United States v. Elias

No. 98-0070-E-BLW (D. Idaho April 26, 2000)

The court reinstates two convictions against a Resource Conservation and Recovery Act (RCRA) defendant even though he should have been charged under Idaho's hazardous waste program, which was approved by the U.S. Environmental Protection Agency (EPA). The court first holds that EPA's approval of Idaho's program did not displace the federal penalties contained in RCRA § 3008 and replace them with Idaho's penalties. The substantive provisions of RCRA that make it a crime to dispose of hazardous waste without a permit were supplanted by EPA's approval of Idaho's program, but the penalty provisions of RCRA were not supplanted.

The court then holds that the government's mis-citation in the indictment does not warrant a reversal of the defendant's RCRA convictions. There is no evidence that the charged statute broadened the definition of the crime or would result in punishment more severe than that available under the proper statute. Moreover, the defendant failed to demonstrate how he would be prejudiced by the mis-citation.

[No counsel available at this printing.]

[30 ELR 20558]

Winmill, J.:

Memorandum Decision and Order

Introduction

The Court has before it the Government's motion seeking reconsideration of the Court's decision dismissing counts two and three of the indictment and setting aside the conviction on those counts. The Court also has before it defendant Elias's motion seeking reconsideration of the Court's decision rejecting his attempt to dismiss count one of the indictment, and Elias's motion to dismiss count four. The Court will grant the Government's motion and deny Elias's motions. Accordingly, the Court will reinstate the conviction of Elias on counts two and three. The sentencing on April 28, 2000, will therefore proceed on the basis that Elias was convicted of counts one, two, three, and four. The Court finds further that the appropriate sanctions for the convictions on counts one, two, and three, are set forth in 42 U.S.C. § 6928(d). The Court's analysis is set forth below.

Analysis

The Court will turn first to the Government's motion. In its earlier opinion, the Court made four findings that it summarized as follows:

(1) EPA-approved state hazardous waste laws supplant their RCRA counterparts; (2) the EPA retains authority to enforce those approved state laws; (3) When the EPA approves a state program, the EPA loses the authority to enforce those RCRA provisions with counterparts in the approved state program; (4) When the EPA approves a state program, the EPA retains the authority to enforce RCRA provisions that have no counterparts in the approved state program.

In its motion to reconsider, the Government has largely conceded these points. The Government states in its briefing that "any federal or state enforcement action for hazardous waste violations must be based on the requirements of state law, including the state's definition of hazardous waste . . . ." See Government's Motion for Reconsideration at 13. The Government remains free to "seek enforcement of the state hazardous waste program in federal court, utilizing federal sanctions." Id.

The Eighth Circuit rejected this argument in Harmon Industries, Inc. v. Browner, 191 F.3d 894, 899 [29 ELR 21412] (8th Cir. 1999), stating that "the plain 'in lieu of' language contained in the RCRA reveals a congressional intent for an authorized state program to supplant the federal hazardous waste program in all respects including enforcement."

The Court finds Harmon distinguishable for two reasons. First, Harmon was not a criminal action; it was an appeal from an administrative proceeding involving the imposition of civil fines. Second, Harmon was not faced with a situation, as exists here, where the EPA, in approving a state hazardous waste program, expressly declined to authorize the state sanctions. This second conclusion requires some explanation.

In the regulations authorizing Idaho's hazardous waste program, the EPA stated that while Idaho "has primary responsibility for enforcing its hazardous waste program," the EPA would retain "the authority to exercise its enforcement authorities under . . . [§ 6928] . . ." The regulation then goes on to state that the Idaho enforcement and sanction statutes, Idaho Code §§ 39-4413 to 4415, "although not incorporated by reference, are part of the authorized State program."

In a footnote in its earlier opinion, the Court recognized that this phrase gives rise to some confusion, because it seemed to give approval with one hand while taking it back with the other. There is no provision for the EPA to "authorize" the state's sanction statutes, but "not incorporate [them] by reference." Upon reconsideration, however, the Court interprets this language to mean that the EPA was not trying to discourage Idaho's own enforcement, but simply notifying all parties that the EPA would continue to enforce the penalties set forth in § 6928(d), and would not supplant those federal penalties with Idaho's penalties.

