# Petition for Writ of Certiorari — Angel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2392%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1208 ## Text ~—, \ : » ~ \ | nes a. Son 84-59g 0 Tes" O. OCT 10 1864 ft 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 i 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 ii 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 la 34a 36a 69a Jla iv 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 1 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 No. PETER ANGEL, Petitioner Vv 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, 2 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. 3 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 4 $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 5 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. 6 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 i H | eee ee i 5 4 : : 4 . 4 : - b 2 3 , ' 7 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 8 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 9 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 10 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 1l 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 12 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] 13 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 14 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 15 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 la UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 83-5745 UNITED STATES OF AMERICA, Appellant Ve 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. 2a 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 3a individual defendants. We will reverse. I. 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 4a 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 5a 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 6a 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 " 7a 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. 8a 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 9a 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 A. 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. B. 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 B. 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 (c) (1) of the Clean Water Act ("CWA"). 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 register with EPA. 40 C.F.R. 122.1 et 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. (c) The defendants and cthers 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. in 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. In 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2392%3A1. Public record. Not legal advice.