Vidrine v. United States (846 F. Supp. 2d 550, 2011)

TRIAL RULING

DOHERTY, District Judge.

I. Background

This matter involves claims brought by plaintiffs, Hubert P. Vidrine, Jr. and Tammy J. Vidrine, against defendant, the United States of America, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Hubert Vidrine asserts a claim for malicious prosecution; his wife, Tammy Vidrine, asserts a claim for loss of consortium. The claims are based on the actions of investigative and law enforcement officers of the U.S. Government, acting in the scope of their employment. Trial of this matter was to the bench, commencing on June 7, 2011, and closing arguments being heard on June 24, 2011.

Plaintiffs claim on September 5, 1996, agents of the Federal Bureau of Investigation, the Environmental Protection Agency, the United States Marshal Service, the United States Coast Guard, and the Louisiana State Police executed a search warrant on Canal Refining Company, a facility for which Mr. Vidrine acted as manager. On December 14, 1999 (more than three years after execution of the search warrant), Mr. Vidrine was indicted on one count of knowingly storing hazardous waste on the property of Canal Refining Company, in violation of 42 U.S.C. § 6928(d)(2). Shortly thereafter, Mr. Vidrine was taken into custody and subsequently released on bond. On September 17, 2003 (almost four years after the return on the indictment, more than seven years after the execution of the search warrant, and one month before the criminal trial was scheduled to commence), the Government filed a motion to voluntarily dismiss the indictment against Mr. Vidrine, stating, “Developments in this matter since the Indictment have revealed facts and circumstances which, in the interest of justice, warrant dismissal of the Indictment.” See U.S. v. Trinity Marine Baton Rouge, Inc., et al., W.D.La. (J. Melangon), Docket No. 6:99-cr-60053, Document No. 157. On September 18, 2003, the motion was granted by Judge Tucker Melangon, who presided over the criminal proceedings.

On July 23, 2007, plaintiffs filed this civil suit in this Court, based upon the foregoing events; extensive and acrimonious discovery ensued before the magistrate judge, a vigorous motion practice was pursued, and, ultimately, almost three weeks of testimony and over 15,000 documents were referenced or presented to the Court in one manner or another. Having heard all testimony, arguments of counsel, and reviewed all evidence, this Court now makes the following Ruling.

II. Jurisdiction

Jurisdiction in this matter is premised upon 28 U.S.C. § 1346(b)(1) (“United States as defendant”), which provides in pertinent part:

“[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

III. Stipulations and Admissions

Plaintiffs admit their damages cannot exceed $5,180,929.18, as that is the amount of damages asserted in their administrative claim. [See e.g. Doc. 244, p. 5] Additionally, at the trial of this matter, plaintiffs affirmed in open court that their claims for damages are limited to only those damages incurred between the years 2000 and 2010; thus, plaintiffs are not pursuing any claim for damages before 2000 or after 2010. Prior to and during trial, plaintiffs affirmed that although there likely existed probable cause to investigate whether or not a criminal offense had occurred or was occurring at Canal Refinery, at no time did there exist probable cause to indict Hubert Vidrine. Additionally, at the pretrial conference, all counsel stipulated the first three of the necessary six elements of a malicious prosecution claim, as identified by the applicable Louisiana law, had been met in this matter. See Sec. IV(B) (“Malicious Prosecution”), infra. At trial, the Plaintiffs stipulated Plaintiffs incurred $127,000.00 in attorney fees and costs in the defense of the underlying criminal prosecution. Finally, the parties stipulated to the following facts prior to trial [Doc. 244, p. 16]:

A. Plaintiffs are husband and wife. They live at 1375 Hwy 178, Opelousas, Louisiana, 70570, and thus are residents of the Western District of Louisiana.

B. The claims herein are brought against the United States pursuant to the Federal Tort Claims Act (28 U.S.C. § 2671, et seq.) and 28 U.S.C. §§ 1346(b)(1), for money damages.

C. Agents Phillips and Barnhill, and their immediate supervisors during the course of the events at issue in this case, were federal officers who investigated and assisted in the prosecution of Hubert Vidrine were employees of the United States Government, and the conduct at issue occurred while they were acting within the scope of their offices and employment.

D. Venue is proper in that all, or a substantial part of the acts and omissions forming the basis of these claims occurred in the Western District of Louisiana, and arose from the filing and prosecution of charges of criminal conduct against Mr. Vidrine by the United States Government and its agents, in United States v. Trinity Marine Baton Rouge, Inc., et al., Western District of Louisiana Case No. CR 99-60053.

E. Plaintiffs fully complied with the provisions of 28 U.S.C. § 2675 of the Federal Tort Claims Act, as a precondition to filing these claims.

F. This suit was timely filed, in that Plaintiffs timely served notice of their claims on both The Environmental Protection Agency and The United States Department of Justice on or about September 15, 2005.

G. The U.S. Department of Justice assumed responsibility for processing the claim on behalf of both agencies.

H. By July 23, 2007, when the Government had still not completed its review of the claim, Plaintiffs proceeded to file their Original Complaint in this Court.

I. On August 13, 2007, after being served a copy of the Complaint, the government sent Plaintiffs a letter denying Plaintiffs’ claims.

J. This case is brought under the Federal Tort Claim Act for malicious prosecution by agents of the federal government. That claim for relief is governed by the underlying State Law of the State of Louisiana, where the alleged malicious prosecution took place.

K. The EPA-CID and FBI agents whose conduct is at issue, including Ivan Vikin, Keith Phillips, and Ekko Barnhill were at all relevant times “investigative or law enforcement officers” within the meaning of 28 U.S.C. § 2680(h), and were employees of the United States Government, acting within the scope of their offices and employment.

