Appendix — Dee v. United States

IN THE

Supreme Court of the United States

October Term, 1990

No.

WILLIAM DEE,

ROBERT LENTZ,

and

CARL GEPP

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

APPENDIX TO PETITION

Richard Karceski

White & Karceski

305 West Chesapeake Avenue

Towson, Maryland 21204

(301) 583-1325

Attorney for

William Dee

een

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

Richmond, Virginia 23219, (804) 644-0700

4/2,

II.

iil.

APPENDIX TABLE OF CONTENTS

Opinion of the Fourth Circuit. i

Statutes Involved............xxxiii

42 U.S.C. Sec. 6903....xxxiii

42 U.S.C. Sec. 6928.....xxxiv

42 U.S.C. Sec. 6961......xXxXXV

Proposed RCRA Amendment

[H.R. LOSS Jeo ccccccccccccccecs xxxvi

So 6k BA A rrr.

1. OPINION OF THE FOURTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-5606

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM DEE; ROBERT LENTZ; CARL GEPP,

Defendants-Appellants

Appeal from the United States District

Court for the District of Maryland, at

Baltimore. John R. Hargrove, District

Judge. (CR-88-211-HAR)

Argued: February 8, 1990

Decided: September 4, 1990

Before SPROUSE and CHAPMAN, Circuit

Judges, and WARD, Senior United States

District Judge for the Middle District

of North Carolina, sitting by

designation.

Affirmed by published opinion. Judge

Sprouse wrote the opinion, in which

Judge Chapman and Senior Judge Ward

joined.

SPROUSE, Circuit Judge:

William Dee, Robert Lentz, and

Carl Gepp (hereafter collectively

"defendants") appeal the judgment of the

district court entered after a jury

trial finding them guilty of multiple

violations of the criminal provisions of

the Resource Conservation and Recovery

Act ("RCRA® or “the Act"), 42 U.S.C.

Secs. 6901 et seg.

I.

RCRA provides a comprehensive

scheme for regulating storage, transport

and disposal of hazardous’ waste,

requiring that it be managed to prevent

1 The district court suspended

each defendant’s sentence and placed

each on probation for three years with a

condition of 1,000 hours of community

service work.

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leakage, spillage, hazardous chemical

reactions, and migration of toxins into

the soil, water, or air. In addition to

adsinietretive provisions, the Act

creates criminal liability for persons

who knowingly handle hazardous waste

without a RCRA permit. 42 U.S.C. Sec.

6928(d) .2

The defendant engineers were

civilian employees of the United States

Army assigned to the Chemical Research,

Development, and Engineering Center at

Aberdeen Proving Ground in Maryland. All

the defendants were involved in

development of chemical warfare systems.

é Paraphrased, the portion

pertinent to this case reads: "Any

person who knowingly treats, stores, or

disposes of any hazardous’ waste

identified or listed under this

subchapter without a RCRA permit shall,

upon conviction, be subject to fine

and/or imprisonment." 42 U.S.C. Sec.

6928(d) (2) (a).

iii

“ oe at tee a

Gepp, a chemical engineer, was

responsible for operations at and

maintenance of the Pilot Plant;? Dee and

Lentz were Gepp’s superiors. Counts One

through Three of the superseding

indictment charged the defendants with

violating the Act by illegally storing,

treating and disposing of hazardous

wastes at the Pilot Plant. Count Four

focused on violations alleged to have

occurred at the "Old Pilot Plant",4 a

separate building complex that was

closed in 1978.°

+ The Pilot Plant complex

included a four-story laboratory

building, an administrative building,

and storage sheds.

4 ‘The Old Pilot Plant included a

laboratory building, an office building,

scrubbing towers and a storage area.

5 A fifth count charged

defendants with violation of the Clean

Water Act. 33 U.S.C. Secs. 1251 et. seg.

