U.S. v. Consolidated Edison of New York, Inc

U.S. v. Consolidated Edison of New York, Inc

See Environmental crime

MEMORANDUM OPINION AND ORDER
MARTIN, District Judge:
*1 Most of the pre-trial motions in this
case were decided on the record during the
course of oral argument. At that time, the
Court took under advisement the defendant
Papakrasas’ motion to dismiss Count Four
of the indictment and Consolidated Edison’s
motion seeking discovery of the statements
and grand jury testimony of its employees.
For the reasons set forth below,
Papakrasas’ motion to dismiss Count Four
is denied and Consolidated Edison’s motion
with respect to the statements of its employees
is granted.
Papakrasas is charged in Count Four with
making a false statement in a matter within
the jurisdiction of the United States in violation
of Title 18, United States Code §
1001 in that he “falsely informed the New
York City Department of Health…. that
there was no asbestos in the manhole at the
time of the explosion.” Defendant claims
that this statement to a New York City official
was not a statement made in a matter
within the jurisdiction of an agency of the
United States. The Government contends
that it was because the release of asbestos
into the atmosphere was a matter within the
jurisdiction of the Environmental Protection
Agency.
The legal principals controlling on this motion
were clearly set forth in the Second
Circuit in United States v. Davis, 8 F.3d
923, 929 (2d Cir.1993), where the Court
stated
[T]here is no requirement that a false statement
be made to the federal agency; it
must only have been made in ‘any matter
within the jurisdiction of any department of
agency of the United States’….
A federal department or agency has jurisdiction
within the meaning of 18 U.S.C. §
1001 ‘when it has the power’ to exercise
authority in a particular situation as distinguished
from ‘matters peripheral to the
business of that body.’ United States v.
Rogers, 466 U.S. 475, 479, 104 S.Ct. 1942,
1946, 80 L.Ed.2d 492 (1984). In situations
in which a federal agency is overseeing a
state agency, it is the mere existence of the federal agency’s supervisory authority that
is important to determining the jurisdiction.
(emphasis in original) (citations omitted).
In this case, the Environmental Protection
Agency clearly had supervisory authority
over the state agency with respect to a potentially
hazardous release of asbestos into
the atmosphere. The Comprehensive Environmental
Response Compensation and Liability
Act of 1980 (“ CERCLA ” ) was enacted
to address problems of pollution
caused by hazardous substances such as asbestos
“by creating a comprehensive and
uniform system of notification, emergency
governmental response, enforcement and
liability.” United States v. Carr, 880 F.2d
1550, 1552 (2d Cir.1989) (citation omitted).
Acting pursuant to CERCLA , the
EPA administrator promulgated the National
Contingency Plan (“NCP” ) to
provide coordinated responses to the release
of hazardous substances. 40 CFR §
300.3(b). Under the NCP in effect at the
time of the explosion, a federal on-scene
coordinator is designated to coordinate the
Government’s response to the release of a
hazardous substance and is to coordinate
efforts with appropriate state and local response
agencies. 40 CFR §§ 300.33(b)(3),
300.62(a)(1). Provisions of CERCLA were
supplemented in 1986 with the adoption of
the Superfund Amendments and Reauthorization
Act of 1986, which included the
Emergency Planning and Community
Right-to-Know Act (“EPCRA” ). EPCRA
established planning and notification requirements
concerning the presence of hazardous
chemicals and requires owners and
operators of facilities to notify state and
local emergency planning authorities of releases
of materials such as asbestos. See42
U.S.C. § 11004(b). Although the defendants
argue that EPCRA did not apply to
Con Edison’s facility at issue in the present
case, the Court at oral argument rejected
that contention.
*2 Given the fact that the NCP designates
the EPA as the federal on-scene coordinator
for hazardous substance releases in
Manhattan (see40 CFR § 300.33(a)), and
recognizes the role to be played by state
and local public safety officials who are
anticipated to be the first government representatives
on the scene of a potential environmental
incident, Mr. Papakrasas’
statements to the Department of Health official
was clearly a matter within the jurisdiction
of the United States. A knowingly
false statement to the local Department of
Health official would, therefore, constitute
a violation of Title 18, United States Code
§ 1001.
In response to Consolidated Edison’s motion
for discovery of statements of all of its
officers and employees, including their
grand jury testimony, the Government concedes
that there is no Second Circuit precedent
directly on point with respect to
statements made by corporate employees
outside the grand jury. The Government
notes, however, that with respect to grand
jury testimony, it is only obligated to produce
testimony of a witness who “(1) was,
at the time of that testimony, so situated as
an officer and employee to have been able
legally to bind the defendant in respect to
conduct constituting the offense, or (2)
was, at the time of the offense, personally
involved in the alleged conduct constituting
the offense and so situated as an officer
or employee as to have been able legally to
bind the defendant in respect to the alleged
conduct in which the witness was involved.”
F.R.Crim.P. 16(a)(1)(A). The
Government contends that that limitation
should also apply to statements outside the
grand jury. The Court sees no reason to so limit the defendants’ right to such statements.
With respect to the grand jury testimony,
the dispute between the parties revolves
around the question whether Con Edison
must stipulate as to the identity of those individuals
who have the requisite power to
bind the corporation. The Government recognizes
that an amendment to Rule 16 has
been approved by the Judicial Conference
and will become effective December 1,
1994 and that under the amendment a defendant
will not be required to make a stipulation
such as the one upon which the
Government is now insisting. See 55
Crim.L.Rep. 2029-30 (May 11, 1994). The
Government argues, however, that the report
on the amendment indicates that its
purpose is to change the existing law and,
therefore, the Court lacks the power to order
production of the Grand Jury testimony
without the requisite stipulation from the
corporation.
There is little question that the new rule
will become effective on December 1,
1994. Given the fact that this amendment
embodies the determination of the Judicial
Conference as to the most equitable procedure
for determining what grand jury
testimony is provided to a corporation, it
would be exalting form over substance to
refuse to apply the rationale of the rule to
interpret the present ambiguous language.
Moreover, this Court would clearly have
the authority, on Consolidated Edison’s application,
to adjourn this trial for several
months so that the new rule would become
applicable and the grand jury testimony
produced without a stipulation from the defendant.
In the Court’s view, such a delay
would be in neither the defendant nor the
Government’s interest, and it therefore
seems much more sensible simply to order
the Government to produce the grand jury
testimony without requiring a stipulation
from Consolidated Edison.

Author: international

Mentioned in these Entries

CERCLA.