

[42 U.S.C. § 6903 (26) ].

That the RCRA here governs is further manifested

by the definition of solid waste:

‘‘The term ‘solid waste’ means any garbage, refuse,

. . . and other discarded material, ...’’ 42 U.S.C.

§ 6903 (27).

9, See, 42 U.S.C. §6901(b)(1)-(6); 42 U.S.C. §6902(1),

(3), (4), and (5).

Reasons for Granting the Writ 19

The discharges of leachate for which Mr. Lanigan was

tried and convicted are in fact governed by the RCRA:

‘‘The term disposal means the discharge, deposit,

injection, dumping, spilling, leaking, or placing of

any solid waste or hazardous waste into or on any

land or water so that such solid waste or hazardous

waste or any constituent thereof may enter the en-

vironment or be emitted into the air or discharged

into any water, including ground water.’’ 42 U.S.C.

§ 6903(3).

Although the open dumping of solid waste is pro-

hibited [42 U.S.C. §6945(a)] the RCRA does not make

criminal even the open dumping of solid non-hazardous

wastes. Thus, Congress has clearly stated that, in con-

nection with discharges from landfills, it is only the dis-

charges of hazardous wastes which may provide a basis

for the institution of criminal process.’® Since no hazard-

10. Indeed, even were the Refuse or Clean Water Acts somehow

deemed applicable to the discharges of elements of solid waste from

a landfill, despite the absence of any express provisions therein; the

RCRA takes precedence, 42 U.S.C. §6905(b). Recourse to the

legislative history of the RCRA supports this conclusion. The de-

tailed legislative history of the RCRA, found at 5 USCCAN 6238-

6354 (94th Cong. 2d Sess. 1976), clearly sets forth the all encom-

passing nature of the RCRA as a vehicle for regulating and con-

trolling the disposal of solid wastes in landfills or open dumps as

well as Congressional intent to limit the criminal sanctions provided

by the act to violations respecting hazardous wastes, seriously affect-

ing human health. Indeed, such intent could not be more clear:

“This section also provides for criminal penalties for the person

who knowingly transports any hazardous waste listed under this

title to a facility which does not have a permit issued pursuant

to section 305, or disposes of any hazardous waste without a

permit under this title, or makes any false statement or repre-

sentation in any application, label, manifest, record, report or

permit filed to comply with this title. The use of criminal

penalties are sufficiently narrow in that they only apply to those

20 Reasons for Granting the Writ

ous waste discharges were here alleged, no criminal

prosecution of petitioner should have occurred.

B. Even Had the RCRA Not Excluded Prosecutions

for Conduct Here Alleged to Violate the Refuse

and Clean Water Acts, Case Law Would Do So

As set forth above, since the RCRA specifically

governs the dumping of solid wastes at landfills, and the

resulting impact on both ground waters and navigable

waters caused by the discharge of any ‘‘constituent

element thereof’’ into the environment, even had Congress

remained silent, the statutes claimed violated by the

United States must be deemed inapplicable, especially in

the context of criminal proceedings. Indeed, any am-

biguity concerning the ambit of criminal statutes must be

resolved in favor of lenity and against expansive inter-

pretation. United States v. Bass, 404 U.S. 336, 347

(1971); Rewis v. United States, 401 U.S. 808, 812 (1971).

A more specific criminal statute will necessarily be given

precedence over a more general one, regardless of their

temporal sequence. Preiser v. Rodriguez, 411 U.S. 475,

489-90 (1973). See, Simpson v. United States, 435 U.S.

6 (1978); Busic v. United States, 100 S.Ct. 1747 (1980).

10. (Cont'd. )

who knowingly transport hazardous waste to a facility which

does not have a permit, the actual disposal of hazardous wastes

without a permit, or the falsification of documents, all of which

are more serious offenses than the other provisions of the

hazardous waste title. The Committee justification for the

penalties section is to permit a broad variety of mechanisms so

as to stop the illegal disposal of hazardous wastes.” 5 USCCAN,

6268-69.