The jury could not reach a verdict "ith

respect to this count.

iv

Aberdeen Proving Ground

acquired an umbrella RCRA permit for

management of hazardous waste materials

at the Proving Ground. Under the permit,

three separate areas at Aberdeen were

designated for storage of hazardous

wastes; however, the permit did not

allow storage, treatment, or disposal of

hazardous wastes at the Pilot Plant or

the Olid Pilot Plant. Aberdeen in 1982

promulgated a regulation, APG 200-2,

that established "policies ana

procedures for management and disposal

of solid and hazardous waste materials

at Aberdeen Proving Ground" and mandated

compliance with all federal, state,

interstate, and local regulations,

specifically referencing both the RCRA

statute and RCRA regulations.

ds

APG 200-2 directed all tenant

organizations, such as the Center, to

report any waste material "suspected to

be toxic, carcinogenic, caustic,

ignitable, or reactive" by filling out a

form known as a “hard card." Upon

receipt of the hard card, designated

Aberdeen organizations were responsible

for transporting hazardous wastes to the

permitted® storage areas. APG 200-2 was

specific and thorough, listing various

individual chemicals and classes of

chemicals that were likely to be

hazardous, and reiterating that

hazardous wastes were to be managed in

accordance with all applicable laws.

6 In regulatory parlance and as

used in this opinion, “permitted" means

an activity for which a valid permit has

been issued. Conversely, "“unpermitted"

means the activity is not authorized by

the facility’s permit, or that the

facility does not have a permit.

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In 1982, the Center issued a

standard operating procedure, which in

1984 was reissued as a regulation known

as CRDCR 710-1. It required

identification of all RCRA wastes and

directed that they be handled in

accordance with the turn-in procedures

of APG 200-2. Waste chemicals were

defined as "those substances which have

deteriorated to the point where they are

no longer usable, are contaminated, or

cannot be stored safely."

As heads of their respective

departments, defendants were responsible

for ensuring that the provisions of APG

200-2, CRDCR 710-1, and RCRA were

fulfilled within their departments, and

that their subordinates were aware of

and in compliance with those

regulations. Defendants admitted

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knowledge of APG 200-2, CRDCR 710-1, and

RCRA.

II.

The defendants first contend

that they are immune from the criminal

provisions of RCRA because of their

status as federal employees working at a

federal facility. Because 42 U.S.C. SEc.

6928(d) defines those liable as "any

person who" knowingly violates the Act,

and because neither the United States

nor an agency of the United States is

defined as a person, defendants maintain

they cannot be "perscns" in the sense

contemplated by Sec. 6928(d). They

assert that by reason of their

employment by the federal government

they are entitled to sovereign immunity,

meaning they are immune from this

criminal prosecution.

viii

There simply is no merit to

this suggestion. The Act defines

"person" 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). The definition

begins with an inclusion of "an

individual" as a person. The defendants,

of course, were indicted, tried, and

convicted as individuals, not as agents

of the government. Suffice it to say

that sovereign immunity does not attach

to individual government employees so as

to immunize them from prosecution for

their criminal acts. ‘Ss a

Littleton, 414 U.S. 488, 503 (1974); cf.

Butz v. Economou, 438 U.S. 478, 506

(1978) ("all individuals, whatever their

ix

position in government, are subject to

federal law"). 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. United States v. Hastings, 681

F.2d 706, 710-12 (11th Cir. 1982) ("A

judge no less than any other man is

subject to the process of the criminal

law"), cert.denied, 459 U.S. 1203

(1983); United States v. Diggs, 613 F.2d

988, 1001 (D.C. Cir. 1979) ("Article I,

Sec. 5 does not immunize a member of

Congress from the operations of the

criminal law"), cert. denied, 446 U.S.

982 (1980). See generally United States

Vv. Isaacs, 493 F.2d 1124, 1142-44 (7th

Cir.) ("Criminal conduct is not part of

x

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the necessary functions performed by

public cofficials") cert. denied, 417

U.S. 976 (1974).?

IItt

Defendants next contend that

they did not "knowingly" commit the

crimes proscribed by RCRA. See 42 U.S.C.

Sec. 6928(d). They claim that there was

insufficient evidence to show that they

knew violation of RCRA was a crime;

also, that they were unaware that the

chemicals they managed were hazardous

wastes.

7 Because defendants were

prosecuted as individuals, their

argument as to the scope of Congresses’

waiver of immunity under 42 U.S.C. Sec.

6961 is inapposite. The same may be said

of their reliance on California v.

