The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You

Keith A. Onsdorff and James M. Mesnard

Editors' Summary: EPA and the Department of Justice are aggressively enforcing the criminal provisions of federal environmental laws. Companies and their officers are subject to large fines and jail terms if convicted. Corporate officers should be aware of a recent trend in RCRA criminal enforcement in which the Justice Department has attempted to hold corporate officers and chief executive officers criminally liable for the actions of their subordinates, even when the officers did not have actual knowledge of their employees' illegal conduct. The Justice Department has attempted to apply a theory known as the responsible corporate officer doctrine to override the knowledge requirements in RCRA's criminal liability provision. This Article traces the development of the responsible corporate officer doctrine and analyzes the Justice Department's attempt to apply the doctrine to RCRA cases. The authors observe that although the Justice Department has not been outwardly successful in advancing this approach, it may have shifted the burden of proof in RCRA cases. The authors outline what corporations and their officers can do in response to the expansion of RCRA criminal liability, and conclude that Congress should examine the issue during the upcoming RCRA reauthorization.

Mr. Onsdorff is of counsel and Mr. Mesnard is an associate in the Washington office of the national law firm of Seyfarth, Shaw, Fairweather & Geraldson. Until November of 1990, Mr. Onsdorff was the Director, Office of Criminal Enforcement, U.S. Environmental Protection Agency, Washington, D.C.

[22 ELR 10099]

A fundamental tenet of this nation's criminal law requires that before an act can constitute a crime, the perpetrator must act with criminal intent. The origins of this principle can be traced back to ancient Greek and Roman law, and the requirement of criminal, or "evil," intent was carried forward into eighteenth century English common law. The concept is also firmly rooted in our legal system:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."¹

The Supreme Court has observed that the requirment of criminal intent, or mens rea, "is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence,"² Congress has, however, enacted statutes criminalizing some types of conduct without regard to the accused's intent. Such "strict liability" statutes permit the conviction of a defendant, typically of a misdemeanor, without proof of a knowing violation.³ Limiting the application of strict liability offenses to minor criminal acts chargeable only as misdemeanors limits the defendant's exposure to no longer than a one year term of imprisonment.

The criminal provisions of the Resource Conservation and Recovery Act (RCRA)⁴ specifically require the government to prove a knowing violation before a person can be convicted.⁵ The [22 ELR 10100] unequivocal language of the criminal penalties provision would seem to be clear. The Department of Justice is, however, aggressively enforcing the criminal provisions of RCRA, and the government is increasingly targeting corporate officers for felony prosecutions based on the allegedly illegal conduct of their subordinates, employees, and purported agents. The most alarming aspect of the Justice Department's novel approach to the enforcement of RCRA's criminal provisions is its recent attempts to hold corporate officers and chief executive officers (CEOs) criminally accountable for the actions of their employees and subordinates, even when these top executives did not have actual knowledge of their employees' illegal conduct.

Overly aggressive federal prosecutors have attempted to persuade several federal trial courts to ignore the traditional requirement of personal knowledge that is expressly included in the statute, and to enforce RCRA's felony provisions in a manner analogous to a strict-liability criminal statute. While the Justice Department has not been outwardly successful in advancing this line of reasoning, it may have nonetheless achieved a fundamental shift in the burden of proof in RCRA cases. Using a prosecutorial theory known as the responsible corporate officer doctrine, the Justice Department has tilted the balance in the criminal justice arena away from due process safeguards, which are intended to protect the innocent while allowing for the just punishment of truly guilty individuals, acting with venal or evil intentions.

THE ORIGIN OF THE PROBLEM

The Justice Department's ongoing attempt to impose strict criminal liability on top corporate executives under RCRA can be traced back to a piece of legislation that is almost a century old. The Rivers and Harbors Appropriations Act of 1899 proscribes the discharge of any waste into the navigable waters of the United States, unless the Army Corps of Engineers has authorized the discharge:

It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water;

* * *

And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.⁶

Any person or corporation convicted of a violation is guilty of a misdemeanor. The penalty is "a fine not exceeding $ 2,500 nor less than $ 500, or by imprisonment … for not less than thirty days nor more than one year, or by both such fine and imprisonment …."⁷ The statute, often referred to as the Refuse Act, contains no requirement that a discharge of waste be made knowingly in order for a criminal violation to occur. The Refuse Act is truly a strict liability criminal statute.

