Petition for Writ of Certiorari — Elias v. United States

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p>), Supreme Coun, U.S.

@) FILED

911502 apr -4 2009

No. ___OWI@E OF THE Geax

In The

Supreme Court of the United States

ALLAN ELIAS,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN M. Cotvin

Counsel of Record

Darre__ D. HALLETT

Scott A. SCHUMACHER

CuHicoine & Ha ttetrt, PS.

1011 Western Avenue, Suite 803

Seattle, WA 98104

(206) 223-0800

E-mail to: jcolvin@chicoine-hallett.com

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the District Court lacked jurisdiction

over the Resource Conservation and Recovery Act

(RCRA) criminal charges because the federal RCRA laws

had been replaced and supplanted by Idaho’s own haz-

ardous waste laws, pursuant to 42 U.S.C. § 6926(b)?

2. Whether the Government must prove that a sam-

ple from a large body of material is representative of the

entire body in order to prove that a characteristic waste is

a hazardous waste, subject to RCRA regulation?

3. Whether the Government’s departure from a

longstanding and consistently applied administrative

practice, which would have determined that the material

at issue was not a hazardous waste, violates the Constitu-

tional fair notice requirement?

4. Where the defendant has shown jury tampering

to have occurred during trial, is it the Government's

burden to show no juror prejudice, or is it the defendant's

burden to show actual juror prejudice?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... <. ..siscennseee en i

TABLE OF CONTENTS. :...+<. 44scsc ee ii

TABLE OF AUTHMORITIOS ...... 4,450.00 \

CASES. «.... 5 «:0:3:0 5 a ineencasn pepe ee v

STATUTES ... <<< << ua cape ee Vii

REGULATIONS. ... «<< ssi daa dees Viii

OTHER AUTHORISES. ......5 ee ix

I. PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CORCOUMT ..icccceuaseceuss 1

li. OPINIONS BELOW ....:..1.555e 1

Til. JURISDICTION. ....;...95000 1

IV. STATUTES AND REGULATIONS INVOLVED... 2

V. STATEMENT OF THE CASE.......:......... 2

A. RELEVANT FACTS... .2:.seesessseueweae 2

B. PROCEEDINGS IN THE DISTRICT

COURT oo 0:5 «is.0 ae are +

C. PROCEEDINGS IN THE NINTH

CTRUED aaa acu A en 8

VI. REASONS FOR GRANTING THE WRIT..... 9

A. This Court Should Resolve The Issue As

To Whether There Is Federal Jurisdiction

Over Violations Of State Permitting

Requirements After State Authorization

Pursuant to 42 U.S.C. § 6926(b) ......... 9

A ce ON ee tg

ili

TABLE OF CONTENTS - Continued

Page

1. The Statutes Charged In This Case Are

Predicated On Permitting Violations

“Under This [RCRA] Subchapter.”

Because Federal Law Was Supplanted

Pursuant To § 6926, There Could Be

No Violation Of Permitting Require-

ments “Under This [RCRA] Subchap-

ee PS vn Waa ee'saesecon dues

2. State Authorized Programs Do Not

“Arise Under Federal Law,” Nor Are

They Enacted Pursuant To The Delega-

tion Of Federal Authority. Disposing Of

Waste Without An Idaho Permit Does

Not Amount To A Violation “Under This

[Federal] Subchapter [III]” For Purposes

Of § 6928(d)(2)(A)...............00...

The Court Should Accept Review To

Determine The Scope Of The Govern-

ment’s Requirement To Prove “Represen-

tativeness” In Civil And Criminal

Environmental Cases ....................

The Supreme Court Should Review This

Case To Determine To What Extent An

Agency’s Departure From Past Practices

Violates The Fair Notice Requirement... .

1. The Due Process Clause Requires “Fair

Notice” To Be Measured By Objective

ce STA

2. Because Material That Passed The

SW-846 Test For Cyanide Was Consis-

tently Treated By The EPA As Non-

Hazardous, The Government Cannot

Prosecute Elias For Storage Or Dis-

posal Of Material That Meets That

MP TUNG Gin 4ccbace sc sekcancac..

TABLE OF CONTENTS - Continued

Page

D. The Court Should Accept Review To

Determine Whether, When Jury Tamper-

ing Is Found To Have Occurred, It Is The

Government’s Burden To Show No Rea-

sonable Possibility Of Prejudice, Or

Whether It Is The Defendant’s Burden To

Establish Prejudice...................... 26

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TABLE OF AUTHORITIES

Page

CASES

Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th

Cir. 2001), cert. denied, January 22, 2002........... 10

City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp.

POR COaA. GI FR a bes kate cca kiecaeeeaseseians 13

Clorox Co. v. Chromium Corp., 158 F.R.D. 120 (N.D.

Be SOD s 600d csnkeaacvacessplemeciae eee 12

Commissioner v. Keystone Consol. Industries, Inc.,

Soe Wi Roe CROs i hecccdcsdeeenek te ase 14

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.

1991), rev'd in part on other grounds, 505 U.S. 557

(EPG) iio ss.wdnn due ededg Vek ewe eua une eeee Rete ee 12

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

WD. S79 COPA as cncvenstdbaanesaneeseonar eens 18

Department of Energy v. Ohio, 503 U.S. 607 (1992)

WUTTITOTSTT ET Ce ee I er te errr 10, 14, 15

General Electric Company v. EPA, 53 F.3d 1324 (D.C.

CO FOR 6 os xh 0dcceeeenay baweune een eee 23

Glazer v. American Ecology Environmental Services

Corp., 894 F. Supp. 1029 (E.D. Tex. 1995).......... 13

Harmon Industries, Inc. v. Browner, 191 F.3d 894

Gee Oe Sa se keeccasiniease iene 11

Harmon Industries, Inc. v. Browner, 19 F. Supp.2d

ae. CUCEP: ROR. SOD). cs ona 0 sieges deena 12

In re Electric Services Co. 1 E.A.D. 947 (Env.App.Bd.

pe EE EP POE ETS TOR I Per. ne ee ah, oa

In the Matter of Hallar Enterprises, Inc., 1999 WL

eh re yr prin Tar ey e Font, 20

TABLE OF AUTHORITIES —- Continued

Manus River Preservation Committee v. EPA, 541

Fae GOP COG. Ga BOGE ce cccvecsvccesacdsvasunss

Meehan v. Macy, 392 F.2d 822 (D.C. Cir. 1968) ....

Orange Environment, Inc. v. County of Orange, 860 F.

Supp. 1008 (S.D. N.Y. 1994)... .cccccesccccccccs

Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984) ..

Papachristou v. Jacksonville, 405 U.S. 156 (1972)....

Printz v. United States, 521 U.S. 898 (1997)........

Remmer v. United States, 347 U.S. 227 (1954)...7, 26, 27

Renaud v. Martin Marietta Corp., 972 F.2d 304 (10th

Cie. BOGED ccccccccsucessseneeeudeee eee

Rollins Environmental Services v. EPA, 937 F.2d 649

(plemle | errr yee

Sierra Club v. Chemical Handling Corp, 824 F. Supp.

i coe S. MrT eS

Smith v. Phillips, 455 U.S. 209 (1982) .............

State of California v. U.S. Dep't of the Navy, 845 F.2d

yer MR, Koa Bo Per

Stillwater Mining Co. v. F.M.S.H.R.C., 142 F.3d 1179

(Sth, Che. BODG c oo scnccsscuvscascusasaasneeeeee

Thompson v. Thomas, 680 F. Supp. 1 (D.D.C. 1987) ....

United States v. Cheek, 94 F.3d 136 (4th Cir. 1996) ....

United States v. Dutkel, 192 F.3d 893 (9th Cir. 1998) ....

United States v. Elias, 269 F.3d 1003 (9th Cir. 2001)

0 0000006068665 606065 bus ae 1, 8, 9, 12, 19

Vii

TABLE OF AUTHORITIES - Continued

Page

United States v. Ferguson, 486 F.2d 968 (6th Cir.

Ps dasaddathsscpbkebed eer ddediewedbcddssdves gs 27

United States v. Garber, 607 F.2d 92 (5th Cir. 1979) .... 24

United States v. Gomes, 177 F.3d 76 (1st Cir. 1999) .... 26

United States v. Harriss, 347 U.S. 612 (1954).......... 23

United States v. laconetti, 406 F. Supp. 554 (E.D.

Pee CE ck Ub chueyusSaddbane ba bbe eka adui aed eee 28

United States v. Kozminski, 487 U.S. 931 (1987)....... 23

United States v. MacDonald & Watson Waste Oil Co.,

Faw Wem OW CRUG Cae TOPE) ove cccccccccccccnsceaves 15

United States v. Olano, 507 U.S. 725 (1993)........... 26

United States v. Power Engineering, et al., 10th Cir.

ey pn ee ee 12

United States v. Sylvester, 143 F.3d 923 (5th Cir.

MS 6UNGR Sakon de ek ain cea ke cde oekd deere ikke: 26

United States v. WCI Steel, 72 F. Supp.2d 810 (N.D.

RN SE ps sempre DARE APG tee ok ae 20

United States v. Williams-Davis, 90 F.3d 490 (D.C.

NAR pe aeh Gayheart re node Pee rE 26

Washington v. EPA, 752 F.2d 1465 (9th Cir. 1985)..... 11

Wyckoff Company v. EPA, 796 F.2d 1197 (9th Cir.

SLUR Guu ab dee edeknu ke duuus sedan esdekeerieswer 11

STATUTES

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a cae bee eas 2

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Vill

TABLE OF AUTHORITIES - Continued

Page

Title 42, Chapter 82, Subchapter II] .............. 13, 14

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Oe i, OD hi vec rvcdersciascevenes 6, 7, 8, 13, 17

ee PTET FET PCLT OTT OT TTT PT Ce Tee TTT 11

Ce ER B Gr nbn nd ob 0b hn sFetctessenacnss 12

Resource Conservation and Recovery Act ....... passim

FMP TOET TET TUTE TRT TOT OCTET TC OTTTT 15

Surface Mining Control and Reclamation Act........ 10

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REGULATIONS

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TABLE OF AUTHORITIES - Continued

Page

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a ke ee 2, 17, 18

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MO Co © AGL QOS). occ cccacciescsesseeceass 17, 18

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SD CBR. & Z72BBMONA) oo ccccccincccccscnscsecess 4, 11

i ee occ lone ckaeadas usb addawawscsdeens 21

OTHER AUTHORITIES

cS A 6

45 FR 33109-33110 (May 19, 1980)................... 25

Adler, Jonathan “The Green Aspects of Printz: The

Revival of Federalism and Its Implications for

Environmental Law,” 6 Geo Mason L. Rev. 573

2 PPS er PE reer ee 9

H.R. Rep. No. 94-1491 (1976), reprinted in 1976

I MEME oon nea ne dee sunenvndccecdacicns 10

“Test Methods for Evaluating Solid Waste, Physi-

cal/Chemical Methods,” EPA Publication

Co RED PEO re eer TT eT Ore eer rTee 3

rete: PERO RAEI SrernaE enero enmenes .

