ELR Citation: ELR 21101
No(s). s. 89-2129, -2172 (5th Cir. Jun 13, 1991)

The court affirms the conviction of a bulk liquid chemical transfer and storage company for hazardous waste storage violations of the Resource Conversation and Recovery Act (RCRA) and reinstates the jury verdict convicting the company of pollutant discharge and reporting violations of the Federal Water Pollution Control Act (FWPCA) and reporting violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that any allegedly overbroad portion of the district court's jury charge on the RCRA count was invited error, since the portion of the charge to which the company objects is the precise language requested by the company. The court notes that, even if the doctrine of invited error did not apply, the government presented sufficient proof that the company violated RCRA. The court next holds that there was no variance or constructive amendment of the indictment, because the evidence at trial was tied directly to the charged RCRA violation. The court holds that the RCRA counts in the indictment are not duplicitous and in violation of Federal Rule of Criminal Procedure 8(a). The company has waived this argument by not raising it below, and any error was invited by the company, because the instructions on these counts were, in all material respects, the same as those the company itself requested. The court holds that the district court was not required to instruct the jury to find that the company knew that waste it stored had been identified as hazardous in Environmental Protection Agency (EPA) regulations under RCRA. A majority of the U.S. Circuit Courts have held that the word "knowingly" in RCRA §3008(d)(2) pertains to knowledge of the facts, and where, as here, dangerous products were involved, anyone possessing or dealing with them must be presumed to have been aware of the regulation. Relying on precedent, the court next holds that the district court did not abuse its discretion by refusing the company's request for a character evidence instruction. The court further holds that the evidence presented at trial is clearly sufficient to sustain a finding that the company knowingly stored hazardous wastes in drums and tanks without a permit in violation of EPA regulations under RCRA.

The court next holds that the district court erroneously refused to impose a $200 per count special assessment against the company, because the Ninth Circuit case on which the district court relied was subsequently reversed by the U.S. Supreme Court. The court reverses the district court's acquittal of two company officers for hazardous waste storage violations of RCRA, holding that there was sufficient evidence to connect them with those violations. The court sustains the district court's grant of a new trial to three of the company's officers and reverses the grant of a new trial to the company on the FWPCA no jury confusion as to the company, confusion may warrant a new trial of the company's officers. The court further holds that there was no constitutional infirmity in the district court's failure to require proof of the company's specific intent to commit an FWPCA reporting violation and that the evidence was sufficient on the amount of the hazardous chemical that the company was charged with releasing in the CERCLA count.

Counsel for Appellant
Jay Madrid
Winstead, Sechrest & Minick
1201 Elm St., Ste. 5400, Dallas TX 75270
(214) 742-1700

Counsel for Appellee
Vicki L. Plaut
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000