Anyone who has prosecuted an illegal dumping case under H&S 365.012(a) please give me a call. Particularly need to know how to handle the "does not apply" provisions, like subsection (k), and whether and how you chose to prove the negative (that it was "not an approved solid waste site").

Martin, just had such a case with 2 defendants dumping a semi-trailer load of trash at an abandoned strip mall and were spotted by a sheriff's deputy. Both pled to informations so we really didn't reach issues of pleading sufficiency. I simply alleged that the disposal site is not an approved solid waste site; seems clear to me that it is my burden to show that. As to (k) & (l), I think that's the defense's burden and, had it come to that, I would have proven that the land used for the disposal was not owned by either of the defendant's or their agents. Can fax you information I used if you want.

We just indicted a case involving some kids who were allegedly paid to haul a load of tires to an approved site and just took them up the road and started dumping them in the woods when they were caught by the land owner. Evidently the owner made regular lookouts because other people had gotten into the habit of dumping tires, appliances, etc. on his property. I tried to track the statute in my indictment since no one here had ever seen one. I would appreciate anyone who has prosecuted one of these to send me their indictment also and I will do the same.

Call Roger Haseman at Harris County DA's Office. He's head of the pollution division there and I've found him to be very helpful.

Thanks, Jane, I will give Roger a call because I have another one coming up (where commercial rural trash hauler decided the regular landfill prices were too high so he found a friend who was willing to let him use her property for disposal so long as he picked up her trash too). Defendant in the case I originally had in mind pleaded guilty today, so the questions will not have to be answered for his trial. However, the defense attorney was still insisting his client had not violated the law. That case involved a guy who picked up used tires for a fee and then stored them for months (by the hundreds) on his own property before taking them to a proper disposal site. The idea was that he would collect one fee for disposal from the tire dealers and pay a smaller fee to the cement company or whoever for actually disposing of them. Apparently it was cheaper for him to store them himself than pay to have them properly recycled, so his plan changed, much to his neighbors' chagrin. Of course, he also found it unnecessary (probably economically infeasible) to comply with the TCEQ rules in sec. 328.59 et seq. Adm.Code(whereby one can legally engage in such conduct). His attorney was arguing that the tires were not solid waste (since they still had a value and thus were not in his opinion garbage, rubbish, refuse or discarded material) and further that they were only "temporarily" being stored rather than disposed of. I found the statute somewhat difficult to construe myself.