. OA TN TI ane get

I. PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Petitioner Allan Elias respectfully requests that this

Court issue a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit.

Il. OPINIONS BELOW

Respondent United States charged Petitioner Allan

Elias with various environmental crimes stemming from

an industrial accident in which a worker was seriously

injured. The district court filed an initial opinion relating

to Petitioner’s pre-trial “fair notice” arguments on March

18, 1999. App:80. After the trial, but before sentencing,

Petitioner filed a motion to dismiss based on lack of

jurisdiction. The district court initially granted the

motion with respect to certain counts in an opinion dated

March 16, 2000 (App:58), but subsequently modified that

opinion in an opinion dated April 26, 2000 (App:70). The

Ninth Circuit affirmed the district court decision (save for

one issue not relevant here) in an opinion reported at 269

F.3d 1003 (9th Cir. 2001). (App:1).

III. JURISDICTION

While jurisdiction is one of the subjects of this Peti-

tion, the district court exercised jurisdiction over the mat-

ter as a federal criminal case pursuant to 18 U.S.C. § 3231.

The district court entered its judgment on May 5, 2000,

and Petitioner filed a notice of appeal the same day. The

Ninth Circuit, which had jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742, entered its decision on

October 23, 2001. Petitioner’s timely filed Petition for

Rehearing was denied on January 4, 2002. (App:127). This

Petition is timely filed, and this Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

IV. STATUTES AND REGULATIONS INVOLVED

Sections 6926 and 6928 of Title 42 of the United States

Code are set forth in their entireties at App:128 and

App:133, respectively. The relevant portions of sections

260.10 and 261.23 of Title 40 of the Code of Federal

Regulations are set out at App:141 and App:142, respec-

tively.

V. STATEMENT OF THE CASE

A. RELEVANT FACTS.

Elias operated Evergreen Resources, Inc. (“ERI”), a

small fertilizer manufacturing operation in rural Idaho.

On August 25, 1996, he asked two ERI employees (Darren

Weaver and Scott Dominguez) to clean out a 25,000-

gallon storage tank and empty its contents onto the

ground. On August 26, 1996, Weaver and Dominguez

entered the tank and began cleaning it, but left after

approximately 30-45 minutes. The next morning, Elias

directed that the employees complete the cleaning of the

tank. After an hour of cleaning, Dominguez hit a pocket

of cyanide, cyanide gas was emitted, and he collapsed.

Weaver escaped without suffering any permanent inju-

ries. Dominguez was rescued from the tank and airlifted

etiihteetinaetatied siete CE de eee ee eee

ee Ene ae

Sebisdleds: bat

to the hospital. He regained consciousness, but had suf-

fered serious brain damage.

Before 1990, the storage tank had been used as a

cyanide leaching vat at Elias’s former business, AEI, Inc.

AEI had added sodium cyanide to the tank to extract

silver from mineral-bearing materials. At that time, no

RCRA permit was required. No sodium cyanide was

placed in the tank after 1989.

In the early 1990s, Elias brought the tank to ERI,

where it was used as an overflow tank. Substantial quan-

tities of phosphoric acid, as well as other substances used

in the manufacture of fertilizer, were placed in the tank

during its tenure at ERI.

After the accident, federal and State investigators

arrived on the scene and took samples of material on the

ground and material in the tank from areas within a

three-foot radius of a small hole in the tank. (Tr.

3002-3003.) No effort was made to take representative

samples from other sections of the 36-foot tank. (Tr.

3020-3026.) .

The samples were sent to a federal government lab

for testing. The lab tested the material for cyanide, utiliz-

ing the EPA’s published test for determining whether

material contained hazardous levels of cyanide.! The

SW-846 test showed that the material extracted from the

tank was not a hazardous waste, with results far below

1 The test for cyanide reactivity set out in 1996 and prior

versions of “Test Methods for Evaluating Solid Waste, Physical/

Chemical Methods,” EPA Publication SW-846 (“SW-846”).

the published threshold. (Tr: 3403-3409.)2 A second round

of testing at another government laboratory yielded simi-

lar results. (Tr:3408-3409.)

B. PROCEEDINGS IN THE DISTRICT COURT.

In 1996, Idaho was an authorized state, with EPA

approval to establish, administer and enforce its own

hazardous waste laws under 42 U.S.C. § 6926(b). Idaho’s

hazardous waste law included, at the insistence of the

EPA, criminal enforcement provisions that were accept-

able to the EPA. 40 C.F.R. § 272.651(b)(2). Nevertheless, in

this case, the government charged Elias with three federal

environmental crimes: two counts of storage or disposal

of a hazardous waste without a permit, pursuant to 42

U.S.C. § 6928(d)(2), and one count of “knowing endanger-

ment,” pursuant to 42 U.S.C. § 6928(d)(2). (Tr:697-726.)

While these counts carry maximum penalties of five and

fifteen years, respectively, under Idaho law, the maximum

punishment for environmental crimes is one year. Idaho

Code § 39-4415.

To prove at trial that the material was legally hazard-

ous, the Government abandoned the SW-846 test pub-

lished and approved by the EPA. Instead, its expert, Dr.

Lowry, used a new test to establish that the material

2 In fact, the results of the Government’s SW-846 tests

indicated that the material contained on average less than 2 ppm

of releasable cyanide, while the published threshold for cyanide

is 250 ppm.

contained releasable cyanide slightly in excess of the

regulatory threshold of 250 ppm.3

Prior to trial, Elias challenged the use of the new test

on fair notice and vagueness grounds. However, the Gov-

ernment convinced the District Court that the old, EPA-

approved test was only one possible method for determin-

ing whether the waste was hazardous. (CR:105.)

To establish that the material was legally hazardous,

it was necessary to establish that a “representative sam-

ple” of the material was hazardous. The test samples

consisted of two to three grams, taken from the ground

adjacent to a small hole in the tank, and from material

within the tank that could be reached by extending a

device approximately three feet through the small hole.

The EPA made no attempt to take representative samples

of the entire two to three tons of material that had accu-

mulated at the bottom of the tank (which formed the

basis for the storage charge), or from the substantial

amount of material outside the tank (which formed the

basis for the disposal charge). Moreover, in his testimony,

Lowry admitted that material like that in the 36-foot long,

25,000-gallon storage tank is not homogeneous.

(Tr:3002-3003, 3020-3026.)

Lowry’s test results themselves illustrated the non-

representative nature of the samples. The pH of sample

tested by Lowry was 2.5 to 3, while the pH of the material

° In 1993, the Government's expert witness, Dr. Lowry, an

EPA scientist, had attempted to convince the EPA that the

SW-846 test should be replaced by a purportedly superior test

(his own). (Tr:3409.) Nevertheless, when SW-846 was reissued in

1996, it contained the old SW-846 test. (Tr:3410.)

taken from the clothes of employees in the tank was 8.

(Tr:1371, 2981.) These widely disparate pH levels indicate

that the material Lowry tested may have differed dramat-

ically from material in other parts of the tank.

Lowry’s position at trial was not that the samples

were representative, but rather that, in his opinion, there

was no requirement that the samples be representative of

the entirety of the material in the tank:

Well, representative doesn’t matter, it’s relative

to the analyte that you are looking at and the

circumstance that you are talking about. A sam-

ple that may be representative for one purpose

may not be representative for another purpose.

This in an acute exposure, any amount, most

any amount of waste in there is going to cause

problem in a tank. (Tr:3010.)

The Government likewise argued that even if only 1

sample out of 100 showed that a material was hazardous

and the other 99 showed it was not, the material would

still be legally hazardous. (Tr:3058-3059.) Thus, in the

Government's view, if any portion, not just a representa-

tive sample, of the material showed unacceptable levels

of cyanide, the entirety was a “hazardous waste.”

Elias made a Fed.R.Crim.P. 29 motion, based in part

on the failure of the Government to prove that a represen-

tative sample of the material was a reactive cyanide

waste. (Tr:3597-3633.) The District Court denied that

motion. (Tr:4219-4220.)

The jury convicted Elias on all counts.

After trial, Elias moved to dismiss the 42 U.S.C.

§ 6928(d)(2) and (e) counts for lack of jurisdiction because

the federal Resource Conservation and Recovery Act

(RCRA) provisions were supplanted by State law.

The District Court initially issued an opinion agree-

ing that the “in lieu of” language of § 6926(b) meant that

Idaho law supplanted federal RCRA provisions, but only

those that had a State-law counterpart. It therefore ruled

that the two counts of the Indictment (Counts II and III)

that charged violations of 42 U.S.C. § 6928(d)(2) were

improper, but ruled that the 42 U.S.C. § 6928(e) count was

proper because there was no Idaho State analogue.

(CR:261.) On reconsideration of its ruling, the court held

that Elias had actually been convicted of violations of

Idaho State criminal statutes, but that EPA regulations

had conferred federal jurisdiction over Idaho law viola-

tions. (CR:276 at 7.)

Approximately one month after the trial, the jury

foreman, Boyd Greenlee, told the prosecutors that during

the trial, he and other jurors were told by Juror Janet

Scott that Elias approached her and said, “What will it

take to buy you off?” (CR:231 at 2.) (6/23/99 Tr:5).

Because one of the jurors believed during the course

of the trial that Elias had attempted to bribe another

juror, Elias moved for a new trial. The district court

conducted a Remmer hearing, taking testimony from most

of the jurors, and found that (1) Juror Scott had not told

the other jurors that Elias had attempted to bribe her; (2)

“Elias has made out a prima facie case of jury tampering

and is entitled to a presumption that he was prejudiced

thereby;” (3) “the Court cannot find that Greenlee treated

the incident as a joke and ignored it in his deliberations;”

and (4) “It is also difficult to understand how a trial could

pass muster under the Sixth Amendment when one juror

perceived that the defendant tampered with the jury.”

