Joint Appendix Vol I — Fiore v. White (No. 98-942)

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No. 98-942 WAY 11 (999

CLERK

In The = ——

Supreme Court of the United States

October Term, 1998

WILLIAM FIORE,

Vv. Petitioner,

GREGORY WHITE, Warden of the State

Correctional Institution at Pittsburgh;

THE ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

JOINT APPENDIX

VOLUME I, PAGES 1 TO 168

James B. Lirser* Rosert A. Graci*

M. Jean CLICKNER ANDREA F. McKenna

Aprit L. Boyer Office of Attorney General

LieserR & Hammer, P.C. 16th Floor

5528 Walnut Street Strawberry Square

Pittsburgh, PA 15232-2312 Harrisburg, PA 17120

(412) 687-2231 (717) 787-6348

Haroip GONDELMAN Counsel for Respondents

PLOWMAN Sprecet & Lewis, P.C.

310 Grant Street

Pittsburgh, PA 15219-2204

(412) 263-1833

Counsel for Petitioner

*Counsel of Record

Petition For Certiorari Filed December 9, 1998

Certiorari Granted March 29, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 3442-2831

‘| ap

TABLE OF CONTENTS

Page

VOLUME I

nS TR uc a ved iaieniens 1

Opinion of the Allegheny County Court of Com-

mon Pleas of Pennsylvania Denying Post Ver-

dict Motions, January 19, 1988..................... 5

United States v. Lovett, (No. 87-C-8978 (85-CR-284)

N.D. Ill. 1988) (attached as Appendix “F” to

the December 9, 1998 Petition for Writ of Cer-

tiorari) (included in various Appendices

throughout record) .................... Pet. App. F-1

Brief of Appellant to the Superior Court of Penn-

sylvania, September 15, 1988 (selected pages) ..... 64

Memorandum Opinion of the Pennsylvania Supe-

rior Court Affirming Judgment of Sentence,

DY Wes Wk ds Sie cacdepewncencceenesuesunessuns 98

Scarpone v. Commonwealth, 141 Pa. Commw. 560,

596 A.2d 892 (1991) (included in various

Appendices throughout record) .................. 104

Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d

1109 (1993) (included in various Appendices

RUE GHEE 96 keke bo decensesenentesesiess 115

Motion for Post-Conviction Collateral Relief to

Allegheny County Court of Common Pleas of

Pennsylvania, March 28, 1994..................5. 124

Response to Defendant’s Motion for Post-Convic-

tion Relief to Allegheny County Court of Com-

mon Pleas of Pennsylvania, May 26, 1994........ 135

Commonwealth v. Fiore, 445 Pa. Super., 401, 665

RBG TE GHOSE cesvcccesecccasvecisauecceyetess 141

TABLE OF CONTENTS - Continued

Page

Petition for Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 to the United States District Court

for the Western District of Pennsylvania, June

eee UG eC es BUN eke 6604540 0cecees 163

VOLUME II

Briet in Support of Petition for Writ of Habeas

Corpus Pursuant to 28 U.S.C. § 2254 to the

United States District Court for the Western

District of Pennsylvania, June 28, 1996........... 169

Response to Petition for Writ of Habeas Corpus to

the United States District Court for the Western

District of Pennsyivania, August 2, 1996......... 204

Petitioner's Reply to Response to Petition for Writ

ot Habeas Corpus to the United States District

Court for the Western District of Pennsylvania,

EE ESET CET TET EERE ERT LEE EET EE 227

United States District Court for the Western Dis-

trict of Pennsylvania Magistrate Judge’s Report

and Recommendation, February 27, 1997

(attached as Appendix “E” to the December 9,

1998 Petition for Writ of Certiorari).... Pet. App. E-1

Memorandum Order of the United States District

Court for the Western District of Pennsylvania,

April 24, 1997 (attached as Appendix “D” to the

December 9, 1998 Petition for Writ of Certiorari)

PERE EEELCKENESOREGCRSSRAD EN TOES SO ESOC Hes Pet. App. D-1

Brief for Appellants to the United States Court of

Appeals for the Third Circuit (excluding attach-

ments: Memorandum Order Being Appealed;

Magistrate Judge’s Report and Recommenda-

tion; and Notice of Appeal), July 7, 1997 ........ 234

TABLE OF CONTENTS - Continued

Page

Brief of Appellee to the United States Court of

Appeals for the Third Circuit, August 5, 1997... . 282

Judgment of the United States Court of Appeals

for the Third Circuit, July 21, 1998 (attached as

Appendix “B” to the December 9, 1998 Petition

for Writ of Certiorari) ................. Pet. App. B-1

Opinion of the United States Court of Appeals for

the Third Circuit, July 21, 1998 (attached as

Appendix “A” to the December 9, 1998 Petition

for Writ of Certiorari)................. Pet. App. A-1l

Appellee’s Petition for Rehearing to the United

States Court of Appeals for the Third Circuit,

SEE Eh Cb soteeceenccesccecesecsbesoes 2+ 322

Order of United States Court of Appeals for the

Third Circuit Denying Petition for Rehearing,

September 23, 1998 (attached as Appendix “C”

to the December 9, 1998 Petition for Writ of

Certiorari)..... jbebeeeeseedeocnneseves Pet. App. C-l

’

RELEVANT DOCKET ENTRIES

U.S. District Court

Western District of Pennsylvania (Pittsburgh)

6/28/96

7/2/%

8/6/96

8/21/96

2/27/97

PETITION for writ of habeas corpus.

[Entry date 07/01/96]

BRIEF by WILLIAM FIORE in support of

Petition for Writ of Habeas Corpus.

[Entry date 07/01/96]

APPENDIX to [2-1] support brief by WIL-

LIAM FIORE [Entry date 07/01/96]

* * *

CASE REFERRED to Magistrate Judge

Francis X. Caiazza.

* * *

ANSWER to Writ of Habeas Corpus by

GREGORY WHITE, ATTORNEY GEN-

ERAL PA

EXHIBITS by GREGORY WHITE,

ATTORNEY GENERAL PA in support of

[9-1] answer writ by ATTORNEY GEN-

ERAL PA, GREGORY WHITE A-N

(Copies of State Court Records)

RESPONSE by WILLIAM FIORE to [9-1]

answer writ by ATTORNEY GENERAL

PA, GREGORY WHITE

REPORT AND RECOMMENDATION of

Magistrate Judge Francis X. Caiazza

signed on 2/27/97 Recommending that

[1-1] petition be granted; The parties have

10 days from the date of service to file

3/14/97

3/24/97

4/24/97

5/20/97

10/6/98

objections to this Report and Recommen-

dation.

OBJECTION by GREGORY WHITE,

ATTORNEY GENERAL PA to [12-1]

report and recommendations

RESPONSE by WILLIAM FIORE to [13-1]

objection by ATTORNEY GENERAL PA,

GREGORY WHITE

ORDER, dated 4/21/97 that the Petition

for Writ of Habeas Corpus by the Peti-

tioner is Granted and the Respondents

shall release the petitioner from the Por- —

tion of his incarceration which pertains to

the consecutive sentences imposed for the

Jury and the non jury trial convictions

adopting [12-1] report and recommenda-

tions (signed by Judge Gary L. Lancaster

on 4/24/97) [Entry date 04/25/97]

Case closed. Notices mailed. [Entry date

04/25/97]

NOTICE OF APPEAL by GREGORY

WHITE from [15-1] order dated 4/14/97

“ * *

Certified copy of JUDGMENT dated

10/1/98 issued in lieu of a formal man-

date received from USCA re: [17-1]

appeal by GREGORY WHITE, WILLIAM

FIORE that the Judgment of the District

Court entered April 25 1997 be and the

same is hereby Reversed, Costs taxed

against Appellee, in accordance with the

10/7/98

12/8/98

5/29/97

7/7/97

7/15/97

8/5/97

opinion of this Court. [Entry date

10/07/98)

* * *

Case reopened

ORDER entered the Judgment of this

court has been reversed by the US Court

of Appeals for the Third Circuit by Judg-

ment entered on 7/21/98 the habeas

corpus petition filed by Wiliiam Fiore is

Dismissed and the Clerk of court is

directed to mark this case Closed. (signed

by Judge Gary L. Lancaster on)

Case closed, Case Closed.

Third Circuit Court of Appeals

CIVIL CASE DOCKETED. Notice filed by

Gregory White, Atty Gen Comm of PA.

* * *

BRIEF on behalf of Appellants Gregory

White, Atty Gen, Certificate of service

date 7/7/97.

APPENDIX on behalf of Appellants Greg-

ory White, Atty Gen, Certificate of service

date 7/7/97.

* ad *

ADDENDUM to appellants’ appendix

containing D.C. docket entries.

* * *

BRIEF on behalf of Appellee William

Fiore. Certificate of Service date 8/5/97.

8/5/97

8/26/97

7/21/98

8/4/98

9/23/98

9/25/98

10/1/98

12/14/98

SUPPLEMENTAL APPENDIX on behalf

of William Fiore. Certificate of service

date 8/5/97.

* * *

SECOND SUPPLEMENTAL RECORD

filed.

* * *

PUBLISHED OPINION (Stapleton, Alito,

Authoring Judge, Shadur’, District Judge,

*Sitting by designation), filed.

JUDGMENT Reversing. Costs taxed

against appellee, filed.

PETITION by Appellee for rehearing in

banc. Certificate of service dated 8/3/98,

filed.

ORDER (Becker, Chief Judge, Sloviter,

Stapleton, Greenberg, Scirica, Authoring

Judge, Cowen, Nygaard, Alito, Roth,

McKaee, Rendell, Circuit Judges,

Shadur*, District Judge *Voted as to panel

rehearing only) denying petition for in

banc rehearing by Appellee William

Fiore, filed.

REPORTER at 149 F.3d: 221

MANDATE ISSUED, filed.

Supreme Court of U.S. notice filed advis-

ing petition for writ of certiorari filed by

dkt-97-3288, Appellant Atty Gen. Filed in

the Supreme Court on 12/9/98 at

Supreme Ct. case number: 98-942.

IN THE COURT OF COMMON PLEAS OF

ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH

OF PENNSYLVANIA

VS.

WILLIAM FIORE,

Defendant.

January 19, 1988

CRIMINAL DIVISION

CC No. 8508740

OPINION

Filed by the HONORABLE

RAYMOND A. NOVAK

Counsel of record:

Keith Welks, Esquire

Office of the

Attorney General

Manor Building, 4th Floor

564 Forbes Avenue

Pittsburgh, PA 15219

Martin W. Sheerer, Esquire

P.O. Box 38246

Pittsburgh, PA 15238

IN THE COURT OF COMMON PLEAS OF

ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH —: CRIMINAL DIVISION

OF PENNSYLVANIA

VS. ;

WILLIAM FIORE, - CC No. 8508740

Defendant.

OPINION

NOVAK, J. January 19, 1988

The defendant, William Fiore, was originally charged

with 161 violations of the Solid Waste Management Act

and other attendant statutes. Early in pre-trial proceed-

ings, the parties agreed that only those charges which

also involved Fiore’s co-defendant, David Scarpone,

would be tried in one trial and that the remaining

charges, much greater in number, which did not involve

his co-defendant would be tried in a second trial. This

opinion deals with the verdict and sentence in each of

those trials.

The defendant was found guilty by a jury on Febru-

ary 18, 1986, of the following charges: Disposing of Haz-

ardous Wastes and Operating a Hazardous Waste Facility

Without a Permit (two counts), 35 P.S. §6018.401(a); Dis-

charging Industrial Wastes Without a Permit, 35 P.S.

§691.301, 307; Disposing of Residual Wastes and Operat-

ing a Residual Waste Facility Contrary to his Permit, 35

P.S. §6018.302(a); Perjury, 18 Pa.C.S. §4902; Obstruction of

Administration of the Law, 18 Pa.C.S. 5101; and Criminal

Conspiracy, 18 Pa.C.S. §903.

In addition, the defendant was found guilty in a non-

jury trial on July 2, 1986, of the following charges: Dis-

charging Industrial Wastes Without a Permit, 35 P.S.

§691.301, 307; Disposing of Hazardous Wastes and Oper-

ating a Hazardous Waste Disposal Facility Without a

Permit, 35 P.S. §6018.401(a); Disposing of Residual Wastes

and Operating a Residual Waste Facility Without a Permit

(45 counts), 35 P.S. §6018.302(a); Using his Property and

the Property of Another as a Solid Waste Disposal Area

Without a Permit (two counts), 35 P.S. §6018.501(a); and

Disposing of Residual Wastes and Operating a Residual

Waste Facility Without a Permit (four counts), 35 P.S.

§6018.301.

After the denial of lengthy post-trial motions, the

defendant was sentenced on April 10, 1987. The defen-

dant was convicted of sixty counts of violating criminal

sanctions of the Solid Waste Management Act and other

criminal statutes. We sentenced the defendant on only

three of these counts. At Count 1 (Trial 1) (original Count

5), we sentenced the defendant to a period of incarcera-

tion of two and one-half to five years and ten years

probation. The gravamen of this Count was the deliberate

alteration of the groundwater monitoring system which

risked the seepage of hazardous wastes into the aquifer.

At Count 5 (Trial 1) (original Count 10), lying under oath

before the Commonwealth Court, we sentenced the

defendant to a consecutive period of incarceration of one

to two years and five years probation. At Count 2 (Trial 2)

(original Count 2), we sentenced the defendant to a fur-

ther consecutive period of incarceration of two and one-

half to five years and ten years probation. The gravamen

of this Count was the above-gound pumping of hazard-

ous wastes into an unnamed tributary of the

Youghiogheny River. The total sentence imposed was a

period of incarceration of six to twelve years. In addition,

we ordered the defendant to pay the following fines:

$100,000 at Count 1 (Trial 1), and $100,000 at Count 2

(Trial 2). A Motion to Modify Sentence was timely filed

and denied.

Facts

Trial One (Jury)

The defendant was the owner and operator of a very

successful business known as the Municipal and Indus-

trial Disposal Company (MIDC) which is located in Eliz-

abeth Township, Allegheny County. In 1979, he received a

permit to dispose of various wastes including hazardous

wastes.

In order to properly understand the issues in this

case, we believe that a review of the regulation process

would be helpful. For each type of waste or “waste

stream” which the defendant intended to receive at his

site, he was required to submit a “module” to the Depart-

ment of Environmental Resources (DER) for approval.

Known as a “Module 1,” this form indicates the type of

waste, how it is generated, its chemical and physical

characteristics, where it will be placed and how it will be

disposed. This information is certified by an engineer

employed by the landfill operator. The DER then reviews

the proposal to determine whether the particular waste

stream is compatible with (1) other waste deposited on

that site, and (2) the site liner.

Additionally, the DER considers whether any leach-

ate generated by a particular waste stream is compatible

with the end treatment facility. Leachate is another term

of art meaning the contaminant generated from either

rain, surface or groundwater moving through already

deposited waste.

Upon receipt of a module, the DER’s technical staff

reviews it. In certain instances, the module may be sub-

mitted to outside agencies for their review as well. Based

upon this analysis, the DER will then either approve or

reject the module. If rejected, the landfill operator may

not deposit this particular waste at his facility.

Often, the modules do not contain sufficient data to

be properly reviewed. They are then returned to the

landfill operator for amendment. Modules are often sub-

mitted, returned, re-submitted, returned again, re-

submitted yet again before they are ready to be reviewed

by the DER staff for final disposition. Once accepted for

final review by the DER, the review process could take

anywhere from a few weeks to several months. With this

background, we now turn to the specific facts in this case.

The defendant's disposal facility contained, inter alia,

a Phase I disposal pit, a temporary disposal pit, and a

demolition site. The defendant was licensed to receive

certain streams of hazardous wastes and deposit them in

the temporary pit and later the Phase I pit. The pit was

lined with natural clay which had been found to be

sufficient to contain the wastes and keep them from seep-

ing into the aquifer. After the pit was full, it was eventu-

ally to be closed and covered in order to return the site to

its natural condition. In order to be sure that the hazard-

ous wastes were not seeping into the environment, var-

ious monitoring systems were established.

Running under the Phase | pit is an under-drain

which was identified as pipe 810. This under-drain con-

verges with the 711 pipe in a manhole near the pit and

emits a single discharge. The purpose of the under-drain,

according to Dan Peterson, an operations supervisor in

the DER, Pittsburgh Region of the Bureau of Solid Waste

Management, was to “convey| | mine water beneath the

disposal pit carrying it away from the liner. In addition, it

was designated in the permit as a monitoring point. . . to

check on the integrity of the liner. If the liner would fail,

materials seeping out of the pit through the liner would

appear in the under-drain (N.T. 2/4/86, pp. 79-83).

In late 1982 and early to mid 1983, Mr. Peterson,

during routine inspection visits, detected a “strong

organic odor coming from the manhole.” He described

this odor as “very similar to the type of odor that you get

when you're around a disposal pit. Also, it’s similar to

odors you get at U.S. Steel coke-making facility.” (N.T.

2/4/86, p. 96-97). Numerous samples of the discharge

from the 711 and 810 pipes were collected by the DER

and tested at their laboratory in Harrisburg. The samples

tested positive for the presence of organic chemical (i.e.,

Benzene, Toluene and Xylene) (N.T. 2/4/86, pp. 202-205,

381-382, 528-530; Commonwealth Exhibits 15-22).

The DER officials informed the defendant that no

additional requests to dispose of hazardous wastes would

be approved “until this matter is resolved.” (N.T. 2/4/86,

p. 102). Subsequently, several meetings were held

between the defendant and DER officials. As’ a result of

these discussions, the defendant and the Commonwealth

entered into a “Consent Order and Agreement”

(Commonwealth Exhibit No. 13). The agreement pro-

vided that Fiore would apply for a water quality permit

(NPDES) which would set certain limits on the chemicals

discharged from the site. If the discharge exceeded those

limits, the defendant agreed to either establish a treat-

ment plant on the site or collect the discharge and trans-

port it to a treatment plant (N.T. 2/4/86, pp. 103-104).

