ELR Citation: ELR 20221
No(s). 93-1100 (2d Cir. Dec 1, 1993)

The court affirms the jury convictions of a business owner for knowingly disposing of hazardous waste without a permit in violation of §3008(d)(2)(A) of the Resource Conservation and Recovery Act (RCRA) and for failing to report the release of a hazardous substance as required by §103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the district court properly instructed the jury concerning the §3008(d)(2)(A) violation despite its decision not to charge the jury that RCRA requires knowledge by the defendant that the waste involved is identified or listed hazardous waste under RCRA. RCRA requires knowledge by the defendant that the waste involved is identified or listed hazardous waste under RCRA. RCRA requires only that a defendant have a general awareness that he is performing acts proscribed by the statute. The court also holds that a defendant's knowledge that he lacks a permit is not an element of a §3008(d)(2)(A) violation. The word "knowing" is notably omitted from §3008(d)(2)(A). The court next holds that the knowledge element of a CERCLA §103(a) violation requires only that the defendant be aware of his acts. Section 103(a) does not demand knowledge of the regulatory requirements of CERCLA. Finally, the court holds that the trial court's failure to modify its jury charge on "present or potential hazard to human health or the environment" under RCRA §1004(5)(B) with the word "substantial" was not plain error. Although including "substantial" would have resulted in a more complete and accurate instruction, the court's instructions, taken as a whole, logically require that the jury find that the waste was actually hazardous in the sense that RCRA defines it. The court urges that in the future, the better course will be to include "substantial" in jury instructions relating to hazardous waste under RCRA.

[The district court decision is published at 22 ELR 20031.]

Counsel for Appellee
Craig A. Benedict, Ass't U.S. Attorney
U.S. Attorney's Office
James F. Hanley Federal Bldg.
100 S. Clinton St., Rm. 900, Syracuse NY 13260
(315) 423-5165

Counsel for Appellants
Bruce R. Bryan
333 E. Onondaga St., Syracuse NY 13202
(315) 476-1800

Miner, J. (before Newman and Pierce, JJ.)