US v. White

• Decision Date: 28 March 1991
• Docket Number: No. CR-90-228-AAM to CR-90-232-AAM.,CR-90-228-AAM to CR-90-232-AAM.
• Citation: 766 F. Supp. 873
• Parties: UNITED STATES of America, Plaintiff, v. Jack D. WHITE, Robert Dickman, Gary McCourt, Steven Steed, and Puregro, Inc., Defendants.
• Court: U.S. District Court — District of Washington

766 F. Supp. 873

UNITED STATES of America, Plaintiff, v. Jack D. WHITE, Robert Dickman, Gary McCourt, Steven Steed, and Puregro, Inc., Defendants.

Nos. CR-90-228-AAM to CR-90-232-AAM.

United States District Court, E.D. Washington.

March 28, 1991.

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Rebecca Dewees, U.S. Dept. of Justice, Environmental Crimes Section, Washington, D.C. and Jerry Ackerman, Office of the Atty. Gen., Ecology Div., Olympia, Wash., for plaintiff.

Leslie Weatherhead, Witherspoon, Kelley, Davenport & Toole, Spokane, Wash., for Jack White.

Roger Peven, Hackney, Peven & Schwartz, Spokane, Wash., for Robert Dickman.

David V. Marshall, Davis Wright Tremaine, Seattle, Wash., for Gary McCourt.

Alan Zarky, Dan R. Dubitzky, P.S., Seattle, Wash., for Steven Steed.

Robert Whaley, Winston & Cashatt, Spokane, Wash., for Puregro, Inc.

PRETRIAL ORDER

McDONALD, District Judge.

On March 1, 1991 at 11:00 a.m. in Yakima, Washington the court conducted a pretrial conference and motion hearing in the above-captioned criminal cases.

In ruling on the parties' various motions the court shall consider, except as specifically noted below, all material on file. Accordingly, all motions to: (1) shorten time; (2) file overlength briefs; (3) allow late filings; and (4) file supplemental briefs are hereby GRANTED.

I.

The instant indictment charges five defendants (Jack D. White, Robert Dickman, Gary McCourt, Steven Steed, and Puregro, Inc.) in four separate counts involving the alleged illegal storage, transportation, and disposal of hazardous waste under The Resource Conservation and Recovery Act (hereafter RCRA), one count of knowing endangerment under RCRA, and one count of applying a pesticide in a manner inconsistent with its labelling under The Federal Insecticide, Fungicide, and Rodenticide Act (hereafter FIFRA).

The Resource Conservation and Recovery Act of 1976 is a comprehensive environmental statute under which the EPA is granted authority to regulate solid and hazardous wastes. American Mining Congress v. EPA, 824 F.2d 1177, 1178 (D.C.Cir. 1987). Congress' overriding concern in enacting RCRA was to establish the framework for a national system to insure the safe management of hazardous waste. American Mining, 824 F.2d at 1179; H.R. Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6238, 6240, 6241. In addition, RCRA was designed to conserve valuable material and energy resources. American Mining, 824 F.2d at 1179.

RCRA is divided into two major parts: one deals with non-hazardous solid waste management and the other with hazardous waste management. Id. Under RCRA authority the EPA promulgated regulations establishing a comprehensive management system. Id. The system that has evolved, as evidenced by the C.F.R.'s, is quite detailed and complex.

II.

In late 1982 an evaporator tank was installed on the Puregro facility near Pasco, Washington. With the advent of stricter regulations regarding pesticides and other hazardous wastes in the early 1980's, disposal of waste pesticide materials and rinseates had become more difficult and expensive. Purportedly the purpose of the evaporator tank was to reduce the volume of pesticide rinseates which were produced at the facility from washing out various equipment and containers so that disposal of those rinseates would be less expensive.

The tank was used as a repository for many different types of pesticide rinseates over approximately five years, from late 1982 to May, 1987. Accordingly to the government, Puregro employees were instructed to place pesticide rinseates into the tank until it was full. Moreover, the government contends that Puregro kept no records of what was put into the tank. Some of these rinseates were allegedly contaminated with Telone II (1,3-Dichloropropene).