Subsequently, in November of 1983, James R. Shack, a

solid waste specialist for the DER, who took samples

from both the 810 pipe and the 711 pipe, noticed that the

discharge flow from the 810 pipe had lessened signifi-

cantly and odors no longer existed (N.T. 2/4/86, p. 207).

On July 26, 1984, Mr. Shack observed that there was no

discharge flow coming from the 810 pipe. As he was

curious about this phenomenon, Mr. Shack climbed down

into the manhole and then maneuvered himself up into

the 810 pipe. When he did so, he discovered that the 810

pipe had been capped with three or four metal plates

(N.T. 2/4/86, pp. 209-211).

Charles Kroll, a welder, testified that he was hired

during the summer of 1983 to cap the 810 pipe, install an

elbow pipe and another smaller pipe which led to an as

yet unused disposal pit (N.T. 2/4/86, pp. 244-247). Mr.

Kroll indicated that the defendant observed this pipe

installation. In fact, he stated that the defendant

instructed him to hide the smaller pipe with a “good size

rock.” (N.T. 2/4/86, pp. 245-246). Another welder, Elmer

Holmes, testified that during the same time period, he

was personally contacted and hired by the defendant to

, =

install a two-inch pipe below ground between two larger

pipes. Stemming from the two-inch pipe was a stand pipe

which stood perpendicular to it and reached the surface

of the ground. Inside this stand pipe and attached to the

two-inch pipe was a valve which, with the aid of a socket-

type wrench, could be turned on and off (N.T. 2/4/86,

pp. 305-311).

The capping of the 810 pipe prevented the flow of

water from under the Phase I pit into the 810-711 mon-

itoring point. This was the discharge which previously

had given off organic odors leading to the finding that

hazardous wastes were seeping into the aquifer running

under the pit. The newly installed connecting pipe

brought water from an as yet unopened pit to a point in

front of the cap. Had this alternation not been made,

there would have been no flow at all at the monitoring

point. A third alteration consisted of a hidden pipe oper-

ated by a buried valve covered over with rocks. When the

valve was opened, this pipe permitted the drainage

which had backed up behind the cap of the 810 pipe to

flow through the monitoring point and on into an

unnamed tributary of the Youghiogheny River. Tracy

Opfar and John Opfar, employees of the defendant, testi-

fied that the co-defendant, Scarpone, and others would

open this valve at night and on weekends when the DER

officials were not likely to appear to check the monitoring

point.

Although the defendant was not charged with pollut-

ing the waterways, the Commonwealth’s evidence estab-

lished that when the valve was turned on, a discharge

flowed from the outfall pipe into the tributary. Samples of

this discharge were collected in small stainless steel

buckets (N.T. 2/4/86, pp. 424-433). These samples were

transmitted to the DER laboratory in Harrisburg where

they were analyzed by DER chemists, David Clemons

and Homer Moore. The samples, marked Common-

wealth’s Exhibits 44-A, 44-B, 45-A, and 45-B, all contained

mensurable amounts of hazardous wastes (N.T. 2/4/86,

pp. 499-502, 529-530).

Regarding the perjury charge, the Court read to the

jury the defendant's sworn testimony from an August 7,

1984, proceeding before the Honorable Francis A. Barry

of the Commonwealth Court of Pennsylvania. As part of

this testimony, defense counsel asked the defendant the

following question: “Mr. Fiore, is there to the best of your

knowledge a plate anywhere in the pipe at monitoring

well 8-10?” The defendant responsed, “Not that I know

of.” On cross-examination, the Commonwealth asked the

defendant, “Mr. Fiore, did you plug the 8-10 pipe?” The

defendant replied, “No.” (N.T. Excerpt 2/7/86, pp.

26-30).

Trial Two (Non-Jury)

The credible evidence in this trial established beyond

a reasonable doubt that the defendant unlawfully dis-

charged hazardous waste leachate from the Phase I pit

into an unnamed tributary of the Youghiogheny River,

and unlawfully accepted for disposal certain wastes with-

out having first obtained permission from the DER to do

so.

Leachate is defined as “a liquid waste which is gener-

ated when surface water or ground water mixes with the

solid waste. This water dissolves or absorbs some of the

i a

soluble fraction of the solid waste, removing and carrying

it away. The leachate takes on the characteristic|s] of the

waste, of the solid waste which it [is] generated from.”

(N.T. 6/17/86, p. 122).

According to the defendant's permit, the defendant

was not permitted to discharge leachate from his facility

(N.T. 6/17/86, p. 122). The permit required that all leach-

ate be removed from the facility and transported to an

approved treatment facility (N.T. 6/17/86, pp. 132-134).

The testimony of several former employees of the

defendant indicated that rather than transport the leach-

ate to the approved treatment facilities, the defendant

chose to dispose of the leachate by pumping it out of the

Phase I pit into a tributary of the Youghiogheny River.

This pumping activity, which usually took place at night

and on weekends, occurred regularly over a period of

two to three years. The pumping resulted in the water in

the tributary becoming dirty, oily and foamy (N.T.

6/17/86, pp. 292-293, 298-299, 302-303, 412-415, 431-432,

462-464, 547-549).

The testimony of several former employees of the

defendant indicates definitively that rather than transport

the leachate to either of the approved treatment facilities,

the defendant chose to dispose of the leachate by pump-

ing it out of the Phase I pit into a tributary of the

Youghiogheny River.

Carl Meetze, who worked for the defendant from

October, 1980, until December, 1982, stated that he and

Theodore Opfar would place a pump at the wateredge of

the pit, connect a hose to the pump, and direct the hose

over the dike into the tributary (N.T. 6/17/86, pp.

292-293). He participated in pumping the leachate (“the

dirty waste water”), usually at night or on weekends, out

of both the temporary pit and the Phase I pit “between 15

and 20 times.” (N.T. 6/17/86, pp. 298, 302-303). Mr.

Meetze described the appearance of the creek during and

after the discharge as follows: “It would be dirty. Some-

times looked oily. And sometimes later on it would start

foaming, making a dirty looking foam up around the

bank.” (N.T. 6/17/86, p. 299). Mr. Meetze further testified

that the defendant directed the pumping activity on occa-

sion, saw the pump actually running, and saw the leach-

ate being discharged into the tributary (N.T. 6/17/86, pp.

304, 334-335). In fact, the defendant contacted Mr. Meetze

after he quit the defendant's employ and requested that

Mr. Meetze tell the DER that Theodore Opfar “took care

of all the water.” (N.T. 6/17/86, pp. 305-308).

Mr. Meetze’s testimony concerning the pumping

activity was corroborated by the testimony of four other

employees of the defendant. Michael Toth and William

Baird testified that they saw the pump being operated on

several occasions (N.T. 6/17/86, pp. 412-415, 431-432).

David Ross stated that he not only witnessed the pump-

ing activity, he actually operated the pump on one occa-

sion (N.T. 6/17/86, pp. 462-464). Tracy Opfar stated that

he operated the pump about 20-25 times with the help of

his father, Theodore Opfar (N.T. 6/17/86, pp. 547-549).

As further proof of this unlawful pumping activity,

the Commonwealth presented the testimony of a profes-

sional engineer, Gregory Farrell, who stated that accord-

ing to his calculations (which took into account the

amount of material dumped into the pit, evaporation,

water seepage, etc.), the pit should have contained 53,082

cubic yards of waste and water on November 26, 1984.

However, according to Mr. Farrell, the actual amount of

waste and water in the pit on November 26, 1984, was

47,111 cubic yards - a difference of 5,971 cubic yards or

1,205,903 gallons (N.T. 6/17/86, pp. 574-575).

Regarding the disposal of certain wastes without per-

mission, the testimony showed that the defendant

accepted wastes from Ohio Barge Lines, Coneco Coal,

and U.S. Steel-Edgar Thompson Works. The wastes from

Ohio Barge Lines, which consisted of engine oil and

grease, were collected on December 10 and 15, 1981, and

dumped into the demolition site (N.T. 6/17/86, pp.

404-406). The testimony of Dan Peterson indicated that

only the Phase I pit - not the demolition site - was

permitted to accept this type of industrially generated

waste (N.T. 6/17/86, pp. 103, 107).

The wastes from Conoco Coal were collected and

disposed of at the defendant's facility between December

9, 1981, and January 25, 1982. The defendant did not

receive approval from the DER for the disposal of these

wastes from Conoco Coal until September, 1982 - approx-

imately eight months after the disposal project had been

completed (N.T. 6/17/86, p. 150; Commonwealth Exhibits

17-E through 17-VV).

The wastes from U.S. Steel-Edgar Thompson Works

consisted of a load of grease which was hauled from the

plant and dumped into the Phase I pit in December, 1981

(N.T. 6/17/86, pp. 460-461). A search of the DER records

by Mr. Peterson indicated that the defendant had never

received approval from the DER for the disposal of these

wastes (N.T. 6/17/86, p. 155).

The defendant alleges that the Investigating Grand

Jury lacked jurisdiction and used unlawful procedures.

The authority to convene an investigating Grand Jury

and the provisions under which this type of jury serves

are found in the investigating Grand Jury Act, 42 Pa.C.S.

§ 4541, et seq. The purpose of this Act is to enhance the

ability of the Commonwealth to inquire into criminal

activity or public corruption reaching into several coun-

ties. Commonwealth v. Bradfield, 352 Pa. Super. 490, 508

A.2d 568 (1986).

Section 4544(a) of the act, which provides for the

convening of a Multi-County Investigating Grand Jury,

states:

Application for a multicounty investigating

grand jury may be made by the Attorney Gen-

eral to the Supreme Court. In such application

the Attorney General shall state that, in his

judgment, the convening of a multicounty inves-

tigating grand jury is necessary because of orga-

nized crime or public corruption or both

involving more than one county of the Com-

monwealth and that, in his judgment, the inves-

tigation cannot be adequately performed by an

investigating grand jury available under section

4543 (relating to convening county investigating

grand jury). The application shall specify for

which counties the multicounty investigating

grand jury is to be convened. Within ten days of

receipt of such application, the court shall issue

an order granting the same. Failure by an indi-

vidual justice to grant such application shall be

appealable to the entire Supreme Court.

The defendant alleges that the Application Requesting

an Order Directing that a Multi-County Investigating Grand

Jury having Statewide Jurisdiction be Summoned filed with

the Supreme Court by the Attorney General, pursuant to

this provision, was improper in three respects and that

the Supreme Court’s Order granting the Application was

improper in one respect.

First, the defendant contends that the Application

does not specify for what counties the Investigating

Grand Jury is to be convened. At a hearing held on

December 13, 1985, the Commonwealth introduced, as

Exhibit A, a copy of the Application via the testimony of

Robert L. Keuch, the Second Deputy Attorney General

and Director of the Criminal Law Division of the Attor-

ney General’s Office. Contrary to the defendant's allega-

tions, Paragraph 7 of the Application states as follows:

“Applicant hereby specifies, pursuant to Section 216(a)(2)

of the Act, 42 Pa.C.S. § 4544, that the Multi-County Inves-

tigating Grand Jury be convened for all counties within

the Commonwealth.” Accordingly, the Commonwealth

has complied with the requirement that it specify for

which counties the multi-county investigating grand jury

is to be convened; and, as such, the defendant's allegation

is incorrect.

Secondly, the defendant contends that the Applica-

tion contains no reason or explanation why a County

Investigating Grand Jury would not suffice to investigate

the crimes in this matter. A review of the Act indicates

that there is no requirement that the Attorney General

explain his reasons for requesting a Multi-County Investi-

gating Grand Jury. The Act merely requires that the

Attorney General state that “in his judgment” the investi-

gative resources of a statewide grand jury, rather than a

county grand jury, are necessary to investigate the pres-

ence of organized crime or public corruption. The Attor-

ney General did so in Paragraphs 4 and 5 of the

Application. In addition, Paragraph 6 of the application

lists several examples of organized crime and public cor-

ruption which involve more than one county in this Com-

monwealth. The Attorney General has, therefore,

complied with the requirements of the Act.

Thirdly, the defendant contends that the Application

did not specify that any crimes involving improper waste

disposal or any violation of the Solid Waste Management

Act or the Clean Streams Law would be investigated.

Once again, a review of the Act indicates that there is no

requirement that the Attorney General specify all the

types of crimes to be investigated by the Multi-County

Investigating Grand Jury. In fact, to require the Attorney

General to so specify would be completely impractical.

The Multi-County Investigating Grand Jury is convened

for a period of at least eighteen months. The Jury’s pur-

pose is not to investigate one or two matters; but rather, it

is to investigate several matters, many of which the Com-

monwealth would be unable to identify at the time the

Grand Jury was convened. Accordingly, as the defen-

dant’s contention is not supported by the Act, we find it

to be meritless.

Fourthly, the defendant contends that the Supreme

Court’s Order granting the Application failed to specify

what counties would supply jurors and in what ratios. On

the contrary, the Supreme Court’s Order specifically

states the following:

(4) That the Court Administrator of Pennsylva-

nia is directed to draw six counties at random

from the statewide pool of 67 counties, pursuant

to the provisions of Rule 271(a)(1) of the Penn-

sylvania Rules of Criminal Procedure and that

said six counties, plus Dauphin county, shall

together supply jurors for the investigating

grand jury;

(5) That the Court Administrator of Pennsylva-

nia is directed to obtain the names and

addresses of persons residing in the aforesaid

counties who are eligible by law to serve as

grand jurors, pursuant to the provisions of Rule

271(a)(2) of the Pennsylvania Rules of Criminal

Procedure;

(6) That the total of such names of prospective

jurors to be collected shall be two hundred (200)

of which fifty (50) shall be selected at random

and summoned by the Court Administrator of

Pennsylvania to Dauphin County, Pennsylvania.

The Supervising Judge shall thereafter empanel

the investigating grand jury from this panel of

fifty (50) prospective jurors . . .

Thus, the defendant's contention concerning the Supreme

Court’s Order is meritless.

In addition to the above challenges to the jurisdiction

of the Multi-County Investigating Grand Jury, the defen-

dant alleges that the Office of the Attorney General

lacked investigative or prosecutorial authority in this

matter. This contention is incorrect on two grounds. First,

as indicated above, we found no impropriety in the man-

ner in which the Investigating Grand Jury was impan-

eled. Pursuant to the Commonwealth Attorneys Act, 71

P.S. § 732-205(a)(7), the Attorney General has the power

to prosecute in any county criminal court all indictments

returned by an investigating grand jury obtained by the

Attorney General. Secondly, if the impaneling of the

Grand Jury was improper, the Attorney General, pur-

suant to 71 P.S. § 732-205(a)(6), has the authority to pros-

ecute criminal charges investigated by and referred to

him by a Commonwealth agency arising out of enforce-

ment provisions of the statute charging the agency with a

duty to enforce its provisions. In this case, the charges

against the defendant arose under the Solid Waste Man-

agement Act, 35 P.S. § 6018.101 et seq., and the Clean

Streams Law, 35 P.S. § 691.1 et seq., due to the defendant's

improper disposal of hazardous waste and his efforts to

conceal this disposal by corrupting government officials.

Both the Solid Waste Management Act and the Clean

Streams Law entrust the enforcement of their provisions

to the Department of Environmental Resources (DER), a

state agency. The DER investigated this case and referred

the criminal charges to the Attorney General and, pur-

suant to Subsection (a)(6), the Attorney General initiated

the prosecution against the defendant. Accordingly, the

defendant's allegation that the Attorney General lacked

prosecutorial authority in this matter is incorrect.

In summary, as we find that the Multi-County Inves-

tigating Grand Jury was properly impaneled, we find that

it had jurisdiction to issue presentments in this matter;

and therefore, the defendant's challenges to the contrary

are without merit

II.

The defendant alleges that his constitutional right to

a speedy trial, pursuant to Pa.R.Crim.P. 1100, has been

violated.

Pennsylvania Rule of Criminal Procedure 1100

requires that trial commence within 180 days of the date

on which the criminal complaint was filed. Also, prior to

the expiration of the period of commencement of trial, the

Commenwealth may apply to the court for an extension

of this time period. Pa.R.Crim.P. 1100(c)(1). Such applica-

tion shall be granted only upon “a record showing that

trial cannot be commenced within the prescribed period

despite due diligence by the Commonwealth, and if the

delay is due to the court's inability to try the defendant

within the prescribed period, upon findings based upon a

record showing the causes of the delay and the reasons

why the delay cannot be avoided.” Pa.R.Crim.P.

1100(¢)(3).

The criminal complaint herein was filed on June 6,

1985. This highly technical complaint charged the defen-

dant with over one-hundred violations of the Solid Waste

Management Act and other environmental laws. On June

20, 1985, the Commonwealth petitioned the President

Judge of Allegheny County to appoint a special district

justice, one who was a lawyer, to preside over the prelim-

inary hearings in these matters. District Justice Gary Zyra

Was appointed as requested by the Commonwealth.

The defense then petitioned the district Justice to set

aside several days for the preliminary hearings. The hear-

ings began on August 6, 1985, and lasted several days

with an interruption of a few weeks in order to permit the

parties to make legal argument about the admission of

certain electronically recorded events. On August 30,

1985, the defendant was held for court on more than one-

hundred counts. Throughout this period of time, the

defendant's attorney, John J. Doherty, Esquire, assured

the prosecutor that his concern was not that the trial

commence speedily but on the contrary that he have

sufficient time for discovery and pre-trial motions due to

the complexity of the case.

