Petition for Writ of Certiorari — Angel v. United States

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OCT 10 1864

ALERAN “—_

In The

Supreme Court of the United States

OCTOBER TERM, 1984

PETER ANGEL,

Petitioner,

-VS-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Counsel of Record

SAMUEL ASBELL

900 Haddon Avenue

Collingswood, New Jersey 08108

(609) 858-7011

Of Counsel

JOSEPH A. CARMEN

43 Kings Highway West

Haddonfield, New Jersey 08033

(609) 429-0201

Attorneys for Petitioner

THE SUPERIOR APPELLATE PRINTING COMPANY

P.O. Box 363 Area Code 609

Cranbury, N.J. 08512 443-4202

QUESTION PRESENTED

Whether prosecutions brought under

the Resource Conservation and Recovery

Act (RCRA), more specifically 42 U.S.C.

Sec. 6928 (d) (2) (A) (1982) which imposes

strict standards on those persons re-

sponsible by statute to obtain permits

from the Evironmental Protection Agency

should be interpreted to include employ-

ees as well as owners and operators of

such facilities under the theory that

employees knew or should have known that

compliance was necessary under the permit

provision of 42 U.S.C. Sec. 6928(d) (2) (A)

(1982).

PARTIES

Parties to the proceeding in the

United States Court of Appeals for the

Third Circuit whose judgment is sought

to be reviewed were the United States

of America, Jack W. Hopkins and Peter

Angel. A third defendant, Johnson and

Towers, Inc., entered a plea of guilty

in the United States District Court for

the District of New Jersey.

iii

TABLE OF CONTENTS

OPINIONS BELOW... ce eeee eee ween senses

Jurisdiction. .ccccececcceses TeTTT TT

Statutes Involved... cee eeeeeeeeees

Statement Of CASE... eee ee eee eveees

Reasons for Granting Writ........e.-.

Appendix A (Opinion of United States

Court of Appeals for the Third

Circuit of August 15, 1984)....

Appendix B (Order Amending Opinion

of United States Court of

Appeals for the Third Circuit

Of August 21, 1984) ~.-.--seeeees

Appendix C (Opinion of United States

District Court for the District

of New Jersey of September 6,

LOBOS) wc ccccscccesecsesececncecs

Appendix D (Order of United States

District Court for the District

of New Jersey of September 6,

LOBD) cn cccececcccccccsccesccces

Appendix E (Indictment of United

States Grand Jury sitting at

Camden, New Jersey, against

Petitioner filed March 29,

BOBSD sce cccceccsesesescececsece

Page

34a

36a

69a

Jla

TABLE OF AUTHORITIES

Cases Page

Busic v. United States

100 S. Ct. 1747 (1979) ..--eeeeees 13

Donnelly v. United States

276 Un~S. 505 (1972) ..- eee eeeerees 13

United States v. Dotterweich

421 U.S. 658 (1975)... eee eeeeeess 14

Statutes

18 U.S.C. SEC. Zeweeeeeeeeeess escose ©

18 U.S.C. Secs. 371 and 2....-+-+e-- 8

28 U.S.C. Sec. 1254(1) ..- eee ee eeees 3

33 U.S.C. Sec. L319... cece eee erences 5,8

42 U.S.C. Sec. 6925 (a)... eee eevee 4,11

42 0.8.C. Sec. 6928 (da) (2) (a) weccecs 3,.3,a42

13,14

Regulations

40 C.F.R. Sec. 260.10 “ee 8 * eeeeeeeee 4,9,11

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

PETER ANGEL, Petitioner

THE UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court

of the United States:

Peter Angel, the petitioner herein,

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Third Circuit

entered in the above entitled case on

August 15, 1984 and amended on August 21,

1984.

OPINIONS BELOW

The. August 15, 1984 opinion of the

United States Court of Appeals for the

Third Circuit, whose judgment is herein

sought to be reviewed is No. 83-5745,

unreported, and is reprinted in Appendix

A, pp la-33a. Said opinion was amended on

August 21, 1984 and is reprinted in the

Appendix, B pp 34a-35a. The opinion of

the United States District Court for the

District of New Jersey was rendered Sep-

tember 6, 1983, unreported and is re-

printed in the Appendix C pp 36a-68a.

JURISDICTION

The judgment of the United States

Court of Appeals for the Third Circuit

was entered on August 15, 1984, and

amended on August 21, 1984. The juris-

diction of this Court is invoked pursuant

to 28 U.S.C. Sec. 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves a criminal prosecu-

tion brought under the following sections

of the Resource Conservation and Recovery

Act which provides at 42 U.S.C. Sec. 6928

(ad) (2) (a):

(dq) Criminal penalty - Any person

who knowingly--

(2) Knowingly treats, stores,

or disposes of any hazardous waste

identified or listed under this sub-

chapter either--

(A) without having obtained

a permit under section 6925 of this

title...

shall, upon conviction,

be subject to a fine of not more than

$25,000 ($50,000 in the case of

violation of paragraph (1) or

(2)) for each day of violation,

(¢ to imprisonment not to exceed

one year (two years in the case

of a violation of paragraph (1)

or (2)) or both...

Further, 42 U.S.C. 6925(a) states

and reguires:

(a) each person owning or

operating a facility for the

treatment, storage, or disposal

of hazardous waste identified or

listed under this subchapter to

have a permit issued pursuant to

this section.

This case also involves the defini-

tion of “operator” as set forth in 40

C.F.R. Sec. 260.10 (1982).

Operator means the person

responsible for the overall opera-

tion of the facility.

STATEMENT OF THE CASE

This is a criminal action whereby

an indictment was returned by the Grand

Jury for the District of New Jersey filed

March 29, 1983 bearing Criminal

eo ee

No. 83-83 ipria)+/ charging Johnson and

Towers, Inc., Peter Angel and Jack W.

Hopkins with conspiracy involving the

unlawful treatment, storage and disposal

of hazardous waste in violation of 18

U.S.C. Sec. 371, three counts of unlaw-

ful disposing of hazardous waste without

a permit in violation of the Resource

Conservation and Recovery Act (RCRA),

42 U.S.C. Sec. 6928(4) (2) (A) (1982), and

one count of unlawful discharge of

pollutants from a point source in vio-

lation of the criminal provisions of the

Federal Water Pollution Control Act, 33

U.S.C. Sec. 1319. With respect to the

three RCRA counts, the Indictment also

charges the defendants aided and abetted

1/ Designations “a" refer to pages in

Petitioner's appendix.

the unlawful dumping in violation of

18 U.S.C. Sec. 2.

The defendants all entered pleas

of not guilty on April 8, 1983, however,

several weeks later, the corporate defend-

ant, Johnson and Towers, Inc., entered a

plea of guility to the three RCRA counts

and received concurrent fines of $20,000

on each count.

On June 13, 1983, the defendant,

Peter Angel, filed a Motion for Dismissal

of counts 2, 3 and 4 of the indictment

which was joined in by defendant, Jack W.

Hopkins. After briefing and oral argu-

ment United States District Court Judge

on September 7, 1983 granted the de fend-

ants' motions to dismiss the substantive

counts of the RCRA charges, however,

denied the motions to the extent that

the defendants could criminally be held

responsible for aiding and abetting the

eee ee

violation of RCRA p69a].

The United States moved for re-

consideration and after additional

briefing and oral argument, the court

denied the application on October 14,

1983 summarily. The government then

filed a timely appeal with the United

States Court of Appeals for the Third

Circuit, and after briefing, oral

argument was ordered and subsequently

held on May 21, 1984. On August 15,

1984 the Circuit Court reversed the

District Court's ruling and reinstated

the three substantive RCRA counts of

the indictment [p la]. The case was

remanded to the District Court for

trial, said trial to be consistent

with the opinion of the Circuit Court.

The basis for jurisdiction was

the return by the Federal Grand Jury

sitting at Camden of an indictment

predicated upon 18 U.S.C. Secs. 371 and

2, 42 U.S.C. Sec. 6928(d) (2) (A), and

33 U.S.C. Sec. 1319.

Factually, Johnson and Towers, Inc.

is a company which builds, repairs, over-

hauls and designs large motors of all

types. Its plant is located in Mt.

Laurel, New Jersey, and it employs the

defendants, Peter Angel and Jack W.

Hopkins. The total ownership and oper-

ation of the Johnson and Towers corpora-

tion is held by two brothers; Walter

Johnson is President and Chairman of

the Board of Directors and Peter Johnson

who is Executive Vice President of the

corporation and General Manager of the

plant. Neither of the Johnson brothers

was charged or indicted in this case

even though they clearly fit within

the definition of owner and operator

as set forth in the definitions of same

in 40 C.F.R. Sec. 260.10(1982).

The Mt. Laurel plant is equipped

with floor drains in which water and

degreasers flow from the cleaning process

utilized for purposes of cleaning and

Stripping engines. As water and grease

is cleaned from the various motors, the

liquid flows into the flow drains and

funnels through piping into a separator

holding tank on the plant grounds. The

function of the separator tank is to

allow the water to separate from the

other substances. The water flows into

a leech field, while the oil, grease and

other substances are held in the separator

tank for disposal by licensed waste haulers.

Evidently, due to the unusually high water

table in the area, the water flow-off from

the separator tank would back up into the

tank causing the water in the tank to

overflow during periods of heavy rainfall.

