U.S. v. Dean

Citation969 F.2d 187
Decision Date21 August 1992
Docket NumberNo. 91-5970,91-5970
Parties, 61 USLW 2055, 22 Envtl. L. Rep. 21,296 UNITED STATES of America, Plaintiff-Appellee, v. Gale E. DEAN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Jerry G. Cunningham, U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., Guy W. Blackwell, Asst. U.S. Atty., Office of the U.S. Atty., Greeneville, Tenn., Andrew C. Mergen (argued and briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Paul S. Rosenzweig, U.S. Dept. of Justice, Environmental Crimes Section, Washington, D.C., for plaintiff-appellee.

Barry P. Staubus (argued and briefed), Richard W. Pectol & Associates, Johnson City, Tenn., for defendant-appellant.

Before NELSON and NORRIS, Circuit Judges; and JOINER, Senior District Judge. *

JOINER, Senior District Judge.

Defendant Gale E. Dean appeals his convictions on one count of conspiracy to violate the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., in violation of 18 U.S.C. § 371; one count of failure to file documentation of hazardous waste generation, storage, and disposal as required by 42 U.S.C. § 6928(d)(4); and one count of storage of spent chromic acid without a permit, one count of storage and disposal of chromic acid rinse water and wastewater sludges in a lagoon without a permit, and one count of disposal of paint sludge and solvent wastes in a pit without a permit, all in violation of 42 U.S.C. § 6928(d)(2)(A).

I.

Defendant's convictions arose out of the operation of the General Metal Fabricators, Inc. (GMF) facility in Erwin, Tennessee, which engaged in metal stamping, plating, and painting. The facility utilized hazardous chemicals and generated hazardous waste. The owners of GMF, Joseph and Jean Sanchez; as well as Dean, the production manager; and Clyde Griffith, the plant manager; were indicted for conspiracy to violate RCRA, and, individually, for violations of various sections of the statute. The district court granted defendant's motion to sever his trial from that of the other defendants.

RCRA provides a comprehensive system of oversight of hazardous materials, a system centered upon requirements that facilities utilizing such materials obtain permits, and maintain proper records of the treatment, storage, and disposal of hazardous substances. No permit was sought for the GMF facility. The hazardous waste disposal practices at GMF were discovered by chance by state waste-management authorities whose attention was caught, while driving to an appointment at another facility, by two 55-gallon drums abandoned among weeds on GMF's property.

As production manager, Dean had day-to-day supervision of GMF's production process and employees. Among his duties was the instruction of employees on hazardous waste handling and disposal. Numerous practices at GMF violated RCRA. GMF's plating operations utilized rinse baths, contaminated with hazardous chemicals, which were drained through a pipe into an earthen lagoon outside the facility. In addition, Dean instructed employees to shovel various kinds of solid wastes from the tanks into 55-gallon drums. Dean ordered the construction of a pit, concealed behind the facility, into which 38 drums of such hazardous waste were tossed. The contents spilled onto the soil from open or corroded drums. Chemical analyses of soil and solid wastes, entered by stipulation at trial, revealed that the lagoon and the pit were contaminated with chromium. In addition, the pit was contaminated with toluene and xylene solvents. All of these substances are hazardous. Drums of spent chromic acid solution were also illegally stored on the premises.

Defendant was familiar with the chemicals used in each of the tanks on the production lines, and described to authorities the manner in which the contents of the rinse tanks were deposited in the lagoon. Material Safety Data Sheets (MSDS) provided to GMF by the chemical manufacturer clearly stated that various chemicals in use at GMF were hazardous and were subject to state and federal pollution control laws. The MSDS were given to investigators by Dean, who demonstrated his knowledge of their contents. The MSDS delivered with the chromic acid made specific reference to RCRA and to related EPA regulations. Dean informed investigators that he "had read this RCRA waste code but thought it was a bunch of bullshit."

II.
A.

Dean assigns as error numerous aspects of the proceedings in the trial court. We shall address first a number of contentions going to the scope and elements of RCRA's criminal provisions, which we think of primary importance among the issues raised by defendant. The first of these issues arises in connection with defendant's contention that the trial court erred in denying his motion for an acquittal on Count 4, because there was no evidence that defendant knew of RCRA's permit requirement. Defendant's characterization of the evidence is inaccurate; but moreover, we see no basis on the face of the statute for concluding that knowledge of the permit requirement is an element of the crime. The statute penalizes:

Any person who--

....

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

(A) without a permit under this subchapter or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052); or

(B) in knowing violation of any material condition or requirement of such permit; or

(C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards

....

42 U.S.C. § 6928(d)(2). Defendant was convicted of violating subsection 6928(d)(2)(A).

The question of interpretation presented by this provision is the familiar one of how far the initial "knowingly" travels. Other courts of appeals have divided on this question. In United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir.1984), cert. denied, sub nom., the Court of Appeals for the Third Circuit concluded that knowledge of the permit requirement was an element of the crime, observing:

Treatment, storage or disposal of hazardous waste in violation of any material condition or requirement of a permit must be "knowing," since the statute explicitly so states in subsection (B). It is unlikely that Congress could have intended to subject to criminal prosecution those persons who acted when no permit had been obtained irrespective of their knowledge (under subsection (A)), but not those persons who acted in violation of the terms of a permit unless that action was knowing (subsection (B)). Thus we are led to conclude either that the omission of the word "knowing" in (A) was inadvertent or that "knowingly" which introduces subsection (2) applies to subsection (A).

Id. at 668 (footnote omitted).

The Court of Appeals for the Ninth Circuit disagreed with the Third Circuit in United States v. Hoflin, 880 F.2d 1033 (9th Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990). The Ninth Circuit noted first the well-established principle of statutory construction that courts will "give effect, if possible, to every clause and word of a statute," United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (citing Inhabitants v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 395, 27 L.Ed. 431 (1883)), pointing out that the Third Circuit's reading of subsection 6928(d)(2)(A) would render mere surplusage the word "knowing" in subsections 6928(d)(2)(B) and (C). Hoflin, 880 F.2d at 1038. The Ninth Circuit also disagreed with the Third Circuit that there was anything illogical about reading subsections 6928(d)(2)(B) and (C) to have a knowledge requirement but subsection 6928(d)(2)(A) to have none. The Ninth Circuit observed that the permit requirement is intended to give the EPA notice that oversight of a facility is necessary (and, by implication, the force of the statutory scheme would be greatly diminished by exempting all who claimed ignorance of the statute's requirements). The difference in mens rea between the subsections signifies the relative importance, in the estimation of Congress, of the twin requirements of obtaining a permit and complying with the permit. This ranking is consistent with the greater likelihood that compliance with the permit will be monitored. The Court of Appeals for the Fourth Circuit agreed with the Ninth Circuit in United States v. Dee, 912 F.2d 741 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991).

All of the courts to address this question have reasoned by analogy from the holding of the Supreme Court in United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971). In that case, the indictment was brought under 18 U.S.C. § 834(f), which penalizes knowing violation of any regulation. The regulation at issue, enacted by the Interstate Commerce Commission, required shipping papers to reflect certain information concerning corrosive liquids being shipped. The question before the Supreme Court was whether knowledge of existence of the regulation was an element of the crime. The Court held that it was not, turning its decision upon the maxim that ignorance of the law is no excuse. The Court concluded its opinion by stating, with equal force here, that when "dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." Id. at 565, 91 S.Ct. at 1701. The Court of Appeals for the Third Circuit mitigated its holding in Johnson & Towers somewhat in light of International Minerals, holding that knowledge of RCRA would be imputed to employees above a certain level of...

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