Opinion
99 Cr. 1028 (TPG)
May 31, 2002
OPINION
Defendant moves to dismiss the indictment or, in the alternative, to strike or amend certain language in the indictment. Defendant also moves for certain discovery.
According to the indictment, the law requires that certain work practice standards apply when the combined amount of regulated asbestos-containing material removed from pipes in a renovation project is at least 260 linear feet. The indictment charges that defendant supervised and controlled the removal of asbestos material from Montefiore Medical Center in or about February 1999 and that the amount of such material to be removed from pipes was at least 260 linear feet. The indictment alleges that defendant violated the work practice standards in connection with the removal of the asbestos material in that he failed adequately to wet the asbestos material when it was being stripped and did not ensure that the removed material remained wet until it was collected and contained.
The indictment does not contain any specification of how much of the total amount of the asbestos on the pipes was improperly removed and improperly tended after removal. The indictment does not specify whether it was all the asbestos or merely a part.
In moving to dismiss the indictment, defendant makes certain factual arguments, the principal one being that if any of the asbestos was improperly removed this was only in one room involving about 80 linear feet. Defendant argues that, as a matter of law, his work in this room did not need to comply with the work practice standards.
A motion to dismiss an indictment is not the occasion to present factual defenses. However, the legal issue which defendant seeks to raise does indeed arise from the indictment itself. The reason for this is what is described above — that is, that the indictment fails to allege improper asbestos removal as to the whole 260 linear feet or more of asbestos on pipes.
If at least 260 linear feet of asbestos on pipes is involved, the law is violated if such a violation occurs with respect to only a portion of that asbestos. 40 C.F.R. § 61.145 (a)(4)(i). Moreover, if the project involves pipe in several areas or rooms, it is no defense that the improper removal occurred in only one room. See In re Indus. Waste Cleanup, Inc., CAA Appeal No. 5-99-019, 2000 WL 1337415, at * 10 (EPA Aug. 30, 2000).
Thus the indictment is sufficient as a matter of law. What is said in this opinion will not prevent defendant from making a proper record as to his factual and legal defenses. In this connection, it may well be, that defendant will wish to present such defenses in a more formal an detailed fashion than has been done on the present motion.
The motion to dismiss the indictment is denied, as is the motion to strike or amend the indictment.
As to the discovery requests, the Court believes that these should be discussed further at a point nearer to the trial.
SO ORDERED.