This affidavit was made by CHP officer Russell Moore. The original document is presented in the above links as GIF files. Alternately, you can download the whole document as a multi-page TIF file.
AFFIDAVIT IN SUPPORT OF SEARCH WARRANTS
Your affiant, Russell A. Moore, California Highway Patrol, being duly sworn, declares that it is reasonably probable that the property and items sought to be seized as hereinafter described are now present at the premises located at and described as set forth below.
Property #1: The property located at and described as: 15864 Ridge Road, Sutter Creek, California, including the business known as K.R.L. PARTNERSHIP, further describe as follows:
A large two story, brick veneered structure with shake roofing. Horizontal wood siding adorns the gable ends and is painted yellow to match the structure's trim. Raised red brick planters exist at the entrance to a steep concrete driveway and are incorporated into a brick archway spanning the driveway width. Gold numerals are inset into the brick planter on the left side of the driveway and depict an address of 15864. A yellow painted wrought iron gate controls access to the property. An approximately six foot high chain link fence surrounds the property and has oleander bushes planted outside of the southern fence line. The residence faces in a southerly direction and is directly north of the T-intersection formed by the dead end of New York Ranch Road at Ridge Road. (For photographs refer to Attachment 1, hereto and by reference made a part hereof)
Property #2: The property located at and describe as: 10 Smalley Avenue, Jackson, California, further described as follows:
A tan wooden, two story, single family structure facing in an easterly direction at the south side of Smalley Avenue. The building is trimmed in brown paint and has a gray felt paper type roof. Cobblestone steps lead up to and give access to an elevated, covered porch and the buildings wooden front door. A chain link fence exists at the east edge of the property. Behind the House on the west end of the property is a detached garage painted in the same paint scheme. (For a photograph refer to Attachment 2, hereto and by this reference made a part hereof.)
Statues/Regulations
The Hazardous Waste Control Law is set forth in section 25100 et seq. of the Health and Safety Code. The following references to code sections will be to the Health and Safety Code (H&S Code) unless otherwise noted.
Section 251.89.5
Definitions: California Heath and Safety Code
25111. "Department" means the State Department of Health Services (DOHS). Per the Governor's Reorganization Plan effective July 17, 1991 the "Department" means the Department of Toxic Substances Control (DTSC).
25113. (a) "Disposal" means either of the following:
- The discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste so that the waste or any constituent of the waste is or may be emitted into the air or discharged into or on any land or waters, including groundwater, or may otherwise enter the environment.
25124. (a) "Waste" means any discarded material that is not included by this chapter or by regulations adopted pursuant to this chapter.
(b) A discarded material is any material which is any of the following:
(1) Relinquished, as specified in subsection c:
c. A material is a waste if it is relinquished by being any of the following:
(1) Disposed of.
(2) Burned or incinerated.
25117. (a) "Hazardous Waste" means either of the following:
(1) A waste of combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either:
(A) Cause, or significantly contribute to an increase in mortality or an increase in serious, irreversible, or incapacitating reversible, illness.
(B) Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
(2) A waste which meets any of the criteria for the identification of a hazardous waste adopted by the department pursuant to section 25141.
(b) "Hazardous waste" includes, but is not limited to RCRA hazardous waste.
(c) Unless expressly provided otherwise, the term "hazardous waste" shall be understood to also include extremely hazardous waste and acutely hazardous waste.
Definitions: (Title 22 California Code of Regulations)
66261.3. Definition of Hazardous Waste
(a) A waste, as defined in section 66261,2 is a hazardous waste if:
(2) it meets any of the following criteria:
(A) it exhibits any of the characteristics of hazardous waste identified in article 3 of this chapter.
(C) it is listed or contains a constituent listed in Appendix X to this chapter.
Appendix X - List of Chemical Names and Common Names for Hazardous Wastes and Hazardous materials.
(a) This subdivision sets forth a list of chemicals which create a presumption that a waste is a hazardous waste. If a waste consists of or contains a chemical listed in this subdivision, the waste is presumed to be a hazardous waste pursuant to the procedures set forth in section 66262.11. The hazardous characteristics which serve as a basis for listing the chemicals are indicated in the list as follows: (X) toxic, (C) corrosive, (I) ignitable, and (R) reactive.
