Petition for Writ of Certiorari — Dee v. United States

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FILED.

CY) DEC 3 1990

JOSEPH F. SPANIOL, JR.

NO.

90-877 CLERK y

IN THE

Supreme Court of the United States

October Term, 1990

No.

WILLIAM DEE,

ROBERT LENTZ,

and

CARL GEPP

Petitioners,

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COUNSEL OF RECORD FOR PETITIONERS:

Richard Karceski _

White & Karceski

305 West Chesapeake Avenue

Towson, Maryland 21204

(301) 583-1325

Attorney for

William Dee

ee eee eee

Brief Printing Specialist, 1001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

QUESTIONS PRESENTED FOR REVIEW

z. Did the United States Court of

Appeals for the Fourth Circuit err in

holding that Petitioners, as Federal

government officials or employees, were

not immune from Federal criminai

prosecution for alleged violations of

the Resource Conservation and Recovery

Act?

II. Did the United States Court of

Appeals for the Fourth Circuit err in

holding that Petitioners demonstrated

the requisite intent to support criminal

convictions for violations of the

Resource Conservation and Recovery Act?

PARTIES TO THE PROCEEDING

The only parties to the proceeding

in the court whose judgment is sought to

be reviewed (United States Court of

Appeals for the Fourth Circuit) are

named in the caption here: William Dee,

Robert Lentz, and Carl Gepp, as

Petitioners, and the United States of

America, as Respondent.

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TABLE OF CONTENTS

Questions Presented............0e000. i

Parties to the Proceeding............ ii

TERDLG GE COMEOMER. cc ccccccvescsesess iii

TABLE OF AUCNOFICIES. 2. ccccccccccccs iv

Prior Opinions in the Case.......... 1

Grounds of Jurisdiction............. 2

Statutes Involved.........e2ee00- eos 3

Statement of the Case........eeeeees 3

Argument for Granting Writ.......... 28

z. The Fourth Circuit Erred in

Holding that Petitioners, as

Federal Employees, are not Immune

from Criminal Prosecution for

Violations of the Resource

Conservation and Recovery Act... 28

i. RCRA Language and

“POFrSBON@..ccccocece 30

2 Federal Employee

Immunity........... 36

II. The Fourth Circuit Erred in

Finding that the Requisite Criminal

Intent was Demonstrated Here.... 47

CUI. 6 aa: dace 0d 640s bees Keke

Appendix (See Separate Volume}

iii

TABLE OF AUTHORITIES

SUPREME COURT CASES

Arizona v. Maypenny, 451 U.S. 232 (1981)

Boyce Motor Lines v. United States, 342

Uele Sar CERNGs «© we eevee ns«

Gravel v. United States, 408 U.S. 606

CRU oboe G8 ce EE eae Se ee eee

Hancock v. Train, 426 U.S. 167 (1976)

In re Neagle, 135 U.S. 1 (1890) .. 32

Larson v. Domestic and Foreign Commerce:

Corp, 337 U.S. 682 (1949) ..... 45

Liporata v. United States, 417 U.S. 419

4 «5 aces & «th « «4 tee

Morissette v. United States, 342 U.S.

e696 Gheeer «+s + ma ss ese sens ew”

Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89 (1984) ... 37

Russello v. United States, 464 U.S. 16

(1983) 7 . e . e . » . ” . ao - a . 34

Spalding v. Valis, 161 U.S. 483 (1896) .

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

(1922) . + 7 . . 7 . . 48

United States Dotterweich, 320 U.S. 277

(1943) oP ahaa er ieee ae 48

United States v. Freed, 401 U.S. 601

(1971) . . ° o . — . . 7 . . — . . ” 48

United States v. International Minerals,

402 U.S. 558 (1971) © te ee owen FA

OTHER FEDERAL CASES

Braatelein v. United States, 147 F.2a

888 (8th Cir. 1945) Ve wie ee ee ee

California v. Walters, 751 F.2d 977 (9th

Gie, FOG) « sw st eee wae ee 38

Clifton v. Cox, 54% F.2d 722 (9th Cir.

1977) . . . . 7. o * . . - a ° - * ” 32

Cooper v. 0O’Connor, 99 F.2d 135

fe.6.Gis. 1906) «© «© = © © © © @ 4-4 32

Gregoire v. Biddle, 177 F.2d 579 (2nd

Gar. 1949) 7 . . * > . o . . * . . . 37

Johnson v. Heckler, 607 F.Supp. 875

(D.I1l1l. 1984) Se er ea ee

May Department Stores Co. v. Smith, 572

F.2a 1275 (8th Cir. 1978) ae a ee

McClellan Ecological Seepage Situation

[MESS] v. Weinberger, 655 F.Supp. 601

(E.D. Cal. 1986) .. -; °° 40

Meyer v. United States Coast Guard, 644

F.Supp. 221 (E.0.N.Car. 1986) ... 39

Morgan v. California, 742 F.2d 728 (9th

Cir. 1984) . . > - . . . . a. o . - 46

Nichols v. Block, 656 F.Supp. 1436

Poe Pe 8 a ea ss 8 ee ws

Richardson v. Jones, 551 F.2d 918 (3rd

Oe COE oS ae 6 & «6. & % w a eo « de

Scherer v. Brennan, 379 F.2d 609 (7th

Cir. 1967), cert.den., 389 U.S. 1021

Pend © 4. oe Sek oe a ks ® a

Scherer v. Morrow, 401 F.2d 204 (7th

Cir. 1968), cert.den., 393 U.S. 1084

(1969) . . ° ° . ° o = 7 . . o . c . 45

Swanson v. Willis, 114 F.Supp. 434 (D.