(CR:231 at 1, 10, CR:254 at 6.)

Rather than ordering a new trial, the court ordered a

second hearing, at which not only Greenlee but a second

juror claimed to have heard about the attempted bribe.

The District Court found that the two jurors had misun-

derstood Juror Scott’s report of Elias’s greeting to her as a

suggestion of bribery, but had understood the whole mat-

ter to be in jest. The District Court denied Elias’ motion

for new trial. (CR:260.)

Elias was sentenced to 204 months in prison.

(App:45).

C. PROCEEDINGS IN THE NINTH CIRCUIT.

The Ninth Circuit Court of Appeals affirmed the

District Court. With respect to the jurisdictional argu-

ment, the Ninth Circuit held that the criminal penalties of

§ 6928(d)(2) and (e) continue to be applicable even after

the Idaho State program was authorized by the EPA, and

administered and enforced by the State of Idaho, pur-

suant to § 6926(b). 269 F.3d at 1009-1013.

The Ninth Circuit rejected Elias’ “fair notice” argu-

ment, which challenged the Government's decision to

abandon the SW-846 test to prove legal hazardousness, as

well as Elias’s argument that the government had failed

to prove that a “representative sample” of the entire

material being stored and/or disposed of was legally

hazardous. 269 F.3d at 1013-1017.

The Ninth Circuit affirmed the District Court’s denial

of Elias’ motion for new trial. The court of appeals held

that “the district court’s conclusion that Elias had not

borne his burden of showing juror bias appears correct.”

269 F.3d at 1021 (emphasis supplied, footnote omitted.)

Thus, the Ninth Circuit held that the defendant has the

burden of showing that jurors were prejudiced against

him as a result of the perceived bribery attempt. How-

ever, the Court of Appeals remained mystified as to what

actually happened: “By far, the most difficult thing to

understand is how, if Scott merely said that Elias had

greeted her, two people came to believe he had suggested

a bribe, jokingly or otherwise. There is no satisfactory

explanation.” 269 F.3d at 1020-1021.

VI. REASONS FOR GRANTING THE WRIT

A. This Court Should Resolve The Issue As To

Whether There Is Federal Jurisdiction Over

Violations Of State Permitting Requirements

After State Authorization Pursuant to 42 U.S.C.

§ 6926(b).

The Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. § 6901 et seq., is one of a group of

federal statutes that establish complimentary federal and

State roles in environmental protection, often referred to

as “cooperative federalism.”4 While RCRA establishes

standards for the handling and disposal of solid waste, an

important feature of this Act is that authority over the

* See Adler, Jonathan, “The Green Aspects of Printz: The

Revival of Federalism and Its Implications for Environmental

Law,” 6 Geo Mason L. Rev. 573, 575-582 (1998).

administration of the standards is designed to devolve to

the States. States may opt out of the federal RCRA pro-

gram, provided that (1) the State adopts laws that are at

least “equivalent” to the federal law; and (2) the program

is approved by the EPA. 42 U.S.C. § 6926(b). Section 6926

provides that a State that meets these conditions may

elect to establish, administer, and enforce its own hazard-

ous waste management law “in lieu of the federal pro-

gram under this subchapter.” 42 U.S.C. § 6926(b).5 The

Supreme Court has previously interpreted this “in lieu

of” language to mean that federal RCRA statutes were

“subject to displacement by an adequate state counter-

part,” and that an authorized State hazardous waste man-

agement program consists of “state laws enacted to

supplant those federal statutes [RCRA].” Department of

Energy v. Ohio, 503 U.S. 607, 611-612 (1992).¢

To obtain EPA approval, an authorized program must

include not only substantive rules, but it must also

include the authority to seek civil and criminal penalties.

> The legislative history of RCRA confirms that it was

Congress’ intent that States be afforded the opportunity to

handle enforcement of waste management rules. “(T]he States

are to have primary enforcement authority and if at any time a

State wishes to take over the hazardous waste program it is

permitted to do so, provided that the State laws meet the Federal

minimum requirements for both administering and enforcing the

law.” (Emphasis supplied.) H.R. Rep. No. 94-1491 (1976),

reprinted in 1976 U.S.C.C.A.N. 6238, 6262

Cir. 2001), cert. denied, January 22, 2002, (analysis of the contours

of the federal/state partnership created under the Surface

Mining Control and Reclamation Act, which contains analogous

State primacy provisions).

40 C.F.R. § 271.16. After the EPA approved Idaho's haz-

ardous waste management program in 1990, Idaho oper-

ated its program, including the civil and criminal

enforcement provisions (See 40 C.F.R. § 272.651(b)(2)), “in

lieu of the Federal program under this Subchap-

ter . . . and to issue and enforce permits .. . .”7

The Ninth Circuit’s reading of § 6926(b) to provide

for a continued general federal enforcement role over

state permitting violations is squarely contrary to the

Eighth Circuit’s opinion in Harmon Industries, Inc. v.

Browner, 191 F.3d 894 (8th Cir. 1999) (App:145), which

held:

While the EPA is correct that the “in lieu of”

language refers to the program itself, the admin-

istration and enforcement of the program are

inexorably intertwined.

The RCRA gives authority to the states to create

and implement their own hazardous waste pro-

gram. The plain “in lieu of” language contained

in the RCRA reveals a congressional intent for

an authorized state program to supplant the

federai hazardous waste program in all respects,

including enforcement.

” Congress provided the federal government with certain

limited powers, even in authorized States, to ensure that such

States meet RCRA’s goals of protecting human health and the

environment. See Washington v. EPA, 752 F.2d 1465, 1466-1467

(9th Cir. 1985) (setting forth limited powers retained by EPA

post-authorization). Also see Wyckoff Company v. EPA, 796 F.2d

1197 (9th Cir. 1986) (42 U.S.C. § 6934, which provides EPA with

emergency oversight powers, survives authorization).

191 F.3d at 899 (App. 152).8 The issue as to the extent of

federal enforcement authority subsequent to State autho-

rization is also currently pending before the Tenth Circuit

in United States v. Power Engineering, et al., Docket No.

01-1217 (oral argument held March 20, 2002).

The Ninth Circuit construed the phrase “without a

permit under this subchapter” (an element of the offense in

this case) to include both federal permits and state per-

mits issued under § 6926(b) state authorized programs.

269 F.3d at 1012. This is contrary to the Second Circuit's

interpretation of the federal jurisdiction afforded under

virtually identical language in the “citizen suit” provi-

sions of 42 U.S.C. § 6972(a)(1)(A). In Dague v. City of

Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991), rev’d in part

on other grounds, 505 U.S. 557 (1992), the Second Circuit

considered whether permitting requirements under

authorized State programs constituted requirements

effective “pursuant to this chapter” for purposes of the

federal jurisdiction afforded under § 6972(a)(1)(A), and

concluded that no federal jurisdiction was available

under § 6972(a)(1)(A) because the programs adopted by

the States were not “pursuant to this [federal RCRA]

chapter.”? The Second Circuit held the phrase “pursuant

® The District Court in Harmon noted that the “concept of

co-existing enforcement powers is inconsistent with EPA’s

delegation of authority and legislative history.” Harmon

Industries, Inc. v. Browner, 19 F. Supp.2d 988, 995 (W.D. Mo.

1998).

% While most courts have held that there is no federal

jurisdiction over citizen suits after state authorization, some

courts have held that federal jurisdiction continues. Compare

Thompson v. Thomas, 680 F. Supp. 1, 3 (D.D.C. 1987); Clorox Co. v.

to this chapter” excludes state permitting programs,

while the Ninth Circuit ruled that the virtually identical

phrase “under this subchapter” includes State permitting

programs.

Supreme Court review of this issue is also important

because it affects a vast number of businesses that pro-

duce hazardous waste, which are potentially subject to

federal criminal or civil penalties.

1. The Statutes Charged In This Case Are

Predicated On Permitting Violations

“Under This [RCRA] Subchapter.” Because

Federal Law Was Supplanted Pursuant To

§ 6926, There Could Be No Violation Of

Permitting Requirements “Under This

[RCRA] Subchapter” In Idaho.

With respect to which laws must be enforced, and

who is to enforce those laws, § 6926 provides that, after

EPA approval of a State plan, a State is authorized to

administer and enforce the State’s hazardous waste man-

agement law, in lieu of the “federal program under this

subchapter.” The “subchapter” referred to is subchapter III

of Chapter 82, which includes not only the substantive

provisions, but also § 6928(d)(2) and (e), the violations

charged in this case.

Chromium Corp., 158 F.R.D. 120, 123-124 (N.D. III. 1994); Orange

Environment, Inc. v. County of Orange, 860 F. Supp. 1003, 1020

(S.D. N.Y. 1994); City of Heath, Ohio v. Ashland Oil, Inc., 834

F. Supp. 971, 978-979 (S.D. Ohio 1993) with Sierra Club v.

Chemical Handling Corp, 824 F. Supp. 195 (D. Colo. 1993) and

Glazer v. American Ecology Environmental Services Corp., 894

F. Supp. 1029, 1039 (E.D. Tex. 1995).

That § 6928(d)(2) is applicable only to violations of

permitting requirements under federal.law and regula-

tions is confirmed by examining the language of the

criminal statute in juxtaposition with the language of the

State opt-out provision (§ 6926). Section 6928(d)(2)(A)

makes it a crime to dispose of hazardous waste “without

a permit under this subchapter,” and § 6926(b) provides

that approved State programs, including the State’s

enforcement provisions, operate in lieu of the federal

program “under this subchapter.” Because Congress used

an identical phrase (“under this subchapter”) in two stat-

utes in the same act, that phrase must be afforded the

Same meaning in both places. See Commissioner v. Keystone

Consol. Industries, Inc., 508 U.S. 152, 159 (1993). Just as the

remainder of the laws and regulations that constitute the

federal program under Subchapter III are supplanted by

State “equivalents” under § 6926(b), the federal permit-

ting crime at issue here (§ 6928(d)(2)(A)), keyed to viola-

tions of Subchapter III of RCRA, likewise, has no

applicability if a State program, including required

enforcement provisions, has supplanted the federal Sub-

chapter III program.

