Illegal dumping, annexation and demolition, seafood trade secrets, and more on oysters.

The uncontrolled dumping of septic-tank wastewater is an environmental health threat. If such dumping occurs, what can the dumper be charged with, how can one prove the dumping was illegal, and what penalties may be imposed? Those are the issues addressed by Case 1 in this month's column.

The second and third cases are about the use of environmental health concerns to justify an annexation by a city and to condemn a house.

The last two cases are about food safety. Occasionally environmental health efforts are frustrated or slowed because of a business's claim that a "trade secret" is involved. Case 4 concerns whether a restaurant's hazard analysis critical control point (HACCP) plans or recipes are a trade secret. Case 5 revisits the problem of Vibrio fulnificus in oysters. Unlike earlier discussions, (1) this case is solely about a restaurant's product liability for raw oysters and its duty to warn.

Case #1: Illegal Discharge of Septic Waste (2)

The defendant owned a trailer park in Canutillo in El Paso County, Texas. The park was about 1,428 feet from and 2 feet higher than the Rio Grande River. Sewage was disposed into a 10-foot-deep, 6,000-gallon cesspool that was allowed because it had been installed before August 24, 1988. In November 2000, the owner twice had the cesspool commercially pumped.

By the summer of 2001, the owner decided to pump, on at least three occasions, the cesspool waste directly onto nearby ground. He had no wastewater discharge permit, but the wastewater never directly flowed into the river. This pumping was filmed by one of the residents.

The resident gave the video to Rose Marie Dominguez of the El Paso County Health Department, who contacted Deputy Rodolfo Payan of the El Paso County Sheriff's Department Environmental Crimes Unit. Then Ms. Dominguez visited the park and observed green vegetation in the area, but the heat and sandy soil had allowed any liquid to quickly evaporate and percolate. Next, Deputy Payan visited the park several times in August 2001 and observed swampy water underneath a trailer and very green grass in certain areas. He noticed a "strong smell of feces around the trailer park."

A sample from a nearby well was negative for coliforms. No official collected any soil samples from the trailer park for either soil typing or contamination testing. No wells were installed to measure groundwater depths. Furthermore, the Texas Natural Resource Conservation Commission (TNRCC) allows installation of leachfields 2 feet above groundwater. Nonetheless, the owner was charged with three misdemeanor offenses of intentional and knowing unauthorized discharge of a waste or pollutant into or adjacent to water in Texas that caused or threatened water pollution (Texas Water Code [section] 7.145).

At trial, the regional manager of the TNRCC Waste and Waters Section, who was familiar with the groundwater elevations in the area, estimated the groundwater depths on the defendant's property at 8 to 20 feet depending on the elevation of the Rio Grande River, the season, irrigation activity, and rainfall. He said a direct connection existed between the groundwater and the river. The regional manager knew the soil in the area was a sandy loam with a permeability of 1 to 20 inches an hour and an average permeability of 10 to 12 inches per hour. Despite the allowance of a drain field 2 feet above groundwater, he believed 8 to 12 feet of soil were minimally necessary to filter out microorganisms, but several hundred feet of soil were necessary to filter efficiently.

One witness for the defendant had seen a well drilled at the trailer park, with groundwater depth at 22 feet. Another witness was an environmental engineer who agreed that the soil was a sandy loam. He believed microorganisms would be effectively removed in just a few feet of soil. In addition, he had experimented with the defendant's very dry soil and percolation rates, and discovered that 2 inches of water percolated only 6 inches down into the ground, which was far short of the groundwater depth.

Despite the conflicting environmental opinions, the jury believed the state's witnesses and convicted the defendant on all three counts. He was fined $20,000 with $18,500 probated, and sentenced to one year in jail with an additional two years probated.

The first issue raised by the defendant was that he should have also been charged with violation of the Texas Health and Safety Code [subsection] 341.013(b) and (c), and 341.014(a), (b)(2), and (e) for the improper disposal of waste and human excreta. This argument may sound ridiculous at first, but it is understandable, because violations of the Texas Health and Safety Code carry a smaller penalty (no jail and fines of only $10 to $200 per violation) than the Water Code and require proof that the disposal methods 1) were unapproved and 2) caused a public health nuisance, or that the discharged material was a potential instrument or medium for disease transmission. If the owner had also been charged with violating the Texas Health and Safety Code, the jury might have convicted him only of the lesser offense.

