Opinion
No. 02-CR-171E.
April 18, 2005
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Defendants were charged with various crimes stemming from the allegedly improper removal of asbestos from the Westinghouse facility adjacent to the Buffalo-Niagara Airport. Defendant USA Remediation Services, Inc. ("Remediation") is charged with having violated 18 U.S.C. § 371 (conspiracy to commit offense) and the Clean Air Act ("CAA"), 42 U.S.C. § 7413(c)(1), in Counts I-VII of an indictment filed on September 6, 2002 ("the Indictment"). On June 30, 2003, Remediation filed a motion seeking, inter alia, dismissal of the charges against it on the grounds that (1) the Indictment failed to state an offense because subsection 7413(c)(1) does not criminalize the violation of a Work Practice Standard ("WPS") and (2) the Indictment was procured through prosecutorial misconduct because the prosecution failed to present evidence to the grand jury sufficient to show a prima facie violation of subsection 7413(c)(1). The undersigned referred this matter to Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636(b)(1)(B) (Supp. 2004) for consideration of the merits and legal issues raised in Remediation's Motion to Dismiss. Judge Schroeder filed his Report and Recommendation ("RR") on November 23, 2004 recommending denial of Remediation's Motion to Dismiss. After obtaining an extension of the filing deadline, Remediation filed its objections to the RR on January 3, 2005 ("Objections"). Oral arguments were heard and this matter was submitted on March 11, 2005. For the reasons set forth below, this Court will overrule Remediation's Objections and will adopt the RR in its entirety.
Although Judge Schroeder issued a Decision and Order ("DO") dated November 22, 2004 denying various of Remediation's requests, Remediation failed to file objections to the DO and it will therefore stand.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C). Conversely, the undersigned must make a de novo determination with respect to those portions of the RR to which specific objections have been made. Rule 58.2(a)(3) of the Local Rules of Criminal Procedure ("LRCrP") requires parties objecting to an RR to
See also Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that failure to timely object to a magistrate's recommended decision waives any right to further judicial review because section 636(b)(1)(C) does not require any review by the district court of an issue that is not objected to in a timely manner); U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (same); Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000) (noting that it is "entirely within the province of this Court to adopt those portions of the Report and Recommendation to which no specific objection is made so long as such are not clearly erroneous").
28 U.S.C. § 636(b)(1)(C); United States v. Raddatz, 447 U.S. 667, 675-676 (1980); Sieteski v. Kuhlmann, 2000 WL 744112, at *1 (W.D.N.Y. 2000).
"specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection [which] shall be supported by legal authority." The relevant language in LRCrP 58.2(a)(3) is verbatim from Rule 72.3(a)(3) of the Local Rules of Civil Procedure ("LRCvP") and case law construing one is equally applicable to the other. The undersigned has previously noted that failure to comply with LRCvP 72.3(a)(3) "justifies dismissal of the objections." Moreover, Chief Judge Arcara of this Court has noted that the predecessor of LRCvP 72.3(a)(3) required an objecting party to "`pinpoint' specific portions of the report and recommendation to which it objected." Furthermore, this Court will not address any argument not previously presented to the magistrate judge. Finally, objecting parties may not simply re-hash arguments presented to the magistrate judge.
Not surprisingly, the local rules track the language of subsection 636(b)(1)(B). Consequently, case law construing subsection 636(b)(1)(B) is also equally applicable to a consideration of LRCvP 72.3(a)(3) and LRCrP 58.2(a)(3). Cf. U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (applying civil cases construing standard of review set forth in 28 U.S.C. § 636(b)(1)(B) when reviewing a criminal defendant's appeal of admissibility ruling).
Galvin v. Kelly, 79 F. Supp. 2d 265, 267 (W.D.N.Y. 2000) (citing Camardo v. GM Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)); see also M.L. Williams v. Relin, 1999 WL 454335, at *2 n. 2 (W.D.N.Y. 1999) (declining to review "any portion of the R R to which no specific objection has been made").
Camardo, supra note 6, at 382.
Galvin, supra note 6, at 267.
Mario v. PC Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under either [FRCvP 72(b) or LRCvP 72.3(a)(3)]."); Camardo, supra note 6, at 382 ("It is improper for an objecting party to attempt to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a `second bite at the apple' when they file objections to a Report and Recommendation * * *.").
The RR concluded that (1) Remediation's reliance on Adamo Wrecking Co. v. United States, 434 U.S. 275, 289 (1978), was misplaced because Adamo had been superceded by an amendment to the CAA that took effect after the prosecution in Adamo had been initiated (RR, at 2-3) and (2) the current version of the CAA, which was last amended in 1990, "continues to authorize criminal penalties for violation of work practice standards" because "the work practice standard of 40 C.F.R. § 61.145(a)(1)(I) (c)(3) is incorporated within the definition of standard set forth at 42 U.S.C. § 7412(f)(4) by virtue of 42 U.S.C. § 7412(h) and can, therefore, subject an individual to criminal penalties pursuant to 42 U.S.C. § 7413(c)(1)" (RR, at 3-4).