L. Hubert Vidrine was indicted and prosecuted for violating 42 U.S.C. § 6928(d)(2) between June 17, 1996 and September 5, 1996, in his capacity as refinery manager of Canal Refinery in Church Point, Louisiana, for knowingly storing hazardous waste, described as “an oily like” waste material contaminated with chlorinated solvents, in Tank 402 at Canal Refinery, without a Federal or State permit to store, treat, or dispose of hazardous waste under specified federal and state statutes and regulations.

M. With respect to those charges, there is no genuine issue that the following material facts were true between the dates alleged in the indictment:

1. Mr. Vidrine was performing the role of refinery manager.

2. Canal Refinery was located in Church Point, Louisiana.

3. Canal did not have a permit to store or process “hazardous waste.”

N. The government moved to dismiss all charges [in the underlying criminal matter] in September, 2003. The court [Judge Tucker Melancon] granted the Motion.

O. The Parties at trial will not ask any government witness to confirm or deny whether any individual served as a confidential witness or informant during the Environmental Protection Agency’s and the Federal Bureau of Investigation’s investigation of plaintiff Hubert Vidrine.

[Doc. 244, pp. 16-18]

IV. Applicable Law

A. Federal Tort Claims Act

“As the sovereign, the United States is immune from suit unless, and only to the extent that, it has consented to be sued.” Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)). One of the vehicles by which the United States has waived its sovereign immunity is the Federal Torts Claims Act. Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 374 (5th Cir.1987). Through the FTCA, the United States has consented to suits “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

One notable exception to the FTCA is the “intentional tort” exception, which excludes from the FTCA “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Although the FTCA contains an “intentional tort” exception (which excludes from the FTCA “[a]ny claim arising out of ... malicious prosecution ... ”), that same provision then waives sovereign immunity for certain intentional torts, including malicious prosecution, committed by “investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 2680(h); see also Castro v. U.S., 560 F.3d 381, 386 (5th Cir.2009). “ ‘[Investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violation of Federal law.” Id. ,

As noted, “[s]tate substantive law applies in suits brought under the FTCA, ... and we apply the law of the state in which the suit arises....” Cleveland ex rel. Cleveland v. U.S., 457 F.3d 397, 403 (5th Cir.2006); see also 28 U.S.C. § 1346(b)(1), supra. However, certain categories of damages are prohibited under the FTCA, regardless of whether or not they are recoverable pursuant to state law. See 28 U.S.C. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”)

B. Malicious Prosecution

Louisiana recognizes a civil cause of action, “based on fault under C.C. 2315, in favor of one ‘whose liberty has been interfered with in an unwarranted manner’ ”; stated more simply, Louisiana recognizes the tort of “malicious prosecution.” Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).

“Like any other delict under C.C. 2315, such an ‘interference’ must be based on fault of the defendant which causes the damage complained of in order for the plaintiff to recover.” Id. The elements for a claim of malicious prosecution pursuant to Louisiana law are as follows: “(1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.”

Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984); see also Miller v. East Baton Rouge Parish Sheriffs Department, 511 So.2d 446, 452 (La.1987). As noted, at the pre-trial conference, all counsel stipulated elements 1-3 are met, leaving only elements (4) the absence of probable cause for the criminal proceeding, (5) the presence of malice, and (6) damages. [Doc. 249, p. 1]

Pursuant to Louisiana law, a grand jury is to indict an individual when the jurors find that the evidence would justify a conviction absent an explanation or contradiction. La.C.Crim. Proc. Art. 443. This has been cited as a “more stringent” standard, which requires “stronger proof’ than a finding of probable cause for arrest. State v. Huff, 392 So.2d 1046 (La.1980).

The Louisiana Supreme has defined probable cause for arrest, in the context of a malicious prosecution case, as follows:

Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.

The appearances must be such as to lead a reasonable person to set the criminal process in motion; unfounded suspicion and conjucture [sic] will not suffice. Verification may be required to establish probable cause where the source of the information seems unworthy, or where further information about a serious charge would be readily available. The reputation of the accused, his opportunity to offer explanation, and the need for prompt action, if any, are all factors in determining whether unverified information furnishes probable cause.

Miller v. East Baton Rouge Parish Sheriff’s Dept., 511 So.2d 446, 452 (La.1987) (citations omitted). The crucial determination for determining probable cause is whether the investigative or law enforcement officers “had an honest and reasonable belief in the guilt of [the accused] at the time [they] pressed charges.” Jones at 1272 (citations omitted); see also Smith v. State Through Dept. of Admin., 694 So.2d 1184, 1188 (La.App. 1st Cir.1997). “In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. These are, however, simply additional pieces of evidence which comprise the entirety of the circumstances which it is the court’s duty to review.” Jones at 1272.

With regard to malice, Louisiana courts have stated:

[M]alice does not submit readily to definition .... Any feeling of hatred, animosity, or ill will toward the plaintiff, of course, amounts to malice. But it is not essential to prove such ill will. Malice is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to “tie up the mouths” of witnesses in another action, or as an experiment to discover who might have committed the crime. Malice may be inferred from the lack of probable cause or inferred from a finding that the defendant acted in reckless disregard of the other person’s rights.

Miller at 453 (citations omitted).

Of importance to this matter, Louisiana jurisprudence provides that when charges against an individual are dismissed “prior to trial, lack of probable cause and malice are presumed and the burden is on the defendant to prove he acted with probable cause and without malice.” Zerbe v. Town of Carencro, 884 So.2d 1224, 1231 (La.App. 3rd Cir.2004). In this matter, all counsel agree under the facts, the presumption operates and the government has the burden of showing it acted on probable cause and without malice.

Finally, pursuant to Louisiana law, “Damages” are “presumed when the other five elements are established.” Jones at 1273; see also Cleveland, 457 F.3d at 403; 28 U.S.C. § 1346(b)(1); 28 U.S.C. § 2647.