This interpretation is confirmed by the EPA's statement in the Federal Register preamble that originally published 40 C.F.R. § 272.650 et al.¹ In that Federal Register preamble, the EPA stated that "the [EPA] retains the authority under [§ 6928] to undertake enforcement actions in authorized States. With respect to such enforcement action, the [EPA] will rely on Federal sanctions . . . rather than the authorized state analog to these requirements. Therefore, the [EPA] does not intend to codify such authorized Idaho enforcement authorities." 55 Fed. Reg. 50327 (1990).

When this Federal Register preamble is read together with the EPA regulations, it is clear that the EPA intended to continue to rely on the federal penalties contained in 42 U.S.C. § 6928(d). See Louisiana Environmental Action Network v. United States, 172 F.3d 65, 69 [29 ELR 21038] (D.C. Cir. 1999) (reading EPA's language in Federal Register preamble together with EPA regulation). Under these circumstances, the Court cannot find that the EPA's approval of Idaho's program displaced the federal penalties contained in § 6928(d) and replaced them with Idaho's penalties.

The net result of all these findings is that counts two and three of the indictment should have charged crimes under Idaho Code § 39-4408(1), and the penalties for any violation would be provided by 42 U.S.C. § 6928(d). In other words, the substantive provisions of § 6928(d)(2)(A)—those provisions making it a crime to dispose of hazardous waste without a permit—were supplanted by the EPA's approval of Idaho's program, but the penalty provisions of § 6928(d)—setting forth the fine and the imprisonment requirements—were not supplanted.

The Court must now determine whether these circumstances warrant a reversal of Elias's conviction on counts two and three. The Government asserts that because the state law is identical to the federal law, the mis-citation in the indictment is meaningless, and the convictions on counts two and three should not be set aside.

Under Fed. R. Crim. P. 7(c)(3), "error in the citation or its omission shall not be ground for dismissal of the indictment . . . or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice." The Ninth Circuit has cited this Rule in upholding indictments that failed to cite the applicable subsection of a statute. United States v. Bonallo, 858 F.2d 1427, 1431 (9th Cir. 1988), or cited the statute's penalty section rather than its substantive section, United States v. Vroman, 975 F.2d 669, 670-71 (9th Cir. 1992).

This case, however, presents a more serious problem because the indictment cited not only the wrong statute, but a statute from the wrong jurisdiction. While the Ninth Circuit has not faced this issue, [30 ELR 20559] the Third Circuit did in United States v. Hall, 979 F.2d 320 (3d Cir. 1992). There, defendant Hall was indicted, and convicted by a jury, for driving while intoxicated in a National Park. The indictment cited a state statute as the substantive offense when it should have cited a federal statute. Hall sought a reversal of his conviction on the ground that it was based on the wrong statute. The Third Circuit rejected this argument, stating that "this is not a case in which application of the [charged statute] broadened the definition of a federal crime or resulted in punishment more severe than that available under federal law." Id. at 323.

Although in Hall the indictment contained a state statute when it should have contained a federal statute—the exact opposite of the situation here—the case is nevertheless instructive because it sustained a conviction under the wrong statute from the wrong jurisdiction—precisely the situation faced here. As in Hall, there is no evidence here that the charged statute broadened the definition of the crime or would result in punishment more severe than that available under the proper statute. The Court has held above that the federal sanctions of § 6928(d) will apply even when the EPA is prosecuting based on state substantive law, and there is no evidence that the Idaho substantive law is any different from the federal statutes.

Elias has argued, however, that the Idaho Department of Environmental Quality (IDEQ) has interpreted the Idaho law to exempt mining waste in general, which interpretation could be used to argue that the cyanide waste in this case was not covered by Idaho's hazardous waste laws. Elias submitted two letters from IDEQ, addressing concerns of parties wanting advice on how to deal with various toxins. In its earlier decision, the Court found that there was at least a possibility that Elias could have used these letters as some evidence in his case if he had known that he was being prosecuted under the Idaho law. In other words, the IDEQ's letter interpretations would have some relevance if Idaho's law was being applied, where they would have no relevance in his trial on federal charges.

