# Joint Appendix Vol I — Fiore v. White (No. 98-942) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0247%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol I - **Published:** January 1, 2001 ## Text No. 98-942 WAY 11 (999 1" 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. e On Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit > JOINT APPENDIX VOLUME I, PAGES 1 TO 168 e 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 6/28/96 6/28/96 7/2/% 8/6/96 8/6/96 8/21/96 2/27/97 1 10 11 12 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 4/24/97 5/20/97 10/6/98 13 14 15 17 29 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 12/8/98 5/29/97 7/7/97 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 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 a 10 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 11 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 , = 12 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 13 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 14 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. 15 292-293). 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 16 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). 17 I. 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. 18 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 19 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: 20 (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 21 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 tN ho 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 ee 23 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 24 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 25 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 — 26 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 27 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) 28 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. 29 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 w 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 Ff 2 31 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) 32 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. a. 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). 33 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 34 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 35 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 36 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. b. 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 37 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. V. 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. 38 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 VI 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). 39 (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. 40 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 ™. 41 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, 4. 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). : 2 ; : 43 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 44 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. (c) Actual Discharge Without a Permit 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 a ee Ee eee eae ’ a le i et as 45 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 46 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 ie 47 (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, ee 48 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 49 $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. 50 (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 51 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 52 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 ee 7 7 5 53 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. (c) Counts Four and Five — Possession of a Permit 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. 54 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. 4 55 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 56 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, 57 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 58 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. 59 (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 ‘ 60 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). ; : ; : 61 | 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 62 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. 64 IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING AT PiTTSBURGH NO. 485 PITTSBURGH 1988 COMMONWEALTH OF PENNSYLVANIA V. 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 65 TABLE OF CONTENTS Argument for Appellant I. 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 |. 50 66 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 95 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. 3. 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. 68 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. 69 —— 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. 70 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. 71 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 72 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. 73 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 74 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.” 75 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 76 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 —_ 77 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 e 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 78 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). 79 ” 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 summa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0247%3A04. Public record. Not legal advice.