C. Law Applicable to the Underlying Criminal Proceeding

The Indictment issued against Mr. Vidrine in the criminal proceeding alleged in pertinent part as follows:

Between on or about approximately June 17, 1996, and on or about September 5, 1996, in the Western District of Louisiana and elsewhere, HUBERT PAUL VIDRINE, JR., defendant herein in his capacity as refinery manager for “Canal” at Church Point, Louisiana, did knowingly store hazardous waste, namely an oily like waste material contaminated with chlorinated solvents, including but not limited to, Chloroform, 1, 2-Dichloroethane, Carbon Tetrachloride, and Tetrachloroethene, at storage Tank 402 on the property of “Canal” at Church Point, Louisiana, a location facility which did not have a Federal or a State permit to store, treat, or dispose of hazardous waste under Title 42, United States code, Sections 6925 or 6926.

All in violation of Title 42, United States Code, Section 6928(d)(2). [42 U.S.C. § 6928(d)(2) ].

According to the Government’s Response in Partial Opposition to Motion for Bill of Particulars:

Between on or about approximately June 17th 1996, and September 5th 1996, defendants herein, Trinity Marine Baton Rouge, Inc. and Frederick E. McKenzie, did knowingly transport and cause the transportation of hazardous waste solvents without a uniform hazardous waste manifest to an unpermitted facility and defendant, Hubert Paul Vidrine, Jr., did knowingly store or caused to be stored hazardous waste at the Canal Refinery facility, Church Point, Louisiana, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96. (Emphasis added)

[Pl. Ex. 024, at 666] Thus, according to the government, the alleged criminal conduct of Hubert Vidrine, for which he was indicted began on August 13, 1996 and continued to September 4, 1996. [Pl. Ex. 024, at 666]

Title 42, United States Code, Section 6928 provides in pertinent part as follows:

(d) Criminal penalties

Any person who—

(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter—

(A) without a permit ...

shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both.

Stated more simply, Mr. Vidrine was indicted for knowingly storing hazardous waste on the Canal Refinery site without a hazardous waste permit between August 13, 1996 and September 4, 1996. It is undisputed that neither Mr. Vidrine, nor Canal Refinery, had the necessary permit to store hazardous waste during the relevant time frame. What is particularly relevant in this matter is: (1) whether Mr. Vidrine was storing “hazardous waste” at all, and (2) if so, whether Mr. Vidrine was knowingly storing such hazardous waste.

1. Used Oil vs. Hazardous Waste

Complicating this matter somewhat are the RCRA regulations themselves, particularly as they pertain to whether or not the alleged substance, in Canal Refinery Tank 402, was “hazardous waste,” as the government argues, or “used oil,” as plaintiffs argue, the differing categories invoking different regulations and different statutory application.

The RCRA is a regulatory statute intended to protect public health and as such, it should be construed to effectuate its regulatory purpose. United States v. Johnson & Towers, Inc., 741 F.2d 662, 666 (3rd Cir.1984). Congress enacted the RCRA, 42 U.S.C. §§ 6901-6991, to regulate the treatment, storage, and disposal of hazardous wastes by monitoring wastes from their creation until their permanent disposal. Matter of Commonwealth Oil Refining Co., 805 F.2d 1175, 1177 (5th Cir.1986). The purpose of the RCRA regulatory scheme is to provide “nationwide protection against the dangers of improper hazardous waste disposal.” H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S. Code Cong. & Admin. News 6238, 6249.

U.S. v. Sellers, 926 F.2d 410, 416, n. 2 (5th Cir.1991).

In 1980, RCRA was amended by The Used Oil Recycling Act (“UORA”). The UORA “was intended to increase safe recycling and reuse of used oil.” 55 FR 11798-01. The UORA “established that it is in the national interest to recycle used oil in a manner that both protects public health and the environment and conserves energy and materials.” Id. Section 7 of the UORA authorized the EPA to regulate recycled oil, whether or not the Agency classifies such oil as hazardous under subtitle C of RCRA. 12 U.S.C. § 6935(a). In 1985, the EPA proposed to list most types of used oil, including recycled used oil, as a hazardous waste. Id. However, the following year, EPA determined it would not list used oil as a hazardous waste, because the EPA “believed that the listing would discourage recycling of used oil and could result in an increase in the amount of used oil that is disposed of or illegally dumped.” Id. In 1990, the EPA revised subtitle C of RCRA, subjecting additional wastes to regulatory control, and provided the following summary pertaining to its treatment of used oil:

Under today’s rule, used oil will be regulated as a hazardous waste only: (1) If it exhibits one or more of the hazardous waste characteristics defined in subpart C of 40 CFR part 261 (including the TC as finalized today) and (2) if it is disposed of (rather that recycled). On the other hand, used oil that exhibits one or more of the hazardous waste characteristics and is recycled is exempt from regulation ....

55 F.R. 11798-01 (emphasis added) (a distinction that is quite relevant to the arguments presented to this Court). In 1992, the EPA stated, “The regulations in part 279 [“Standards for the Management of Used Oil”] apply to all used oils, regardless of whether or not they exhibit a hazardous waste characteristic.” 57 F.R. 41566-01 (emphasis added). In part, this is because the EPA has found, on multiple occasions, “that used oil is frequently found to contain hazardous halogenated spent solvents.” 50 F.R. 49164-01 (emphasis added), p. 175; see also Id. at 176 (“Since hazardous halogenated compounds — many of them hazardous waste— are frequently found in used oil....”) The EPA further declared Part 279 “cover [s] all used oil handlers and all types of used oils.” Id. (emphasis added). Furthermore, the “EPA presumes that all used oils are recyclable either as a fuel or a feedstock.” Id. (emphasis added).

RCRA, itself, defines “hazardous waste” (as pertinent to the issues before this Court) as follows:

(a) A solid waste, as defined in § 261.2, is a hazardous waste if:

(1) It is not excluded from regulation as a hazardous waste under § 261.4(b); and

(2) It meets any of the following criteria:

(I) It exhibits any of the characteristics of hazardous waste identified in subpart C of this part. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under § 261.4(b)(7) and any other solid waste exhibiting a characteristic of hazardous waste under subpart C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred, or if it continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture. Further, for the purposes of applying the Toxicity Characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in Table 1 to § 261.24 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture.