Alaska 1953), aff’d 220 F.2d 440 (9th

te ee ee ee oe 37

United States v. Canadian Vinyl

Industries, Inc., 555 F.2d 806 (Cust.Ct.

1977) . 7 7 . 2 + . o 7 e 7 o + . 36

United States v. Greer, 850 F.2d 1447

(3208 Cas. 20080) . . 2 6 « tt «2 Be

United States v. Hayes International,

786 F.2d 1499 (1lith Cir. 1986) . - 52, 52

United States v. Jewell, 532 F.2d 697

(9th Cir. 1976) cert.den. 96 S.Ct. 3173

United States v. Johnson & Towers Inc.,

741 F.2a 662 (3rd Cir. 1984), cert den.

460 U.S. 28968 <« © ele 04.0 2 @ @ © 54

United States v. Protex Industries,

Inc., 874 F.2d 740 (10th Cir. 1989)

United States v. Thompson-Hayward

Chemical Co., 446 F.2d 583 (8th Cir.

1971) ee ey) @u"e ee a ee eee

United States v. United States Pipe and

Foundry — 415 F.Supp. 104 (Tenn.

1976) _ > . > > > > * = >. > o * 56

United States v. Washington, 872 F. 2d

740 (9th Cir. 1989) Se UN ae — 41

United States v. Yakima Tribal Court,

794 F.2d 1402 (D.Mont. 1987) . +. «+ -» 45

OTHER AUTHORITIES

73 Am.Jur.2d Statutes, Sec. 343 .- .- 36

21 AmJur2d Criminal Law (Rev.), Secs.

137 and 141 .+ +s » a ea ae a a

A. Fike, A Mens Rea Analysis for the

Criminal Provisions of the Resource

Conservation and Recovery Act, 6

Stanford Env.L.J. 174 (1986) - +s: - 58

Annotation, 8 ALR Fed 816, “Criminal

Liability for Transportation of

Explosives and Other Dangerous Articles

Under 18 U.S.C. —— and Implementing

Regulations” ... - . eee eek oe

vii

’

C. Harris, P. Cavanaugh, and R. Zisk,

Criminal Liability for Violations of

Federal Hazardous Waste Law: The

"Knowledge" of Corporations and Their

Executives, 23 Wake Forest L.Rev. 203

(1988) . . . . . . . * . . . * . . 58

D. Riesel, Criminal Prosecution and

Defense of Environmental Wrongs, 15 ELR

10065 (March, 1985) a ae 59

18 U.S.C. Sec. 834. 55

42 U.S.C. Sec. 6903 (4) 31

42 U.S.C. Sec 6903(15) 30, 37, 40,

42 U.S.C. Sec. 6928 30, 37, 54

42 U.S.C. Sec. 6961 37, 38, 41, 43,

42 U.S.C. Sec. 6961 42

42 U.S.C. Sec. 6992e(b) 34

42 U.S.C. Sec. 7602 (e) . 33

42 U.S.C. Sec. 9601(21) . 33

U.S. Const. art. Vi, sec. 8, cl. i7 .

viii

LEGISLATIVE HISTORY

H.R. 1056 (101st Congr., lst Sess.). 35

H.R. Rep. No. 1491, 94th Congr., 2nd

Sess. at 1976 U.S. Code Cong. and Adm.

News 6282-84 and 6289. - +++ + * * 42

PRIOR OPINIONS IN THE CASE

United States v. Dee, 912 F.2d 741,

31 ERC 1953 (4th Cir. 1990).

GROUNDS FOR JURISDICTION

The decision of the Court of

Appeals for the Fourth Circuit was

issued on September 4, 1990.

No motion for rehearing was filed.

There have been no motions submitted to

this Court for extension of time within

which to file this Petition for Writ of

Certiorari.

Jurisdiction to conduct the

requested review is conferred upon this

Honorable Court by 28 U.S.C. Sec. 1254.

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

42 U.S.C. Sec. 6961

The pertinent text of each statute

is contained in the Appendix to this

Petition (see separate volume}.

STATEMENT OF THE CASE

This matter involves a trial of

more than seven weeks on a five-count

indictment issued June 28, 1988 against

Petitioners William Dee, Robert Lentz,

and Carl Gepp. The indictment was filed

in the United States District Court for

the District of Maryland.

Petitioners each held positions

within an organization known as the

Munitions Directorate of the Chemical

Research, Development, and Engineering

Center (CRDEC) at the Aberdeen Proving

Grounds, operated by the United States

Army in Harford County, Maryland.

The indictment involved a portion

of the Aberdeen grounds known as the

"Pilot Plant," where various sensitive

chemical weapons projects were

conducted. The indictment charged

violations of the Resource Conservation

and Recovery Act (RCRA) and of the Clean

Water Act. These charges related to a

three-year period from mid-1983 to mid-

1986. Count One alleged illegal storage

and disposal of dimethyl polysulfide,

also known as NM. Counts Two, Three and

Four alleged illegal storage, treatment

or disposal of dozens of chemicals at

various times and places. Count Five

alleged a criminal violation of the

Clean Water Act relating to an acid leak

in September 1985.

