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United States v. Protex Indus.

Citation: 19 ELR 21061
No. No. 88-1371, 874 F.2d 740/29 ERC 1593/(10th Cir., 05/11/1989)

The court holds that the district court's application of the knowing endangerment provision of the Resource Conservation and Recovery Act (RCRA) in the criminal trial of the operator of a drum recycling facility was not unconstitutionally vague. RCRA § 3008(e) provides that any person who knowingly violates RCRA's criminal provisions and knowingly places another person in imminent danger of death or serious bodily injury is guilty of an offense. The court first holds that the district court did not render § 3008(e) unconstitutionally vague by expanding the definition of serious bodily injury in § 3008(f)(6). There was substantial evidence at trial that three former employees suffered severe physical harm from prolonged exposure to toxic chemicals. The evidence revealed that these employees were suffering from psychoorganic syndrome, a condition that may cause an impairment of mental faculties. The court holds that the jury instruction defining imminent danger as a condition or conditions that could reasonably be expected, rather than substantially certain, to cause the serious bodily injury did not render the statute unconstitutionally vague. The "substantially certain" standard appears to define the necessary mens rea, rather than the degree to which defendant's conduct is likely to cause death or serious bodily injury, and the trial court quoted directly from the statute when instructing the jury. This court must only look at the statutory language and compare it with the instruction given by the lower court to decide whether a defendant is able to predict that its conduct violates RCRA. The trial court's interpretation was not an unforeseeable expansion of a criminal statute that was narrow and precise. Finally, the court holds that the government's violation of RCRA § 3007(a) by failing to supply defendant with test results of samples taken from the site is not a defense to a criminal action. There is no authority in RCRA or its legislative history that would make an abrogation of the government's duty a mitigating factor in a criminal prosecution. Protex had an independent duty under RCRA to ensure that it had complied with the Act's criminal and civil provisions.

Counsel for Plaintiff-Appellee
Michael J. Norton, Acting U.S. Attorney
1200 Federal Office Bldg., Drawer 3615, Denver CO 80294
(303) 844-2081

Peter J. Murtha, Peter R. Steenland Jr., J. Carol Williams
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 786-3609

Counsel for Defendant-Appellant
David G. Palmer
1801 California St., Ste. 4200, Denver CO 80202-2694
(303) 298-7200

Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and SAFFELS, District Judge*.