U.S. v. Protex Industries, Inc.

• Decision Date: 11 May 1989
• Docket Number: No. 88-1371,88-1371
• Citation: 874 F.2d 740
• Parties: , 19 Envtl. L. Rep. 21,061 UNITED STATES of America, Plaintiff-Appellee, v. PROTEX INDUSTRIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 740

874 F.2d 740

29 ERC 1593, 19 Envtl. L. Rep. 21,061

UNITED STATES of America, Plaintiff-Appellee, v. PROTEX INDUSTRIES, INC., Defendant-Appellant.

No. 88-1371.

United States Court of Appeals Tenth Circuit.

May 11, 1989.

Michael J. Norton, Acting U.S. Atty., Denver, Colo. (Roger J. Marzulla, Asst. Atty. Gen., Kenneth R. Fimberg, Douglas W. Curless, Asst. U.S. Attys., Denver, Colo., Peter J. Murtha, Peter R. Steenland, Jr., J. Carol Williams, Dept. of Justice, Washington, D.C., Elizabeth M. Ojala, U.S. E.P.A., Washington, D.C., of Counsel, with him on the brief), for plaintiff-appellee.

David G. Palmer (Michael E. Miner, with him on the brief), Denver, Colo., for defendant-appellant.

Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and SAFFELS, District Judge ^*.

SAFFELS, District Judge.

This appeal was taken from the first criminal conviction under the "knowing endangerment" provision of the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6928(e), recently enacted by Congress. Appellant Protex Industries, Inc. ("Protex") appeals from its criminal conviction under that provision as well as from its other convictions under the RCRA. ¹

Protex operated a drum recycling facility. It purchased used 55 gallon drums, many of which previously contained toxic chemicals. It cleaned and repainted the drums and used them to store and ship other products it manufactured.

The Environmental Protection Agency ("EPA") inspected Protex's facilities annually. One of these inspections was conducted on July 24, 1984, by a representative of the Colorado Department of Health under contract with the EPA. The Department of Health conducted the inspection pursuant to section 3012 of the RCRA, 42 U.S.C. Sec. 6933, which requires each state to compile an inventory of sites at which hazardous waste has at any time been disposed of, treated or stored. The inspector took soil samples while at the site, but results of the laboratory analysis of those samples were never provided to Protex.

Another inspection was conducted in August of 1985. Again samples were taken, but results were not provided to Protex.

On March 10 and 11, 1986, investigators from the EPA and the Federal Bureau of Investigation executed a search warrant at Protex's drum recycling facility. A federal grand jury later returned a nineteen count indictment against Protex, and Protex was convicted of sixteen of those nineteen counts.

Counts 17 through 19 of that indictment charged Protex with knowingly placing three of its employees in imminent danger of death or serious bodily injury as a result of its other alleged violations of the RCRA. The evidence showed that safety provisions for the employees in the drum recycling facility were woefully inadequate to protect the employees against the dangers of the toxic chemicals. Government experts testified that without these proper safety precautions, the employees were at an increased risk of suffering solvent poisoning. Solvent poisoning may cause psychoorganic syndrome, of which there are three types. Symptoms of Type 1 psychoorganic syndrome are disturbances in thinking, behavior and personality, and sleeping disorders. Type 1 is reversible quickly and goes away when exposure ends. Type 2 psychoorganic syndrome is divided into two categories, A and B. An individual suffering from Type 2-A suffers changes in personality and has difficulty controlling impulses; the individual engages in unplanned and unexpected behavior, lacks motivation, and usually experiences severe mood swings. If exposure to the toxic chemicals ends, an individual suffering from Type 2-A will eventually recover. An individual suffering from Type 2-B psychoorganic syndrome, however, will have additional, nonreversible symptoms, such as concentration problems, short and remote memory problems, decreased learning ability, and cognitive impairment. Finally, an individual suffering from Type 3 psychoorganic syndrome suffers a severe loss of learning capabilities, severe memory loss, severe psychiatric abnormalities and gross tremor. The government experts also testified that in addition to being at risk for psychoorganic syndrome, the employees suffered an increased risk of contracting cancer as a result of their extended exposure to the toxic chemicals.