(v) Rebuttable presumption for used oil. Used oil containing more than 1000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter) ....

40 C.F.R. § 261.3 (emphasis added) (“Definition of hazardous waste,”) that same sub-part of the hazardous waste regulations (i.e. Subpart A) goes on to list certain requirements for hazardous wastes that are to be recycled. See 40 C.F.R. § 261.6. The same section then .states as follows:

Used oil that is recycled and is also a hazardous waste solely because it exhibits a hazardous characteristic is not subject to the requirements of parts 260 through 268 of this chapter, but is regulated under part 279 [“Standards for the Management of Used Oil”] of this chapter. Used oil that is recycled includes any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was originally used). Such term includes, but is not limited to, oil which is re-refined, reclaimed, burned for energy recovery, or reprocessed.

40 C.F.R. § 261.6(a)(4) (emphasis added).

As the Fifth Circuit has explained, “In general, part 279 governs the transportation and management of used oil and used oil residue.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 378 (5th Cir. 2000). “It excludes used oil that is to be used for energy recovery and certain other purposes from the hazardous waste regulations of part 261.” Id. (citing § 279.10). If used oil is intended for energy recovery, it is regulated by Part 279. If, however, used oil is solid hazardous waste, it is regulated by Part 261. Canal Barge at 378. “Solid waste may include discarded material, which is material that has often been abandoned.” Id. (citing § 261.2). If a solid waste contains certain characteristics set forth in § 261.3, it is deemed hazardous waste. Id. (explaining, “For example, solid waste that contains a certain level of contaminants, such as a benzene level greater than .5 ppm, constitutes hazardous waste. See id. § 261.24.”)

“Used oil” is defined as “any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities.” 40 C.F.R. § 279.1; see also 42 U.S.C.A. § 6903. Consequently, by definition “used oil is contaminated by physical or chemical impurities.” Part 279 provides in pertinent part:

This section identifies those materials which are subject to regulation as used oil under this part. This section also identifies some materials that are not subject to regulation as used oil under this part, and indicates whether these materials may be subject to regulation as hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter.

(a) Used oil. EPA presumes that used oil is to be recycled unless a used oil handler [here, such as Canal] disposes of used oil, or sends used oil for disposal [which did not occur]. Except as provided in § 279.11, the regulations of this part apply to used oil, and to materials identified in this section as being subject to regulation as used oil, whether or not the used oil or material exhibits any characteristics of hazardous waste identified in subpart C of part 261 of this chapter.

(b) Mixtures of used oil and hazardous waste—

(1) Listed hazardous waste.

(i) Mixtures of used oil and hazardous waste that is listed in sub-part D of part 261 of this chapter [“Lists of Hazardous Wastes”] are subject to regulation as hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter, rather than as used oil under this part.

(ii) Rebuttable presumption for used oil. Used oil containing more than 1,000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, by showing that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter)....

(2) Characteristic hazardous waste.

Mixtures of used oil and hazardous waste that solely exhibit one or more of the hazardous waste characteristics identified in subpart C of part 261 of this chapter [“Characteristics of Hazardous Waste”] and mixtures of used oil and hazardous waste that is listed in subpart D solely because it exhibits one or more of the characteristics of hazardous waste identified in subpart C are subject to:

(i) Except as provided in paragraph (b)(2)(iii) of this section, regulation as hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter rather than as used oil under this part, if the resultant mixture exhibits any characteristics of hazardous waste identified in sub-part C of part 261 of this chapter; or

(ii) Except as specified in § 279.10(b)(2)(iii) regulation as used oil under this part, if the resultant mixture does not exhibit any characteristics of hazardous waste identified under subpart C of part 261 of this chapter.

(iii) Regulation as used oil under this part, if the mixture is of used oil and a waste which is hazardous solely because it exhibits the characteristic of ignitability (e.g., ignitable-only mineral spirits), provided that the resultant mixture does not exhibit the characteristic of ignitability under § 261.21 of this chapter.

40 C.F.R. § 279.10 (“Applicability”) (emphasis added). In other words, although in no way clearly stated by the regulations, it would appear, mixtures of used oil and a listed hazardous waste are regulated as a hazardous waste under Part 260; mixtures of used oil and a characteristic hazardous waste are regulated as a hazardous waste only if they continue (subsequent to mixing) to exhibit one or more of the following characteristics: ignitability, corrosivity, reactivity, and/or toxicity — however, mixtures of used oil and a solid waste that exhibit solely the characteristic of ignitability are regulated as used oil, as long as the mixture does not also exhibit the characteristic of ignitability. Id,.-, see also June 16, 2011 testimony of Romanowsky.

It must, additionally, be noted that plaintiffs argue (and support with directives issued by the EPA Office of Solid Waste and Emergency Response (“OSWER”)) that the term “mixture,” as used in the RCRA regulations, requires an intentional act of mixing, rather than contamination resulting from normal industry practices. In other words, plaintiffs therefore argue used oil which contains a listed hazardous waste, or used oil containing a characteristic hazardous waste, should be regulated as used oil under Part 279, unless it can be shown that the hazardous waste was intentionally mixed with a hazardous waste, as opposed to having become contaminated during the oil’s use. Under this argued interpretátion of the word “mixture,” if used oil is contaminated with more than 1000 ppm of a listed hazardous waste, plaintiffs argue, EPA will presume the oil was intentionally mixed with the hazardous waste, but if the oil is contaminated with less that 1000 ppm a different result should flow. Id. at § 279.10(b)(1)(ii).

