USA. v. Elias

• Decision Date: 23 October 2001
• Docket Number: No. 00-30145,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-30145
• Citation: 269 F.3d 1003
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. ALLEN ELIAS,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1003

269 F.3d 1003 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ALLEN ELIAS, DEFENDANT-APPELLANT.

No. 00-30145

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 5, 2001

Filed October 23, 2001

NOTE: SEE AMENDED OPINION OF DECEMBER 21, 2001.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Scott A. Schumacher, John M. Colvin, and Darrell D. Hallett (argued), Chicoine & Hallett, P.S., Seattle, Washington, for the defendant-appellant.

Lois J. Schiffer, Assistant Attorney General, Environment and Natural Resources Division, Betty Richardson, United States Attorney, and Jeffrey C. Dobbins (argued) Attorney, United States Department of Justice, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. CR-98-00070-BLW

Before: Wallace, Hall, and T.G. Nelson, Circuit Judges.

T.G. Nelson, Circuit Judge:

After a three-and-a-half-week trial, a jury convicted Allen Elias of four offenses, the most serious of which was disposing of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 6928(e). Elias appeals on numerous grounds. We address several of them here and the remainder in a memorandum disposition filed contemporaneously.

I. BACKGROUND

A. Offense Conduct

Allen Elias owned Evergreen Resources, a fertilizer company located near Soda Springs, Idaho. In August 1996, Elias decided to transfer sulfuric acid from two railroad cars into a stationary 25,000-gallon tank that he had transported to Evergreen from his previous business, AEI.

At AEI, Elias had used the thirty-six-foot-long, eleven-foot-high tank as a storage tank for byproducts of a cyanide leaching process he had patented. Elias realized that his process resulted in the transfer of cyanide-laced solids into the tank. He admitted, moreover, that there were one to two tons of cyanide-laced sludge left in the tank when he shipped it to Evergreen in the early 1990s. This sludge did not preclude Elias from using the tank for some purposes. In 1996, however, Elias decided that the sludge, which was hardened and more than a foot deep, had to be cleaned out of the tank before he could store the sulfuric acid in it.

On August 26, 1996, Elias ordered four of his employees, Bryan Smith, Gene Thornock, Darrin Weaver, and Scott Dominguez, to enter the tank and wash the sludge out a valve opening in the end. Despite Smith's repeated requests, Elias failed to provide any safety equipment for this task. Consequently, Dominguez and Weaver entered the tank wearing only their regular work clothes. After about fifteen minutes, they realized that the sludge could not be washed out the small hole in the end of the tank, and they exited. Both complained of sore throats and nasal passages.

The next morning, on August 27, 1996, Elias met with his employees, who told him of the difficulties of the day before and the health effects they suffered. Smith again insisted on the necessary safety equipment. Elias said he would get it, but told his employees to proceed anyway and that he expected the tank to be cleaned out that morning. Although he instructed his employees to "do it by the book, " Elias provided none of the safety equipment or training needed for them to do so.

After cutting a bigger hole in the end of the tank, Dominguez and Weaver again entered the tank with no safety equipment. About 45 minutes later, after they had emptied about one-third of the sludge through the hole onto the ground, Weaver shouted that Dominguez had collapsed. Thornock and Smith unsuccessfully tried to get Dominguez out of the tank, which had only a 22-inch manhole at the top. When firefighters got to Dominguez, he was in severe respiratory distress and in danger of dying.

After extricating Dominguez, the fire chief asked Elias whether cyanide could be in the tank. Elias insisted that he had no knowledge of anything in the tank other than water and sludge, which the fire chief understood to mean mud.

After Dominguez was rushed to the hospital in Soda Springs, the treating physician there concluded that the most likely cause of his condition was cyanide poisoning. He called Elias and asked him whether there was a possibility that there was cyanide in the tank, to which Elias again replied no. The doctor nonetheless asked the LifeFlight helicopter from Pocatello to bring a cyanide antidote kit to Soda Springs. After the doctor administered it, Dominguez responded positively. Blood drawn while Dominguez was in the Soda Springs hospital revealed extremely toxic levels of cyanide in his body.