Sometime in 1986, the defendants contacted Crosby & Overton, Inc., referred to by the government as a hazardous waste disposal company and by the defendants as an environmental consulting firm, regarding the material in the evaporator tank. After analyzing the material Crosby & Overton advised that the material would not have to be handled as a hazardous waste if Puregro could find a use for the rinsate consistent with its intended use and also in a manner consistent with Department of Agriculture guidelines. Crosby & Overton further advised that if the material is declared waste, it must be handled as a hazardous waste.

On May 9, 1987 the defendants loaded the material from the tank into a truck and on May 12, 1987, sprayed the material on a field. The spraying allegedly resulted in endangering many citizens in the area.

Count 1 alleges a conspiracy to violate RCRA by storing, transporting, and disposing of hazardous waste without a permit, specifically 1,3-Dichloropropene. Counts 2, 3, and 4 allege violations of RCRA with respect to storage, transportation, and disposal of hazardous waste without a permit, specifically 1,3-Dichloropropene. Count 5 alleges a knowing endangerment under RCRA with respect to hazardous waste, specifically 1,3-Dichloropropene. Count 6 alleges application of the pesticides Dyfonate and Telone II in a manner inconsistent with their labelling.

III.

JOINT MOTION TO DISMISS FOR DENIAL OF DUE PROCESS, BASED ON THE VOID FOR VAGUENESS DOCTRINE OR, ALTERNATIVELY, BASED ON EPA'S UNAUTHORIZED EXTENSION OF THE RCRA REGULATIONS TO MATERIALS NOT "WASTE"

The defendants move to dismiss counts 1 through 5 of the Indictment on the grounds that the regulations that define "solid waste" and "hazardous waste" are impermissibly vague.

Shortly before the hearing the government filed a supplemental response to defendants' motion to dismiss for vagueness contending that this court lacks jurisdiction to resolve such an issue. The statute upon which the government bases its argument, 42 U.S.C. § 6976(a)(1), states:

A petition for review of action of the Administrator in promulgating any regulation, or requirement under this chapter or denying any petition for the promulgation, amendment or repeal of any regulation under this chapter may be filed only in the United States Court of Appeals for the District of Columbia, and such petition shall be filed within ninety days from the date of such promulgation or denial, or after such date if such petition for review is based solely on grounds arising after such ninetieth day; action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedings for enforcement;

Relying on Yakus v. United States, 321 U.S. 414, 430-31, 64 S.Ct. 660, 670, 88 L.Ed. 834 (1944) the government contends that when Congress has created an exclusive review process for challenging regulations, a criminal defendant may not use his criminal trial to challenge those regulations. The Supreme Court discussed the need to limit the multitude of possible forums which could be used to challenge regulations if no guidelines were provided. Id. at 432, 64 S.Ct. at 671. "Congress sought to avoid or minimize these difficulties by the establishment of a single procedure." Id. at 433, 64 S.Ct. at 671.

The government concludes that because all challenges to the regulations which have been promulgated under RCRA must be brought in the Court of Appeals for the District of Columbia within ninety days of their promulgation, the defendants are statutorily precluded from raising a due process challenge to the validity of the regulations in the context of a criminal prosecution.

It appears that the government has ignored the fact that the defendants challenge the regulations as applied in this case. The defendants do not seek to invalidate the whole regulatory scheme on its face. Consequently, it would have been impossible for the defendants to challenge the regulations within ninety days of their promulgation simply because they contend that the regulations are vague as applied in the instant case. This court is not precluded by section 6976 from addressing defendants' vagueness argument.

The standards for evaluating vagueness were set forth in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972):

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

In considering vagueness issues the Court has subjected economic regulation to a much less stringent test because its subject matter is more narrow and because businesses can be expected to consult relevant legislation in advance of action. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). More importantly, the Court has expressed less tolerance with statutes imposing criminal penalties because of the potentially severe consequences. Id. at 498-99, 102 S.Ct. at 1193. The government erroneously argues that the instant criminal case involves economic regulation and that the defendants should have consulted relevant legislation before acting. To the contrary, the individual defendants face the possibility of rather severe sentences if convicted. Because the statute and regulations at issue involve severe criminal penalties, this court shall apply a relatively strict test.

The defendants' 44-page memorandum is not only lengthy, but appears to...