Sometime thereafter, this case was assigned to this

member of the court. In mid-October, 1985, a pre-trial

conference was held. At this conference, the trial of this

matter was scheduled for February 3, 1986. As this date

was well beyond the final trial date of December 3, 1985,

the Commonwealth filed a Motion to Extend the Time for

Commencement of Trial. A hearing was held on this

motion on November 19, 1985. At the conclusion of this

hearing, we granted the Commonwealth’s Motion to

Extend.

On December 13, 1985, after a lengthy discussion

with the defendants and all counsel, we granted defen-

dant-Scarpone’s Motion for Severance. This severance

resulted in this case becoming two trials rather than one

trial. The first trial, which began as scheduled on Febru-

ary 3, 1986, included all charges involving both defen-

dants. This trial concluded on February 18, 1986. The

defendant's trial on Bribery and other related charges

(CC No. 8509823) began as scheduled on March 11, 1986.

That trial concluded on the morning of March 19, 1986.

On the afternoon of March 19, 1986, a hearing was held

on the Commonwealth’s Petition for Extension of Time

concerning the second trial on the charges in the within

case. At that time, we took judicial notice of the fact that

the next available date for the commencement of a trial

estimated to last approximately two weeks would be June

16, 1986 (N.T. 3/19/86, pp. 7-12). The defendant's final

trial began on June 17, 1986.

The Commonwealth’s Motion was granted for the

following reasons:

First, we note that judicial delay due to crowded

court dockets is a valid basis for establishing that trial

cannot commence within the allotted 180 days. Common-

wealth v. Bogan, 355 Pa. 32, 512 A.2d 1194 (1986). After

reviewing our calendar, we found that a trial of approxi-

mately three weeks in length could not be scheduled

prior to February 3, 1986 (N.T. 11/19/85, p. 9). This was

due to several factors. Most notably, the fact that the

defendant had two other lengthy trials also scheduled before

this member of the court.

Secondly, the present matter and the defendant's

other pending matters all involved complex and volumi-

nous pre-trial motions which were scheduled for a hear-

ing on December 13, 1985 — ten days after the final trial

date of December 3, 1985. These pre-trial motions con-

cerned, inter alia, the Attorney General’s authority to

prosecute, the powers of the investigating grand jury, and

the circumstances of the defendant’s prosecution under

the Solid Waste Management Act. Due to the complexity

of these pre-trial motions, ample time had to be set aside

for testimony, argument and rulings on these motions.

Thirdly, the defendant argues that either the Court or

the Commonwealth should have investigated the possi-

bility of transferring this case to another judge whose

calendar would have permitted an earlier trial date. This

argument has been specifically rejected by our Supreme

Court in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d

1009 (1983). In Crowley, the Court stated, “[a requirement

that] urban areas with severely crowded criminal and

civil dockets must continually arrange and rearrange

their schedules to accommodate the 180 days rule would

be ill-advised.” Id., 466 A.2d at 1013. Moreover, the likeli-

hood that another member of the court could schedule

three complex trials any sooner than this member of the

court was at best miniscule.

Fourthly, regarding the defendant's final trial, we

note that, as we found at the hearing on March 19, 1986,

the delay of this trial was due not only to our crowded

court calendar, but to the fact that both the defense and

the prosecution had grossly underestimated the length of

the defendant's two prior trials. This miscalculation by

counsel reeked havoc with our calendar and required the

postponing and rescheduling of several pending matters.

This rescheduling of other matters resulted in June 16,

1986 being the earliest date available to begin the defen-

dant’s final trial.

In this connection, we also note that the second trial

was, to a certain extent, a unique continuation of the first.

The nature of co-defendant Scarpone’s request for sever-

ance was that Mr. Fiore was charged with hundreds of

violations but he, Scarpone, was charged with only six or

seven. Scarpone argued that it would be unfair to cause

him to participate in a trial that would last for several

weeks dealing largely with matters in which he was not

involved as his financial resources were considerably less

than those of defendant Fiore. We agreed to sever the

—

trials in such a way that Fiore and Scarpone would be

tried together on only those matters as to which they

stood charged as co-defendants, and that Fiore would

then be tried separately on the remaining counts. The

record is clear that on December 13, 1985, the detendant

hiore, with counsel in court, agreed to this bifurcation of

the environmental charges against him. We note also that

the environmental charges were only part of the complex

charges brought against this man and that, in fact, Fiore

ended up with three trials in order to dispose of these

matters. While Fiore ultimately elected to proceed non-

jury tor his second environmental trial, the fact of the

matter is that at the time when it was scheduled, he

adamantly insisted on a jury trial requiring the court to

set aside sufficient time tor jury selection and trial.

Mr. Fiore simply wanted to have it both ways. On the

one hand, he wanted a thorough preliminary hearing and

requested that several days be set aside for his hearing

together with a lony interruption for legal argument.

Ihis, to our mind, was a pertectly proper detense

request but obviously it required that much of the 180-

day period be consumed by pre-trial proceedings. When

it came time to waive Rule 1100, he simply wanted to

preserve this issue for a possible attack if he were con-

victed. A detendant simply cannot have it both ways.

Based upon the foregoing, we find that the Common-

wealth made a more than adequate showing that it acted

with due diligence in attempting to commence the trial in

the present case within the prescribed period of time.

Moreover, much of the 180-day period was consumed by

proper delays initiated by prior defense counsel acting in

the defendant’s best interest during the pre-trial proceed-

ings. While this may not be excludable time under the

rule, it is certainly a proper consideration when deciding

whether or not to grant the Commonwealth's Motion to

Extend the Time for Trial. Accordingly, we find no error

in our decision to grant the Commonwealth's Motion to

bxtend.

The detendant alleges that we erred in tailing to

quash the criminal information due to the unconstitu-

tionality of certain enforcement/ penalty provisions of the

Solid Waste Management Act (GSWMA), 35 PS. § 6018.101

et Sey.

The SWMA was enacted by the legislature in 1980 to

provide for the planning and regulation of solid waste

storage, collection, transportation, processing, treatment

and disposal. The stated purpose of the SWMA, as set

torth in 35 PS. § 6018102, Is to:

(1) establish and maintain a cooperative State

and local program of planning and techni-

cal and financial assistance for compre-

hensive solid waste management;

(2) encourage the development of resource

recovery as a means of managing solid

waste, conserving resources and supply-

ing energy;

(3) require permits for the operation of

municipal and residual waste processing

and disposal systems, licenses for the

transportation of hazardous waste and

(4)

(6)

(7)

(8)

(9)

(10)

(11)

permits for hazardous waste storage,

treatment, and disposal;

protect the public health, safety and wel-

fare from the short and long term dangers

of transportation, processing, treatment,

storage, and disposal of all wastes;

provide a flexible and effective means to

implement and enforce the provisions of

this act;

establish the Pennsylvania Hazardous

Waste Facilities Plan, which plan shall

address the present and future needs for

the treatment and disposal of hazardous

waste in this Commonwealth;

develop an inventory of the nature and

quantity of hazardous waste generated

within this Commonwealth or disposed of

within this Commonwealth, wherever

generated;

project the nature and quantity of hazard-

ous waste that will be generated within

this Commonweaith in the next 20 years

or will be disposed of within this Com-

monwealth, wherever generated;

provide a mechanism to establish hazard-

ous waste facility sites;

implement Article I, section 27 of the

Pennsylvania Constitution; and

utilize, wherever feasible, the capabilities

of private enterprise in accomplishing the

desired objectives of an effective, compre-

hensive solid waste management program.

The defendant makes several challenges to the Crimi-

nal Penalties, § 6018.606(a) and (b), sections of the

SWMaA. These sections state:

(a) Any person, other than a municipal official

exercising his official duties, or any munici-

pality who violates any provision of this

act, the rules and regulations of the depart-

ment, or any order of the department, or

any term or condition of any permit upon

conviction thereof in a summary proceed-

ing, shall be sentenced to pay a fine of not

less than $100 and not more than $1,000

and costs and, in default of the payment of

such fine and costs, to undergo imprison-

ment for not more than 30 days.

(b) Any person, other than a municipal official

exercising his official duties, who violates

any provision of this act, any rule or regu-

lation of the department, any order of the

department, or any term or condition of

any permit, shall be guilty of a misde-

meanor of the third degree and, upon con-

viction, shall be sentenced to pay a fine of

not less than $1,000 but nor [sic] more than

$25,000 per day for each violation or to

imprisonment for a period of not more than

one year, or both.

All of the defendant's challenges were specifically

ruled upon by our Supreme Court in Commonwealth v.

Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986),

wherein the Court upheld the constitutionality of these

provisions of the SWMA. First, the defendant challenges

the constitutionality on the ground that paragraphs (a)

and (b) proscribe identical conduct yet provide for vastly

ditterent penalties. In reyecting this equal protection argu-

ment, the Court stated, “there is no equal protection

infirmity in an act merely because it allows the prosecu-

tor or enforcement agency to choose between two difter-

ent penalty provisions tor similar unlawful conduct and

that the mere possibility that a prosecutor might selectively

enforce the provisions of an act for improper motives

does not invalidate that act.” (Emphasis in original) Id_,

515 Ald at 1364).

Secondly, the defendant argues that paragraphs (a)

and (b) create arbitrary classifications. The Supreme

Court, in Parker White, held that the SWMA does not

create any classifications. ld. 515 A.2d at 1363. Further, if

there are any classifications created by these sections,

they have “a rational basis and [they bear] a fair and

substantial relation to legitimate objects of the legisla-

tion,” and therefore, there is no violation of equal protec-

tion principles. Id, 515 A.2d at 1366.

Vhirdly, the detendant argues that paragraphs (a) and

(b) provide no guidance for prosecutors or agencies

charged with enforcing them. In rejecting, this due pro-

cess argument and holding that the decision whether to

prosecute an alleged ottender under paragraph (a) or (b)

is a matter within the sound discretion of the prosecutor

or agency, the Supreme Court stated:

In light of the toregoing principles, it

should be obvious that sections 606(a) and

606(b) of the Act do not offend due process in

allowing the prosecutor or agency to choose

between ranges of penalties nor in failing to

provide precise standards narrowing the pros-

ecutorial discretion to so choose. Appellees were

fully intormed by the terms of the Act of exactly

what conduct was proscribed as well as the full

range of civil, criminal and equitable remedies

and penalties to which they might be subjected

for violating a substantive provision of the Act.

It is of no constitutional significance that appel-

lees were not advised in advance as to which of

the two applicable penalty ranges the prosecu-

tor or agency would choose to prosecute them

under tor their violations (alleged) of the Act,

for a defendant has no right to a particular

sentence within the range authorized by statute.

(Emphasis in original) Id., 515 A.2d at 1368.

Fourthly, the defendant argues that paragraphs (a)

and (b) constitute an unlawful delegation of authority to

the prosecutors or agencies charged with enforcing them.

In rejecting this argument, the Supreme Court stated:

From what we have stated in the preceding

sections, it is apparent that the legislature has

delegated none of its authority to the prosecu-

tors and agencies. Quite to the contrary, the Act

specifically and unambiguously establishes

“what constitutes a crime,” and specifically and

unambiguously establishes the full range of

penalties possible for commission of those

crimes. That the legislature has allowed the

prosecutor some discretion and much flexibility

in choosing from amony, the full panoply of

civil, criminal and equitable remedies does not

delegate any of the legislative power or function

to the executive branch. (Emphasis in original)

Id., 515 A.2d at 1369.

In summary, as our Supreme Court has specifically

ruled on all of the defendant's challenges to §6018.606 (a)

and (b), we find no error in our denial of the defendant's

Motion to Quash the Information.

IV.

The defendant alleges that we erred in failing to

quash the criminal information because: (a) certain provi-

sions of the Solid Waste Management Act (SWMA), 35

P.S. §6018.101 et seq., unconstitutionally delegates legisla-

tive authority, and (b) certain actions by the Department

of Environmental Resources (DER) were beyond the

scope of its delegated authority.

The delegation of legislative authority has long been

recognized in this Commonwealth. In Bell v. Driscoll, 343

Pa. 109, 21 A.2d 912, 915 (1941), the Supreme Court stated

that “[wJhere the legislature establishes primary stan-

dards and then delegates to an administrative body the

power to determine some fact or state of things upon

which it makes, or intends to make, its own action

depend, it is the legislature which has legislated and not

the administrative body.” Thus, if the legislature’s basic

policies are expressed in the form of general statutory

standards which_are reasonable and provide adequate

guidance, an administrative agency may be delegated the

authority to implement the legislative intent and to exer-

cise discretion in carrying out its responsibilities without

violating any constitutional principles. See Wm. Penn

Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346

A.2d 269 (1975); Commonwealth v. Cherney, 454 Pa. 285, 312

A.2d 38 (1973).

The defendant argues that the SWMA impermissibly

grants to the Department of Environmental Resources

(DER) and the Environmental Quality Board (EQB) cer-

tain legislative powers — i.e., the authority to determine

what type of conduct is subject to criminal sanctions

under §§301, 302(a) and 401(a) of the SWMA. A review of

these sections of the SWMA, in conjunction with §§104

and 105 (which set forth the powers and duties of the

DER and the EQB), indicates rather clearly that the defen-

dant’s allegation is without merit.

The SWMA, in §194, confers upon the DER the

authority to administer its provisions, including the regu-

lation of the storage, collection, transportation, process-

ing, treatment and disposal of solid waste and the

issuance of permits, licenses and orders specifying the

terms and conditions thereof. In §105, the SWMA charges

the EQB with the duty “to adopt rules and regulations of

the department to accomplish the purposes and to carry

out the provisions of this act, including but not limited to

the establishment of rules and regulations relating to the

protection of safety, health, welfare and property of the

public and the air, water and other natural resources of

the Commonwealth.”

Sections 301, 302(a) and 401(a) provide as follows,

respectively:

Section 301. Management of residual waste

No person or municipality shall store, trans-

port, process, or dispose of residual waste

within this Commonwealth unless such storage,

or transportation is consistent with or such pro-

cessing or disposal is authorized by the rules

and regulations of the department and no per-

son or municipality shall own or operate a resid-

ual waste processing or disposal facility unless

such person or municipality has first obtained a

permit for such facility from the department.

Section 302(a). Disposal, processing and storage of resid-

ual waste

(a) It shall be unlawful for any person or

municipality to dispose, process, store or permit

the disposal, processing or storage of any resid-

ual waste in a manner which is contrary to the

rules and regulations of the department or to

any permit or to the terms or conditions of any

permit or any order issued by the department.

Section 401(a). Management of hazardous waste

(a) No person or municipality shall store,

transport, treat, or dispose of hazardous waste

within this Commonwealth unless such storage,

transportation, treatment, or disposal is autho-

rized by the rules and regulations of the depart-

ment; no person or municipality shall own or

operate a hazardous waste storage, treatment or

disposal facility unless such person or munici-

pality has first obtained a permit for the storage,

treatment and disposal of hazardous waste from

the department; and, no person or municipality

shall transport hazardous waste within the

Commonwealth unless such person or munici-

pality has first obtained a license for the trans-

portation of hazardous waste from the

department.

Viewing all of these sections together, it is clear that

the defendant's contention is meritless for the following

reasons. Initially, his argument is inapplicable to the facts

of the present case because the defendant was not

charged with violating any rule or regulation promul-

gated pursuant to the SWMA. Rather, the defendant was

charged with violating several direct provisions of the

SWMA: §301 — disposing of residual wastes and operat-

ing a residual waste disposal facility without a permit,

§302(a) - disposing of residual wastes and operating a

residual waste facility contrary to the conditions con-

tained in the permit issued for the facility by the DER,

§401(a) - disposing of hazardous wastes and operating a

hazardous waste disposal facility without a permit, and

§501(a) - using his property and the property of others as

a solid waste disposal area without a permit. We find no

error in our denial of the defendant’s request to quash the

information on this ground.

Secondly, contrary to the defendant's contention, the

SWMA contains a clear and definite statement of the

legislature’s policies together with reasonable and ade-

quate standards to guide both the DER and the EQB in

their implementation of these policies. As stated previ-

ously, §102 sets forth the eleven purposes of the SWMA.

These purposes contain guidelines which limit the discre-

tion of the DER and the EQB, and include the require-

ment of permits “for the operation of municipal and

residual waste processing and disposal systems” and the

protection of “the public health, safety and welfare from

the short and long-term dangers of transportation, pro-

cessing, treatment, storage, and disposal of all wastes.”

Thirdly, the defendant suggests that the regulatory

scheme of the SWMA violates the constitution in that the

legislature failed to state exactly what regulations, if vio-

lated, would constitute a crime. On the contrary, the

SWMA, in §606, provides specific criminal penalties,

including fines and imprisonment, for violations of any

and all of the statutory provisions and/or departmental

rules and regulations.

Based on the foregoing, which includes our careful

reading of the SWMA, we find that our denial of the

defendant's Motion to Quash due to the legislature's

unconstitutional delegation of authority in the SWMA

was correct.

The defendant contends that the DER and the EQB

acted beyond the scope of their authority in impermissi-

bly including as a permit condition the requirement that

he submit a Module One for departmental approval with

respect to each and every waste — residual or hazardous -

to be disposed of in the Phase I pit at his disposal facility.

In this regard, the defendant argues that the DER/

EQB regulation requiring operators of hazardous waste

disposal facilities to obtain DER approval before dispos-

ing of a specific waste from a particular generator for the

first time conflicts with §501(c) of the SWMA, which the

defendant maintains requires only that an operator file

one notification with the DER identifying, generically,

each hazardous substance received at the facility. The

defendant's contention is inaccurate. Section 104(7) of the

SWMaA specifically authorizes the DER to issue permits

and specify therein the conditions thereof in order to

implement the goals and provisions of the SWMA. Also,

§502(f), which provides for permit and license application

requirements, provides, in pertinent part: “The depart-

ment may require such other information, and impose

such other terms and conditions, as it deems necessary or

proper to achieve the goals and purposes of this act.”

