ELR Citation: ELR 20050
No(s). s. CR-90-228-AAM et al (E.D. Wash. Mar 28, 1991)

The court issues various rulings on pretrial motions in a criminal prosecution under the Resource Conservation and Recovery Act (RCRA) charging four corporate officers and one corporation with four counts of illegal storage, transportation, and disposal of hazardous waste and one count of knowing endangerment. Defendants stored pesticide rinseates in an evaporator tank on their facility and later sprayed the rinseates on a field, allegedly endangering local citizens. The court first holds that the Environmental Protection Agency's (EPA's) regulations defining solid and hazardous waste under RCRA are not unconstitutionally vague as applied to defendants. RCRA's judicial review provision, which requires that challenges to regulations be brought in the D.C. Circuit within 90 days of promulgation, does not preclude review because defendants challenge the regulations as applied in this case. The court, applying the relatively strict test for vagueness applicable to statutes imposing criminal penalties, notes that EPA's regulations are dense, turgid, and a bit circuitous. However, the defendants' vagueness argument appears to be a disguised argument that they did not intend to discard or dispose of the material in the evaporator tank and thus the material could not be considered a solid or hazardous waste under the regulations. This determination is a question of fact for the jury. The court next holds that the government was not required under RCRA §3007(a) to provide the defendants with portions of the samples taken at the defendants' facility unless requested. Further, the government's failure to provide the defendants with receipts for the samples taken as required by RCRA §3007(a) did not violate the defendants' due process rights. There is no evidence that the government acted in bad faith and the government did not know the samples would exculpate the defendants when the samples were used up. The court next grants in part the defendants' motion to strike certain misleading or immaterial portions of the indictment, including portions of the introduction outlining the government's version of RCRA and language describing a substance as a listed hazardous waste.

The court holds that storage of hazardous waste without a permit is a continuing offense not barred by the statute of limitations. The court holds that three individual handwritten statements by the defendants and a joint statement summarizing a meeting between a state agency official and the defendants are admissible at trial under the co-conspirator exception to the hearsay rule and thus will not violate the Confrontation Clause of the U.S. Constitution. The court also refuses to suppress certain statements on the grounds that defendants were coerced by the penalties in RCRA §3007(a) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) into giving these statements. These statements were given to a state official acting solely under the authority of state law, and there is no evidence that defendants were aware of the RCRA and FIFRA provisions when they gave their statements. The court next grants the defendants' motion to sever the knowing endangerment count of the indictment. Testimony concerning a death and 23 illnesses allegedly caused by the defendants' spraying could prejudice the defendants on the other counts. The court then denies an individual defendant's motion to dismiss, holding that it is possible for a corporate officer to conspire with a corporation and that the indictment is not fatally vague, multiplicitous, or duplicitous. The court next grants an individual defendant's motion to strike portions of the government's bill of particulars concerning the responsible corporate officer doctrine. Application of this doctrine would allow a conviction without showing the requisite specific intent required by RCRA §3008(d).

Counsel for Plaintiff
Rebecca Dewees
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Jerry Ackerman
Attorney General's Office
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Defendants
Leslie Weatherhead
Witherspoon, Kelley, Davenport & Toole
Old National Bldg., 11th Fl., Spokane WA 99201
(509) 624-5265

Roger Peven
Hackney, Peven & Schwartz
N. 221 Wall St., Spokane WA 99201
(509) 624-8200