A superseding indictment was issued

November 29, 1988, which added,

eliminated or redefined various

chemicals described in Counts Two

through Five. A motion to dismiss was

filed September 2, 1988 and was answered

by the Government on September 16 (a

reply memorandum by Petitioners was

filed on September 30 with a further

Government response on November 8).

The motion to dismiss pointed out

the inapplicability of RCRA’s criminal

enforcement provisions against

Petitioners. The motion stated the

federal government and thus its

employees are excluded from the RCRA

definition of "person" and that RCRA

waives sovereign immunity only for

injunctive relief, making injunctive

relief the only RCRA sanction against

federal employees acting within their

responsibilities.

The motion to dismiss was denied,

after a hearing, on December 9, 1988.

Notice of appeal was filed December 19,

1988. The United States Court of Appeals

for the Fourth Circuit held its

consideration of that appeal until the

conclusion of trial.

At trial before the United States

District Court for the District of

Maryland (John R. Hargrove, J.), the

jury heard from more than 50 witnesses

and were presented with more than 200

exhibits. On February 23, 1989, at the

end of this exhaustive trial, the jury

convicted Petitioners of various counts.

Petitioner William Dee was

convicted of Count Four (storage and

disposal of various chemicals at the Old

Pilot Plant). Petitioner Robert Lentz

was convicted of Count One (storage and

disposal of dimethyl polysulfide), Count

Three (treatment and disposal of

chemicals in toxic neutralization

systems at the Pilot Plant), and Count

ate

Four (storage and disposal of certain

chemicals at the Old Pilot Plant).

Petitioner Carl Gepp was convicted

of Count One (storage and disposal of

dimethyl polysulfide), Count Two

(storage and disposal of chemicals for a

project known as the Chemical Hazardous

Response Information System (CHRIS) and

other chemicals at the Pilot Plant), and

Count Three (treatment and disposal of

chemicals in neutralization systems).

None of the Petitioners was

convicted of Count Five, the Clean Water

Act charge relating to an approximately

200-gallon acid leak into a creek (Canal

Creek) on the Proving Ground premises.

This charge is thus not involved here.

On May 11, 1989, the united States

District Court sentenced each Petitioner

to three years’ probation and 1,000

hours of community service. Appeal to

the United States Court of Appeals for

the Fourth Circuit was noted on May 17,

1989.

In their appeal, Petitioners raised

several issues. Among them were crucial

issues of immunity from prosecution and

lack of criminal intent.

On September 4, 1990, the Fourth

Circuit affirmed the convictions (United

States v. Dee, 912 F.2d 741 (4th Cir.

1990)). The Court concluded there is no

immunity from criminal prosecution for

government employees acting for or on

behalf of their federal agency. The

Court also concluded that Petitioners

had the requisite criminal intent to

support their convictions.

Petitioners contend to this Court

that the Fourth Circuit did not suffi-

i :

sufficiently consider the immunity issue

here. Neither did the Court carefully

review the question of criminal intent,

especially in view of the different

approaches taken in the Circuits to

criminal intent regarding RCRA.

Petitioners point out that these

circumstances are quite unique. This is

a rare instance of federal government

employees criminally prosecuted for

violations of federal hazardous waste

laws. As such, Petitioners contend che

entire facility, rather than individual

actions, should be the focus here.

As to immunity, the issue involves:

1) whether immunity from criminal

prosecution extends to federal

government employees acting for or on

behalf of their agency and acting within

their official responsibilities and 2)

whether Congress in the present version

of RCRA intended federal facilities,

agencies, or employees to be exempt from

criminal responsibility for alleged

hazardous waste violations.

As to criminal intent, Petitioners

also point to the unique nature of these

circumstances. This is not a case of

wholesale dumping of large-scale

chemical wastes into a backyard strean,

or of deliberate, considered action to

evade hazardous waste requirements.

Petitioners were well-regarded

employees of a neglected facility, in

poor condition, which received little

attention as to needed repairs and

improvements while Petitioners were

expected to comply with requirements

concerning hazardous substances.

Further, chess requirements were

characterized as safety rather than

environmental concerns. No suggestion

was made to Petitioners, nor were they

aware, that possible criminal

responsibility was involved.

The seven-week trial here

encompasses more than 4,700 pages of

transcript. Yet, regardless of the

massive Government effort to obtain a

conviction, and despite the conclusions

of the Fourth Circuit, Petitioners

contend that key aspects necessary to

support the charges, including immunity

and criminal intent, were never

sufficiently resolved.

I. ORGANIZATIONAL REVIEW

The time period of the indictment,

mid-1983 to mid~-1986, relates to

activities of Petitioners within their

responsibilities at the Chemicai

Research, Development, and Engineering

Center (CRDEC), a large organization at

the Aberdeen Proving Ground (APG), 4

79,000-acre installation operated by the

United States Army. Petitioners had

obligations within one of CRDEC’s nine

directorates--the Munitions Directorate,

which develops chemical agents and

delivery systems for field troops.

