U.S. v. Hoflin

• Decision Date: 14 July 1989
• Docket Number: No. 86-3071,86-3071
• Citation: 880 F.2d 1033
• Parties: , 106 A.L.R.Fed. 823, 58 USLW 2078, 19 Envtl. L. Rep. 21,140 UNITED STATES of America, Plaintiff-Appellee, v. Douglas HOFLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1033

880 F.2d 1033

30 ERC 1419, 106 A.L.R.Fed. 823, 58

USLW 2078,

19 Envtl. L. Rep. 21,140

UNITED STATES of America, Plaintiff-Appellee, v. Douglas HOFLIN, Defendant-Appellant.

No. 86-3071.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 8, 1989.

Decided July 14, 1989.

Allen R. Bentley, Bukey & Bentley, Seattle, Wash., for defendant-appellant.

John A. Bryson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before HUG, NORRIS and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Douglas Hoflin appeals his felony conviction for aiding and abetting the disposal of hazardous waste during his tenure as Director of Public Works for the City of Ocean Shores, Washington, in violation of 42 U.S.C. Sec. 6928(d)(2)(A). Hoflin also appeals his misdemeanor conviction for aiding and abetting the burial of sludge at the Ocean Shores sewage treatment plant, contrary to the conditions of the plant's operating permit in violation of 33 U.S.C. Sec. 1319(c)(1).

Hoflin contends his conviction under 42 U.S.C. Sec. 6928(d)(2)(A) requires proof that he knew there was no permit for disposal

of the waste, and that the jury instructions omitted this element of the offense. He also contends that the jury instructions were inadequate to define the misdemeanor offense created by 33 U.S.C. Sec. 1319(c)(1). We affirm.

BACKGROUND

Hoflin was the Director of the Public Works Department for Ocean Shores, Washington ("City"), from 1975 to 1980, when he left for personal reasons. In 1982, he returned as Assistant Director until he again became Director in 1983. As Director, Hoflin's responsibilities included supervising maintenance of roads and operation of a sewage treatment plant. The criminal prosecution in this case arose from the disposal of two types of waste generated by the City: paint left over from road maintenance and sludge removed from the kitchen of the City's golf course. These wastes were buried at the City's sewage treatment plant.

A. Leftover Road Paint

Hoflin and his successor, John Hastig, bought 3,500 gallons of paint for road maintenance from 1975 through 1982. As painting jobs were finished, 55-gallon drums which had contained paint were returned to the Public Works Department's yard. Drums which were empty were used elsewhere or given away. Fourteen drums which still contained paint remained. In the fall of 1982, Hastig moved these drums inside a building located on the Public Works Department yard to keep the paint from freezing. The fire marshal, however, ordered Hastig to return the drums to the outdoors because of the risk of explosion. Hoflin was aware that the drums had to be moved because of the flammable nature of their contents.

When Hoflin again became Director in 1983, he told Fred Carey, director of the sewage treatment plant, that he planned to dispose of the drums by burying them at the plant. Carey replied that burying the drums might jeopardize the plant's NPDES certificate, ¹ but Hoflin said he was going to do it anyway.

Hoflin instructed an employee to haul the paint drums to the sewage treatment plant and bury them. Hoflin claimed he told the employee to bury only drums in which the contents had solidified, but the employee testified that Hoflin gave no such instruction. Around August, 1983, employees of Hoflin's department took the drums to the treatment plant, dug a hole on the grounds of the plant, and dumped the drums in. Some of the drums were rusted and leaking, and at least one burst open in the process. The hole was not deep enough, so the employees crushed the drums with a front end loader to make them fit. The refuse was then covered with sand.

Almost two years later, in March 1985, Carey reported the incident to state authorities. After inspecting the plant, the state authorities referred the matter to the Environmental Protection Agency ("EPA"). EPA employees recovered the drums, but because several of the drums had no lids or had been crushed, paint had already leaked into the soil. Ten of the fourteen drums recovered contained liquid material. The EPA tested samples taken from these ten drums. It found the highest flash point for the samples to be 65 Fahrenheit. Under the Resource Conservation and Recovery Act of 1976 ("RCRA"), substances with flash points of 140 Fahrenheit or less are deemed to be hazardous. (See 40 C.F.R. Sec. 261.21). Such hazardous materials can only be disposed of at facilities with EPA permits. No such permit had been obtained.