The draconian operation of a strict liability criminal provision is well illustrated by a Refuse Act prosecution that occurred in Honolulu, Hawaii, in 1937.⁸ The steamship [22 ELR 10101] PRESIDENT COOLIDGE was tied up at a city pier when a Chinese crew member dumped a container of garbage, apparently consisting mostly of table scraps, from the stern of the ship. As luck would have it, a boat patrolling the harbor to prevent the dumping of trash was passing under the stern of the PRESIDENT COOLIDGE at that very moment, and the garbage landed directly on top of the patrolman in the boat. Enough of the refuse spilled beyond the confines of the patrol vessel to satisfy the statute's jurisdictional requirement for a discharge to be into the water of the United States, and not merely into the lap of a previously dry federal official. Needless to say, the ship and the shipping company were charged and found guilty of violating the Refuse Act, and a monetary penalty was assessed.

This otherwise relatively obscure footnote to our nation's jurisprudential evolution is important because it established a precedent, unheralded as it may have been, that a good faith effort to comply with the letter of the law is no defense to a strict liability offense. The owners of the ship had gone to great lengths to insure that nothing was dumped into the harbor. The ship's officers had explicitly ordered the crew not to dump refuse, and signs, in both English and Chinese, had been placed in conspicuous locations directing the crew not to throw things overboard. The ship's trash chutes had also been locked to prevent their use while the ship was in the harbor. Most importantly, the ship's officers were completely unaware that their orders were being violated.

Nevertheless, since the Refuse Act does not require a violation to be intentional, or even the result of negligence on the part of the accused before culpability arises, the Court of Appeals affirmed both the criminal conviction and the monetary penalty. The Refuse Act prohibits dumping, and there is no requirement that a violation be intentional. Garbage was thrown overboard, and regardless of the steamship company's expressed intent to obey the law, a criminally prosecutable violation occurred. Since the lawful exposure includes the potential for up to oneyear in a federal prison, this legal anomaly, while outside the "mainstream" of criminal culpability theory, has as we shall see given rise to powerful currents.

Until 1966 the Refuse Act was applied almost exclusively to discharges that impeded or affected navigation. In that year, the Supreme Court determined that the Refuse Act prohibits the discharge of all pollutants into navigable waters, regardless of their impact on navigation.⁹ In 1970, the federal government initiated a program allowing the issuance of permits under the Refuse Act, in an attempt to use the statute as a regulatory tool. The Refuse Act program was, however, replaced with another regulatory framework shortly thereafter.¹⁰ Nevertheless, this Act's legacy of strict liability for crimes committed without an evil mind is a harbinger of what may one day come to pass under RCRA, with the Justice Department seeking felony convictions that subject defendants to imprisonment for up to five years.

The Responsible Corporate Officer Doctrine

The responsible corporate officer doctrine is a prosecutorial doctrine that, up until recently, was infrequently invoked to hold individual corporate executives liable for certain public health violations that were exclusively misdemeanor offenses.¹¹ It is applicable in cases involving public welfare statutes that do not require a "knowing" violation. Thus, the doctrine applies only to strict liability criminal offenses. The basis of the theory relies on the premise that the chief executive officer is responsible for the corporation's actions or inactions by virtue of his or her position of ultimate authority. Thus, with respect to statutes aimed at protecting the public health and welfare, the doctrine places an affirmative obligation upon the corporate hierarchy to seek out and remedy violations of such statutes.¹² If the responsible corporate officers knew, or should have known, of their corporation's criminal conduct, they may also be convicted even if they did not expressly authorize or direct their subordinates to engage in the proscribed conduct.

The responsible corporate officer doctrine may be traced back to UNITED STATES V. DOTTERWEICH,¹³ the leading case on this issue. Dotterweich was the president and general manager of a company that purchased drugs, repacked them with its own label, and shipped them. Dotterweich and the company were charged with misdemeanor offenses of shipping misbranded drugs and an adulterated drug in violation of the Food, Drug and Cosmetic Act (FDCA). Dotterweich was convicted on all counts, but the company was acquitted. Dotterweich appealed, and one of the grounds upon which he contested the conviction was that as an individual, he had no knowledge of any wrongdoing.

