U.S. v. Carr

• Citation: 880 F.2d 1550
• Decision Date: 25 July 1989
• Docket Number: No. 1163,D,1163
• Parties: , 58 USLW 2131, 19 Envtl. L. Rep. 21,137 UNITED STATES of America, Appellee, v. David James CARR, Defendant-Appellant. ocket 89-1009.
• Court: U.S. Court of Appeals — Second Circuit

Page 1550

880 F.2d 1550

30 ERC 1128, 58 USLW 2131, 19 Envtl.

L. Rep. 21,137

UNITED STATES of America, Appellee, v. David James CARR, Defendant-Appellant.

No. 1163, Docket 89-1009.

United States Court of Appeals, Second Circuit.

Argued May 9, 1989.

Decided July 25, 1989.

Jonathan B. Fellows (George H. Lowe, Bond, Schoeneck & King, Syracuse, N.Y., of counsel), for defendant-appellant.

J. Carol Williams, Attorney, Dept. of Justice, Washington, D.C. (Donald A. Carr, Acting Asst. Atty. Gen., Washington, D.C., Frederick J. Scullin, Jr., U.S. Atty. for the N.D.N.Y., Craig A. Benedict, Asst. U.S. Atty., David C. Shilton, Maria A. Iizuka, Attorneys, Dept. of Justice, Washington, D.C., of counsel), for appellee.

Before KEARSE, CARDAMONE, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Appellant David James Carr appeals from a judgment of the United States District Court for the Northern District of New York (Munson, J.), convicting him under section 103 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9603 (1982 & Supp. IV 1986). Under section 103, it is a crime for any person "in charge of a facility" from which a prohibited amount of hazardous substance is released to fail to report such a release to the appropriate federal agency. Appellant, a supervisor of maintenance at Fort Drum, New York, directed a work crew to dispose of waste cans of paint in an improper manner, and failed to report the release of the Appellant contends on appeal that this instruction was erroneous because (1) it extended the statutory reporting requirement to a relatively low-level employee, and (2) it allowed the jury to find that appellant was "in charge" so long as he exercised any control over the dumping. For the reasons stated below, we hold that the statutory reporting requirements were properly applied to appellant. We also hold that the jury instruction challenged on appeal, viewed as a whole, was not erroneous.

hazardous substances--the paint--to the appropriate federal agency. At appellant's trial, the district court instructed the jury that appellant could be found to have been "in charge" of the facility so long as he had any supervisory control over the facility.

BACKGROUND

Appellant was a civilian employee at Fort Drum, an Army camp located in Watertown, New York. As a civilian employee at a military installation, he was supervised by Army officers. His position was that of maintenance foreman on the Fort's firing range, and as part of his duties he assigned other civilian workers to various chores on the range. In May 1986, he directed several workers to dispose of old cans of waste paint in a small, man-made pit on the range; at that time, the pit had filled with water, creating a pond. On Carr's instructions, the workers filled a truck with a load of cans and drove to the pit. They backed the truck up to the water, and then began tossing cans of paint into the pond. After the workers had thrown in fifty or so cans, however, they saw that paint was leaking from the cans into the water, so they decided instead to stack the remaining cans of paint against a nearby target shed. At the end of the day, the workers told Carr of the cans leaking into the pond, and warned him that they thought that dumping the cans into the pond was illegal. Two truckloads of paint cans remained to be moved the next day, so Carr told the workers to place those cans alongside the target shed.

Approximately two weeks later, Carr directed one of the workers to cover up the paint cans in the pond by using a tractor to dump earth into the pit. Another worker, however, subsequently triggered an investigation by reporting the disposal of the cans to his brother-in-law, a special agent with the Department of Defense. A 43-count indictment was returned against appellant, charging him with various violations of federal environmental laws. The indictment included charges under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sec. 6928(d)(2)(A), 18 U.S.C. Sec. 2 (Counts 1-4), the CERCLA charges here at issue (Counts 5-6), and multiple charges under the Clean Water Act of 1977, 33 U.S.C. Secs. 1311(a), 1319(c)(1), 18 U.S.C. Sec. 2 (Counts 7-43). Appellant pleaded not guilty, and a 6-day trial before a jury began on October 3, 1988.

