ELR Citation: ELR 21387
No(s). 86-3526 (11th Cir. Aug 1, 1988)

The court holds that in a criminal prosecution of unpermitted and unreported hazardous waste dumping under Resource Conservation and Recovery Act (RCRA) §3008(d)(2)(A) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §103(b)(3), there was sufficient evidence of guilt to sustain a conviction. A jury had convicted the defendant, but the district court judge set aside the jury verdict for insufficient evidence. The court first holds that it has jurisdiction under 18 U.S.C. §3731, which permits courts of appeals to review district court decisions acquitting defendants after they have been found guilty by juries. The Constitution's Double Jeopardy Clause is not violated because no further factfinding will be necessary. The court next holds that there was sufficient evidence to sustain the jury's conviction under RCRA §3008. Although the defendant did not directly instruct his subordinates to dump the hazardous waste onto the ground, it is sufficient that he had approved of previous dumpings and that he told subordinates to "handle" a truckload of waste for which there was no storage room. The bill of lading for the dumped waste listed it as a hazardous waste, 1,1,1-trichloroethane, an employee recognized its smell as such, and traces of this chemical have been detected at the site. The defendant testified that he knew that the law prohibited dumping such chemicals. Finally, the court holds that there was sufficient evidence to sustain the jury's conviction under CERCLA §103. The evidence needed to sustain a conviction under RCRA §3008 that 1,1,1-trichloroethane was dumped and that the defendant knew of such release is also sufficient under CERCLA §103, and the National Response Center designated by CERCLA to receive reports of hazardous waste disposal received no such report from the defendant.

Counsel for Plaintiff-Appellant
Paul J. Moriarty, Ass't U.S. Attorney
410 U.S. Courthouse, 500 Zack St., Tampa FL 33602
(813) 225-7300

Vicki L. Plaut, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendant-Appellee
James M. Russ
Tinker Bldg., 18 W. Pine St., Orlando FL 32801
(305) 849-6050

Before TJOFLAT and HATCHETT, Circuit Judges, and LYNNE^*, Senior District Judge.