US v. Laughlin

• Decision Date: 20 June 1991
• Docket Number: No. 91-CR-59.,91-CR-59.
• Citation: 768 F. Supp. 957
• Parties: UNITED STATES of America, v. Kenneth LAUGHLIN and John Donnelly, Defendants.
• Court: U.S. District Court — Northern District of New York

768 F. Supp. 957

UNITED STATES of America, v. Kenneth LAUGHLIN and John Donnelly, Defendants.

No. 91-CR-59.

United States District Court, N.D. New York.

June 20, 1991.

Frederick J. Scullin, U.S. Atty., N.D.N.Y., Syracuse, N.Y., for U.S.; Craig A. Benedict, Asst. U.S. Atty., of counsel.

Bond, Schoeneck & King, Syracuse, N.Y., for defendant Laughlin; George H. Lowe, of counsel.

Marris & Bartholomae, Syracuse, N.Y., for defendant Donnelly; William R. Bartholomae, of counsel.

MEMORANDUM-DECISION & ORDER

MUNSON, Senior District Judge.

Before the court is the United States' motion in limine for a pre-trial determination regarding the elements of an offense under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(d)(2)(A). Also before the court is defendant Laughlin's motion to compel the government to furnish a bill of particulars and to identify documents which the government intends to use as evidence in chief at trial. The court heard oral argument on May 10, 1991 in Syracuse, New York.

I. BACKGROUND

Defendants are charged in a twenty-seven count indictment with illegally storing and disposing of hazardous wastes without a permit in violation of RCRA, 42 U.S.C. § 6928(d)(2)(A) (Counts 1-11, 23, 26), and failing to report the release of hazardous substances in violation of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9603(a) & (b) (Counts 12-22, 24-25, 27). Because the government's motion in limine is directed only at that part of the indictment charging defendants with violations of RCRA, the court similarly limits its discussion to that portion of the indictment.

Defendant Kenneth Laughlin was the president and/or plant manager of GCL Tie Treating Inc. and defendant John Donnelly was one of GCL's supervisors. GCL's business involved treating unfinished railroad ties with creosote, a hazardous waste and substance, which is used as a wood preservative and pesticide to prevent rotting. The indictment charges that between April of 1986 and January 7, 1988 defendants knowingly stored and disposed of creosote, or caused such storage or disposal, at a location adjacent to the GCL site without a permit. (Counts 1-11). The indictment further alleges that on October 30, 1986 a pressure treating cylinder containing creosote burst and creosote was released, contaminating the adjacent soil. Thereafter, the soil was gathered into a large mound. Defendants are charged with knowingly storing the hazardous waste produced from this spill from January 30, 1987 through January 7, 1988. (Count 23). Finally, the indictment charges that on or about January 8, 1988 defendant Laughlin knowingly disposed of, or caused to be disposed, all of GCL's remaining creosote and hydrochloric acid without a permit. (Count 26). GCL ceased operations in January of 1988.

II. DISCUSSION

A. Government's Motion In Limine

42 U.S.C. § 6928(d)(2) provides as follows:

Any person who —

knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter —

(A) without a permit under this subchapter ...; or

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

(C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards ...

shall, upon conviction, be subjected 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.

The only issue raised by the government's motion in limine is whether in order to obtain a conviction under section 6928(d)(2)(A) it is necessary that the government prove that the defendants knew that it was illegal to treat, store, or dispose of hazardous waste without first obtaining a permit and also knew that GCL did not have a permit. The government argues that it is not required to prove such knowledge. All that must be demonstrated, the government contends, is the following:

First: The defendants knowingly stored or disposed of or caused others to store or dispose of creosote or hydrochloric acid on or about the time periods set forth in the indictment;

Second: Pursuant to RCRA, the creosote or hydrochloric acid was hazardous;

Third: The defendants knew the creosote or hydrochloric acid had the potential to be harmful to others or the environment, or in other words, it was not an innocuous substance like water; and

Fourth: Neither the defendants nor GCL had obtained a permit or interim status which authorized the storage or disposal of hazardous waste under RCRA.

