USA v. Hagberg

Citation207 F.3d 569
Decision Date09 February 2000
Docket NumberNo. 99-30112,99-30112
Parties(9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellant, v. JAMIE JOHN HAGBERG, OPINION Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ethan G. Shenkman, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the plaintiff-appellant.

Mark S. Werner, Assistant Federal Defender, Federal Defenders of Montana, Billings, Montana, for the defendantappellee.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-98-00079-JDS

Before: Stephen S. Trott, Andrew J. Kleinfeld, and Barry G. Silverman, Circuit Judges.

TROTT, Circuit Judge:

The United States appeals the district court's dismissal of an indictment charging Jamie John Hagberg ("Hagberg") with "knowingly dispos[ing] of domestic septage on a public contact site" in violation of 33 U.S.C. SS 1345(e) and 1319(c)(2). The district court dismissed the indictment based on its conclusion that the substance Hagberg allegedly dumped was not "sewage sludge," as defined by 40 C.F.R. Part 503. The United States argues that the district court misapplied the regulatory definitions relevant to the actions charged in the indictment, and thus erred in dismissing the indictment. We have jurisdiction pursuant to 18 U.S.C. S 3731 and REVERSE and REMAND the case to the district court for further proceedings consistent with this Opinion.

BACKGROUND

On September 12, 1997, Hagberg pumped sewage material from the septic tank of the Cozy Corner Bar in Lavina, Montana, into his H & H Septic and Drain Company pump truck. Later that evening, Hagberg allegedly discharged the sewage along a 1.6 mile stretch of road. Hagberg was subsequently indicted for "knowingly dispos[ing] of domestic septage on a public contact site . . . in violation of 33 U.S.C.S 1345(e) and 1319(c)(2)." Subsection 1345(e) makes it "unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accordance with such regulations." Clean Water Act of 1977S 405(e), 33 U.S.C. S 1345(e) (Supp. 1999). Subsection 1319(c)(2) states that "[a]ny person who . . . knowingly violates section . . . 1345 of this title . . . shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both." 33 U.S.C. S 1319(c)(2) (Supp. 1999).

In his pre-trial motion to dismiss the indictment, Hagberg argued that the Cozy Corner's septic tank was not a "publicly owned treatment works" or "any other treatment works treating domestic sewage," as required for criminal liability under subsection 1345(e). The district court dismissed the indictment after concluding that the material pumped from the Cozy Corner's septic tank was not "sewage sludge" under the statutory and regulatory framework at issue. The court reached this conclusion for three separate reasons.

First, the district court reasoned that the dumped substance was not generated during any kind of "treatment" as envisioned by the regulations promulgated pursuant to subsection 1345(d). Second, the court concluded that the septic tank at the Cozy Corner Bar was not a "treatment works" as contemplated by the regulations. Finally, the court determined that "Part 503 of the Code of Federal Regulations cannot reasonably be construed to govern the internal processes of domestic septic tanks."

The United States appeals the district court's dismissal of the indictment, arguing that the district court misread and misinterpreted the statutory and regulatory framework governing Hagberg's actions. This is a case of first impression.

DISCUSSION

The district court's decision to dismiss the indictment based on its interpretation of a federal statute is reviewed de novo. See United States v. Fitzgerald, 147 F.3d 1101, 1102 (9th Cir. 1998). The construction or interpretation of a statute is reviewed de novo, United States v. Frega, 179 F.3d 793, 802 n.6 (9th Cir. 1999), as is the district court's interpretation of the federal regulations at issue. See United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998). In this appeal, we review the district court's legal conclusion that the material Hagberg allegedly discharged was not "sewage sludge."