The state had chosen, however, to charge him only with violating the Water Code by causing or threatening water pollution. Since the Texas Health and Safety Code sections required different evidence than the Water Code, the court of appeals decided that the state did not have to charge the defendant with both offenses, and that the judge did not have to instruct the jury to consider the lesser offense.

The second argument of the owner was that the evidence was insufficient to convict him. Since the jury had accepted the testimony of the state's witnesses over the testimony of the defendant's witnesses, however, the conviction was upheld.

The final argument was a claim that a condition of the defendant's probation was improper. The trial judge had made it a condition of probation that the defendant hire an engineer to design a new sewage disposal system, submit the design for approval, and commence construction within 30 days of approval. Although this probation condition was unusual, the appeals court found that a trial judge "may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant." In fact, the defendant had agreed to this condition before the trial judge and only objected to it on appeal. The appeals court said such an objection on appeal is too late.

This case certainly affirms the importance of preparation for trial, credibility with the jury, and use of lay witnesses and their videos. The jury's verdict also reflects the public's abhorrence of raw sewage being dumped onto the ground.

Case #2: Environmental Health Issue in Annexation (3)

Municipal annexations are usually hotly contested political and legal battles. There are many issues, but the main ones are generally increased taxes and provision of municipal services.

Macon, Mississippi, had been incorporated in 1836 with 1.5 square miles. It had never annexed before, and it now sought to annex an additional two square miles containing 31 businesses and 231 residences with 690 occupants.

In Mississippi, a city has to prove that a proposed annexation is reasonable. Many factors may be considered, but one was as follows: A witness for Macon was Eugene Herring, an environmental health program specialist with the Mississippi Department of Health. Mr. Herring testified about widespread failing septic tanks and the grave health hazards posed by raw sewage located near private drinking water wells. He explained that a variety of diseases are associated with untreated sewage and that the area's soil was unsuitable for onsite sewage disposal systems. In the annexation area, 90 percent of the residents and 74 percent of the businesses used municipal water, and they had no health hazards. In addition, 64.5 percent of the dwelling units and 56.4 percent of the commercial buildings in the proposed annexation area were already on city sewers and experienced no sewage problems.

Since Macon intended to install sewer lines in the unserved areas and provide other services, its annexation request was considered reasonable and was approved by the court.

Case #3: West Nile Virus Concern (4)

The city of Stamford, Connecticut, wanted to demolish a dilapidated house. The court ordered the house demolished but denied the city an award of attorney fees or fines against the owner. One of the justifications for the demolition order was that "the defendants never completed the work on the building, leaving it without a roof and subject to the elements, and, as such, mosquitoes infected with the West Nile virus were found on the premises."

This case indicates that public awareness and concern over West Nile virus and its mosquito vectors may be used to support environmental health programs and improvements, particularly in the housing field.

Case #4: Trade Secrets (5)

After about eight years of cooking experience, a man became a "kitchen-manager-in-training" with a restaurant chain (28 restaurants), called Legal Sea Foods, Inc. (LSF), in Burlington, Massachusetts. Several weeks later he was promoted to kitchen manager, and by October 2000, he was made a chef and transferred to LSF's Paramus, New Jersey, restaurant.

LSF operates its restaurants through a central commissary where its seafood is processed and then transported by truck or airplane to its restaurants. The interval between delivery of the seafood to the commissary and service to customers is four to six days. To control food quality and safety, LSF developed HACCP plans for each of its restaurants.

As a chef, the employee had access to all LSF'S seafood recipes and its HACCP plans. The seafood restaurant industry is highly competitive, and recipes and cooking techniques are carefully developed and closely guarded. Therefore, LSF required its chefs to sign a non-compete agreement. The agreement required that an employee not work in another seafood restaurant within 50 miles of an existing or planned LSF restaurant for one year after leaving.

The employee resigned effective May 31, 2003, and went to work immediately with a seafood restaurant only 17 miles away from an LSF restaurant. At the new restaurant, he prepared menu items and sauces, managed cooks and runners, and closed. After he refused to relocate--but without any evidence that he had actually disclosed any confidential information--LSF sued to enforce the non-compete agreement.

In Massachusetts and New York, a non-compete agreement is upheld if it is no greater than is required for the protection of the legitimate interest of the employer, does not impose undue hardship on the employee, and is not injurious to the public. The key issue in the case was what legitimate secrecy interest LSF had, if any. LSF had a legitimate secrecy interest if the HACCP plan or recipes were trade secrets, but no interest if they were common knowledge.