The Munitions Directorate included

a complex known as the "Pilot Plant"

(building E5625), a four-story buiiding

built in the 1940s with several

laboratories, whe'e an array of

sensitive projects were conducted. Also

on the APG premises was a former ly-used

building, known as the Old Pilot Plant

(building E3640), which had been clcsed

in 1978 by previous CRDEC managers.

The Aberdeen Proving Ground is the

"landlord" for more than 40 "tenants"

each conducting their own operations. As

"landlord," APG itself is ultimately

responsible for base administrative

operations, including environmental and

hazardous waste programs.

The Chemical Research, Development,

and Engineering Center (CRDEC) with its

various directorates (including the

Munitions Directorate in which

Petitioners worked), is APG’s largest

"tenant." CRDEC has more than 1,300

employees and more than 100 different

projects.

Within the Munitions Directorate of

the CRDEC were various divisions and

branches, including the Producibility,

Engineering and Technology division.

Within that division was a branch known

as Process Technology.

Petitioner William Dee was chief of

the Munitions Directorate of CRDEC.

Petitioner Robert Lentz was chief of the

Producibility, Engineering, and

Technology division of the Munitions

Directorate. Petitioner Carl Gepp was

chief of the Process Technology Branch

of the Producibility, Engineering, and

Technology Division.

On the Pilot Plant premises were

toxic neutralization sumps. These sumps

were designed to neutralize waste

chemicals and involved neutralizing the

acid/base (pH) value of these chemicals

so that the resulting fluid can be sent

to a treatment facility within the APG.

One of the projects supported by

the Pilot Plant was CHRIS (Chemical

Hazardous Response Information System).

The CHRIS project was commissioned by

the Coast Guard to obtain data on

selected chemicals to formulate spill

response plans.

Among other CRDEC Directorates is

the Environmental Technology

Directorate. Among its responsibilities

is to ensure that CRDEC activities are

planned and executed in an

environmentally acceptable manner.

Another cCRDEC directorate is

Research and Development Engineering.

Among its responsibilities is coordi-

nating with APG for maintenance of CRDEC

buildings. The duties of Environmental

Management Office in the Engineering and

Housing Directorate include obtaining

and maintaining environmental permits

and coordinating with federal and state

agencies. Also, there was a_ special

CRDEC Safety Office, reporting to CRDEC

Deputy Commander. It was concerned

primarily with employee safety. And of

note are two other APG tenant agencies:

the United States Army Environmental

Hygiene Agency (USAEHA) and the United

States Army Technical Escort. The USAEHA

provides guidance and support to Army

installations in environmental hygiene

and related areas. The United- States

Army Technical Escort is a special unit

able to respond to hazardous chemical

incidents at APG or elsewhere.

Environmental compliance,

monitoring, and APG hazardous waste

management for “tenants,” including

CRDEC therefore involved interlocking

responsibilities of numerous offices,

directorates, and special agencies. In

addition, there was delay, neglect,

confusion, paperwork, and failed

communications as to the Pilot Plant.

It was no secret that the Pilot

Plant (E5625) was old, in poor

condition, and badly in need of repair.

As structural problems worsened, and as

the Pilct Plant increasingly became the

target of environmental investigations

and inspections from both inside and

outside CRDEC and APG (beginning in

September of 1985), there was a failure

of those in authority at CRDEC and APG

to take responsibility for its problems.

Among the myriad APG regulations

was APG 200-2, "Waste Management at

APG," updated in May of 1982 (but not

substantially updated until 1989 despite

major changes in RCRA in 1984). APG 200-

2 required environmental compliance at

APG, although its prime purpose was to

identify waste disposal procedures. The

Government claimed Petitioners knew the

full reach of that regulation. yet

individuals in authority during that

period, including Brigadier Gen. James

Klugh (CRDEC commander, January 1984 to

July 1986) and Brigadier Gen. Peter

Hidalgo (then Commander of the U.S. Army

Toxic and Hazardous Materials Agency and

later CRDEC commander--1986) » were

unfamiliar with or uncertain about it.

There were memoranda, inspections,

documentation, and reports issued by the

safety office and other offices on the

Pilot Plant in 1983 and 1984, chiefly

regarding safety issues, with generic

references to environmental compliance.

But not one witness testified that the

Petitioners were ever put on notice of

specific failures of environmental

compliance at the Pilot Plant, let alone

that criminal violations of

environmental laws were at stake.

In Pilot Plant operations, a

chemical known as dimethyl polysulfide

(NM) was used. It was a component of a

binary chemical weapons project.

Several NM drums were stored at the

Pilot Plant. Its poor condition was made

dramatically obvious in September of

1983, when a portion of the roof

collapsed, crushing some NM drums and

requiring a response to the incident.

Several itnesses testified about

NM clean up. Chemical removal procedures

(known as “hard-card turn-ins") for the

NM were initiated in August of 1984, but

the APG waste removal contractor did not

pick up the NM until March of 1986.

Throughout this time period and

after, reports from outside consultant

firms were commissioned by CRDEC, the

Army Corps of Engineers, and APG about

the Pilot Plant and its condition.

Various options were considered, such as

restoring the present Pilot Plant or

building a new facility. But no progress

was ever ultimately made on these items

in the bureaucracy of CRDEC, APG, the

Department of Defense, or in Congress.

