U.S. v. Johnson & Towers, Inc., 83-5745

• Citation: 741 F.2d 662
• Decision Date: 21 August 1984
• Docket Number: No. 83-5745,83-5745
• Parties: , 14 Envtl. L. Rep. 20,634 UNITED STATES of America, Appellant v. JOHNSON & TOWERS, INC., Jack W. Hopkins and Peter Angel.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 662

741 F.2d 662

21 ERC 1433, 14 Envtl. L. Rep. 20,634

UNITED STATES of America, Appellant v. JOHNSON & TOWERS, INC., Jack W. Hopkins and Peter Angel.

No. 83-5745.

United States Court of Appeals, Third Circuit.

Argued May 21, 1984.

Decided Aug. 15, 1984.

As Amended Aug. 21, 1984.

Michael Gilberti (argued), Asst. U.S. Atty., W. Hunt Dumont, U.S. Atty., Newark, N.J., for appellant.

Joseph A. Carmen (argued), Haddonfield, N.J., for appellee Peter Angel.

Jeffrey A. Libert (argued), Falciani & Fletcher, Woodbury, N.J., for appellee Jack W. Hopkins.

Before GARTH and SLOVITER, Circuit Judges, and NEAHER, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Before us is the government's appeal from the dismissal of three counts of an indictment charging unlawful disposal of hazardous wastes under the Resource Conservation and Recovery Act. In a question of first impression regarding the statutory definition of "person," the district court concluded that the Act's criminal penalty provision imposing fines and imprisonment could not apply to the individual defendants. We will reverse.

I.

The criminal prosecution in this case arose from the disposal of chemicals at a plant owned by Johnson & Towers in Mount Laurel, New Jersey. In its operations the company, which repairs and overhauls large motor vehicles, uses degreasers and other industrial chemicals that contain chemicals such as methylene chloride and trichlorethylene, classified as "hazardous wastes" under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Secs. 6901-6987 (1982) and "pollutants" under the Clean Water Act, 33 U.S.C. Secs. 1251-1376 (1982). App. at 18a. During the period relevant here, the waste chemicals from cleaning operations were drained into a holding tank and, when the tank was full, pumped into a trench. The trench flowed from the plant property into Parker's Creek, a tributary of the Delaware River. Under RCRA, generators of such wastes must obtain a permit for disposal from the Environmental Protection Agency (E.P.A.). The E.P.A. had neither issued nor received an application for a permit for Johnson & Towers' operations.

The indictment named as defendants Johnson & Towers and two of its employees, Jack Hopkins, a foreman, and Peter Angel, the service manager in the trucking department. ¹ According to the indictment, over a three-day period federal agents saw workers pump waste from the tank into the trench, and on the third day observed toxic chemicals flowing into the creek.

Count 1 of the indictment charged all three defendants with conspiracy under 18 U.S.C. Sec. 371 (1982). Counts 2, 3, and 4 alleged violations under the RCRA criminal provision, 42 U.S.C. Sec. 6928(d) (1982). Count 5 alleged a violation of the criminal provision of the Clean Water Act, 33 U.S.C. Sec. 1319(c) (1982). Each substantive count also charged the individual defendants as aiders and abettors under 18 U.S.C. Sec. 2 (1982).

The counts under RCRA charged that the defendants "did knowingly treat, store, and dispose of, and did cause to be treated, stored and disposed of hazardous wastes without having obtained a permit ... in that the defendants discharged, deposited, injected, dumped, spilled, leaked and placed degreasers ... into the trench ...." The indictment alleged that both Angel and Hopkins "managed, supervised and directed a substantial portion of Johnson & Towers' operations ... including those related to the treatment, storage and disposal of the hazardous wastes and pollutants" and that the chemicals were discharged by "the defendants and others at their direction." The indictment did not otherwise detail Hopkins' and Angel's activities or responsibilities.