After the government had presented its evidence, it filed with the court various proposed jury instructions, including one regarding the definition of the term "in charge." Over appellant's objection, the district court gave the government's proposed instruction to the jury, essentially unchanged, as follows:

There has been testimony that the waste paint was released from a truck assigned to the workers by the Defendant David Carr. The truck, individually, and the area of the disposal constitute facilities within the meaning of [CERCLA]. So long as the Defendant had supervisory control or was otherwise in charge of the truck or the area in question, he is responsible under this law. The Defendant is not, however, required to be the sole person in charge of the area or the vehicle. If you find that he had any authority over either the vehicle or the area, this is sufficient, regardless of whether others also exercised control.

The jury acquitted appellant of all charges except Counts 5 and 6, the CERCLA charges. The district court imposed a suspended sentence of one year's imprisonment, and sentenced appellant to one year of probation. This appeal followed.

DISCUSSION

I. The Meaning of "In Charge" Under Section 103

Appellant raises two claims on this appeal, both of which arise out of the district Our analysis of appellant's claim requires a review of the statute and its legislative history. The language of the statute itself sheds little light on the meaning of the term "in charge." Section 103 of CERCLA states only that:

                court's instruction quoted above.  The first claim turns on the meaning of the statutory term "in charge."    Under section 103, only those who are "in charge" of a facility must report a hazardous release.  There is, however, no definition of the term "in charge" within CERCLA.  Appellant argues that the district court's instruction was erroneous because Congress never intended to extend the statute's reporting requirement to those, like Carr, who are relatively low in an organization's chain of command
                

Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he has knowledge of any release (other than a federally permitted release) of a hazardous substance from such vessel or facility in quantities equal to or greater than those determined pursuant to [42 U.S.C. 9602], immediately notify the National Response Center established under the Clean Water Act [33 U.S.C. 1251 et seq.] of such release. The National Response Center shall convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State.

42 U.S.C. Sec. 9603(a) (1982). ¹ The regulations implementing the statute fail to define the term "in charge." See 40 C.F.R. Sec. 302 (1988) (EPA regulations). Since its meaning is unclear, we turn to the legislative history in an effort to determine the scope Congress intended the term "in charge" to have. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984).

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When CERCLA was enacted in late 1980, Congress sought to address the problem of hazardous pollution by creating a comprehensive and uniform system of notification, emergency governmental response, enforcement, and liability. See generally Congress Clears "Superfund" Legislation, 36 Congressional Quarterly Almanac 584-93 (1980) (history of the legislation). The reporting requirements established by section 103 were an important part of that effort, for they ensure that the government, once timely notified, will be able to move quickly to check the spread of a hazardous release. See 1 Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess., A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), Public Law 96-510, at 62 (Comm. Print 1983) [hereinafter CERCLA Legislative History ] (June 20, 1979 testimony of Thomas C. Jorling, EPA Asst. Administrator); S.Rep. No. 848, 96th Cong., 2d Sess. 22 (1980), reprinted in 1 CERCLA Legislative History, supra, at 308, 329. The broad reporting requirements of section 103--which extend to anyone "in charge" of a facility--were part of the House and Senate bills from their inception, see H.R. 85, 96th Cong., 1st Sess. Sec. 106 (1979), reprinted in 2 CERCLA Legislative History, supra, at 474, 499; S. 1480, 96th Cong., 1st Sess. Sec. 3 (1979), reprinted in 1 CERCLA Legislative History, supra, at 155, 163-64, and were carried through, substantially intact, into the version of the bill finally passed into law, see CERCLA, Pub.L. No. 96-510, Sec. 103, 94 Stat. 2767, 2772-73.

The legislative history of CERCLA makes clear that Congress modeled the reporting requirements of section 103 on section 311 of the Clean Water Act, 33 U.S.C. Sec. 1321(b)(5). See, e.g., 1 CERCLA Legislative History, supra, at 62. Like CERCLA's section 103, the reporting requirements of section 311 of the Clean Water Act require any person "in charge" of a facility to report a release of hazardous substances. Senator Jennings Randolph, one of the original sponsors of the Senate version of CERCLA, outlined the reasons for adopting the reporting requirements from section 311 of the Clean Water Act into CERCLA:

Section 103 of [CERCLA] establishes the circumstances when notice must be given to the Government of a release of hazardous substances, including hazardous wastes. Notice of a release is the essential first step which enables the Government to respond quickly to the more significant releases, if the parties responsible fail to. The 8 years of experience with...