See, United States v. Burns, 512 F. Supp. 916, 918 (W.D. Pa.

1981); Matter of Oswego Barge Corp., 664 F.2d 327 (2d Cir.

1981), petit. for rehearing denied, 673 F.2d 47 (2d Cir. 1982);

United States v. Dixie Carriers, Inc., 627 F.2d 736, 739, 740-41

(5th Cir. 1980).

Reasons for Granting the Writ 21

Here, too, the ‘‘rule of lenity’’ and precedence of a

specific statute serve to preclude application of the Refuse

and Clean Water Acts to the conduct charged. Therefore,

even had the RCRA failed to set forth that it takes

precedence over other federal enactments, nonetheless the

RCRA, and it alone, would be deemed to apply to the

alleged discharges of leachate.

IV. The Clean Water Act and Refuse Act Do Not Pro-

scribe the Discharge of Leachate k‘rom a Landfill

The criminal sanctions of the Clean Water Act provide

that any person who willfully or negligently discharges any

pollutant,’ from a point source, into navigable waters in

violation of the conditions of a permit, has committed a

misdemeanor. Since the evidence failed to disclose any

pollution of or adverse impact on any waters, all convic-

tions should be overturned. The convictions may stand

only if the government proved the discharge into water

of chemical wastes or biological materials which altered

the integrity of the water. See, Minnehana Creek Water-

shed Dist. v. Hoffman, 597 F.2d 617 (8th Cir. 1979); SED,

Inc. v. City of Dayton, 519 F.Supp. 979, 989 (S.D. Ohio

1981). It is for that reason that the prohibited point

source discharges are any addition of a pollutant to

navigable water. §1362(12). Indeed, environmental dam-

age is necessarily the sine qua non of the Clean Water

Act, even in civil actions. E.g., United States v. Alleyne,

454 F.Supp. 1164, 1170 (S.D.N.Y. 1978) (‘‘Both federal

and state administrative agencies have found that the fill

11. Discharge of pollutant means “any addition of any pollutant

to navigable waters from any point source” §1362(12). Pollutant

is defined as “dredged spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical wastes, biological

materials . . . and industrial, municipal and agricultural waste dis-

charged into water”, § 1362(6). Pollution means “man made or

man induced alteration of the chemical, physical biological or radio-

logical integrity of water”. § 1362(19).

22 Reasons for Granting the Writ

placed into the water by defendant is damaging to the

environment’’.).

United States v. Standard Oil Company, 384 U.S. 224

(1966), construing the Refuse Act to preclude discharges

of 100 octane aviation gasoline into a river despite no

impact on the water’s navigability, did so because it found

that the fuel had a measurable adverse impact on the

water:

‘*Oil is oil and whether useable or not by industrial

standards, it has the same deleterious effect on water-

ways. In either case, its presence in our rivers and

harbors is both a menace to navigation and a pol-

lutant.’’ Standard Oil, supra, 384 U.S. at 226.

Similarly, in United States v. Hamel, 551 F.2d 107 (6th

Cir. 1977), holding that a discharge of hundreds of gallons

of gasoline into a lake is an ‘‘alteration of the integrity

of water’’ by the addition of a Clean Water Act pollutant,

the court presumed measurable adverse impact upon the

water. Indeed, consistent with the position here advanced,

Hamel, on citing to the Clean Water Act definition of ‘‘pol-

lutant’’, referred to the legislative history of the Act which

emphasized that the offense was the worsening of water

quality through the addition of pollutants. Hamel, supra,

551 F.2d at 110 n.2. Thus, deposits into water which have

no effect on navigability are prohibited under the Refuse

Act only where such deposits affirmatively worsen water

quality, United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S, 655 (1973). Where, as here, no pollution

has been proved, and, indeed, an absence of adverse impact

on water established, PJCC is irrelevant. Therefore, no

Clean Water Act convictions may be sustained.”

