ELR Citation: ELR 21283
No(s). 93-10285 (9th Cir. Jul 25, 1994)

The court affirms the conviction of a laboratory manager who violated §103(b)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by failing to notify federal authorities of the release of a reportable quantity of sodium hypochlorite, a hazardous substance, from drums he had stored on leased property and subsequently abandoned. The court holds that there was sufficient evidence to support the jury's finding that the man voluntarily abandoned the sodium hypochlorite at the site. Although he claimed his landlord ordered him to leave the premises, he did not later attempt to obtain permission to access the site to remove the drums. A reasonable juror could conclude that he intended to, and did in fact, abandon the chemicals. The court also holds there was sufficient evidence for the jury to conclude that the man failed to report the release to the National Response Center as required under §103(a). The court rejects the man's claim that his conviction should be reversed because of prosecutorial misconduct. The prosecutor's reference in closing argument to documents not in evidence concerning his failure to report the release was improper, but not prejudicial. There was sufficient other evidence that he did not report the release, he did not contest at trial the issue of whether he notified the National Response Center, and the prosecutor's misstatement was neither intentional nor based on an improper motive. Finally, the court holds that §103(b)(3) does not require the government to prove as an element of the offense that the alleged release was not "federally permitted." Section 103(b)(3)'s exception for federally permitted releases states an affirmative defense. Because the definition of "federally permitted release" in CERCLA §101(10) includes releases authorized under various federal statutes and state law, it is easier for a defendant to present evidence that a release is federally permitted than for the government to produce evidence that the release is not federally permitted.

Counsel for Plaintiff
Mark E. Cullers, Ass't U.S. Attorney
U.S. Attorney's Office
4304 Federal Bldg.
1130 O St., Fresno CA 93721
(209) 487-5172

Counsel for Defendant
John P. Balazs, Ass't Federal Public Defender
Federal Public Defender's Office
1313 P St., Ste. 104, Fresno CA 93721
(209) 487-5561

Before Ferguson and Trott, JJ.