The government argues, in essence, the used oil did not become contaminated during its “use”, but rather, it became contaminated during its storage at Trinity Marine, as the result of poor housekeeping at that barge cleaning facility. Under those circumstances, the government argues, the argued rebuttable presumption, either does not apply at all, as other regulations apply, or it has been shown “mixing” — with the, disputed, requisite degree of intent or purpose — occurred at Trinity sufficient to justify the application of the statute with which Vidrine was indicted. Again, plaintiff, on the other hand, argues the presumption does apply and no samples showed over 1000 ppm of halogens, and thus, Vidrine should not have, if for no other reason than this, been indicted.

It should be noted, the rebuttable presumption for used oil is additionally incorporated by reference in Subpart F of Part 279, which addresses Standards for Used Oil Processors and Re-Refiners, and states as follows:

(a) To ensure that used oil managed at a processing/re-refining facility is not hazardous waste under the rebuttable presumption of § 279.10(b)(l)(ii), the owner or operator of a used oil processing/re-refining facility must determine whether the total halogen content of used oil managed at the facility is above or below 1,000 ppm.

(b) The owner or operator must make this determination by:

(1) Testing the used oil; or

(2) Applying knowledge of the halogen content of the used oil in light of the materials or processes used.

(c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. The owner or operator may rebut the presumption by demonstrating that the used oil does not contain hazardous waste (for example, by showing that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter) ....

40 C.F.R. § 279.53 (emphasis added).

As complex and unclear as the drafting and interplay of these regulations may appear, as will be discussed below, the issue at hand in not truly governed by these regulations.

2. Civil vs. Criminal Law

First, it should be noted civil violations could have been pursued under the civil enforcement division of the EPA or Louisiana DEQ. However, the government chose not to pursue civil penalties against Canal Refinery, but rather, chose to criminally prosecute Hubert Vidrine, the manager at Canal Refinery, which requires knowledge on his part — the civil penalties do not require knowledge. As the law clarifies,' this requisite knowledge, is factual knowledge; a mistake of or ignorance of the law not being a defense to a criminal prosecution under this statute. It is this pivotal legal distinction that defines the inquiry before this Court. Consequently, whether or not the used oil provisions or the hazardous waste provisions would have applied in Hubert Vidrine’s criminal case is not determinative to the inquiry before this Court. Whether or not Hubert Vidrine might have, erroneously or not, believed the used oil regulations with their 1000 ppm presumption applied or not, is not determinative of the issue before this Court: the jurisprudence is clear mistake of law, is not a defense; a mistake of fact, or ignorance of fact, could be a defense to the criminal proceedings.

Consequently, the true threshold inquiry before this Court is a factual one; ie., did Hubert Vidrine knowingly store material that could be found to be hazardous waste, under either set of regulations. Hubert Vidrine argues he did not, and further argues the government bears the burden of proof on this issue, and the government cannot carry its burden to show he did. The government argues Hubert Vidrine did know, or should be found to have known, as he engaged in “deliberate ignorance,” a legal nuance the government argues could have been employed to find probable cause within the criminal context.

V. Findings of Fact

At the outset, this Court notes determining the facts in this case has been complicated by conflicting testimony and the absence of a certain key witness upon whom the government relied in plaintiffs underlying criminal prosecution. The Court’s findings of fact are based upon a careful consideration of the various testifying witnesses’ credibility, the extensive documentary evidence placed into the record, the degree to which the latter corroborated the former, and the reasonable inferences drawn from the established facts.

As already noted, all agree the government bears the burden to overcome the presumption that probable cause was lacking, as well as the inference of malice, and depending on the findings of this Court on those two prongs, an additional presumption as to damages might or might not apply.

Consequently, this Court will first turn its attention to the first prong, the applicable presumption that probable cause did not exist in this matter.

A. Probable Cause

As all parties agree a presumption exists in this matter that there was a “lack of probable cause,” which the government must overcome, therefore, the question before this Court becomes what evidence, if any, has the government put forth to establish the existence of probable cause as to the particular crime for which Hubert Vidrine was indicted.

The allegations contained in the Indictment regarding Mr. Vidrine are found in Count III. Count III alleges (as quoted earlier) that from June 17, 1996 to Sept. 5, 1996, Mr. Vidrine:

[D]id knowingly store hazardous waste, namely oily like waste material contaminated with chlorinated solvents, including, but not limited to Chloroform, 1, 2-Dichloroethane, Carbon Tetrachloride and Tetrachlorethane, at storage Tank 402 and on property of Canal, which did not have a federal or state permit to store ... hazardous waste under Title 42, U.S.C. § 6925 or 6926.

All in violation of 42 U.S.C. 6928(d)(2), Title 30, La. R.S. 2183(F)(1).

However, by way of the “Partial Response to Motion for Bill of Particulars,” the government provided further specificity of the charges against Vidrine:

(a.) Between on or about approximately June 17th, 1996 and September 5th, 1996, defendants herein, Trinity Marine Baton Rouge, Inc. and Frederick E. McKenzie, did knowingly transport and cause the transportation of hazardous waste solvents without a uniform waste manifest to an unpermitted facility and defendant, Hubert Paul Vidrine, Jr., did knowingly store or caused to be stored hazardous waste at the Canal Refinery facility, Church Point, Louisiana, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/28/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96.

(f.) ... The process generating chlorinated solvents as solid waste was Trinity’s barge cleaning operation. These chlorinated solvents are discarded commercial chemical products no longer useful for their original intended purposes.

Accordingly, in the criminal proceedings, the allegations against Mr. Vidrine were that he knowingly stored hazardous waste (originating from Trinity Marine) at Canal Refinery, without a permit, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/28/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96.

At the civil trial before this Court, the determination of whether or not probable cause existed to indict Hubert Vidrine revolved around two issues: (1) whether or not the material Vidrine stored was properly characterized by the government as “hazardous waste”; and (2) if the material was hazardous waste, was there probable cause to believe Hubert Vidrine had knowingly stored such hazardous waste.

