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Tuesday, February 28, 2006

Environment - "Pork producer challenges environmental law"

"Pork producer challenges environmental law" is the headline to a story today by Seth Slabaugh in the Muncie Star-Press. Some quotes:

MUNCIE -- A defense lawyer is challenging the constitutionality of a criminal law being used to prosecute a Dutch pork producer from Delaware County and a Dutch dairy farmer from Huntington County .

The law in question makes it a class D felony to knowingly, intentionally or recklessly violate an environmental management law, rule, standard, permit or order.

Muncie attorney Scott Shockley is asking a trial court to dismiss three felony charges against pork producer Jacobus "John" Tielen, Eaton.

Since 1999, prosecutors claim, Tielen has continually shown contempt for laws, rules and orders governing the management of hog manure.

Tielen is accused of repeatedly keeping a lagoon full of manure, failing to lower the level of the manure, failing to maintain a berm around the lagoon, and failing to empty a manure pit. He has been fined more than $21,000 for spilling manure, failing to report a manure spill, killing fish and other civil violations.

Shockley recently filed a motion asking Delaware Circuit Court 4 Judge John Feick to dismiss charges against Tielen because the law is "hopelessly broad," vague, and a violation of the separation of powers doctrine.

That doctrine requires the state Legislature -- not executive-branch boards or agencies such as the Indiana Department of Environmental Management -- to define criminal acts, Shockley said.

The law he questions "purports to criminalize" hundreds of pages of regulations promulgated by the Indiana Water Pollution Control Board, Shockley complains. * * *

The same law was used last week to file two class D felony charges against Hutington County dairy farmer Johannes De Groot, of Andrews. He is accused of adding a cow barn and a silage pad to his controversial, 1,400-cow dairy farm last year without first seeking a permit to do so from IDEM. * * *

The law Shockley is challenging also is being used to prosecute former Muncie tire recyclers Michael and William Gruppe III. The two brothers and their corporation are scheduled to be sentenced today for their guilty pleas to violating environmental laws before a tire fire destroyed their business in 2003.

But what is "the law" mentioned in the story, but never identified? Presumably it is IC 13-30-6-1, which reads:
Sec. 1. (a) A person who intentionally, knowingly, or recklessly violates:
(1) environmental management laws;
(2) air pollution control laws;
(3) water pollution control laws;
(4) a rule or standard adopted by one (1) of the boards; or
(5) a determination, a permit, or an order made or issued by the commissioner under environmental management laws or IC 13-7 (before its repeal);
commits a Class D felony.

(b) Notwithstanding IC 35-50-2-7(a), a person who is convicted of a Class D felony under this section (or IC 13-7-13-3(a) before its repeal) may, in addition to the term of imprisonment established under IC 35-50-2-7(a), be punished by:

(1) a fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000) per day of violation; or
(2) if the conviction is for a violation committed after a first conviction of the person under this section (or IC 13-7-13-3(a) before its repeal), a fine of not more than one hundred thousand dollars ($100,000) per day of violation.
As added by P.L.1-1996, SEC.20. Amended by P.L.112-2000, SEC.4.
Also relevant would be IC 13-30-2-2, the detailed statutory list of "prohibited acts."

Posted by Marcia Oddi on February 28, 2006 07:59 AM
Posted to Environment | Ind. Trial Ct. Decisions | Indiana Law