The testimony of government experts further showed that two of the employees certainly had Type 2-A psychoorganic syndrome and may have had Type 2-B. The government expert testified that he could not demonstrate that the third employee was suffering from psychoorganic syndrome at the time he was examined, but pointed out that he might still have suffered from the syndrome and since recovered from its symptoms. Finally, the expert testified that all three individuals had an increased permanent and irreversible risk of developing cancer due to their prolonged exposure to the toxic chemicals.

Protex states three grounds for its appeal. It contends that the trial court rendered 42 U.S.C. Sec. 6928(e) unconstitutionally vague as applied in two regards. First, it argues that the trial court erred in allowing the "knowing endangerment" counts to go to the jury, despite the alleged absence of any evidence showing the employees were placed in imminent danger of serious bodily injury as specifically defined by 42 U.S.C. Sec. 6928(f)(6). Secondly, it contends the trial court rendered the section unconstitutionally vague as applied because it improperly instructed the jury that an individual was placed in "imminent danger" if it "could reasonably be expected" that the set of conditions would cause death or serious bodily injury. Defendant contends this language did not track the language of the statute and it unconstitutionally expanded it beyond the intent of Congress. Finally, appellant contends the trial court erred in refusing to give a requested instruction on Protex's defense that the government failed to meet its duty to provide results of any on-site inspections to Protex, as required by 42 U.S.C. Sec. 6927(a).

I.

The question of whether a statute has been rendered unconstitutionally vague as applied is a question involving issues of law and our standard of review is therefore de novo. Western Nuclear, Inc. v. Huffman, 825 F.2d 1430, 1437 (10th Cir.1987), rev'd on other grounds, --- U.S. ----, 108 S.Ct. 2087, 100 L.Ed.2d 693 (1988); Allis-Chalmers Credit Corp. v. Tri-State Equipment Co., 792 F.2d 967, 970 (10th Cir.1986); Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir.1986).

Although a statute's meaning may be plain on its face, it can be rendered unconstitutionally vague as applied. The void for vagueness doctrine finds its basis in the guarantee of due process. In Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), the United States Supreme Court elaborated on the void for vagueness doctrine. "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Id. at 391, 46 S.Ct. at 127. A statute can be void for vagueness not only on its face, but as applied, as a result of "an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964). Whether a court is analyzing a statute as void for vagueness on its face or as applied, the essence of the doctrine is that a potential defendant must have some notice or "fair warning" that the conduct contemplated is forbidden by the criminal law. Id.

Title 42, United States Code, Section 6928(e) provides that: "Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under [the RCRA] in violation of [the criminal provisions of the RCRA] who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall [be guilty of an offense against the United States.]" Title 42, United States Code, Section 6928(f)(6) defines "serious bodily injury" as: (A) bodily injury which involves a substantial risk of death; (B) unconsciousness; (C) extreme physical pain; (D) protracted and obvious disfigurement; or (E) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Protex contends that the trial court rendered section 6928(e) unconstitutionally vague by expanding the definition of "serious bodily injury" beyond that set out in section 6928(f)(6). Protex states that if the employees were placed in any "danger" at all, it was a danger of developing Type 2-A psychoorganic syndrome, a condition which does not come within the scope of subparagraphs (A)-(E) of section 6928(f)(6). Protex also argues that the enhanced "risk" of contracting some indeterminate type of cancer at some unspecified time in the future is not sufficient to constitute "serious bodily injury."

Appellant's position demonstrates a callousness toward the severe physical effect the prolonged exposure to toxic chemicals may cause or has caused to the three former employees. There was evidence presented at trial to show that the three individuals not only had been in danger of serious bodily injury, but had in fact suffered serious bodily injury: Type 2-A and Type 2-B psychoorganic syndrome may cause an impairment of mental faculties. ²

II.

Protex contends secondly that the statute was rendered unconstitutionally vague because in instructing the jury, the district court defined "imminent danger" as "the...