Accordingly, the DER acted within the scope of its dele-

gated authority in including conditions in the defendant's

permit requiring prior approval for each industria! waste

to be deposited in the Phase | pit of the disposal facility.

Based on the foregoing, which, once again, includes

our careful reading of the SWMA, we find that our denial

of the defendant’s Motion tc Quash due to certain actions

by the DER and EQB which were beyond the scope of

their authority was correct.

The defendant alleges that we erred in failing to

dismiss all charges due to a violation of the Statute of

Limitations.

Section 617 of the Solid Waste Management Act

(SWMA), 35 P.S. §6018 et seq., entitled Limitation on

Action, provides:

The provisions of any other statute to the con-

trary notwithstanding, actions for civil and

criminal penalties under this act may be com-

menced at any time within a period of 20 years

from the date the offense is discovered.

The charges in the within matter were filed on June 6,

1985. All charges concerned conduct by the defendant

which took place in the preceding six years. Thus, under

the twenty-year period of limitations, all charges were

properly commenced.

Ihe detendant would have us iynore §617 and-apply

the period of limitations as set forth in 42 Pas. 85551 et

sey, reterring, to criminal prosecutions. Having reviewed

both of these statutes, we tind unquestionably that the

tormer apphes in the within matter. Further, we note that

the detendant’s position ts supported by neither sound

reasoning nor legal authority. Accordingly, we tind that

as all charges were tiled within the applicable statute of

limutations, the detendant is not entitled to a dismissal of

the charges

Ihe detendant alleges that the evidence prottered by

the Commonwealth during his first environmental trial

Was mmsutticrent to sustain his convictions in the within

matter

The test tor sufticrency of the evidence is whether the

evidence admitted at trial is sutticrent to prove every

element of the crime charged beyond a reasonable doubt.

Commonwealth vo Davis, 491 Pa. 363, 421 A.2d 179 (1980)

In this regard, the evidence must be viewed in the light

most tavorable to the party in whose favor the verdict

was returned, and all reasonable interences must be

accepted as true. ¢ ommonwealth v. Burton, 450 Pa. 532, 301

A.2d 599 (1973). Further, the Commonwealth does not

have to establish guilt to a mathematical certainty and it

is sufficient if the circumstances are consistent with crimi-

nal activity even though they might likewise be consis-

tent with innocent behavior. Commonwealth v. Herman, 227

Pa. Super. 326, 323 A.2d 228 (1974).

(a) Notice of the Offense in Count One

The detendant alleges that Count One of the criminal

information does not sive notice of the offense charged.

[he due process requirement of notice can be succinctly

stated as follows: A defendant must be given clear notice

of the charges against him so that he can properly pre-

pare a detense. Commonwealth v. Fulton, 318 Pa. Super.

470, 465 A.2d 650, (1983).

Count One of the criminal information states:

The defendant William Fiore did operate a haz-

ardous waste disposal facility without a permit

trom the DER for such disposal facility, to wit,

the defendant operated his kazardous waste dis-

posal facility in Elizabeth Township, Allegheny

County following alterations, carried out by

accomplices and others acting under his direc-

tion, of its approved monitoring pipes in 1983

without a permit from the DER for such a facil-

ity, in violation of 35 PS. §6018.401(a), a felony

of the second degree pursuant to 35 P.S.

§6018.606(f).

18 Pa.C.S. §306

[he defendant alleges that the alteration of the pipes

had no effect on the validity of his permit, and therefore,

as he had a valid permit, Count One fails to provide him

with adequate notice of the offense. The defendant's alle-

gation and its surrounding reasoning are, at best, circular

and confusing. Count One sets forth in clear and concise

language the unlawful conduct of the defendant which

resulted in his operation of the disposal facility without a

permit. Thus, the notice requirement is satisfied.

Further, the defendant appears to be alleging that the

Commonwealth must set forth its entire proof of the

crime in each count of the information. The defendant is

incorrect. To require the Commonwealth to do so would

be both impractical and burdensome. Our reading of

Count One indicates without a doubt that the defendant

was given more than adequate notice of the charged

offense. Accordingly, we reject this allegation of the

defendant as meritless.

(b) Possession of Necessary Permits

The defendant alleges that the evidence was insufti-

cient to prove that he operated a hazardous waste dis-

posal facility without a permit from the Pennsylvania

Department of Environmental Resources (DER) for such

disposal facility.

In essence, the defendant contends that he possessed

a permit issued by the DER for his waste disposal facility

during the time that he altered the groundwater monitor-

ing system for the Phase I pit and, as such, the existence

of that permit constitutes an absolute defense to the

charges. We find the detendant’s contention unpersua-

sive.

The permit issued by the DER authorized specitied

disposal activities which are to be conducted in accor-

dance with the facility desiga plans and specifications

submitted with the permit application. According to

§610(2) of the SWMA, i is unlawful for any person to

alter any solid waste disposal facility without a permit

from the DER.

om OF ™.

The manner in which permit applications are pre-

pared, submitted, evaluated and approved or denied by

the DER was explained via the testimony of Dan Peter-

son, an operations supervisor in the Pittsburgh Region of

the Bureau of Solid Waste Management. Mr. Peterson

stated that after the applicant acquires a site for the

facility, he must then hire a consultant to complete var-

ious modules which provide information and design

plans for the facility. These modules would then be

reviewed by the DER. After meetings between the parties

and modifications (if necessary) to the modules, the per-

mit would either be granted or denied (N.T. 2/4/86, pp.

52-54). Mr. Peterson also stated that after the disposal

tacility was constructed, the applicant's engineer must

submit a certification indicating that the facility has been

constructed in conformance with the approved modules

(N.T. 2/4/86, p. 60).

With regard to the defendant's facility in Elizabeth

Township, Allegheny County, Mr. Peterson testified that

the defendant was issued a permit in 1979 for the Munici-

pal and Industrial Disposal Company (MIDC). This per-

mit was amended by the defendant submitting a Module

| which identified the chemical components of each new

waste to be disposed of and the DER, after conducting

compatibility studies between the new waste and the

liner of the Phase | pit, approving the disposal of the new

waste (N.T. 2/4/86, pp. 56-63).

The defendant's facility contains an under-drain

identified by Mr. Peterson as pipe 810. This under-drain,

which runs beneath the disposal pit, converges with the

‘11 pipe in a manhole and emits a single discharge. The

purpose of the under-drain, according to Mr. Peterson,

was to “convey| | mine water beneath the disposal pit

carrying it away trom the liner. In addition, tt was men-

tioned in the permit as a monitoring point to check on

the integrity of the liner. If the liner would fail, it would

be natural tor any materials coming out of the pit through

the liner to end up in the under-drain.” (N_T. 2/4/86, pp

"YS 4)

In late 1Y82 and early-to-mid 1983, Mr. Peterson,

during his inspection visits to the detendant’s facility,

detected a “strong organic odor coming trom the man-

hole” Orgamic odors often indicate the presence of haz-

ardous waste in the aquiter tlowing beneath the pit

Samples of the discharge into the manhole from the 810

pipe and the 711 pipe were taken by James R. Shack, a

solid waste specialist tor the DER. The detendant’s expla-

nation ot the odor was that it was the result of “the air

settling in the low point, odors trom the pit. . . had

settled there.” (N-T. 2/4/86, pp. 96-102). Due to these

odors, Mr. Peterson advised the detendant that no more

Module | requests would be approved until the matter

was resolved (NT. 2/4/86, P 102)

In November, 1983, Mr. Shack noticed that the dis-

charge tlow trom the 810 pipe had lessened significantly

and the odors no longer existed. The detendant’s expla-

nation tor this was that the mine had “cleaned itself out.”

(N. 1. 2/4/86, p. 207). Mr. Shack’s testimony was corrobo-

rated by the testimony of Sam Harper, a DER water

quality specialist, who stated that during August, Sep-

tember and October, 1983, he detected a decrease in the

tlow trom the 810 pipe (N.T. 2/4/86, pp. 322, 334).

;

During a routine inspection on July 26, 1984, Mr

Shack observed that there was no discharge flow coming

trom the 810 pipe. In an effort to investigate the reason

tor the lack of discharge, Mr. Shack climbed down into

the manhole and then maneuvered himself up into the

810 pipe. When he did so, he discovered that the 810 pipe

had been capped with three or four metal plates (N.1

2/4/86, pp. 209-211). A photograph of this cap, taken by

Mr. Shack on the same day, was admitted into evidence as

Commonwealth Exhibit 23 (N.T. 2/4/86, p. 212).

An investigation into the circumstances surrounding

the capping of the 810 pipe revealed that a welder,

Charles Kroll, was hired during the summer of 1983 to

cap the 810 pipe, install an elbow pipe and another

smaller pipe which led to an as yet unused disposal pit

(N. 1. 2/4/86, pp. 244-247). The etfect of these alterations

was to seal off any actual discharge trom the 810 pipe

(which ran under the Phase | disposal pit) and replace it

with a clean discharge trom the unused pit. This pre-

vented the detection of seepage of hazardous waste into

the aquiter. Both Mr. Peterson and Mr. Shack testified that

no one ever advised either of them that there had been

any alterations to the 810 pipe (N.T. 2/4/86, pp. 156, 208)

[he toregoing testimony clearly indicates that the

detendant tailed to operate his disposal facility in accor-

dance with the facility design plans and specifications as

spelled out in the original permit application. The origi-

nal permit application provided for the use of the 810

pipe tor purposes of monitoring the water beneath the

disposal pit. It was necessary to monitor the mine water

to ensure that the disposed of wastes were not contam-

inating the water and the soil. The alterations to the 810

pipe so that it was monitoring the clean water in an

usued [sic] disposal pit rather than monitoring the mine

water under the Phase | pit constituted a willful and

deliberate act by the defendant designed to operate his

facility outside the parameters of the permit. In tact, the

detendant’s alterations of the 810 pipe represented such a

significant departure from the terms of the existing per-

mit that the operation of the hazardous waste facility was

“un-permitted” after the alterations were undertaken by

the defendant. Contrary to the defendant's contention, he

did not possess all necessary permits; specitically, he did

not possess a permit which allowed the disposal ot haz-

ardous waste after the monitoring system was altered.

Vheretore, we reject the defendant’s contention as incor-

rect.

The defendant alleges that the evidence was insuffi-

cient to prove that any discharges without a permit actu-

ally occurred.

Contrary to the defendant's contention, the testi-

mony of the Commonwealth’s witnesses indicated that

the defendant did, in fact, actually discharge wastes.

Elmer Holmes, a welder, testified that during the warm

weather in 1983, he went to the defendant's disposal

facility at the request of the defendants and installed a

two-inch pipe below ground between two larger pipes.

Stemming from the two-inch pipe was a stand pipe which

stood perpendicular to it and reached the surtace of the

ground. Inside this stand pipe and attached to the two-

inch pipe was a valve which, with the aid of a socket-type

ore

Ee eee eae ’

a le i et as

wrench, could be turned on and off. On top of the stand

pipe was a cap (N.T. 2/4/86, pp. 305-311).

Tracy Optar, an employee of the defendant, testified

that on at least five or six occasions he accompanied his

father, Theodore Optar (the site manager), to the location

of the stand pipe. Mr. Opfar testified that on these occa-

sions, his father would move rocks and dirt from the

stand pipe, remove the cap, insert a tool into the stand

pipe, turn the tool, and then replace the cap and the rocks

and dirt (N.T. 2/6/86 Excerpt, pp. 12, 20-22). After this

procedure took place, Mr. Opfar stated that, “I could just

hear a little bit of water running .. . A little bit more

water running.” (N.T. 2/6/86 Excerpt, p. 13). Also, Mr.

Optar stated that this procedure would take place early

on a Saturday morning and then his father would return

on a Sunday night and repeat the same procedure (N.T.

2/6/86 Excerpt, pp. 12-13, 23).

This testimony of Tracy Opfar was corroborated by

the testimony of his brother, John Opfar. John Opfar

stated that on one occasion during the summer of 1983,

detendant Scarpone gave him a long bar onto which a

socket had been welded and told him to go down to the

manhole and turn a valve off. After looking around the

manhole for a few minutes, John Opfar testified that he

tound a capped pipe under a rock, removed the cap,

placed the tool inside the pipe and turned the valve (N.T.

2/6-7/86 Excerpt, pp. 16-18, 26).

In addition to this testimony, David Duncan, an

investigator for the Toxic Waste Prosecutions Unit of the

DER Bureau of Solid Waste Management, testified con-

cerning the execution of a search warrant on September

25, 1984. During the search of the detendant’s disposal

site, Mr. Duncan, who was accompanied by several other

persons, discovered the capped stand pipe. When they

duy up the ground around the stand pipe with a backhoe,

they unearthed the valve and the two-inch pipe. In order

to determine what type of discharge, if any, would be

emitted when the valve was turned on, the searchers dug,

out an area around the outtall pipe, turned on the valve

and collected the discharge tlowing out of the outtall pipe

in small stainless steel buckets (N.T. 2/4/86, pp. 424-433)

Ihe discharge samples were then transmitted to the DER

laboratory in Harrisburg where they were analyzed by

DER chemists, David Clemens and Homer Moore. The

samples, marked Commonwealth's Exhibits 44-A, 44-B,

45-A and 45-B, all of which were taken after the valve

was opened, contained ha ardous wastes (N.1T. 2/4/86, pp

4994-502 529-530)

On the basis of this testimony, the jury could very

easily have concluded that the detendant actually did

discharge wastes. The testimony was clear that the deten-

dant surreptitiously diverted the discharge tlow by the

use of the two-inch pipe and the valve. Also, the testi

mony was clear that the valve was turned on on a

number of occasions and that the “opening” of the valve

resulted in the discharge of the backed-up wastes

through the outtall pipe into the stream. Thus, we tind

that there was sufficient evidence to prove that the deten-

dant actually discharged wastes, and theretore, we tind

no error in the yury’s verdict.

Wen ath

(d) Sufficiency of the Evidence of Perjury

The defendant alleges that the evidence was insuffi-

cient to establish that his sworn statement denying the

existence of the cap of the 810 monitoring pipe in his

testimony before the Commonwealth Court was not

given with the sincere belief in its truthfulness.

Perjury is defined in 18 Pa.C.S. §4902 as follows:

A person is guilty of perjury, a felony of the

third degree, if in any official proceeding he

makes a false statement under oath or equiva-

lent affirmation, or swears or affirms the truth

of a statement previously made, when the state-

mentis material and he does not believe it to be

true

In this case, the charge of Perjury arose from testi-

mony given by the defendant in a proceeding before the

Commonwealth Court on August 7, 1984. During both

direct and cross examination, the defendant denied that

there was a cap or plate of any sort anywhere in the 810

pipe (N.T. 2/7/86 Excerpt, pp. 27-30).

Ihe above-stated testimony of Charles Kroll, James

Shack, Tracy Optar, John Optar, and Charles Moore

clearly indicates that there was, in fact, a metal plate

welded inside the 810 monitoring pipe which capped it

and prevented the flow of any further discharge from this

pipe. In addition, these witnesses indicated that the

defendant was, at the very least, one of the supervisors

directing the “capping” procedure which took place over

o weekend in the summer of 1983. The defendant's denial

that there was a cap on the 810 pipe was made at a time

when he was unquestionably aware that the 810 pipe had,

in fact, been capped. Thus, the jury’s finding of guilt on

the perjury charge is supported by sufficient evidence.

(e) Sufficiency of the Evidence of Obstruction of the

Administration of Law

The defendant alleges that there was insufficient evi-

dence to prove that he used force, threats or power. The

language of the statute, however, is much broader.

Obstructing Administration of Law is defined in 18

Pa.C.S. §5101 as follows:

A person commits a misdemeanor of the second

degree if he intentionally obstructs, impairs or

perverts the administration of law or other gov-

ernmental function by force, violence, physical

interference or obstacle, breach of official duty,

or any other unlawful act, except that this sec-

tion does not apply to flight by a person

charged with a crime, refusal to submit to arrest,

failure to perform a legal duty other than an

official duty, or any other means of avoiding

compliance with law without affirmative inter-

ference with governmental functions.

The evidence, as set forth at length above, estab-

lished beyond a reasonable doubt that the defendant

altered the pipes comprising the underground monitor-

ing system for the Phase I pit. The defendant's purpose in

doing so was to deceive the DER inspectors by causing

them to believe that the level of contamination emanating

from the Phase I pit had dropped markedly. Further, the

evidence also showed that when questioned by DER per-

sonnel concerning the decreased level of contaminants,

the defendant did not inform them of the alteration of the

$10 pipe; rather, the defendant responded that the prob-

lem had cleared itself up naturally, as he predicted it

would. The result of the defendant’s deception was that

the DER was unable to carry out its governmental duty to

monitor the groundwater in the vicinity of the Phase I pit.

Thus, the defendant physically - albeit, not violently -

interfered with the governmental functions of the DER.

The defendant’s conduct falls squarely within the cate-

gory of conduct proscribed by §5101 and, therefore, the

jury’s finding of guilt on this charge is supported by

sufficient evidence.

VIL.

The defendant alleges that the evidence proffered by

the Commonwealth during his final trial was insufficient

to sustain his convictions in the within matter.

As we have previously stated the applicable case law

concerning a challenge to the sufficiency of the evidence

in Section VI, we will not reiterate it at this juncture, but

merely incorporate it herein by reference.

(a) Count One and the Statute of Limitations

The defendant alleges that Count One of the criminal

Information was not proven within the Statute of Limita-

tions. As we discussed thoroughly in Section V, the defen-

dant’s allegation is based on his assertion that the

applicable Statute of Limitations is two years. On the

contrary, the applicable Statute of Limitations is twenty

years. Accordingly, as indicated in Section V, we find this

argument to be without merit.