1. Whether the material stored in Canal Refinery’s Tank 402 constituted hazardous waste.

Both plaintiffs and defendant devoted much argument to the debate over which portion of the RCRA regulations applied in the criminal context. As will be discussed, Antifreeze Inc., and its owner John Broussard — with whom Canal and Trinity had done business around the time of the events contained in the Indictment against Mr. Vidrine, et al. — were indicted and convicted of crimes involving hazardous waste, which were wholly unrelated to the charges contained in the Indictment issued against Mr. Vidrine, Mr. McKenzie, and Trinity Marine. At trial before this Court, the government argued Broussard, i.e. Antifreeze, Inc., was, in effect, laundering hazardous waste in the following manner: Broussard would receive non-hazardous waste, have it sampled, often provide those clean samples to his customers, and once customer agreed to purchase the product, Broussard (who presumed, as was customary in this industry, his “regular” customers would not re-sample the product) would then mix hazardous waste into the product prior to delivering it to his customers. However, no evidence was presented at this trial that Trinity Marine engaged in such conduct, a fact the government’s own agents admitted during their testimony.

At the trial of this matter, plaintiffs’ expert, Peter Romanowsky, whom this Court found credible, testified it was his opinion the hazardous waste regulations relied upon by the government require a purposeful or intentional mixing. Agent Phillips, utilizing a tortured reading of the regulations and a highly selective application of the facts to the applicable RCRA regulations, in effect, argued poor housekeeping at Trinity equated to a purposeful mixing and thus, triggered application of the desired regulations. Of note, even among EPA personnel, as well as between the EPA and the Louisiana Department of Environmental Quality (“DEQ”), there existed an internal debate as-to whether or not the material for which Mr. Vidrine was indicted constituted “hazardous waste,” or “used oil,” and thus, which regulations might apply — a debate Agent Phillips, in effect, ignored.

While this Court is of the opinion that that which the government accused Mr. Vidrine of storing should be considered “used oil” and not “hazardous waste,” it need not delve into the morass that is the RCRA regulations further than it already has, because in this matter, for the reasons that follow, the Court finds probable cause did not exist to support knowledge on the part of Hubert Vidrine — the lynch pin to any possible criminal prosecution at issue. For the purposes of this Ruling, it is sufficient to note the question exists, and that the government, who must overcome the presumption that probable cause did not exist, and the presumption that malice did exist, failed to establish that this question of debate, as to the applicable law, was fairly presented by the EPA technical expert and case agent, i.e. Phillips, and later Guy Tidmore, to the Department of Justice (through the Assistant United States Attorney assigned to the case), the grand jury, or even to Agent Phillips’ own co-case agent, Agent Barnhill. This Court finds for the reasons noted below Phillips intentionally obscured and manipulated this legal issue.

2. Whether Hubert Vidrine knowingly stored the purported hazardous waste.

The Court will now turn its attention to the pivotal element in the criminal prosecution of Hubert Vidrine — knowledge — and whether the government overcame the presumption that probable cause did not exist that Hubert Vidrine knowingly stored any purported hazardous waste. “The word ‘knowingly,’ ... means that the act was done voluntarily and intentionally, not because of mistake or accident.” For the reasons that follow, the Court finds the government did not overcome that presumption, and addresses below the strongest evidence presented by the government on that issue.

a. Vikin’s investigation

The government relies heavily on the testimony of Agent Vikin, whom the Court found to be credible and competent, as well as the interviews and investigation he conducted, in support of their showing probable cause existed as to the crime for which Hubert Vidrine was indicted. However, for the reasons that follow, this Court finds that reliance to be misplaced,

i. AFI /Broussard

Before discussing the purposes for which the government put forth AFI/Broussard evidence, a bit of background is in order. Canal Refinery first came onto the EPA’s radar during the investigation of AFI and John Broussard. At trial before this Court, EPA agents testified John Broussard, the owner of AFI, was, in effect, laundering hazardous waste, by mixing hazardous waste with other “clean” products, and thereafter, selling off the mixture represented as the “clean” product. EPA Agent Ivan Vikin was the lead agent in that investigation. FBI Agent Ekko Barnhill, then EPA Technical and Regulatory Expert Keith Phillips, and EPA Agent Rick Langlois were also involved in the investigation, including the execution of a search warrant at AFI.

On May 7, 1996, while executing a search warrant at AFI, the government found documentation (namely, bills of lading with designations such as “fuel oil” and “petroleum distillates”), which the government believed indicated Canal had purchased product which was this Broussard hazardous waste mixture, disguised as alternative feedstock (“AFS”), from AFI and John Broussard. Additionally, when the warrant at AFI was executed, a tanker truck was at AFI, being filled with AFI product, and the truck “was destined for Canal Refinery.” Obviously, this piqued the government’s interest, as it gave rise to the possibility that Canal was receiving hazardous waste, and perhaps was aware AFI and Broussard were laundering hazardous waste, and therefore, perhaps, Canal was potentially complicit in AFI and Broussard’s illicit scheme.

Consequently, on September 1, 1996, Agent Vikin executed a “Case Opening Checklist” on Canal Refining; there is no mention of Hubert Vidrine in that document. On September 4, 1996, Agent Vikin obtained a search warrant for Canal Refining Company, on the basis that he had “evidence of treatment, storage, and disposal of hazardous waste identified or listed under RCRA, without a permit.” The application for the warrant states that Agent Vikin had “probable cause to believe that Canal and its employees violated RCRA by accepting and receiving hazardous waste without a uniform hazardous waste manifest from Anti-Freeze Inc. and Tiger Shipyard.” In the section entitled “Facts Establishing Probable Cause” (within the application for a search warrant for Canal), Agent Vikin stated that on May 7, 1996, a search warrant was executed at AFI. During the course of the search warrant, as well as during subsequent interviews of AFI employees, agents learned that AFI had sold “material” to Canal, and AFI had made 5 to 10 deliveries of material to Canal, beginning in 1995. According to the AFI employees, the bills of lading accompanying the shipments of material from AFI to Canal represented the materials, as fuel oil. Agent Vikin further attested, “During the search warrant executed at AFI, on May 7-10, 1996, a tanker trailer at AFI which had been loaded from tank # 14, was destined for Canal as fuel oil. No hazardous waste manifest accompanied the tanker.” (emphasis added).