2. State Authorized Programs Do Not “Arise

Under Federal Law,” Nor Are They Enacted

Pursuant To The Delegation Of Federal

Authority. Disposing Of Waste Without An

Idaho Permit Does Not Amount To A Viola-

tion “Under This [Federal] Subchapter [III]”

For Purposes Of § 6928(d)(2)(A).

In Department of Energy v. Ohio, 503 U.S. 607, 624

(1992) (“DOE”), this Court ruled that penalties imposed

ee ee ee eee eS

pursuant to State environmental statutes approved by the

EPA and supplanting federal law, were not penalties

“arising under federal law.” DOE, 503 U.S. at 624-625.10

The Court noted that even when a State’s exercise of

power is expressly enabled by federal law, the rights and

liabilities created thereunder by State law do not “arise

under federal law.” DOE, 503 U.S. at 625-626.

Section 6928(d)(2)(A) proscribes disposal of hazard-

ous waste “without a permit under this subchapter.” In

this case, any permitting requirement was imposed by

Idaho law. As DOE teaches, Idaho substantive environ-

mental law does not “arise under” federal RCRA law.

Idaho permitting requirements are not imposed “under

this [federal] subchapter” for purposes of § 6928(d)(2)(A).

Thus, disposal of waste without a permit required by

Idaho law is not a federal crime under § 6928(d)(2)(A).11

If the State permitting programs were programs

“under the [federal] subchapter,” they would presumably

be programs enacted pursuant to delegated authority.

10 Had the Ohio State “Clean Water Act” penalties arisen

“under federal law,” the federal agencies would have been

obligated to pay them. The CWA and RCRA have similar state

authorization provisions. DOE, 503 U.S. at 611.

11 In a case decided prior to DOE, the First Circuit

concluded that a State program was a program “under this

[federal] subchapter.” United States v. MacDonald & Watson

Waste Oil Co., 933 F.2d 35, 44-45 (1st Cir. 1991). This decision is

contrary to the teaching of DOE, which holds that penalties

imposed by State programs are not penalties “arising under”

federal RCRA law. Moreover, MacDonald failed to address the

“in lieu of” language, and its effect upon § 6928 enforcement

authority.

However, all of the courts to address the question of

whether RCRA has “delegated” rulemaking authority to

the States have concluded that “State permit programs

are ‘not a delegation of Federal authority,’ but instead are

independent State laws which ‘function . . . in lieu of the

federal program.’ ” State of California v. U.S. Dep't of the

Navy, 845 F.2d 222, 225 (9th Cir. 1988). Indeed, such a

delegation would violate fundamental principles of the

Constitutional framework. See e.g., Manus River Preserva-

tion Committee v. EPA, 541 F.2d 899, 903 (2d Cir. 1976) (“By

the contemplation of minimum federal standards [of the

Clean Water Act], however, Congress did not intend to

relegate the States to the status of enforcement agents for

the executive branch of the federal government.”)}2

Had this case been brought under Idaho law, Elias

would have faced a maximum sentence of one year for

12 If authorized States were merely established and

enforcing their idiosyncratic versions of federal law pursuant to

a Congressional “delegation” of authority, such a system would

be an impermissible delegation of federal executive power to

the States:

The Constitution does not leave to speculation who is

to administer the laws enacted by Congress. . . . The

insistence of the Framers upon unity in the Federal

Executive — to insure both vigor and accountability —

is well known. That unity would be shattered, and the

power of the President subject to reduction, if

Congress could act as effectively without the

President as with him, by simply requiring state

officers to execute its laws.

Printz v. United States, 521 U.S. 898, 922-923 (1997). If the State

programs were viewed as creatures of federal law, subject to

enforcement by the States, as well as the EPA and the DOJ, the

unity of the Federal Executive would be fragmented.

each violation, rather than the five and fifteen year max-

ima of § 6928. Idaho Code § 39-4415. If § 6928(d)(2) and

(e) continue to exist in a State with an authorized State

program, prosecutors would be free to charge violations

of the same substantive State law at the-State and/or

federal level. That is, nothing would prevent federal

authorities from prosecuting a RCRA offense following a

State acquittal or conviction, and vice-versa. Congress

cannot have intended that the same conduct, in violation

of the same substantive law, potentially gives rise to two

independent prosecutions with disparate penalties.

B. The Court Should Accept Review To Determine

The Scope Of The Government's Requirement

To Prove “Representativeness” In Civil And

Criminal Environmental Cases.

The Ninth Circuit’s holding that no proof of repre-

sentativeness is required in cases of disposal violations is

a radical departure from the standard that has been

applied by the EPA, industry, and the courts with respect

to all “characteristic wastes” for more than 20 years.}3

Prior cases and rulings have consistently required proof

that a sample taken from a larger volume of materic!

adequately represents the average properties of the larsye

13 The regulations provide that solid wastes will be

“hazardous waste” if either (1) the waste contains a threshold

amount of a specific “listed” chemical, or (2) the waste exhibits

one of four defined “characteristics” - ignitability, corrosivity,

toxicity and reactivity. 40 C.F.R. §§ 261.3(a)(2); 261.10, 261.20-24.

The term “representative sample” is employed in connection

with all of the “characteristic wastes” identified in § 261.21

through § 261.24.

volume, whether for storage or disposal, and whether

offered by the Government or the regulated party. The

Ninth Cireuit’s ruling exposes regulated industries to

vastly expanded civil and criminal liability. Because there

is an overriding need for national uniformity on this

issue, review by this Court is appropriate.

Pursuant to 40 C.F.R. § 261.23, a waste is a reactive

cyanide waste “if a representative sample of the waste

has any of the following characteristics . . . (5) It is a

cyanide or sulfide bearing waste which, when exposed to

pH conditions between 2 and 12.5, can generate toxic

gases, vapors or fumes in a quantity sufficient to present

a danger to human health or the environment.”

(Emphasis supplied.) The regulations define “representa-

tive sample” to mean “a sample of a universe or whole

(e.g., waste pile, lagoon, ground water) which can be

expected to exhibit the average properties of the uni-

verse or whole.” 40 C.F.R. § 260.10 (emphasis supplied).

The Government did not offer evidence that a “represen-

tative sample” of the material, whether the material in

the tank or that on the ground, was a reactive hazardous

waste under 40 C.F.R. § 261.23(a)(5), thereby failing to

prove an essential element of its case: that a representa-

tive sample of the material was a “hazardous waste.”!4

14 Because no effort was made to obtain a representative

sample, the court abused its discretion by allowing Lowry’s test

results into evidence. These results were irrelevant to the jury’s

inquiry as to whether the material was, on average, a hazardous

cyanide-bearing reactive waste. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993) (expert testimony

admitted only if it “will assist the trier of fact to understand the

evidence or to determine a fact in issue.”).

Noting that there was evidence showing the required

level of cyanide reactivity in one sample, a portion of

which was taken from outside the tank,!5 the Ninth Cir-

cuit reasoned that the Government was not required to

prove that this one sample was “representative” of the

whole body of material inside or outside the tank because

the sample itself, having the requisite level of reactivity,

had been disposed of, constituting a violation. 269 F.3d at

1013-1014.16 The Ninth Circuit further held that there are

two different standards: one if the Government is trying

to prove that a hazardous waste has been disposed of or

stored in violation of the law (where representativeness

need not be proven), and another for waste generators

trying to prove that their waste is not a hazardous waste.

269 F.3d at 1014.

15 The “composite” sample relied upon by the Ninth Circuit

was taken from a three-foot area, within and without the tank,

near a hole at one end of a 25,000-gallon tank, which contained

several tons of heterogeneous material, one or more tons of

which had been removed and was on the ground. While the

Ninth Circuit indicated that “one sample” was taken from

outside the tank, this is incorrect. A portion of the composite

sample tested came from outside the tank, and there is no

indication in the record whether the cyanide was in this portion,

from a portion within the tank, or equally distributed.

16 If the few grams of cyanide-bearing waste tested had

been the only material stored or disposed of, Elias would be

exempt from regulation as a “small-quantity [waste] generator,”

and he could not be prosecuted for storage or disposal of this

limited quantity of material without a permit. 42 U.S.C.

§ 6921(d)(4) and 40 C.F.R. § 261.5. It is only if these samples are

shown to be representative of the larger amounts of material

actually stored or disposed of can the Government demonstrate

an actionable permitting violation.

The Ninth Circuit’s holding is in direct conflict with

the literal language of the regulations, as well as the

holdings of every court to have addressed the issue of

whether “grab” samples constitute sufficient evidence of

regulatory violations. For example, in United States v. WCI

Steel, 72 F. Supp.2d 810, 821 (N.D. Ohio 1999), where the

government argued that there was no need to prove that

samples reflect the average properties of the whole, the

court held:

As to this issue, the United States’ argument

would turn 40 CFR § 261.22 and 40 CFR 260.10

on its head. 40 CFR § 261.22 says corrosivity is

determined based upon a ‘representative sample

of the waste.’ 40 CFR § 260.10 says the sample

must reflect ‘the average properties of the uni-

verse or whole.’ In arguing that this Court disre-

gard the ponds as a whole, the United States

pushes aside its own regulation.

The key issue is what sampling method will

produce a ‘representative sample’ of the ponds,

and whether the methods used here produce a

sufficiently reliable picture of the average prop-

erties of the ponds as a whole.

Likewise, In-the Matter of Hallar Enterprises, Inc., 1999 WL

118257 (EPA 1999), which the Ninth Circuit curiously

cites in support of the proposition that “not every inch of

the tank need be inspected,” 269 F.3d at 1014, the Hallar

court actually held:

Irrespective of whether SW-846 is mandatory or

merely advisory, the necessity for a scientifically

acceptable method of sampling is not thereby

affected. For example, if the waste in the tanks

had become stratified, it is questionable whether

a sample drawn from a single point would be

representative of the contents of the tank.

Accord, Renaud v. Martin Marietta Corp., 972 F.2d 304, 308

(10th Cir. 1992) (“Simply put, no one has any idea

whether this [single] sample is representative of the ‘nor-

mal’ contaminant concentration.”)