(b) Counts One, Two and Three — Possession of a

Permit for the Disposal of Leachate

The defendant alleges that the evidence was insuffi-

cient to prove that he operated a hazardous and/or resid-

ual waste disposal facility without a permit from the

Pennsylvania Department of Environmental Resources

(DER) for such facility.

In essence, the defendant contends that he possessed

a permit issued by the DER for his waste disposal facility

during the time that he or his employees conducted the

above-ground pumping activities, and that the existence

of that permit constitutes an absolute defense to the

charges. As in Section VI, we find the defendant's conten-

tion unpersuasive.

The permit issued by the DER authorizes specified

disposal activities which are to be conducted in accor-

dance with the facility design plans and specifications

submitted with the permit application. As in the defen-

dant’s first trial, the manner in which permit applications

are prepared, submitted, evaluated and approved or

denied by the DER was explained via the testimony of

Dan Peterson, an operations supervisor in the Pittsburgh

Region of the Bureau of Solvent Management. Mr. Peter-

son stated that the applicant would submit a permit

application to the DER. This application would be

reviewed and evaluated by various technicians including

engineers and scientists. After meetings between the par-

ties and modifications (if necessary) to the modules, the

permit would either be granted or denied (N.T. 6/17/86,

pp. 99-100). Mr. Peterson also explained the procedure for

the approval of a Module 1 application. The Module 1

form used by an applicant for purposes of receiving

authorization from the DER to accept certain stated waste

streams for disposal in the applicant's waste facility (N.T.

6/17/86, p. 100).

With regard to the defendant's facility in Elizabeth

Township, Allegheny County, Mr. Peterson testified that

the defendant was issued a permit in 1979 for the Munici-

pal and Industrial Disposal Company (MIDC). The MIDC

facility contained three sites, denoted Site A, Site B (the

Phase I pit), and Site C (the demolition site) (N.T.

6/17/86, pp. 102-105).

Mr. Peterson defined the term “leachate” as follows:

“Leachate is a liquid waste which is generated when

surface water or ground water or rainfall mixes with the

solid waste. This water dissolves or absorbs some of the

soluble fraction of the solid waste, removing and carrying

it away. The leachate takes on the characteristic of the

waste, of the solid waste which it is generated from.”

(N.T. 6/17/86, p. 122). At the defendant's Phase | pit

leachate would be formed by the mixing of rainfall with

the wastes which were contained in the pit (N.T. 6/17/86

p. 123). .

According to the defendant's permit, the defendant

was not permitted to discharge leachate from his facility

(N.T. 6/17/86, p. 122). Specifically, Paragraph H of the

permit states that all leachate and surface water which

eccumulates in the pit must be removed. Initially, the

leachate was to be removed and treated at a US. Steel

facility. Subsequently, the defendant received permission

to transport the leachate for treatment at a DuPont plant

in Delaware (N.T. 6/17/86, pp. 132-134).

The testimony of several former employees of the

defendant indicated definitively that rather than trans-

port the leachate to either of the approved treatment

facilities, the defendant chose to dispose of the leachate

by pumping it out of the Phase | pit into a tributary of the

Youghiogheny River.

Carl Meetze, who worked for the defendant trom

October, 1980, until December, 1982, stated that he and

Theodore Opfar would place a pump at the wateredge of

the pit, connect a hose to the pump, and direct the hose

over the dike into the tributary (N.T. 6/17/86, pp.

292-293). He participated in pumping the leachate (“the

dirty waste water”), usually at night or on weekends, out

of both the temporary pit and the Phase I pit “between 15

and 20 times.” (N.T. 6/17/86, pp. 298, 302-303). Mr.

Meetze described the appearance of the creek during and

after the discharge as follows: “It would be dirty. Some-

times looked oily. And sometimes later on it would start

foaming, making a dirty looking foam up around the

bank.” (N.T. 6/17/86, p. 299). Mr. Meetze further testified

that the defendant directed the pumping activity on occa-

sion, saw the pump actually running, and saw the leach-

ate being discharged into the tributary (N.T. 6/17/86, pp.

304, 334-335). In fact, the defendant contacted Mr. Meetze

after he quit the defendant's employ and requested that

Mr. Meetze tell the DER that Theodore Opfar “took care

of all the water.” (N.T. 6/17/86, pp. 305-308).

Mr. Meetze’s testimony concerning the pumping

activity was corroborated by the testimony of four other

employees of the defendant. Michael Toth and William

Baird testified that they saw the pump being operated on

several occasions (N.T. 6/17/86, pp. 412-415, 431-432)

David Ross stated that he not only witnessed the pun

Ing activity, he actually operated the pump on one tt

sion (N.T. 6/17/86, pp. 462-464). Tracy Opfar stated that

he operated the pump about 20-25 times with the help of

his father, Theodore Opfar (N.T. 6/17/86, pp. 547-549)

The foregoing testimony clearly indicates that the

defendant failed to operate his disposal facility in accor-

dance with the provisions of his permit. The permit pro-

hibited the defendant from discharging leaden

Paragraph H specifically required the defendant to dis-

pose of the leachate by transporting it to a named treat-

ment facility. Rather than do so, the defendant willfull

and deliberately chose to pump the leachate out of the

disposal pits into the tributary which led to the

Youghiogheny River. The defendant's actions in so doing

represented such a significant departure from the terms

of the existing permit that the Operation of the ate

facility was “un-permitted.” Accordingly, contrary to the

defendant's contention, he did not possess all necessary

permits; specifically, he did not possess a permit which

permitted the discharge of leachate.

for Wastes from Ohio Barge Lines

The defendant contends that he possessed the neces-

sary permit to allow him to dispose of solid wastes gener-

ated by Ohio Barge Lines.

Raymond Gee, the manager of vessel maintenance

for Ohio Barge Lines from 1980-1983, testified that the

operation of barges on the river generated two types of

wastes — engine oil and grease - which were collected in

120-pound kegs (N.T. 6/17/86, P. 358).

Michael Toth, who was employed as a truck driver

for the defendant, testified that he hauled waste materials

from Ohio Barge Lines to the MIDC facility on two occa-

sions. Mr. Toth identified Commonwealth's Exhibits 18-E

and 15-F as roll-off cards dated December 15, 1981, and

December 10, 1981, indicating that shipments of grease in

barrels were picked up and hauled away from Ohio Barge

Lines on these dates (N.T. 6/17/86, pp. 404-406). Mr. Toth

stated that both of these shipments of grease were

dumped into the demolition site and buried (N.T.

6/17/86, p. 404).

Earlier testimony by Dan Peterson indicated that

only the Phase I pit - not the demolition site - was

permitted to accept this type of industrially generated

waste (N.T. 6/17/86, PP. 103, 107). Thus, the Common-

wealth has met its burden of establishing beyond a rea-

sonable doubt that the defendant disposed of solid waste

in an area of his facility which was not permitted to

accept such waste; and therefore, the defendant's argu-

ment is rejected as meritless.

(d) Counts Six through Forty-Nine - Disposal of

Wastes from Conoco Coal Contrary to Defen-

dant’s Permit

The defendant contends that he had prior witten [sic]

approval for the disposal of residual wastes from Conoco

Coal.

Paragraph G of the defendant's permit (Common-

wealth’s Exhibit 2) states as follows:

(g) Industrial Waste Disposal at Permitted Sites

~ Module 1 must be completed and submitted to

the department for each and every waste which

is proposed for disposal in the Phase I pit. Prior

written approval must be obtained for the the

[sic] disposal of each waste in the Phase | pit.

According to the testimony of Roy Scandrol, a

mechanical services supervisor for Conoco Coal Conese

C oal contracted with the defendant for the semovel of

residual wastes from a black water pond on Conoco’s

property (N.T. 6/17/86, pp. 238-240). The wastes wens

removed between December 9, 1981, and January 25 1982

(See Commonwealth Exhibits 17-E through 17-VV).

The testimony of Dan Peterson indicated that the

defendant received a Module 1 approval from the DER

tor the disposal of residual wastes from Conoco in Sep-

tember, 1982 — approximately eight months after the die

posal project had been completed (N.T. 6/27/86 p 150)

Thus, at the time the defendant hauled the wastes ond

disposed of them at his MIDC facility, his existing permit

did not allow the disposal of this waste from this genera-

tor (1.e., Conoco Coal). Accordingly, the Commonwealth

has established its charge that the defendant acted con-

trary to his permit in accepting this residual waste.

We note that we have considered and rejected the

defendant's argument that prior approval for similar coal

wastes from other generators satisfied the permit require-

ments. Paragraph G of the permit is very clear that the

permittee must obtain prior approval for “each and ever

waste” proposed for disposal. It does not say ‘each fe

every waste that is not similar to a waste previously

approved “a

(e) Counts Fifty and Fifty-One - Possession of a

Permit for Wastes from U.S. Steel-Edgar

Thompson Works

The defendant alleges that he possessed the neces-

sary permit for disposal of wastes from U.S. Steel-Edgar

Thompson Works (USS-ET).

Dan Peterson testified that he searched the DER

records and found no Module 1 approval for the Phase I

pit for the disposal of grease boxes from USS-ET (N.T.

6/17/86, P. 155).

David Ross stated that in December, 1981, a load of

grease was hauled from USS-ET and dumped into the

Phase | pit. Mr. Ross stated that the defendant told him

not to tell anyone at USS-ET that they did not have a

permit to haul this grease (N.T. 6/17/86, p. 460-461).

This testimony by the Commonwealth's witnesses

establishes that the defendant did, in fact, permit the

disposal of these residual wastes without having received _

prior DER approval via the submission of a Module 1

application. Thus, the defendant's argument to the con-

trary is meritless.

(f) Counts Fifty-Four and Fifty-Five - Disposal of

Residual Wastes at an Alternate Location with-

out a Permit

The defendant alleges that as he did not own the

property at this alternate location in Rostraver Township,

Westmoreland County, he was not required to have a

permit to dispose of wastes there.

| Tad evidence of disposal of lime wastes at this loca-

tion in Rostraver Township (referred to as “the Fedorka

farm”) was provided via the testimony of former

employees David Ross, William Baird, and Eustace Wal-

ters. Mr. Ross testified that the defendant told him to

dump the lime and sewage ash which had been hauled

from McKeesport Sewage Treatment Plant at the Fedorka

farm in Rostraver Township, Westmoreland County (N.T

6/17/86, pp. 461-462). Both Mr. Baird and Mr. Walters

testified that they were truck drivers and they dumped

loads of lime/sewage ash at the Fedorka farm (N.T

6/17/86, pp. 429, 537). af

Our evaluation of the defendant's argument, which is

supported by neither statutory nor case authority, leads

us to the conclusion that it is without merit. To find

otherwise would be ostensibly to condone the defen-

dant’s dumping of wastes on another person's propert

and thereby insulating himself from criminal pac

The fact is, the defendant disposed of the waste anti

permit to dispose of it at the location he designated for

disposal. This is the gravamen of the crime.

(g) Lack of Adequate Evidence of Waste Discharge

The defendant alleges that the Commonwealth failed

to present sufficient evidence that h i

we e actually discharged

Contrary to the defendant's assertion, the Common-

wealth presented overwhelming evidence that the defen-

dant actually discharged wastes. As indicated above,

several of the defendant's former employees testified that

they either witnessed or participated in the actual pump-

ing of leachate from the Phase I pit into the tributary to

the Youghiogheny River. In addition, and at least as sig-

nificantly, the Commonwealth called Gregory Farrell, a

professional engineer who was qualified as an expert. Mr.

Farrell testified that he was assigned by his employer,

Roy F. Weston, Inc., to calculate the level of materials that

should have been in the Phase | pit on November 26, 1984

(i.e, the date that an aerial photograph - Common-

wealth’s Exhibit 29 —- was taken), based upon the defen-

dan ‘s manifests of what was dumped into the pit,

eva, tion, water seepage, etc. According to Mr. Far-

rell’s calculations, as of November 26, 1984, the pit

should have contained 53,082 cubic yards of waste and

water (N.T. 6/17/86, p. 574). In actuality, according to Mr.

Farrell, the actual amount of waste and water in the pit

on November 26, 1984, was 47,111 cubic yards - a differ-

ence of 5,971 cubic yards or 1,205,903 gallons (N.T.

6/17/86, p. 575).

This testimony of the Commonwealth's expert in con-

junction with the testimony of the defendant's employees

convinced us beyond a reasonable doubt that the defen-

dant did actually discharge wastes - both residual and

hazardous - from the Phase | pit without a permit to do

so. Accordingly, we find the defendant's argument to be

meritless.

(h) DeMinimus Infraction

The defendant alleges that his actions in the present

matter constitute, at best, a deminimus infraction of the

applicable statutes due to the Commonwealth’s failure to

Pp y po , , y

| We note initially that the defendant was not speci-

fically charged with the provisions of the Solid Waste

Management Act and the Clean Streams Law concernin

pollution. Thus, the Commonwealth was not required :

prove any instances of pollution to establish every ele-

ment of the crimes with which the defend

spec efendant was charged

However, putting this aside, we find that the defen-

dant’s willful and intentional actions in this matter are far

from deminimus in nature. Rather, they are major viola-

tions of very important legislation promulgated to protect

not only each one of us, but the flora and fauna ‘wha

enrich our lives and environment. The defendant's wan-

ton interference with our environment is deplorable and

for us to excuse it as deminimus would be, in effect. a

judicial endorsement of this conduct.

VIII.

Finally, the defendant alle

, y, ges that the sent

imposed is illegal and excessive. Panvar

On April 10, 1987, we sentenced the defendant to

serve a total period of incarceration of not less than six

years nor more than twelve years, a concurrent twenty-

five year period of probation, and a fine of $200,000 ‘

Regarding the legality of the sentence, the defendant

appears to allege that the sentence is illegal because the

defendant was wrongfully convicted based on the rea-

sons set forth in his post-trial motions. This is not the

basis for assessing the legality of a sentence. Rather, the

legality of a sentence concerns considerations such as

exceeding the statutory limit, failing to merge certain

offenses, failing to state adequate reasons on the record,

etc. None of these considerations is present in the within

case. Our sentence is well within the statutory limits and

we gave several reasons for imposing this specific sen-

tence. Accordingly, we believe that our sentence is lawful

and appropriate.

The imposition of sentence is within the sound dis-

cretion of the sentencing judge. Commonwealth v. Jackson,

336 Pa. Super. 609, 486 A.2d 431 (1984). A sentencing

court does not abuse its discretion unless it: (1) erro-

neously applies the guidelines, (2) imposes a sentence

within the guidelines that is “clearly unreasonable,” or

(3) imposes a sentence outside the guidelines which is

“unreasonable.” Commonwealth v. Drumgoole, 341 Pa.

Super. 468, 491 A.2d 1352 (1985); 42 Pa.C.S.A. §9781(c).

Further, a sentence must either exceed the statutory

limits or be manifestly excessive to constitute an abuse of

discretion. Commonwealth v. White, 341 Pa. Super. 261, 491

A.2d 252 (1985). “A sentencing judge’s discretion must be

accorded great weight as he is in the best position to

weigh various factors such as the nature of the crime, the

defendant's character, and the defendant's displays of

remorse, defiance, or indifference.” Commonwealth v.

Fries, __ Pa. Super. __., 523 A.2d 1134 (1987).

;

| As required at the time of this sentencing, we con-

sider the sentencing ranges as set forth in the Sentencin

Guidelines. In rejecting these guidelines, we stated on ms

record several reasons for our sentence.

| First, the defendant was convicted of several serious

violations of the Solid Waste Management Act (SWMA).

In addition, the defendant was convicted of committing

perjury in connection with a proceeding before the Com-

monwealth Court.

Secondly, rather than sentencing the defendant to

consecutive periods of incarceration on all or most of the

individual counts of which he was convicted, we sen-

tenced him to a period of incarceration on only three

counts which dealt with totally separate incidents.

| The defendant was convicted of sixty counts of vio-

lating criminal sanctions of the Solid Waste Management

Act and other criminal statutes. We sentenced the defen-

dant on only three of these counts. At Count 1 (Trial 1)

(original Count 5), we sentenced the defendant to a

period of incarceration of two and one-half to five years

and ten years probation. The gravamen of this Count wes

the deliberate alteration of the groundwater monitorin

system which risked the seepage of hazardous —

into the aquifer. At Count 5 (Trial 1) (original Count 10)

lying under oath before the Commonwealth Court we

sentenced the defendant to a consecutive period of incer-

ceration of one to two years and five years probation. At

Count 2 (Trial 2) (original Count 2), we sentenced the

defendant to a further consecutive period of incarceration

of two and one-half to five years and ten years probation.

|The gravamen of this Count was the above-ground

pumping of hazardous wastes into an unnamed tributary

of the Youghiogheny River. The total sentence imposed

was a period of incarceration of six to twelve years. In

addition, we ordered the defendant to pay the following

fines: $100,000 at Count 1 (Trial 1), and $100,000 at Count

2 (Trial 2).

Thirdly, we disagree strongly with the defendant's

contention that his crimes were “victimless.” Rather, we

are all, at the very least, potential victims. The evidence

demonstrated convincingly that the defendant willfully

discharged over a million gallons of hazardous waste and

residual wastes into a tributary of the Youghiogheny

River. We will never know the extent of the harm caused,

but it is absolutely clear that this conduct threatened

serious harm.

Fourthly, the defendant's actions demonstrate that he

had absolutely no concern whatsoever for the citizens

who live in the area of his disposal facility. His behavior

in dumping both hazardous and residual wastes into our

waterways shows a complete indifference toward his fel-

low citizens. In fact, his behavior rises to the level of

callous disregard for the health and safety of his neigh-

bors and their environment.

