Revised January 4, 2002
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________
No. 00-31462 00-31463 00-31464 01-30024 _______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIMS BROTHERS CONSTRUCTION, INC., ROBERT L. CASE, MARK E. JERKINS, AND AMTEK OF LOUISIANA,INC.
Defendants-Appellants.
_________________________________________________
Appeals from the United States District Court for the Middle District of Louisiana _________________________________________________
December 21, 2001
Before GARWOOD, WIENER, and CLEMENT*, Circuit Judges.
CLEMENT, Circuit Judge:
Defendants-Appellants, Sims Brothers Construction, Inc.
(Sims), Robert Case (Case), Mark Jerkins (Jerkins), and Amtek of
* Judge Clement participated by designation in the oral argument of this case as a United States District Judge for the Eastern District of Louisiana. Since that time she has been appointed as a Fifth Circuit Judge.
1 Louisiana, Inc. (Amtek) (collectively "Defendants"), challenge
their convictions for illegal storage of hazardous waste in
violation of the Resource Conservation and Recovery Act (RCRA),
Title 42 U.S.C. §6928(d)(2)(A). We affirm the district court's
conclusion that Title 42 U.S.C. §6928(d)(2)(a), as applied to this
case, does not violate due process. We also affirm the district
court's conclusion that the indictment charged the defendants with
the essential elements of the crime and that the factual basis was
sufficient to support the defendants' guilty pleas. Finally, we
conclude that the district court did not lack jurisdiction.
I.
FACTS AND PROCEEDINGS
The facts were stipulated to by the parties. In January 1997,
Albertson's Inc. ("Albertson's"), a corporation which owns and
operates grocery stores throughout the nation, purchased property
in Baton Rouge, Louisiana on which to build a supermarket.
Subsequent to its purchase of the property, Albertson's contracted
with Sims to be its general contractor. Sims subcontracted the
demolition and site preparation work to Amtek.
On May 20, 1997, after commencing work, Amtek discovered two
yellow canisters designed to hold gases under pressure. The
canisters were located inside one of the buildings scheduled to be
demolished. Both canisters had a label bearing a skull and
2 crossbones and the word "poison" written on it. The canisters
additionally had "Property of Reddick Fumigants" stamped on them.
It was subsequently discovered that the canisters contained
liquified methyl bromide. Testing revealed that one or both of the
canisters contained hazardous waste. The methyl bromide in both
canisters weighed less than 100kg, and the total hazardous waste on
the site was less than 1000kg in any one calendar month and less
than an average of 100kg per calendar month for the calendar year.
An employee discovered the canisters in the building and
immediately informed defendants Case, the president of Amtek, and
Jerkins, the superintendent hired by Sims to oversee the project.
Case and Jerkins, aided by others, removed the canisters from the
building and set them in an open on-site area. Jerkins saw a
poison label on one of the canisters, and Case saw the word
"fumigant" on another. Case and Jerkins were not aware of the
precise contents of the canisters until after they had been tested.
Jerkins and Case intended to have someone remove the canisters
from the work site. They had discussions regarding proper removal
of the canisters by an environmental company. However, no further
effort to have the canisters removed from the site was made.
Neither Jerkins nor Case or any representative of Sims or Amtek
notified Albertson's, law enforcement, an environmental agency, or
any commercial or industrial entity regarding the presence of the
canisters. Both Jerkins and Case knew that Albertson's had
3 conducted an environmental site assessment on the property which
did not indicate the presence of containers with hazardous waste.
The canisters remained at the site until approximately June
13, 1997 when an Amtek employee removed the canisters from the
property without the defendants' knowledge. The employee gave the
canisters to his cousin, Edith Rome. Ms. Rome had the canisters
brought to her home and connected to her propane stove. The methyl
bromide leaked from the canisters and made Ms. Rome and her son
ill. Ms. Rome later died from methyl bromide poisoning.
Subsequent investigation revealed that the canisters were
filled by Reddick Fumigants, Inc. and were bought by W.L. Albritton
Farms in October, 1977. In 1977, the property was operated as a
peach and vegetable farm. When it ceased being used as a farm,
apartments were built on the property. Ms. Hallie Box managed the
properties owned by ASA. She stated that the building in which the
canisters were found was used for storage. Ms. Box was not aware
of the canisters. ASA did not own the canisters. Ms. Box
explained that, had she known of the canisters, she would have
considered them trash and had them properly disposed of by an
environmental company. Reddick Fumigants was still in existence in
May and June of 1997 and would have accepted a return of the
cylinders and their contents.