Walters, 751 F.2d 977 (9th Cir. 1984),

which involved an attempt by the City of

Los Angeles to prosecute a federal

agency and its administrator under

xi

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The Supreme Court has

repeatedly rejected similar arguments in

cases involving recognition of dangerous

materials, applying the familiar

principle that “ignorance of the law is

no defense." United States v.

International Minerals & Chem. Corp.,,

402 U.S. 558, 563 (1971); United States

v. Freed, 401 U.S. 601, 607-610 (1971);

United States Dotterweich, 320 U.S. 277,

280-81 (1943), and United States v.

Balint, 258 U.S. 250 (1922). We agree

with the Eleventh Circuit that this

time-honored rule applies to

[continuation of footnote 7}

California hazardous waste law. The

Ninth Circuit held that, although 42

U.S.C. Sec. 6961 directs federal

agencies to comply with state hazardous

waste laws, Congress did not intend to

waive the United States’ sovereign

immunity to criminal sanctions.

Walters does not apply here for two

reasons. First, unlike the case sub

xii

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prosecutions under RCRA. United States

v. Hayes Int’] Corp., 786 F.2d 1499,

1502-03 (1ith Cir. 1986); see also

United States v. Hoflin, 880 F.2d 1033,

1036-39 (9th Cir. 1989), cert. denied,

110 S.Ct. 1143 (1990); cf. United States

vy. Johnson & Towers, Inc., 741 F.2d 662,

669 (1984), cert. denied, 469 U.S. 1208

(1985). "(Wjhere, as here. ° o*

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

{continuation of footnote 7]

judice, Walters involved an action

against a federal agency and its

administrator in his official capacity.

The Walters court expressly warned: "Our

decision is compelled by the parties’

agreement that the action is essentially

one against the United Stats. Our

holding in this case does not

necessarily apply in all cases to

prosecutions against federal officers or

federal agencies." Jd. at 979.

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them or dealing with them must _ be

presumed to be aware of the regulation."

International Minerals, 402 U.S. at 565.

Therefore, 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. However, we agree with

defendants that the knowledge element of

Sec. 6928(d) does extend to knowledge of

the general hazardous character of the

wastes. Among its jury instructions, the

district court included one that

[continuation of footnote 7]

Second, Walters involved an attempt

by a state to enforce state law against

a federal agency: and its officer. In

certain circumstances, federal officers

may avoid criminal prosecution by a

state when the alleged crime arose from

performance of federal duties.

Cunningham v. Neagle, 135 U.S. 1, 75-76

(1890); Morgan v. California, 742 F.2d

728, 731 (9th Cir. 1984). The supremacy

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advised:

The government must _ prove

beyond a reasonable doubt that each

defendant knew that the substances

involved were chemicals. However,

the government need not establish

that the defendants knew that these

chemicals were listed or identified

by law as hazardous waste...

While these statements are correct, it

was error to instruct the jury that

defendants had to know the substances

involved were chemicals, without

indicating that they also had to know

the chemicals were hazardous. See

‘Hoflin, 880 F.2d ‘at 1039; Johnson. &

Towers, 741 F.2d at 668; compare United

States v. Greer, 850 F.2d 1447, 1450

[continuation of footnote 7]

Clause concerns which give rise to

Neagle-type immunity are not implicated

in this case, which involves prosecution

for federal crimes by the federal

government.

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(11th Cir. 1988) (jury instructed that

defendant had to know the chemical waste

had potential to harm others or the

environment). However, we think the

error was harmless. The record reflects

overwhelming evidence that defendants

were aware they were dealing with

hazardous chemicals. See Pope _v.

Illinois, 481 U.S. 497, 501-03 (1987);

Rose _v. Clark, 478 U.S. 570, 576-79

(1986) (conviction should stand if the

reviewing court can confidently say that

no rational juror, if properly

instructed, could have found for

defendant) .8 Contrary to defendants’

8 We find no merit to the other

contentions raised by the defendants in

connection with the district court’s

instruction. As a whole, the

instructions "fairly and adequately

state[d] the pertinent legal principles

involved." See Hogg’s Oyster Co. v.

United States, 676 F.2d 1015, 1019 (4th

Cir. 1982).

xvi

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assertions, the evidence also cleariy

established that the materials they

handled were "wastes" as that term is

used in the statute. ?