Fifthly, the defendant’s behavior was not inadvertent

and unintentional. Rather, his behavior in subverting the

safeguards put in place to protect our environment by

diverting the discharge from the 810 pipe was intentional

and wanton.

Finally, in our opinion, the defendant is a very dan-

gerous man. He has engaged in behavior which poses a

serious risk to the health and safety of the community by

excessive under the circumstances.

Conclusion

g , an arres f

/s/ Novak, J.

NOVAK, J.

IN THE SUPERIOR COURT OF PENNSYLVANIA

SITTING AT PiTTSBURGH

NO. 485 PITTSBURGH 1988

COMMONWEALTH OF PENNSYLVANIA

WILLIAM FIORE,

APPELLANT

BRIEF FOR APPELLANT

APPEAL FROM JUDGMENT OF SENTENCE hg

COURT OF COMMON PLEAS OF ALLEGH cates

COUNTY, CRIMINAL DIVISION, C.C. NO. 85

AS ENTERED APRIL 10, 1987

MARTIN W. SHEERER, ESQUIRE

MARTIN W. SHEERER

& ASSOCIATES

P.O. Box 38246

Pittsburgh, PA 15238

(412) 782-5400

Summary of Argument

TABLE OF CONTENTS

Argument for Appellant

II.

Ill.

VII.

Rule 1100 Was Violated By The Common-

wealth And The Court Erred In Granting

The Commonwealth’s Petition To Extend...

Unconstitutionality Of Section 606 Of The

Solid Waste Management Act And The

Unconstitutional Application Thereof To

PR ACheCaviuensebhsededinatuasesiuos

Unconstitutional Delegation Of Legislative

Authority Or Acting Beyond Delegated

ENED sind bdesuidatcdcinet+cencdaveceuss

The Statute Of Limitations Bars Prosecution

Of Trial Two, Counts 4-51, 54 And 55.....

Appellant Had The Necessary Permits .....

All Charges Should Be Dismissed As Demi-

nimus Infractions Under 18 Pa.C.S. § 312(a)....

The Trial One Evidence Is Insufficient On

All Counts Re The Altered Pipe...........

"ee ee Ceesvpeeosesc see eoseeoee eee eee eb es

"eve eeeee ees 02626 eo 66.6 8 © &

eevee ene Ceeaeeeeeseeseeaeee eee eee 6 ee ee

See e eeeeseeeeee es

ere e 97 €20268 02680608000 800 BO 4.6 OS

ee eee eesceeoeeeeeeeee ee ee 6 6 6

Ts |.

VIII. The Trial Two Evidence Is Insufficient On

All Counts Re Pumping (Counts 1, 2 and 3).... 69

IX. The Trial Two Evidence Is Insufficient On

All Counts Re Acceptance Of Wastes

(Counts 4-5, 6-49, 50-51, 54 And 55).......--. 73

X. The Office Of Attorney General Lacked

Investigative And Prosecutorial Authority... .. 80

XI. The Multicounty Investigative Grand Jury

Lacked Jurisdiction And Proceeded

Unlawfully In Making Presentment Against

Appellant .........-..eeee cree cece eee e eset ee 84

XII. Excessive Sentence; A Manifest Abuse Of

Discretion Violating The Sentencing Guide-

lines Of Pennsylvania And The United

ee ccc cveeeusee6se suas eeetesnneesevesses 91

Cee ooo cece ccvencccesesscesovsnececgecosees

Appendix

Photo of Appellant’s Solid Waste Disposal Facility ...A-1

Appellant’s Permit For Solid Waste Disposal Facil-

ity Permit No. 300679 Issued 3-24-80 (Com. Exh.

SRR emerrrr rrr rire ae A-2

Complaint Form PA Fish Commission......-.----.

Transcript Excerpt - December 13, 1988.......---.

Commonwealth Attorney’s Act §732-205........--.

18 Pa.C.S. §306 - Conduct of Another.........---.

18 Pa.C.S. §5101 - Obstructing Justice ........----

18 Pa.C.S. §4902 - Perjury .......----- eee ee eee

SWMA §§301, 302, 401, 404, 405, 501, 606

SF rere A-23

a ne - 75 Pa.Code 75.278, 279, 264,

FP PESCRES CLES CREAR OERUD RKESEERERBOREE ELL eoes A-25

18 Pa.C.S. §312 - DeMinimus Infractions.......... A-32

Opinion

STATEMENT OF THE QUESTIONS INVOLVED

1. Was Rule 1100 Violated By The Commonwealth And

Did The Court Err In Granting Th ,

Petition To Extend? g The Commonwealth’s

Answered in the negative below.

2. Whether Section 606 Of The Solid Waste Manage-

ment Act Is Unconstitutional A ;

nd Its A

Unconstitutional? pplication

Answered in the negative below.

Whether There Was An Unconstitutional Delegation

Of Authority To Authorize An Administrative

Agency Or Its Personnel To Define Crimes In Rules

And Regulations And Permit Terms And Conditions

And Whether The Delegated Authori

stitutionally Aaet-to~ amemty Was Uneen-

Answered in the negative below.

ne The Statute Of Limitations In the Solid

aste Management Act Is Unconstitutional And

Whether This Prosecution Is Barr

ed B hn.

ble Statute of Limitations? y the Applica

Answered in the negative below.

10.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Violation Of The Solid Waste

Management Act, Section 401(a), A Felony 2 Under

Section 606(f) - (Count One, Trial One)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict of Guilty Of Violation Of The Clean Streams

Law, Section 301, 307, A Misdemeanor 3 Under 35

PS. 691.602(b), 18 Pa.C.S. 306 - (Count Two, Trial

One)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Violation Of The Solid Waste

Management Act, Section 401(a), A Felony 2 Under

Section 606(f) - (Count Three, Trial One)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Violation Of The Solid Waste

Management Act, Section 302(a), A Misdemeanor 3

Under Section 606(f) — (Count Four, Trial One)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Perjury, 18 Pa.C.S. §4902, A

Felony 3 - (Count 5, Trial One)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Obstruction Of Justice, 18

Pa.C.S. §5101, A Misdemeanor (Count Six, Trial

One)?

Answered in the negative below.

11.

12.

13.

14.

15.

16.

—— The Evidence Is Insufficient To Support A

erdict Of Guilty Of Conspiracy, 18 P.a.C.S. 903

(Count Nine, Trial One)? -

Answered in the negative below.

Whether The Evidence Is Insuffici

| | cient To Support A

Verdict Of Guilty Of Violation Of The Clean ci

Law, Section 301, 307, A Misdemeanor 3 Under Sec-

tion 602(b) — (Count One, Trial Two)?

Answered in the negative below.

Whether The Evidence Is Insuffici

| : cient To Support A

Verdict Of Guilty Of Violation Of The Solid Waste

Management Act, Section 401(a) A Felony 2 Under

Section 606(f) - (Count Two, Trial Two)?

Answered in the negative below.

Whether The Evidence Is Insuffici

| 7 cient To Support A

Verdict Of Guilty Of Violation Of The Solid Waste

Management Act, Section 302(a), A Misdemeanor 3

Under Section 606(b) (Count Three, Trial Two)?

Answered in the negative below.

Whether The Evidence Is Insuffici

| | cient To Support A

Verdict Of Guilty Of Two Counts Of Violation Of The

ya ecg rae gna Act, Section 501(a), A Mis-

meanor nder Section 606(b) - ts '

and Five, Trial Two)? ——

Answered in the negative below.

Whether The Evidence Is Insufficient To Su

Verdict Of Guilty Of Forty-Five Counts Of Violation

Of The Solid Waste Management Act, Section 302(a), |

A Misdemeanor 3 Under Section 606(b) - (Counts

Six Through Forty-Nine, Trial Two)?

Answered in the negative below.

17.

1k.

1Y.

20.

22.

Whether The Evidence Is Insufficient To —

Verdict Of Guilty Of Two Counts Ot Violation a ; .

Solid Waste Management Act, Section 301, A r -

meanor 3 Under Section 606(b) - (Count’s Fifty An

Fifty-One, Trial Two)?

Answered in the negative below.

Whether The Evidence Is Insufficient To Support A

Verdict Of Guilty Of Two Counts Ot Violation Ot =

Solid Waste Management Act, Section 301, A Misde-

meanor Under Section 606(b) - (Count’s Fifty-Four

And Fifty-Five, Trial Two)?

Answered in the negative below.

Whether The Charges Should Be Dismissed a

Minimus Infractions Pursuant to 18 Pa.C.S. 932:

Answered in the negative below.

Whether The Attorney General Lacked Authority To

Investigate And Prosecute This Case?

Answered in the negative below.

Whether The Multi-County Investigating Grand my

Lacked Jurisdiction And Proceeded Uatowtany n

Making A Presentment Against Appellant?

Answered in the negative below.

—

Whether The Sentence Of The Court Is Excessive’

Answered in the negative below.

V. APPELLANT HAD THE NECESSARY PERMITS

A. SWMaA Facility Permit

On March 24, 1980 Appellant received a solid waste

disposal facility permit from the DER. Permit No. 300679

was issued to Appellant for the site in question and was

in effect until suspended by the DER in Fall 1983. The

evidence of violations here relate to times when the per-

mit was in effect. See Commonwealth Exhibit No. 2 (both

trials) — attached to this brief.

The second degree felony charges on which Appel-

lant was convicted and sentenced are alleged violations

of the Solid Waste Management Act Section 401(a), which

reads as follows:

“(a) No person or municipality shall store,

transport, treat, or dispose of hazardous waste

within this Commonwealth unless such storage,

transportation, treatment, or disposal is autho-

rized by the rules and regulations of the Depart-

ment; no person or municipality shall own or

operate a hazardous waste storage, treatment or dis-

posal facility unless such person or municipality has

first obtained a permit for the storage, treatment and

disposal of hazardous waste from the Department;

and, no person or municipality shall transport

hazardous waste within the Commonwealth

unless such person or municipality has first

obtained a license for the transportation of haz-

ardous waste from the Department.” (Emphasis

added.)

The word “permit” is not defined in Section 103, the

definitions section, or anywhere else in the Act. A review

of the Act in general makes it clear that the “permit” in

this situation refers to the document by which a person

comes under the jurisdiction of the DER as the owner and

operator of a site where solid waste is disposed. The

permit issued to Appellant is entitled “Permit for Solid

Waste Disposal and/or Process Facility.” It designates the

site and the facility permitted upon that site to be used

for disposal of hazardous waste. A person operating a

site for this purpose has one permit. SWMaA Section 606(f)

classifies a violation of 401 as a felony of the second

degree. Actions alleged to be contrary to a permit are

dealt with under paragraphs (a) and (b) of Section 606 as

summary offenses and misdemeanors. Obviously, the leg-

islative intent was to make it a felony for someone to

engage in this business who had not brought themselves

under the jurisdiction and supervision of the law and the

regulating agency.

Count 1 and Count 3 in Trial One regarding the pipe

and Count 2, Trial Two regarding pumping are charged as

violations under Section 401(a) and thus as felonies of the

second degree. They all state that Appellant “did some

act without having first obtained a permit from the DER

for such disposal facility.” It is clear in the language of

the charges that the permit being referred to is the permit

for the facility, not any other type of license or approval

which might be required by regulation or otherwise.

The prosecution used the word “permit” throughout

the trial without definition and interchangeably with

such words as “approval” and “license” for the purpose

of trying to stretch this case into a felony case. The

charges under Section 401(a) must fail for this obvious

reason.

In Trial One, the Court instructed the jury that th

could consider as fact the question of whether A inean

had So significantly departed from the terms of the .

mit that the operation of the facility then nae ae

unpermitted operation. This jury instruction is dincumed

as a separate issue in this Brief. The Statutory Construc-

tion Act and all reasonable rules of construction lead t

only one reasonable conclusion. Appellant had a so

The permit referred to in SWMA Section 01(e) is the

kind of permit that Appellant had. The Commonwealth

can allege that Appellant violated his permit and

about proving violations or actions contrary to the ona

eee

it, but here the prosecution has distorted the language

and scheme of the statute.

The term “permit” is nowhere defined in the SWMA

To extrapolate a definition of “permit” as intended by th .

legislature under the SWMA one must refer to ia

application requirements at 35 PS. 6018.502(a) 4 a

section it becomes clear that a permit is a teats doc :

ment issued upon application that included ae

designs and other relevant data prepared by a re mn 4

professional engineer. The permit clearly ap ml t ;

whole facility as indicated in 502(b) in snamciain on ,

form be recorded at the office of recorder of deeds It ;

further indicated that a permit is a single document “

that it requires a bond and is issued only one time “

| The Code at 25 Pa.Code 75.260 defines a permit as a

written document issued by the Department under the

Act which authorizes the recipient to undertake the bun

ment, storage or disposal of hazardous waste under th

act. The term does not include interim status or a na

which has not been subject to final action, such as a draft

permit or a proposed permit.

Interim status was a program developed to accom-

modate waste disposal during the interim period _

new hazardous waste facilities could be developed. Pub.

L. No. 96-482 § 7, 29, 94 Stat. 2336, 2349. To qualify for

interim status an operator had to notify the Department

of the location and description of such activity and the

identified or listed hazardous wastes handled by such

person. Not more than one notification shall be rn

to be filed with respect to the same substance. 35 PS.

6018.501. The transition scheme or interim status is

described at 35 PS. § 6018.404. To qualify, a facility had to

be in existence on the effective date of the act; it had to

comply with 501 already discussed; it had to pyar nt

application for a new permit under the act; an . ad

operate in a manner consistent with the objectives Oo

act. If these requirements were satisfied the facility was

treated as having a permit until final departmental action

on such application is made. It should also be noted —

the SWMA included the savings clause in Chapter 2

stating:

Section 1001 of Act 1980, July 7, PL. 380,

No. 97, provides: “The act of July 31, 1968 ~

788 No. 241), known as the “Pennsylvania Soli |

Waste Management Act, is hereby repealed:

Provided, however, that all permits and orders

issued, municipal solid waste ——,

plans approved, and regulations pee pow

under such act shall remain in full force an

effect unless and until modified, amended, sus-

pended or revoked.”

In this case Appellant possessed Permit No. 300679

issued on 3-24-80 for the operation of the Phase I indus-

trial waste pit. (R.213). The new SWMA became effective

on September 7, 1980. The DER did not obtain primacy in

environmental matters until January 1986 under the Fed-

eral Resource Conservation and Recovery Act (RCRA). 51

Fed. Reg. 1791 (Jan. 15, 1986). Prior to that time the

Environmental Protection Agency (EPA) maintained juris-

diction over disposal sites. In this regard Appellant

promptly satisfied the interim s‘atus requirements of both

the SWMA and RCRA by notifying the proper authorities

and submitting a Part A application. Appellant continued

under interim status until August 4, 1983 when his 1980

permit was suspended by DER.

Appellant enjoyed two distinct authorities to operate

under the SWMA. The first is that his 1980 permit

remained in full force and effect under the “savings

clause” of the SWMA until it was suspended on August

4, 1983. The second was the interim status he obtained

under 35 P.S. 6018.403 of the SWMA which requires that

he shall be treated as having been issued a permit. Conse-

quently, all counts alleging that Mr. Fiore operated a

waste disposal facility without a permit must fail because

he had the ONLY permit or interim authority that could

be obtained under the SWMA for such facility.

Appellant also possessed several different permits to

discharge industrial wastes issued under the Clean

Streams Law, 35 PS. 691.1 et seq. The permits in force

during the time period in question were: #0046663

(issued April, 1979; expired April, 1984), “0091715 (issued

October, 1980; expired October, 1985), #00466655 (issued

April, 1979; expired April, 1984), and #PA0046655 (issued

December, 1983; expired April, 1984). The more recent

permit consolidated the prior three. (R. 2095-2114).

B. Clean Streams Law Permits

The National Pollution Discharge Elimination System

(NPDES) permits were issued for various discharge

points located on the site. This case has made several

references to a manhole. (R. 249-251). The discharges

from this manhole were permitted by NPDES permit

numbers: PA0046663 or PA0046655 (2g & 2h). As verified

by Sam Harper, Department of Water Quality, Bureau of

Water Quality Management, water quality specialist

supervisor, Site B’s 1983 permit included outfalls 005

(PA0091715, Outfall 001, 1980), 006 (PA0091715, 002,

1980), 007 (711 in manhole, 011 in PA0046663, 1979), 008

(810 in manhole, 010 in PA0046663, 1979). (R. 469).

The pipes in the manhole were consistently referred

to as 711 and 810 throughout the trials. This terminology

is a clear misnomer because pipes, in and of themselves,

are not permitable under the Clean Streams Law. It is the

discharges for which Clean Streams Law permits

(NPDES) are issued. These discharges are permitted at a

certain point. In this case, into the manhole pipe leading

to the unnamed tributary of the Youghiogheny River. The

discharges into the unnamed tributary were permitted

and the counts brought under the Clean Streams Law

must fail.