V. The Court Erroneously Instructed That Clean Water

Act Liability Could Ensue From Mere Negligence

The Court instructed the jury that the standard of

criminal law to which Mr. Lanigan would be hela account-

12. The Refuse Act convictions are singularly unsupportable

for want of any showing of adverse impact on any waters.

Reasons for Granting the Writ 23

able was ordinary due-care. This is palpably incorrect.

Where negligence is not defined, but is rather a statutory

alternative to willfulness, the law is clear that gross negli-

gence—the functional equivalent of wilfulness—must ad-

here. There are no federal cases construing the Clean

Water Act precisely on point; however, extant state cases

and analogous federal cases mandate this conclusion.

In State v. Hamilton, Fla. 388 S.2d 561 (1980), the

State appealed from an order holding unconstitutional a

section of the Air and Water Pollution Control Act. The

statute, which outlawed the ‘‘willfully or negligently’’

causing of pollution, was held unconstitutional for pur-

porting to impose criminal liability upon acts or omissions

done absent any bad intent or culpable negligence.

The state conceded the propriety of this position,

arguing that the court should read into the statute the

word ‘‘culpable’’ to modify negligence, an invitation which

the court declined:

‘‘A statute which penalized the ‘negligent treatment

of children’ was invalidated as being unconstitution-

ally vague and overbroad, There the constitutional

flaw was that the prohibition extended to unintentional

conduct which was not generated by culpable negli-

gence. This court distinguished a similar statute

which proscribed acts done ‘willfully or by culpable

negligence’. The latter statute was subsequently up-

held against the vagueness challenge on the very basis

that it did not criminalize simple negligence. State v.

Joyce, 361 So.2d 406 (Fla. 1978). The State urges us

to construe the instant statute as proscribing willful

or culpably negligent conduct. This we cannot do.

Even where legislation is specifically enacted in the

public interest there must be clearly ascertainable

standards of guilt by which a citizen may gauge his

conduct. [The statute] purports to impose criminal

liability upon acts or omissions done entirely without

24 Reasons for Granting the Writ

intent. This is too broad condemnation in this instance

and must fail.’’ Hamilton, supra, 388 So.2d at 563-64.

In State v. Winters, Fla., 346 So.2d 991 (1977), the

Supreme Court struck down a statute making it a crime

to negligently deprive a child of food, clothing and shelter,

holding:

‘Without some statutory standards or guidelines, the

legislature has effectively set a net large enough to

catch all possible offenders and has left to the courts

the power to say who should be detained and who

should be set aside.’’ Winters, supra, 346 So.2d at

993. See, State v. Joyce, Fla., 361 So.2d 406 (1978).

The concept that mere negligence is insufficient to sup-

port a Clean Water Act violation is not foreign to the case

law. In United States v. Hudson Farms, Inc., 12 E.R.C.

1444 (E.D. Pa. 1978), defendant claimed that the indict-

ment charges of willful or negligent discharges of pol-

lutants were duplicitous. In dismissing this contention,

the court reasoned that the intent elements of the crimes

were not separate and distinct:

‘“‘The addition of the words ‘negligently’ and ‘wil-

fully’ merely specifies the mode or method by which

the proscribed conduct was accomplished.

This analysis is bolstered by the fact that the statute

provides but a single penalty for both negligent and

wilful discharges, a clear indication that the crimes

are not separate and distinct.’’ Hudson Farms, supra,

12 E.R.C. at 1446.

The implied insertion of ‘‘culpable’’ before negligence was

further developed in United States v. Oxford Royal Mush-

room Products, 487 F.Supp. 852 (E.D. Pa. 1980). In deny-

ing a Motion to Dismiss Clean Water Act charges as

duplicitous, the court there relied on Hudson Farms, and

addressed culpable negligence directly, opining:

Reasons for Granting the Writ 25

‘Finally I note that the mens rea required for negli-

gent conduct and that required for willful conduct

cannot be viewed as entirely distinct. It is well settled

that intentional conduct may be imputed to a tort

feasor because of grossly negligent conduct.’’ Oxford

Royal, supra, 487 F.Supp. at 857. (emphasis supplied).