The day Dominguez was injured Elias told investigators that he had completed a confined space entry permit, although it was "handwritten" and "not very formal. "He declined, however, to actually provide the permit to investigators at that time. Early the next morning, Elias visited an acquaintance at a nearby company, Kerr-McGee Corp., where he inquired about the requirements for confined space entries and departed with a copy of Kerr-McGee's safety manual, which spelled out the requirements for a confined space entry permit. The permit Elias eventually provided investigators stated that it was issued on August 27, 1996, at 10:30 am.

Weeks after Dominguez was injured, Elias ordered a new employee to move and bury the same sludge, again without safety precautions.

B. District Court Proceedings

Based on this conduct, a grand jury returned a four-count indictment against Elias. In Count I, the indictment charged that Elias had stored or disposed of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 6928(e), the Resource Conservation and Recovery Act ("RCRA"). Counts II and III, which stemmed from events that transpired after Dominguez was injured, charged him with improper disposal of hazardous waste without a permit in violation of 42 U.S.C. § 6928(d). Count IV charged Elias with a violation of 18 U.S.C. § 1001 for making material misstatements relating to the confined space entry permit that he alleged was prepared on August 27, 1996. On May 7, 1999, the jury convicted Elias on all four counts.

In June 1999, prior to sentencing, counsel for the Government spoke with Boyd Greenlee, the jury foreperson. Greenlee told them that Elias had spoken to one of the alternate jurors and asked what it would take to get him off. Counsel for the Government apprized both the court and Elias's counsel of Greenlee's revelation, causing a full evidentiary inquiry to ensue. In October 1999, Elias moved for a new trial based on juror bias and perceived jury tampering. The district court denied Elias's motion, having concluded, based on two evidentiary hearings, that because everyone involved thought the incident was a joke, no risk of bias infected the jury's deliberations.

In October 1999, Elias also moved to dismiss the three RCRA counts in his indictment, asserting that the United States had ceded its criminal enforcement authority to the State of Idaho when the Environmental Protection Agency ("EPA") authorized it to manage a hazardous waste program under RCRA. Initially, the district court agreed in part and granted Elias's motion to dismiss Counts II and III. As a result of both parties' motions for reconsideration, the district court reversed its earlier ruling and reinstated Counts II and III. The district court held, however, that those counts should be amended in order to list Idaho law rather than federal law as a basis for the charges.

On April 28, 2000, the district court sentenced Elias to 204 months in prison and ordered him to pay $6.3 million in restitution. Elias appeals.

II. ANALYSIS

A. Federal Enforcement of RCRA's Criminal Sanctions

Elias argues that Counts I, II, and III of his indictment must be dismissed because they alleged¹ federal RCRA violations, and when the EPA authorized Idaho's hazardous waste program, that program replaced and supplanted federal RCRA law, effectively stripping the United States of enforcement authority. Elias derives support for his argument from 42 U.S.C. § 6926. That section, which governs" Authorized State hazardous waste programs,"² provides in relevant part:

Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter may develop and . . . submit to the [EPA] Administrator an application . . . for authorization of such program . . . . [If the Administrator approves the program,] [s]uch State is authorized to carry out such program in lieu of the Federal program under this subchapter in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste . . . .³

Because Idaho's hazardous waste program was concededly EPA-authorized at all relevant times, the crucial sentence for our purposes is the second one: "Such State is authorized to carry out such program in lieu of the Federal program under this subchapter . . . ."⁴ Our task is to reconcile this "in lieu of" language with the language of 42 U.S.C. § 6928, the RCRA "Federal enforcement" provision enacted the same year. As its title implies, § 6928 authorizes federal criminal and civil enforcement and penalties.⁵

Elias argues that, pursuant to § 6926, Idaho's authorized hazardous waste program displaced the federal program, leaving no federal crimes and ousting the federal court of jurisdiction. The linchpin of this argument, which the First Circuit flatly rejected in United States v. MacDonald & Watson Waste Oil Co.,⁶ "is that the term `program' in § 6926 incorporates the exclusive responsibility to enforce criminal provisions penalizing the disposal of hazardous wastes."⁷ Because construing RCRA in this manner contravenes Chevron's⁸ dictates as well as RCRA's...