As authority for its holding, the Ninth Circuit relied

entirely upon an EPA administrative case, In re Electric

Services Co., 1 E.A.D. 947 (Env.App.Bd. 1985). However,

Electric Services dealt with an uncontrolled discharge of

Polychlorinated Biphenyls (“PCBs”). Unlike characteristic

wastes, with respect to PCBs, the EPA has no burden to

prove that an uncontrolled discharge is representative of

a larger universe or whole. Any uncontrolled discharge of

PCBs would form the basis of a violation. See 40 C.FR.

§ 761.123.

Indeed, Electric Services expressly distinguished cases

where a “representative sample” must be established

from those where a single instance of a contaminant, e.g.

PCBs, establishes a violation:

[W]e use representative samples to show the

quality or condition of a larger body from which

the sample is taken. Thus, if proof of a violation

depends on producing evidence that accurately

describes some quality or condition of the larger

body (for example, its PCB concentration level),

a representative sample is essential, for no infer-

ences about the larger body can be drawn from

a mere grab sample. In the present case, how-

ever, proof of the disposal violations does not

hinge on accurately describing the condition or

quality of some larger body. Instead, it hinges

on proof of an uncontrolled discharge of PCBs.

Under such circumstances, the sample itself is

the uncontrolled discharge, the improper dis-

posal, or, so to speak, the corpus delicti. Id.

(emphasis supplied).

Accordingly, Electric Services provides no support for the

Ninth Circuit’s novel proposition that representativeness

need not be proven in a disposal case.

C. The Supreme Court Should Review This Case

To Determine To What Extent An Agency’s

Departure From Past Practices Violates The Fair

Notice Requirement.

The Ninth Circuit’s complete disregard of the long-

standing and consistently applied testing protocol for

determining cyanide reactivity is squarely contrary to

decisions in the D.C. Circuit, requiring, especially in

cases involving highly regulated industries, that settled

administrative practice be taken into account in deter-

mining whether there was “fair notice” that defendant's

conduct was in violation of the law. The D.C. Circuit has

ruled that what must be considered in the “fair notice”

analysis for both civil and criminal penalties includes not

only the statute and regulations, but also the agency’s

interpretations:.-

‘

If, by reviewing the regulations and other public

statements issued by the agency, a regulated party

acting in good faith would be able to identify,

with “ascertainable certainty,” the standard with

which the agency expects parties to conform,

then the agency has fairly notified a petitioner

of the agency’s interpretation.

General Electric Company v. EPA, 53 F.3d 1324, 1329 (D.C.

Cir. 1995) (“GE”) (emphasis supplied). See also Rollins

Environmental Services v. EPA, 937 F.2d 649, 653 (D.C. Cir.

1991); Meehan v. Macy, 392 F.2d 822, 838-839 (D.C. Cir.

1968) (if an agency affirmatively acquiesces to a given

standard over time, it cannot take action against a person

whose conduct passes the formerly accepted standard).

It is undisputed that, prior to this accident, the

SW-846 test was routinely used by the EPA for all regula-

tory purposes. Supreme Court review is thus needed to

resolve whether and to what extent agency practices must

be taken into account for purposes of “fair notice.”

1. The Due Process Clause Requires “Fair

Notice” To Be Measured By Objective Stan-

dards.

Under the due process clause, a criminal statute that

either “fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the

statute,” United States v. Harriss, 347 U.S. 612, 617 (1954),

or is so indefinite that “it encourages arbitrary and erratic

arrests and convictions,” Papachristou v. Jacksonville, 405

U.S. 156, 162 (1972), is void for vagueness. Where statu-

tory violations are based upon the violation of a regula-

tion, and where the regulation at issue is not sufficiently

clear to warn a party about what conduct is prohibited,

there is no fair notice and the Government may not

impose civil or criminal liability. GE, 53 F.3d at 1328-1329.

The fair notice requirement is determined by objec-

tive standards, United States v. Kozminski, 487 U.S. 931,

949-50 (1987), and the test is not whether the operator

actually had prior notice of a specific prohibition or

requirement, but whether a reasonably prudent person

familiar with the industry would have recognized the

specific prohibition or requirement. Stillwater Mining Co.

v. F.M.S.H.R.C., 142 F.3d 1179, 1182 (9th Cir. 1998). If the

legal standards are unclear, “defendants’ actual intent is

irrelevant.” United States v. Garber, 607 F.2d 92, 98 (5th Cir.

1979).

2. Because Material That Passed The SW-846

Test For Cyanide Was Consistently Treated

By The EPA As Non-Hazardous, The Gov-

ernment Cannot Prosecute Elias For Storage

Or Disposal Of Material That Meets That

Standard.

The cyanide-bearing material involved here was sub-

ject to regulation only if it was a “reactive waste.” In

contrast to each of the other three “characteristic wastes,”

the EPA’s definition of “reactive waste” does not employ

a scientific test, but relies instead on a narrative defini-

tion.” A cyanide-bearing waste is hazardous if:

a representative sample of the waste .. . (5) is a

cyanide or sulfide bearing waste which, when

exposed to pH conditions between 2 and 12.5,

can generate toxic gases, vapors or fumes in a

quantity sufficient to present a danger to human

health or the environment. 40 C.ER. § 261.23(a).

7 By contrast, the regulations define the other

“characteristics” using specific numeric thresholds, and specific

testing protocols.

When the regulations defining reactive wastes were

finalized, the EPA recognized that the narrative definition

offered no numerical test for generators to determine

whether their wastes were “reactive,” agreeing with com-

mentators who argued that the two test methods set out

in the proposed regulations were unreliable and difficult

to interpret. 45 FR 33109-33110 (May 19, 1980). However,

in 1985, the EPA promulgated an interim test and a

numeric threshold for determining whether a material

that contained cyanide was a “reactive hazardous waste”

and published the test and threshold in EPA Publication

SW-846, which is incorporated by reference in the EPA’s

regulations at 40 C.F.R. § 260.11. The preamble to the

Third Edition of SW-846 provides:

This manual provides a unified, up-to-date

source of information on sampling, analytical

and QC procedures related to compliance with

the RCRA regulations. It brings together in one

reference document all of these procedures that

have been approved by the Agency for use in

the RCRA regulatory program and in determin-

ing compliance with the RCRA requirements.

While use of the SW-846 test for releasable cyanide is

not mandated by the regulation governing reactive waste,

it has been systematically employed by industry and the

EPA to determine whether a permit is required and/or

whether cyanide-bearing material can be “de-listed” as a

“hazardous waste.” (CR:98 at 22.) For example, the EPA’s

records show 12 companies, including Bethlehem Steel

and USX, whose wastes were de-listed using the SW-846

sulfide/cyanide test. (CR:98 at 22.) (App:192-194.) EPA’s

steadfast adherence to the SW-846 test as the authorized

standard for all other purposes forecloses upon the Gov-

ernment’s use of an alternative in this case.

After a tragic accident, the Government should not

be able to unilaterally drop its longstanding testing pro-

tocol when that test fails to identify a certain material as

hazardous, and proffer a “new and improved” test solely

in order to convict Elias. The decoupling of the deter-

mination of cyanide reactivity levels from prior agency

practice sanctioned by the Ninth Circuit in this case

encourages arbitrary and discriminatory enforcement:

Elias was convicted for storing and disposing of waste

that others have disposed of (as “non-hazardous”) with

EPA’s blessing.

D. The Court Should Accept Review To Determine

Whether, When Jury Tampering Is Found To

Have Occurred, It Is The Government’s Burden

To Show No Reasonable Possibility Of Preju-

dice, Or Whether It Is The Defendant’s Burden

To Establish Prejudice.

The holding by the Ninth Circuit that Elias failed to

meet his burden in establishing juror bias in a case involv-

ing jury tampering is consistent with the holding of the

Fifth Circuit in United States v. Sylvester, 143 F.3d 923 (5th

Cir. 1998), which held that the District Court had discre-

tion to allocate the burden of demonstrating prejudice to

a defendant in a jury tampering case.1® However, these

8 The Fifth Circuit in Sylvester recognized the holding of

Remmer, but believed that the rule regarding the allocation of

the burden had been modified by the intervening Supreme

Court decisions in United States v. Olano, 507 U.S. 725, 729-30

(1993) and Smith v. Phillips, 455 U.S. 209, 212 (1982). 143 F.3d at

934. The D.C. Circuit in United States v. Williams-Davis, 90 F.3d

490, 496-7 (D.C. Cir. 1996), and the First Circuit in United States

decisions are in conflict with the holdings of several other

Courts of Appeals. See United States v. Cheek, 94 F.3d 136,

141 (4th Cir. 1996); Owen v. Duckworth, 727 F.2d 643, 646

(7th Cir. 1984); United States v. Ferguson, 486 F.2d 968 (6th

Cir. 1973), as well as the Ninth Circuit’s holding in United

States v. Dutkel, 192 F.3d 893 (9th Cir. 1998). This Court

should grant Certiorari to resolve the conflict.

In the foundational jury tampering case of Remmer v.

United States, 347 U.S. 227, 229 (1954), this Court held

that:

any private communication, contact, or tamper-

ing, directly or indirectly, with a juror during a

trial about the matter pending before the jury is,

for obvious reasons, deemed presumptively

prejudicial . . .. The presumption is not conclu-

sive, but the burden rests heavily upon the Govern-

ment to establish, after notice to and hearing of

the defendant, that such contact with the juror

was harmless to the defendant.

347 U.S. at 229 (emphasis supplied).

The evidence shows that two jurors believed from the

middle of trial and throughout deliberations that Elias

made a suggestion of bribery to one of the other jurors. In

light of the heinous nature of the statement attributed to

Elias,!9 there is at least a reasonable possibility that this

v. Gomes, 177 F.3d 76, 83 (1st Cir. 1999), though not tampering

cases, also suggested that the subsequent Supreme Court cases

may have changed the rules relating to the allocation of the

burden.

19 There is certainly a reasonable possibility that the two

jurors’ perception of what Elias had said, whether understood

perception affected the verdict. This Court should grant

Certiorari to resolve the conflict between the Fifth and

Ninth Circuits, which place the burden of demonstrating

prejudice in a jury tampering case with the Defendant,

and the Fourth, Sixth, and Seventh Circuits, which allo-

cate the burden of demonstrating no prejudice to the

Government.

Vill. CONCLUSION

This Court should grant a Writ of Certiorari.

Respectfully Submitted this 4th day of April, 2002.

