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United States v. Carr

Citation: 19 ELR 21137
No. No. 89-1009, 880 F.2d 1550/30 ERC 1128/(2d Cir., 07/25/1989)

The court holds that the reporting requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 103 apply to any person, regardless of rank, who is responsible for the operation of a facility and is in a position to detect, prevent, and abate a release of hazardous substances. Defendant, as maintenance foreman, ordered workers to dispose of cans of waste paint in a water-filled pit, and when notified the cans were leaking, ordered a worker to cover the pit with earth. The court first holds that Congress intended the reporting requirements of CERCLA § 103 to reach any person responsible for the operation of a facility who can detect, prevent, and abate a release of hazardous substances. Though CERCLA and its implementing regulations do not define "in charge," the legislative history shows that CERCLA § 103 was modeled after Federal Water Pollution Control Act (FWPCA) § 311. The legislative history of FWPCA § 311 indicates that the provision was intended to reach supervisory employees who can discover the release and abate it. Finally, the court holds that the district court's instruction to the jury that it need only find that the defendant exercised "any authority" over the facility was not erroneous when taken within the context of the charge as a whole.

Counsel for Defendant-Appellant
George H. Lowe, Jonathan B. Fellows
Bond, Schoeneck & King
18th Fl., One Lincoln Ctr., Syracuse NY 13202-1355
(315) 422-0121

Counsel for Appellee
J. Carol Williams, Ass't U.S. Attorney
369 U.S. Courthouse, 100 S. Clinton St., Syracuse NY 13260
(315) 423-5165

David C. Shilton, Maria A. Iizuka
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5580

Pierce (before Kearse and Cardamone, JJ.):