162 F.3d 1015 (9th Cir. 1998), 98-30063, United States v. Iverson

Docket Nº:98-30063.
Citation:162 F.3d 1015
Party Name:Serv. 1065, 98 Cal. Daily Op. Serv. 9028, 98 Daily Journal D.A.R. 12,645 UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. IVERSON, Sr., Defendant-Appellant.
Case Date:December 11, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1015

162 F.3d 1015 (9th Cir. 1998)

Serv. 1065,

98 Cal. Daily Op. Serv. 9028,

98 Daily Journal D.A.R. 12,645

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas E. IVERSON, Sr., Defendant-Appellant.

No. 98-30063.

United States Court of Appeals, Ninth Circuit

December 11, 1998

Argued and Submitted Oct. 7, 1998.

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James L. Magee and Frederick O. Frederickson, Graham & Dunn, Seattle, Washington, for defendant-appellant.

Helen J. Brunner, Assistant United States Attorney, and Katrina C. Pflaumer, United States Attorney, Seattle, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, Senior Judge, Presiding. D.C. No. CR-97-05263-JET.

Before: BOOCHEVER, REINHARDT, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

A jury convicted defendant of four counts of violating federal water pollution law, as embodied in the Clean Water Act (CWA), the Washington Administrative Code (WAC), and the City of Olympia's Municipal Code (Olympia code). The jury also convicted defendant of one count of conspiring to violate the WAC or the CWA. Defendant appeals, arguing that: (1) the district court misinterpreted the CWA, the WAC, and the Olympia code; (2) those provisions are unconstitutionally vague; (3) the district court erred in formulating its "responsible corporate officer" jury instruction; and (4) the district court erred by admitting evidence of defendant's prior discharges of industrial waste. We are not persuaded by any of defendant's arguments and, thus, we affirm his convictions.

BACKGROUND

  1. Summary of Facts

    Because a jury convicted defendant, we view the record in the light most favorable to the government. United States v. Ladum, 141 F.3d 1328, 1337 (9th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998).

    Defendant was a founder of CH2O, Inc., and served as the company's President and Chairman of the Board. CH2O blends chemicals to create numerous products, including acid cleaners and heavy-duty alkaline compounds. The company ships the blended chemicals to its customers in drums.

    CH2O asked its customers to return the drums so that it could reuse them. Although customers returned the drums, they often did not clean them sufficiently. Thus, the drums still contained chemical residue. Before CH2O could reuse the drums, it had to remove that residue.

    To remove the residue, CH2O instituted a drum-cleaning operation, which in turn generated wastewater. In the early to mid-1980s, defendant approached the manager of the local sewer authority to see whether the sewer authority would accept the company's wastewater. The sewer authority refused, because the wastewater "did not meet the parameters we had set for accepting industrial waste. It had too high of a metal content." Thereafter, defendant and the general manager of CH2O made two other attempts to convince the sewer authority to accept the wastewater. Both times, it refused.

    Beginning in about 1985, defendant personally discharged the wastewater and ordered employees of CH2O to discharge the wastewater in three places: (1) on the plant's property, (2) through a sewer drain at an apartment complex that defendant owned, and (3) through a sewer drain at defendant's home. (The plant did not have sewer access.) Those discharges continued until about 1988, when CH2O hired Bill Brady.

    Brady initially paid a waste disposal company to dispose of the wastewater. Those efforts cost the company thousands of dollars each month. Beginning in late 1991, CH2O stopped its drum-cleaning operation and, instead, shipped the drums to a professional outside contractor for cleaning.

    In April 1992, CH2O fired Brady. Around that same time, defendant bought a warehouse in Olympia. Unlike the CH2O plant, the warehouse had sewer access. After the purchase, CH2O restarted its drum-cleaning

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    operation at the warehouse and disposed of its wastewater through the sewer. CH2O obtained neither a permit nor permission to make these discharges. The drum-cleaning operation continued until the summer of 1995, when CH2O learned that it was under investigation for discharging pollutants into the sewer.

    A few months before CH2O restarted its drum-cleaning operation, defendant announced his "official" retirement from CH2O. Thereafter, he continued to receive money from CH2O, to conduct business at the company's facilities, and to give orders to employees. Moreover, the company continued to list him as the president in documents that it filed with the state, and the employee who was responsible for running the day-to-day aspects of the drum-cleaning operation testified that he reported to defendant.