The Supreme Court rejected Dotterweich's argument and noted that the FDCA made anyone who violated the statute guilty of a misdemeanor, regardless of his or her intent. The Court stated that "the historic conception of a 'misdemeanor' makes all those responsible for it equally guilty." The Court also noted that a corporation necessarily acts through individuals, and since Dotterweich was in a position of responsibility to the public, he could be convicted even though he was "otherwise innocent."¹⁴

Since DOTTERWEICH, the responsible corporate officer doctrine has been refined to its current state. Under a strict liability statute, a corporate officer is criminally responsible [22 ELR 10102] for the corporation's actions, regardless of knowledge or intent, if that officer "had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so."¹⁵

Traditional Knowledge Requirements of RCRA

RCRA was enacted in 1976 to regulate the treatment, storage, transportation, and disposal of hazardous solid waste.¹⁶ RCRA's criminal penalty provision makes one convicted guilty of a felony, and it generally prohibits any person from "knowingly" treating, storing, transporting, or disposing of any hazardous waste without a permit.¹⁷ The penalty for violation of this provision is a fine of not more than $ 50,000 for each day of violation and imprisonment for two, and in some cases, five years. The maximum penalty for subsequent convictions is doubled for both the fine and imprisonment.¹⁸ Moreover, if an individual violates the criminal proscriptions of RCRA and in doing so knowingly places another person in imminent danger, the maximum penalty increases to $ 250,000 and imprisonment for up to 15 years.¹⁹

The criminal liability provision of RCRA requires proof that an offense was committed knowingly before a defendant may be convicted. For example, RCRA prohibits any person from knowingly transporting hazardous waste to a facility without a permit.²⁰ The exact scope of the knowledge requirement is not, however, crystal clear. The Supreme Court observed in the context of a prosecution for food stamp fraud that "[a]lthough Congress certainly intended by use of the word 'knowingly' to require SOME mental state with respect to SOME element of the crime…. Beyond this, the words themselves provide little guidance."²¹

The Court resolved the dilemma by holding that proof of a knowing violation requires "a showing that the defendant knew his or her conduct to be unauthorized by statute or regulations."²² It is not necessary to prove that the defendant knew of the specific statute or regulation that was being violated. The government must prove, however, that the defendant knew that the conduct was unauthorized or illegal.²³ Where potentially dangerous products or substances, such as hazardous waste within the meaning of RCRA, are involved, one is presumed to be aware that such a substance is regulated.²⁴

The knowledge criterion applies to all elements of a RCRA offense. Nevertheless, the government is only required to prove that the accused had knowledge of the action taken. It is not necessary to prove that the defendant knew these actions were illegal.²⁵ Using the example of a prosecution for knowingly transporting hazardous waste to a facility without a permit, RCRA's knowledge criterion requires proof that the accused knew the waste material was hazardous, and that he or she knowingly transported the material.²⁶ With respect to the requirement that the accused know the substance is a hazardous waste, it is not necessary to prove that the defendant was aware that the waste has been identified as hazardous under RCRA. It is sufficient if the defendant knew that the substance had the potential to harm others.²⁷

The most cited example of the operation of this genre of mens rea comes from a case involving the shipment of acid in violation of Interstate Commerce Commission regulations. The Supreme Court held the knowledge criterion requires that a defendant must be aware of the hazardous nature of the substance in question:

So far as possession, say, of sulfuric acid is concerned the requirement of "MENS REA" has been made a requirement of the Act as evidenced by the use of the word "knowingly." A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered.²⁸

Thus, proof a defendant knew that a waste substance is potentially harmful is sufficient to satisfy the knowledge requirement. Building then on this liberal body of RCRA and other public health protection statutes that has incrementally reduced the extent of a defendant's knowledge before a conviction can be obtained, the Department of Justice recently proceeded with some degree of confidence that it could render that prerequisite to criminal liability irrelevant in some circumstances.

Application of Responsible Corporate Officer Doctrine to RCRA

The Justice Department has sought to use the responsible corporate office doctrine in an attempt to circumvent RCRA's slender knowledge requirement and to enforce this public health statute as if it imposed vicarious criminal liability upon CEOs for the crimes of corporate subordinates. Most of these explicit attempts have not been successful. Nevertheless, in one recent case, the Justice Department achieved a measure of success in substantially blurring the knowing participation and authorization requirement for holding a supervisor criminally accountable for the actions of his or her employees. The government's attempt to apply the responsible corporate officer doctrine was not successful in a second recent case. In a third case, the Justice Department was successful in applying the doctrine, even though it apparently did so implicitly.

