IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA, : Plaintiff, : Case No. 2:15

- MJ

- 605

vs. : MAGISTRATE JUDGE KING SHANNON HARROLD, : Defendant. :

DEFENDANT’S MEMORANDUM RE. “DISPOSAL”

__________________________________________________________________ Shannon Harrold, through undersigned counsel, hereby submits his Memorandum on “Disposal” as directed by this Court

. Dated this 16 th day of October, 2015. Respectfully submitted,

/s/ Deborah L. Williams Deborah Williams (AZ 010537 ) Federal Public Defender Federal Public Defender’s Office 10 West Broad Street, Suite 1020 Columbus, Ohio 43215

- 3469 (614) 469

- 2999 Deborah_Williams@fd.org A ttorney for Defendant Shannon Harrold Case: 2:15-mj-00605-NMK Doc #: 10 Filed: 10/16/15 Page: 1 of 5 PAGEID #: 26MEMORANDUM OF LAW Statement of Facts On September 25, 2015, by criminal Complaint, the government charged Mr. Harrold with violating 42 USC 7413(c)(1). Specifically, the government alleges that Mr. Harrold “knowingly vented, released, or disposed of a hydrochlorofluorocarbon refrigerant into the environment while in the course of maintaining, servicing, repairing, or disposing of an appliance.” The government claims that Mr. Harrold attempted to steal a commercial air conditioning unit and in the process cut the tubing which in turn caused t he release of refrigerant into the air. During the October 9, 2015, preliminary and detention hearing, defense counsel argued that the actions alleged in the Complaint do not fall within the ambit of 42 USC 7671g because Mr. Harrold is not in the busine ss of maintaining, servicing, repairing, or disposing of appliances. This Court asked for briefing on the issue of what constitutes “disposal” and why the alleged conduct would not fall within the scope of that term.

Statement of Law Section 42 USC 7671g prohibits “any person, in the course of maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration, Case: 2:15-mj-00605-NMK Doc #: 10 Filed: 10/16/15 Page: 2 of 5 PAGEID #: 27to knowingly vent or otherwise knowingly release or dispose of any class I or class II substan ce used as a refrigerant in such applicant...in a manner which permits such substance to enter the environment.” See also 40 CFR 82.150, stating that the Clean Air Act applies “to any person servicing, maintaining, or repairing appliances...” as well as cer tain other people/companies involved in the business of dealing with appliances. Based on the facts alleged and not alleged in the Complaint, it appears that Mr. Harrold was not employed as an air conditioning technician at the time the charged events a llegedly occurred.

Neither of the relevant statutes

-- 42 USC 7413(c), 42 USC 7671g

-- define the term “disposal

. ” Therefore, “ [w] hen a statute does not define a term, we typically give the phrase its ordinary meaning.” Mohamad v. Palestinian Authority , 132 S.Ct. 1702, 1706

- 1707 (2012), citing FCC v. AT&T Inc ., 131 S.Ct. 1177, 1182 (2011). I n normal usage , the term “disposal” means the act of getting rid of something, or alternatively being available to be used by someone. See Cambridge Dict ionaries Online, https://dictionary.cambridge.org/us/dictionary/english/disposal

. In American English usage, it also refers to a waste device attached to the kitchen sink. Se e MacMillan Dictionary, www.macmillandictionary.com/us/dictionary/american/disposal

. The statute speaks to improper disposal of appliances in a manner that would endanger t he Case: 2:15-mj-00605-NMK Doc #: 10 Filed: 10/16/15 Page: 3 of 5 PAGEID #: 28environment. There is no indication, nor does it make sense, that the statute intends to equate “disposal” with “theft .” In looking for similar cases undersigned c ounsel review ed hundreds of reported cases throughout the country, all involving violations of 42 USC 7413(c) (1)

. Those cases revealed that this statute typically is used to prosecut e cases involving the work practices of construction

- related companies , or owners/managers of companies involved in other ac tivities regulated by the EPA, consistent with the EPA’s mission “to protect human health and the environment

-- air, water, and land .” www.epa.gov/region9/enforcement/intro.html . The regulation of common the ft, on the other hand, is a matter commonly left for regulation by the local governments. On the question of why the word “disposal” should not apply to Mr. Harrold, the answer comes down to the normal meaning of the word. In normal usage the word “disposal” is not synonymous with “theft.” Further, t here is no indication that this statute was intended to reach beyond its stated purpose, or beyond the mission of the EPA. Accordingly, this statute should not reach the conduct alleged in this Complai nt. Case: 2:15-mj-00605-NMK Doc #: 10 Filed: 10/16/15 Page: 4 of 5 PAGEID #: 29CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the Defendant’s Memorandum was electronically served upon J. Michael Marous , Assistant United States Attorney, Office of the United States Attorney, 303 Marconi Blvd., Suite 200 , Columbus, Ohio 43215, this 16 th day of October, 2015.
/s/ Deborah L. Williams Deborah L. Williams (AZ 0 10537 ) Federal Public Defender Attorney for Defendant Shannon Harrold Case: 2:15-mj-00605-NMK Doc #: 10 Filed: 10/16/15 Page: 5 of 5 PAGEID #: 30