IV

In addition to the preceding

general challenges to their convictions,

defendants raise issues specific to each

count.

Count One charged defendants

with unpermitted storage and cisposal of

a hazardous waste--dimethyl polysulfide-

-at the Pilot Plant from June i983 to

9 Defendants’ self-serving

argument that materials were not wastes

until they declared them wastes is

without merit. Furthermore, the evidence

demonstrates that defendants considered

some if not all of the chemicals listed

under each count to be wastes because

they ordered their disposal.

xvid

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August 1984. Gepp and Lentz were found

guilty of this count.

Dimethyl polysulifide is a

chemical the Center had considered as a

component for a binary chemical

weapon.1° puring the 1970s, the Center

produced dimethyl polysulfide at the

Pilot Plant and also purchased some from

chemical companies. In 1980, 200

canisters of dimethyl polysulfide were

brought to the Pilot Plant from Fort

Sill, Oklahoma, because they were

leaking. All the dimethyl polysulfide

was stored on the fourth floor of the

Pilot Plant. Included were batches that

10 Binary weapons make use of two

chemicals, neither of which is lethal by

itself, but which combine to form a

lethal agent.

xviii

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had tested to be "bad" or "off-spec."

By 1981, the chemical weapon

program which would have used the

dimethyl polysulfide was cancelled. No

more dimethyl polysulfide was produced,

and no projects which would use dimethyl

polysulfide were planned. In May 1983, a

safety inspector warned Lentz and Gepp

that the roof of the Pilot Plant might

collapse and that they should move the

dimethyl polysulfide, but no action was

taken. Four months later, a corner of

the Pilot Plant did collapse, crushing

several drums so that dimethyl

polysulfide spilled and drained into the

floor drains.

For the next several months,

employees complained frequently to Lentz

and Gepp about noxious odors from the

dimethyl polysulfide, but not until

xix

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spring of 1984 did Gepp direct employees

to move the containers of dimethyl

polysulfide outside and to fill out hard

cards on them. Gepp did not turn in the

hard cards to the proper Aberdeen office

until August 1984.

Defendants contend that

dimethyl polysulfide is not a hazardous

waste. It is not a listed hazardous

waste,21 but the government’s theory at

trial was that the dimethyl polysulfide

handled by defendants came within the

definition of a "characteristic"

hazardous waste, because its "flash

point" was less than 140° F.22

Defendants argue that there was

insufficient evidence to prove that

11 See 40 C.F.R. Part 261,

Subpart D.

12 See 40 C.F.R. Sec. 261.21.

xx

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dimethyl polysulfide had a flash point

of less than 140° F, because a defense

witness testified that he had conducted

tests on dimethyl polysulfide which

indicated flash points of 154° to 163°

F. Cross-examination of the witness,

however, reflected irregularities in his

testing procedures. Additionally, the

government introduced the following

evidence: a Material Safety Data Sheet

supplied by a manufacturer of dimethyi

polysulfide indicating a flash point of

104° F; testimony by the person who had

transported the dimethyl polysulfide

from Fort sill that he had seen a

Material Safety Data Sheet listing the

flash point as 124° F; and the "hard

card" which Gepp filled out on the

dimethyl polysulfide listing the flash

point as being between 61° and 100° F.

xxi

In our view this evidence easily

supports the jury verdict which

implicitly found that dimethyl

polysulfide was a characteristic

hazardous waste. Cf. Greer, 850 F.2d at

1452 (evidence sufficient to support

jury’s conclusion that waste material

was 1,1,1 trichloromethane).

Defendants also contend the

dimethyl polysulfide was not a "waste"

because it was still usable, i.e., that

it was not prudent to discard it because

it conceivably could be of value to the

weapons program at some time in the

future. This argument is controverted by

the fact that the defendants disposed of

the dimethyl polysulfide in 1984.13

13 It is perhaps worth noting

that RCRA does not require disposal of

hazardous wastes. Prudent retention of a

waste in the hope that it will someday

xxii

PR ten

Count Two charged defendants

with unpermitted storage and disposal of

hazardous wastes at the Pilot Plant

compound from June 1983 to April 1986.

Only Gepp was convicted of the

violations alleged in this count.