Remediation filed its Objections to the RR on January 3, 2005. Remediation, however, failed to specifically object to the RR as required by LRCrP 58.2(a)(3). Although the Objections referenced the RR ( see, e.g., Objections, ¶¶ 16-18, 34-36 and 42-44), no specific objections were made. Rather, Remediation improperly reiterated arguments previously raised before Judge Schroeder. Consequently, this Court need only review the RR for clear error.
For example, ¶ 16 refers to page 3 of the RR where Judge Schroeder discussed the legislative evolution of the CAA. The conclusion of ¶¶ 17-18, however, is merely that the RR was "misleading" because it did not adopt Remediation's argument that the 1990 amendment of the CAA eliminated the language that had equated WPS with "emissions standards," thereby eliminating fair notice of what conduct was criminalized by the CAA after 1990. This is the argument that Remediation made to Judge Schroeder — and the same argument asserted in the Objections and at oral argument. Parties objecting to an RR, however, may not simply reassert arguments rejected by the magistrate judge. See Mario, supra note 9, at 766. Likewise, the objections set forth at ¶¶ 34-36 and ¶¶ 42-44 merely reiterate Remediation's previous arguments and argue that Judge Schroeder was wrong to reject such.
Even if this Court were to review the RR de novo, it agrees that the CAA provides fair notice that violation of the WPS subjects one to criminal sanctions. First, subsection 7413(c)(1) makes it a crime to knowingly violate, inter alia, "section 7412 of this title." Second, subsection 7412(b)(1) lists, inter alia, asbestos as a hazardous air pollutant. Third, subsection 7412(f)(4), entitled "Prohibition", provides that "[n]o air pollutant to which a standard under this subsection applies may be emitted from any stationary source in violation of such standard * * *." Fourth, subsection 7412(h) provides, in relevant part,
"[f]or purposes of this section, if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof, promulgate * * * work practice * * * standard[s], or combination thereof, which in the Administrator's judgment is consistent with the provisions of subsection (d) or (f) of this section." (Emphasis added.)
Subsection 7412(h) refers to "this section," i.e., section 7412.
Consequently, the WPS for asbestos, codified at 40 C.F.R. § 61.145(a)(1)(I) (c)(3), is incorporated into subsection 7412(f)(4) via subsection 7412(h), which explicitly states that WPS's and other standards may be promulgated "in lieu" of emissions standards where such "in lieu" of standards are consistent with subsections (d) (f) of section 7412. Although the Second Circuit Court of Appeals has not specifically addressed the issue, it has upheld convictions for violation of the CAA subsequent to the 1990 amendments. The Court of Appeals has, however, addressed the statutory construction of subsection 7413(c)(1) in a way adverse to the statutory construction argument set forth in Remediation's reply papers. This Court finds no clear error in the RR because sections 7412 7413 fairly notify the public of the conduct criminalized by the CAA.
See, e.g., United States of Am. v. Pearson, 274 F.3d 1225, 1229 (9th Cir. 2001) ("The CAA directs the [EPA] to prescribe and enforce emission standards for the control of hazardous pollutants. 42 U.S.C. § 7412(d). Where control is not feasible, the EPA is to promulgate work practice standards designed to achieve a reduction in emissions. Id. and § 7412(h)(1). Under the CAA, asbestos is a hazardous air pollutant. 42 U.S.C. § 7412(a)(6), (b)(1). The EPA has determined that asbestos contamination cannot be feasibly addressed by promulgating emission standards. Thus, work practice standards were devised for the removal of asbestos-containing material during the demolition and renovation of affected buildings. 40 C.F.R. § 61.145. 42 U.S.C. § 7413(c) provides criminal penalties for a limited class of individuals who fail to follow the CAA's regulations."); see also United States of Am. v. Technic Servs., 314 F.3d 1031, 1038 (9th Cir. 2002) (noting that WPS's are applied in lieu of emissions standards and affirming conviction for violation of CAA).
See, e.g., United States of Am. v. Rubenstein, 2005 WL 730081, at *1 (2d Cir. 2005) (affirming conviction for "violating the work-practice standards for asbestos set out in the Clean Air Act * * * and conspiracy to do so").
The Court of Appeals has recently noted:
"A person is criminally liable under the Clean Air Act if he ` knowingly violates any requirement or prohibition of . . . section 7412 of this title.' 42 U.S.C. § 7413(c)(1) (emphasis added). The phrase `knowingly violates' bespeaks `knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one's conduct is illegal.' Weintraub, 273 F.3d at 147."Rubenstein, supra, note 13, at *3 (emphasis added).
Accordingly, it is hereby ORDERED that Remediation's Objections are overruled, that Judge Schroeder's Report and Recommendation filed on November 23, 2004 is adopted in its entirety and that the parties shall appear before Part III of this Court on June 3, 2005 at 1:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.