U.S. v. Dee

Decision Date04 September 1990
Docket NumberNo. 89-5606,89-5606
Citation912 F.2d 741
Parties, 21 Envtl. L. Rep. 20,051 UNITED STATES of America, Plaintiff-Appellee, v. William DEE; Robert Lentz; Carl Gepp, Defendants-Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

Michael A. Brown, Washington, D.C., Richard Melvin Karceski, White & Karceski, Baltimore, Md., argued (George A. Breschi, Dinenna, Mann & Breschi, Towson, Md., William A. Hahn, Jr., Durkee, Thomas & Hahn, Baltimore, Md., on brief), for defendants-appellants.

Jane F. Barrett, Asst. U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., Veronica M. Clarke, Asst. U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before SPROUSE and CHAPMAN, Circuit Judges, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.

SPROUSE, Circuit Judge:

William Dee, Robert Lentz, and Carl Gepp (hereafter collectively "defendants") appeal the judgment of the district court entered after a jury trial finding them guilty of multiple violations of the criminal provisions of the Resource Conservation and Recovery Act ("RCRA" or "the Act"), 42 U.S.C. Secs. 6901 et seq. 1 We affirm.

I

RCRA provides a comprehensive scheme for regulating storage, treatment and disposal of hazardous waste, requiring that it be managed to prevent leakage, spillage, hazardous chemical reactions, and migration of toxins into the soil, water, or air. In addition to administrative provisions, the Act creates criminal liability for persons who knowingly handle hazardous waste without a RCRA permit. 42 U.S.C. Sec. 6928(d). 2

The defendant engineers were civilian employees of the United States Army assigned to the Chemical Research, Development, and Engineering Center at Aberdeen Proving Ground in Maryland. All the defendants were involved in development of chemical warfare systems. Gepp, a chemical engineer, was responsible for operations at and maintenance of the Pilot Plant; 3 Dee and Lentz were Gepp's superiors. Counts One through Three of the superseding indictment charged the defendants with violating the Act by illegally storing, treating and disposing of hazardous wastes at the Pilot Plant. Count Four focused on violations alleged to have occurred at the "Old Pilot Plant", 4 a separate building complex that was closed in 1978. 5

Aberdeen Proving Ground acquired an umbrella RCRA permit for management of hazardous waste materials at the Proving Ground. Under the permit, three separate areas at Aberdeen were designated for storage of hazardous wastes; however, the permit did not allow storage, treatment, or disposal of hazardous wastes at the Pilot Plant or the Old Pilot Plant. Aberdeen in 1982 promulgated a regulation, APG 200-2, that established "policies and procedures for management and disposal of solid and hazardous waste materials at Aberdeen Proving Ground" and mandated compliance with all federal, state, interstate, and local regulations, specifically referencing both the RCRA statute and RCRA regulations.

APG 200-2 directed all tenant organizations, such as the Center, to report any waste material "suspected to be toxic, carcinogenic, caustic, ignitable, or reactive" by filling out a form known as a "hard card." Upon receipt of the hard card, designated Aberdeen organizations were responsible for transporting hazardous wastes to the permitted 6 storage areas. APG 200-2 was specific and thorough, listing various individual chemicals and classes of chemicals that were likely to be hazardous, and reiterating that hazardous wastes were to be managed in accordance with all applicable laws.

In 1982, the Center issued a standard operating procedure, which in 1984 was reissued as a regulation known as CRDCR 710-1. It required identification of all RCRA wastes and directed that they be handled in accordance with the turn-in procedures of APG 200-2. Waste chemicals were defined as "those substances which have deteriorated to the point where they are no longer usable, are contaminated, or cannot be stored safely."

As heads of their respective departments, defendants were responsible for ensuring that the provisions of APG 200-2, CRDCR 710-1, and RCRA were fulfilled within their departments, and that their subordinates were aware of and in compliance with those regulations. Defendants admitted knowledge of APG 200-2, CRDCR 710-1, and RCRA.