Numerous repair orders were

submitted for the Pilot Plant. Yet they

were rarely completed in a timely

fashion or at all. Thus, the Pilot Plant

deteriorated while its operations

continued, notably a critical United

States binary chemical weapons progran.

Petitioners performed their duties as

far as possible in these conditions.

In May, 1983, various chemicals

were moved from the Old Pilot Plant

(E3640) to the Pilot Plant (E5625).

Witnesses told of allegedly improper or

haphazard practices in the transfer or

disposal of these chemicals.

However, these witnesses did not

indicate that Petitioners conducted

these activities themselves, or that

Petitioners conducted these disposal

activities with any criminal intent.

Much more attention was directed at

the Pilot Plant in January to April of

1986 when a series of newspaper articles

appeared about allegedly improper

chemical storage and disposal activities

at APG. The articles were prompted in

part by the efforts of a Pilot Plant

employee concerned about worker safety,

who determined that CRDEC and APG

authorities would not follow through on

repair assurances.

After these articles appeared, and

in view of other incidents (such as the

September, 1985 acid leak into Canal

Creek) several inspections and visits

were conducted by the Environmental

Protection Agency, the Maryland

environmental agency, CRDEC and APG

authorities, and representatives of

Congressional offices. Finaliy, in

March, 1986, the Pilot Plant, due to its

deterior-ating physical condition, was

ordered closed by CRDEC Commander Klugh.

In June, 1988, Petitioners were

indicted.

II. POINTS AS TO TRIAL

The testimony of Government

witnesses certainly established that

innumerable meetings and documentation

about the Pilot Plant dealt principally

with safety issues, rather than environ-

mental concerns. The testimony also

demonstrated the complexity of

“es 22

responsibilities, the APG bureaucracy,

and the paperwork required to dispose of

even a small amount of the most

innocuous chemical. Further, it was

shown through Government witnesses that

there were varying views within the

CRDEC on the continued viability of the

Pilot Plant and what should be done

about its deteriorating condition.

The Government presented testimony

from Pilot Plant employees concerning

incidents of removal, transportation,

storage, or disposal of chemicals,

including transporting chemicals from

the Old Pilot Plant to the Pilot Plant,

storage of CHRIS chemicals, and problems

with the toxic neutralization sumps.

However, at least two Government

witnesses confirmed there were limited

funds available through utilization of

an “overhead budget" for Pilot Plant

repairs and noted budget problems

concerning repairs. One witness stated

that federal buildings cannot be

restored if doing so cost more than half

the price of a new structure.

Maj. Gen. James Klugh, CRDEC

commander at the time, testified and

noted responsibilities regarding the

Pilot Plant. Yet he gave little

indication that he was aware of Pilot

Plant problems or was prepared to assume

responsibility for them.

Defense witnesses noted, among

other things, a lack of CRDEC emphasis

on environmental matters from 1983 to

1985, indicating a lack of urgency about

Pilot Plant disposal or storage issues.

Recalling certain Government

witnesses, the defense also emphasized

that amid the flurry of memoranda,

meetings, documentation, reports,

studies, and disposition forms, little

if anything was being done to respond to

work orders, to emphasize the urgency of

Pilot Plant problems, to repair or

restore the Pilot Plant to proper

working condition, or to inform the

Petitioners of specific environmental

corrective action required at the Pilot

Plant, let alone any potential criminal

liability if the situation continued.

Brigadier Gen. Peter Hidalgo stated

that installation and CRDEC commanders

are responsible for activities within

their commands, including environmental

problems at the Pilot Plant. He pointed

out these duties are non-delegable.

Other defense witnesses noted a

dangerous slowness of response through

all authorities within and outside of

the CRDEC to the problems at the Pilot

Plant. Defense witnesses confirmed Pilot

Plant budgetary problems in obtaining

CRDEC funds for environmental projects.

These witnesses also noted the minimal

response by "landlord" APG to its

maintenance obligations and the

difficulty, even as late as June of 1986

when environmental sensitivity was high

due in part to newspaper articles, in

obtaining answers from APG to basic

environmental concerns.

Witnesses also confirmed that

Petitioners repeatedly noted to proper

authorities Pilot Plant repair and

renovation needs. They also cited the

lack of CRDEC command emphasis as to

environmental issues at staff meetings.

Petitioners.also testified. They

described the interminable problems in

seeking repair of the Pilot Plant. They

pointed out the high performance

appraisals they were receiving during

the period that they were supposedly

committing criminal acts. They further

emphasized the bureaucratic nature of

CRDEC which brought inspectors and

investigators to the Pilot Plant when

newspaper articles and Congressional

offices were beginning to raise concerns

about environmental and safety issues,

but hardly the same interest before.

Petitioners’ testimony confirmed

that whatever may have been stated in

isolated memos or reports, there were no

specific recommendations made by CRDEC

or APG about hazardous waste management

at the Pilot Plant, or about the

pressing need to conduct chemical clean-

ups, prior to the Pilot Plant closing in

March of 1986. And there was little if

any money earmarked or approved for

Pilot Plant repair thoughout this time

period.

Thus, in these Pilot Plant matters,

there was never any criminal intent by

Petitioners to violate any environmental

laws. Not one of them took any action to

deliberately avoid responsibilities.