That gross or culpable negligence is the proper stand-

ard is reenforced by other cases. Jrey v. OSHRC, 519

F.2d 1200 (3d Cir, 1974) aff’d. en banc on other grounds,

519 F.2d 1215 (3d Cir, 1975), aff’d. on other grounds, 430

U.S. 442 (1977), vacated a civil penalty assessed under

OSHA for a wilful violation, noting the absence of ‘‘a

knowing, conscious and deliberate flouting’’ of the Act.

The Act contained four (4) categories of violations, de

minimis; non-serious; serious, providing for mandatory

penalty of up to $1,000; and wilful, permitting a penalty

of up to $10,000. Serious was defined as violations ‘‘ which

create a substantia! probability of death or serious harm’’;

wilful was undefined. In the event of a death, a wilful

violation could result in imprisonment for up to six (6)

months.

In vacating the penalty, this court noted that the ‘‘wil-

ful’’ violation carried a penalty ten times heavier than a

‘‘serious’’ infraction, so that a strict construction of ‘‘wil-

ful’’ should prevail:

‘*We believe that a restrictive definition is appropriate

here since otherwise there would be no distinction be-

tween a ‘serious’ offense and a ‘wilful’ one. The

lack of demarcation would permit the agency to assess

a higher penalty than that which is authorized for

conduct defined as a ‘serious’ violation. A broad

interpretation of ‘willful’ would disrupt the grada-

tions of penalties and violations so carefully provided

in the Act.’’ Jrey, supra, 519 F.2d at 1207.

Accord, Babcock & Wilcox Co. v. Occupational Safety, 622

F.2d 1160, 1165, 1167-8 (3d Cir. 1980); see, Wehr v. Bur-

26 Reasons for Granting the Writ

roughs Corp., 619 F.2d 276, 282 (3d Cir. 1980), ‘‘merely

negligent conduct is never wilful’’. See, United States v.

Consolidated Coal Company, 504 F.2d 1330 (6th Cir. 1974).

Here, the Clean Water Act proscribes the ‘‘willful’’ or

‘‘negligent’’ discharge. Neither term is defined. Since

violations found to be either willful or negligent permit

the imposition of a fine of $25,000 and one (1) year’s in-

earceration, it would appear, pursuant to Jrey, that the

terms have equivalent meanings. Therefore, mere negli-

gence cannot support a Clean Water Act conviction,

Here, no grossly negligent conduct was alleged or

proved. The jury was permitted to return a verdict of

guilty based on simple negligence, a mere failure to use

reasonable care. This the law forbids. Thus, the Clean

Water Act convictions must be reversed and the matter

remanded for a new trial.

VI. The Court Erroneously Instructed That Refuse Act

Liability May Be Predicated Merely on Lanigan’s

Status as a Corporate Officer

The court instructed the jury that the standard of

criminal law applicable to Mr. Lanigan was devoid of

any mens rea, turning upon his position as a responsible

corporate officer. Even though the Refuse Act excludes

even a due care negv!'gence standard, scienter must be

proved. Were this nct the case, the statute would be

unconstitutional.

In United States v. White Fuel Corporation, 498 F.2d

619 (1st Cir. 1974), a corporate tank farm operator was

convicted of Refuse Act violations for underground oil

seepage into navigable waters. In rebuking White Fuel’s

argument that common law mens rea or negligence had

to be proven under the Act, the court adumbrated:

‘*As a corporate defendant like White Fuel cannot

be imprisoned, we need not consider to what extent

absolute liability would carry over to cases where

incarceration is a real possibility.’’ White Fuel,

supra, 498 F.2d 623-4.