It is alleged that on June &, 9 and

10 of 1981, defendants Angel and Hopkins

directed a water pump to be used in an

effort to pump the water from the

separator tank before it overflowed as

a result of the water table. The govern-

ment alleges that the water included

hazardous chemicals and since the leech

field flows into a nearby creek, which

in turn flows into the Delaware River,

a violation had taken place whereby the

defendants Angel and Hopkins did not

possess the necessary permit to dump

under RCRA. Obviously, by the corporate

defendant's plea of guilty, it conceded

that it was a disposer of hazardous waste

and it did not apply for nor possess the

necessary permit under RCRA.

The very narrow issue to which must

be addressed is the construction of 42

why

U.S.C. Sec. 6928(d) (2) (A) which reads,

in pertinent part, as follows:

Any person who--

(2) Knowingly treats, stores

or disposes of any hazardous waste

identified or listed under this

subchapter....

(A) without having obtained

a permit under section 6925 of this

title...

The permit section of 42 U.S.C. Sec. 6925

(a) requires applications and possession of

permits by "each person owning or operating

S THCLLICY. ccc for disposal of hazardous

waste......to have a permit." 42 U.S.C.

Sec. 6925(a). The regulations further

defines operator as "the person responsi-

ble for the overall operation of the

facility" 40 C.F.R. Sec. 260.10(1982)

(our emphasis). It is conceded that

defendant Angel is an employee and the

District Court held that as an employee

he did not qualify to obtain a permit

under the RCRA [p60a]- The Circuit

Court while seemingly confused as to the

title of defendant Angel [p32a] still held

that "section 6928(d) (2) (A) covers employ-

ees as well as owners and oprators" [p 7a]

(our emphasis) and further adds to the

statute that employees can be subject

to criminal prosecution only if “they

knew or should have known" that there

was no compliance with 42 U.S.C. Sec.

6928 (d) (2) (A).

The Circuit Court of Appeals did

not address the issue of construction

of criminal statutes as set forth in

a long line of cases from Donnelly v.

United States, 276 U.S. 505 (1927) to

Busic v. United States, 100 S. Ct. 1747

(1979) whereby such statutes should be

narrowly construed. Instead, the Circuit

Court liberally construed the statute and

in fact added another class of offender

to the statute, i.e., "employees" [p 7a]

wherein the classification of same is

totally absent from the statutory lang-

uage.

Finally, an examination of the

opinions of both court's opinions

reveals totally different views of

the legislative history and Congress-

ional intent of RCRA andalso in the

application of United States v. Dotter-

weich,421 U.S. 658(1975) insofar as

the Circuit Court of Appeals used the

above to expand the meaning of the

RCRA, while, on the other hand, the

District Court used all of the above

to strictly construe the Act.

REASONS FOR GRANTING WRIT

This is a case of first impression.

It is only the third criminal prosecu-

tion brought under RCRA nationwide. It

is the first such prosecution in the State

of New Jersey, and it is the first to

interpret 42 U.S.C. Sec. 6928(d) (2) of

RCRA. It is an important question of

federal law and has nationwide ramifica-

tions as it applies to the literally

hundreds of disposers of hazardous waste.

The decision of the Circuit Court of

Appeals expands the Act to encompass all

employees no matter how far down the

scale of responsibility and control said

employee might be.

It further burdens these employees

with the criminal culpability of their

corporate supervisors who initially and

totally bear the responsibility for

obtaining the necessary permits from

EPA. The Circuit Court recognized the

affect of their ruling when it remarked:

“though the result may appear

harsh [pl3a]

In a sense, it is not a question

of harshness, but a question of inter-

AE hs vs Se

Phas oo ta

pretation. On the one hand we have a

strictly construed interpretation by

the District Court and on the other

hand we have an all encompasing inter-

pretation from the Circuit Court.

Moreover, we think that the Court

of Appeals misconstrued the statute and

in fact legislated into the statute

the word employee, applying in essence

an almost civil view of a criminal statute.

In any event the dichotomy of opinion

of the two-courts and the need for

clarification should compel this Court

to grant certification.

For the Petitioner,

Peter Angel

/s/ Samuel Ashell, Esq.

OF RECORD

/s/ Joseph A. Carmen, Esq.

OF COUNSEL

Appendix

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-5745

UNITED STATES OF AMERICA,

Appellant

JOHNSON & TOWERS, INC.,

JACK W. HOPKINS and PETER ANGEL

On Appeal from the United States

District Court for the

District of New Jersey

(D.C. Criminal No. 83-00083)

Argued May 21, 1984

BEFORE: GARTH, SLOVITER, Circuit Judges,

and NEAHER, District Judge*

(Opinion filed August 15, 1984)

Michael Gilberti (Argued)

Assistant U.S. Attorney

W. Hunt Dumont

U.S. Attorney

970 Broad Street

Newark, NJ 07102

Attorneys for Appellant

* Hon. Edward R. Neaher, United States

District Court fer the Eastern District

of New York, sitting by designation.

Joseph A. Carmen (Argued)

43 Kings Highway West

Haddonfield, NJ 08033

‘Attorney for Appellee Peter Angel

Jeffrey A. Libert (Argued)

Falciani & Fletcher

35 South Broad Street

Woodbury, NJ 08096

Attorney for Appellee Jack W. Hopkins

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Before us is the government's appeal

from the dismissal of three counts of an

indictment charging unlawful disposal of

hazardous wastes under the Resource

Conservation and Recovery Act. Ina

question of first impression regarding the

statutory definition of "person," the

district court concluded that the Act's

criminal penalty provision imposing fines

and imprisonment could not apply to the

AO ete a PE 8 Pon

individual defendants. We will reverse.

The criminal prosecution in this case

arose from the disposal of chemicals at

a plant owned by Johnson & Towers in Mount

Laurel, New Jersey. In its operations the

company, which repairs and overhauls large

motor vehicles, uses degreasers and other

industrial chemicals that contain chemicals

such as methylene chloride and trichloro-

ethylene, classified as "hazardous wastes"

under the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. Secs. 6901-6987 (1982)

and "pollutants" under the Clean Water Act,

33 U.S.C. Secs. 1251-1376 (1982). App. at

18a. During the period relevant here, the

waste chemicals from cleaning operations

were drained into a holding tank and, when

the tank was full, pumped into a trench.

The trench flowed from the plant property

into Parker's Creek, a tributary of the

Delaware River. Under RCRA, generators

of such wastes must obtain a permit for

disposal from the Evironmental Protection

Agency (E.P.A.). The E.P.A. had neither

issued nor received an application for a

permit for Johnson & Towers' operattions.

The indictment named as defendants

Johnson & Towers and two of its employees,

Jack Hopkins, a foreman, and Peter Angel,

the service manager in the trucking depart-

ment .~ According to the indictment, over

a three-day period federal agents saw

workers pump waste from the tank into the

trench, and on the third day observed toxic

chemicals flowing into the creek.

1. Angel was so described by the district

court. App. at 18a. Angel's brief says

he was "service manager of the parts de-

partment," Brief for Appellee Angel at

5, defendant Hopkins' brief calls Angel

"the service manager," Brief for Appellee

Hopkins at 5, and the government brief

refers to him as "the plant supervisor,"

Brief for Appellant at 5. The record

contains no information on the defendants'

job titles or responsibilities.

ee ee ee

Count 1 of the indictment charged all

three defendants with conspiracy under 18

U.S.C. Sec. 371 (1982). Counts 2, 3, and

4 alleged violations under the RCRA crimi-

nal provision, 42 U.S.C. Sec. 6928 (d)

(1982). Count 5 alieged a violation of

the criminal provision of the Clean Water

Act, 33 U.S.C. Sec. 1319(c) (1982). Each

substantive count also charged the indivi-

dual defendants as aiders and abettors

under 18 U.S.C. Sec. 2 (1982).

The counts under RCRA charged that the

defendants "did knowingly treat, store,

and dispose of, and did cause to be trea-

ted, stored and disposed of hazardous

wastes without having obtained a permit

---in that the defendants discharged,

deposited, injected, ieiend , spilled,

leaked and placed degreasers...into the

trench...." The indictment alleged that

both Angel and Hopkins “managed, super-

vised and directed a substantial portion

of Johnson & Towers' operations...includ-

ing those related to the treatment,

storage and disposal of the hazardous

wastes and pollutants" and that the

chemicals were discharged by "the defend-

ants and others at their direction." The

indictment did not otherwise detail

Hopkins' and Angel's activities or

responsibilities.

Johnson & Towers pled guilty to the

RCRA counts. Hopkins and Angel pled not

guilty, and then moved to dismiss counts

2, 3, and 4. The court concluded that

the RCRA criminal provision applies only

to “owners and operators," i.e., those

obligated under the statute to obtain a

permit. Since neither Hopkins nor Angel

| naitiadetieall

idl ih al "

was an “owner" or "operator," the district

court granted the motion as te the RCRA

charges but held that the individuals

could be liable on these three ccunts under

18 U.S.C. Sec. 2 for aiding and abetting.

The court denied the government's motion

for reconsideration, and the government

appealed to this court under 18 U.S.C.

Sec. 3731 (1982).