It should be added that many of the charges against

Appellant allege that he disposed of hazardous or resid-

ual wastes by above ground pumping without a permit in

aan

—_

violation of the SWMA. There is only one type of permit

issued under the SWMA. This is a permit to o a

disposal facility. Mr. Fiore possessed such ny perc

500679 issued on 3-24-80 and was also on interim aie

Any discharges that may have occurred from the facility

would have to be permitted under the Clean Streams A :

As has already been discussed the NPDES permits w “

directed toward such discharge. As a result, the iti

alleging disposal by pumping must fail under the SWMA

The Commonwealth has argued that the existence of

a permit does not constitute a defense because (1) permit

are issued according to design plans and pe po "

submitted with the application and (2) the activity was a

outside the scope of the sanctioned activit Ane he

appellant, in effect, had no permits. / ;

First, the SWMA specifically requires one disposin

of waste to “first obtain a permit.” 35 PS. 6018.501. Once

a permit is issued, the facility may continue to sate

under that permit until action by the DER to sus a :

revoke it for various reasons. 25 Pa.Code § 75 7 The

Commonwealth concedes that the DER has cialis

authority to revoke permits and that this authority i

not be usurped by judge or jury. A variation from ned

plans or designs may warrant a revocation but activit

done prior to the revocation is done with a permit All

activity in this case was d

one prior to the permit bei

suspended or revoked. ° _

Second, a permit under th is i

eee e SWMA is issued for a

facility.” 35 P.S. § 6018.301, 401. A facility is defined as

all land, structures and other appurtenances or improve-

ments on a property where waste Is treated, stored or

disposed. 25 Pa.Code § 75.260. Any activity conducted at

such facility while validly permitted is conducted with a

permit. However, where the activity is outside or off the

facility, it is not permitted under the particular SWMA

permit. The only activity alleged to have occurred off the

permitted facility is related to the lime and sewage used

as fertilizer on a sod farm. (Trial Two, Counts 54 and 55).

All other activity was conducted at the permitted facility

while properly permitted.

Consider an analogy of one licensed to operate a

motor vehicle. A vehicle operator may commit a serious

offense, e.g. homicide, while operating the vehicle. This

individual may certainly be charged with that serious

offense, but may not be charged or convicted of operating

a vehicle without a license. This hypothetical person may

be punished by revoking or suspending his license but he

cannot be convicted ex post facto of operating the vehicle

w io. * a valid license. This same reasoning applies here.

The appellant had a SWMA permit to operate the facility

and may not be convicted of operating it without a per-

mit.

Finally, the Commonwealth confuses the application

of permits issued under the Clean Streams Law with

those issued under the SWMA. The sole authority on

which the Commonwealth relies for the proposition that

activity outside the scope of permit is, in essence, without

a permit is DER v. Fleetwood Borough Authority, 21 Pa.

Commonwealth Ct. 349, 346 A.2d 867 (1975).

” is fully understood that the Clean Streams Law

permits apply to a “point source” discharge. Fleetwood

wes under the Clean Streams Law which applies exclu-

awey to discharges and effluent limitations. That deci-

sen ignores Section 307(c) of the Clean Streams Law

which recognizes discharge “contrary to the terms of a

permit.” That as opposed to discharge without a permit

Appellant always had a permit for discharge. Conversel |

the SWMA permit applies to a whole facility. § 6018 set

401. It authorizes disposal operations. Accordingly the

Applicant was permitted to and did operate the facilit

after obtaining a permit. :

In summary, Appellant possessed a SWMA permit to

operate the facility and the necessary NPDES permits to

discharge industrial waste under the Clean Streams Act

No other permits were required or could be diusiont

under the SWMA. Consequently, all counts based on the

WMA having as an element the doing of an act without

a permit must fail.

| For this reason alone, all counts alleging that Appel-

on acted without a permit (Counts 1, 2, 3 and 4 of Trial

ne and all Counts of Trial Two) must be dismissed

VI. ALL CHARGES SHOULD BE DISMISSED AS

DEMINIMUS INFRACTIONS UNDER 18 Pa.C.S.

§ 312(a).

| An of the charges should be dismissed as Deminimus

infractions under 18 Pa.C.S. § 312(a).

The statute reads as follows:

(a) General Rule - The court shall dismiss a

prosecution if, having regard to the nature of

the conduct charged to constitute an offense and

the nature of attendant circumstances, it finds

that the conduct of the defendant:

(1) was within a customary license or toler-

ance, neither expressly negatived by the

person whose interest was infringed nor

inconsistent with the purpose of the law

defining the offense;

(2) did not actually cause or threaten the

harm or evil sought to be prevented by the

law defining the offense or did so only to an

extent too trivial to warrant the condemna-

tion of conviction; or

(3) presents such other extenuations that it

cannot reasonably by [sic] regarded as

envisaged by the General Assembly or other

authority in forbidding the offense.

The statute does not create discretion in the Court. It

says, “The court shall dismiss a prosecution... ” The

statute mandates dismissal upon any one of certain find-

ings being made on the charges, the evidence and the

circumstances.

In Commonwealth v. Gennelli 474 A.2d 294, 326

Pa.Super, 388 (1984), in reversing the trial court’s dis-

missal of charges, Judge Johnson nevertheless rejected the

Commonwealth’s argument that the trial court erred by

sua sponte raising the deminimus issue, as follows:

The Commonwealth’s first argument concerning

this issue is meritless, as neither the statute nor

case law requires a defendant to preserve the

issue of de minimus infractions by means of

inclusion in an omnibus motion. On the con-

trary, the language of the statute requires the

trial court to dismiss the prosecution on its own

accord, upon a determination that the defen-

dant’s conduct involved de mini

minim

(Emphasis added). us infractions.

The court must dismiss a prosecution if it finds that

the charge falls into the statutority [sic] defined “de min-

imus” category. See Commonwealth v. Kindness, 371 A.2d

1246, 1250, N.5, 247 Pa.Super. 99, 107, N.5 (1977) (dictum).

The law defines “de minimus” in three separate

numbered categories. If the case falls into any one of

these, the court is required to dismiss it.

Appellant submits that dismissal of all charges in this

case is dictated under each of the three paragraphs.

| Appellant submits that this court should find that the

trial court erred and now order all charges dismissed.

| Due to the mandatory language and the absence of a

limitation on the mandate, it appears that this appellate

court may and should directly judge the case on the

record presented without limitation to a test of review of

the trial court’s action. In any case, since the statute is

mandatory, and not discretionary, the test is not the trial

judge’s abuse of discretion.

All of the charges in this case relate to activities

under the Solid Waste Management Act (35 P.S

§ 6018.101 et seq.) and the Clean Streams Law (35 § 691.1

et seq.).!

The common purpose of these regulatory statutes,

simply stated, is protection of the environment and pre-

vention of pollution.?

The conduct complained of in this case did not harm

the environment, did not cause any pollution, and did not

create threat of it. No substantive law was violated.

In broad terms, the convictions are based on three

types of technical violations: (1) alteration of an under-

ground pipe which was not connected to the hazardous

waste disposal pit, was not required as part of the con-

struction of the pit, was a mine drainage disposal pipe

and by regulation could not be part of the groundwater

monitoring system; (2) pumping water from the top (of

the pit, of which water no analysis was submitted) for the

purpose of complying with the Permit;* and (3) accepting

| These are some charges brought under the Crimes Code

which are based on or related to the cited laws.

2 See 35 PS. § 691.4 and 6018.102.

3 DER Regulatioins, [sic] 25 Pa.Code § 75.264(n)(4) states

the requirements for the groundwater monitoring system which

consists of monitoring wells and provides for the construction of

an alternate and innovative monitoring system only where site

conditions preclude the installation of monitoring wells.

4 See Commonwealth’s Exhibit No. 1 (Trial 1), Solid Waste

Disposal Facility Permit No. 300679, paragraph 6(h), page 7 (in

part); “Leachate shall not be allowed to accumulate in the pit to

a depth greater than two (2) feet.” (Copy attached to this brief.)

wastes without having first received separate specific

approval each time.5

Paragraph (2) of Section 312 of the Crimes Code

makes dismissal hereunder contingent on findings that

conduct “did not actually cause or threaten the harm or

evil sought to be prevented by the law defining the

offense | or was “too trivial to warrant the condemnation

of conviction.”

. This was a fledgling industry in the subject years of

the early 1980's. Previously, there were few restrictions

on disposal of industrial wastes, which were routinely

buried on industry-owned property or just tossed in a

garbage dump. (R. 285).

Appellant, who had been in the trucking business

hauling mostly for industry, purchased and developed ‘

600 plus acre site, obtained a fly-ash disposal permit in

1979 and began that operation, then obtained amendment

to his facility permit for demolition disposal in another

area of the site and for the Phase I Industrial Waste Pit in

a different area of the original site permit area and began

to operate them. The Phase I pit was permitted for haz-

ardous waste. (He also commenced construction of larger

Phase II Industrial Waste Pit, which has never been

allowed to be used.) Appellant coordinated the operation

of transportation and disposal of the industrial wastes of

such large waste generators as US. Steel Corporation

. ;

lies See SWMA, Section 501(c), 35 PS. § 6018.501(c), (in part);

more than one such notification (to the department) shall

be required to be filed with

(Emphasis added.) ith respect to the same substance.”

The nature of the conduct charged viewed with the

attendant circumstances does not warrant condemnation

of conviction.

How can the cow rt determine this question in such a

case? It seems that the first step should be a review of the

nature of the conduct.

None of the charged conduct was criminal in nature.

None is malum in se. None is even malum prohibition.

Assuming for argument that they were violations, they

were that only because they were done without specific

permission or with permission obtained late.

None of the charged conduct directly violated a stat-

ute. It is rather a violation of a permit condition or an

agency regulation.

First, Appellant caused an underground pipe to be

altered. That is not charged as an offense itself, but seven

counts in Trial One were developed by the prosecutor out

of that act.

The upshot of the pipe alteration actually was pre-

vention of possible pollution by stopping the mine drain-

age collected in the pipe from entering the “tributary.”

Second, the pumping of water from the top of the pit

was known to him and may have been done with Appel-

lant’s approval. For the purpose of this de minimus con-

sideration, it is most important to know that Appellant's

permit would be violated if the rainwater level on top of

the pit were permitted to exceed two feet. A crime to

remove the water, a crime to not remove the water.

More important to note is that there was water in the

pit. Appellant's pit didn’t leak. His pit was state-of-the-

art and was said by a DER official in trial to be the best

waste pit in this region. In the early process, no good way

of disposing of excess rainwater from the pit had been

found.

Third, DER felt Appellant should have filed more

Module 1's for approval of waste streams. In Trial Two

Counts 4-51, 54 and 55 concern this. See revised informe-

tion for Trial Two (R.1561).

| Counts 4 and 5 concerned non-hazardous waste

being grease barrels from Ohio Barge Lines. The charge is

disposal without a permit. That charge is wrong and a

Module 1 was not even required since it was non-hazard-

ous.

Counts 6-49 are 44 charged violations, one for each

truck, from Conoco Coal Research Division coal waste

being mostly “coal fines.” DER approved the Module 1

after the waste was deposited in Appellant’s pit. The

application was made only because Conoco’s lawyer

insisted out of caution. It was never necessary. It was

residual waste only.

Counts 50 and 51 concerning roller grease from U.S

Steel (Edgar Thompson Works) suggest that Appellant

should have a “permit.” The court relied on its opinion

on testimony re Module 1’s. (See Opinion, p. 64). Appel-

lant had a “permit.” This was residual waste and no

Module 1 was required.

| Counts 54 and 55 charge Appellant with operating a

residual waste facility in Rostraver Township. He wasn’t

required to have a permit since he wasn’t the owner or

operator of a facility there. This was actually in the nature

of a resource recovery project in that the owner wayes

Fedorka and Bill Fedorka were paying pita s

drivers to deliver lime from U.S. Steel and sewage stu ge

from McKeesport Sewer Authority for use as fertilizer on

a “sod” farm. (R.189).

Commonwealth witness Daniel Peterson, pong

Supervisor of the Pittsburgh Region of the Bureau o

Solid Waste Management (DER), testified on cross-exam-

ination in Trial One:

Q. “... and violations are something that

occur on every waste site in Pennsylvania

regardless of how careful you are; arent

they.

A. There is usually some violations found. (R.

339)

The same witness had admitted that in the same

vears of 1980, 1981 and 1982, DER was permitting hazard-

ous waste to be disposed of in garbage dumps:

Q. All right. During that time, isn’t it a fact

that the state of the art was such - and I m

talking about 1980, 1981, and 1982, isn't it a

fact that the state of the art was such that

you didn’t even require pits like Mr. Fiore’s,

but you permitted hazardous wanes to be

disposed of in garbage dumps’

A. The regulations specifically allow for a

municipal landfill under interim status to

accept hazardous waste.

Q. Now, this specific situation, during this

time period, there was a hazardous a

disposal site where you permitted the oA

posal on a garbage dump; is that correct?

A. The facility had interim status, yes.

Q. And the process by which that disposal was

undertaken, it wasn’t disposed of in a facil-

ity like Mr. Fiore’s where you had a clay-

lined pit, it was simply mixed with garbage

and buried, is that correct?

A. This was placed in with the garbage, cov-

ered, and there was also a leachate collec-

tion system. (R.285-286)

Appellant’s permit to operate the solid waste dis-

posal facility was suspended in Fall 1983. Indeed, the

violations charged didn’t warrant that, but certainly

when viewed for criminal prosecution these matters

should be found to be de minimus. If Appellant violated

his permit as charged, the administrative action against

the permit was the remedy, not a felony criminal prosecu-

tion based on technical violations.

Appellant submits that Paragraph (2) of Section 312

is fully applicable here. Paragraphs (1) and (3) are also

fully satisfied here based on the above discussions.

The evidence, the nature of the charges and the atten-

dant circumstances do require a conclusion in favor of

dismissal under Section 312.

Vil. THE TRIAL ONE EVIDENCE IS INSUFFICIENT

ON ALL COUNTS RE THE ALTERED PIPE

All of the counts of Trial One arise from the alteration

of a pipe on Appellant’s solid waste disposal site. Iron-

ically the alternation [sic] of the Pipe is not charged as an

offense.

Count 1 charges that Appellant operated his mere

ous waste disposal facility without a permit for the fa

ity after the pipe was altered.

Count 2 charges that Appellant discharged inductees

wastes without a discharge permit after the pipe was

altered.

Count 3 charges that Appellant operated nego

permit for the facility after the pipe was latere a

because the pipe was then an “unpermitted pipe syste

disposing of hazardous waste leachate.

Count 4 charges Appellant operated a my mg? =

;

disposal facility contrary to his permit for the oe

after the pipe was altered in disposing of residual w

through an unpermitted pipe system.

Count 5 charges Appellant with perjury in testimony

in court regarding the alteration of the pipe.

Count 6 charges Appellant with obstruction of justice

by the alteration of the pipe.

Count 9 charges Appellant with conspiracy with an

i rati the pipe.

employee regarding the alteration of the pip

. |-

The facts relevant to all of these counts are as fo

lows:

i ™ *

Appellant obtained a DER permit (Com. Exh. nag

Trial One, attached to this brief) for the a yogi

i ili That Permit (No.

solid waste disposal facility. | , |

ithi i ted as Phase ndustr

wastes within an area designa bi geese

initi f “Industria” waste includes

Waste Pit. The definition o , .

peuiiien residual and municipal wastes. Appellant's

facility was a double-lined clay pit having monitoring

wells in accord with agency regulations for the purpose

of permitting the monitoring of underground water. In

addition it had a 4" pitliner monitor perforated pipe

surrounding the pit at its base to monitor pipe leaks,

which emptied into a tank. In addition, Appellant had

placed an underground mine drainage pipe to collect

drainage from an outlying mine, carry it by and under

the waste pit and empty into a small creek referred to as

“tributary” to the Youghiogheny River. This Pipe is

referred to as the “810” pipe. It was not essential to

construction, operation or monitoring of the pit. It was

listed in the Permit by DER as a “monitoring point.”

There was also another underground pipe that relocated

a small underground stream which actually became the

“tributary.” This pipe is referred to as the “711” pipe. The

711 and 810 pipes at a downgradient from the pit both

emptied into an open manhole constructed by Appellant

where their [sic] flows mixed and entered another pipe

which a few feet away flowed into the “tributary.” Appel-

lant held NPDES permits under the Clean Streams Law

for discharge from the facility to the tributary of the

Youghiogheny River including from pipes 711 and 810. In

Fall 1982 a DER employee claimed to notice “organic

odors” in the area of the manhole. His samples of the

outfall of pipe 810 in the manhole showed traces of

contaminants in the “mine drainage,” measured few

“parts per billion.” No contaminants appeared in the

collection tank from the 4” pit liner monitor perforated

Pipe surrounding the base of the pit. No contaminants

appeared in the groundwater monitoring system wells.

Without taking samples from the mine, DER suggested

that, since the traces had some characteristics consistent

with wastes disposed in Appellant’s Phase I pit and the

contingent temporary pit, one of the pits was leaking.

Appellant was also advised that he would have to stop

the flow of the 810 water. In early 1983, Appellant was

required to sign a Consent Order and Agreement calling

for drastic changes in Appellant’s plan for development

of the site including the completion of the Phase II pit.

This action was required based on the traces at pipe 810.

In Summer 1983, Appellant caused a concealed alteration

to the 810 pipe desinged [sic] to control the flow of the

mine drainage water out of the 810 pipe into the man-

hole. It caused the flow to be reduced through a 2” elbow

which had a shut off valve which could be controlled by a

long arm running up to the ground surface. Steps were

taken to conceal the alteration including running a small

concealed transfer pipe so some of the water from the 711

pipe would run out of the end of the 810 pipe. With an

open valve the mine drainage water would flow out of

the 810 pipe. With a closed valve, the 810 pipe water

would not flow and only transfer water from 711 would

flow out of the end of 810. The only evidence regarding

activity of the valve was given by Tracy Opfar, a part-

time employee of Appellant and sone [sic] of Teeter

Opfar, deceased employee. Tracy Opfar testified that he

saw his father move the rock covering a cap and insert a

tool which he thought turned a valve and he heard a little

more water running. (R. 630). There was testimony that

Appellant was present during some of the time of the

construction of the pipe alteration. There was no evidence

regarding Appellant relative to the 810 pipe after the

construction. In some proceeding which occurred before

the Commonwealth Court of Pennsylvania, Appellant

apparently was questioned about the 810 pipe and gav

responses which were judged false. The court “ad te

questions and answers to the jury. The court declared ,

finding of materiality or a matter of law often revisin ;

transcript which was not made part of the record The

record also does not contain evidence of the nature of the

proceeding in Commonwealth Court.

