Jump to Navigation
Jump to Content

United States v. Johnson

ELR Citation: 26 ELR 20148
Nos. No. 92-CR-39A, 886 F. Supp. 1057/(W.D.N.Y., 05/26/1995)

The court refuses to dismiss the federal government's charges against individuals for allegedly conspiring to violate the Resource Conservation and Recovery Act (RCRA) and for allegedly illegally disposing of hazardous waste and contaminated solvent mixtures. The court first denies a motion to postpone the determination of the dismissal motions until the resolution of the government's objections to a magistrate judge's report and recommendations in United States v. Recticel Foam Corp., 858 F. Supp. 726 (E.D. Tenn. 1993). Recticel addresses the U.S. Environmental Protection Agency's (EPA's) mixture and derived-from rules, which the D.C. Circuit invalidated in Shell Oil Co. v. U.S. Environmental Protection Agency, 22 ELR 20305 (1991, amended 1992). Defendants in this case assume that the grand jury relied on the mixture rule and/or the derived-from rule in alleging that the substances at issue are RCRA hazardous wastes. The Assistant U.S. Attorney in Recticel averred that there is no reasonable basis to believe that there will be any resolution in the case in the near future. The court next holds that the counts defendants seek to have dismissed track the language of RCRA and contain all the elements of the offenses. The counts alleging knowing disposal of hazardous waste without proper authorization specifically describe the substances at issue as hazardous wastes with reference to the prohibited conduct as alleged in the indictment, and describe the approximate dates of defendants' actions. The conspiracy count alleges various overt acts and specifies the conduct complained of and the approximate dates involved. The court holds that the substances stated to be hazardous in the indictment are properly alleged and may be found at trial to be listed hazardous wastes that, under the regulations concededly not affected by the decision in Shell Oil, remain hazardous until delisted. Defendants' challenge to the factual bases on which the government intends to prove that the substances at issue are hazardous within the meaning of RCRA and applicable regulations must be directed to the trial court after theclose of the government's affirmative case, and is therefore premature. Even if the mixture and derived-from rules had been referred to the grand jury, such reference would not have been prejudicial, as the rules have no application to the facts as alleged in the indictment. As to the distillation process described in one count, it does not appear that ordinary water is a "solid waste" under the definitions in the RCRA regulations, rendering the mixture rule irrelevant to this case. The substance at issue is a listed hazardous waste, diluted by the injection of steam. The spent solvents at issue, when discarded by the generator of a reclamation facility, are solid wastes subject to RCRA regulation. A fair reading of the conspiracy count indicates that the drums of waste acquired by the company that defendants allegedly controlled would constitute hazardous waste under RCRA. The court next holds that the authorities cited in one defendant's memorandum of law support the conclusion that the indictment is sufficient and that the specific reference to regulatory definitions of hazardous waste is not required in the indictment.

The court holds that the conspiracy count is not duplicitous, because it alleges a single conspiracy. A single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. The court holds that the search warrants that authorized the seizure of business records of the corporations defendants control were not unconstitutionally overbroad, because the businesses involved were sufficiently permeated with fraud to justify the wide scope of the warrants. Therefore, the court denies defendants' motion to suppress the evidence seized. Finally, to the extent defendants framed their request as one for a hearing to determine whether the seizure was sustainable under the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), such a hearing is unnecessary and the court denies such request.

Counsel for Plaintiff
Martin J. Littlefield, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Ctr., 138 Delaware Ave., Buffalo NY 14202
(716) 846-4811

Counsel for Defendants
Rodney O. Personius
Brown & Kelly
1500 Liberty Bldg., Buffalo NY 14202
(716) 854-2620