U.S. v. Flanagan

• Decision Date: 15 December 2000
• Docket Number: No. EDCV 99-423 RT.,EDCV 99-423 RT.
• Citation: 126 F.Supp.2d 1284
• Parties: UNITED STATES of America, Plaintiff, v. Joseph E. FLANAGAN, James F. Weber, and Edgar R. Wilson, Defendants.
• Court: U.S. District Court — Central District of California

Page 1284

126 F.Supp.2d 1284

UNITED STATES of America, Plaintiff, v. Joseph E. FLANAGAN, James F. Weber, and Edgar R. Wilson, Defendants.

No. EDCV 99-423 RT.

United States District Court, C.D. California.

December 15, 2000.

Alejandro N. Mayorkas, United States Attorney, John S. Gordon, Assistant United States Attorney, Chief, Criminal Division, William W. Carter, Assistant United States Attorney, Public Corruption and Government Fraud Section, Los Angeles, CA, for plaintiff United States of America.

John D. Vandevelde, John S. Crouchley, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine, Los Angeles, CA, for defendant Joseph E. Flanagan.

James R. Asperger, Mark Holscher, O'Melveny & Myers LLP, Los Angeles, CA, for defendant James F. Weber.

Leonard Sharenow, Robert G. Martin, Lida Sparer, Law Offices of Leonard Sharenow PC, Los Angeles, CA, for defendant Edgar R. Wilson.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS INDICTMENT PURSUANT TO FED. R.CRIM.P. 12(b)

TIMLIN, District Judge.

The court, the Honorable Robert J. Timlin, has read and considered defendants Joseph Flanagan ("Flanagan"), Edgar Wilson ("Wilson") and James F. Weber ("Weber") (collectively, "Defendants")'s motion to dismiss the indictment in this case pursuant to Fed.R.Crim.P. 12(b) ("Rule 12(b)"), plaintiff United States of America (the "United States")'s opposition, and Defendants' reply. Based on such consideration, the court concludes as follows:

I.

BACKGROUND

On April 28, 1999, the United States filed in this court a four count indictment (the "Indictment"). In the Indictment, Flanagan, Weber and Wilson are each charged with three counts of violating 42 U.S.C. § 6928(d)(2)(A) ("Section 6928(d)(2)(A)") of the Resource Conservation and Recovery Act ("RCRA"). The Indictment alleges that the defendants treated and stored hazardous wastes defined in 40 C.F.R. § 261.23 without authorization of, or permit issued by, the United States Environmental Protection Agency (the "EPA") as required by RCRA.

RCRA "was enacted to protect the national health and environment." Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986). It "governs the handling of solid wastes, both hazardous and nonhazardous." Ashoff v. City of Ukiah, 130 F.3d 409, 410 (9th Cir.1997). "Hazardous wastes are regulated `from cradle to grave, in accordance with the rigorous safeguards and waste management procedures of Subtitle C.'" Id. "Like several other federal environmental protection statutes, RCRA provides a mechanism by which the states can administer their own hazardous waste programs `in lieu of the federal program.'" State of Washington v. EPA, 752 F.2d 1465, 1466 (9th Cir. 1985). "The Administrator authorizes a permanent state program when he determines that the program is `equivalent' to the federal program, consistent with the federal program and other state programs, and adequately enforceable." Id.

California had a hazardous waste program authorized by the EPA pursuant to 42 U.S.C. § 6926(b) at the time the events alleged in the indictment occurred. See 40 C.F.R. § 272, Subpart F; Final Authorization of State Hazardous Waste Management Program (California), 57 Fed.Reg. 32726 (1992).

Defendants proffer two grounds for dismissal of the Indictment — one jurisdictional and the other non-jurisdictional. First, Defendants contend that this court lacks federal subject matter jurisdiction over this case because the EPA's authorization of California's hazardous waste program [codified in California Health and Safety Code § 25100 et seq.] pursuant to 42 U.S.C. § 6926(b) ("Section 6926") rendered inapplicable the criminal penalty provisions of Section 6928, i.e. it stripped the Department of Justice (the "DOJ") of its enforcement power. In the alternative, Defendants contend that even if the EPA's authorization did not function to abrogate the DOJ's criminal enforcement power (and deprive this court of jurisdiction), the EPA's authorization had the effect of limiting the DOJ enforcement power to enforcement of California law. Defendants therefore contend that the indictment must be dismissed because the United States Attorney's Office did not charge a violation of California law.