We hddthat section 6928(d) (2) (A)

covers employees as well as owners and

operators of the facility who knowingly

2. The government had argued before the

district court that the i* dividual def-

endants were “operators,” a term defined

in the regulations as “the person responsi-

ble for the overall operation of a facil-

ity." 40 C.F.R. Sec. 260.10 (1982). The

district court found, however, that "[t]

he use of the terminology ‘overall opera-

tion' is indicative of an attempt to

focus on those individuals who exercise

primary control even though they may not

actually own the company." and concluded

that the defendants were not within this

category. App. at 27. The government

does not contest the finding on appeal.

treat, store, or dispose of any hazard-

ous waste, but that the employees can be

subject to criminal prosecution only if

they knew or should have known that there

had been no compliance with the permit

requirement of section 6925.

II.

The single issue in this appeal is whether

the individual defendants are subject to

prosecution under RCRA's criminal provis-

ion, which applies to:

[a]Jny person who--

(2) knowingly treats, stores,

or disposes of any hazardous waste

identified or listed under this sub-

chapter either--

(A) without having

obtained a permit under

section 6925 of this title

ee eOF .

(B) in knowing violation

of any material condition

or recuirement of such

permit.

Ae Sat

i MI hit CR AD ARAL AE CRIP! AOE AL APE DASA SOMA

42 U.S.C. Sec. 6928(d) (emphasis added).

The permit provision in section 6925,

referred to in section 6928(d), requires

"each person owning or operating a facil-

ity for the treatment, storage, or dis-

posal of hazardous waste identified or

listed under this subchapter to have a

permit" from the E.P.A.

The parties offer contrary interpre-

tations of section 6928(d)(2) (A). Defend-

ants consider it an administrative

enforcement mechanism, applying only to

those who come within section 6925 and

fail to comply; the government reads it

as penalizing anyone who handles hazard-

ous waste without a permit or in widiehion

of a permit. Neither party has cited

another case, nor have we found one,

considering the application of this

criminal provision to an individual other

than an owner or operator.

10a

As in any statutory analysis, we are

obliged first to look to the language and

then, if needed, attempt to divine Congress'

specific intent with respect to the issue.

See Citizens Counsel v. Brinegar, No. 83-

1669, slip op. at 11-12 (3d Cir. August l,

1984). The language of the particuiar

section under consideration does not

readily support either interpretation

proffered by the opposing parties. Had

Congress merely intended an administrative

enforcement measure, as defendants contend,

it could have specified that any person

required under section 6925 to obtain a

permit would be liable for acting without

one. On the other hand, if Congress had

meant to subject to prosecution anyone

who did not have a permit, as the govern-

ment argues, it could have phrased sub-

section (A) of section 692¢(d)(2) to provide

OM AF A od

lla

that any treatment, storage or disposal in

the absence of a permit or outside the

terms of such a permit is illegal. It

did not so state explicitly.

However, if we view the statutory

language in its totality, the congress-

ional plan becomes more apparent. First,

"person" is defined in the statute as "an

individual, trust, firm, joint stock

company, corporation (including a government

corporation), partnership, association,

State, municipality, commission, political

subdivision of a State, or any interstate

body." 42 U.S.C. Sec. 6903(15) (1982). Had

Congress meant in section 6928(d) (2) (A)

to take aim more narrowly, it could have

used more narrow language. Cf. Russello v.

United States, 104 S. Ct. 289, 300(1983)

(RICO). Since it did not, we attribute

to "any person" the definition given the

l2a

in section 6903(15).°

Second, under the plain language

of the statute the only explicit basis

for exoneration is the existence of a

permit covering the action. Nothing in

the language of the statute suggests that

3. The defendants argue that “person"

should be interpreted narrowly because

in two similar statutes, the Clean Air

Act and the Clean Water Act, Congress

added to its definition of "person" the

category of “any responsible corporate

officer," thus raising some doubt as to

whether “person"™ was to be given its

common-sense meaning. See 42 U.S.C.

Sec. 7413(c) (3) (1982) (Clean Air Act);

33 U.S.C. Sec. 1319(c) (3) (1982) (Clean

Water Act). Without passing on the

meaning of “any person" in the Clean Air

or Clean Water Act, which are not the

subject of this appeal, we note that

the addition in those acts of “any res-

ponsible corporate officer" seems to

expand rather than limit the class of

potential defendants. As the Supreme

Court said in United States v. Dotter-

weich, 320 U.S. 277, 282 (1943), an

exercise of draftsmanship intended to

broaden the scope of a criminal provi-

sion “can hardly be found ground for

relieving from such liability the

individual agents of the corporation."

l3a

we should infer another provision exonera-

ting persons who knowingly treat, store

or dispose of hazardous waste but are

not owners or operators.

Finally, though the result may appear

harsh, it is well established that criminal

penalties attached to regulatory statutes

intended to protect public health, in

contrast to statutes based on common law

crimes, are to be construed to effectuate

the regulatory purpose. See United States

v. Park, 421 U.S. 658, 672-73 (1975);

Smith v. California, 361 U.S. 147, 152

(1959); United States v. Dotterweich,

320 U.S. 277, 280-81, 284-85 (1943);

United States v. Balint 258 U.S. 250,

251-52 (i922); see also United States v.

Frezzo Brothers, Inc. 602 F.2d 1123, 1128

(3d Cir. 1979), cert. denied, 444 U.S.

1074 (1980).

The statutory construction issue

l4a

here, whether the criminal provision may

be applied to the individual defendants

who were not in the position to secure a

permit, is similar to that presented to

the Supreme Court in United States v.

Dotterweich. There the defendant, a

jobber, had been convicted of violating

the Food and Drugs Act, providing a

criminal penalty for “any person” shipping

adulterated or misbranded drugs. Under

the statute, there was no violation if a

guaranty had been issued with the goods

stating that they were not contaminated

or misbranded. The drugs in question

originated with the manufacturer and the

jobber had undertaken only to label and

ship them. The Court of Appeals over-

turned the conviction, concluding that the

guaranty provision could apply only to

principals and that the penalty provision

must be correspondingly limited. The

15a

court found it “difficult to believe

that Congress expected anyone except the

principal to get such a guaranty, or to

make the guilt of an agent depend upon

whether his employer had gotten one."

United States v. Buffalo Pharmacal Co.,

131 F.2d 500, 503(2d Cir. 1942).

The Supreme Court reinstated the

conviction. In construing the term “any

person," it rejected the Second Circuit's

restrictive view, and said:

The Food and Drugs Act of 1906 was

an exertion by Congress of its power

to keep impure and adulterated

food and drugs out of the channels

of commerce. By the Act of 1938,

Congress extended the range of its

control over illicit and noxious

articles and stiffened the penalties

for disobedience. The purposes of

this legislation thus touch phases

of the lives and health of people

which, in the circumstances of

modern industrialism, are largely

beyond self-protection. Regard for

these purposes should infuse con-

struction of the legislation if it

is to be treated as a working instru-

ment of government and not merey (sic)

as a collection of English words.

l6a

Dotterweich, 320 U.S. at 280.

Thus, we must inguire into the

congressional intent to determine whether

RCRA should be construed in the same

manner as was the Food and Drugs Act in

Dotterweich.

Congress enacted RCRA in 1976 as a

"cradle-to-grave" regulatory scheme for

toxic materials, providing "nationwide

protection against the dangers of improper

hazardous waste disposal." H.R. Rep. No.

1491, 94th Cong., 2d Sess. 1l, reprinted

in 1976 U.S. Code Cong. & Ad. News 6238,

6249, RCRA was enacted to provide "a

multifaceted approach towards solving

the problems associated with the 3-4

billion tons of discarded materials

generated each year, and the problems

resulting from the anticipated 8% annual

increase in the volume of such waste."

Id. at 2, 1976 U.S. Code Cong. & Ad.

17a

News at 6239. The committee reports

accompanying legislative consideration

of RCRA contain numerous statements

evincing the Congressional view that

improper disposal of toxic materials was

a serious national problem. See S. Rep.

No. 172, 96th Cong., 2d Sess. l,

reprinted in 1980 U.S. Code Cong. & Ad.

News 5019; H.R. Rep. No. 1491, supra at

3-4, 1976 U.S. Code Cong. & Ad. News at

6241.

The original statute made knowing

disposal (but not treatment or storade}

of such waste without a permit a mis-

‘demeanor. Resource Conservation and

Recovery Act of 1976, Pub. L. No. 94-580,

Sec. 3008(d), 90 Stat. 2795, 2812 (1976).

Amendments in 1978 and 1980 expanded the

Criminal provision to cover treatment and

storage and made violation of section

6928 a felony. The fact that Congress

18a

amended the statute twice to broaden the

scope of its substantive provisions and

enhance the penalty is a strong indication

of Congress' increasing concern about the

seriousness of the prohibited conduct.

Although Congress' concern may have

been directed primarily at owners and

operators of generating facilities, since

it imposed upon them in section 6925 the

Obligation to secure the necessary permit,

Congress did not explicitly limit criminal

liability for impermissible treatment,

storage, or disposal to owners and operators.

The House Committee's discussion of enforce-

ment contains several references relevant

only to owners and operators, but it says,

in addition: "This section also provides

for criminal penalties for the person who...

disposes of any hazardous waste without a

permit under this title...." H.R. Rep. No.

1491, supra at 31, 1976 U.S. Code Cong. &

19a

Ad. News at 6269 (emphasis added). The

"alsd' demonstrates that the reach of

section 6928(d)(2) is broader than that of

the rest of the statute, particularly the

administrative enforcement remedies. The

acts that were made the subject of the

criminal provision were distinguished in

the House Report from the other conduct

subject to administrative regulation

because they were viewed as more serious

offenses. As the Report explained, "[the]

justification for the penalties section is

to permit a broad variety of mechanisms

so as to stop the illegal disposal of

hazardous wastes." Id.