[22 ELR 10103]

In UNITED STATES V. MACDONALD & WATSON WASTE OIL CO.,²⁹ the president of MacDonald & Watson was charged with knowingly transporting and causing the transportation of certain hazardous waste to a facility that did not have a permit for disposal of the type of hazardous waste involved. The government acknowledged that there was no evidence that the defendant actually knew of the RCRA violations. Nevertheless, the government argued that the official could be found guilty of the felony charged under the responsible corporate officer doctrine, if he knew, or should have known, of the two waste shipments.

The trial judge accepted the government's contention, and instructed the jury that RCRA's knowledge requirement would be satisfied if the jury found that the following three criteria were satisfied:

1. That the accused was an office of the corporation.

2. That he had direct responsibility for the activities alleged to be illegal.

3. That the officer knew or believed that illegal activity OF THE TYPE alleged occurred.

There was evidence that MacDonald & Watson was a relatively small corporation and that the president was a "hands on" manager. The two shipments involved in the indictment were transported on July 30 and 31, 1986, and there was also evidence that the officer had been advised of two previous improper shipments. There was, however, no evidence that the president knew of two the shipments involved in the indictment. Nevertheless, based on this evidence, the jury was allowed to impute the criminal felony culpability based on his subordinate's actual knowledge of the two shipments on July 30 and 31, 1986.

The officer's convictions were reversed by the U.S. Court of Appeals for the First Circuit. The court stated that application of the responsible corporate officer doctrine to a statute requiring actual knowledge as a criterion for conviction was improper. The court correctly reasoned that application of the doctrine is limited to strict liability statutes, which uniformly impose misdemeanor penalties. Thus, the First Circuit refused to apply the doctrine to a felony provision of RCRA that has an explicit knowledge requirement, and that now imposes mandatory multiple year jail terms under the Federal Sentencing Guidelines³⁰ for all offenses committed after November 1987.

The more troubling aspect of the decision is that the court went on to state that the knowledge criterion could be satisfied without direct evidence that a corporate officer actually had knowledge of a violation. The court stated that knowledge can be proven by circumstantial evidence, such as a defendant's "position and responsibility" or "willful blindness to the facts constituting the offense."³¹ Thus, if the jury had simply been instructed that it could infer actual knowledge of the shipments from the circumstantial evidence that was present, the conviction may well have been affirmed.

The government attempted to use the same theory in UNITED STATES V. WHITE.³² The case involved the prosecution of four individuals and PureGro, Inc., their employer, for violations of RCRA and the Federal Insecticide, Fungicide, and Rodenticide Act. In 1982, PureGro installed an evaporator tank on its facility to hold waste pesticide materials and rinseates. The tank would reduce the volume of rinseates, thus reducing the cost of disposal. An environmental consulting firm advised PureGro that if the company could find a use for the rinseate, consistent with its intended use, and if the rinseate was used in conformity with Department of Agriculture guidance, it would not have to be handled as a hazardous waste. Thus, the rinseate was loaded into a tank truck and sprayed on a field, presumably to kill insects.

The Justice Department eventually charged PureGro and the four individual defendants with violating the criminal felony provisions of RCRA. The defendants were charged with conspiring to violate RCRA, and storing, transporting, and disposing of hazardous waste without a permit. One count of the indictment also charged the defendants with knowingly endangering residents in the area where the rinseate was sprayed. This latter charge again rachetted up the defendants' potential sentence to a maximum of 15 years.

One of the individuals charged was the corporate officer responsible for environmental safety at PureGro. The government argued that since this individual was directly responsible for supervision of the handling of hazardous waste, he was criminally liable for the actions of all of PureGro's employees that he knew, or should have known of, as a responsible corporate officer. Again, the court refused to allow the government to use the responsible corporate officer doctrine as a means of satisfying RCRA's knowledge requirement. RCRA requires knowledge on the part of a defendant before he or she may be convicted, and the court ruled that proof that the defendant should have known will not suffice.

An extremely expansive interpretation of the reach of federal criminal culpability in the pollution arena occurred in UNITED STATES V. BAYTANK (HOUSTON), INC.³³ The government prosecuted Baytank and three individual defendants for various environmental offenses under several statutes. Two counts of the complex indictment charge two of the individual defendants, Baytank's executive vice president and its operations manager, with knowingly storing hazardous wastes in drums and tanks without a permit in violation of RCRA. The jury found that these two individuals had knowingly committed the offenses and convicted them of the RCRA violations. Nevertheless, the trial judge entered judgments of acquittal in favor of these two defendants and granted them conditional new trials, if their judgments of acquittal were reversed on appeal.

