U.S. v. Baytank (Houston), Inc.

• Decision Date: 13 June 1991
• Docket Number: 89-2172,Nos. 89-2129,s. 89-2129
• Parties: , 21 Envtl. L. Rep. 21,101 UNITED STATES of America, Plaintiff-Appellee, v. BAYTANK (HOUSTON), INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. BAYTANK (HOUSTON), INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 599

934 F.2d 599

33 ERC 1825, 21 Envtl. L. Rep. 21,101

UNITED STATES of America, Plaintiff-Appellee, v. BAYTANK (HOUSTON), INC., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. BAYTANK (HOUSTON), INC., et al., Defendants-Appellees.

Nos. 89-2129, 89-2172.

United States Court of Appeals, Fifth Circuit.

June 13, 1991.

George McCall Secrest, Jr., Houston, Tex., Jay J. Madrid, Karen C. Corallo, Greg Sivinski, Walter D. James, III, Winstead, McGuire, Sechrest & Minick, Dallas, Tex., for defendant-appellant.

Vicki L. Plaut, Martin W. Matzen, John A. Bryson and Paul S. Rosenzweig, Patrick M. Flachs, Attys., Appellate Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Gordon Speights Young, Jack Shepherd, Chief, Civil Div., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GARWOOD and HIGGINBOTHAM, Circuit Judges. ¹

GARWOOD, Circuit Judge:

These consolidated appeals arise from the trial of a 37-count indictment against two corporations and nineteen individuals for violations of federal environmental laws in the operation of a chemical transfer and storage facility. At the conclusion of the proceedings in the district court, only one defendant, Baytank (Houston), Inc. (Baytank), stood convicted--and only on two counts. Baytank, appellant in No. 89-2129 and an appellee in No. 89-2172, appeals its conviction on two counts of improper storage of hazardous wastes in violation of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. Sec. 6928(d)(2)(A). The government, appellee in No. 89-2129 and appellant in No. 89-2172, appeals the district court's order granting Baytank and the only three individual defendants whom the jury found guilty, appellees Haavar Nordberg (Nordberg), Roy Johnsen (Johnsen), and Donald X. Gore (Gore), new trials on various counts charging offenses under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9603(b)(3), and the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. Sec. 1319(c)(1), and also granting Nordberg and Johnsen post-verdict judgments of acquittal and alternatively new trials on the two RCRA counts. The government also seeks a writ of mandamus directing the district court to impose the mandatory special assessment on the two counts that it left standing with respect to Baytank. We affirm with respect to Baytank's appeal in No. 89-2129, and we grant the government's petition for writ of mandamus; we affirm in part and reverse in part with respect to the government's appeal in No. 89-2172.

Facts and Proceedings Below

Baytank is a bulk liquid chemical transfer and storage facility located in Seabrook, Texas, near Houston. Baytank's principal function is to provide interim storage for customers transporting various chemicals. The three individual defendants before this Court are officers and employees of Baytank. Nordberg was executive vice president of Baytank, Johnsen was Baytank's safety manager and then its operations manager, and Gore was its technical manager.

This appeal concerns nine counts of the 37-count indictment. At the close of the government's case, the district court granted all defendants judgments of acquittal on all but eleven counts. ² The jury, at the conclusion of the four-week trial, returned guilty verdicts on nine of the eleven counts submitted: counts 20-24, 27, 29, and 32 and 33. ³

Counts 20-24, brought under the Clean Water Act, 33 U.S.C. Sec. 1319(c)(1), ⁴ allege the willful or negligent discharge of pollutants ⁵ in wastewater from a Baytank outfall into Galveston Bay's Bayport Turning Basin, in violation of conditions established in a National Pollutant Discharge Elimination System (NPDES) permit, on "numerous occasions" over various stated time periods. ⁶ The district court instructed the jury that in order to convict on these charges, it had to find, beyond a reasonable doubt, the following:

(1) on or about the dates charged, the defendant discharged a pollutant willfully or negligently;

(2) the pollutant was discharged from a point source into a navigable waterway of the United States; and

(3) the defendant discharged a pollutant in violation of its permit.