The United States Coast Guard

had developed a program called the

Chemical Hazard Response Information

System (CHRIS) project. As part of the

project, the Coast Guard contracted with

the Center to study various hazardous

chemicals in order to develop a manual

for effectively responding to spills of

those chemicals. At Gepp’s direction,

{continuation of footnote 13]

be a treasure is permissible if it is

stored in accordance with a RCRA permit.

See 40 C.F.R. Sec. 261.2(e) (2) (iii).

xxiii

|

many excess and leftover CHRIS chemicals

were placed in a shed in the Pilot Plant

complex. Others were stored at various

locations about the Pilot Plant.

On a number of occasions from

1980 to 1986, Gepp was informed by

employees and safety inspectors that

there were problems with the. stored

CHRIS chemicals, including corrosion and

breakage of containers, leaks and

spills, generation of fumes, and

proximity of incompatible chemicals.

Gepp either made no response to these

warnings or merely told staff to clean

it up as best they could. Finally, in

1986, the commander of the Center

ordered operations at the Pilot Plant

halted and the complex cleaned up.

Hundreds of different chemicals were

removed and taken to the Aberdeen

xxiv

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hazardous waste storage facility. Other

chemicals had to be destroyed by

detonation because they were too

unstable to be transported.

Gepp concedes that the

chemicals were hazardous and that there

was no used for them, but he asserts

there was “little evidence" that he

directed the storage and disposal

operations. The government’s evidence,

however, shows that Gepp was in charge

of operations at the Pilot Plant and

that Gepp originally ordered the

placement of leftover CHRIS chemicals in

the storage shed. Gepp repeatedly

ignored warnings about the hazardous

condition of the CHRIS chemicals and

other chemicals that were improperly

stored about the Pilot Plant. He

undertook no actions to comply with RCRA

XXV

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in the storage and disposal of the

chemicals prior to the 1986 cleanup.

Defendants assert there was

insufficient evidence that management of

the CHRIS chemicals was an environmental

crime, because "‘Sloppy’ storage

procedures is [sic] not a crime." They

are simply wrong. Negligent and inept

storage of hazardous wastes is one of

the evils RCRA was designed to prevent,

and Sec. 6928(d) makes such egregious

conduct a crime.

Count Three charged defendants

with unpermitted treatment and disposal

of hazardous wastes at the Pilot Plant

from June 1983 to March 1986.14 Lentz

14 count Two involved storage and

disposal of leftover CHRIS chemicals at

the Pilot Plant. Count Three involved

separate treatment and disposal of other

chemicals at the Pilot Plant.

xxvi

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and Gepp were found guilty on this

count.

Several sumps which collected

materials from laboratories were located

in the Pilot Plant. Periodically, the

contents of the sumps were pumped to

"neutralization tanks."15 Between June

1983 and March 1986, numerous hazardous

waste chemicals were dumped into the

sumps at Gepp’s direction. Additionally,

at the direction of Gepp and Lentz,

drums containing hazardous’ waste

chemicals were cleaned by dumping the

chemical onto the ground at the Pilot

Plant, then rinsing the drum with

acetone, alcohol or water, and dumping

15 The tanks were able to

neutralize simple acids and bases, but

did not provide treatment for other

types of hazardous waste.

xxvii

the rinsate onto the ground. Also, a

Pilot plant incinerator which was not

permitted for incineration of hazardous

waste was used to dispose of methyl

chloride, which is a listed hazardous

waste.

Lentz and Gepp contend that

any disposal of hazardous wastes into

the Pilot Plant sumps was exempt from

the requirements of RCRA. The definition

of solid waste excludes mixtures of

domestic sewage and other wastes which

go to a "publicly-owned treatment

works." 40 C.F.R. Sec. 261.4(a). The

Pilot Plant sumps fed into

neutralization tanks that were connected

to a sewer system that fed into a sewage

treatment plant. Defendants therefore

Claim disposal into the Pilot Plant

xxviii

sumps was exempt from regulation under

RCRA.

Defendants have not pointed to

evidence in the record establishing the

factors of a Sec. 261.4(a) exclusion.1?®

However, we need not decide the issue,

because defendants do not dispute that

the government proved other unpermitted

treatment and disposal of hazardous

wastes at the Pilot plant--dumping of

wastes on the ground and incineration of

methyl chloride.?7

Count Four charged defendants

with unpermitted storage and disposal of

16 To come within this exclusion,

the wastes from the Pilot Plant would

have to mix with sanitary wastes from

residences prior to entering the sewage

treatment facility. See

Rescate De La Salud vy.