355. Gasoline (I)
(b) this subdivision sets forth a list of common names of waste which are presumed to be hazardous waste unless it is determined that the waste is not a hazardous waste pursuant to the procedures set forth in section 66262.11. The hazardous characteristics which serve as a basis for listing the common names of wastes are indicated in the list as follows: (X) toxic, (C) corrosive, (I) ignitable, and (R) reactive.
(The following common names hazardous waste characteristics are listed in paragraph (b))
Fuel Waste (X,I)
Authority: Health and Safety Code
25180. Department or officers authorized to enforce standards and regulations:
- The standards in this chapter and regulations adopted by the department to implement this chapter shall be enforced by the department or any local health officer or any local public officer as designated by the director.
- In addition to the persons specified in subdivision (a), any traffic officer, as defined by Section 625 of the Vehicle Code, and any peace officer specified in Section 830.1 of the Penal Code, may enforce Section 25160, subdivisions (a) and (e) of Section 25163, subdivision (b) of Section 25169.1, and Sections 25250.8, 25250.18, 25250.19, and 25250.23. Traffic officers and peace officers are authorized representatives of the department for purposes of enforcing the provisions set forth in this subdivision.
- Local health officers, or their representatives, or both, shall enforce the regulations adopted by the department pursuant to Section 25157.3.
- Notwithstanding any limitations in subdivision (b), a member of the California Highway Patrol may enforce Sections 25185, 25189, 25189.2, 25189.5, 25191, and 25195, and Article 6 (commending with Section 25160) and Article 6.5 (commencing with Section 25167.1), as those provisions relate to the transportation of hazardous waste.
Facts
The above declarations are supported by and based on the following facts:
Your affiant, Russell A. Moore, has been a peace officer with the California Highway Patrol (CHP) since December 11, 1977). Your affiant was assigned to the uniformed patrol division where your affiant worked road patrol as a State Traffic Officer charged with the investigation of traffic accidents, investigations of auto theft cases, and the general enforcement of the laws of the State of California. Your affiant has conducted initial investigations of such crimes as theft, robbery, narcotics, and manslaughter, and the illegal storage and transportation and disposal of hazardous wastes and materials. Your affiant has interviewed the victims, witnesses, and some of the suspects who told how and why the crimes were committed. Your affiant has also been personally involved in the arrest of several hundred suspects.
In August of 1987 to November 1988, your affiant was assigned as an investigator with the California Highway Patrol, Special Investigations Unit. As an investigator, your affiant has investigated numerous cases involving auto theft, manslaughter, fraud, burglary, and cases involving the possession of narcotics, sales of narcotics, and the transportation of narcotics.
In November 1989, your affiant was assigned as a plain-clothes investigator with the California Highway Patrol, Valley Division, Environmental Investigation Unit.
Your affiant is a member of the Hazardous Materials Task Force for Sacramento, Placer and San Joaquin Countries. As a Task Force member, your affiant has been called upon to conduct investigations of possible hazardous materials and hazardous waste violations. Your affiant has attended task force meetings, conferences, advanced hazardous materials investigation seminars, and conducted training classes for uniformed personnel, through the California Highway Patrol's Valley Division, which is comprised of 18 area commands.
Your affiant has attended and graduated from the California Highway Patrol Academy and has returned to the California Highway Patrol Academy for refresher and updated training, which included the storage, transportation, and disposal of hazardous materials.
Your affiant has attended and completed courses sponsored by the California Specialized Training Institute (CSTI). The course work as CSTI included over 600 hours of training and covered the following subject areas: hazardous materials investigators training, hazardous materials and environmental monitoring, hazardous material incident response operations, on-scene manager, drug laboratory investigations safety, and certification of affiant as a hazardous materials specialist, certificate number 25.
Your affiant currently serves as the vice-president of the California Hazardous Materials Investigators Association (CHMIA).
Your affiant has proctored numerous environmental crimes basic and advanced courses throughout the State of California. The courses were certified by the California Specialized Training Institute.
Your affiant has completed the Federal Advanced Environmental Crimes Investigations course conducted at the Federal Law Enforcement Training Institute in Glynco, GA. Your affiant is also certified by the Federal Environmental Protection Agency as an environmental crimes instructor.