We conclude that in RCRA, no less than

in the Food and Drugs Act, Congress endea-

vored to control hazards that, "in the

circumstances of modern industrialism, are

largely beyond self-protection." United

States v. Dotterweich, 320 U.S. at 280.

20a

It would undercut the purposes of the

legislation to limit the class of potential

defendants to owners and operators when

others also bear responsibility for handling

regulated materials. The phrase "without

having obtained a permit under section 6925"

(emphasis added) merely references the

section under which the permit is required

and exempts from prosecution under section

6928 (da) (2) (A) anyone who has obtained a

permit; we conclude that it has no other

limiting effect. Therefore we reject the

Gistrict court's construction limiting the

substantive criminal provision by confining

"any person" in section 6928(d) (2) (A) to

Owners and operators of facilities that

store, treat or dispose of hazardous waste,

as an unduly narrow view of both the statu-

tory language and the congressional intent.

entien shew ade’

Since we must remand this case to

the district court because the individual

defendants are indeed covered by section

6928(d)(s) (A), it is incumbent on us

to reach the question of the requisite

proof as to individual defendants under

that section. The government argues that

"knowingly" applies only to “treats,

stores, or disposes" of any hazardous

waste, and that it does not have to show

that the defendant knew either that the

waste was hazardous or that there was no

permit. Letter brief for Appellant at

2. Thus, the government argues, it need

prove only that (1) the defendant is a

"person", (2) the defendant handled hazard-

ous material, and (3) there was no permit

22a

for such disposal or treatment. We con-

clude that this interpretation is overly

literal.

We focus again on the statory langu-

age:

(a)ny person who--

(2) knowingly treats, stores, or

disposes of any hazardous waste iden-

tified or listed under this subchap-

ter either--

(A) without having obtained

a permit under section 6925

of this title...or

(B) in knowing violation of

any material condition or

requirement of such permit.

42 U.S.C. § 6928(d) (1982) (emphasis added).

If the word "knowingly" in section

6928(d)(2) referred exclusively to the

acts of treating, storing or dispos-

ing, as the government contends, it would

be an almost meaningless addition since

it is not likely that one would treat,

23a

store or dispose of waste without know-

ledge of that action. At a minimum, the

word "knowingly", which introduces sub-

section (A), must also encompass knowledge

that the waste material is hazardous. Cer-

tainly, "(a) person thinking in good

faith that he was (disposing of) distil-

led water when in fact he was (disposing

of) some dangerous acid would not be

covered." United States v. Interna-

tional Minerals & Chemical Corp., 402

U.S. 558, 563-64 (1971).

Whether "knowingly" aiso modifies

subsection (A) presents a somewhat dif-

ferent question. The district court

concluded that it is not necessary to

show that individual defendants prosecu-

ted under section 6928(d) (2) (A) knew that

they were acting without a permit or in

violation of the law. Since we have

24a

already concluded that this is a regula-

tory statute which can be classified as

a “public welfare statute," there would

be a reasonable basis for reading the

statute without any mens rea requirement,

as the Court did in United States v.

Behrman, 258 U.S. 280, 288 (1922) and

United States v. Balint, 258 U.S. 250,

252-54 (1922). See generally Morissette

v. United States, 342 U.S. 246, 250-260

(1952) (distinguishing between regulatory

statutes and those incorporating common

law offenses). However, whatever policy

justification might warrant applying such

a construction as a matter of general

principle, such a reading would be arbitr-

ary and nonsensical when applied to this

apatene.

Treatment, storage or disposal of

hazardous waste in violation of any mater-

ial condition or requirement of a permit

25a

must be “knowing,” since the statute

explicitly so states in subsection (B).

It is unlikely that Congress could have

intended to subject to criminal prosecu-

tion those persons who acted when no

permit had been obtained irrespective of

their knowledge (under subsection (A)),

but not those persons who acted in viola-

tion of the terms of a permit unless that

action was knowing (subsection (B)). Thus

we are led to conclude either that the

omission of the word "knowing" in (A) was

inadvertent or that "knowingly" which

introduces subsection (2) applies to sub-

26a

section (ay.4

As a matter of syntax we find it no

more awkward to read “knowingly” as apply-

ing to the entire sentence than to read it

as modifying only "treats, stores or

disposes." The Eighth Circuit recently

addressed a similar linguistic problem in

a statute penalizing any person who "know-

ingly uses, transfers, acquires...or

possesses [food] coupons...in any manner

not authorized by this chapter...." 7

U.S.C. Sec. 2024(b). That court observed:

4. A similar statute construed by the

Eighth Circuit also presented the dis-

parity presented by RCRA in that Congress

did insert the word "knowing" in one sub-

section but not in another. The court

there concluded that “"[t]he different

placement of the words ‘knowingly' and

‘knowing’ in the two subsections of the

statute is too weak a reed to support the

argument that Congress intended to displace

a time-honored principle of criminal

jurisprudence." United States v. Marvin,

687 F.2d 1221, 1226 (8th Cir. 1982), cert.

Genied, 103 S. Ct. 1768 (1983).

27a

[P)urely as a verbal matter, the

word “knowingly” in subsection (b)

may naturally be read to modify the

entire remainder of the clause in

which it appears, including the

phrase, “in any manner not authori-

zed," etc. To read “knowingly” as

having nothing to do with the phrase

“in any manner not authorized" is,

we suppose, verbally tenable, but it

is not the only meaning the words

will bear, nor even, we think, the

more natural one.

United States v. Marvin, 687 F.2d 1221,

1226 (8th Cir. 1982), cert. denied, 103

S. Ct. 1768 (1983). We believe that

analysis to be appropriate here.

28a

However, our conclusion that “know-

ingly" applies to all elements of the off-

ense in section 6298(d) (2) (A) does not

impose on the government as difficult a

burden as it fears. On this issue, we

are guided by the Court's holding in

United States v. International Minerals

& Chemical Corp. 402 U.S. at 563, that

under certain regulatory statutes requiring

“knowing” conduct the government need

prove only knowledge of the actions taken

and not of the statute fcerbidding them.

See also United States v. Udofot, 71l F.

2d 831, 836 (8th Cir.) (knowing delivery

of firearms to carrier), cert. denied,

104 S. Ct. 245 (1983); United States v.

Currier, 621 F.2d 7, 10 {lst Cir. 1980)

(knowing failure to maintain firearms

transaction records). As the Court stated

29a

in International Minerals,

The principle that ignorance

of the law is no defense applies

whether the law be a statute or a4

duly promulgated and published

regulation. In the context of

these proposed 1960 amendments we

decline to attribute to Congress

the inaccurate view that that Act

requires proof of knowledge of the

law, as well as the facts, and that

it intended to endorse that inter-

pretation by retaining the word

“knowingly.”

402 U.S. at 563.

The Court recognized that under cer-

tain statutes, such as the income tax law,

the government must show a purpose by

defendant to bring about the forbidden

result. However, the Court in Interna-

tional Minerals, construing a statute and

regulations which proscribed knowing fail-

ure to record shipment of chemicals,

stated,

(W]here, as here and as in Balint

and Freed, dangerous or deleterious

devices or products or obnoxious

waste materials are involved, the

probability of regulation is so

great that anyone who is aware that

he is in possession of them or

30a

dealing with them must be presumed

to be aware of the regulation.

558 U.S. at 565 (emphasis added).

Even the dissenting Justices, viewing

the highly regulated shipping industry,

agreed that the officers, agents, and

employees

are under a species of absolute

liability for violation of the regula-

tions despite the "knowingly"

requirement. This, no doubt, is

as Congress intended it to be. Cf.

United States v. Dotterweich, 320

U.S. 277; United States v. Balint,

258 U.S. 250. Likewise, prosecu-

tion of regular shippers for vio-

lations of the regulations could

hardly be impeded by the "knowingly"

requirement for triers of fact would

have no difficulty whatever in

inferring knowledge on the part of

those whose business it is to know,

despite their protestations to the

contrary. .

402 U.S. at 569.

The indictment in this case specif-

ied the crime in the language of the

statute. Thus it did not include language

spelling out the knowledge requirements of

ee ee ee

3la

the statute discussed in text. Neverthe-

less, in light of our interpretation of

section 6928(d) (2) (A), it is evident that

the district court will be required to

instruct the injury, inter alia, that in

order to convict each defendant the jury

must find that each knew that Johnson &

Towers was required to have a permit, and

knew that Johnson & Towers did not have a

permit. Depending on the evidence, the

district court may also instruct the jury

that such knowledge may be inferred.

The indictment charged that both

individual defendants "managed, supervised,

and directed a substantial portion of

Johnson & Towers' operations at the Mount

Laurel plant, including those related to

..--disposal of hazardous wastes and

pollutants." App. at 7a. This case

reaches us witnout any evidence or findings

of the defendants' actual knowledge of the

32a

facts at issue, and with inconsistent

descriptions of defendants' responsibi-

lities. As the Supreme Court said in

Dotterweich, the question of responsi-

bil ty can be left to "the good sense of

prosecutors, the wise guidance of trial

judges, and the ultimate judgment of

juries." 320 U.S. at 285.

IV.

