ELR Citation: ELR 20787
No(s). 90-1216 (5th Cir. Mar 1, 1991)

The court upholds an individual's conviction and sentence for knowingly and willfully disposing of a hazardous waste without a permit in violation of §3008(d)(2)(A) of the Resource Conservation and Recovery Act (RCRA). A jury found the defendant guilty of dumping 16 drums of hazardous paint waste, including methylethylketone (MEK), on a creek embankment in Jones County, Mississippi. The district court sentenced the defendant to 41 months imprisonment and three years of supervised release and ordered the defendant to pay $6,130 to the state for cleaning up the site. The court first holds that the district court properly admitted testimony of a conversation in which the defendant allegedly stated that he had dumped chemicals in rural Mississippi and allegedly referred to MEK. If the defendant was referring to the dumping for which he was convicted, his statements would be admissible as an admission under Rule 801(d)(2) of the Federal Rules of Evidence. If he was referring to another dumping, the statement would be admissible to establish his knowledge that he was dumping MEK, an element of a RCRA §3008 violation. The court next holds that the district court's refusal to instruct the jury that the government was required to prove that the defendant knew that the substance he disposed of was potentially hazardous was not plain error. Even assuming that the district court should have given this instruction, the omission was not plain error because the defendant knew the waste was potentially dangerous to humans and the environment. Finally, the court holds that the district court properly increased the defendant's offense level under the U.S. Sentencing Guidelines for the discharge of a hazardous substance. The guidelines require a discharge resulting in actual environmental contamination. The district court may have inferred actual environmental contamination from a leak in one drum.

Counsel for Appellant
Orbie S. Craft
209 Commerce Dr., Ste. B, Brandon MS 39042
(601) 825-6988

Counsel for Appellee
Ruth R. Harris, Ass't U.S. Attorney
245 E. Capitol St., Ste. 324, Jackson MS 39201
(601) 965-4480

Before WISDOM, KING, and BARKSDALE, Circuit Judges.