On October 22, 1998, your affiant met with Amador County D.A. Investigator Ron Hall regarding an investigation into the illegal removal of an underground storage tank at the old Mason Oil - Exxon service station, 505 Sutter Street, Jackson, CA. Investigator Hall provided your affiant with pertinent background information regarding the property and its owner of record, David Sterling Mason III. Investigator Hall's investigation reveals that David Mason III was desperate to secure a buyer for the property in question due to impending foreclosure proceedings against another Mason III property. An East Coast lender reportedly held a $80,000 note secured by Mason III's residence at 611 Preston Avenue, Ione, CA. On an undetermined date, David Mason III contacted Robert Roland Womack to ascertain his interest in the property since Robert Womack's son, Roland Womack, owns and operates a dental practice on the adjacent parcel. The original asking price for the property was reportedly well over $100,000.00, for the property that David Mason III knew was contaminated from earlier underground storage tank removal/testing/ at the 505 Sutter Street property. However, that asking price met with a negative response from Robert Womack, because he later claimed to be uninterested in owning a service station. At a later date, one much nearer to the due date of Mason III's outstanding note, Robert Womack reportedly offered Mason III $60,000 for the property with the understanding that Mason would be responsible for any environmental issues that might be discovered. (See Attachment 3), the contract between K.R.L. PARTNERSHIP and DAVID MASON III, apparently the partnership is named after 3 of the 4 children of Robert Womack, Kimberly, Roland and Larry) The preceding information was derived from Investigator Hall's investigation and statements made during interviews by Investigator Hall of Robert Womack and George Ryan of Western Land & Title in Jackson. Investigator Hall advised your affiant that Mr. George Ryan drew up a Deed of Trust and the Womack families channeled monies into a loan to David S. Mason III and Miriam E. Mason, a note purportedly now officially held by Roland and Nadine Womack, both signing on behalf of K.R.L. PARTNERSHIPS.
Your affiant viewed and was provided a copy of videotape that had been provided by Mr. Womack. Investigator Hall informed your affiant that Mr. Womack delivered the videotape to the District Attorney's Office front counter on August 25, 1998. The tape is a partial, but lengthy video tape of the demolition work conducted at 505 Sutter Street on May 2, 1998, and includes narrations by Mrs. June Womack, Robert Womack's wife, Investigator Hall also provided your affiant with copies of interviews already conducted, written reports, including but not limited to those submitted by Code Enforcement Officer Linda Van Vleck, Amador County Department of Environmental Health Specialist Robert Fourt, and prepared minutes of the Amador County Land Use & Community Development Committee meeting held on May 14, 1998.
Prior to departing the Amador County District Attorney's Office, your affiant had occasion to meet with Mr. Larry White, City of Jackson Building Inspector. Inspector White provided your affiant with a copy of a letter-to-file that Inspector White had prepared revoking demolition permit #4171, erroneously issued to Robert Womack on May 1, 1998. (See Attachment 4, attached hereto and by this reference made a part hereof.) Inspector White told your affiant that justification for this action stemmed from the incomplete and misleading information Robert Womack provided on the permit application, plus the fact that neither Robert Womack nor Roland Womack was the owner of record. Inspector White further related to your affiant that as a minimum, a site inspection should have been conducted to verify that all applicable agencies and utilities had been properly notified prior to the permit's issuance. Inspector White, therefore, deemed the application was made in violation of section 106.4.3 of the Uniform Building Code. Inspector White also told your affiant what Robert Womack had shown up at the main counter of the Building Inspection Office on September 2, 1998 requesting building department information in regards to all permits issued at 505 Sutter Street. At that time, Inspector White and City of Jackson office clerk Sherry Martin observed that Robert Womack had a mini-cassette type tape recorder in his breast pocket. Inspector white advised city Manager John Brown of his observation request sheet and direct him to fill it out and that it would be processed accordingly
Upon review of the videotape, interview reports, and supporting documents supplied by D.A. Investigator Hall, submitted reports of Code Enforcement Officer Linda Van Vleck, Amador County Health Specialist Robert Fourt, Amador County Building Inspector Larry White, and the meeting minutes of the Land Use & Community Development Committee, your affiant believes the following events occurred involving the illegal removal of an underground storage tank (UST) at 505 Sutter Street and the subsequent illegal transportation, disposal, and storage of hazardous waste relative to that demolition on May 2, 1998 and May 3, 1998.