This situation therefore involves

central and crucial issues regarding

federal enforcement of environmental

laws at federal facilities.

ARGUMENT FOR GRANTING WRIT

I. THE FOURTH CIRCUIT ERRED IN

HOLDING THAT PETITIONERS, AS

FEDERAL EMPLOYEES, ARE NOT IMMUNE

FROM CRIMINAL PROSECUTION FOR

VIOLATIONS OF THE RESOURCE

CONSERVATION AND RECOVERY ACT

The Fourth Circuit found that the

so ss

definition of "person" in the Resource

Conservation and Recovery Act at 42

U0.8.C. Sec. 6903(15) encompasses

Petitioners. The Court stated RCRA’s

definition of "“person" includes

"individuals" and Petitioners "of

course, were indicted, tried, and

convicted as individuals not as agents

of the government." Aliso, "sovereign

immunity does not attach to individual

government employees so as to immunize

them from prosecution for their criminal

acts." 912 F.2d at 744.

The Fourth Circuit continued, in

affirming the convictions, "Even where

certain federal officers enjoy a degree

of immunity for a particular sphere of

official actions, there is no general

immunity from criminal prosecution for

actions taken while serving their

office." 912 F.2d at 744.

The Fourth Circuit, however, did

not comprehensively consider the

immunity question. Central issues are

whether immunity from criminal

enforcement extends to federal employees

acting within official responsibilities,

and whether Congress excluded -federal

employees from criminal prosecution

under RCRA.

The statute authorizes criminal

sanctions for “any person" who knowingly

commits an act prohibited by 42 U.S.c.

Sec. 6928. And "person," as defined by

RCRA (Sec. 6903(15)), is:

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.

The RCRA definition of "person" includes

"individuals," but there is no mention

of the United States or federal agency.

The term "federal agency" is in

fact separately defined in RCRA Sec.

6903(4) as “any department, agency, or

other instrumentality of the Federal

Government." Thus, the RCRA definition

of "person" omits federal agencies or

emplovees. The omission is not semantic.

Congress’ deliberate omission of

federal agencies from the definition of

"person," combined with the plain

language of RCRA criminal provisions,

leads to the conclusion that Congress

decided to prohibit criminal RCRA

prosecution of federal agencies. Since

the Government can act only through its

officers and agents (see, e.g., Arizona

Vv. Maypenny, $92 .@.8s.. Bees Be 16

(1981)), this exemption applies to

agency employees carrying out official

responsibilities.

A similar statement as to a federal

agency acting through its agents was

made in Cooper v. O’Connor, 99 F.2d 135

(D.C. Cir. 1938), involving violations

of banking laws by Treasury officials.

The court echoed statements in [In re

Neagle, 135 U.S. 1 (1890); Spalding v.

Valis, 161 U.S. 483 (1896); and Clifton

Vv. Cox, 549 F.2d 722 (9th Cir. 1977).

Neither is this an academic exercise. It

is at the heart of the interests and

policies involved in the formation and

enactment of RCRA itself.

The exclusion of the United States

and federal agencies from RCRA’s

definition of "person" is thus extremely

pertinent, particularly when the same

definition under other federal

environmental statutes expressly

includes these entities.} Where a

statute contains a certain provision, as

to a given subject, the omission of such

provision from a similar statute

indicates a different intent existed.

Richardson v. Jones, 551 F.2d 918 (3rd

Cir. 1977).

Even more revealing is the fact

that Congress demonstrated it knew how

to include federal agencies in the

1. Compare 42 U.S.C. Sec. 7602(e)

(Clean Air Act) ("person" includes "any

agency, department, or instrumentality

of the United States and any officer,

agent, or employee thereof"), and 42

U.S.C. Sec. 9601(21) (Comprehensive

Environmental Response, Compensation,

and Liability Act) (definition of person

includes "United States Government").

definition of "person" elsewhere in

RCRA. In 42 U.S.C. Sec. 6992e(b)

(Underground Storage Tanks) it is stated

that for purposes of the federal

facilities provision of that subchapter,

the definition of "person" includes

"each department, agency, and

instrumentality of the United States."

When Congress includes particular

language in one section of a statute but

omits it in another section of the same

act, it is generally presumed that

Congress acts intentionally and

purposefully in doing so. Russello _v.

United States, 464 U.S. 16 (1983). Thus,

the RCRA exclusion of federal agencies

and their employees from the definition

of "person" plainly shows that Congress

did not intend to subject federal

employees acting as the agency (that is,

within the scope of their employment) to

criminal liability.

Further, that RCRA in its present

form does not contain the authority to

subject federal facilities or their

employees to criminal sanction is

underscored by attempts to amend RCRA to

permit just such criminal prosécution.

(See. H.R. 1056 [in Appendix to this

Petition), passed by House of

Representatives but not by Senate.)

This proposed amendment would

explicitly have included federal

agencies or employees within the RCRA

definition of "person," and allowed for

criminal prosecution of federal

employees for RCRA violations.

An amendment is intended to change

the law as it formerly existed, and is

to be given great weight in determining

the intent and meaning of the previous

law. See 73 Am.Jur.2d Statutes, Sec.

343, United States vy. Canadian Vinyl

Industries, Inc., 555 F.2d 806 (Cust.Ct.

1977); May Department Stores Co. v.

