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United States v. Kelley Tech. Coatings, Inc.

ELR Citation: 29 ELR 20022
Nos. 96-6282, -6283, 157 F.3d 432/(6th Cir., 09/16/1998)

The court affirms the convictions of a paint manufacturing company and its vice president for knowingly storing and disposing of hazardous waste without a permit in violation of Resource Conservation and Recovery Act (RCRA) §3008(d)(2)(A). The court first holds that the jury instructions adequately required that the defendants have knowledge of the facts that made the conduct a crime. The instructions required the government to prove the defendants' knowledge of the storage or disposal, the defendants' knowledge that the material was waste, and the defendants' knowledge that it had the potential to be harmful to others or to the environment. The court next holds that there is no decision of the U.S. Supreme Court that requires modification of United States v. Dean, 22 ELR 21296 (6th Cir. 1992), and that the district court's instructions regarding knowledge were adequate under Dean. The court also holds that the jury was properly instructed that the defendants had to know the materials were waste. The district court was not required to analyze whether the public welfare offense doctrine applies in this case from the standpoint of whether the handling of the materials by defendants would put them on notice they were committing a crime. Moreover, the only issue presented by the defense was when those materials should have been classified as waste, not whether they knew they were hazardous waste once they were classified as waste. The court further holds that the failure to instruct as to the waste materials substantial potential to be harmful was harmless error because there was overwhelming evidence that defendants knew that the contents of the drums were hazardous materials.

The court then holds that the district court did not err in refusing to give the defendants' proposed jury instructions because they were predominantly recitations of defendants' version of contested fact, and they did not state a defense theory that is not otherwise clear from the other instructions. The court also holds that, viewing the evidence in the light most favorable to the government, there is more than sufficient evidence from which a jury could reasonably find that the vice president knowingly approved, authorized, and/or aided and abetted the actions which constituted disposal of hazardous wastes on the premises.

The court next rejects the vice president's challenge to the validity of U.S. Sentencing Guidelines (U.S.S.G) §2Q1.2 of the sentencing guidelines. Although the court retains discretion to consider issues not previously raised to avoid a plain miscarriage of justice, this case does not call for the exercise of that discretion. Last, the court holds that the district court did not engage in double counting when it enhanced the vice president's offense level by four under U.S.S.G. §2Q1.2(b)(4). The base offense level provided in U.S.S.G. §2Q1.1(a) applies to offenses that do not involve the failure to obtain a permit. Accordingly, the enhancement under U.S.S.G. §2Q1.2(b) for storage or disposal without a permit does not provide a second penalty for the same conduct.

[Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66572.]

Counsel for Plaintiff
Ethan G. Shenkman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Mark R. Feather
Brown, Todd & Heyburn
400 W. Market St., 32d Fl., Louisville KY 40202
(502) 589-5400

Before Merritt and Clay, JJ.