Your affiant is aware that permits were obtained from the City of Jackson Building Department for replacement of gas lines and tanks at the 505 Sutter Street Site during the summer of 1988, these building permits #2300 and #2327 were obtained by Mr. Mel Nye of Oil Equipment Service, a licensed contractor performing work for Mason Oil Company. Your affiant is also aware that a bid proposal was submitted by Keith Tallia, Oil Equipment Service, to David Mason III regarding the removal of a UST located at 505 Sutter Street, Jackson. The bid was for a minimum of $5,594 and is dated April 13, 1998. (See Attachment 5, attached hereto and by this reference made a part hereof.) The fact that David Mason III had legally removed a leaking underground storage tank at 505 Sutter Street in the early 1990's in conjunction with the above mentioned bid strongly suggests, that David Mason III was well aware of the costs and requirements necessary for the lawful removal of and UST and appropriately deal with any associated issues, including long term environmental concerns.
Your affiant is aware that a memorandum was submitted by Michael Israel of Amador County Environmental Health regarding a conversation held at the Environmental Health Department's main counter between Robert Womack and Michael Israel in early to mid-April of this year regarding the requirements for closing an underground storage tank in place. At that time, Mr. Israel advised Robert Womack that at a minimum there would have to be soil samples taken from below the tank, and that the tank would have to be filled with an inert material. Israel further told Robert Womack that he needed to retain a qualified consultant to perform the necessary work. Israel went on to advise Robert Womack that he needed to speak to Robert Fourt of Environmental Health for specifics on tank closure requirements since Mr. Fourt directly oversees that program. In checking with Robert Fourt, Mr. Fourt denies that he was ever contacted by Robert Womack regarding any tank closure requirements prior to the tank's removal on May 2, 1998. In fact, Robert Womack has told investigator Hall that he did not contact Mr. Fourt prior to removing the tank. Additionally, Womack denies ever having the above-mentioned coversation [sic] regarding permitting with Israel.
Your affiant is aware that on Saturday, May 2, 1998 and Sunday, May 3, 1998, equipment owned by Wolin & Sons was utilized to demolish the Exxon service station at 505 Sutter Street. Demolition equipment was operated by William A. Wolin, (AKA: Bill Jr.), whose services were paid for in cash by Robert Womack. Your affiant is further aware that trucking services were provided with the use of no less than two trucks belonging to Mark T. Sherrill Trucking. One of the trucks used in the removal of demolition debris was driven by Mark Sherrill and the other by Nick Hernandez, a Sherrill employee. Trucking services and any dump fees were also paid in cash or by check written by Robert Womack. Besides the demolition work, the people on site that weekend also excavated and removed of a 2,000 gallon underground storage tank plus associated piping and appurtenances. Your affiant is aware that as many as ten to twelve truckloads of material were hauled from the site on May 2, 1998, and unknown additional loads on Sunday, May 3, 1998, yet weight tags exist for a maximum of six loads into Buena Vista Landfill. Those weight tags reveal that the last load accepted at the landfill arrived at 10:48 AM. The videotaped footage indicates material from the demolition was dumped all day, including numerous loads in the afternoon, thus leading to the strong inference of illegal dumping. Further, the loads of demolition debris in the afternoon of May 2, 1998 appear to be turning south onto Hwy. 49, which is the opposite direction of the landfill. In checking with the landfill on October 28, 1998, Investigator Hall determined it was virtually impossible that any of the demolition debris taken from the site after 10:48 on May 2, and including any of the loads removed on May 3 went to a licensed landfill. Your affiant is aware that at approximately 7:00 PM on May 2, 1998, the UST was excavated and placed upon a flatbed trailer, which was pulled by a truck owned by Mark Sherrill for transport to an unknown location.
