933 F.2d 35 (1st Cir. 1991), 90-1051, United States v. MacDonald & Watson Waste Oil Co.

Docket Nº:90-1051 to 90-1054 and 90-1212.
Citation:933 F.2d 35
Party Name:UNITED STATES of America, Appellee, v. MacDONALD & WATSON WASTE OIL COMPANY, Defendant, Appellant. UNITED STATES of America, Appellee, v. NARRAGANSETT IMPROVEMENT COMPANY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Eugene K. D'ALLESANDRO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Faust RITAROSSI, Defendant, Appe
Case Date:May 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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933 F.2d 35 (1st Cir. 1991)

UNITED STATES of America, Appellee,

v.

MacDONALD & WATSON WASTE OIL COMPANY, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

NARRAGANSETT IMPROVEMENT COMPANY, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Eugene K. D'ALLESANDRO, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Faust RITAROSSI, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Frances SLADE, Defendant, Appellant.

Nos. 90-1051 to 90-1054 and 90-1212.

United States Court of Appeals, First Circuit

May 10, 1991

        Heard Oct. 2, 1990.

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        Evan Slavitt with whom Fine & Ambrogne, Boston, Mass., David H. Sholes and Sholes & Sholes were on brief, Warwick, R.I., for defendant, appellant MacDonald & Watson Waste Oil Co.

        Stephen R. Delinsky with whom Fine & Ambrogne was on brief, Boston, Mass., for defendant, appellant Eugene K. D'Allesandro.

        Jack Zalkind, Boston, Mass., for defendant, appellant Frances Slade.

        William A. Dimitri, Jr., Providence, R.I., for defendant, appellant Faust Ritarossi.

        John Tramonti, Jr., with whom Karen R. Ellsworth was on brief, Providence, R.I., for defendant, appellant Narragansett Impr. Co.

        Joseph G. Block, Dept. of Justice, Environment and Natural Resources Div., Environmental Crimes Section, with whom Richard B. Stewart, Asst. Atty. Gen., Washington, D.C., Lincoln C. Almond, U.S. Atty., Craig Moore, Asst. U.S. Atty., Providence, R.I., H. Claire Whitney, James A. Morgulec, J. Carol Williams and Edward J. Shawaker, Dept. of Justice, Environment and Natural Resources Div., were on brief, Washington, D.C., for the U.S.

        Before CAMPBELL, Circuit Judge, TIMBERS, [*] Senior Circuit Judge, and CYR, Circuit Judge.

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        LEVIN H. CAMPBELL, Circuit Judge.

        This appeal concerns the criminal liability of individuals and corporations under hazardous waste disposal laws.

        Following a jury trial in the district court, appellants were convicted, inter alia, of having violated criminal provisions of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq. (1982 & Supp. V 1987) and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9603(b) (1982 & Supp. V 1987).

        The indictment originally contained 53 counts. By September 11, 1989, when the trial began, 16 counts had been dismissed and eight severed; and, during trial 12 more counts were dismissed on the government's motion, leaving 17 for submission to the jury. The submitted counts all related to the transportation and disposal of toluene waste from the Master Chemical Company. Appellants were convicted on all 17 counts, as follows:

        MacDonald & Watson Waste Oil Co. ("MacDonald & Watson"), Faust Ritarossi, Frances Slade and Eugene K. D'Allesandro were convicted, on two counts each, of knowingly transporting and causing the transportation of hazardous waste, namely toluene and soil contaminated with toluene, to a facility which did not have a permit, in violation of RCRA, Sec. 3008(d)(1), 42 U.S.C. Sec. 6928(d)(1).

        MacDonald & Watson and Narragansett Improvement Co. ("NIC") were convicted of knowingly treating, storing and disposing of hazardous waste, namely toluene and soil contaminated with toluene, without a permit, in violation of RCRA, Sec. 3008(d)(2)(A), 42 U.S.C. Sec. 6928(d)(2)(A).

        MacDonald & Watson and NIC were convicted of failing to report the release of a hazardous substance into the environment in violation of CERCLA, Sec. 103(b)(3), 42 U.S.C. Sec. 9603(b)(3).

        MacDonald & Watson was convicted of making false statements in violation of 18 U.S.C. Sec. 1001 and of mail fraud in violation of 18 U.S.C. Sec. 1341.

       I. FACTS

        Located in Boston, Massachusetts, Master Chemical Company manufactured chemicals primarily for use in the shoe industry. Master Chemical had been owned by the Estate of Moses Weinman (hereinafter "the Estate"), which was the principal in transactions with appellants. Among the chemicals Master Chemical used was toluene, which it stored in a two thousand gallon underground storage tank. When Master Chemical personnel discovered in the late fall or early winter of 1982 that water was entering the tank and contaminating the toluene, the tank was emptied and its use discontinued. In 1984, Master Chemical Company was sold, and the toluene tank was excavated and removed. A Master Chemical employee testified that he found a small hole in the tank, and that the soil surrounding the tank appeared black and wet and smelled of toluene.