On September 5, 1996, the search warrant obtained by Agent Vikin was executed at Canal Refinery. Agent Vikin, as lead EPA agent, was in charge of the search; FBI Agent Ekko Barnhill participated on behalf of the FBI as a cooperating agency, Keith Phillips participated as the EPA’s technical and regulatory agent, and numerous other law enforcement agents and agencies participated as well. It was during the execution of the search warrant at Canal, that government agents first discovered Trinity Marine’s connection to Canal. During execution of the search warrant at Canal, a truck, which, according to the government, was carrying “pipeline interface” arrived at the refinery. Although the driver of the truck was an AFI employee, it was established the material in the truck came exclusively from Trinity Marine, and was brokered by Mel Campbell, and not John Broussard. (Mr. Campbell was a chemical broker who had some not fully identified business arrangement with Broussard and AFI, not clearly established at trial. The evidence indicated Broussard and Campbell may have jointly had a trucking company, or Campbell may have leased tanker trucks belonging to AFI and, using an AFI driver, Campbell had the Trinity product transported to Canal.)The material contained in the truck was sampled, and the sample, ultimately, was shown to contain chlorinated solvents/halogens, however, far beneath the 1000 ppm presumptive threshold for used oil.

At trial before this Court (as well as in the underlying grand jury sessions), in an attempt to show the existence of probable cause for the criminal indictment issued against Mr. Vidrine, the government, through, now, Agent Phillips, put forth an abundance of irrelevant, yet prejudicial, evidence relating to AFI and John Broussard. The government vehemently argued that at some unidentified point in time, Canal might have received material from AFI, which the government believed to be hazardous waste, and yet Vidrine was at no time indicted for storing material from AFI and/or John Broussard. Ultimately, the government’s suspicion regarding a possible connection between AFI’s criminal activity and Canal Refinery did not bear fruit, and the allegations in the indictment brought against Mr. Vidrine were limited solely to material received from Trinity Marine, and not AFI. This Court notes, notwithstanding the search warrant at Canal having been executed prior to the return of the indictment against AFI, neither Hubert Vidrine nor Canal was named in that indictment. Had the government believed sufficient evidence existed to indict Hubert Vidrine for matters relating to AFI, it could have made him a co-defendant in the case against Mr. Broussard and AFI, or included such charges in the indictment that ultimately issued against Hubert Vidrine— that did not occur. Consequently, the Court finds the government’s evidence as to AFI and John Broussard is in no way relevant to the existence of probable cause with regard to the crime for which Hubert Vidrine was actually indicted.

ii. Vidrine’s conduct during the interviews conducted on the day of the search warrant

During the execution of the search warrant at Canal, Mr. Vidrine was interviewed by Agent Vikin and then technical and regulatory expert Phillips (as well as Sgt. Chris Viator of the Louisiana State Police) over the course of many hours. The government argues Mr. Vidrine’s conduct during the search warrant, and his changing story as to sampling, as reflected in Agent Vikin’s notes and interview summary, as well as Vikin and Phillips’ testimony, supports a finding of probable cause that Hubert Vidrine knowingly stored hazardous waste. Vikin’s notes and interview summary reflect that during his interview, Mr. Vidrine told agents “every truck” that comes into Canal with pipeline interface is sampled and analyzed for the following constituents: sulfur, distillation properties, flash point, vapor pressure, and chlorinated solvents. When asked how Canal analyzes for chlorinated solvents, Vidrine stated that draeger tubes were utilized. According to the government, Vidrine subsequently revised his statement, clarifying that not all tanker trucks destined for Tank # 402 were sampled and analyzed; regular suppliers, such as Tidewater America, who were trusted to supply pipeline interface free of chlorinated solvents, were not sampled upon every delivery. The government argues Vidrine again revised his statement by stating that the analysis of tanker truck samples were not always run immediately; tanker trucks were consistently allowed to unload their contents into Tank # 402 pri- or to analysis. Vidrine stated “nobody in the industry has the man power to hold up a truck and sample/analyze it.” Additionally, Vidrine, also, noted some samples from tanker trucks from various suppliers are composited then analyzed — ie. product from several tankers is mixed together and then sampled.

At trial, Mr. Vidrine testified on this topic as follows:

Q. ... Isn’t it true that on the day of the search warrant you told Agent Vikin that every shipment of product was tested for chlorinated solvents?

A. No.

Q. Isn’t it true that on the day of the search warrant you told Agent Vikin that once product was pulled from a tanker truck it was walked over to Canal’s lab which had two chemists?

WITNESS: I don’t recall.

Q. Do you recall revising your statement by saying that not all tanker trucks destined for Tank 402 were sampled and analyzed?

A. I don’t recall that conversation. I recall we talked about sampling and what my procedure was for sampling.

Q. Do you recall telling Agent Vikin that you sampled only trusted vendors?

A. No, I don’t recall that.

Q. Do you recall admitting to Agent Vikin that tanker trucks were consistently allowed to unload their contents into Tank 402 prior to analysis?

A. Those were not my words. There was something close to that effect but that wasn’t — I don’t believe — repeat what you said again, because I don’t believe—

Q. I don’t intend to give you'the impression that I’m quoting you. This is not a quote from you. I’m simply asking, isn’t it true that on the day of the search warrant you admitted that tanker trucks were consistently allowed to unload their contents into Tank 402 without testing.

