ELR Citation: ELR 20031
No(s). 91-CR-59 (N.D.N.Y. Jun 20, 1991)

The court holds that to obtain a conviction under §3008(d)(2)(A) of the Resource Conservation and Recovery Act (RCRA) for illegally storing and disposing of hazardous waste without a permit, the government need not prove that the defendants knew that a permit was required or that their company did not have a permit. The court initially observes that its consideration of the government's pretrial motion in limine concerning the elements of the alleged RCRA offense will not prejudice the defendants. The court notes that while the wording and structure of §3008(d)(2)(A) support the conclusion that knowledge of the permit requirement is not an element of the offense, the court must also examine the legislative history and case law. Noting that the legislative history is not helpful and no Second Circuit decisions have addressed the issue, the court analyzes the holdings of the two court of appeals cases that have addressed the issue. In United States v. Johnson & Towers, Inc., 14 ELR 20634, the Third Circuit held that the government was required to prove that the defendants knew their company was legally obligated to have a permit and that the company did not have a permit. The court finds unpersuasive the Third Circuit's rationale that it was unlikely that Congress intended to impose different knowledge requirements in subparagraphs (A) and (B) of §3008(d)(2), or that the word "knowingly" at the beginning of subsection (d)(2) applies to subparagraph (A). In United States v. Hoflin, 19 ELR 21140, the Ninth Circuit held that knowledge of the absence of a permit it not an element of the offense under §3008(d)(2)(A). The court agrees with the Ninth Circuit's reasoning that reading the word "knowingly" at the beginning of subsection (d)(2) into subsection (d)(2)(A) would eviscerate the distinction in subparagraphs (A), which does not contain the word "knowing," and subparagraph (B), which does. Further, the court notes that its interpretation is consistent with a U.S. Supreme Court decision holding that due process is not violated when Congress does not require a mental state for every element of an offense when dangerous products or waste are involved. The court next holds that the government is not required to provide defendant with a bill of particulars identifying which hazardous substances the defendant allegedly stored or disposed, unless the government intends to establish the defendants' liability by reference to hazardous substances not specified in its memorandum of law. Finally, the court orders the government to identify the documents it intends to use as evidence for its case in chief at trial.

Counsel for Plaintiff
Frederick J. Scullin, U.S. Attorney; Craig A. Benedict, Ass't U.S. Attorney
100 S. Clinton St., Rm. 900, Syracuse NY 13260
(315) 423-5165

Counsel for Defendants
George H. Lowe
Bond, Schoeneck & King
1 Lincoln Ctr., 18th Fl., Syracuse NY 13202
(315) 422-0121

William R. Bartholomae
Marris & Bartholomae
217 S. Salina St., Syracuse NY 13202
(315) 472-6417