Cuicoine & HA ttett, PS.

JoHN M. Cotvin

Counsel of Record

Darre_t D. HALLett

Scott A. SCHUMACHER

1011 Western Avenue, Suite 803

Seattle, WA 98104

(206) 223-0800

E-mail to: jcolvin@chicoine-hallett.com

to have been made with a smile or not, would prejudice them

against Elias. “Even the words, ‘I don’t want to take a bribe and

will not take one’ said with a wink and a smile might well be

interpreted to mean exactly the opposite.” United States v.

laconetti, 406 F. Supp. 554, 559 (E.D. N.Y. 1976).

TABLE OF CONTENTS

Opinion of Court of Appeals, United States v. Elias,

wee Poe TS CO Ce BD). ow onc etc eeens A-1

Unpublished Memorandum Decision of Court of

Appeals, United States v. Elias, (9th Cir. October

PA MED Aa USS eS ean den 5 43k Nd dense een epaNbacus A-38

Judgment in a Criminal Case, United States v. Elias,

United States District Court, Docket No.

eer ree Ter etree eer A-45

Memorandum Decision and Order, Dated March

16, 2000, United States v. Elias, United States

District Court, Docket No. 4:98CR0070-E-BLW...A-58

Memorandum Decision and Order, Dated April

26, 2000, United States v. Elias, United States

District Court, Docket No. 4:98CR0070-E-BLW...A-70

Memorandum Decision and Order, Dated March

18 1999, United States v. Elias, United States

District Court, Docket No. 4:98CR0070-E-BLW...A-80

Memorandum Decision and Order, Dated Decem-

ber 9, 1999, United States v. Elias, United States

District Court, Docket No. 4:98CR0070-E-BLW...A-92

Memorandum Decision, Dated January 6, 2000,

United States v. Elias, United States District

Court, Docket No. 4:98CRO070-E-BLW.......... A-107

Findings of Fact, Conclusions of Law, and Order,

Dated January 25, 2000, United States District

Court, Docket No. 4:98CR0070-E-BLW.......... A-113

Order Denying Petition for Rehearing, Dated Jan-

BM aa Wbca sc cbdpanay eanw ska Kun dies os a0es A-127

og a Pare rere Tee yer eee ee eee EEC ee A-128

i vies os ca acaane 4-133

TABLE OF CONTENTS - Continued

Page

O84. Bs iis dk ee ee ee A-141

Oe Solas 0 UN bk on a ie ee A-142

Jury Instruction No. 26, United States v. Elias,

United States District Court, Docket No.

SPE si os nos cdnscnteacvendiaee A-144

Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th

POPE T PPT TOTTT TCC PEP ee ee! Or A-145

Defendant’s Supplemental Reply in Support of

Motion for Dismissal of Counts I through III on

Void for Vagueness Grounds, United States v. Elias,

United States District Court, Docket No.

8 ere Pree re pry ee A-165

A-1

United States Court of Appeals,

Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v. ,

Allen ELIAS, Defendant-Appellant.

No. 00-30145.

Argued and Submitted June 5, 2001

Filed Oct. 23, 2001

As Amended Dec. 21, 2001.

Scott A. Schumacher, John M. Colvin, and Darrell D.

Hallett (argued), Chicoine & Hallett, P.S., Seattle, Wash-

ington, for the defendant-appellant.

Lois J. Schiffer, Assistant Attorney General, Environ-

ment and Natural Resources Division, Betty Richardson,

United States Attorney, and Jeffrey C. Dobbins (argued),

Attorney, United States Department of Justice, for the

plaintiff-appellee.

Appeal from the United States District Court for the

District of Idaho; B. Lynn Winmill, Chief District Judge,

Presiding. D.C. No. CR-98-00070-BLW.

Before: WALLACE, HALL, and T.G. NELSON, Circuit

Judges.

T.G. NELSON, Circuit Judge:

After a three-and-a-half-week trial, a jury convicted

Allen Elias of four offenses, the most serious of which

was disposing of hazardous waste without a permit,

knowing that his actions placed others in imminent dan-

ger of death or serious bodily injury in violation of 42

U.S.C. § 6928(e). Elias appeals on numerous grounds. We

A-2

address several of them here and the remainder in a

memorandum disposition filed contemporaneously.

BACKGROUND

A. Offense Conduct

Allen Elias owned Evergreen Resources, a fertilizer

company located near Soda Springs, Idaho. In August

1996, Elias decided to transfer sulfuric acid from two

railroad cars into a stationary 25,000-gallon tank that he

had transported to Evergreen from his previous business,

AEI.

At AEI, Elias had used the thirty-six-foot-long,

eleven-foot-high tank as a storage tank for byproducts of

a cyanide leaching process he had patented. Elias real-

ized that his process resulted in the transfer of cyanide-

laced solids into the tank. He admitted, moreover, that

there were one to two tons of cyanide-laced sludge left in

the tank when he shipped it to Evergreen in the early

1990s. This sludge did not preclude Elias from using the

tank for some purposes. In 1996, however, Elias decided

that the sludge, which was hardened and more than a

foot deep, had to be cleaned out of the tank before he

could store the sulfuric acid in it.

On August 26, 1996, Elias ordered four of his

employees, Bryan Smith, Gene Thornock, Darrin Weaver,

and Scott Dominguez, to enter the tank and wash the

sludge out a valve opening in the end. Despite Smith’s

repeated requests, Elias failed to provide any safety

equipment for this task. Consequently, Dominguez and

A-3

Weaver entered the tank wearing only their regular work

clothes. After about fifteen minutes, they realized that the

sludge could not be washed out the small hole in the end

of the tank, and they exited. Both complained of sore

throats and nasal passages.

The next morning, on August 27, 1996, Elias met with

his employees, who told him of the difficulties of the day

before and the health effects they suffered. Smith again

insisted on the necessary safety equipment. Elias said he

would get it, but told his employees to proceed anyway

and that he expected the tank to be cleaned out that

morning. Although he instructed his employees to “do it

by the book,” Elias provided none of the safety equip-

ment or training needed for them to do so.

After cutting a bigger hole in the end of the tank,

Dominguez and Weaver again entered the tank with no

safety equipment. About 45 minutes later, after they had

emptied about one-third of the sludge through the hole

onto the ground, Weaver shouted that Dominguez had

collapsed. Thornock and Smith unsuccessfully tried to get

Dominguez out of the tank, which had only a 22-inch

manhole at the top. When firefighters got to Dominguez,

he was in severe respiratory distress and in danger of

dying.

After extricating Dominguez, the fire chief asked

Elias whether cyanide could be in the tank. Elias insisted

that he had no knowledge of anything in the tank other

than water and sludge, which the fire chief understood to

mean mud.

After Dominguez was rushed to the hospital in Soda

Springs, the treating physician there concluded that the

A-4

most likely cause of his condition was cyanide poisoning.

He called Elias and asked him whether there was a

possibility that there was cyanide in the tank, to which

Elias again replied no. The doctor nonetheless asked the

LifeFlight helicopter from Pocatello to bring a cyanide

antidote kit to Soda Springs. After the doctor adminis-

tered it, Dominguez responded positively. Blood drawn

while Dominguez was in the Soda Springs hospital

revealed extremely toxic levels of cyanide in his body.

The day Dominguez was injured Elias told investiga-

tors that he had completed a confined space entry permit,

although it was “handwritten” and “not very formal.” He

declined, however, to actually provide the permit to

investigators at that time. Early the next morning, Elias

visited an acquaintance at a nearby company, Kerr-

McGee Corp., where he inquired about the requirements

for confined space entries and departed with a copy of

Kerr-McGee’s safety manual, which spelled out the

requirements for a confined space entry permit. The per-

mit Elias eventually provided investigators stated that it

was issued on August 27, 1996, at 10:30 am.

Weeks after Dominguez was injured, Elias ordered a

new employee to move and bury the same sludge, again

without safety precautions.

B. District Court Proceedings

Based on this conduct, a grand jury returned a four-

count indictment against Elias. In Count I, the indictment

charged that Elias had stored or disposed of hazardous

waste without a permit, knowing that his actions placed

others in imminent danger of death or serious bodily

A-5

injury in violation of 42 U.S.C. § 6928(e), the Resource

Conservation and Recovery Act (“RCRA”). Counts II and

III, which stemmed from events that transpired: after

Dominguez was injured, charged him with improper dis-

posal of hazardous waste without a permit in violation of

42 U.S.C. § 6928(d). Count IV charged Elias with a viola-

tion of 18 U.S.C. § 1001 for making material misstate-

ments relating to the confined space entry permit that he

alleged was prepared on August 27, 1996. On May 7,

1999, the jury convicted Elias on all four counts.

In June 1999, prior to sentencing, counsel for the

Government spoke with Boyd Greenlee, the jury foreper-

son. Greenlee told them that Elias had spoken to one of

the alternate jurors and asked what it would take to get

him off. Counsel for the Government apprized both the

court and Elias’s counsel of Greenlee’s revelation, caus-

ing a full evidentiary inquiry to ensue. In October 1999,

Elias moved for a new trial based on juror bias and

perceived jury tampering. The district court denied

Elias’s motion, having concluded, based on two evidenti-

ary hearings, that because everyone involved thought the

incident was a joke, no risk of bias infected the jury’s

deliberations.

In October 1999, Elias also moved to dismiss the

three RCRA counts in his indictment, asserting that the

United States had ceded its criminal enforcement author-

ity to the State of Idaho when the Environmental Protec-

tion Agency (“EPA”) authorized it to manage a hazardous

waste program under RCRA. Initially, the district court

agreed in part and granted Elias’s motion to dismiss

Counts II and III. As a result of both parties’ motions for

A-6

reconsideration, the district court reversed its earlier rul-

ing and reinstated Counts II and III. The district court

held, however, that those counts should be amended in

order to list Idaho law rather than federal law as a basis

for the charges.

On April 28, 2000, the district court sentenced Elias

to 204 months in prison and ordered him to pay $6.3

million in restitution. Elias appeals.

II.

