People v. Martin

• Decision Date: 20 June 1989
• Citation: 211 Cal.App.3d 699,259 Cal.Rptr. 770
• Court: California Court of Appeals Court of Appeals
• Parties: , 86 A.L.R.4th 383 The PEOPLE, Plaintiff and Respondent, v. Ray E. MARTIN, Defendant and Appellant. Crim. B024374.

Page 770

259 Cal.Rptr. 770

211 Cal.App.3d 699, 86 A.L.R.4th 383

The PEOPLE, Plaintiff and Respondent, v. Ray E. MARTIN, Defendant and Appellant.

Crim. B024374.

Court of Appeal, Second District, Division 6, California.

June 20, 1989.

Certified for Partial Publication. ^*

Review Denied Sept. 27, 1989.

Taylor, McCord, Paul & Johnson and Robert L. McCord, Jr., Ventura, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Mark Alan Hart, Donald E. De Nicola, Supervising Deputy Attys. Gen., Lisa Trankley Sato, Deputy Atty. Gen., for plaintiff and respondent.

GILBERT, Associate Judge.

California regulates the transportation and disposal of hazardous waste through the Hazardous Waste Control Act. (HEALTH & SAF.CODE, § 25100¹ et seq.; Cal.Code Regs., tit. 22, § 66001 et seq.) The Act affixes criminal liability for violation of a standard of ordinary care. We hold that the act is constitutional, that it is not vague or ambiguous, that it does not unlawfully delegate legislative authority nor is it superseded by federal law which exempts "empty" hazardous waste containers from regulation.

PROCEDURAL BACKGROUND AND FACTS

Ray E. Martin is the president and principal operating officer of the Chem-O-Lene Company, a chemical blending plant located next to the Ventura River in Ventura County. Martin also owns and operates Unico Chemicals, located in Bakersfield. Chemicals blended at Chem-O-Lene are sold and transported to Unico, which sells them for use in oil drilling operations.

On March 15, 1985, Martin was arrested and charged with knowingly disposing of hazardous waste, or knowingly causing others to dispose of hazardous waste, at the Chem-O-Lene plant in violation of section 25189.5, subdivision (b). In the week following his arrest, Martin directed employees at Chem-O-Lene to truck 182 metal barrels from Chem-O-Lene to the Unico facility. At Unico, a number of those barrels were smashed, their contents spilling into the ground.

[[-]] Martin was convicted of two counts alleging the transporting and disposal of hazardous waste at the Unico facility in violation of section 25189.5, subdivision (c). ² [[-]]

The trial court suspended imposition of sentence and placed Martin on five years felony probation. The court also imposed a $75,000 fine and a mandatory penalty assessment of $52,500.

Martin argues that section 25189.5 is unconstitutionally vague, ambiguous, and constitutes an unlawful delegation of legislative authority; that the Act does not regulate the transportation of empty containers, and that the trial court improperly instructed the jury in this regard; and that the statute may not be constitutionally construed as providing a criminal penalty for merely negligent conduct, and that the trial court erred in instructing the jury that it may convict him for negligent conduct.

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I.

Martin contends that section 25189.5 is "vague, ambiguous and not susceptible to any definition that would have meaning to the average person" and so is unconstitutional. He specifically argues that the term "hazardous waste" as defined by the code "lack[s] any common sense basis upon which the average person can determine if they are in violation of the law, and provide[s] absolutely no objective standards or measurements" for the purpose of law enforcement. We disagree.

" '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322].)" (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763, 221 Cal.Rptr. 779, 710 P.2d 845.) Due process "requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732, fn. omitted.)

"If an accused can reasonably understand by the terms of the statute that his conduct is prohibited, the statute is not vague [citation]. In determining the sufficiency of the notice, a statute must of necessity be examined in the light of the conduct with which the defendant is charged [citation]. Furthermore, in the field of 'regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed' than in statutes applicable to the general public (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110] )." (People v. Anderson (1972) 29 Cal.App.3d 551, 561, 105 Cal.Rptr. 664.)

Section 25117 defines "hazardous waste" as:

"[A] waste, or 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...."

At the time of the events in this case, section 25124 defined "waste" in part as either of the following: "(a) Any material for which no use or reuse is intended and which is to be discarded. (b) Any recyclable material."

These statutory definitions for those who produce or handle hazardous waste provide adequate notice and adequate standards for enforcement for those who police such businesses. Regulated businesses "can be expected to consult relevant legislation in advance of action ... [and] may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process." (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, fns. omitted.) In order to convict Martin, the jury must have found that he knew or should have known that he was causing the disposal and transportation of hazardous waste. ( § 25189.5, subds. (b), (c).) The scienter requirement itself guarantees adequate notice. (Hoffman Estates, supra, at p. 499, 102 S.Ct. at p. 1193; People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974.) "Where as here dangerous substances are involved, and the probability of regulation is great, the trier of fact may infer knowledge on the part of those engaged in the business of using such substances. (See United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3rd Cir.1984)." (State v. McAllister (Minn.App.1987) 399 N.W.2d 685, 689.)

Further, the regulations promulgated by the Department of Health Services (the department) pursuant to the code contain a list of hundreds of materials designated potentially hazardous, and include mathematical formulas and scientific standards by which hazardous materials are identified. (Cal.Code Regs., tit. 22, §§ 66680--66723.) Even though statutes need not be of mathematical certainty (Grayned v. City of Rockford (1972) 408 U.S. 104, 110, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222), these are.

A waste may be designated hazardous if it meets any of four criteria. (See generally Cal.Code Regs., tit. 22, art. 11, Criteria for Identification of Hazardous and Extremely Hazardous Wastes.) One of these is toxicity, which may be measured by the effect of the waste material on fish. (Cal.Code Regs., tit. 22, § 66696.) Another criteria is ignitability: a material is a hazardous waste if it is liquid and has a flash point of less than 140 degrees Fahrenheit. (Cal.Code Regs., tit. 22, § 66702.) These and other tests were performed on chemical samples taken from Chem-O-Lene and Unico, and the results were entered into evidence.

II.

Martin asserts that neither the code nor the department's regulations expressly regulate the transporting or managing of 55-gallon metal barrels which contain or contained hazardous waste. He also contends that state regulations are superseded by federal regulations which exempt empty barrels from regulation, and that the trial court erred in instructing the jury in this regard.

During deliberations the jury sent the following note to the court:

"Relative to the question as to when a drum is empty of hazardous material, we heard testimony that Federal law specifies that a drum containing less than one (1) inch of material is considered empty. California law seems to state (page 35 lines 4 and 6 ) if any hazardous material remains in the drum the transportation of that drum constitutes transportation of a hazardous waste. Can we apply the Federal one inch limit or must we accept the California 'ANY' in determining the issue of count 4[?]"

The court's response, in relevant part, was: "Whether you find that a barrel contained more than one inch or less than one inch of a material or substance is not determinative of whether or not it is a hazardous waste."

Martin argues that the trial court's instruction was erroneous because California law does not define when a container of hazardous waste is empty, that federal standards therefore control, and that empty containers are exempt from regulation under the federal rules. The jury heard evidence that the barrels Martin ordered trucked to the Unico facility contained very little, if any, chemical residue.

The People urge that because the regulations expressly exempt empty one-gallon containers of household hazardous materials (see Cal.Code Regs., tit. 22, § 66300, subd. (g)), the absence of a similar exemption for empty, larger containers should be construed as an intent to regulate them. This seemingly logical argument teeters in light of section 25159.5, subdivision (b). At the time of trial that section read that all regulations adopted pursuant to the federal Resource Conservation...