Smith, 572 F.2d 1275 (8th Cir. 1978),

cert.den. 434-U.S. 837, and Johnson _v.

Heckler, 607 F.Supp. 875 (D.I11l.° 1984).

Congress, by this amendment

process, thus recognized that RCRA in

its present form does not authorize

criminal prosecutions against federal

employees acting for their agency.

2. Federal Emplovee Immunity

As to the issue of immunity itself,

it is well established that a government

official empowered to take action and

who acts properly within the scope of

authority, retains this immunity (unless

it has been waived). Pennhurst State

School _ & Hospital _v. Halderman, 465 U.S.

89, 112 n. 22 (1984); Gregoire v.

Biddle, 177 F.2d 579, 581 (2nd Cir.

1949), and Swanson v. Willis, 114

F.Supp. 434, 435 (D. Alaska 1953), aff’d

220 F.2d 440 (9th Cir. 1955).

A straightforward reading of RCRA

Secs. 6903, 6928, and 6961 further

demonstrates RCRA criminal sanctions

cannot be applied against federal

employees acting within their authority.

Civil sanctions alone are permitted.

Federal compliance with RCRA

requirements is fully described in Sec.

6961, which provides a sanction of civil

injunctive relief. The absence in Sec.

6961 of a reference to criminal

sanctions is further indication that

Congress did not intend federal

employees to face criminal prosecution.

Several courts have found the waiver of

sovereign immunity in Sec. 6961 to be

extremely limited, or have determined it

does not permit criminal prosecution.

In California v. Walters, 751 F.2d

977 (Sth Cir. 1984), the court decided

California’s state criminal sanctions

regarding disposal of infectious waste

are not a “requirement” under Sec. 6961.

Thus RCRA did not compel compliance with

state law by the Veterans Administration

(as to a Veterans hospital). The Walters

court determined the waiver of immunity

found in Sec. 6961 extends only to civil

injunctive relief.

The court found the language of

Hancock v. Train, 426 U.S. 167 (1976),

concerning similar provisions of the

a |

Clean Air Act, did not require a more

expansive reading of RCRA Sec. 6961. The

Walters court stated, "Section 6961

Plainly waives immunity to. sanctions

imposed to enforce injunctive relief,

but this only makes more conspicuous its

failure to waive immunity to criminal

sanctions" (751 F.2d at 978).

This restrictive view of Sec. 6961

as to waiver of immunity, following

Walters, is also found in Meyer v.

United States Coast Guard, 644 F.Supp.

221 (E.D.N.Car. 1986), involving a civil

administrative penalty sought against

the Coast Guard by the North Carolina

environmental protection agency. The

court found that Sec. 6961 "does not

waive sovereign immunity for civil

penalties" (644 F.Supp. at 223).

Weinberger, 655 F.Supp. 601 (E.D. Cal.

1986), finding also that the sovereign

immunity waiver does not extend to civil

penalties against federal agencies, the

RCRA definition of "“person" (Sec.

6903(15)) “seems to name everyone under

the sun save for the United States of

America." The court also noted:

This Court cannot believe that

if Congress wished to waive

immunity for civil penalties it

could be so careful, so all-

knowing, so engaged in foresight

and insight as to define ‘person’

to include the United States for

purposes of jurisdiction in the

RCRA citizen suit provision, and

yet could forget, misappropriate,

or be so negligent as to decline to

include the United States in its

overall, all-encompassing

definition of ‘person’ in RCRA Sec.

1004(15) (Sec. 6003(15)], which is

applicable to compliance orders and

civil penalties.

And in United States v. Washington,

872 F.2d 740 (9th Cir. 1989), the court

considered state penalties sought

against the Hanford Nuclear Reservation

operated by the Department of Energy

for, among other things, “illegal

accumulation of dangerous waste in four

non-designated storage areas." The Ninth

Circuit again stated that Sec. 6961 does

not waive sovereign immunity for state

civil penalties. The Washington court

stated at 872 F.2d at 743:

Thus, the only unequivocal and

express reference to sovereign

immunity in section 6961 is

directed at court-ordered sanctions

for a violation of an injunction.

‘In short, Congress demonstrated

that it knows how to select

language to waive sovereign

immunity to criminal penalties and

civil damages, if it so intends.’

, 848 F.2d 956,

962 n. 3 (9th Cir. 1988).

The court stated at 872 F.2d at 746 that

"Criminal prosecution is not an

enforcement mechanism covered under

section 6961."

Further, RCRA legislative history

indicates that limiting sanctions

against federal facilities to civil

injunctive relief was not the result of

Congressional inadvertence. (see H.R.

Rep. No. 1491, 94th Cong., 2d Sess. at

1976 U.S. Code Cong. and Adm. News, at

6283-84, and 6289, stating that "After

considering all aspects of the

jurisdictional enforcement problem, the

Committee decided to retain sovereign

immunity over federal facilities").

Numerous courts therefore have held

that 42 U.S.C. Sec. 6961 allows limited

waiver of immunity for injunctive

relief only, and therefore prohibits

prosecutions seeking any other sanction.

ent

This immunity extends to government

officials acting within their capacity

and in good faith, even if these actions

later are determined to be wrongful. In

Grave]_v. United States, 408 U.S. 606

(1972), involving a senator’s private

publication of the Pentagon Papers, no

immunity was found because the action

was outside the legislative process.