ANALYSIS

A. Federal Enforcement of RCRA’s Criminal Sanctions

Elias argues that Counts I, II, and III of his indict-

ment must be dismissed because they alleged! federal

RCRA violations, and when the EPA authorized Idaho’s

hazardous waste program, that program replaced and

supplanted federal RCRA law, effectively stripping the

United States of enforcement authority. Elias derives sup-

port for his argument from 42 U.S.C. § 6926. That section,

which governs “Authorized State hazardous waste pro-

grams,”? provides in relevant part:

Any State which seeks to administer and enforce

a hazardous waste program pursuant to this

subchapter may develop and . . . submit to the

[EPA] Administrator an application . . . for

authorization of such program. . . . [If the

Administrator approves the program,] [s]uch

1 As noted above, the district court ordered post-trial that

the indictment be amended to reflect violations of Idaho law.

2 42 U.S.C. § 6926.

A-7

State is authorized to carry out such program in

lieu of the Federal program under this subchap-

ter in such State and to issue and enforce per-

mits for the storage, treatment, or disposal of

hazardous waste... . 3

Because Idaho’s hazardous waste program was con-

cededly EPA-authorized at all relevant times, the crucial

sentence for our purposes is the second one: “Such State

is authorized to carry out such program in lieu of the

Federal program under this subchapter. . . . “4 Our task is

to reconcile this “in lieu of” language with the language

of 42 U.S.C. § 6928, the RCRA “Federal enforcement”

provision enacted the same year. As its title implies,

§ 6928 authorizes federal criminal and civil enforcement

and penalties.5

Elias argues that, pursuant to § 6926, Idaho’s autho-

rized hazardous waste program displaced the federal

program, leaving no federal crimes and ousting the fed-

eral court of jurisdiction. The linchpin of this argument,

which the First Circuit flatly rejected in United States v.

MacDonald & Watson Waste Oil Co.,® “is that the term

‘program’ in § 6926 incorporates the exclusive respon-

sibility to enforce criminal provisions penalizing the dis-

posal of hazardous wastes.”” Because construing RCRA

3 42 U.S.C. § 6926(b).

4 Id.

5 The portions of 42 U.S.C. § 6928 relevant to this appeal are

reproduced in the appendix to this opinion.

6 933 F.2d 35 (1st Cir. 1991).

7 Id. at 44.

A-8

in this manner contravenes Chevron’s® dictates as well as

RCRA’s plain language and legislative history, we reject

Elias’s argument.

This case bears a striking resemblance to Wyckoff Co.

v. EPA.® The Wyckoff defendants unsuccessfully sought to

enjoin the EPA from bringing a civil enforcement act

against them. On appeal, they argued that because § 6926

“authorizes state programs to be carried out ‘in lieu of

the Federal program,’ Congress intended to revoke the

EPA’s power to issue [civil compliance orders] where an

authorized state program is in effect.”1° We rejected that

contention, noting that the EPA did not interpret RCRA

to cede exclusive enforcement authority to states and

that, under Chevron, “[i]f the EPA’s interpretation of

[§ 6926’s ‘in lieu of’ provision] is reasonable, we must

defer to the agency’s interpretation even if the agency

could also have reached another reasonable interpreta-

tion, or even if we would have reached a different result

had we construed the statute initially.”11 We concluded

that the EPA’s interpretation was reasonable because we

could “discern no clear congressional intent that [§ 6926]

be read to disable the EPA from issuing orders under

[§ 6934]!2 wherever an authorized state hazardous waste

‘

8 Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

9 796 F.2d 1197 (9th Cir. 1986).

10 Id. at 1199.

11 Id. at 1200 (internal quotation omitted).

2 A Section 6934 gives the EPA the authority to order the

owner or operator of a facility to conduct “monitoring, testing,

analysis, and reporting” so the EPA can ascertain the nature and

A-9

program operates ‘in lieu of the Federal program’ ”}3 and

because “[t]he EPA’s conclusion that its power to issue

orders under [§ 6934] survives in those states where an

authorized state program is operating is plainly consis-

tent with a straightforward reading of the Act.”14

Wyckoff controls here. But even if it did not, we

would arrive at the same conclusion the second time

around. As District Judge Timlin cogently argued in

United States v. Flanagan, § 6928’s plain text supports the

EPA’s interpretation that its enforcement power survives

authorization of state programs:

Section 6928(a) allows the EPA to exercise civil

enforcement powers even where a state program

is in effect. This demonstrates “that Congress

did not intend, by authorizing a state program

extent of hazards posed by certain hazardous waste facilities. 42

U.S.C. § 6934(a)(2).

13. Wyckoff, 796 F.2d at 1200.

14 Id. at 1201. Here, as in Wyckoff, the EPA’s interpretation is

abundantly clear. The EPA rule authorizing Idaho’s program

states that “[t]he Agency retains the authority under [§ 6928] of

RCRA to undertake enforcement actions in authorized states,”

and that “[w]ith respect to such enforcement action, the Agency

will rely on Federal sanctions, Federal inspection

authorities . . . rather than the authorized State analog to these

requirements. Therefore, the Agency does not intend to codify

such authorized Idaho enforcement authorities.” Hazardous

Waste Management Program Codification of Approved State

Hazardous Waste Program for Idaho, 55 Fed.Reg. 50327-01

(December 6, 1990).

15 126 F.Supp.2d 1284 (C.D.Cal.2000). Like Elias, the

Flanagan defendants were indicted for criminal RCRA

violations including treating or storing hazardous waste

without a permit. Id. at 1285.

A-10

‘in lieu of a Federal program,’ to preempt fed-

eral regulation entirely.” Similarly, Congress

intended other criminal enforcement provisions

of Section 6928(d) to survive authorization of

state programs, which at least indicates a gen-

eral congressional intent to maintain Federal

involvement in criminal enforcement post-

authorization. See Section 6928(d)(3), (4) & (5)

(criminalizing non-compliance with “regula-

tions promulgated by the Administrator (or by a

State in the case of an authorized State program)

under this subchapter.”).16

In support of his contrary conclusion, Elias cites the

Eighth Circuit’s decision in Harmon Industries, Inc. v.

Browner.!” Browner ‘s statement that “[t]he plain ‘in lieu

of’ language contained in the RCRA reveals a congres-

sional intent for an authorized state program to supplant

the federal hazardous waste program in all respects

including enforcement” lends credence to his argument.18

Reliance on Browner, however, is suspect. In Browner, the

EPA sought civil penalties against the defendant. While

its administrative enforcement action was pending, a

State court approved a consent decree between the state

and the defendant releasing the defendant from any

claim for monetary penalties.19 The district court held

that this release was binding upon the EPA because the

state was authorized pursuant to § 6926(b) to operate its

own program and because “ ‘[a]ny action taken by a State

16 Id. at 1287-88 (quoting Wyckoff, 796 F.2d at 1200).

17 191 F.3d 894 (8th Cir. 1999).

18 Id. at 899.

19 Id. at 897.

A-11

under a hazardous waste program authorized under

[RCRA] [has] the same force and effect as an action taken

by the [EPA] under this subchapter.’ ”2°

The Eighth Circuit agreed.21 We agree with Flanagan,

however, that “Browner is not about if, but about when,

the United States can bring a civil enforcement action in

federal court after it has authorized a state program.”?2

Even Browner conceded that “[RCRA] manifests a con-

gressional intent to give the EPA a secondary enforce-

ment right in those cases where a state has been

authorized to act that is triggered . . . if the state fails to

initiate an enforcement action.”23 Flanagan ‘s summation

is correct: “[T]he position of the Eighth Circuit in Browner

is not that the federal government loses its civil enforce-

ment power aftef a state program is authorized. The

Eighth Circuit concludes only that the federal govern-

ment loses its primary role in enforcing hazardous waste

regulations.”24 Thus understood, Browner does not sup-

port Elias’s contention that federal law is supplanted or

that the United States lacks power to try him.?5

Legislative history also supports the EPA’s conten-

tion that RCRA’s criminal enforcement provisions are

20 Id. at 897-98 (quoting 42 U.S.C. § 6926(d)) (alterations in

original).

21 Id. at 900.

22 Flanagan, 126 F.Supp.2d at 1289.

23 Browner, 191 F.3d at 899.

24 Flanagan, 126 F.Supp.2d at 1289 n. 3.

25 Browner is also suspect for its marked lack of Chevron

deference.

A-12

meant to apply within states having authorized pro-

grams, as the First Circuit held in MacDonald:

Prior to the 1984 RCRA Amendments - when, as

today, RCRA provided for state programs

which, when federally approved, would be car-

ried out “in lieu” of the federal program, and

which authorized the state to issue and enforce

permits — the federal penal statute preceding

§ 6928(d) was worded so as to apply in so many

words to violations both of federal and state

permitting programs. Thus, the earlier version

provided:

Any person who knowingly -

(1) transports any hazardous waste identified or

listed under this subchapter to a facility which

does not have a permit under section 3005 of

this title (or section 300676 of this title in case of

a State program),

shall, upon conviction, be subject to a fine of not

more than $25,000 for each day of violation, or

to imprisonment not to exceed one year, or both.

The 1984 amendments increased the applicable

criminal penalties and simply substituted

“under this subchapter” for the references to the

specific subsections under which permits, fed-

eral and state, may be granted. The new lan-

guage, “without a permit under this

subchapter,” subsumed both state and federal

permits, as both types are provided for within

“this subchapter.” The latter did not, therefore,

in any way narrow the scope of federal crim'nal

26 Section 3006 of RCRA is codified at 42 U.S.C. § 6926.

A-13

jurisdiction. Nor did the legislative record hint

at any intention by Congress to narrow the

scope of federal criminal jurisdiction. To the

contrary, Congress manifested its desire to

retain a strong federal presence.?” Had Congress

intended to impose a hitherto unknown limita-

tion upon the scope of its laws criminalizing

permit violations, its intentions would surely

have been manifested; for example, § 6928(d)

would have been reworded to indicate that it

applied only to persons in states lacking an

authorized state program.?8

For these reasons, we conclude that, under RCRA,

the federal government retains both its criminal and its

civil enforcement powers. Contrary to the district court’s

conclusion, this is true even where a state law counter-

part exists, for many of these “counterparts” provide only

misdemeanor punishments where federal law prescribes

a felony. We believe RCRA only contemplates that the

federal permitting scheme is supplanted by authorized

state ones.*? Thus, the federal proscription against trans-

porting hazardous waste without a permit remains, as

27 Here the MacDonald opinion refers to H.R. Conf. Rep.

No. 98- 1133, 98th Cong., 2d Sess., Oct. 3, 1984 at 110, reprinted

in 1984 U.S. Cong. & Admin. News 5681 and S.Rep. No. 98-284,

98th Cong., 1st Sess., Oct. 28, 1983 at 45, which states that “The

Federal government’s ability to obtain criminal penalties

against generators and other persons who knowingly cause the

transportation of hazardous waste to an unpermitted facility is

essential to the regulatory-scheme.” MacDonald, 933 F.2d at 45.