Count One

Appellant Had a Permit

‘By considerable distortion of the language of th

Solid Waste Management Act, the prosecution has

ee felony charge. Without charging violation of

: ection 401(a), this case is a misdemeanor case. To

make it felonious, it had to be charged that Appellant did

operate a hazardous waste disposal facility witho "

permit for such disposal facility. Count One suggests th :

some way upon the alteration of the pipe Appellant :

longer had a permit for the disposal facility. ”

Jury Instruction

| The court erred in instructing the jury in response to

a jury question. (R. 1495-1497.) The jury obviously w

confused by the issue of the permit. It asked “By la “

does a permit violation automatically revocate a s t

pend that permit or must it be worded so in the aeeuaet

pri count should not have gone to the jury, but the cum

ompounded the error by it [sic] instruction. The court

separated the question into two parts, answered nega-

tively to both parts and then instructed that they could

find that Appellant “so altered the monitoring system

and so significantly departed from the terms of the per-

mit that the operation of the hazardous waste facility

thereafter was an unpermitted operation of a hazardous

waste facility.”

The court repeated this, “Secondly, was the violation

or the alteration so substantial as part of the condition of

the permit that the operation of the facility thereafter was

an operation of a facility without a permit.” Those are

questions of fact for you to answer.” (R. 1497.)

Appellant respectfully refers this Count to Section

[sic] of this brief where the matter of the SWMA permit is

discussed.

Further, Appellant submits that there is no precedent

in American jurisprudence for such an instruction and

the verdict returned upon it.

If one has a permit or license to do something, one

may violate it and thus prompt suspension or revocation

by the governing or regulatory authority.

Under the court’s instruction here, if a person having

a driver’s license drove 80 mph in a 55 mph zone, upon

pulling him over, a policeman could given [sic] him one

citation for speeding and another for driving while his

license were suspended or revoked, stating that a finder

of fact will decide whether the violation was such as to

cause an automatic suspension or revocation of the

license.

1 ;

he court told the jury that a permit violation does

not automatically revoke or suspend the permit but then

told the jury it could find that it did.

The alteration of the pipe at most was an actio

contrary to the facility permit as a violation of SWMA

Section 302(a) and punishable as a summary offens

misdemeanor under Section 606(a) or (b). _

Monitoring Pipes

Further, the allegation that there was “alteration

; of its approved monitoring pipes” is incorrect under

the regulations and the facts.

** *

The applicable regulations establish the groundwater

monitoring system for a hazardous w

, aste disposal si

25 Pa.Code § 75.264(n)(4). se cipanaront

| The regulation states that the groundwater monitor-

ing system shall consist of monitoring wells, at least one

upgradient and those downgradient. |

| ie saguiations do not provide for “monitoring

pipes or “monitoring points.”

The permit (page 6) Paragraph 6(c) stated a condition

regarding the monitoring wells and then stated, “In addi

tion to the wells listed above, the outfalls of the pac

water underdrain pipe and the 4" lines monitoring pipe

are to be established as monitoring points.” There ae

evidence of official action taken to establish those ane

. Bess alteration of the pipe doesn’t appear itself to be a

lolation of law, regulation or permit condition.

The charge and the verdict on Count One are con-

trary to law and evidence and must be reversed and

dismissed.

Count Two

This charges that industrial wastes were discharged

without a discharge permit and alleges that the discharge

was leachate from the disposal facility.

The evidence is that Appellant always held NPDES

discharge permits under the Clean Streams Law in addi-

tion to the SWMA Permit to operate the facility.

Solid Waste Permit No. 300679 applies to a whole

facility as defined at 25 Pa.Code 75.260. A facility is all

land, structures, and other appurtenances or improve-

ments on a property where hazardous waste is treated,

stored or disposed. Permit No. 300679 applied to 120

acres of the site including the area where the pipes were

located. Further, the only permits issued under the Clean

Streams Law are NPDES permits. Appellant retained

NPDES permits No. 0046663 for pipe 810 and No.

00466655 for the same pipe. These permits applied contin-

uously from 1979 to the present. The piping system and

discharges were permitted under these three permits.

Appellant held a permit to discharge through pipe

810 which was a drainage pip [sic] from an outlying

mine. That pipe was not connected to the disposal pipe,

was not built as a pit monitoring pipe and was intended

to run the mine drainage past the facility.

There was no evidence that the “traces” in the 810

pipe didn’t come from the mine or some other source

flowing into the mine.

Also there was no evidence regarding the pit liner

monitoring Pipe or the established monitoring wells

regarding anything leaving Appellant’s pit.

r on Commonwealth had the burden of proof that

| ppellant (1) willfully and negligently (2) discharged

eachage through (3) and unpermitted piping system

There is no evidence of any of those elements

| if Appellant discharged anything through the 810

pipe it would have been under his NPDES permit. His

alleged act was blocking the flow through 810 oa

There was no leachate. It must be proven to have

come from the pit to fit that definition. There was no such

proof. The evidence was to the contrary

m > didn’t discharge anything into a “water of

e Commonwealth” since the water in the mine wa

already “water of the Commonwealth” which was me y

redirected by a pipe for a distance. There was no ne

dence Appellant discharged anything into it. wed

Count Three

Again this is a felony charge under Section 401(a) for

doi

oing an act without a permit for the disposal facility. In

Count Four

This charge of discharge of residual wastes through

pipe 810 without proof as if from the disposal pit.

This count would consider the existence of the facil-

ity permit and charge a violation of it as a misdemeanor

by a discharge from the pit which is not supported by the

evidence.

Count Five

This is the perjury count. The court declared “mate-

riality” as a matter of law based on its revision of the

transcript which was not made a matter of record. A

review of that element cannot be made and the record

thus does not contain evidence to support that finding.

The nature of the proceedings was not established in

evidence. (The transcript regarding this count is found in

the Supplemental Record.)

Count Six

Count six is the Obstruction of Justice alleging physi-

cal interference with a governmental function by altering

the piping system. This crime specifically excludes the

failure to perform a legal duty other than an official duty

or any other means of avoiding compliance with law

without affirmative interference with governmental func-

tions. 18 Pa.C.S.A. 5101. The case law indicates that this

offense has only been found when direct contact was

made with an enforcement officer in his official duty or

force was used. Com. v. Saxon, 275 A.2d 876 (Pa.Super.

1971).

The case law supports that direct physical force must

be used upon the enforcement officer. In Com. v. Farlin

12 Dist. 732 (Dauph. 1903) the closing and hooking of a

screen door was not an obstruction and to have that effect

there must be a use of force, threats or power.

Mr. Shack, a DER enforcement officer, in testifyin

for the Commonwealth, stated that Appellant mas

argued with him, never chastised him, never raised his

voice and never gave him a hard time. (R. 374). As

matter of fact, he stated about Appellant that “He met the

approved design standards. He did what he was sup-

posed to do, you kno, [sic] if he would have done it in md

nest place, there wouldn’t have been any problem.” The

evidence indicates that Appellant never used force,

threats or power and therefore this count must fail. |

Count Nine

| Count nine alleges a conspiracy with an employee to

facilitate illegal disposal of hazardous wastes. No hazard-

ous wastes were disposed of in violation of the SWMA or

the CSL since the facility was properly permitted

Since the activit

y was not illegal, the conspi

count must fail. _

COMMONWEALTH OF IN THE 7.

PENNSYLVANIA, COU .

Appellee’ : PENNSYLVANI

v ‘ NO. 00485 Pittsburgh,

1988

WILLIAM FIORE,

Appellant

Appeal From Judgment of Sentence April 10, 1987

In Court of Common Pleas, Criminal Division,

Allegheny County, at No. CC8508740

BEFORE: CAVANAUGH, DEL SOLE and MONTGOM-

ERY, JJ.

MEMORANDUM: FILED: May 12, 1989

The appellant, William Fiore, was the owner and

operator of a waste disposal facility known as the me

pal and Industrial Disposal Company, located in Eliz-

abeth Township, Allegheny County. In 1979, the company

received a permit from the Commonwealth of Pennsylva-

nia to dispose of various wastes, including hazardous

wastes.

As a result of alleged unlawful disposal of waste, a

multi-count indictment was presented against the appel-

lant, charging over 150 violations of the Solid Waste

Management Act! and related statutes. A ma

David Scarpone, was also charged with some, but not all,

of the offenses alleged against the appellant. As a result, a

jury trial was held involving only charges which included

the co-defendant and a separate non-jury trial was held

| The Solid Waste Management Act is found at 35 Pa.C.5

§ 6018.101 et seq.

on the remaining charges which involved only the appel-

lant. Both trials were held before Novak, J.

At the jury trial the appellant was convicted of dis-

posing of hazardous wastes and operating a hazardous

waste facility without a permit, discharging industrial

wastes without a permit, disposing of residual wastes

and operating a residual waste facility contrary to his

permit, perjury, obstruction of the administration of the

law, and criminal conspiracy.

The appellant was found guilty at the non-jury trial

of similar offenses.? The appellant's post-trial motions

were denied and he was sentenced to a total period of

confinement of six to twelve years, concurrent probation

for twenty-five years, and fines totalling $200,000.00. His

petition to modify the sentence was denied and he has

appealed to this court from the judgment of sentence.

The appellant has raised twenty-two issues on

appeal, all of which were covered in the comprehensive

and analytic opinion of Novak, J. of the court below.? We

* The trials in the court below were lengthy and the Notes

of Testimony exceeded 2,200 pages.

‘ The twenty-two issues raised in the Statement of

Questions Involved covered three pages and were over 70 lines

in length. Pa.R.A.P. provides:

Rule 2116. Statement of Questions Involved.

(a) General rule. The statement of the questions

involved must state the question or questions in the

briefest and most general terms, without names,

dates, amounts or particulars of any kind. It should

not ordinarily exceed 15 lines, must never exceed one

page, and must always be on a separate page, without

100

affirm on the basis of the opinion of the court below.

However, we would add our thoughts with recpect to the

challenge to the sentence on the grounds that it is exces-

sive. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17

(1987) permits an appeal from the discretionary aspect of

a sentence only where the appellant includes in his brief,

immediately preceding argument in support of the chal-

lenge, a separate concise statement of the reasons for

allowance of appeal under 42 Pa.C.S. § 2119(f), and appel-

lant has not complied with this requirement. Neverthe-

less, we concluded in Commonwealth v. Krum, 367 Pa.

Super. 511, 533 A.2d 134 (1987) that the requirement of

Pa.R.A.P. 2119(f) is procedural only and is waived if not

raised by the Commonwealth. See also, Commonwealth v.

Losch, 369 Pa. Super. 192, 535 A.2d 115 (1987); Common-

wealth v. Smith, 375 Pa. Super. 419, 544 A.2d 991 (1988).

However, the commonwealth has objected to the appel-

lant’s failure to comply with Rule 2119(f), and its objec-

tion is appropriate. Accordingly, we must quash the

appeal as it pertains to the excessiveness of sentence.‘

any other matter appearing thereon. This rule is to be

considered in the highest degree mandatory,

admitting of no exception; ordinarily no point will be

considered which is not set forth in the statement of

questions involved or suggested thereby.

While we granted the appellant permission to file

a brief not to exceed 130 pages, serious effort must be

made to comply with the Rules of Appellate

Procedure concerning the contents of briefs.

4 Even if the Commonwealth had not objected to the

appellant's failure to comply with 42 Pa.C.S. § 2119(f), under 42

Pa.C.S. § 9781(c) an allowance of appeal may be granted at the

discretion of the appellate court only where it appears that there

101

| Appeal quashed as to excessiveness of sentence and

judgment of sentence affirmed.

Opinion by Novak, J. of Allegheny County Court of

Common Pleas attached. (January 19, 1988)

Del Sole, J. files Concurring Memorandum.

COMMONWL ALTH OF IN THE SUPERIOR

PENNSYLVANIA, COURT OF

Appellee: PENNSYLVANIA

Vs. _ NO. 00485 Pittsburgh,

WILLIAM FIORE, ) _

Appellant

Appeal From Judgment of Sentence April 10, 1987

In Court of Common Pleas, Criminal Division

Allegheny County, at No. CC8508740

BEFORE: CAVANAUGH, DEL SO .

ERY, J]. ° SOLE and MONTGOM-

is a substantial question that the sentence imposed is not

eam In exercising that discretion the court may consider

nu = — : ~~ and the record. Commonwealth v. Darden,

ae - Super. 7, 531 A.2d 1144 (1997); Commonwealth v. Felix,

o/2 Pa. Super. 145, 539 A.2d 371 (1988). Considering the gravit

and great number of offenses committed, and the b te

impact on the environment, we would find no salictaating

question as to the appropriateness of the sentence, even if we

were to reach that issue.

102

CONC &RING MEMORANDUM BY DEL SOLE, J.:

I concur in the result reached by the Majority but

would affirm the Judgment of Sentence. I disagree with

the Majority’s decision to disallow an appeal from the

discretionary aspects of sentencing.

At the outset I believe the time has come for the

General Assembly to review 42 Pa. C.S.A. § 9781(b) which

limits the review of discretionary sentencing matters to

those cases where only a “substantial question” exists

and where this court agrees to exercise its discretion and

hear the issue. It is my view that in a criminal proceeding

a defendant has a right to have all matters reviewed

which have been properly preserved at the trial court

level. Further, I believe that Article 5, Section 9 of the

Constitution of this Commonwealth prohibits the limita-

tion of review found in 42 Pa. C.S.A. § 9781(b). That

Article provides as follows:

There shall be a right of appeal in all cases to a

court of record from a court not of record; and

there shall also be a right of appeal from a court

of record or from an administrative agency to a

court of record or to an appellate court, the

selection of such court to be as provided by law;

and there shall be such other rights of appeal as

may be provided by law.

In my view this section establishes a right of appeal from

a court of record to an appellate court. The applicable

section of the sentencing code that eliminates a right of

appeal by requiring that review of certain sentencing

questions is purely discretionary with the appellate court

would seem to violate this constitutional provision. This

103

question can only be addressed in the appellate courts

and is not an issue that can be raised in the trial court.

With regard to to [sic] the case sub judice, having

reviewed the sentence and the reasons for the sentence

stated by the sentencing judge, I do not believe that the

trial judge abused his discretion in imposing the sen-

tence. I believe that the sentence imposed by the trial

judge was appropriate and proper under the circum-

stances and would, therefore, affirm the judgment of

sentence.

104

Dave SCARPONE, Appellant,

COMMONWEALTH of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 4, 1990.

Decided Aug. 5, 1991.

Petition for Allowance of Appeal

Granted Nov. 7, 1991.

Robert J. Amelio, for appellant.

George Jugovic, Jr., Sp. Deputy Atty. Gen., for appellee.

Before McGINLEY and KELLEY, JJ., and BARRY, Senior

Judge.

KELLEY, Judge.

David Scarpone, appellant, was employed as general

manager of the Municipal and Industrial Disposal Com-

pany (MIDC). MIDC is owned by William Fiore and

consists of a fly-ash disposal facility and a demolition

waste disposal site in Elizabeth Township, Allegheny

County. In 1979, Fiore decided to construct a lined pit for

the placement of industrially generated wastes on the

same site adjacent to the fly-ash disposal facility. The

Department of Environmental Resources (DER) granted a

permit to construct the pit. The permit required individ-

ual deposits of waste into the pit (waste streams) to be

approved by DER. The pit contained an underground

monitoring pipe that provided DER inspectors the ability

to monitor the outfall of the pipe to determine if hazard-

ous waste was leaking, causing pollution of the environ-

ment.

105

In 1982 and 1983, inspectors began to detect hazard-

ous waste from the monitoring pipe and DER informed

Fiore that no deposit approvals (Module 1 approvals)

would be issued until the condition was resolved. In jul

of 1983, Scarpone directed other employees > eum ‘

titiously alter the monitoring system by encovating fl

area around the outfall of the monitoring pipe and alter-

ing its flow. The intake of the original monitoring pipe

was capped and a smaller pipe was installed to brin -

trickle of uncontaminated water into the monitoring tl

DER inspectors discovered this alteration and crimi-

nal charges were filed against Scarpone and Fiore in the

Court of Common Pleas of Allegheny County. Upon a

jury trial, Scarpone was convicted of causing and aie

ing in the operation of a hazardous waste disposal facility

without a permit in violation of the Solid Waste Manage-

ment Act (SWMA),! obstructing the administration of law

or other governmental function,? and conspiracy. This

appeal followed.4 : 7

: carpone 's first argument is that it was error for him

to > - . e . . %

e charged in Count 1 of the criminal information with

' Act of July 7, 1980, P.L. 3

_ , , . “* 380, a> c , . y .

$$ 6018.101-6018.1003. oo emented, 3D 05.

18 Pa.C.S. § 5101.

* 18 Pa.C.S. § 903.

4 Se > origi

an —o originally appealed to the Superior Court. The

— was transferred sua sponte to this Court which has

Se the SWMA conviction pursuant to 42 Pa.C.s

amie may exercise jurisdiction over the related

‘ictions under Commonwealth v. Tyson, 57 Pa.C

. fyson, 57 Pa.Comm .

Ct. 569, 427 A.2d 283 (1981). penne

106

operating a waste disposal facility without a imager «

Fiore possessed a permit for the facility. ergot E

that the only way he could be convicted of ~ —

if the permit had been revoked. Count 1 reads as fo Ss:

The defendant Dave Scarpone did cause me

assist in violations of the Solid Waste ee

ment Act, to wit, the defendant cause ope

assisted in the alteration of monitoring neon

a hazardous waste disposal facility in pork

Township, Allegheny County operated we ee

a permit from the Pennsylvania pre psaerape

Environme

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