In summary, we conclude that the

individual defendants are "persons" within

section 6928(d) (2) (A), that all the ele-

ments of that offense must be shown to have

been knowing, but that such knowledge,

including that of the permit requirement,

may be inferred by the jury as to those

individuals who hold the requisite respon-

sible positions with the corporate defend-

ant. For the foregoing reasons, we will

reverse the district court's order dismiss-

ing portions of counts 2, 3 and 4 of the

indictment, and we will remand for further

33a

proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Third Circuit

APPENDIX B

34a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 835745

UNITED STATES OF AMERICA,

Appellant

Vv.

JOHNSON & TOWERS, INC.,

JACK W. HOPKINS and PETER ANGEL

itis alte aE en

On Appeal from the United States

District Court for the

District of New Jersey

(D.C. Criminal No. 83-00083)

Argued May 21, 1984

BEFORE: GARTH, SLOVITER, Circuit Judges, }

and NEAHER, District Judge*

ORDER AMENDING OPINION

It is hereby ORDERED that the Opinion

in the above case filed August 15, 1984,

is amended as follows:

Page 15, after the second indented

quote, delete "558 U.S. at 565 (emphasis

added) ." and substitute therefor "402

U.S. at 565 (emphasis added)."

* Hon. Edward R. Neaher, United States

District Court for the Eastern District

of New York, sitting by designation.

35a

Page 16, first full paragraph of

text, third sentence, delete "injury" and

substitute therefor "jury".

BY THE COURT,

/s/ Dolores K. Sloviter

Circuit Judge

Dated: August 21, 1984

A True Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Third Circuit

APPENDIX C

36a

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA : Criminal No. 83-83

Vv. : ORIGINAL FILED

: SEP 6, 1983

JOHNSON & TOWERS, INC. :

JACK W. HOPKINS and

PETER ANGEL,

OPINION

Defendants. :

APPEARANCES:

W. Hunt Dumont, United States

Attorney

By: Michael V. Gilberti, Assist-

ant U. S. Attorney

Samuel P. Moulthrop, Assist-

ant U.S. Attorney

970 Broad Street

Newark, New Jersey 07102

Attorneys for United States

of America

Jeffrey A. Libert, Esquire

Falciani & Fletcher

35 South Broad Street

P.O. Box 379

Woodbury, New Jersey 08096

Attorney for Defendant Jack

W. Hopkins

37a

Joseph A. Carmen, Esquire

43 Kings Highway West

Haddonfield, New Jersey 08033

Attorney for Defendant

Peter Angel

BROTMAN, District Judge

This is a criminal prosecution brought

by the United States against defendants

Jack Hopkins and Peter Angel.? On March 29,

1983, a federal grand jury returned a five

count indictment charging defendants with

a conspiracy to dispose of hazardous waste

unlawfuily, 18 U.S.C. 8371; three substan-

tive counts of unlawful dumping under the

Sesearee Conservation and Recovery Act

("RCRA"), 42 U.S.C. 66928(d) (2) (A); and

one count of unlawfully discharging pollu-

tants in violation of the criminal provi-

sions of the Clean Water Act, 33 U.S.C.

§ 1319(c). The indictment also alleges

that the defendants aided and abetted the

company in its acts of unlawful dumping.

38a

18 U.S.C. 8 2. Defendants, in this motion,

seeks to have the court dismiss the indict-

ment.

A brief factual history is necessary.

Johnson & Towers, Inc., the company that

employs both Hopkins and Angel, is in the

business of repairing and overhauling

large motor vehicles. It operates a plant

in Mount Laurel, New Jersey. Defendant

Angel is the service manager in the truck-

ing department and defendant Hopkins is

the shop foreman. Both men have been em-

ployed by Johnson & Towers since at least

1976.

During its business operations, John-

son & Towers allegedly used substantial

quantities of caustic and chemical de-

greasers to clean automotive components.

The degreasers contain chemicals such as

methylene.chloride and:trichloreothylene. ..

which are classified as “hazardous wastes"

39a

under RCRA and "pollutants" under the

Clean Water Act. After using the degreasers,

the employees of the company would drain

the vats and collect them ina tank. When

the tank was full the waste would be pumped

into a trench in the back of Johnson &

Towers' plant. On occasion, the ehcmicals

(sic) would flow into a nearby creek which,

in turn, flows into the Delaware River.

Both Angel and Hopkins allegedly directed

such activity on three separate occasions;

June 8, 1981; June 9, 1981; June 10, 1981.

Only on the last day did the chemicals flow

into the creek.

The above activity was carried out

despite the fact that defendants did not

possess the necessary permit to do so law-

fully. As a result Johnson & Towers, Inc.,

Peter Angel and Jack Hopkins were indicted.

40a

Legal Discussion

This is a case of first impression.

The substantive counts of the indictment

were instituted pursuant to 42 U.S.C.

§ 6928(d) (2) of RCRA and 33 U.S.C. 81319

Section 6928(d)(2) reads, in pertinent part,

as follows:

Any person who--

(2) knowingly treats, stores or dis-

poses of any hazardous waste

identified or listed under this

subchapter either--

(A) without having obtained a

permit under section 6925 of

this title...

The government maintains that it needs only

prove three elements in order to establish

a prima facie case under 8 6928(d) (2); those

elements being i.) that the defendant was

a “person” as defined in 42 U.S.C. § 6703(15);

ii.) that he knowingly treated, stored or

disposed of hazardous waste; and iii.) that

4la

he did not have a permit.

The defendants disagree with the gov-

ernment's simplistic reading of the statute.

They contend that they were never required

to obtain a permit and therefore should

not be held criminally liable for acting

without a permit. Moreover, defendants

contend that, in view of both the language

and the purpose of the statute, they do not

fall within the intended scope of the law

and should not be prosecuted thereto.

When construing a statute imposing

criminal sanctions, it is important to give

the alleged wrongdoer the benefit of any

doubt as to the intended reach of that

statute. Perrin v. United States, 100

S.Ct. 311 (1979); Donnelley v. United

States, 276 U.S. 505, 512 (1927). There-

fore, courts have traditionally interpre-

ted such laws in a narrow fashion. Busic

v. United States, 100 S. Ct. 1747 (1979).

42a

The instant case presents no exception to

these general rules of statutory construc-

tion. The language and scope of the rele-

vant sections of RCRA are ambiguous.

Furthermore, there is a dearth of accom-

panying legislative history, thereby de-

priving the court of much Congressional

guidance as to the intended breadth of the

law. As a result it is necessary for this

court to analyze the relevant statutory

language, policies and legislative com-

ments before deciding whether Congress

intended to include these defendants under

the scope of RCRA's criminal provisions.

a.) Statutory language

It is well-established that when

interpreting a statute the court must

first turn to the relevant language.

Touche Ross v. Redington, 442 U.S. 560,

568 (1979); 73 Am. Jur. 2d § 22 at 281;

71 A.L.R.2d 715. The goverament focuses

43a

on a broad reading of the definition of the

term “persons.” The statutory definition

reads as follows:

Persons--...an individual, trust,

firm, joint stock company, corporation

(including a government corporation),

partnership, association, state muni-

cipality, commission, political sub-

Givision of a State, or any inter-

State body.

42 U.S.C. & 6903(15). Since defendants are

individuals, they are thereby “persons”

who disposed of hazardous waste (allegedly

with knowledge) and did so without a per-

mit. Therefore, according to the govern-

ment they both fall within the confines

of the statute. This analysis is far too

Simplistic and literal and it fails to

take into account the statutory scheme

and the unique wording of the criminal

provision itself.

When analyzing the language of a

statute it is proper to look to sources

from which the law was derived. United

44a

States v. Katz, 271 U.S. 354 (1926). RCRA

is just one statute, among many, in the en-

vironmental regulatory scheme. See United

States v. Price, 523 F. Supp. 1055, 1070

(D. N.J. 1981); Note, Liability for Gener-

ators of Hazardous Waste: the Failure of

Existing Enforcement Mechanisms, 69 Geo.

L.J. 1047, 1051 (1981). Other statutes

also provide criminal sanctions for certain

violations, including 33 U.S.C. § 1319 of

the Clean Water Act, which coincidentally

forms the grounds for Count 5 of the in-

dictment in the instant case, and 42 U.S.C.

§ 7412(c) of the Clean Air Act. Both 8&

1319(c) (1) and 8 7412(c) also use the term

"person" when describing those with poten-

tial criminal liability. The statutory

definition of "person" is almost identical

to that which is used in RCRA. Compare 33

U.S.C. § 1362(5) with 42 U.S.C. § 6903(15).

(The term person is defined in both the

45a

Clean Water Act and Clean Air Act as "an

individual, corporation, partnership,

association, State, municipality, commis-

sion, or political subdivision of a

State, or any interstate body.") There is

gualifying language in both 8 1319(c)

(3) and 8 7412 (c) (3), however, which

states the following proposition:

"For the purposes of this subsection,

the "person" shall mean, in addition

to the definition contained in sec-

tion 1362(5) of this title, any res-

ponsible corporate officer."

(Section 7412 (c) (3) uses substantiaily

the same language).

Although Congress appears to define

"person" in a broad manner, an obvious

incongruity is created by virtue of the

aébibionat language in subsection (c) (3).

If "person" is interpreted in the same

fashion advocated by the government in

the instant case, the language specify-

ing "a responsible corporate officer"

46a

would be superfluous. See, e.g., Lawson v.

