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United States v. Johnson & Towers, Inc.

ELR Citation: 13 ELR 20883
Nos. No. 83-83, (D.N.J., 09/06/1983)

The court dismisses criminal charges under §3008(d)(2) of the Resource Conservation and Recovery Act (RCRA) against two employees who allegedly dumped waste illegally because they were neither owners nor operators of the facility and therefore not subject to sanctions. Defendants Angel and Hopkins, service manager and shop foreman respectively, allegedly directed the illegal dumping of hazardous waste. RCRA §3008(d)(2) provides criminal sanctions for persons who knowingly dispose of hazardous wastes but do not have a permit. The court holds that RCRA's apparently broad definition of "person" in §1004(15) is qualified by implication in §3008 to mean persons responsible for obtaining a RCRA permit. The court holds that Congress intended to direct criminal sanctions narrowly at those effectively able to ensure compliance. Further, fairness argues against exposing employees to criminal sanctions when they are unable as a practical matter to determine whether their actions violate the complex law.The court holds that only owners and operators, the persons required to file for permits, are subject to sanctions under §3008(d)(2). The RCRA regulations define operator as the person responsible for overall operation of a facility. The court holds that although the plant's general manager may be an operator, the service manager and foreman are not. The defendants may be liable under 18 U.S.C. §2, however, for aiding and abetting their employer's criminal RCRA violation.

Counsel for Plaintiff
Michael V. Gilbarti, Samuel P. Moulthrop, Ass't U.S. Attorneys
970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-1255

Counsel for Defendants
Jeffrey A. Libert
Falciani & Fletcher
P.O. Box 379, Woodbury NJ 08096
(609) 845-8333

Joseph A. Carmen
43 Kings Highway W., Haddonfield NJ 08033
(609) 429-0201