### 1 **IN THE UNITED STATES DISTRICT COURT**

**FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION** 

**UNITED STATES OF AMERICA 2:15-mj-605**  **v. Magistrate Judge King**

**SHANNON WAYNE HARROLD**

**OPINION AND ORDER**

Defendant Shannon Wayne Harrold is charged by way of complaint with the “knowing venting of a[n] ozone-depleting substance in violation of 24 U.S.C. § 7413(c)(1).” Complaint , ECF No. 1. Specifically, the affidavit supporting the Complaint alleges that defendant vented, released, or disposed of a hydrocholorofluorocarbon refrigerant into the environment while in the course of maintaining, servicing, repairing, or disposing of an appliance, to wit, SHANNON WAYNE HARROLD cut the tubing of a[] commercial air conditioning unit causing the refrigerant hydrocholorogluorocarbon-22 in the unit to be vented into the atmosphere. Affidavit of Thomas J. Kohl, Jr., ECF No. 1, ¶ 4. At the close of the preliminary hearing held on October 9, 2015, defendant moved for dismissal of the matter, taking the position that “Mr. Harrold is not in the business of maintaining, servicing, repairing, or disposing of appliances.” Defendant’s Memorandum re. “Disposal ,” ECF No. 10, p. 2 (“ Defendant’s Memorandum ”). The Court directed the parties to brief the issue, which the parties have now done. See id.; Memorandum Supporting Probable Cause , ECF 11. 

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### 2 **I.** Andrew Kalas, a federal task force officer, testified that, on August 25, 2015, defendant was encountered entering a store in Whitehall, Ohio (“Roses”), wearing the uniform of his former employer, a heating and air conditioning repair service (“Eagle”). A surveillance video recorded defendant carrying a reciprocating saw and an extension cord. Defendant advised a Roses employee that he had been sent to service Roses’ air conditioning system, which was located on the building roof. Because the Roses’ air conditioning system had been serviced recently, the Roses employee called Eagle, which advised that no employee had been sent to service Roses’ air conditioning system on that day. The Roses employee then confronted defendant, who fled but left behind the extension cord that he had brought into Roses. Also found on the roof was an air conditioning unit ( i.e ., one of eight units on the roof) whose condenser, or freon coil, had been cut, which allowed the freon (“R-22”), a refrigerant, to escape from the closed system of the unit into the atmosphere. The agent also testified that air conditioning units are frequently stolen in order to scrap the copper and other metals found in those units. Moreover, a check with local recycling centers revealed that, in August and September 2015, defendant had sold scrap metal from air conditioning units on numerous occasions. The government also presented evidence that defendant has been indicted in state court for a series of similar incidents that allegedly occurred throughout the months of August and September 2015. Government Exhibit 1

. 

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### 3 **II.** The Clean Air Act, 42 U.S.C. § 7401 et seq . (“the Act”), establishes, inter alia , a program for “recycling and emissions reduction” of ozone-depleting substances. Specifically, the Act prohibits any person, in the course of maintaining, servicing, repairing, or disposing of an appliance, to knowingly vent or otherwise knowingly release or dispose of any class I or class II substances used as a refrigerant in such appliance. . . in a manner which permits such substance to enter the environment. 42 U.S.C. §7671g(c)(1). This prohibition [a]pplies to any person servicing, maintaining, or repairing appliances. [and] to persons disposing of appliances, including small appliances and motor vehicle air conditioners. 40 C.F.R. § 82.150(b). See also 40 C.F.R. § 82.154(a)(1)(“[N]o person maintaining, servicing, repairing, or disposing of appliances may knowingly vent or otherwise release into the environment any refrigerant or substitute from such appliances . . . .”). Although the statute provides no definition of the term “disposing of,” the implementing regulations define the term “disposal” as follows: Disposal means the process leading to and including: (1)The discharge, deposit, dumping or placing of any discarded appliance into or on any land or water; (2)The disassembly of any appliance for discharge, deposit, dumping or placing of its discarded component parts into or on any land or water; or (3)The disassembly of any appliance for reuse of its component parts. 40 C.F.R. § 82.152. Violation of the statute, or of the rules promulgated thereunder, constitutes a felony offense. 42 U.S.C. § 7413(c)(1). 

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### 4 **III.** Defendant does not contest that the freon in the Roses air conditioning unit is an ozone-depleting substance within the ambit of the Act, nor does he deny that cutting the condenser or freon coil in the Roses air conditioning unit released the refrigerant into the environment. Rather, defendant argues that his alleged actions on August 25, 2015, even if established, “do not fall within the ambit of 42 U.S.C. § 7671g because Mr. Harrold is not in the business of maintaining, servicing, repairing, or disposing of appliances.” Defendant’s Memorandum, p. 2. Noting that the statute does not define the phrase “disposing of,” defendant argues that the “normal meaning” of the terms refers to “the act of getting rid of something, or alternatively being available to be used by someone.” Defendant’s Memorandum , p. 3 (citing https://dictionary.cambridge.org/us/dictionary/english/disposal; www.macmillandictionary.com/us/dictionary/american/disposal ). As normally defined, defendant argues, the term “is not synonymous with ‘theft,’” which describes defendant’s alleged actions. Id . at 4. For its part, the government does not argue that defendant is in the business of “maintaining,” “servicing,” or “repairing” air conditioning units. Rather the government contends that, by his actions on August 25, 2015, defendant was “disposing of” the unit within the meaning of the statute and implementing regulations because defendant’s “destruction, theft, and sale of air conditioners as scrap metal” constitutes “disposal” within the meaning of 40 C.F.R. § 

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### 5 82.152(3) (“The disassembly of any appliance for reuse of its component parts”). Memorandum Supporting Probable Cause , p. 4. The common meaning of the term “disassembly,” the government argues, “includes the act or process of systematic destruction.” Id . at 5. See http://www.merriam-webster.com/dictionary/disassembly. See also http://www.oed.com/view/ disassembly (“b. To take to pieces, to take apart.”). This Court concludes that the Complaint sufficiently charges a violation of the Act, 42 U.S.C. §7413(c)(1), and that the evidence presented at the preliminary hearing establishes probable cause that defendant violated the Act. Specifically, by cutting the condenser and releasing freon into the environment, with the apparent intent to thereafter sell metal taken from the air conditioning unit, defendant disposed of an appliance, i.e., he engaged in the process leading to the “disassembly of an[] appliance for reuse of its component parts.”

See 42 U.S.C. § 7671g(c)(1); 40 C.F.R. § 82.152(3). See also United States v. Morrissette , 579 F.App’x 916, 919 (11 th Cir. 2014)(“By releasing a refrigerant into the environment without having the proper certification and without following the proper procedures, Morrissette violated the Clean Air Act, regardless of his underlying intent to steal copper.”).

s/ Norah McCann King Norah McCann King United States Magistrate Judge October 28, 2015 

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