Johnson & Towers pled guilty to the RCRA counts. Hopkins and Angel pled not guilty, and then moved to dismiss counts 2, 3, and 4. The court concluded that the RCRA criminal provision applies only to "owners and operators," i.e., those obligated under the statute to obtain a permit. Since neither Hopkins nor Angel was an "owner" or "operator," ² the district court granted the motion as to the RCRA charges but held that the individuals could be liable on these three counts under 18 U.S.C. Sec. 2 for aiding and abetting. The court denied the government's motion for reconsideration, and the government appealed to this court under 18 U.S.C. Sec. 3731 (1982).

We hold that section 6928(d)(2)(A) covers employees as well as owners and operators of the facility who knowingly treat, store, or dispose of any hazardous waste, but that the employees can be subject to criminal prosecution only if they knew or should have known that there had been no compliance with the permit requirement of section 6925.

II.

The single issue in this appeal is whether the individual defendants are subject to prosecution under RCRA's criminal provision, which applies to:

[a]ny 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.

42 U.S.C. Sec. 6928(d) (emphasis added). The permit provision in section 6925, referred to in section 6928(d), requires "each person owning or operating a facility for the treatment, storage, or disposal of hazardous waste identified or listed under this subchapter to have a permit" from the E.P.A.

The parties offer contrary interpretations of section 6928(d)(2)(A). Defendants consider it an administrative enforcement mechanism, applying only to those who come within section 6925 and fail to comply; the government reads it as penalizing anyone who handles hazardous waste without a permit or in violation of a permit. Neither party has cited another case, nor have we found one, considering the application of this criminal provision to an individual other than an owner or operator.

A.

As in any statutory analysis, we are obliged first to look to the language and then, if needed, attempt to divine Congress' specific intent with respect to the issue. See Citizens Council v. Brinegar, 741 F.2d 584 at 589 - 590 (3d Cir.1984). The language of the particular section under consideration does not readily support either interpretation proffered by the opposing parties. Had Congress merely intended an administrative enforcement measure, as defendants contend, it could have specified that any person required under section 6925 to obtain a permit would be liable for acting without one. On the other hand, if Congress had meant to subject to prosecution anyone who did not have a permit, as the government argues, it could have phrased subsection (A) of section 6928(d)(2) to provide that any treatment, storage or disposal in the absence of a permit or outside the terms of such a permit is illegal. It did not so state explicitly.

However, if we view the statutory language in its totality, the congressional plan becomes more apparent. First, "person" is defined in the statute 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) (1982). Had Congress meant in section 6928(d)(2)(A) to take aim more narrowly, it could have used more narrow language. Cf. Russello v. United States, --- U.S. ----, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (RICO). Since it did not, we attribute to "any person" the definition given the term in section 6903(15). ³

Second, under the plain language of the statute the only explicit basis for exoneration is the existence of a permit covering the action. Nothing in the language of the statute suggests that we should infer another provision exonerating persons who knowingly treat, store or dispose of hazardous waste but are not owners or operators.

Finally, though the result may appear harsh, it is well established that criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose. See United States v. Park, 421 U.S. 658, 672-73, 95 S.Ct. 1903, 1911-1912, 44 L.Ed.2d 489 (1975); Smith v. California, 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 (1959); United States v. Dotterweich, 320 U.S. 277, 280-81, 284-85, 64 S.Ct. 134, 136-137, 138, 88 L.Ed. 48 (1943); United States v. Balint, 258 U.S. 250, 251-52, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922); see also United States v. Frezzo Brothers, Inc., 602 F.2d 1123, 1128 (3d Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980).

The statutory construction issue here, whether the criminal provision may be applied to the individual defendants who were not in the position to secure a permit, is similar to that presented to the Supreme Court in United States v. Dotterweich. There the defendant, a jobber, had been convicted of violating the Food and Drugs Act, providing a criminal penalty for "any person" shipping adulterated or misbranded drugs. Under the statute, there was no violation if a guaranty had been issued with the goods stating that they were not contaminated or misbranded. The drugs in question originated with the manufacturer and the jobber had undertaken only to label and ship them. The Court of Appeals overturned the conviction, concluding that the guaranty provision could apply only to principals and that the penalty provision must be correspondingly limited. The court found it "difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one." United States v. Buffalo Pharmacal Co., 131 F.2d 500, 503 (2d Cir.1942).

The Supreme Court reinstated the conviction. In construing the term "any person," it rejected...