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United States v. Johnson & Towers, Inc.

Citation: 14 ELR 20634
No. No. 83-5745, 741 F.2d 662/21 ERC 1433/(3d Cir., 08/15/1984) Rev'd

The court rules that § 3008(d)(2) of the Resource Conservation and Recovery Act (RCRA) imposes criminal liability on an employee other than the owner or operator of a firm, if the employee knowingly treats, stores, or disposes of hazardous waste in the absence of a permit required by RCRA § 3005. Initially, the court concludes that the language of the statute confirms neither (1) appellant's interpretation that anyone handling hazardous waste without a permit is subject to liability nor (2) appellee's interpretation (which the court below accepted) that only those in a position to obtain a permit, that is, the owner or operator of the facility, could be criminally liable. Next, the court rules that "any person," as used in § 3008(d)(2), is governed by the definition in § 3003(15), which includes individuals. It notes that the statute presents only one exonerating condition, possession of § 3005 permit, and that criminal penalties in regulatory statutes intended to protect the public health must be construed to carry out that purpose. The court finds a direct parallel in the Supreme Court's decision in United States v. Dotterweich, in which the Court upheld the conviction of a jobber under the Food and Drugs Act (FDA) for shipping drugs without a required guaranty of purity that only the manufacturer could obtain. Dotterweich is applicable, the court concludes, if RCRA, like the FDA, is intended to protect the health of an otherwise defenseless public against risks from modern industrialism.

Reading the language of § 3008(d)(2) in light of its legislative history, the court holds that the section is not limited to owners and operators. That Congress twice amended § 3008(d)(2) to strengthen its criminal sanctions indicates the seriousness of its concern over the problem of unpermitted disposal of hazardous waste and brings the section under the Dotterweich standard.Limiting § 3008(d)(2) to owners and operators would undercut the purposes of the legislation.

To inform the district court on remand, the court turns to the requisite proof as to individual appellees under § 3008(d)(2). The court rules that the government must prove that appellees knew that the waste was hazardous. Appellees must also have known that the waste was disposed of in violation of the law, the court rules. Although a court might in general be justified in finding no mens rea in such a statute because of its strong public welfare purpose, that result would be nonsensical when applied to the language of § 3008(d)(2). Subsection (d)(2)(B) limits criminal liability for disregard of permit terms to knowing violations. While subsection (d)(2)(A), which imposes criminal penalties for disposal without a permit, does not use "knowing," Congress is unlikely to have intended different standards for the two categories of related violations.

Finally, the court rules that knowledge of the need for and lack of a permit may be inferred by the trier of fact. It is well established that knowledge of regulatory requirements may be inferred by a jury hearing a criminal case against persons in responsible positions in companies engaged in heavily regulated activities. If appellees in this case held the requisite responsible positions (a question not answered in the record) the jury may infer knowledge of the permit requirement.

Counsel for Appellant
Michael Gilberti, Ass't U.S. Attorney; W. Hunt Dumont, U.S. Attorney
970 Broad St., Newark NJ 07102
(201) 645-2155

Counsel for Appellees
Joseph A. Carmen
43 Kings Hwy. W., Haddonfield NJ 08033
(609) 429-0201

Jeffrey A. Libert
Falciani & Fletcher
35 S. Broad St., Woodbury NJ 08096
(609) 845-8333

Sloviter, J. joined by Garth and Neaher,* JJ.