In order to understand the charge with which Hagberg is faced, one must analyze the section 1345 framework as a whole. Section 1345 of Title 33 of the United States Code is titled "Disposal or use of sewage sludge." 33 U.S.C. S 1345 (Supp. 1999). The substantive provisions of that section establish two separate, but related, means by which the Environmental Protection Agency ("EPA") oversees the disposal or use of sewage sludge. First, under subsections 1345(a), (b), and (f), Congress set up a permit system for the EPA to administer. A disposal permit issued by the EPA is required "where the disposal of sewage sludge resulting from the operation of a treatment works as defined in [33 U.S.C. S 1292] . . . would result in any pollutant from such sewage sludge entering the navigable waters . . . ." Id. S 1345(a) (1986). Second, under subsection 1345(d), Congress requires the EPA to promulgate "regulations providing guidelines for the disposal of sludge and the utilization of sludge for various purposes." Id. S 1345(d) (Supp. 1999). The EPA has promulgated such sludge regulations in 40 C.F.R. Part 503 ("Standards for the Use or Disposal of Sewage Sludge"). Part 503"establishes standards, which consist of general requirements, pollutant limits, management practices, and operational standards, for the final use or disposal of sewage sludge generated during the treatment of domestic sewage in a treatment works." 40 C.F.R. S 503.1(a)(1) (1999).

Permits issued under the subsections 1345(a), (b), and (f) framework must incorporate the regulatory standards established pursuant to subsection 1345(d). See 33 U.S.C. S 1345(f)(1) (Supp. 1999). However, the sludge regulatory standards may be enforced regardless of whether a permit has been or should have been issued. The EPA made this point clear when it issued 40 C.F.R. S 503.3, pursuant to its subsection 1345(d) regulatory power. In section 503.3, the EPA established that requirements set forth in Part 503 could be "implemented through a permit" or directly enforced even in the absence of a permit. 40 C.F.R. S 503.3 (1999).

The "direct enforcement" provision, 40 C.F.R.S 503.3(b), reads as follows: "Direct enforceability. No person shall use or dispose of sewage sludge through any practice for which requirements are established in this part except in accordance with such requirements." 40 C.F.R. S 503.3(b) (1999). Furthermore, even where a "treatment works treating domestic sewage" is not required to acquire a permit under subsection 1345(f)(1), subsection 1345(f)(2) gives the EPA Administrator the additional power to "issue a permit to such treatment works solely to impose requirements for the use and disposal of sludge that implement the regulations established pursuant to subsection (d) of this section." 33 U.S.C.S 1345(f)(2) (Supp. 1999). Thus, all efforts at using or disposing of sewage sludge would have to meet the Part 503 standards, whether or not a permit was required under subsection 1345(a).

What is most important to understand from this dual enforcement mechanism is that some terms found in the subsection 1345(d) regulations are defined differently when used in the context of regulations specific to the permit scheme. Hagberg argues that the term "treatment works treating domestic sewage," as it is found in subsection 1345(e), should be defined by reference to 40 C.F.R. S 122.2. However, section 122.2 contains the permit scheme's regulatory definitions, and those definitions apply only to 40 C.F.R. Parts 122124. See id. S 122.2 (1999) ("The following definitions apply to parts 122, 123, and 124."). The general definitions for subsection 1345(d)'s Part 503 regulations are located in 40 C.F.R. S 503.9. See id. S 503.9 (1999). When we focus upon this dichotomy in definitions, Hagberg's argument in support of dismissing the indictment fails.

The indictment does not charge Hagberg with violating a permit, nor does the government even allege that Hagberg was obligated to acquire a permit for his sewage removal activities. Thus, only the Part 503 regulations and its "direct enforcement" are implicated by Hagberg's conduct. Consequently, applicable terms are to be defined by reference to 40 C.F.R. S 503.9.

Hagberg is charged with violation of 33 U.S.C. S 1345(e), which requires that any "dispos[al] of[sewage]1 sludge from a publicly owned treatment works or any other treatment works treating domestic sewage" must be in accordance with the regulations promulgated pursuant to subsection 1345(d) -the Part 503 regulations. 33 U.S.C. S 1345(e) (Supp. 1999). Although the issue has not been litigated and thus is not within the scope of this appeal, neither party disputes that if Hagberg's conduct can be characterized as disposing of sewage sludge from a treatment works treating domestic sewage, his alleged dumping of the sewage material would appear to be in contravention of the Part 503 regulations2.

We conclude that it is clear from the plain language of the Part 503 definitions of "sewage sludge" and "domestic septage" that Hagberg's alleged discharge of the sewage material from the Cozy Corner Bar is covered by subsection 1345(e). When we read 40 C.F.R. S 503.9(w), we find the answer right under our nose. Section 503.9(w) reads, "[s]ewage sludge is solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes,...

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