The aforementioned excavation activities were conducted without permits from, or oversight by, Amador County Health officials as required by California Health & Safety Code, Chapter 6.7, Section 25298. Sunday, May 3, 1998, the project continued with the slight over-excavation of the property, including the removal of the soil that had been taken from the contaminated tank pit the previous day. This was apparently done to the lot in order to prepare it for the building that Robert Womack was planning on building at the site of the former gas station. Early on May 4, 1998, Robert Womack spoke to Robert Fourt about the unlawful tank removal. During the 8:30 a.m. conversation, Robert Womack informed Robert Fourt that: he was the buyer of 505 Sutter Street; that he had been informed by Mr. Gary Clark that a county permit was not required; that no permits had been requested or received from the county; that the tanks has been dry iced prior to removal; that the tanks were removed by Wolin Construction; and that the material from the demolition had been transported to the Buena Vista landfill. Additionally, during this Monday, May 4, 1998 conversation, Mr. Robert Fourt's supervisor Mr. Michael Israel joined the conversation and reminded Robert Womack of a early April conversation where Israel had describe to Robert Womack the closure procedures for underground storage tank. Your affiant is aware that a approximately noon on May 4, 1998, Mr. David Mason III contacted the Amador County Department of Environmental Health to obtain an application for an underground storage tank closure permit and proceeded to pay permit fees of $100.00 for two underground storage tanks. He stated that he did not know the disposition of the tank, the piping, the soil nor the debris. Additionally, David Mason III did not know where the rinsate from the tank had been disposed of.
Womack then informed members attending the Land Use & Community Development Committee that the UST removed from 505 Sutter Street had been given to an unidentified man who Womack had met at Mel and Faye's Diner the morning of the demolition and excavation. Mr. Womack stated that he was unable to identify the vehicle that had been used to transport the tank.
Your affiant is aware that after a meeting on September 2, 1998, with Investigator Hall, Deputy District Attorney David J. Irey, and several of the Individuals who participated in the demolition, the UST in question appeared on September 7 or September 8 and at the time was located at Jim Thorpe oil, 351 N. Beckman Road, Lodi, CA. This transportation of hazardous waste was specifically warned against during the September 2, 1998 meeting. When initially asked, Richard Thorpe, of Thorpe Oil was unable to identify the individual or the vehicle used to transport the tank to Lodi.
Thorpe did fax a copy of a Bank of Amador check, number 1903, dated September 16, 1998, which was written on a KRL Partnership account signed by R. Womack. The memo portion of the check has the notation "(Bob) draw." The check also shows a 15864 Ridge Road, Sutter Creek, CA address for KRL Partnership. Additionally, at the top of the check was listed the phone number of (209) 296-xxxx for K.R.L. PARTNERSHIP. This helps to point out that some if not all of the K.R.L. PARTNERSHIP records should be at the 15864 Ridge Road Property. It should be noted that this is the same address as Robert Womack's residence. The amount of the check was for $1,017.50. (See Attachment 6), attached hereto and by this reference made a part hereof.) Richard Thorpe also provided a Uniform Hazardous Waste Manifest # 96591152 to show the lawful transportation and disposal of the UST. (See Attachment 7, attached hereto and by this reference made a part hereof.)
At approximately 1330 hours on October 28, 1998, your affiant contacted Nancy Lancaster of Cal EPA, Department of Toxic Substances Control, to verify that Mark T. Sherrill is not a certified hazardous waste transporter. Ms. Lancaster advised that neither Sherrill nor his company is registered with the Department of Toxic Substances Control nor is there any record of his being so registered in the past.
Based on the training and experience of your affiant, information and interviews provided by District Attorney Investigator Hall, reports prepared by Health Specialist Fourt, Code Enforcement officer Van Vleck, and Building Inspector White, it is your affiant's opinion that Robert Womack, David Mason, and Mark Sherrill committed numerous felony violations of the law when they conspired to: unlawfully remove and dispose of an underground storage tank, related contaminated piping, and soil in violation of Health & Safety ode Section 25189.5(b) (felony disposal of hazardous waste), Health & Safety Code Section 25189.5(c) (felony transportation of hazardous waste, Health & Safety Code Section 25189.5(d) (felony storage/treatment of hazardous waste), and are therefore additionally, in violation of Penal Code Section 182(a)(1) (felony criminal conspiracy).
Based on the information from Hall, Van Vleck, White, Israel, Fourt, and Thorpe, the conspiracy to dispose, transport and store hazardous waste by Womack, Mason and Sherrill began in April 1998 and continues through this date. Therefore, records as they relate to any and all business transactions between KRL Partnership, Robert Womack, David Mason, and Mark Sherrill must be examined and seized to determine other possible witnesses and or defendants involved in the above illegal activities. Your affiant prays that a search warrant will be issued for the residence of 15864 Ridge Road, Sutter Creek, CA, and the business known as Mark Sherrill Trucking, 10 Smalley Avenue, Jackson, CA, as more fully describes above to search and seize the items in the places describe above.
/s/ RUSSELL A. Moore, Investigator
California Highway Patrol