ELR Citation: ELR 21498
No(s). 90-50708 (9th Cir. Jun 29, 1992)

The court holds that §3008(b)(1) of the Resource Conservation and Recovery Act (RCRA) requires proof that a defendant transporting hazardous waste knew the recipient facility lacked a storage permit, and reverses a conviction for unlawful transport of hazardous waste. The president of a company that operated vans equipped to treat waste effluent discharged from electroplating generators was convicted on four counts for unlawfully transporting hazardous waste to a facility that did not have a storage permit. The district court had instructed the jury that the government is not required to prove that the defendant knew that the facility did not have a RCRA storage permit. Noting an absence of specific guidance from RCRA's legislative history, the court construes RCRA §3008(d)(1) as requiring proof that the defendant knew the facility lacked a permit. RCRA punishes the transportation of hazardous waste to an unlicensed facility, but removing the knowledge requirement would criminalize innocent conduct, such as that of a transporter who relied in good faith on a recipient's fraudulent certificate. The court rejects the government's reliance on United States v. Hoflin, 19 ELR 21140, involving RCRA §3008(d)(2)(A), which imposes criminal liability on persons who knowingly treat, store, or dispose of waste when their own facilities lack permits, because that subsection of RCRA differs markedly from §3008(d)(1). A dissenting judge would construe Hoflin as foreclosing a reading of the statute that avoids criminalizing innocent conduct by incorporating a knowledge requirement.

Counsel for Defendant-Appellant
Lupe Martinez, Deputy Federal Public Defender
Public Defender's Office
312 N. Spring St., Los Angeles CA 90012
(213) 894-2434

Counsel for Plaintiff-Appellee
Gary S. Lincenberg, Ass't U.S. Attorney
U.S. Attorney's Office
312 N. Spring St., Los Angeles CA 90012
(213) 894-2434

Before Pregerson and Rymer, JJ.