ELR Citation: ELR 21296
No(s). 91-5970 (6th Cir. Jul 8, 1992)

The court upholds the criminal conviction of a production manager at a metals fabricating facility in Tennessee that generated hazardous waste, based on several counts of Resource Conservation and Recovery Act (RCRA) violations. The court noting that case law and RCRA's legislative history establish that employees may be criminally liable under RCRA §3008(d), holds that the manager is liable, because he supervised daily the metal fabricating process and instructed employees in hazardous waste handling and disposal. The court holds that the manager's ignorance of RCRA's permit requirements is not a defense, because persons involved in hazardous waste handling have every reason to be aware that their activities are regulated by law, especially where documentation provided by the chemical manufacturer communicates knowledge of hazardous waste laws to the manager. The court then rejects the manager's argument that the waste was not hazardous on the ground that it did not pose a danger to human health in the conditions under which it was being stored. RCRA permits are required to store hazardous substances regardless of whether the storage is itself safe, to remedy dangers to the public health presented by facilities whose generation of hazardous waste is unknown to the requisite authorities. The court also rejects the manager's argument that the facility's waste lagoon was a point source subject to a RCRA exclusion. Environmental Protection Agency regulations specifically address the exclusion from RCRA's "solid waste" definition of point source discharges by separating the lagoon's actual point source discharge from the contents stored in the lagoon. Finally, the court affirms the enhancement of the manager's criminal sentence on the ground that there were five or more participants in the offense.

Counsel for Plaintiff-Appellee
Paul Rosenzweig, Andrew Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellant
Barry Staubus
202 E. Unaka Ave., Johnson City TN 37601
(615) 928-6106

Before: NELSON and NORRIS, Circuit Judges; and JOINER, Senior District Judge^*