Sugannee S.S. Co., 336 U.S. 198, 201 (1949)

("Statutory definitions control the mean-

ing of statutory words, of course, in the

usual case. But this is an unusual case.

If we read the definition into § 8 (f) (1)

in a mechanical fashion, we create obvi-

ous incongruities in the language...").

The environmental statutes raise unusual

issues. They are primarily regulatory

statutes complete with appropriate civil

sanctions. The criminal sanctions were

added because Congress felt that certain

violations were more serious and therefore

required more severe penalties. H.R. Rep.

No. 1491, supra at 31, reprinted in U.S.

Code Cong. & Ad. News at 31. The defini-

tion of the term "person," however, is

applicable to the entire statute. Because

of the qualifying language inserted in the

Criminal provisions we conclude that

47a

Congress intended to limit the definition

of "person" as it is used in those subsec-

tions.

Applying the same rationale to RCRA,

we find that Congress also used language

which appears to limit the scope of § 6928

(d) (2) (A). Instead of stating that those

persons who acted without a permit may be

liable, § 6928(d)(2) specifically refers

to those "persons" who acted "without hav-

ing obtained a permit under section 6925."

42 U.S.C. 8 6928 (da) (2).7 The Congressional

choice of words in this instance is ex-

tremely important. By referring to those

persons who could have obtained a permit,

but failed to do so, Congress appears to

be focusing on the parties who are res-

ponsible for registering with the EPA under

$ 6925 of RCRA. (This emphasis is similar

to that put on "responsible corporate

officers" in the analogous section of the

48a

Clean Water Act.) The statute does not,

however, purport to hold liable all those

persons who work for a company that may

be operating without the requisite permit.

We turn also, for guidance, to the

companion criminal provisions articulated

in 8 6928(d). For example, subsection (d)

(2) (B) also provides criminal sanctions

for those "persons who knowingly...dis-

pose of hazardous waste...in knowing vio-

lation of any material condition or require-

ment of such permit;" 42 U.S.C. 8 6928(d)

(2) (B). Congress intentionally used the

term "knowing" twice with respect to that

subsection, thereby ensuring that the al-

leged perpetrator was protected to the

extent that the government would have to

prove beyond a reasonable doubt that

he knew of the disposal of hazardous waste

and also that he knew such disposal was

violating the terms of the permit.

Se ee ee ee ee

49a

The language of subsection (d) (2) (A),

however, is far more open-ended. It does

not put a burden on the government to

prove that the alleged wrongdoers knew

they were acting without a permit or in

violation of the law. Instead, the subsec-

tion was drafted in an effort to impose

strict standards on those required, by

statute, to obtain permits because Con-

gress believed that those persons snriould

be solely responsible to account for po-

tential harmful activity. Severe penal-

ties were necessary to act as a deterrent

to persons who failed to register with

EPA. H.R. Rep. No. 1491, S4th Cong. 2d

Sess. at 3l, reprinted in 1976 U.S. Code

Cong. & Ad. News 6238, 6269. However,

while subsection (d) (2) (A) does not require

the government to prove knowledge of ac-

tion without a permit, it does limit those

individuals who can be prosecuted for such

50a

violations. Congress did not seek to hold

criminally liable any employee involved

in any manner in the disposal of hazardous

waste, regardless of whether that employee

was aware of the company's failure to ob-

tain a permit. But see 21 U.S.C. § 301 et

seg.; United States v. Park, 421 U.S.

658 (1975); United States v. Dotterweich,

320 U.S. 277 (1943) .3 If the government's

literal interpretation of the subsection

is Mopted, it would extend the reach of

the statute far beyond Congress' original

intent.

b.) Congressional purpose

After interpreting the language used

in a statute the court must also take into

account ti general purpose of the law

itself; Helvering v. Stuart, 317 U.S.

154 (1942) and the objective of the provi-

sion at issue. United States v. Seeger,

5la

380 U.S. 163 (1965). The general purpose

behind RCRA is to provide "a multifaceted

approach towards solving the problems

associated with the 3-4 billion tons of

discarded materials generated each year

and the problems resulting from the antici-

pated 8% annual increase in the volume of

such waste." H.R. Rep. No. 1491, supra at

2, reprinted in 1976 U.S. Code Cong. &

Ad. News at 6239.

In order to further the aforementioned

Congressimal policy, criminal sanctions

must be directed towards those individuals

Or corporations which are able to take

effective action and thereby ensure com-

pliance with the law. Only those persons

who are considered "owners and operators"

of a facility need actually apply for an

EPA permit. 42 U.S.C. 8 6925(a).4 Unless

the defendants in the instant action are

so classified (see discussion, infra), they

52a

are not in a position to obtain permission

to dispose of hazardous waste in a legal

manner. Therefore, holding them criminal-

ly liable for acting without a permit will

not further the Congressional purpose of

encouraging registration. Nor will such a

result serve as an effective deterrent in

future cases because those faced with crim-

inal prosecutions are not ones who can do

anyting material to rectify the problem.

Instead, as in this instance, the corporate

officers who Bear responsibility for obtain-

ing the permit, and who can change corporate

policy in the future, are not threatened

with any personal exposure.

The Congressional policy of deter-

rence directed towards those whose actions

can have a substantial effect on the

illegal disposal of hazardous waste is

further evidenced by the other criminal

provisions of § 6928(d). For example,

53a

8 6928(d) (1) provides criminal sanctions

for “any person who--knowingly transports

any hazardous waste identified or Listed

under this subchapter or to a facility

which does not have a permit under section

6925...." 42 U.S.C. §$ 6928(d) (1). The

language of subsection (d) (1) is obvi-

ously broader that than (sic) of subsection

(d) (2) (A). The reason can probably be

explained as follows: in the former situa-

tion a low-level employee such as a truck

driver, is required by law to first check

and see if the facility to which he is

delivering the waste has a permit allowing

it to dump such waste. If not, the trans-

porter is obligated to take the waste

elsewhere. The policy reasons behind

this wide-ranging provision are obvious--

Congress considered the person transporting

the waste to be in the best position to

ensure that it was disposed of in a legiti-

54a

mate fashion. The transporter usually

has enough flexibility to leave if he

determines that the facility is operating un-

lawfully. (This can easily be accomplished

by just asking the appropriate person to

produce the necessary permit.)

On the other side of the coin, how-

ever, are the defendants in the instant

action. These employees generally have no

choice-- they are not in a position to ask

for a permit themselves (and due to the

nature of their work may not even be aware

of suth a requirement) and they did not

possess enough authority within the com-

pany to force Johnson & Towers into compli-

ance. Thus, it is clear that the broad-

based language used in § 6928(d) (1) (B)

furthers the Congressional policy inherent

in the statute, yet the same reasoning

applied to subsection (da) (2) (a) would not

serve the same purposes.

55a

c.) Pairness and equitable considera-

tions

As discussed earlier in this opinion,

Congress had scme definite goals in mind

when it enacted penal provisions within the

RCRA statutory scheme. It was also aware,

however, of the potentially harsh conse-

quences that might result from criminal

sanctions. Therefore, the House Report

specifically notes that “the use of criminal

penalties are sufficiently narrow in that

they only apply to...the actual disposal

of hazardous wastes without a permit...."

H.R. Rep. No. 1491, supra at 31, reprinted

in U.S. Code Cong. & Ad. News at 6369.

Concededly, the narrow application of

the statute to which this report speaks

is the fact that the criminal provisions

only reach those “more serious offenses"

under RCRA. The comment does, however,

give this court the indication that Congress

56a

was guite selective when allocating poten-

tial criminal responsibility and as such,

intended to impose such liability only

in those instances where it would clearly

further the statutory puposes. The instant

case does not provide that type of situa-

tion.

The fact that Congress did not intend

to impose criminal liability cn just any

person disposing of waste without a permit,

is further evidenced by the complex and tech-

nical registration requirements imposed

upon companies and individuals forced to

seg., 123.1 et seg., 264.1 et seg., 265.1

et seg., 267.1; see also EPA form 8700-12

(Instructions for Filing Notification of

Hazardous Waste Activity). Not only are

the legal requirements difficult to under-

stand, but the scientific aspects of the

law are also beyond the comprehension of

57a

most laymen. See Moulthrop, Criminal Lia-

bility Under Federal Environmental Sta-

tutes, 104 New Jersey Lawyer 36, 38 (Aug-

ust, 1983). Even the initial step of deter-

mining whether or not regastration is neces=-

sary becomes a job best left to scientists

Or engineers. See, e.g., 40 C.F.R. Part

261 (identification of hazardous wastes

regulated by the EPA). Obviously the de-

fendants in the instant action are not

gualified to identify or analyze the waste

they were handling and thereby bring it

to the attention of EPA themselves. Nor

are they in a position to hire an expert

to perform that job. Instead, the cor-

poration and those in a decision-making

capacity are best suited to perform those

chores. This is why Congress required

only “owners and cperators" to file for

permits and conseguently, why Congress

could not have intended to hold a mere

58a

employee criminally liable for disposing

of hazardous wastes without possessing

a permit.

Owners and Operators

The next question we must address is

whether these defendants can be considered

an "operator or owner" of a "facility

(used) for the treatment, storage, or dis-

posal of hazardous waste." 42 U.S.C.

