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United States v. Tonawanda Coke Corp.

ELR Citation: 46 ELR 20013
Nos. 14-1091, (2d Cir., 01/11/2016)

The Second Circuit, in a summary order, upheld a coke company's convictions for RCRA violations at its facility near Buffalo, New York. The company claimed the RCRA convictions should be reversed because it lacked fair notice that its conduct was criminal. But it failed to raise this argument below. The company also argued that the RCRA violations for which it was charged occurred outside the five-year limitations period. But the unpermitted storage of hazardous waste is a continuing offense. The limitations clock, therefore, did not start until December 2009, just a few months before the indictment. The company asserted that the gravamen of its unlawful conduct was "active management" rather than "storage," and that "active management" does not imply a continuing offense. But the company was not convicted of actively managing hazardous waste, it was convicted of storing hazardous waste. The court also held that the jury instructions were proper, and that the lower court did not abuse its discretion in requiring the company to fund two studies designed to evaluate the effects of its conduct as a form of community service.