II

The defendants first contend that they are immune from the criminal provisions of RCRA because of their status as federal employees working at a federal facility. Because 42 U.S.C. Sec. 6928(d) defines those liable as "any person who" knowingly violates the Act, and because neither the United States nor an agency of the United States is defined as a person, defendants maintain they cannot be "persons" in the sense contemplated by Sec. 6928(d). They assert that by reason of their employment by the federal government they are entitled to its sovereign immunity, meaning they are immune from this criminal prosecution.

There is simply no merit to this suggestion. The Act defines "person" as

an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

42 U.S.C. Sec. 6903(15). The definition begins with an inclusion of "an individual" as a person. The defendants, of course, were indicted, tried, and convicted as individuals, not as agents of the government. Suffice it to say that sovereign immunity does not attach to individual government employees so as to immunize them from prosecution for their criminal acts. O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974); cf. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978) ("all individuals, whatever their position in government, are subject to federal law"). Even where certain federal officers enjoy a degree of immunity for a particular sphere of official actions, there is no general immunity from criminal prosecution for actions taken while serving their office. United States v. Hastings, 681 F.2d 706, 710-12 (11th Cir.1982) ("A judge no less than any other man is subject to the processes of the criminal law"), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Diggs, 613 F.2d 988, 1001 (D.C.Cir.1979) ("Article I, Sec. 5 does not immunize a member of Congress from the operations of the criminal laws"), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). See generally United States v. Isaacs, 493 F.2d 1124, 1142-44 (7th Cir.) ("Criminal conduct is not part of the necessary functions performed by public officials"), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). 7

III

Defendants next contend that they did not "knowingly" commit the crimes proscribed by RCRA. See 42 U.S.C. Sec. 6928(d). They claim that there was insufficient evidence to show that they knew violation of RCRA was a crime; also, that they were unaware that the chemicals they managed were hazardous wastes.

The Supreme Court has repeatedly rejected similar arguments in cases involving regulation of dangerous materials, applying the familiar principle that "ignorance of the law is no defense." United States v. International Minerals & Chem. Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971); United States v. Freed, 401 U.S. 601, 607-10, 91 S.Ct. 1112, 1117-19, 28, L.Ed.2d 356 (1971); United States v. Dotterweich, 320 U.S. 277, 280-81, 64 S.Ct. 134, 136-37, 88 L.Ed. 48 (1943); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922). We agree with the Eleventh Circuit that this time-honored rule applies to prosecutions under RCRA. United States v. Hayes Int'l Corp., 786 F.2d 1499, 1502-03 (11th Cir.1986); see also United States v. Hoflin, 880 F.2d 1033, 1036-39 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990); cf. United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1171, 84 L.Ed.2d 321 (1985). "[W]here, as here ..., 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." International Minerals, 402 U.S. at 565, 91 S.Ct. at 1701.

Therefore, the government did not need to prove defendants knew violation of RCRA was a crime, nor that regulations existed listing and identifying the chemical wastes as RCRA hazardous wastes. However, we agree with defendants that the knowledge element of Sec. 6928(d) does extend to knowledge of the general hazardous character of the wastes. Among its jury instructions, the district court included one that advised:

The government must prove beyond a reasonable doubt that each defendant knew that the substances involved were chemicals. However, the government need not establish that the defendants knew that these chemicals were listed or identified by law as hazardous waste....

While these statements are correct, it was error to instruct the jury that defendants had to know the substances involved were chemicals, without indicating that they also had to know the chemicals were hazardous. See Hoflin, 880 F.2d at 1039; Johnson & Towers, 741 F.2d at 668; compare United States v. Greer, 850 F.2d 1447, 1450 (11th Cir.1988) (jury instructed that defendant had to know the chemical waste had potential to harm others or the environment). However, we think the error was harmless. The record reflects overwhelming evidence that defendants were aware they were dealing with hazardous chemicals. See Pope v. Illinois, 481 U.S. 497, 501-03, 107 S.Ct. 1918, 1921-22, 95 L.Ed.2d 439 (1987); Rose v. Clark, 478 U.S. 570, 576-79, 106 S.Ct. 3101, 3105-106, 92...

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