Reasons for Granting the Writ 27

In reaching this conclusion, White Fuel relied upon the

seminal case of Commonwealth v. Koczwara, Pa., 155

A.2d 825 (1959), which held unconstitutional the imposi-

tion of a jail term upon a person convicted of violating

a vicarious liability statute, reasoning:

‘Tt would be unthinkable to impose vicarious criminal

responsibility in cases involving true crimes. A\l-

though to hold a principal criminally liable might

possibly be an effective means of enforcing law and

order, it would do violence to our more sophisticated

modern-day concepts of justice. Liability for all true

crimes, wherein an offense carries with it a jail

sentence, must be based exclusively upon personal

causation.... Koczwara, supra, 155 A.2d at 830.

Such holding is consistent with Morissette v. United

States, 842 U.S. 246 (1952) which overturned a judgment

of conviction’® against an individual charged with con-

version of government property pursuant to a statute

which omitted any requirement of wrongful or criminal

intent. In the cases which have upheld criminal statutes

not specifically requiring intent, courts have done so either

because: (a) the crime cannot be committed unknowingly

[e.g., United States v. Erne, 576 F.2d 212 (9th Cir. 1978) ] ;

(b) innocent violations cannot oceur [United States v.

Ayo-Gonzalez, 536 F.2d 652, 660 (5th Cir. 1976)]; (¢) the

commission of the act itself evidences clear criminal intent

[United States v. Flum, 518 F.2d 39 (8th Cir. 1975);

United States v. Margraf, 483 F.2d 708 (3d Cir. 1973)];

and (d) the wide range of available sanctions permits the

shaping of the punishment to fit the crime [A yo-Gongzalez,

supra].

Here, of course, none of these four factors was

present. Therefore, the Morissette, White Fuel, and

Koczwara line of cases mandates that the Act as applied

13. The record is silent respecting whether a term of incarcera-

tion was imposed.

28 Reasons for Granting the Writ

to Lanigan is unconstitutional, for violation of his Fifth

Amendment due process rights.”

14. United States v. Park, 421 U.S. 658 (1979) is not to the

contrary. In reinstating convictions for causing adulterated food to

travel in interstate commerce, Park found a series of communications

between the Food and Drug Administration and Park, president of

Acme Corporation, discussing rodent infestation of Acme’s ware-

houses, and its palpable illegality. Such evidence here is sorely

wanting. In addition, the Park statute touched the “lives and

health of the people which, . . . are largely beyond self protection”,

so that no scienter was required. Here, had such concerns been at

issue, RCRA charges or hazardous waste allegations would have

ensued, Moreover, Park required that one charged must bear “a

responsible share in the furtherance of the transaction which the

statute outlaws”. Here, Mr. Lanigan did not further any discharges ;

rather, he cleaned up a dismal open dump, remaining discharges

being due to circumstances beyond his control. Thus, Mr, Lanigan

could not prevent altogether the discharges claimed. He abided by

his “duty to implement measures that will insure that violations will

not occur”, but was unable to achieve the impossible—elimination

of all discharges. Park, indeed, recognized that no charge could

stand where the defendant was “‘powerless” to prevent or correct the

violations claimed. J/d., at 673. Indeed, Park rests on the following:

“The record in this case reveals that the jury could not have

failed to be aware that the main issue for determination was not

respondent’s position in the corporate hierarchy, but rather his

accountability, because of the responsibility, and authority of

his position, for the conditions which gave rise to the charges

against him.” /d., at 675.

Moreover, in United States v. Standard Oil Co., 384 U.S. 224, 230

(1966), holding that aviation fuel is refuse within the Refuse Act,

this court refused to discuss “the quality of proof necessary to

support a conviction nor the question as to what scienter require-

ment the Act imposes.” This court there inferred that de minimis

and/or negligent discharges might not support Refuse Act convic-

tions.

