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United States v. Hoflin

Citation: 19 ELR 21140
No. No. 86-3071, 880 F.2d 1033/30 ERC 1419/(9th Cir., 07/14/1989)

The court upholds an individual's convictions under § 3008(d)(2)(A) of the Resource Conservation and Recovery Act (RCRA) for aiding and abetting the improper disposal of hazardous wastes and under § 309(c)(1) of the Federal Water Pollution Control Act (FWPCA) for burying sludge in violation of a discharge permit. During his tenure as a city public works director defendant instructed employees to bury paint drums at a sewage treatment plant; the drums contained hazardous materials within the meaning of the Environmental Protection Agency's RCRA regulations. Defendant also allowed sludge to be buried at the plant in violation of the plant's national pollutant discharge elimination system (NPDES) permit. The court first holds that defendant's knowledge as to whether the city had a permit under RCRA to dispose of the paint is not an element of an offense under § 3008(d)(2)(A), and thus the district court's failure to so instruct the jury was not reversible error. That the word "knowingly" introduces subsection (2) does not mean that knowledge of the lack of a permit is an element under subsection (2)(A). The word "knowing" does not appear in subsection (A), yet it does appear in subsection (B) which prohibits knowing violation of permit conditions; the statute thus makes a clear distinction between non-permitholders and permitholders. Had Congress intended knowledge of the lack of a permit to be an element under subsection (A), it could easily have said so. Moreover, defendant's interpretation would render the word "knowing" in subsection (B) mere surplusage. The court rules that in a prosecution under RCRA § 3008(d)(2)(A) the government must prove, and the jury must be instructed, that a defendant knew the material being disposed of was hazardous. The court holds that the district court's instructions to the jury on this issue were sufficient. Although the court did not specifically use the word "hazardous," the instructions did require the jury to find that the defendant had disposed of wastes he knew could be harmful to other persons or the environment.

The court holds that defendant's misdemeanor conviction under FWPCA § 309(c)(1) for burying sludge in violation of the sewage plant's NPDES permit was proper. Although the district court's jury instructions did not specifically identify the burial of raw sewage as the factual basis of the offense, the indictment and the trial evidence described the burial in detail. That the jury was not instructed to find that the burial violation a condition of the NPDES permit was also not error, since the permit itself had been introduced and the condition alleged to have been violated was read to the jury. The court holds that the district court did not err in concluding, as a matter of law, that the alleged violation implemented FWPCA § 301, and that the lower court was not required to instruct the jury that an NPDES permit was in effect.

Counsel for Plaintiff-Appellee
John A. Bryson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2740

Counsel for Defendant-Appellant
Allen R. Bentley
1111 Third Ave., Ste. 680, Seattle WA 98101
(206) 343-9391

Thompson (before Hug, Jr. and Norris, JJ.):