    During the four years of the operation at the warehouse, defendant was sometimes present when drums were cleaned. During those occasions, defendant was close enough to see and smell the waste.

    In some instances, defendant informed employees that he had obtained a permit for the drum-cleaning operation and that the operation was on the "up and up." At other times, however, defendant told employees that, if they got caught, the company would receive only a slap on the wrist.

  2. Procedural History

    On September 18, 1997, a grand jury filed a superseding indictment, charging defendant with violating the CWA, the WAC, and the Olympia code. Count 1 charged defendant with conspiracy to violate those codes. Counts 2 through 4 charged defendant with violating the CWA and the WAC in 1992, 1993, and 1994. Each count represented a different year. Count 5 charged defendant with violating all three laws in 1995.

    After an eight-day trial, the jury found defendant guilty on all counts. Thereafter, the district court sentenced defendant to one year in custody, three years of supervised release, and a $75,000 fine. This timely appeal ensued.

    STATUTORY BACKGROUND

    As noted, the jury convicted defendant of violating the CWA, the WAC, and the Olympia code. The WAC and the Olympia code are not, by themselves, federal offenses. However, the CWA allows states to administer water pretreatment programs. 33 U.S.C. § 1342(b). If the Environmental Protection Agency (EPA) approves a state's regulations, violations of those regulations are treated as federal criminal offenses. 33 U.S.C. § 1319(c)(2). On September 30, 1986, the EPA approved the WAC. 51 F.R. 36806.

    Similarly, the CWA requires publicly owned treatment works (POTW) to create their own regulatory programs. 40 C.F.R. § 403.5(c). Those local regulations are deemed pretreatment standards under the CWA. 40 C.F.R. § 403.5(d). In 1994, the City of Olympia approved its regulatory code. Thus, its provisions state federal offenses. 33 U.S.C. § 1319(c)(2).

    INTERPRETATION OF THE CWA, THE WAC, AND THE OLYMPIA CODE

    Defendant argues that: (1) the district court's jury instructions incorrectly stated elements of his charged offenses, (2) the district court erred by limiting the testimony of his expert witness, and (3) the district court erred by denying his motion for acquittal. Although labeled as three separate challenges, defendant bases all three claims of error on the premise that the WAC and the Olympia code allow discharges of industrial waste that do not affect the water. We disagree.

  3. Standard of Review

    The district court based its decisions entirely on its interpretation of the CWA, the WAC, and the Olympia code. We review such an interpretation de novo. See Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir.1998) ("The district court's ruling rested entirely on its interpretation of a statute. Accordingly, our review is de novo.").

  4. Analysis

    The district court held that the WAC and the Olympia code prohibit discharges of

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    hauled or trucked industrial waste, regardless of the effect of those discharges on the water. Relying first on the Olympia code's definition of "pollutant," defendant argues that the district court erred. The Olympia code defines "pollutant" as

    any substance discharged into the POTW which if discharged directly would alter the chemical, physical, biological or radiological integrity of the water of the state. This includes, but is not limited to the priority pollutants listed in 40 CFR Part 403. 1

    Olympia Municipal Code § 13.20.20. 2

    Although the Olympia code does define "pollutant" based on the effect of the discharge, the Olympia code also expressly provides that, if state standards are more stringent, then state law applies under the Olympia code itself:

    State requirements and limitations on discharges to the POTW shall be met by all users which are subject to such standards in any instances in which they are more stringent than federal requirements and limitations, or those in this chapter or other applicable ordinances.

    Olympia Municipal Code § 13.20.490. Defendant argues that the foregoing incorporation by reference is unimportant, because state law also measures discharges based on their effect on the water. Specifically, the WAC allows

    [d]ischarges to municipal sewerage systems of wastes from industrial or commercial sources whose wastewater is similar in character and strength to normal domestic wastewater: Provided, That such discharges do not have the potential to adversely affect performance of the system. Examples of this type of discharge sources may include hotels, restaurants, laundries and food preparation establishments.

    Wash. Admin. Code § 173-216-050(1)(d) (emphasis in original).

    However, subsection (2) of that provision of the WAC states that, notwithstanding subsection (1)(d), "[a] permit is required for any...

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