Aqueduct & Sewer Auth., 888 F.2d 180,

184-86 (ist Cir. 1989) (domestic sewage

exclusion requires that the sanitary

waste come from residences as opposed to

xxix

NR tet ote,

hazardous wastes at the Old Pilot Plant

from June 1983 to August 1986. Lentz and

Dee were found guilty on this count.

The Old Pilot Plant had been

used for bench-scale laboratory

experiments. Operations there ceased in

1978, with chemicals left in storage in

various buildings. Beginning in 1981,

when they became responsible for the Old

Pilot plant, Lentz and Dee were warned

on several occasions by safety

inspectors that improper storage of

chemicals at the Old Pilot Plant was

creating a hazard and that chemicals

[continuation of footnote 16]

bathrooms used by workers); cert.

denied, 100 S. ct. 1476 (1990).

Furthermore, the sewage plant would have

to be a "publicly owned treatment

works," as that term is defined by RCRA.

See 40 C.F.R. Sec. 260.10.

17 We also need not reach

appellants’ argument that RCRA chemicals

were not detected at "hazardous levels"

xxXX

should be removed in accordance with APG

200-2. Although Lentz had an employee

draft a cleanup plan for the Old Pilot

Plant in 1983, hazardous waste chemicals

remained in storage there until 1986.

Dee and Lentz admitted at trial that

they were aware of storage problems at

the Olid Pilot Plant; Dee stated he did

02>? eter attaninate

not consider cleanup of the building a

priority.

Lentz and Dee contest their

convictions under Count Four claiming

that they could not “inherit an

RE eA aah SNe A eh cial . ek winter Oe

environmental crime." This argument

borders on the frivolous. The indictment

charged defendants with unpermitted

[continuation of footnote 17]

in the sumps. We note, however, that

RCRA flatly prohibits unpermitted

disposal eof hazardous wastes. The

concentration of the wastes after

disposal has no bearing on whether the

disposal was illegal,

xxxi

storage of hazardous wastes at the Old

Pilot plant from June 1983 to August

1986. There is substantial evidence in

the record that during this time period

defendants were responsible for

maintenance of the Old Pilot Plant, that

they were aware of the hazardous

condition of chemical storage there, and

that they failed to ensure that the

hazardous wastes were managed in

accordance with RCRA. Defendants may

have inherited an environmental problen,

but their criminal culpability arises

solely from their own ongoing failure to

comply with RCRA during the period they

were responsible for the Old Pilot

Plant.

IX

In view of the above, the

judgment of the district court is

xxxii AFFIRMED.

il. STATUTES OR REGULATIONS INVOLVED

(pertinent parts only, emphases retained)

42 U.S.C. Sec. 6903. Definitions.

-_ x

(4) The term "Federal agency"

means any department, agency, or other

instrumentality of the Federal

Government, any independent agency or

establishment of the Federal Government

including any Government corporation,

and the Government Printing Office.

zee

(15) The term "person" means 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.

xxxiii

42 U.S.C. Sec. 6928. Penalties.

(d) Criminal penalties.

{It shall be a criminal violation

when any person]...

(2) knowingly treets, stores,

or disposes of any hazardous

waste identified or listed

under this subtitle. * * *

/ (A) without a permit

under this subtitle or

pursuant to title I of

the Marine Protection,

Research, and Sanctuaries

Act [33 U.S.C. Secs. 1411

et seq.)

xk

shall, upon conviction, be subject to a

fine of not more than $50,000 for each

day of violation, or imprisonment not to

exceed two years (five years in the case

of a violation of paragraph (1) or (2)),

or both. If the conviction is for a

violation committed after a first

conviction of such person under this

paragraph, the maximum punishment under

the respective paragraph shall be

doubled with respect to both fine and

imprisonment.

XxXXiV

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yg L AoW o Sumiziv’ tA: —

tr Ta bere lt) ais feta :

i it <Pare ss) cet nate xe vie

on pk Seller a can ea7 ~! } - 7 ° >

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:

*

7

Lean

——ot |

42 U.S.C. Sec. 6961. Application of

Federal, State, and local law to Federal

facilities.