A. Yes and I’ll tell you why. When a batch is tested, when we buy a batch of product, let’s say a compartment of something with several truckloads, we’ve got samples that are tested, and we know what the product is, and it’s already been tested. We do sample the trucks, the trucks every truck is supposed to be sampled. Now they are not stopped, in other words, they stop, a sample is taken, bring it to the lab and the truck is allowed to unload. Then we check the samples. We don’t let the truck sit for hours waiting. We let them unload while we check to make sure it’s consistent with the previous test that we tested of that product.

When samples are brought in before we buy the samples, before we buy a product, that samples is tested for quality control, our quality control specs.

The government, through the testimony of Agents Vikin and Phillips, argues Vidrine’s demeanor changed (ie. “as if he felt like a weight came off of him”) during this discussion about testing, leading the government to believe Vidrine had been caught in a deception of some kind. Although this Court found Agent Vikin to be quite credible, and will accept his observation that Vidrine’s demeanor shifted at that point, Agent Phillips and Mr. Vidrine’s testimony reflected that on the day of the search at Canal, there was a miscommunication between Vidrine and the government agents as to what tests were actually being run at Canal, the substances for which Canal was actually testing, and as to which tests the questions were directed at, at any given time. The miscommunication revolved primarily around the distinction between testing for chlorinated solvents and chlorides. This confusion, born out of chemistry, short hand references to technical matters, and conflicting understandings of the meanings attached to those references, was evident even within the testimony presented at trial, and thus, is not something which this Court finds is indicative of guilty knowledge or a deliberate attempt to deceive. Thus, a change in demeanor upon recognition of the miscommunication, during a high stress interrogation, would not be unexpected or clearly indicative of “guilty knowledge” as the government argues.

At the time of the search warrant, as freely admitted by Hubert Vidrine at trial, Canal had not yet begun testing for chlorinated solvents, and the test kits for chlorinated solvents were located in Mr. Vidrine’s office. The testing that Mr. Vidrine was describing to the agents, was designed to analyze whether a given product was compatible with Canal’s equipment and transformer; the test was not designed to determine whether Canal was in compliance with the regulatory chlorinated compound threshold. At some point during Mr. Vidrine’s interviews, Mr. Vidrine realized the officers were asking about chlorinated solvents, whereas he testified he had previously thought the agents were asking about chlorides. Thus, the Court finds the government’s reliance on Agent Vikin’s observation as to the possible change in the demeanor of Hubert Vidrine is misplaced, particularly when an equally plausible deduction is that after an excessively long interview, riddled with confusion and miscommunication on technical matters, when Mr. Vidrine finally realized he and the agents were speaking about two different substances, he looked “as if he felt like a weight came off of him.”

In sum, the government argues Vidrine “changed his story” during his interview with Vikin and Phillips, which supports the government’s showing of probable cause as to Vidrine’s knowledge. However, the government’s own agent, upon whom the government now relies, who had full knowledge of that which occurred during the interviews with Hubert Vidrine, testified, and his chronology reflects, that notwithstanding Vidrine’s conduct and/or statements during the interviews, he (Agent Vikin) did not feel he had sufficient evidence to refer Vidrine to the Department of Justice for prosecution. Agent Vikin did not open a case file on Vidrine after the Canal search; he did not refer Hubert Vidrine to the AUSA when he referred Canal for prosecution, and when asked why not, he candidly answered, “... I did not have evidence to prove that.” This Court agrees,

iii. Conclusion of Vikin’s Investigation

In August of 1998, after handling the ongoing investigation for almost two years, Agent Vikin was promoted and transferred to North Carolina. Agent Vikin testified that during the majority of his supervision of the investigation, his focus was on AFI, and following “the AFI thread” to determine what entities had potentially accepted hazardous waste from AFI — his focus was not on Hubert Vidrine or Trinity Marine. All the facts relied upon by Agent Vikin to obtain the search warrant for Canal related to AFI and Tiger Shipyard. The referral letter prepared by Agent Vi-kin, requesting prosecutorial assistance, contains no mention of Hubert Vidrine. Agent Vikin testified that at the time he left his Louisiana duty station, he did not believe there was sufficient evidence to open a case file on Hubert Vidrine individually, or to refer Hubert Vidrine to the AUSA for prosecution. Thus, the government’s reliance of Agent Vikin’s testimony to establish the existence of probable cause as to Hubert Vidrine for the crime for which he was indicted, this Court finds, is misplaced.

b. Langlois’ investigation

In August of 1998, after Agent Vikin was transferred to North Carolina, the ongoing investigation was temporarily assigned to EPA Resident Agent in Charge Ricky Langlois. The Court found Agent Langlois to be exceedingly credible, competent, and frank, he exhibited a refreshingly dignified candor. Unfortunately, Agent Langlois only handled the investigation for a few months, as he, too, was in the process of being transferred.

Agent Langlois testified that while he was investigating the case, his focus, like Agent Vikin’s, had been on following the trail of material that had left AFI. However, of great significance in this matter, is that while Agent Langlois was handling the investigation, he, along with FBI Agent Ekko Barnhill, interviewed a person by the name of Mike Franklin. (Mike Franklin would ultimately become — to Agents Phillips and Barnhill — -the “lynch pin” of their case against Hubert Vidrine.) Agent Langlois testified that in his opinion, Mike Franklin did not tell him anything that he, Langlois, did not already know. Agent Langlois further testified Franklin “did not resonate with him,” for a couple of reasons. First, Franklin told the agents he had test results showing one sample from a tank at Trinity Marine tested “over a thousand parts per million total halogens,” and because Mr. Franklin was discussing “total halogen” content, he was likely discussing used oil rather than hazardous waste. Furthermore, Agent Langlois questioned whether Franklin was telling the truth, because Franklin did not provide the lab reports to back up his statement, when clearly the reports were essential to validate the technical nature of the allegations. Agent Langlois testified Franklin’s information was not a “big deal” to him at the time, nor does it “resonate” with him to this day. When viewed in its entirety, as evaluated by Agent Langlois, during his brief handling of the investigation, Age