Reasons for Granting the Writ 29

VII. The Government Expert’s Prejudicial Testimony Was

Ir properly Admitted

as set forth above, the government attempted to

establish its claim of negligence through reliance on the

testimony of one Gary Brown, who, testifying from a

total absence of first-hand observations during the period

in question, and relying on concededly erroneously as-

sumptions, used a ‘‘water balance method’’ which led him

to assume that the landfill had generated more leachate

than it was capable of absorbing. The government seized

upon this purported ‘‘excess leachate’’, through testimony

and argument, contending that Mr. Lanigan’s failure to

haul 50,000 gallons of leachate per week to the borough

of Bridgeport was therefore negligent. The suspect

testimony should have been excluded, since the ‘‘water

balance method’’ is inadmissible.

Mr. Brown testified that no court of law had ever

accepted the water balance method. No evidence was

ever introduced to the contrary. When a purported

scientific test is the predicate for an expert’s opinion, the

government has some burden of establishing the reliability

and accuracy of that test.” In Punnett v. Carter, 621

F.2d 578 (3d Cir. 1980), seeking relief for alleged muta-

genic dangers stemming from nuclear testing, radiation

dosage levels were pivotal to the plaintiffs claims. After

discussing the expert’s testimony, this Court affirmed the

district court’s conclusions not only that the factual as-

sumptions relied upon by the expert were unsupported

by the evidence, but also that his methodology was sus-

pect. See, Zenith Radio Corp. v. Matsushita Electric,

505 F.Supp. 1313 (E.D. Pa. 1980). Since the government

here failed to establish the predicates from which the

15. United States v. Brady, 595 F.2d 359 (6th Cir. 1979) ;

United States v. Brown, 557 F.2d 541 (6th Cir. 1977); United

States v. Balloy, 519 F.2d 403 (4th Cir.), cert. denied, 423 U.S.

1019 (1975); United States v. Addison, 498 F.2d 741 (D.C. Cir.

1974) ; see, United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978).

30 Conclusion

methodology applied by the expert ought be deemed

reliable, the court below committed plain error by per-

mitting the expert to testify at all.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to the Court of Appeals for the Third Cireuit so

that this Honorable Court may review and correct the

decision below.

Of Counsel: Ricnarp A, Spracve

Spracut & RuBenstone BRUCE L. THALL

Suite 400, Wellington Suite 400, Wellington

Building Building

135 South 19th Street 135 South 19th Street

Philadelphia, Pa. 19103 Philadelphia, Pa. 19103

(215) 561-7681 (215) 561-7681

Counsel for Petitioner,

Paul A, Lanigan

Date: March 28, 1983

Appendix

UNITED STATES COURT OF APPEALS

For tHe Turep Circuit

No. 82-1315

UNITED STATES OF AMERICA

v.

LANIGAN, PAUL,

Appellant

Appeal! from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 81-00297-01)

District Judge: Honorable Donald W. Van Artsdalen

Argued

January 6, 1983

Before: ALpiserT, Grspons and HiccinporHamM,

Circuit Judges.

JUDGMENT ORDER

After considering the contentions raised by appellant,

to-wit, that:

} 4 The repeated warrantless searches of the landfill

violated Lanigan’s fourth amendment rights;

(A.) The searches here conducted violate the

fourth amendment due to the absence of a

warrant or an equivalent guarantee of

reasonableness ;

(Al)

II.

Il.

VIII.

(B.) The reasonableness requirement adheres

to administrative searches;

The introduction of analyses of destroyed

leachate samples violated Lanigan’s rights to

due process and effective assistance of counsel;

(A.) Destruction of evidence is suppression of

evidence, violating the duty to preserve;

(B.) Appellant must have the opportunity to

have his expert examine the items upon

which the government’s expert testimony

is based;

Mr. Lanigan was not charged under the sole

statute governing discharges from landfills;

(A.) The charges were based on inapplicable

statutes ;

(B.) Even had the RCRA not excluded prose-

cution for conduct here alleged to violate

the Refuse and Clean Water Acts, case

law would do so;