The defendants were indicted by a grand jury in the Middle
District of Louisiana on February 9, 1999. They were charged with
4 illegal storage of hazardous waste in violation of RCRA, Title 42
U.S.C. §6928(d)(2)(A). The defendants filed several motions to
dismiss the indictment in the district court. They alleged that
they were denied due process either because the regulations at
issue were unconstitutionally vague or because the government had
not shown the minimum mens rea required for conviction. They also
asserted that the indictment was defective and that the district
court lacked jurisdiction because the government was seeking to
enforce state law.
The defendants maintained throughout the district court
proceedings that they were "small quantity generators1" and were
exempt from the permit requirements for the storage of hazardous
waste. The government asserted that the defendants were not
"generators" and therefore could not be small quantity generators
entitled to an exemption. The district court held that the
defendants were not generators because the canisters were already
waste when Albertson's bought the property. The canisters became
waste, and therefore subject to regulation, when they were
abandoned by W.L. Albritton.
1 Under federal regulations, a small quantity generator of hazardous waste is a generator who produces less than an average of 1000kg of hazardous waste per month. 40 C.F.R. §260.10. Such generators who produce no more than 100kg are "conditionally exempt small quantity generators" (CESQG's). 40 C.F.R. §261.5(a). Entities that qualify for CESQG status are subject to less stringent permitting requirements than larger quantity generators.
5 The motions to dismiss the indictments were denied by the
district court, and the defendants subsequently entered into a plea
agreement with the government. The defendants pled guilty to the
indictment but specifically reserved their right, on appeal, to
review the denial of the motions to dismiss the indictment and to
contest whether the stipulated facts supported the defendants'
guilty pleas. At the hearing to accept the plea agreements, the
defendants argued that the stipulated facts were insufficient to
support a conviction under §6928(d)(2)(A). The district court
concluded that the factual basis was sufficient and accepted the
defendants' guilty pleas. The defendants were sentenced on
December 1, 2000, and judgments were entered on December 7, 2000.2
The defendants timely filed notices of appeal, and all four appeals
were consolidated.
II.
ANALYSIS
1. Due Process
Constitutional challenges are reviewed de novo.3 The
2 Sims was sentenced to five years probation, a fine of $100,000, and a special assessment of $400. Amtek was sentenced to five years probation and a special assessment of $400. Jerkins was sentenced to five years probation and a special assessment of $100. Case was sentenced to five years probation, restitution of $14,628, a fine of $10,000, and a special assessment of $100.
3 See United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998).
6 defendants contend that application of Title 42 U.S.C.
§6928(d)(2)(A) to the instant facts violates the due process
requirement that criminal statutes give fair warning and notice of
proscribed conduct. The defendants raise four due process issues
on appeal. First, the defendants had no notice or fair warning
that they would not be considered "generators" and thus not exempt
from permit requirements for on-site storage of hazardous waste.
Second, they had no knowledge of the facts supporting the denial of
the on-site storage permit exception which rendered their conduct
criminal. Third, the defendants maintain that they did not have
notice that Chapter 21 of Louisiana's Hazardous Waste Regulations
would apply to them since it was repealed as state law by the
Louisiana legislature. Fourth, they argue that the definition of
"storage" is unconstitutionally vague because the definition of
"storage" as applied to compressed gas in a cylinder includes
containing gas in a cylinder with no further action on the part of
the defendants.
a. Whether the defendants were generators
A "generator" is defined by the Louisiana Department of
Environmental Quality ("DEQ") and the EPA as "any person, by site,
whose act or process produces hazardous waste identified or listed,
or whose act first causes hazardous waste to become subject to
regulation."4 While storing hazardous waste without a permit is
4 L.A.C. 33:V.109 (1997); 40 C.F.R. §260.10 (1997).
7 usually prohibited, there are exceptions to the permit requirement
for generators who meet certain conditions. "Small quantity
generators" ("SQGs"), those who "generate less than 1000kg of
hazardous waste in a calendar month," have more lenient standards
by which to abide.5 Federal regulations permit SQGs to store
hazardous waste on-site without a permit for 180 days as long as
they comply with safe storage conditions.6 SQGs who generate 100kg
or less of hazardous waste in a calendar month are "conditionally
exempt" SQGs ("CESQGs").7 Waste generated by CESQGs is not subject
to regulation and may be stored without a permit provided certain
conditions are met.