The government appealed, and the U.S. Court of Appeals for the Fifth Circuit reversed. Although the court's opinion does not indicate that the Justice Department explicitly argued that the responsible corporate officer doctrine should apply, the Fifth Circuit apparently applied the theory implicitly. In doing so, the court relied on the two individual's intimacy with Baytank's operations and their involvement with the company's environmental compliance efforts.³⁴ It [22 ELR 10104] stated that from this evidence, the jury could have inferred that the defendants' violations were committed knowingly:

In finding the evidence sufficient to support Baytank's conviction, we have necessarily determined that the jury could reasonably have concluded that (1) hazardous wastes were knowingly stored at Baytank during the relevant time periods, and (2) the storage was without a permit and in violation of EPA regulations. The only basis for convicting Baytank and yet acquitting Nordberg and Johnsen would be a conclusion that these two men lacked knowing personal involvement in the offenses.

We find there was sufficient evidence to connect Nordberg and Johnsen with the violations charged in counts 32 and 33. There was evidence that during the periods covered by those counts both individuals were intimately versed in and responsible for Baytank's operations. Johnsen, as Operations Manager, had direct responsibility for most of the facility's day-to-day operations, including the filing of environmental compliance forms. Nordberg, as Executive Vice President, also was involved in the operations and had submitted the application for an NPDES permit under the Clean Water Act. The testimony was sufficient to allow the conclusion that both Nordberg and Johnsen knew of the storage of hazardous wastes in violation of the requirements for storage without a permit. Given the evidence of their detailed knowledge of and control over the storage operations at Baytank, the jury was entitled to conclude that they participated in the illegal storage charged in counts 32 and 33.³⁵

The evidence of the corporate officials' knowledge in MACDONALD & WATSON, WHITE, and BAYTANK is strikingly similar. In MACDONALD & WATSON and WHITE, the government attempted to apply the responsible corporate officer doctrine explicitly but was unsuccessful. In BAYTANK, the Justice Department apparently applied the doctrine implicitly, presumably under the guise of circumstantial evidence, and the government was successful.³⁶ This case illustrates the approach the Justice Department has taken with respect to its attempt to escalate criminal liability to the corporate boardroom. This approach in many cases is contrary to due process safeguards intended to protect the innocent, as well as to RCRA's explicit language. Based on this recent prosecutorial pattern, the Justice Department can be expected to attempt to hold corporate officials criminally liable for RCRA felonies regardless of whether they knew of and expressly authorized the violations committed by subordinate employees under their control and supervision, however theoretical that oversight function may be.

Responses to Expanded RCRA Criminal Liability

Several options present themselves in responding to this broad-based expansion of the RCRA criminal culpability scheme. First, many corporations have endeavored to defend their top corporate officers with the best defense available: full time compliance auditing programs that alert them to both ongoing and potential violations at the earliest possible stage. Busy executives have thus become armed with truly informed knowledge of possible shortcomings or even intentional violations of the wide array of environmental statutes and rules, embodied in tens of thousands of pages of federal and state regulations. With this delegation of oversight to experts, the officials of these enlightened corporations have developed the only really reliable mechanism to prevent themselves from being entrapped in a "should have known" criminal dilemma.

Fortunately, the Department of Justice has acknowledged this dilemma and acted to provide a safe harbor for top corporate executives caught in the PRESIDENT COOLIDGE whirlwind. Pursuant to a recent policy statement issued by the Department of Justice intended to guide the exercise of prosecutorial discretion, corporations that undertake good faith auditing efforts and implement corrective action can usually avoid prosecution.³⁷ Top executives who vigorously assess their company's compliance status with institutionally binding responses to the discovery of violations may take advantage of the safe harbor. Such a response requires immediate cessation of the misconduct, imposition of internal sanctions on the responsible employee transgressors, and the full and timely REPORTING of the misconduct to the government, coupled with the company voluntarily undertaking the necessary remedial measures to ameliorate any harm to the environment. Corporations and their top executives with such compliance assurance procedures in place will be unlikely candidates for criminal prosecution.