The Clean Water Act does not proscribe the

discharge of leachate from a landfill;

(A,) A landfill is not a point source;

(B.) The evidence failed to disclose any pollu-

tion of or an impact on any waters;

The Refuse Act does not proscribe landfill

leachate discharges ;

The indictment and conviction are multiplictous;

The court erroneously instructed that Clean

Water Act liability could ensue from mere

negligence ;

The court erroneously instructed that Refuse

Act liability may be predicated merely on

Lanigan’s status as a corporate officer;

(A2)

(1) Scienter must be proved;

(2) Failure to require scienter renders

the Refuse Act convictions unconsti-

tutional;

IX. The government expert’s prejudicial testimony

was improperly admitted;

(A.) The ‘‘Water Balance Method’’ is inad-

missible ;

(B.) The ‘‘facts’’ seized upon by the expert

were so concededly erroneous as to be in-

herently unreliable; and

(C.) Since Brown’s testimony could not assist

the jury in understanding evidence or de-

termining a fact at issue, his testimony

should have been excluded; it is

ApsvupcEep and Orperep that the judgment of the dis-

trict court be and is hereby affirmed.

By THE COURT,

R. J. ALpIsErt

Circuit Judge

Attest:

Satty Mrvos

Sally Mrvos, Clerk

Datep: JAN 7 1983

(A3)

UNITED STATES COURT OF APPEALS

For tHe Turmp Crircvit

No. 82-1315

UNITED STATES OF AMERICA

v.

LANIGAN, PAUL,

Appellant

(E.D. Pa. Crim. No. 81-00297-01)

SUR PETITION FOR REHEARING

Present: Serrz, Chief Judge, and Aupisert, Apams, Gr1BBons,

Hunter, Weis, Garta, HicoinsorHam, SLOVITER

and Becker, Circuit Judges.

The petition for rehearing filed by appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By THE COURT,

ALDISERT

Circuit Judge

Datep: FEB - 3 1983

(A4)

UNITED STATES DISTRICT COURT

For Eastern District oF PENNSYLVANIA

CR. 81-00297

UNITED STATES OF AMERICA

v.

PAUL LANIGAN

JUDGMENT AND PROBATION/COMMITMENT

ORDER

In the presence of the attorney for the government,

Peter J. Smith; Geoffrey L. Beauchamp, the defendant

appeared in person on May 14, 1982 with counsel Richard

A. Sprague, Esq.; Bruce L. Thall, Esq.

There being a verdict of guilty, defendant has been

convicted as charged of the offenses of Discharge of a

pollutant into a water of the United States without a

permit; Discharge of refuse into a navigable water of the

United States without a permit, in violation of Title 33,

United States Code, Sections 407, 411, 1311(a), 1319(¢) (1).

The court asked whether defendant had anything to

say why judgment should not be pronounced. Because no

sufficient cause to the contrary was shown, or appeared to

the court, the court adjudged the defendant guilty as

charged and convicted and ordered that:

SENTENCE

On Count 16, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for imprisonment for a term of ONE (1) YEAR,

and shall pay a fine to the United States in the sum of

TWENTY THOUSAND DOLLARS ($20,000.00).

On Count 17, the defendant is committed to the

custody of the Attorney General or his authorized repre-

(AS)

sentative for imprisonment for a term of ONE (1) YEAR

to run concurrently with sentence imposed on Count 16.

No fine is imposed on Count 17.

On Count 18, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for imprisonment for a term of ONE (1) YEAR

and shall pay a fine to the United States in the sum of

TWENTY THOUSAND DOLLARS ($20,000.00). Sen-

tence of imprisonment shall run concurrently with sentence

imposed on Count 16,

On Count 19, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to begin and commence

on the termination of sentence of imprisonment imposed

on this indictment and that of Criminal Action No. 81-298

before Judge Broderick. In addition, the defendant shall

pay a fine to the United States in the sum of TWENTY

THOUSAND DOLLARS ($20,000.00).