§ 6925(a). The government argues that

both men have "managed, supervised, and

directed a substantial portion of Johnson

& Towers! operations at the Mount Laurel

plant, including those related to ....

disposal of hazardous wastes and pollu-

tants." See Government Indictment re:

Peter Angel dated March 29, 1983, Para-

graph 8; Indictment re: John Hopkins,

Paragraph 7. Therefore, they are consi-

dered "operators" under the statute and

59a

were not only capable of filing, but were

obligated by law to file for a permit

prior to disposing of hazardous wastes.

Defendants, on the other hand, maintain

that they were merely mid-level employees,

specifically a "mechanic" and "manager

of a mechanic," and as such they do not

fit within the statutory definition of

"Owner or operator." See Letter Memoran-

dum, Jack Hopkirs, dated June 15, 1983,

at pg. 2.

There is no dispute as to the fact

that. defendants are not owners of the com-

pany in question. The controversy arises

with respect to the term "operator." The

definition of "operator" is explained in

the regulations as "the person responsible

for the overall operation of a facility."

(Emphasis added). 40 C.F.R. § 260.10

(1982). Although the definition itself

is somewhat ambiguous, the implication is

60a

that an operator is someone with control

over the entire company, such as the presi-

dent or the plant manager. The use of the

terminology "overall operation" is indica-

tive of an attempt to focus on those indi-

viduals who exercise primary control even

though they may not actually own the com-

pany. A narrow reading of the term "oper-

ator" is also reinforced in light of the

use of tke pronoun "the" when referring

tc those parties responsible for obtain- :

ing the:permit. 1f the EPA had intended to

include a large number of people as "opera-

bare* ie would have used the more general

terminology: "a" or “any" person respon-

sible.

Even after viewing the facts ina

manner most favorable to the government,

it is difficult to see how these defendants

can fairly be considered operators. Mr.

Angel was the service manager and possibly

6la

in charge of one department, but he was

not responsible for the overall operation

of the Mount Laurel facility. Mr. Hopkins

was one step below him on the hierarchical

ladder. Most of the information necessary

for procurement of the permit, however,

could only be provided by those with an

intimate knowledge of the company. At

least two men were in positions of greater

authority than these defendants; Mr. Peter

Johnson, the General Manager of the plant

and Mr. Walter Johnson, Jr., the Presi-

dent and Chairman of the Board of Johnson

& Towers. Not only were these men in posi-

tions of authority at the company, but

they were also the ones listed on the form

Johnson & Towers filled out notifying the

EPA of hazardous waste activity at the

Mount Laurel plant. (See defense exhi-

bit 1). Nowhere in those forms were the

names of Peter Angel or John Hopkins and

62a

it is unclear as to whether these men

were even notified of the hazardous waste

problem at the plant. Therefore, they do

not fall within the ambit of those persons

obligated to obtain a permit for the dis-

posal of hazardous waste.

The only persons who can be held crim-

inally liable, without requiring proof that

they knew the dumping was taking place

without a permit are those considered

"owners and operators" under the statute.

Peter Angel and John Hopkins do not fit in

that category. For the reasons discussed

in this opinion, the individual defendants

ao not fall directly within the scope of

42 U.S.C. § 6928(d) (2) (A).

Aiding and Abetting

The government maintains that even

if these defendants cannot be held crim-

inally liable directly under RCRA, they

63a

can still be held responsible as aiders

and abettors pursuant to 18 U.S.C. 8 2."

In order to hold someone liable for aiding

and abetting, the government must prove

that the person associated himself with a

criminal enterprise, that he desired to

participate in it as something he wished

to bring about, and that he sought by

his actions to help it succeed. United

States v. Barber, 429 F.2d 1394, 1397

(3rd Cir. 1970); United States v. Thomas,

676 F.2d 531 (llth Cir. 1982). Moreover,

. one may be incapable of committing a

particular crime, yet still be held cul-

pable as an aider and abettor. United

States v. Kelley, 395 F.2d 727 (2nd Cir.

1968). As such, the government must es-

tablish that the defendants were aware of

the illegal activity. In other words,

Angel and Hopkins can only be found guilty

if they knew that Johnson & Towers was

64a

disposing of hazardous waste without the

necessary permit and they encouraged or

participated in such action. Hernandez v.

United States, 300 F.2d 114 (9th Cir.

1962); White v. United States, 366 F.2d

474 (10th Cir. 1966).

To the extent that the defendants can

be found guilty of aiding and abetting

pursuant to 18 U.S.C. § 2, the criminal

activity to which Johnson & Towers has

already pled guilty, counts two, three,

and four of the indictment, must be kept

intact.. The language, however, in those

counts, charging defendants Angel and

Hopkins with violations of 42 U.S.C. 8

6928 (da) (2) (A), myst be stricken from the |

indictment. °

/s/

STANLEY S. BROTMAN

3.8.0.2.

Dated: September 6, 1983

65a

FOOTNOTES

The corporate entity, Johnson & Towers,

Inc., was the third defendant in this

action. Johnson & Towers has already

pled guilty to three counts of the in-

dictment.

Congress could have easily stated

that any person knowingly disposing

of hazardous waste "without a permit"

may be held criminally liable. Such

language would be less ambiguous.

The Supreme Court, in Dotterweich,

held that Congress could impose crim-

inal liability on corporate officials

even if they were not aware of the

wrongdoing. 320 U.S. at 281. That

decision , however, was arrived at

only after the Court considered the -e

background and purposes behind the

statute at issue in Dotterweich; the

66a

Food and Drugs Act of 1906, 52 Stat.

1040, codified at 21 U.S.C. 8§ 301-392.

Rather than stressing the limitations

of that law, the House Committee

referred to inadequacies in prior

food and drug laws and emphasized the

need to “increase substantially the:

Criminal penalties....which manu-

facturers have regarded as substan-

tialy (sic) a license fee for the

conduct of an illegitimate business."

H.R. Rep. No. 3129, 75th Cong. 2d

Sess. pt. 1 at 4. The Senate Com-

mittee also highlighted the need for

more far-reaching provision that

would "strengthen and.extend that

law's protection of.the consumer."

S. Rep. No. 152, 75th Cong., lst

Sess. at 1. Congress, in explain-

ing the need for criminal sanctions

under RCRA, does not use such wide-

67a

ranging language and therefore the

scope of 86928 (d) (2) (A) is far

more limited.

4. Since 8 6925 requires extensive infor-

mation to be submitted along with the

request for a permit, it is unlikely

and in most instances nearly impos-

Sible, for anyone who lacks broad

decision-making authority to apply

for such a permit.

5. 18 U.S.C. § 2 reads as follows:

(a) Whoever commits an offense

against the United States or aids,

abets, counsels, commands, induces

or procures hits commission, is pun-

ishable as a principal.

(b) Whoever willfully causes

an act to be done which if directly

performed by him or another would

be an offense against the United

States, is punishable as a principal.

6. Defendants did not raise any arguments

with respect to Counts one and five

68a

of the Indictment, therefore this

court offers no opinion thereto.

Of course, the conspiracy count (Count

one) can still be valid even though

defendants cannot be charged with the

substantive offense. See Periera v.

United States, 347 U.S. 1, 11 (1954).

APPENDIX D

IN TRE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA Criminal No.83-83

Vv.

ORIGINAL FILED

JOHNSON & TOWERS, INC. Sep 6 1983

JACK W. HOPKINS and

PETER ANGEL, ORDER

Defendants.

This matter having come before the

court on the 27th day of July, 1983; and

The court having considered the

briefs, exhibits and oral argument; and

For the reasons stated in the court's

opinion filed this date,

It is on this 6th day of September,

1983, hereby ORDERED that the motion by

defendants Peter Angel and Jack Hopkins

for an order dismissing the indictment is

GRANTED in part and DENIED in part in

that:.

a. the portion of the indictment

70a

charging defendants with viola-

tions of 42 U.S.C. & 6926(d) (2),

including those charges in counts

2, 3 and 4, are dismissed from

the said indictment.

the remainder of the indictment,

including those charges relating

to 18 U.S.C. § 2, also in counts

2, 3, 4 and 5, are still in full

force and effect.

No costs.

/s/

Stanley S. Brotman

U.S.D.J.

APPENDIX E

J7la

UNITED STATES DISTRICT

COURT

DISTRICT OF NEW JERSEY

UNITED STATES

OF AMERICA ,

: Criminal No. 83-83

Vv. :

: Title 18, United States

JOHNSON & : Code, Sections 371 and

;

TOWERS, INC., 2; Title 42, United

JACK W. HOPKINS: States Code, Section

and PETER ANGEL; 6928; and Title 33,

; United States Code,

Defendants.: Section 1319

ORIGINAL FILED

MAR 29, 1983

The Grand Jury for the District of

New Jersey, sitting at Camden, charges

that:

INTRODUCTION

1. At all times relvant (sic) here,

the United States Environmental Protec-

tion agency ("EPA"), an agency of the

United States government, was author-

ized to make and enforce regulations

controlling all aspects of hazardous

72a

waste, (including the generation, trans-

portation, treatment, storage and dis-

posal) under the Resource Conservation

and Recovery Act ("RCRA"), Title 42,

United States Code, Section 6901 et seg.

During this period, the EPA regional

office (EPA-Region II), located at 26

Federal Plaza, New York, New York, had

responsibility for events relating to and

occurring in New Jersey.