Conversely, if an act is within official

duties and done in good faith, immunity

can extend to criminal prosecution (see

Braatelein _v. United States, 147 F.2d

888, 895 (8th Cir. 1945)).

This immunity applies whether the

enforcement action is state or federal.

Section 6961 limits al] enforcement

action against federal agencies to

injunctive relief. Congress clearly did

not consent to federal officials

Criminally Prosecuting other federal

officers merely doing their jobs.

The Constitution (art. VI, sec. 8,

cl. 17), limits legislative authority

Over federal enclaves to Congress’

exclusive jurisdiction. For RCRA

purposes, Congress in Sec. 6961 has

opted to retain exclusive jurisdiction

over APG and similar federal enclaves.

Thus, because Section 6961 and

Section 6903 are Congress’ expression of

RCRA’s application to federal enclaves,

these sections contain the extent of the

United States Attorney’s authority to

prosecute under RCRA for alleged

environmental wrongdoing at federal

facilities. Federal enforcement of RCRA

requirements at federal facilities is

therefore limited to injunctive relief.

The criteria in caseélaw drawing the

difficult line between sovereign and

eben oes foe

individual action shows that federal

officials do not automatically lose

their sovereign immunity protection

whenever a violation of a_ federal

statute or regulation occurs. United

States v. Yakima Tribal Court, 794 F.2d

1402, 1407 (D.Mont. 1987); Nichols v.

Block, 656 F.Supp. 1436, 1440 (D.Mont.

1987). Action by a government official

is still the act of the sovereign, even

if wrong, provided the official’s action

was for a purpose vested in him or her.

E.g.. Larson v. Domestic and Foreign

Commerce Corp, 337 U.S. 682, 695 (1949).

As was noted in Scherer v. Morrow,

401 F.2d 204, 205 (7th Cir. 1968),

cert.den., 393 U.S. 1084 (1969), “To be

within that perimeter, and therefore

absolutely privileged, ‘it is only

necessary that the action bear some

reasonable relation to and connection

with the duties and responsibilities of

the official.’ (quoting Scherer v,.

Brennan, 379 F.2d 609, 611 (7th Cir.

1967), cert.den., 389 U.S. 1021 (1967)).

Whether a federal employee can be

"authorized" to violate RCRA is not the

question. Instead, the criteria is

whether the actions taken were in the

performance of official duties and were

necessary to carry out those duties. See

Morgan v. California, 742 F.2d 728, 731

(9th Cir. 1984).

Therefore, immunity of federal

employees acting with their authority

applies to civil and criminal liability.

Nothing in RCRA affects this immunity.

Petitioners clearly were charged

| for acts within official duties, and no

| more. Their actions were within their

: responsibilities of conducting and

supervising sensitive research, an

integral part of the defense

establishment. Petitioners did not act

solely as “individuals,” nor did they

act for personal profit or advancement.

The Government’s prosecution of the

Appellants was not authorized under RCRA

and should have been dismissed. This

prosecution was therefore invalid.

lI. THE FOURTH CIRCUIT ERRED IN

FINDING THAT THE REQUISITE CRIMINAL

INTENT WAS DEMONSTRATED HERE.

The Fourth Circuit concluded, in

affirming the convictions, that

Petitioner’s argument reduces itself to

a contention that "ignorance of the law

= ,

is no defense" noting decisions of this

Court in United States v. International

Minerals, 402 U.S. 558 (1971); United

States v. Freed, 401 U.S. 601 (1971);

United States Dotterweich, 320 U.S. 277

(1943), and United States v. Balint, 258

U.S. 250 (1922). The Fourth Circuit thus

concluded that the Government "did not

need to prove defendants knew violation

of RCRA was a crime, nor that

regulations existed listing and

identifying the chemical wastes as RCRA

hazardous wastes." 912 F.2d at 745.

The Fourth Circuit did not take

into account that the intent requirement

for a criminal conviction under RCRA has

been variously construed by the

Circuits. It also did not consider the

intent issue in the rather unique

circumstances here.

« Cae! Om aaa al wR ane

As to intent, some federal courts

have held that criminal liability under

RCRA requires a specific intent. Others

have indicated a more general intent.

Either approach requires a finding of

some criminal intent to violate an

environmental law.

In United States v. International

Minerals, 402 U.S. 558 (1971), this

Court considered a conviction for

failing to list on shipping papers the

nature of certain chemicals being

transported, in accordance with federal

regulations. The trial court had

dismissed the charge (see Boyce Motor

Lines v. United States, 342 U.S. 337

(1952) ) because the knowledge

requirement was not met.

The International Minerals Court

noted that Boyce did not apply to the

49 ~

knowledge issue, because that case dealt

only with the vagueness of the statute.

This Court indeed stated that ignorance

of the law or of the regulation involved

is not a defense to criminal liability.

However, this Court also noted, at

402 U.S. at 563-564:

So far as possession, say, of

sulfuric acid is concerned the

requirement of ‘mens rea’ has been

made a requirement of the Act [18

U.S.C. Sec. 834] as evidenced by

the use of the word ‘knowingly.’ A

person thinking in good faith that

he was shipping distilled water

when in fact he was shipping some

dangerous acid would not be

covered.