Fines imposed on Counts 16, 18 and 19 shall be paid

on or before August 15, 1982.

On Count 20, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to run concurrently with

the period of probation imposed on Count 19. In addition,

the defendant shall pay a fine to the United States in the

sum of TWENTY THOUSAND DOLLARS ($20,000.00).

On Count 22, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for a term of ONE (1) YEAR to run concur-

rently with sentence of imprisonment imposed on Count

16, and shall pay a fine to the United States in the sum of

TWENTY THOUSAND DOLLARS ($20,000.00).

On Count 23, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for a term of ONE (1) YEAR, to run concur-

rently with sentence of imprisonment imposed on Count

22. No fine is imposed on Count 23.

(A6)

On Count 25, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to begin and commence

and run concurrently with the period of probation imposed

on Count 19. In addition, the defendant shall pay a fine

to the United States in the sum of TWENTY THOUSAND

DOLLARS ($20,000.00).

Fines imposed on Counts 20, 22 and 25 shall be paid

on or before November 15, 1982.

On Count 26, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to run concurrently with

the period of probation imposed on Count 25. No fine is

imposed on Count 26.

On Count 27, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to run concurrently with

the period of probation imposed on Count 19. In addition,

defendant shall pay a fine to the United States in the sum

of TWENTY THOUSAND DOLLARS ($20,000.00).

On Count 28, imposition of sentence of imprisonment

is suspended and the defendant is placed on probation for

a period of THREE (3) YEARS to run concurrently with

sentence of probation imposed on Count 27. No fine is

imposed on Count 28.

On Count 29, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for imprisonment for a term of ONE (1) YEAR

to run concurrently with sentence imposed on Count 16.

Defendant shall pay a fine to the United States in the sum

of TWENTY THOUSAND DOLLARS ($20,000.00).

On Count 30, imposition of sentence of imprisonment

is suspended and the defendant placed on probation for a

period of THREE (3) YEARS to run concurrently with

the period of probation imposed on Count 19. In addition,

the defendant shall pay a fine to the United States in the

sum of TWENTY THOUSAND DOLLARS ($20,000.00).

(A7)

On Count 31, the defendant is committed to the

custody of the Attorney General or his authorized repre-

sentative for a term of ONE (1) YEAR to run concur-

rently with sentence imposed on Count 16. In addition,

defendant shall pay a fine to the United States in the sum

of TWENTY THOUSAND DOLLARS ($20,000.00).

Fines on Counts 27, 29, 30 and 31 shall be paid on or

before February 15, 1983. All sentences of imprisonment

shall run concurrently with each other and with any sen-

tence of imprisonment heretofore imposed on No. 81-0298

before Judge Broderick.

On Count 32, the defendant is committed to the custody

of the Attorney General or his authorized representative

for a term of ONE (1) YEAR to run concurrently with

term of imprisonment imposed on Count 31. No fine is

imposed on Count 32.

Fines on Counts 16, 18, 19, 20, 22, 25, 27, 29, 30 and

31 are cumulative and shall be paid on the dates set forth

in the sentence. In the event there is a notice of appeal

filed on or before any payment date and that appeal is

still pending, in lieu of paying the fine, the defendant may

post bond with good security for the unpaid balance of all

fines then due. Upon failure to pay such fine or the posting

of bond as above set forth, defendant shall surrender to

the U. S. Marshal, U. 8S. Courthouse, Philadelphia, Pa. on

the date such fine shall be paid for commitment to custody

until such fine is paid or bond posted as above set forth.

SPECIAL CONDITIONS OF PROBATION

1. that he comply with all local, state and federal law;

2. that he comply with the rules and regulations of the

PROBATION DEPARTMENT;

3. that he pay any and all fines imposed on the dates set

forth in the sentence.

/s/ Donatp W. VanArtsDALEN

U. 8. District Judge

Donald W. VanArtsdalen

May 17, 1982

(A8)