The defendants submit that demolition contractors who remove
hazardous substances from buildings that are scheduled to be
demolished are "generators." Recalling that a generator is one who
"produces" or "whose act first causes hazardous waste to become
subject to regulation," it is clear that neither Albertson's nor
the defendants qualify as generators. The facts clearly show that
the canisters of methyl bromide were "waste" when Albertson's
bought the property, so neither Albertson's nor the defendants
could be considered generators because they did not produce or
first cause the hazardous waste to become subject to regulation.
5 40 C.F.R. §260.10 (1997). 6 40 C.F.R. §262.34(d) (1997). 7 40 C.F.R. §261.5 (1997).
8 Even if the defendants were considered to be generators, to be
exempt from having a permit as an SQG, certain conditions must be
met under both state and federal regulations. The facts to which
the defendants stipulated clearly show that they did not meet these
conditions and could not qualify for unpermitted storage of
hazardous waste. While the defendants argue that the state
regulations do not apply, the regulations under Chapter 21 are less
stringent than the federal regulations. The defendants failed to
meet the more strict federal regulations for CESQGs and are not
entitled to the exemption under state or federal law. As a result,
even if the defendants were considered generators, they could not
qualify for the permit exemption. Accordingly, there was no due
process violation.
b. Knowledge
The defendants maintain that their due process rights were
denied because they lacked knowledge of facts that would have
rendered their otherwise lawful conduct criminal. They submit that
they had no knowledge that they would not be considered generators
who were exempt from the permit requirements. The parties
stipulated that they lacked knowledge of the history of the
canisters. The defendants argued that, as far as they knew, either
they or Albertson's were the first to decide whether to dispose of
the canisters and thus fall within the definition of "generator."
This argument fails because even if the defendants were
9 "generators," their convictions are valid because they violated the
federal regulations for unpermitted storage of hazardous waste as
we explain below.
c. Vagueness
Under RCRA, for waste to be hazardous it must be "solid
waste."8 For gaseous material to be "solid waste" it must be
"contained."9 "Storage" is defined as "the containment of hazardous
waste, either on a temporary basis or for a period of years, in such
a manner as not to constitute disposal of such hazardous waste."10
The defendants argue that the statute's vagueness in defining how
one stores contained gaseous material, which is contained from
inception, unconstitutionally violates due process.
This Court is concerned with the fact that the statute fails
to specify a time frame within which, after hazardous waste is
discovered in one's possession, that person becomes criminally
liable for storing it without a permit. However, under the facts
of this case, the statute is not unconstitutionally vague. The
defendants were indicted for illegal storage of hazardous waste.
What made their conduct criminal was the knowing storage of
hazardous waste without a permit. The defendants argue that the
definition of storing gaseous material gave them no fair warning
8 42 U.S.C.§6903(5). 9 42 U.S.C. §6903(27). 10 42 U.S.C. §6903(33).
10 that "merely finding the cylinders on a jobsite or placing them on
the ground without further containment constitute[d] a felony."
The defendants moved the canisters from the building knowing, at a
minimum, that they were potentially hazardous because they had
"poison" and "fumigant" stamped on them, yet the defendants allowed
the canisters to remain in an open area for three weeks without
reporting their existence.
Vagueness challenges outside the First Amendment context must
be considered in light of the particular facts of the case.11 We
are not persuaded by the defendants' argument that they could not
reasonably understand that they were storing hazardous waste without
putting the canisters inside an additional container as opposed to
putting them out in the open. The question that must be resolved
is at what point were the defendants intentionally storing the
methyl bromide? This is a question of fact. The defendants should
have notified the appropriate agencies that they found potentially
hazardous material on their property much sooner than they did.
Allowing the canisters to remain in an open area on the property for
three weeks, while doing nothing to facilitate their removal or
disposal, is "storage" in violation of §6928(d)(2)(A). While we are
concerned with the potential danger of prosecutorial discretion
under this statute, as applied to the instant facts, we hold that
11 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S.Ct. 1186, 1192 & n.7, 71 L.Ed.2d 362 (1982).
11 the defendants were storing hazardous waste in violation of Title
42 U.S.C. §6928(d)(2)(A).
2. Deficiency of the Indictment
"An indictment is sufficient if it contains the elements of the
charged offense, fairly informs the defendant of the charges against
him, and ensures that there is no risk of future prosecutions for
the same offense."12 The defendants were charged under Title 42
U.S.C. §6928(d)(2)(A) with storing hazardous waste without a permit.
