ELR Citation: ELR 20367
No(s). 98-30063 (9th Cir. Dec 11, 1998)

The court affirms the jury convictions of the president of a chemical company for unlawfully discharging wastewater into a municipal sewage system. The court first holds that the company president violated the Federal Water Pollution Control Act (FWPCA), the Washington Administrative Code (WAC), and the Olympia Municipal Code irrespective of any effect his discharges had on the water. The WAC and the Olympia Code incorporate the FWPCA's standard by reference and, thus, prohibit the discharge of any trucked or hauled industrial waste except at discharge points designated by publicly owned treatment works (POTWs). Here, the president discharged hauled or trucked industrial waste at a point not designated by the POTW. Therefore, the district court did not err by refusing to instruct the jury about the effect that the president's discharges had on the water. The district court also did not abuse its discretion by refusing to allow the president's expert to testify about the effect that the discharges had on the water. In addition, the district court did not err by denying the president's motion for acquittal. The court next holds that the FWPCA, the WAC, and the Olympia Code are not unconstitutionally vague as applied to the president. A reasonable person of ordinary intelligence would understand from reading the FWPCA, the WAC, and the Olympia Code that all three prohibit the discharge of any trucked or hauled industrial waste except at discharge points designated by the POTW.

The court then holds that under the FWPCA, a person is a "responsible corporate officer" if the person has authority to exercise control overthe corporation's activity that is causing the discharges. There is no requirement that the officer in fact exercise such authority or that the corporation expressly vest a duty in the officer to oversee the activity. The court further holds that the district court's instruction accurately reflected the responsible corporate officer doctrine. By requiring the jury to find that the president had both the authority and the capacity to prevent the discharges, the district court ensured that the jury could convict the president only if he had actual authority to exercise control over the drum-cleaning operation. The court also holds that, read as a whole, the responsible corporate officer instruction was not erroneous. It did not allow the jury to convict the president without finding a violation of the FWPCA. The instruction only relieved the government of having to prove that he personally discharged or caused the discharge of the pollutant. Last, the court holds that evidence of the president's prior discharges of industrial waste satisfied the requirements of Fed. R. Evid. 404 (b). The president's prior discharges tend to prove his familiarity with the company's industrial waste. And the prior acts were sufficiently relevant because of the similarity between the prior and charged acts, and because the president's knowledge of the company's industrial waste did not change over time.

Counsel for Plaintiff
Helen J. Brunner, Ass't U.S. Attorney
U.S. Attorney's Office
3600 Sea-First Plaza Bldg.
800 5th Ave., Rm. 3601, Seattle WA 98104
(206) 553-7970

Counsel for Defendant
James L. Magee
Graham & Dunn
1420 5th Ave., 33d Fl., Seattle WA 98101
(206) 624-8300

Before Boochever and Reinhardt, JJ.