U.S. v. Sims Brothers Construction Inc.
| Decision Date | 04 January 2002 |
| Docket Number | 0031462,5 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SIMS BROTHERS CONSTRUCTION, INC., ROBERT L. CASE, MARK E. JERKINS, AND AMTEK OF LOUISIANA, INC, Defendants-Appellants.UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Middle District of Louisiana
Before GARWOOD, WIENER, and CLEMENT*, Circuit Judges.
Defendants-Appellants, Sims Brothers Construction, Inc. (Sims), Robert Case (Case), Mark Jerkins (Jerkins), and Amtek of Louisiana, Inc. (Amtek) (collectively "Defendants"), challenge their convictions for illegal storage of hazardous waste in violation of the Resource Conservation and Recovery Act (RCRA), Title 42 U.S.C. §6928(d)(2)(A). We affirm the district court's conclusion that Title 42 U.S.C. §6928(d)(2)(a), as applied to this case, does not violate due process. We also affirm the district court's conclusion that the indictment charged the defendants with the essential elements of the crime and that the factual basis was sufficient to support the defendants' guilty pleas. Finally, we conclude that the district court did not lack jurisdiction.
The facts were stipulated to by the parties. In January 1997, Albertson's Inc. ("Albertson's"), a corporation which owns and operates grocery stores throughout the nation, purchased property in Baton Rouge, Louisiana on which to build a supermarket. Subsequent to its purchase of the property, Albertson's contracted with Sims to be its general contractor. Sims subcontracted the demolition and site preparation work to Amtek.
On May 20, 1997, after commencing work, Amtek discovered two yellow canisters designed to hold gases under pressure. The canisters were located inside one of the buildings scheduled to be demolished. Both canisters had a label bearing a skull and crossbones and the word "poison" written on it. The canisters additionally had "Property of Reddick Fumigants" stamped on them. It was subsequently discovered that the canisters contained liquified methyl bromide. Testing revealed that one or both of the canisters contained hazardous waste. The methyl bromide in both canisters weighed less than 100kg, and the total hazardous waste on the site was less than 1000kg in any one calendar month and less than an average of 100kg per calendar month for the calendar year.
An employee discovered the canisters in the building and immediately informed defendants Case, the president of Amtek, and Jerkins, the superintendent hired by Sims to oversee the project. Case and Jerkins, aided by others, removed the canisters from the building and set them in an open on-site area. Jerkins saw a poison label on one of the canisters, and Case saw the word "fumigant" on another. Case and Jerkins were not aware of the precise contents of the canisters until after they had been tested.
Jerkins and Case intended to have someone remove the canisters from the work site. They had discussions regarding proper removal of the canisters by an environmental company. However, no further effort to have the canisters removed from the site was made. Neither Jerkins nor Case or any representative of Sims or Amtek notified Albertson's, law enforcement, an environmental agency, or any commercial or industrial entity regarding the presence of the canisters. Both Jerkins and Case knew that Albertson's had conducted an environmental site assessment on the property which did not indicate the presence of containers with hazardous waste. The canisters remained at the site until approximately June 13, 1997 when an Amtek employee removed the canisters from the property without the defendants' knowledge. The employee gave the canisters to his cousin, Edith Rome. Ms. Rome had the canisters brought to her home and connected to her propane stove. The methyl bromide leaked from the canisters and made Ms. Rome and her son ill. Ms. Rome later died from methyl bromide poisoning.
Subsequent investigation revealed that the canisters were filled by Reddick Fumigants, Inc. and were bought by W.L. Albritton Farms in October, 1977. In 1977, the property was operated as a peach and vegetable farm. When it ceased being used as a farm, apartments were built on the property. Ms. Hallie Box managed the properties owned by ASA. She stated that the building in which the canisters were found was used for storage. Ms. Box was not aware of the canisters. ASA did not own the canisters. Ms. Box explained that, had she known of the canisters, she would have considered them trash and had them properly disposed of by an environmental company. Reddick Fumigants was still in existence in May and June of 1997 and would have accepted a return of the cylinders and their contents.