        An environmental consulting firm, Goldberg-Zoino & Associates, Inc. ("GZA"), was retained to assist in the cleanup. GZA prepared a study of the site and solicited a bid from MacDonald & Watson for the excavation, transportation, and disposal of the toluene-contaminated soil. MacDonald & Watson, a company with offices in Johnstown, Rhode Island, was in the business of transporting and disposing of waste oils and contaminated soil. MacDonald & Watson operated a disposal facility on land in Providence, Rhode Island, known as the "Poe Street Lot," leased from appellant NIC. 1 MacDonald & Watson operated the Poe Street Lot under NIC's Rhode Island RCRA permit, which authorized the disposal at the lot of liquid hazardous wastes and soils contaminated with non-hazardous wastes such as petroleum products. Neither NIC nor MacDonald & Watson held a RCRA permit authorizing them to dispose of solid hazardous wastes such as toluene-contaminated soil at the lot. At the Rhode Island administrative hearing held when NIC sought its permit, appellant D'Allesandro, president of MacDonald &

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Watson, testified that hazardous waste operations at the Poe Street Lot would be managed by MacDonald & Watson and that he would be the manager of the facility there. According to the terms of NIC's lease of the Poe Street Lot to MacDonald & Watson, NIC retained responsibility for compliance with state and federal law with respect to permitting and operating the hazardous waste treatment and storage facilities.

        The Estate accepted MacDonald & Watson's bid to remove and clean up the contaminated soil. The Estate's attorney, Deborah Shadd, discussed the proposed arrangement with appellant Slade, MacDonald & Watson's employee, and sent Slade a contract under which MacDonald & Watson would remove "contaminated soil and toluene." Shadd asked Slade to review the contract. Shadd also asked Slade to have it signed for MacDonald & Watson, which she did. Thereafter, appellant Ritarossi, another employee of MacDonald & Watson, supervised the transportation of the toluene-contaminated soil from Master Chemical to the Poe Street Lot in nine 25-yard dump truck loads and one 20-yard load. A Massachusetts hazardous waste manifest accompanied each truckload, bearing the Massachusetts hazardous waste code M-001. 2 Four of the manifests bore Ritarossi's signature. Prior to acceptance of the waste at the Poe Street Lot, MacDonald & Watson employees received an "Authorization to Accept Shipment of Spill Cleanup Material" form bearing Slade's typed name, describing the spilled material as "toluene," and describing the "petroleum product and the material spilled into" as "toluene and gravel." At this point, a MacDonald & Watson employee stamped the manifests "Non-hazardous in Rhode Island, Accepted for Processing at Asphalt Production Plant." Neither NIC nor MacDonald & Watson reported the disposal of the Master Chemical wastes as a release of a hazardous substance into the environment pursuant to CERCLA Sec. 103(b)(3).

  1. Sufficiency of the Evidence

            Appellants argue that the evidence was insufficient to support their convictions. In United States v. Gomez Pabon, 911 F.2d 847, 852 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991), we stated the applicable standard of review:

    [W]e must view the evidence "in the light most favorable to the government, drawing all legitimate inferences and resolving all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990) [cert. denied, [--- U.S. ----] 111 S.Ct. 130 [112 L.Ed.2d 98] (1990) ]. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st Cir.1990) [cert. denied, [--- U.S. ----] 111 S.Ct. 531 [112 L.Ed.2d 541] (1990) and [--- U.S. ----] 111 S.Ct. 975 [112 L.Ed.2d 1061] (1991) ]; United States v. Bernal, 884 F.2d 1518, 1523 (1st Cir.1989).

            With respect to the convictions under RCRA, appellants contend that the evidence was insufficient to establish that the Master Chemical contaminated soil was a "hazardous waste" for purposes of RCRA. 3 They argue that petroleum constituents

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    other than toluene were detected in the soil, (including benzene and methyl tert-butyl ether), and that another tank containing non-hazardous petroleum derivatives toluene and benzene was located near the site of the toluene tank. They also argue that testimony regarding water entering the toluene tank and the hole discovered when the tank was removed did not establish that the toluene tank leaked, because the water could have entered through a pipe and the hole could have resulted during tank removal. These arguments are not persuasive. Contamination with other non-hazardous chemicals would not render soil that was also contaminated with toluene a non-hazardous waste. Groundwater...

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