Generally, the court said, a trade secret is "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." There are six factors to consider:

1. the extent to which the information is known outside of the business;

2. the extent to which it is known by employees and others involved in the business;

3. the extent of measures taken by the employer to guard the secrecy of the information;

4. the value of the information to the employer and its competitors;

5. the amount of effort or money expended by the employer in developing the information; and

6. the ease or difficulty with which the information could be properly acquired or duplicated by others.

In this case, the LSF HACCP plan was found not to be a trade secret. Significant portions of LSF'S HACCP plans had been incorporated into similar plans developed for the Food and Drug Administration (FDA), which were then in the public domain. HACCP information and self-inspection reports of LSF were available to employees not covered by non-compete agreements. Finally, LSF's seafood commissary operation was distinct from the operation of the former employee's new restaurant.

LSF'S "core recipes" were published in the Legal Sea Foods Cookbook. Most recipes were widely known outside LSF and were easily acquired from other sources. Many non-covered employees had access to the recipes. So the recipes were not trade secrets.

Since LSF had no trade secrets that might be disclosed by the former employee, the non-compete agreement was unenforceable.

Case #5: Product Liability for Raw Oysters (6)

China Town restaurant in Louisville, Kentucky, served raw oysters at its seafood bar. No warnings were posted. In November 1998, a customer with an existing liver problem ate some raw oysters and developed septicemia from Vibrio fulnificus. He survived, and he and his wife sued the restaurant--though not the health department. In fact, the Kentucky food safety program was never mentioned. The trial court dismissed the case, and the plaintiffs appealed.

Three types of product defects create liability: 1) manufacturing defects or deviations from the product's design that create an unreasonable risk of harm, 2) design defects or unreasonable risks of harm inherent in the product's design, and 3) warning defects or unreasonable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings. The presence of Vibrio fulnificus in raw oysters is neither a manufacturing nor a design defect because it occurs naturally, screening is ineffective, and only persons with certain medical conditions are threatened. The court held that "Vibrio notwithstanding, it is not per se unreasonable to market raw oysters."

Nonetheless, the potential presence of Vibrio and its serious consequence to some consumers could constitute a latent defect. Generally, a manufacturer must warn of latent defects that are reasonably foreseeable if the risk is likely and substantial. The more serious the risk, the more likely the need for a warning. "A reasonable consumer could expect to be warned" about the danger of Vibrio.

Usually, liability for a defective product makes only the manufacturer liable. The court noted, however, that several Gulf States had already required restaurant warnings about consuming raw oysters. Moreover, the actual oyster shipment had a tag with a warning about consuming raw oysters. Therefore, the restaurant had a duty to warn its customers, and the case was remanded for a jury trial. This case could be used by all retail food safety personnel to impress on restaurant operators the legal need to warn consumers about dangerous products.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at sikora@mail. etsu.edu.

References

(1) See Gregor v. Argenott Great Central Ins. Co., 851 So.2d 959 (La. Sup. Ct. 2003) and Grayson v. State ex rel. Department of Health & Hosp., #2001-CA-0720 (La. Ct. App. 2002), discussed in this column in the September 2003 issue of the Journal of Environmental Health, 66(4), at page 37 and in the May 2003 issue, 65(9), at page 30.

(2) Heiringhoff v. State, 2003 Tex.App. LEXIS 7197-7199 (Tex. Ct. App. 2003) http:// www.lexis-nexis.com (8 Oct. 2003).

(3) In re: Enlargement and Extension of the Boundaries of the City of Macon, Mississippi, 2003 Miss. LEXIS 474 (Miss. Sup. Ct. 2003) http://www.lexis-nexis.com (8 Oct. 2003).

(4) City of Stamford v. Stephenson, 78 Conn. App. 818, 829 (A.2d 26 2003).

(5) Legal Sea Foods, Inc. v. Calise, 2003 U.S. Dist. LEXIS 14527 (S.D.N.Y 2003) http:// www.lexis-nexis.com (8 Oct. 2003).

(6) Edwards v. Hop Sin, Inc., 2003 Ky. App. LEXIS 213 (Ky. Ct. App. 2003) http:// www.lexis-nexis.com (8 Oct. 2003).

Vincent A. Sikora, J.D., LL.M., R.P.S. Associate Professor, East Tennessee State University