The defendants were indicted by a grand jury in the Middle District of Louisiana on February 9, 1999. They were charged with illegal storage of hazardous waste in violation of RCRA, Title 42 U.S.C. §6928(d)(2)(A). The defendants filed several motions to dismiss the indictment in the district court. They alleged that they were denied due process either because the regulations at issue were unconstitutionally vague or because the government had not shown the minimum mens rea required for conviction. They also asserted that the indictment was defective and that the district court lacked jurisdiction because the government was seeking to enforce state law.
The defendants maintained throughout the district court proceedings that they were "small quantity generators1" and were exempt from the permit requirements for the storage of hazardous waste. The government asserted that the defendants were not "generators" and therefore could not be small quantity generators entitled to an exemption. The district court held that the defendants were not generators because the canisters were already waste when Albertson's bought the property. The canisters became waste, and therefore subject to regulation, when they were abandoned by W.L. Albritton.
The motions to dismiss the indictments were denied by the district court, and the defendants subsequently entered into a plea agreement with the government. The defendants pled guilty to the indictment but specifically reserved their right, on appeal, to review the denial of the motions to dismiss the indictment and to contest whether the stipulated facts supported the defendants' guilty pleas. At the hearing to accept the plea agreements, the defendants argued that the stipulated facts were insufficient to support a conviction under §6928(d)(2)(A). The district court concluded that the factual basis was sufficient and accepted the defendants' guilty pleas. The defendants were sentenced on December 1, 2000, and judgments were entered on December 7, 2000.2 The defendants timely filed notices of appeal, and all four appeals were consolidated.
Constitutional challenges are reviewed de novo.3 The defendants contend that application of Title 42 U.S.C. §6928(d)(2)(A) to the instant facts violates the due process requirement that criminal statutes give fair warning and notice of proscribed conduct. The defendants raise four due process issues on appeal. First, the defendants had no notice or fair warning that they would not be considered "generators" and thus not exempt from permit requirements for on-site storage of hazardous waste. Second, they had no knowledge of the facts supporting the denial of the on-site storage permit exception which rendered their conduct criminal. Third, the defendants maintain that they did not have notice that Chapter 21 of Louisiana's Hazardous Waste Regulations would apply to them since it was repealed as state law by the Louisiana legislature. Fourth, they argue that the definition of "storage" is unconstitutionally vague because the definition of "storage" as applied to compressed gas in a cylinder includes containing gas in a cylinder with no further action on the part of the defendants.
A "generator" is defined by the Louisiana Department of Environmental Quality ("DEQ") and the EPA as "any person, by site, whose act or process produces hazardous waste identified or listed, or whose act first causes hazardous waste to become subject to regulation."4 While storing hazardous waste without a permit is usually prohibited, there are exceptions to the permit requirement for generators who meet certain conditions. "Small quantity generators" ("SQGs"), those who "generate less than 1000kg of hazardous waste in a calendar month," have more lenient standards by which to abide.5 Federal regulations permit SQGs to store hazardous waste on-site without a permit for 180 days as long as they comply with safe storage conditions.6 SQGs who generate 100kg or less of hazardous waste in a calendar month are "conditionally exempt" SQGs ("CESQGs").7 Waste generated by CESQGs is not subject to regulation and may be stored without a permit provided certain conditions are met.
The defendants submit that demolition contractors who remove hazardous substances from buildings that are scheduled to be demolished are "generators." Recalling that a generator is one who "produces" or "whose act first causes hazardous waste to become subject to regulation," it is clear that neither Albertson's nor the defendants qualify as generators. The facts clearly show that the canisters of methyl bromide were "waste" when Albertson's bought the property, so neither Albertson's nor the defendants could be considered generators because they did not produce or first cause the hazardous waste to become subject to regulation.
Even if the defendants were considered to be generators, to be exempt from having a permit as an SQG, certain conditions must be met under both state and federal regulations. The facts to which the defendants stipulated clearly show that they did not...
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