2. Pursuant to RCRA, EPA made and

published a series of regulations con-

trolling the generation, transportation,

treatment, storage and disposal of hazar-

dous wastes. ("the RCRA regulations")

3. At all times relevant here, the

Defendant JOHNSON & TOWERS, INC., ("JOHN-

SON & TOWERS"), has operated a plant faci-

lity at Route 38 and Briggs Road, Moores-

town, New Jersey, (mailing address Route 38

and Briggs Road, Mount Laurel, New Jersey).

- aida lie aD Ral

73a

("the Mount Laurel plant") During this

period, the defendant has maintained a

holding tank next to the Mount Laurel

plant building and a spillway leading

from the holding tank to a trench ("the

trench") which runs along the JOHNSON &

TOWERS property line into Parker's Creek.

Parker's Creek empties into Rancocas

Creek, which is a tributary of the Dela-

ware River. Parker's Creek is a part

of the waters of the United States.

4. Since approximately 1976 when it

opened, the Nouik hiuedi plant has been

engaged in the business of repairing, re-

building and overhauling motor vehicles,

such as buses and trucks, and has used sub-

stantial quantities of degreasers and other

industrial chemicals in its cperations.

These degreasers and other industrial

chemicals constitute “hazardous wastes"

(as defined by RCRA, Title 42, United

74a

States Code, Section 6903(3), (5) and

(33), 6922, 6925 and 6926, and 40 Code of

Federal Regulations, Section 261.33,

App.VII) and "pollutants" (as defined by

the Federal Water Pollution Control Act

("the Clean Water Act"), Title 33, United

States Cede, Section 1362(6)). The com-

ponents of these hazardous wastes and pol-

lutants, such as methylene chloride

(dichloromethane), chlorobenzene, tetra-

chloroethylene, toluene, dicholoroben-

zene and ethyl benzene, are harmful to

human life and health, and many are sus-

pected carcinogens.

5. Since approximately 1976, JOHN-

SON & TOWERS and the Mount Laurel plant

treated, stored and disposed of hazard-

ous wastes, and was subject to RCRA and

the RCRA regulations.

6. At all times relevant here, JOHN-

SON & TOWERS and the Mount Laurel plant

ese tr enn itt ein EINES ite Mente BLD 4 AS Bet Wb te oes 8 Wiel sa 4

75a

constituted a "point source" (as defined

by the Clean Water Act, Title 33, United

States Code, Section 1362(14)), and was

Subject to the Clean Water Act.

7. At all times relevant here, the

defendant JACK W. HOPKINS, the foreman

of the Mount Laurel plant, managed,

Supervised and directed a substantial

portion of JOHNSON & TOWERS' operations

there, including those related to the

treatment, storage and disposal of the

hazardous wastes and pollutants.

8. At all times relevant here, the

defendant PETERK ANGEL also managed, super-

vised and directed a substantial portion

of JOHNSON & TOWERS' operations at the

Mount Laurel plant, including those related

to the treatment, storage and disposal of

hazardous wastes and pollutants.

9. At all times relevant here, the

defendants neither applied for nor poss-

76a

essed:

(a) a permit required under RCRA

(Title 42, United States Code, Sections

6925 and 6926, and Title 40, Code of

Federal Regulations, Sections 122.1l-

122.30); and .

(b) a permit required under a

provision of the Clean Water Act called

the National Pollutant Discharge Elimina-

tion System ["NPDES"] (Title 33, United

States Code, Section 1342, and Title 40,

Code of Federal Regulations, Section

122.1 et seg.).

77a

COUNT 1

1. Paragraphs 1 through 9 of the

Introduction to this Indictment are

incorporated in this Count.

2.0 From at least as early 1976

until as late as June 10, 1981, at

Mount Laurel and elsewhere in the District

of New Jersey, the defendants

JOHNSON & TOWERS

JACK W. HOPKINS, and

PETER ANGEL

did knowingly and wilfully combine,

conspire, confederate and agree with each

other and with others, to commit offenses

against the United States by knowingly

treating, storing and disposing of, and

causing to be treated, stored and disposed

of hazardous wastes and pollutants, with-

out permits,, in violation of RCRA and

the Clean Water Act.

3. It was a part of the conspiracy

that:

78a

(a) Since approximately 1976,

the defendants and others at their dire-

ction and on their behalf would place

Quantities of degreasers and other

industrial chemicals, used during

JOHNSON & TOWERS' business perations,

into the holding tank at the Mount Laurel

plant.

(b) The defendants and others

at their direction and on their behalf

would, as many’as three times per week,

attach a pump to the holding tank for

the purpose of pouring and dumping those

degreasers and other industrial chemicals

from the holding tank into the spillway

and the trench at the Mount Laurel plant.

at their direction and on their behalf,

without a permit, would discharge the

degreasers and other industrial chemicals

into the trench and into Parker's Creek.

79a

In violation of Title 18, United

States Code, Section 371.

80a

OVERT ACTS

In furtherance of the conspiracy

and tc effect its objects, the following

overt acts were committed within the

District of New Jersey and elsewhere:

1. On or about June 8, 1981 at the

Mount Laurel plant, an employe? of JOHN-

SON & TOWERS was caused by JACK W. HOPKINS

and PETER ANGEL to attach a pump to the

holding tank and to pump a substantial

Quantity of degreasers and other indust-

rial chemicals into the trench.

2. On or about June 9, 1981 at the

Mount Laurel plant, an employee of JOHNSON

& TOWERS was caused by JACK W. HOPKINS

ana PETER ANGEL to attach a pump to the

holding tank and again to pump a substan-

tial quantity of degreasers and other

industrial chemicals into the trench.

3. On or about June 10, 1981 at the

Mount Laurel plant, an employee of JOHNSON

8la

& TOWERS was caused by JACK W. HOPKINS

and PETER ANGEL and of JOHNSON & TOWERS

to attach a pump to the holding tank and

again to pump a substantial quantity of

degreasers and other industrial chemicals

into the trench. On this date, those

hazardous wastes and pollutants traveled

the length of the trench and spilled into

Parker's Creek.

All in violation of Title 18, United

States Code, Section 371.

82a

COUNT 2

l. Paragraphs 1 through 9 of

the Introduction to this Indictment are

incorporated in this Count.

2. On or about June 8, 1981, at

Mount Laurel and elsewhere in the District

of New Jersey, the defendants

JOHNSON & TOWERS

JACK W. HOPKINS, and

PETER ANGEL

did knowingly treat, store, and dispose

of, and did cause to be treated, stored

and disposed of hazardous wastes without

having obtained a permit under the pro-

visions of RCRA, Title 42, United States

Code, Sections 6925 and 6926, in that the

defendants discharged, deposited, in-

jected, dumped, spilled, leaked and

placed degre..sers and other industrial

chemical wastes into the trench at the

Mount Laurel plant.

In violation of Title 42, United

States Code,

Title 18,

83a

United States Code,

Section 6928(d)(2), and

Section 2.

84a

COUNT 3

1. Paragraphs 1 through 9 of the

Introduction to this Indictment are incor-

porated in this Count.

2. On or about June 9, 1981, at Mount

Laurel and elsewhere in the District of New

Jersey, the defendants

JOHNSON & TOWERS,

JACK W. HOPKINS, and

PETER ANGEL

did knowlingly treat, store, and dispose of,

and did cause to be treated, stored and

disposed of hazardous wastes without having

obtained a permit under the provisions of

RCRA, Title 42, United States Code,

Sections 6925 and 6926, in that the

defendants discharged, deposited, inject-

ed, dumped, spilled, leaked and placed

degreasers and other industrial chemical

wastes into the trench at the Mount Laurel

plant.

violation

85a

of Title

42,

United

86a

COUNT 4

1. Paragraphs 1 through 9 of the

Introduction to this Indictment are incor-

porated in this Count.

2. On or about June 10, 1981, at

Mount Laurel and elsewhere in the District

of New Jersey, the defendants

JOHNSON & TOWERS,

JACK W. HOPKINS, and

PETER ANGEL

dia knowingly treat, store, and dispose

of, and did cause to be treated, stored

and disposed of hazardous wastes without

having obtained a permit under the provi-

Sions of RCRA, Title 42, United States

Code, Sections 6925 and 6926, in that the

defendants discharged, deposited, injected,

dumped, spilled, leaked and placed de-

greasers and other industrial chemical

wastes into the trench at the Mount Laurel

plant.

87a

In violation of Title 42, United

States Code, Section 6928(d)(2), and Title

18, United States Code, Section 2.

peer

88a

COUNT 5

1. Paragraphs 1 through 9 of the

Introduction to this Indictment are incor-

porated in this Count.

2. On or about June 10, 1981, at

Mount Laurel and elsewhere in the District

of New Jersey, the defendants

JOHNSON & TOWERS,

JACK W. HOPKINS, and

PETER ANGEL

did unlawfully, wilfully and negligently

discharge and cause to be discharged from

the Mount Laurel plant, a point source,

into Parker's Creek, part of the waters

of the United States, pollutants (as de-

fined by the Clean Water Act, Title 33,

United States Code, Section 1362(6)),

including degreasers and other industrial

chemical wastes.

In violation of Title 33, United

States Code, Section 1319(c) (1), which

89a

incorporates Title 33, United States Code,

Section 131ll, and Title 18, United States

Code, Section 2.

90a

A TRUE BILL

/s/ Patricia K. Davis |

Foreman |

W. HUNT DUMONT

United States Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.