ELR Citation: ELR 21449
No(s). s. 90-1051 et al (1st Cir. May 10, 1991)

The court rules on defendants' appeal of their convictions for violations of the criminal provisions of the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case concerns corporations and individuals involved with a site containing soil contaminated with toluene. The court first holds that the evidence was sufficient for the jury to find that the soil was contaminated with toluene and was a RCRA hazardous waste. The court holds that the evidence was sufficient to convict an individual defendant under RCRA §3008(d)(1) for knowingly transporting a hazardous waste to a facility without a permit. The jury could reasonably have inferred that this defendant, an official with the company that transported the contaminated soil, knew that the material involved was a RCRA hazardous waste. The court holds that the evidence was sufficient to convict another employee of this company under RCRA §3008(d)(1). The jury could reasonably have inferred that this employee knew that the shipped material was toluene-contaminated soil and that he either knew that the permit for the disposal facility did not allow acceptance of such material or willfully failed to determine the material's status under the permit. The court next holds that the federal government may bring actions under RCRA §3008(d) and its companion criminal provisions in states with authorized hazardous waste programs.

The court then upholds the conviction of various defendants under RCRA §3008(d)(1) and (d)(2)(A) for knowingly transporting the contaminated soil to a facility without a permit and for knowingly treating, storing, and disposing of the contaminated soil without a permit. Although the facility to which the waste was transported had a RCRA permit, the permit did not allow disposal of toluene-contaminated soil. RCRA's provision making it illegal to transport hazardous waste to a facility that does not have a permit implies that the facility does not have a permit for the particular substance involved. The court next reverses the conviction of the president/owner of the company that transported the contaminated soil. The court holds that the jury instructions on the responsible corporate officer doctrine improperly allowed the jury to convict the president/owner under RCRA §3008(d)(1) without finding that he had actual knowledge of the alleged transportation of hazardous waste. The district court improperly applied a form of the responsible corporate officer doctrine that applies to strict liability misdemeanors as a substitute means for proving the explicit knowledge element of this RCRA felony. While knowledge may be inferred from circumstantial evidence and wilful blindness to the facts constituting the offense may be sufficient to establish knowledge, a mere showing of official responsibility is not an adequate substitute for direct or circumstantial proof of knowledge.

The court next upholds the conviction of two defendants under CERCLA §103(b)(3) for failure to immediately notify the appropriate federal agency of a release of a reportable quantity of a hazardous substance. Although the indictment and jury instructions incorrectly established the reportable quantity of toluene-contaminated soil as one pound, the error was harmless. The evidence established that ten large truckloads of the hazardous waste were released. The courts holds that the toluene-contaminated soil, rather than toluene alone, is the relevant hazardous waste for release reporting purposes. Further, the reportable quantity for toluene-contaminated soil is 1,000 pounds. The government's argument that toluene-contaminated soil is an independent hazardous waste with a default reportable quantity of one pound is illogical given that the reportable quantity for toluene alone is 1,000 pounds. Finally, the court holds that the district court properly joined counts of the indictment under Federal Rule of Criminal Procedure 8(b). The counts involved disposal of waste at the same site, involved largely the same personnel, and occurred over a relatively short time.

Counsel for Appellee
Joseph G. Block
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Lincoln C. Almond, U.S. Attorney; Craig Moore, Ass't U.S. Attorney
10 Dorrance St., 10th Fl., Providence RI 02903
(401) 528-5477

Counsel for Appellants
Evan Slavitt
Hinckley, Allen, Snyder & Comen
1 Financial Ctr., Boston MA 02111
(617) 345-9000

Stephen R. Delinsky
Eckert Seamans Cherin & Mellott
1 International Pl., 30th Fl., Boston MA 02110
(617) 330-8720

Before Campbell, Circuit Judge, Timbers,^* Senior Circuit Judge, and Cyr, Circuit Judge.