The jury was also instructed that it had unanimously to agree, as to each defendant, on every specific instance on which a discharge occurred and that it had to identify, as to each such instance, whether each defendant committed the violation willfully or negligently. The jury was not given verdict forms with the possible dates identified, but had to come up with its own list of dates from the testimony and the documentary evidence. ⁷

Count 27, another Clean Water Act count, alleges that from October 28, 1982 to April 28, 1986, Baytank, Nordberg, Johnsen, and Gore negligently or willfully failed to file discharge monitoring reports required by Baytank's NPDES permit with the United States Environmental Protection Agency (EPA). ⁸ The district court instructed the jury that in order to convict on this count, it had to find the following elements beyond a reasonable doubt:

(1) that the permit included a condition requiring the defendants to file discharge monitoring reports with the EPA; and

(2) that from October 28, 1982 to April 28, 1986, the defendants willfully or negligently failed to file these reports with the EPA.

Again, the jury was instructed to identify, as to each defendant, each specific date of violation and whether the violation was willful or negligent. ⁹

Count 29, brought under CERCLA, 42 U.S.C. Sec. 9603(b)(3), ¹⁰ alleges that the defendants failed to notify the National Response Center of an April 27, 1985 release of more than one hundred pounds of the hazardous chemical acrylonitrile. Under 42 U.S.C. Sec. 9603(a), ¹¹ the National Response Center must be notified of the release of a hazardous substance in excess of the reportable quantity established by statute or regulation. The reportable quantity of acrylonitrile, established by regulation pursuant to 42 U.S.C. Sec. 9602(a), ¹² is one hundred pounds. 40 C.F.R. Sec. 302.4.

Count 32, brought under the RCRA, 42 U.S.C. Sec. 6928(d)(2)(A), ¹³ alleges that from April 1985 until September 1986, Baytank, Nordberg, and Johnsen knowingly stored hazardous wastes in drums at the Baytank facility in Seabrook without having obtained a permit. Count 33 sets forth the same allegation with respect to storage in tanks from March 1984 to September 1986.

At a motions hearing held following the trial, the district court set aside the jury's verdict, almost in its entirety. The district court entered judgments of acquittal for Nordberg and Johnsen on counts 32 and 33 (the RCRA counts), granted conditional new trials to them should their judgments of acquittal be reversed, and ordered new trials for all of the defendants on the remaining counts on which the jury had returned a guilty verdict. The court let stand only the jury's guilty verdict against Baytank on counts 32 and 33. The district court did not give any written statement of reasons or explanation for its action.

At sentencing, the district court fined Baytank $50,000 on count 32. The court suspended the sentence on count 33, subject to Baytank's providing and executing a community service program. The court refused to impose the mandatory $200 special assessment per count under 18 U.S.C. Sec. 3013(a)(2)(B) on the ground that the law is a revenue-raising measure that originated in the Senate, and is therefore unconstitutional.

Baytank appeals its conviction on counts 32 and 33. The government petitions for a writ of mandamus to compel the district court to impose the special assessment on those counts. The government appeals the judgment of acquittal and conditional new trial with respect to Nordberg and Johnson on counts 32 and 33, and it also appeals the district court's grant of a new trial to Baytank, Nordberg, Johnsen, and Gore on all of the remaining counts (numbers 20-24, 27, and 29) on which the jury returned verdicts of guilty.

Discussion

Part I--Baytank Appeal

Baytank in its appeal presents essentially five claims of error, which we discuss in order.

A. Variance

Baytank argues that, in variance with the indictment, which alleged a violation of 42 U.S.C. Sec. 6928(d)(2)(A) (knowing storage of hazardous waste without a permit), evidence introduced at trial and the court's instructions to the jury allowed the jury to convict for a violation of Sec. 6928(d)(2)(C) (knowing violation of any material condition or requirement of any applicable interim status regulations or standards).

In general, once an indictment has been returned, its charges may not be broadened through amendment except by the grand jury. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960); United States v. Mize, 756 F.2d 353, 356 (5th Cir.1985); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984); see Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), overruled in part, United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Stirone, the Supreme Court recognized that a trial court's amendment of the indictment need not be explicit to constitute reversible error, but that it may be implicit or constructive. Young, 730 F.2d at 223; see Stirone, 80 S.Ct. at 273. As this Court explained in Young:

"Stirone requires that courts distinguish between constructive amendments of the indictment, which are reversible per se, and variances between indictment and proof, which are evaluated under the harmless error doctrine. The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. In such cases, reversal is automatic, because the...