These self-reporting protections appropriately reflect the notion that conduct is criminalized by society as both a means to punish the guilty and to deter those with criminal proclivities from engaging in proscribed conduct. It is axiomatic that deterrence can only be effective in those situations where a top corporate officer has knowledge of the misconduct, so he or she can swiftly intervene to halt it, remedy its consequences and report it to the Environmental Protection Agency. Prosecution of individuals who were not so informed can provide little deterrence because, by its intrinsic definition, the concept requires the intentional forbearance by those predisposed to commit crimes from doing so, due to their being aware of the severe criminal penalties that flow from such a course of action. It is simply not feasible to deter the unwary or inattentive executive, since he or she does not weigh the possible penalty, just as he or she does not weigh the unfolding criminal behavior of subordinates.

Conclusion

Corporate executives need to express their views to their elected officials in Congress. The business community should ensure that these expansive interpretations of ambiguous provisions of RCRA emanating from the federal trial and appellate courts truly reflect the intent of the legislators. RCRA should be enforced consistently with Congress' intent. Congress enacted RCRA as a reflection of the societal consensus of what constitutes mens rea for violations of the statute. The government should be required [22 ELR 10105] to prove that the guilty mental state required by Congress is present before individuals are removed from our society and isolated for up to five years' time, however comfortable the white collar prisons might be.

RCRA is due to come before the Congress again, probably after the next presidential election. The timing gives us all ample time to bring this important issue into the legislative arena for a comprehensive examination.

1. Morissette v. United States, 342 U.S. 246, 250-51 (1952) (footnotes omitted).

2. Dennis v. United States, 341 U.S. 494, 500 (1951), CITED IN United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978).

3. SEE United States v. Dotterweich, 320 U.S. 277 (1943).

4. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-50.

5. RCRA § 3008(d), 42 U.S.C. § 6928(d), ELR STAT. RCRA 021 provides:

(d) CRIMINAL PENALTIES

Any person who —

(1) KNOWINGLY transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this subchapter or pursuant to title I of the Marine protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. § 1411 et seq.],

(2) KNOWINGLY treats, stores, or disposes of any hazardous waste identified or listed under this subchapter —

(A) without a permit under this subchapter or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. § 1411 et seq.]; or

(B) in KNOWING violation of any material condition or requirement of such permit; or

(C) in KNOWING violation of any material condition or requirement of any applicable interim status regulations or standards;

(3) KNOWINGLY omits material information or makes any false material statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained, or used for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subchapter;

(4) KNOWINGLY generates, stores, treats, transports, disposes of, exports, or otherwise handles any hazardous waste or any used oil not identified or listed as a hazardous waste under this subchapter (whether such activity took place before or takes place after the date of the enactment of this paragraph) and who KNOWINGLY destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subchapter;

(5) KNOWINGLY transports without a manifest, or causes to be transported without a manifest, any hazardous waste or any used oil not identified or listed as a hazardous waste under this subchapter required by regulations promulgated under this subchapter (or by a State in the case of a State program authorized under this subchapter) to be accompanied by a manifest;

(6) KNOWINGLY exports a hazardous waste identified or listed under this subchapter (A) without the consent of the receiving country, or (B) where there exists an international agreement between the United States and the government of the receiving country establishing notice, export, and enforcement procedures for the transportation, treatment, storage, and disposal of hazardous wastes, in a manner which is not in conformance with such agreement; or

(7) KNOWINGLY stores, treats, transports, or causes to be transported, disposes of, or otherwise handles any used oil not identified or listed as a hazardous waste under this subchapter —

(A) in KNOWING violation of any material condition or requirement of a permit under this subchapter; or

(B) in KNOWING violation of any material condition or requirement of any applicable regulations or standards under this chapter;

shall, upon conviction….

(Emphasis added).

6. 33 U.S.C. § 407 (1988).

7. 33 U.S.C. § 410 (1988).

8. THE PRESIDENT COOLIDGE, 101 F.2d 638 (9th Cir. 1939).

9. United States v. Standard Oil Co., 384 U.S. 224 (1966).

10. Olds, Unkovic & Lewin, THOUGHTS ON THE ROLE OF PENALTIES IN THE ENFORCEMENT OF THE CLEAN AIR AND CLEAN WATER ACTS, 17 DUQUESNE L. REV. 1, 5-6 (1978).