It is the position of the United States that authorization of California's hazardous waste program neither affected its criminal enforcement power in the federal courts nor proscribed its authority to charge criminal violations of RCRA.

II.

ANALYSIS

A. Jurisdiction

Federal courts are courts of limited jurisdiction. See U.S. Const. Art. III Sec. 2. Lack of jurisdiction over the subject matter of an indictment is not subject to waiver and may be raised at any time. United States v. Arbo, 691 F.2d 862, 865 (9th Cir.1982).

1. Legal Standard for Interpreting RCRA

Determination of the jurisdiction issue hinges on resolution of Defendants' and the United States' competing interpretations of RCRA.

"[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted). Where a phrase in a statute is ambiguous, the court should "take in connection with it the whole statute ... and the objects and policy of the law." Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). A court's objective when interpreting a federal statute "is to ascertain the intent of Congress and to give effect to legislative will." Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th Cir.1987). In addition, the court may look to the legislative history in an effort to resolve ambiguities. See United States v. State of Washington, 872 F.2d 874, 879 (9th Cir.1989). Finally, the court "may not interpret a statute so as to render some of its language superfluous; at any rate, [it] may not do so lightly." Hearn v. W. Conference of Teamsters Pension Trust Fund, 68 F.3d 301, 304 (9th Cir.1995).

2. Application

Section 6928 governs federal enforcement of RCRA. Section 6928(d)(2)(A) provides in pertinent part:

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[;]

. . . . .

shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both.

Section 6926(b) governs the authorization of state programs. Section 6926(b) provides in pertinent part:

Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter may develop and ... submit to the Administrator an application ... for authorization of such program ... [T]he administrator shall ... publish his findings as to whether or not the conditions ... have been met. Such state is authorized to carry out such program in lieu of the Federal program under this subchapter in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste.

The primary question raised by this motion is the meaning of the phrase "in lieu of the Federal program." Defendants contend that "in lieu of the Federal program" language means that the "hazardous waste permit enforcement scheme established by the [RCRA], of which § 6928(d)(2)(A) is a part, has been supplanted by the California program authorized by the [EPA]." Motion to Dismiss Indictment at 1 Ins. 7-10. The court disagrees.

As an initial matter, the court concludes that the term "program" as used in Section 6926(b) is ambiguous. The term is not defined by the statute, see Wyckoff, 796 F.2d at 1200, and could conceivably, as Defendants appear to suggest, include the enforcement provisions of RCRA, specifically Section 6928(d)(2)(A). The court concludes, however, that such an interpretation would be inconsistent with RCRA as a whole and with its legislative history. See e.g. id. at 1200-01 (rejecting the defendant's contention that Section 6926(b) clearly encompassed "the sum of the hazardous waste management authorities and activities described anywhere in subtitle C" and concluding that it could find no clear congressional intent that Section 6926(b) be interpreted to disable the EPA's civil enforcement powers (in this case pursuant to 42 U.S.C. § 6934) "wherever an authorized state hazardous waste program operates `in lieu of the Federal program.'").

An interpretation identical to the one proffered by Defendants was rejected by the First Circuit in United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir.1991). In MacDonald, the defendants contended, in a post-conviction appeal, that the district court lacked jurisdiction over the counts that charged violations of 42 U.S.C. 6928(d)(1) & (2). See id. at 43. The defendants, like Defendants in this case "argue[d] that Rhode Island's authorized state program displaced the federal program, leaving no federal crime and ousting the federal court of jurisdiction." Id. The defendants, like Defendants in this case "emphasize[d] the statutory language which authorizes the state to carry out its program in lieu of the federal program." Id. The defendants further argued that the term "program" in Section 6926(b) "incorporates the exclusive responsibility to enforce criminal provisions penalizing the disposal of hazardous wastes." Id. at 44.

In refusing to accept the defendants' interpretation, see id., the First Circuit concluded that the "permit under this subchapter" language of Section 6928(d)(2)(A) meant both permits issued by the Administrator of the EPA and those issued by authorized states. See i...