Government's Motion In Limine, Document ("Doc.") 7, Exhibit 2 (Proposed Jury Instruction). The government contends that its interpretation of section 6928(d)(2)(A) is supported by the plain language of the statute, general principles of statutory construction relating to public welfare offenses, and recent case law interpreting this section.

Defendants oppose the government's motion, asserting that the word "knowingly" as used in the statute modifies not only "treats, stores, or disposes of any hazardous waste", but "without a permit" as well. Therefore, defendants argue that their respective knowledge that they could not legally dispose of or treat hazardous wastes without a permit and knowledge that no such permit had been acquired are essential elements of a section 6928(d)(2)(A) violation.¹

Before considering the parties' respective statutory construction arguments, the court will first address the defendants' procedural objection to the government's motion. Defendants argue that the government's motion is premature. The pre-trial determination that the government seeks, they contend, is more appropriately resolved at a jury charge conference near the close of the proof. In response, the government states that it is not presently seeking a determination of this court's entire jury instruction. Rather, it is merely seeking a ruling as to the essential elements of the charged RCRA offense so that the government will not be required to prove unnecessary facts at trial. While the court agrees with defendants that in most cases a jury charge conference near the close of the proof is the most appropriate time at which to address issues such as the one raised by the government's present motion, because of the unsettled state of the law with regard to the elements of a section 6928(d)(2)(A) violation the court concludes that it is proper to resolve this matter before trial. The court perceives no prejudice to defendants by such a pre-trial determination.

1. The Language of Section 6928(d)(2)(A)

The government argues that the plain language of section 6928(d)(2)(A) supports its interpretation of the elements of the offense. When the language of section 6928(d)(2)(A) is compared with the language of sections 6928(d)(2)(B) & (C), it is apparent, the government asserts, that Congress did not intend the word "knowingly" at the beginning of subsection (d)(2) to modify "without a permit" in subparagraph (A). The government further contends that its position is supported by an examination of the type of conduct that each of the subparagraphs is intended to prohibit. Subparagraphs (B) and (C) are designed to prohibit technical permit violations. If knowledge of the terms of the permit was not an element of the offense then there would be the potential for punishing innocent conduct. Subparagraph (A), however, is aimed at prohibiting more than technical permit violations. Its purpose, the government asserts, is to prevent any treatment, storage, or disposal of hazardous wastes unless a permit is acquired and any reasonable person would know that participating in these activities without a permit is illegal. Therefore, neither knowledge that a permit is required before treatment, storage, or disposal may occur nor knowledge that a permit had not been obtained are elements of an offense under subparagraph (A).

While the government's construction of the statute has much intuitive appeal it is clear that legislative drafters do not always operate with a high degree of linguistic precision. For this reason, the courts have warned against relying too heavily upon the punctuation and grammatical structure of a statute in discerning legislative intent. See, e.g., United States v. Morris, 928 F.2d 504, 507 (2d Cir.1991). This court, therefore, can not rely on the wording and structure of section 6928(d)(2)(A) alone in determining its essential elements.

2. Legislative History

The court turns to the legislative history of RCRA to ascertain whether additional insight into the question raised here can be found. RCRA was enacted by Congress in 1976 as "a multifaceted approach toward solving the problems associated with the 34 billion tons of discarded materials generated each year, and the problems resulting from the anticipated 8% annual increase in the volume of such waste." H.R.Rep. No. 94-1491, Part 1, 94th Cong.2d Sess. 1, reprinted in 1976 U.S.Code Cong. & Admin.News pp. 6238, 6239. Congress specifically found that "hazardous waste presents, in addition to the problems associated with non-hazardous solid waste, special dangers to health and requires a greater degree of regulation than does non-hazardous solid waste." 42 U.S.C. § 6901(b)(5). Accordingly, one of Congress' objectives in enacting RCRA was "regulating the treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on health and the environment." 42 U.S.C. § 6902(4).

Beyond these broad policy statements, however, Congress provided little helpful insight into the precise question raised here. The only reference in the legislative history that the parties and the court have discovered merely indicates that "the state of mind for all criminal violations under section 3008 is `knowing.' The conferees have not sought to define `knowing' for offenses under subsection (d)...