B. Kitchen Sludge from the Golf Course Restaurant

The City owns a golf course which houses a restaurant. Periodically, the grease trap in the kitchen septic system is pumped out and the sludge is taken to the sewage treatment plant. Because this sludge contains so much grease, it kills the bacteria necessary for the treatment process and has to be specially burned. In September 1984, three truck loads of this sludge were transported to the City's sewage treatment plant, but Carey refused to accept delivery. Carey told Hoflin that accepting the sludge could jeopardize the plant's NPDES certificate. Hoflin told him to take it anyway and to bury it rather than treat it. ² The sludge was then dumped into a depression on the grounds of the plant and covered with a backhoe. This burial violated the plant's NPDES permit.

C. The Indictment

The grand jury indicted Hoflin on three counts. Count I charged him with conspiracy to dispose of hazardous waste without having obtained a permit, in violation of 18 U.S.C. Sec. 371 and 18 U.S.C. Sec. 2. Count II charged Hoflin with disposing of the paint without a permit in violation of 18 U.S.C. Sec. 2, the Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), 42 U.S.C. Sec. 6928(d)(2)(A) ("section 6928(d)(2)(A)"), and regulations issued pursuant to RCRA. Count III charged Hoflin with disposing of the kitchen sludge in violation of 18 U.S.C. Sec. 2 and 33 U.S.C. Sec. 1319(c)(1). A jury found Hoflin guilty on Counts II and III, and not guilty on Count I. The district court suspended the imposition of sentence and placed Hoflin on two years probation.

DISCUSSION

A. Section 6928(d)(2)(A)

On appeal from his conviction on Count II, Hoflin contends he did not know the City did not have a permit to dispose of the paint. He argues knowledge a permit was lacking is an element of the offense charged in Count II, and that failure to so instruct the jury was reversible error. "Because it is a question of law whether the district court's instructions to the jury misstated the elements of a statutory crime, we review this claim de novo." United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir.1986) (citations omitted).

Hoflin's challenge to his conviction on Count II focuses on subsection (2)(A) of 42 U.S.C. Sec. 6928(d) (1982). ³ Section 6928(d) provides in pertinent part:

(d) Criminal penalties

Any person who--

....

(2) knowingly treats, stores or disposes of any hazardous waste identified or listed under this subchapter either--

(A) without having obtained a permit under section 6925 of this title....; or

(B) in knowing violation of any material condition or requirement of such permit;

....

shall, upon conviction, be subject to [fines, imprisonment or both]. (emphasis added).

42 U.S.C. Sec. 6928(d)(2)(A) and (B).

It is Hoflin's position that "knowingly" in subsection (2) modifies both subsections (A) and (B). Under this interpretation, knowledge becomes an essential element of the crime defined by section 6928(d)(2)(A), and Hoflin could not be convicted on Count II without proof that he knew no permit had been obtained. He correctly points out that the jury was not given an instruction to this effect. This argument requires us to interpret section 6928(d)(2)(A) and decide whether knowledge of lack of a permit is an essential element of the crime the statute defines.

Statutory interpretation begins with the language of the statute itself. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The absence of the word "knowing" in subsection (A) is in stark contrast to its presence in the immediately following subsection (B). The statute makes a clear distinction between non-permit holders and permit holders, requiring in subsection (B) that the latter knowingly violate a material condition or requirement of the permit. To read the word "knowingly" at the beginning of section (2) into subsection (A) would be to eviscerate this distinction. Thus, it is plain that knowledge of the absence of a permit is not an element of the offense defined by subsection (A). The statute is not ambiguous. On the contrary, "[t]he language is plain and the meaning is clear. Our statutory construction inquiry, therefore, is at an end." United States v. Patterson, 820 F.2d 1524, 1526 (9th Cir.1987) (citing Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987) (citation omitted)).

Hoflin relies on United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir.1984), to argue that this interpretation of the statute is unreasonable and could not have been intended by Congress. In Johnson & Towers, the Third Circuit held that employees could be subjected to criminal prosecution under section 6928(d)(2)(A) only if they knew or should have known their employer had failed to obtain the required permit. Johnson & Towers, 741 F.2d at 664-65. In remanding the case to the district court for trial, the Third Circuit in Johnson & Towers stated that the necessary knowledge element could be inferred from proof that the individuals charged with violating section 6928(d)(2)(A) had "responsible positions with the corporate defendant," presumably meaning that based on the positions they held in the company it could be inferred they either knew of should have known...