11. At least one Circuit has stated, however, that the doctrine is not limited to misdemeanor offenses. In UNITED STATES V. CATTLE KING PACKING CO., 793 F.2d 232, 240 (10th Cir. 1986), CERT. DENIED, 479 U.S. 1985 (1986), the company and its founder, who was also an officer and shareholder, were charged with fraudulent distribution of adulterated meat products, intentional circumvention of federal meat inspection laws, fraudulent misbranding of meat, and conspiring to commit these offenses in violation of the Federal Meat Inspection Act (FMIA). On appeal after his conviction, the founder of Cattle King argued that a jury instruction on the responsible corporate officer doctrine as described in UNITED STATES V. PARK, 421 U.S. 658 (1975), was improperly given, because the doctrine only applies to misdemeanors.

The Court opined that nothing in the PARK decision limits the responsible corporate officer doctrine to misdemeanor offenses. Nevertheless, with respect to all but one of the seven counts of which the officer was convicted, the jury was also instructed that it must find that the defendant acted with intent to defraud before he could be convicted. Moreover, there was evidence that the officer intentionally initiated the procedures by which Cattle King attempted to circumvent the FMIA, in addition to other evidence of his intent to commit the violations. It does not, therefore, appear that the responsible corporate officer doctrine was actually applied in this case, even though such a jury instruction was given.

12. Id. at 670-73.

13. 320 U.S. 277 (1943).

14. ID. at 281.

15. 421 U.S. at 673-74. SEE ALSO United States v. Starr, 535 F.2d 512 (9th Cir. 1976); United States v. New England Grocers Supply Co., 488 F. Supp. 230 (D. Mass. 1980).

16. 1976 U.S.C.C.A.N. 6238, 6240-42.

17. RCRA § 3008(d), 42 U.S.C. § 6928(d), ELR STAT. RCRA 021.

18. ID.

19. RCRA § 3008(e), 42 U.S.C. § 6928(e), ELR STAT. RCRA 021.

20. RCRA § 3008(d)(1), 42 U.S.C. § 6928(d)(1), ELR STAT. RCRA 021.

21. Liparota v. United States, 471 U.S. 419, 424 (1985).

22. ID. at 425.

23. ID. at 433-34.

24. United States v. International Minerals & Chem. Corp., 402 U.S. 558, 564-65 (1971).

25. United States v. Johnson & Towers, Inc., 741 F.2d 662, 668-69, 14 ELR 20634, 20637-38 (3d Cir. 1984), CERT. DENIED SUB NOM. Angel v. United States, 469 U.S. 1208 (1985).

26. United States v. Dee, 912 F.2d 741, 21 ELR 20051 (4th Cir. 1990), CERT. DENIED, 111 S. Ct. 1307 (1991).

27. United States v. Hoflin, 880 F.2d 1033, 1039, 19 ELR 21140, 21143 (9th Cir. 1989), CERT DENIED, 110 S. Ct. 1143 (1990); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1502-05, 16 ELR 20717 (11th Cir. 1986).

28. 402 U.S. at 503-04.

29. 933 F.2d 35, 21 ELR 21449 (1st Cir. 1991).

30. U.S. SENTENCING COMMISSION, GUIDELINES MANUAL §2Q.

31. 933 F.2d at 55, 21 ELR at 21456.

33. 934 F.2d 599, 21 ELR 21101 (5th Cir. 1991).

34. In UNITED STATES V. JOHNSON & TOWERS, INC., the Third Circuit suggested in dicta that, "[d]epending on the evidence, a jury can infer a defendant's knowledge." 741 F.2d 662, 669, 14 ELR 20634, 20638 (3d Cir. 1984). That suggestion, however, was made in a vacuum "without any evidence or findings of the defendants' actual knowledge of the facts at issue …." ID. at 670, 14 ELR at 20638.

35. 934 F.2d at 616-17, 21 ELR at 21109.

36. Baytank's executive vice president and operations manager did obtain new trials, because the trial judge believed the jury confused the corporate and individual defendants. ID. at 618, 21 ELR at 21109-10.

37. U.S. DEP'T OF JUSTICE, FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS FOR ENVIRONMENTAL VIOLATIONS IN THE CONTEXT OF SIGNIFICANT VOLUNTARY COMPLIANCE OR DISCLOSURE EFFORTS BY THE VIOLATOR (July 1, 1991), ELR ADMIN. MATERIALS 35399.