In response, the Government asserts that the IDEQ was simply interpreting federal law because the Idaho hazardous waste program incorporates by reference the federal hazardous waste definitions. The Government points out that Idaho has no separate definition of hazardous waste. Of course, this would not matter if the IDEQ was interpreting the federal statutes and regulations in a lenient fashion. In that case, Elias could argue that the indictment's mis-citation prejudiced him because the Idaho program was in fact more lenient due to the IDEQ's interpretations. Elias has not, however, shown that the IDEQ was lenient in interpreting the regulations. The two letters appear to apply the federal hazardous waste definitions, and the Court can find nothing therein indicating that the IDEQ is not willing to follow and apply the federal regulations. In fact, the IDEQ letters cite the applicable federal regulations in providing answers to the inquiries.

Conclusion as to Counts Two and Three

The Court reaffirms the four findings the Court made in its original decision and adds three additional findings based on the arguments made in the Government's motion to reconsider. Those seven findings are as follows: (1) EPA-approved state hazardous waste laws supplant their RCRA counterparts; (2) the EPA retains authority to enforce those approved state laws; (3) When the EPA approves a state program, the EPA loses the authority to enforce those RCRA provisions with counterparts in the approved state program; (4) When the EPA approves a state program, the EPA retains the authority to enforce RCRA provisions that have no counterparts in the approved state program; (5) In this case, the EPA, by approving Idaho's hazardous waste program, has supplanted the substantive provisions of 42 U.S.C. § 6928(d)(2)(A), and the indictment in counts two and three should have charged violations of Idaho Code § 39-4408(1); (6) In this case, the EPA's approval of Idaho's hazardous waste program expressly retained the penalty provisions of 42 U.S.C. § 6928(d) and did not replace those provisions with Idaho's penalty provisions; and (7) Elias has failed to show any prejudice under Rule 7(c)(3) resulting from the mis-citation in the indictment as the federal and state substantive laws and penalty provisions are the same.

For these reasons, the Court will grant the Government's motion to reconsider and will reinstate counts two and three. Accordingly, the Court will order that the Indictment be amended to reflect that Elias was charged in counts two and three under Idaho Code § 39-4408(1). This will alleviate any concerns that Elias could be prosecuted by the State for a violation of that statute. See Hamling v. United States, 418 U.S. 87, 117 (1974) (holding that "an indictment is sufficient if it . . . enables [defendant] to plead an acquittal or conviction in bar of future prosecution for the same offense.").

Analysis of Other Motions

The Court next turns to the Elias's motion to reconsider. Elias contends that because the Court has held that the substantive portions of § 6928(d) are supplanted by Idaho law, and because the conviction under count one for knowing endangerment under § 6928(e) depended on a finding that there had been a violation of one of the substantive provisions of § 6928(d), that count one must be dismissed. The Court disagrees for the same reasons that it refused to dismiss counts two and three. This motion will therefore be denied.

Finally, Elias has moved for a new trial on count four. This motion is based on the Court's prior dismissal of counts two and three, which the Court has now reconsidered. Accordingly, the Court will deny this motion.

Order

In accordance with the Memorandum Decision set forth above,

NOW THEREFORE IT IS HEREBY ORDERED, that the Government's motion to reconsider (docket no. 263) is hereby GRANTED, and the conviction of defendant Elias on counts two and three is hereby REINSTATED.

IT IS FURTHER ORDERED, that the defendant's motion to reconsider (docket no. 264) is hereby DENIED.

IT IS FURTHER ORDERED, that the sentencing now set for April 28, 2000, at 9:00 a.m. in the Federal Courthouse in Pocatello, Idaho, shall proceed as scheduled, and shall be based on the defendant Elias having been convicted of counts one, two, three, and four of the indictment.

IT IS FURTHER ORDERED, that the indictment shall be amended to reflect that counts two and three charges offenses under Idaho Code § 39-4408(1), and the eventual Judgment will reflect that Elias has been convicted under Idaho Code § 39-4408(1) in counts two and three.

IT IS FURTHER ORDERED, that the sanctions for the convictions set forth in counts one, two, and three, are set forth in 42 U.S.C. § 6928(d).

IT IS FURTHER ORDERED, that the motion for new trial as to count four (docket no. 272) is hereby DENIED.

1. The Government had provided the Federal Register preamble to the Court in a letter supplementing its original briefing in response to Elias's motion to dismiss counts two and three. The Federal Register preamble was not, however, discussed in any of the briefing and so its significance was not considered in the Court's original decision.