Each department, agency, and

instrumentality of the executive,

legislative, and judicial branches of

the Federal Government (1) having

jurisdiction over any solid waste

management facility or disposal site, or

(2) engaged in any activity resulting,

or which may result, in the disposal or

management of solid waste or hazardous

waste shall be subject to, and comply

with, all Federal, State, interstate,

and local requirements, both substantive

and procedural (including any

requirement for permits or reporting or

any provisions or injunctive relief and

such sanctions as may be imposed by a

court to enforce such relief),

respecting control and abatement of

solid waste or hazardous waste disposal

in the same manner, and to the same

extent, as any person is subject to such

requirements, including the payment of

reasonable service charges. Neither the

United States, nor any agent, employee,

or officer thereof, shall be immune or

exempt from any process or sanction of

any State or Federal Court with respect

to tne enforcement of any such

injunctive relief.

* * %* [One-year renewable exemptions

from requirements if in the paramount

interest of United States, requirement

of annual report to Congress on

exemptions].

xxXXV

TII. PROPOSED RCRA AMENDMENT _

H.R. 1056

{pertinent part only]

101ist Congress

lst Session

IN THE SENATE OF THE UNITED STATES

July 20 (legislative day, January 3),

1989

Received; read twice and referred to the

Committee on Environment and Public

Works

AN ACT

To amend the Solid Waste Disposal Act to

Clarify provisions concerning the

application of certain requirements

and sanctions to Federal

facilities.

1 Be it enacted by the Senate and

House of Representa

— . the United stat 7 ’

__in Congress assembled,

3 Section 1. Short Title.

xxxVi

This Act may be cited as the

"Federal Facilities Com-

pliance Act of 1989".

Sec.2. Application of Certain

Provisions to Federal

Facilities.

(a) IN GENERAL.--Section 6001 of

the Solid Waste

Disposal Act (42 U.S.C. 6961) is

amended--

(1) by inserting "(a) IN GENERAL.

--" after

"6001.";

(2) in the first sentence, by

inserting "and man-

agement" before "in the same

manner";

(3) by inserting after the first

sentence the follow-

ing: "The Federal, State,

xxxvii

10

11

12

13

14

15

16

interstate, and local substan-

tive and procedural requirements

referred to in this ‘

subsection include, but are not

limited to, all adminis-

trative orders and all civil and

administrative penalties

and fines."; and

(4) by inserting after the second

sentence the fol-

lowing: "For purposes of enforcing

any such substan-

tive or procedural requirement

(including, but not limit-

ed to, any injunctive relief,

administrative order, or

civil or administrative penalty or

fine) against any such

department, agency, or

instrumentality, the United

xXxXxxViii

OE a CMRI: i ne ee bl rae te ee ec

17

18

19

20

21

22

23

24

25

States hereby expressly waives any

immunity other-

wise applicable to the United States.

No agent, em-

ployee, or officer of the United

States shall be person-

ally liable for any civil penalty

under any Federal or

State solid or hazardous waste law

with respect to any

act or omission within the scope of

his official duties.

An agent, employee, or officer of

the United States

shall be subject to any criminal

sanction (including, but

not limited to, any fine or

imprisonment) under any

Federal or State solid or hazardous

waste law, but no

xxxix

ee ee ee ee

a oa oo ee =

ee eres -

2 department, agency, or

instrumentality of the execu-

3 tive, legislative, or judicial branch

of the Federal Gov-

4 ernment shall be subject to any such

sanction.".

- * ”

7 SEC. 3. DEFINITION.

8 (a) PERSON.--Subtitle F of the

Solid Waste Disposal

9 Act is amended by adding at the end

the following:

10 "SEC. 6005. DEFINITION OF PERSON.

11 "For purposes of this Act, the term

‘person’ wherever

12 used in this Act, shall be treated as

including each depart-

13 ment, agency, and instrumentality of

the United States."

14 (b) TABLE OF CONTENTS.--The table

x1

of contents for

15 such subtitle F is amended by adding

the following new item

16 at the end:

"Sec. 6005. Definition of person.".

* * i

xli