Defendants' position that the indictment was deficient results from
their incorrect assumption that exemptions to the permit requirement
are elements of the offense. The defendants cannot assert that the
government need prove that the defendants were not entitled to the
permit exemptions provided by statute. It is an affirmative
defense, not an element of the crime, that the defendants were
entitled to allow the waste to remain on the site as a CESQG.13 We
12 United States v. Cavalier, 17 F.3d 90, 92 (5th Cir. 1994). 13 The defendants rely on United States v. Baytank, 934 F.2d 599 (5th Cir. 1991), to assert that it was the government's burden to prove that the defendants "stored hazardous waste without a permit and...violated the limited conditions under which [they] could store those wastes without a permit." However, the sufficiency of the indictment was not at issue in Baytank. The Court made it clear that such unpermitted storage was permissible for the ninety day period "only if it complie[d] with certain safe storage conditions." The Baytank Court's holding does not necessitate a finding that the government must charge and negate exceptions to a permit requirement in an indictment. See United States v. Outler, 659 F.2d 1306, 1310 n.3 (5th Cir. Unit B 1981)(generally, the burden of proving compliance with a statutory exception is on the defendant).
12 hold that the district court was correct in finding that the
indictment was not deficient for failing to allege an element of the
crime charged.
3. Jurisdiction of the District Court
Challenges to the jurisdiction of the district court are
reviewed de novo.14 The defendants submit that the district court
lacked jurisdiction over this case because the government was
attempting to enforce state regulations. The state regulations that
the defendants claim were enforced against them only applied to
SQGs. Because we hold that the defendants were not generators of
methyl bromide, the argument that the district court lacked
jurisdiction to enforce Louisiana regulations applicable to SQGs is
without merit.
4. Sufficiency of the Factual Basis
A district court's acceptance of a guilty plea is a factual
finding which we review under the clearly erroneous standard.15 The
district court's conclusion that the factual basis was sufficient
to support a violation of Title 42 U.S.C. §6928(d)(2)(A) was not
clearly erroneous. RCRA defines "solid waste" as including any
"discarded material...resulting from industrial, commercial, mining,
14 United States v. Lynch, 114 F.3d 61, 63 (5th Cir. 1997). 15 See United States v. Adams, 961 F.2d 505, 509 (5th Cir.1992).
13 and agricultural operations...."16 Methyl bromide is a hazardous
waste once it is discarded or intended to be discarded.17 Materials
that are "abandoned by being...disposed of" or "accumulated, stored,
or treated (but not recycled) before or in lieu of being abandoned
by being disposed of" are considered "discarded" and therefore solid
waste under RCRA.18
The defendants contend that the methyl bromide was not "waste"
because the government failed to show that the canisters were
intentionally abandoned or discarded. The canisters were clearly
discarded or abandoned. Whether it was done intentionally is of no
moment. Arguments that the contents of the canisters could have
been used as a fumigant or returned to Reddick are not supported by
the evidence and therefore without merit. The canisters' contents
were never intended to be used as a fumigant by the apartment
complex according to the testimony of Ms. Box, and there is there
no indication that Albertson's or its agents intended to use the
canisters' contents for any purpose. In hindsight, Reddick's
possible willingness to take the canisters back does not necessitate
a conclusion that the defendants actually intended to return the
canisters to Reddick. The canisters sat in an open area for three
weeks until they were stolen. There is no possible conclusion but
16 42 U.S.C. §6903(27). 17 L.A.C. 33:V. 4901.D. 18 L.A.C. 33:V.109.
14 that the canisters were abandoned or discarded.
The defendants additionally contend that, even if the canisters
were waste, they had no such knowledge, negating an essential
element of the offense charged. The factual basis is clearly
sufficient with respect to whether the defendants knew that the
canisters were waste. The defendants stipulated that the canisters
contained hazardous material as evident from the labels on the
canisters and their corroded appearance. Case and Jerkins also
stipulated that they discussed what to do with the canisters,
including hiring an environmental company to remove and dispose of
them. These facts cannot support the defendants' contentions that
it was reasonable to assume that the fumigant was usable or that the
defendants would have contacted Reddick to reclaim the canisters.
III.
CONCLUSION
We affirm the district court's determination that Title 42
U.S.C. §6928(d)(2)(A), as applied to the facts of this case, did not
violate due process. We affirm the conclusion that the indictment
alleged the essential elements of the crime charged. We also affirm
the acceptance of the guilty pleas, as the factual basis was
sufficient to support the crime charged. Finally, we conclude that
the district court did not lack jurisdiction over this case.
AFFIRMED.