28 MacDonald, 933 F.2d at 44-45 (internal quotation marks

and citations omitted).

29 See United States Dep’t of Energy v. Ohio, 503 U.S. 607, 611,

112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (noting that “permit

program [s]” run by EPA are “subject to displacement by an

A-14

does the federal penalty for it. What changes, and what is

supplanted by state law, is the definition of hazardous

waste and the sovereign from whom generators must

obtain the necessary permit originally - in this case,

Idaho.

Although the district court’s reasoning diverged, it

arrived at the same result. We therefore affirm the district

court’s refusal to dismiss Counts I, II, and III. Although

we agree with the Government that the district court

erred when it ordered post-trial that Elias’s indictment be

amended to reflect that he was charged in Counts II and

III under Idaho Code § 39-4408(1), we hold that the error

was harmless.3! Neither party was misled, the trial was

conducted on the basis of federal law, and in any subse-

quent prosecution, the judgment of conviction, which

states violations of federal law, would control.

adequate state counterpart”). Elias’s argument that Ohio

implicitly overruled MacDonald is not persuasive. Whether

displacement of the EPA’s permit program also functions to

displace federal criminal enforcement under § 6928(d) was not

an issue presented to or resolved by the Ohio court.

30 This interpretation does not render the “in lieu of”

language meaningless. “Once the EPA authorizes a state

program pursuant to Section 6926(b): (1) the EPA ceases issuing

permits pursuant to its permit program; (2) the EPA’s

regulations, for example those respecting the characterization of

solid wastes as hazardous and non-hazardous, are supplanted;

and (3) the state assumes its position as the primary

enforcement authority.” Flanagan, 126 F.Supp.2d at 1292.

31 Neither that section nor its federal analog, 42 U.S.C.

§ 6925(a), are criminal offenses of which one may be convicted.

A-15

B. Representativeness of the Sample

To obtain convictions on Counts I, II, and III, the

Government had to prove that Elias transported or dis-

posed of “hazardous waste.”52 The governing regulations

provide that “hazardous waste” includes wastes that

exhibit the characteristic of reactivity*> and that “[a] solid

waste exhibits the characteristic of reactivity if a repre-

sentative sample of [it] . . . is a cyanide or sulfide bearing

waste which, when exposed to pH conditions between 2

and 12.5, can generate toxic gases, vapors or fumes in a

quantity sufficient to present a danger to human health or

the environment.”>4 A “representative sample” is “a sam-

ple of a universe or whole (e.g., waste pile, lagoon,

ground water) which can be expected to exhibit the aver-

age properties of the universe or whole.”35

Elias argues that there was insufficient evidence for

the jury to convict him of disposing of “hazardous waste”

because the Government presented no evidence that the

samples it took from a three-foot radius inside the tank

and from outside the tank exhibited the average proper-

ties of the entire tank. This analysis misses the mark for

two reasons. First, it assumes that to prove Elias guilty of

disposing of hazardous waste, the Government had to

32 See 42 U.S.C. § 6928(d) and (e).

33 40 C.F.R. §§ 261.3(a)(2), 261.20-24.

34 40 C.ER. § 261.23.

35 40 C.RR. § 260.10.

A-16

prove that the entire tank was hazardous. That is incor-

rect. As the EPA’s Environmental Appeals Board

explained in In re Electric Service Co.,36

proof of the disposal violations does not hinge

on accurately describing the condition or quality

of some larger body. Instead, it hinges on proof

of an uncontrolled discharge. . . . Under such

circumstances, the sample itself is the uncon-

trolled discharge, the improper disposal, or, so

to speak, the corpus delicti. Therefore, the viola-

tions may be established by simply proving two -

things: (1) that the samples themselves contain

[reactive cyanide]; and (2) that the [reactive cya-

nide] w[as] not disposed of properly, a conclu-

sion which may be inferred from where the

[samples] were found.37

In this case, EPA investigators took at least one sam-

ple from sludge located outside the tank. By definition,

therefore, this sludge sample had been disposed of.3® It

was reactive and tested positive for cyanide. No further

evidence is necessary. Thus, whether this hazardous

sludge sample bears the same characteristics of the tank

waste Dominguez had not yet gotten to before he col-

lapsed is legally beside the point.

36 1 E.A.D. 947 (Env.App. Bd.1985), available at 1985 WL

57155. ;

37 Id.

38 See 40 C.F.R. § 260.10 (“Disposal means the discharge,

deposit, injection, dumping, spilling, leaking, or placing of any

solid waste or hazardous waste into or on any land . . . so that

such solid waste or hazardous waste or any constituent thereof

may enter the environment... . ”).

A-17

On a more basic level, we think Elias’s hypertechni-

cal interpretation contravenes common sense. As the

Government’s witness, Dr. Lowery, explained, if the Gov-

ernment or a waste generator is trying to prove the

negative, i.e., that cyanide is not present, relying on just

one or two samples would be dangerous. Rather, the

generator would need to do the more extensive sampling

contemplated by the regulations to guard against obtain-

ing a false negative from potentially striated waste. By

contrast, if the Government is trying to prove a positive,

i.e., that there is cyanide within, “it’s not necessary to go

to every inch of the tank to see if there’s more cyanide

there.”

This explanation, which the EPA has advanced else-

where,?? makes perfect sense. If a sample from one part of

the tank contains wastes reactive enough to cause brain

damage to someone, there can be no conceivable purpose

in sending other people into the tank to extract more

samples. Indeed, under these circumstances, retrieving

additional samples would actually disserve RCRA’s

objectives.4° The district court did not err.

C. Constitutionally Adequate Notice

1. The governing regulation.

Elias also contends that the EPA regulation that

defines what constitutes reactive hazardous waste is so

39 See In re Hallar Enterprises, Inc., Docket No. RCRA-

VI-815- H, 1999 WL 118257(EPA).

40 See 42 U.S.C. § 6902(a) (noting that RCRA’s objective is to

“promote the protection of health and the environment”).

A-18

vague as to deprive him of fair notice that his acts were

proscribed and thus renders his convictions on these

counts unconstitutional. The regulation, 40 C.F.R.

§ 261.23, provides as follows:

A solid waste exhibits the characteristic of reac-

tivity [and is thus hazardous waste] if a repre-

sentative sample of the waste .. . (5) is a

cyanide . . . bearing waste which, when exposed

to pH conditions between 2 and 12.5, can gener-

ate toxic gases, vapors or fumes in a quantity

sufficient to present a danger to human health

or the environment.*!

We review de novo whether this regulation is uncon-

stitutionally vague.42

The general rule is that “[a] criminal statute is not

vague if it provides adequate notice in terms that a rea-

sonable person of ordinary intelligence would under-

stand that [his] conduct is prohibited.”43 However, “if the

statutory prohibition involves conduct of a select group

of persons having specialized knowledge, and the chal-

lenged phraseology is indigenous to the idiom of that

class, the standard is lowered and a court may uphold a

statute which uses words or phrases having a technical or

41 40 C.ER. 261.23(a).

42 United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir.

1993).

43 United States v. Martinez, 49 F.3d 1398, 1403 (9th Cir.1995)

(superseded by statute on other grounds).

A-19

other special meaning, well enough known to enable

those within its reach to correctly apply them.”44

Title 40 C.F.R. § 261.23 indeed applies to “a select

group of persons having specialized knowledge.”

Accordingly, to analyze whether this regulation is uncon-

stitutionally vague, we must ask whether persons like

Elias, whose businesses involve use, storage, and dis-

posal of hazardous wastes, would have understood that

the tank waste was reactive and thus hazardous. Because

“in determining the sufficiency of the notice[,] a statute

must of necessity be examined in the light of the conduct

with which a defendant is charged,”45 the question

becomes whether a reasonable person in the industry

who knew the tank once contained cyanide and who had

previously received health complaints from employees

working in and around it would have known that the

tank materials “presented a danger to human health or

the environment.”4¢

The district court considered this question carefully

in response to Elias’s motion to dismiss Counts I-III on

void for vagueness grounds. After an evidentiary hearing

on the motion, the court concluded that a reasonable

44 Weitzenhoff, 35 F.3d at 1289 (internal quotation marks

omitted) (“Weitzenhoff and Mariani were knowledgeable in the

wastewater field and can be expected to have understood what

the permit meant. In particular, they should have known that it

did not give them license to dump thousands of gallons of

partially treated sewage into the ocean on a regular basis.”).

45 United States v. E.C. Invs., Inc., 77 F.3d 327, 331-32 (9th

Cir. 1996) (internal quotations marks, alteration, and citation

omitted).

46 40 C.F.R. 261.23(a)(5).

A-20

person in the defendant’s circumstances would have

known of the “hazardous” nature of a substance without

a numerically-quantified, test-based standard. We concur.

As the district court noted, the reactivity definition

set forth in 40 C.F.R. § 261.23(a)(5) closely parallels the

top three reactive classes of the National Fire Protection

Agency, tracks the definition of reactive wastes used by

the Chemical Manufacturers Association, and is substan-

tially similar to the classification system used by the

United States Navy. The observation sandwiched in the

middle seems most pertinent. If the people who make

cyanide define reactivity (and thus hazardousness) this

way, people who use it may be expected to do so also.

We have, moreover, sanctioned similar language

before. For example, in United States v. Kennecott Copper

Corp.,4” we held that a law prohibiting “[t]he discharge of

oil . . . into or upon the navigable waters of the United

States . . . in harmful quantities” was not unconstitu-

tionally vague.*® We noted that its language, which was

neither highly technical nor obscure, was sufficient to put

persons on notice of potential criminal liability.49 We see

no reason why, if persons using or transporting oil can be

charged with knowing what constitutes a “harmful quan-

tity,” persons using cyanide may not be charged with

knowing how much cyanide, under certain conditions,

may prove “harmful to human health or the environ-

ment.”

47 523 F.2d 821 (9th Cir. 1975) (omissions in original).

48 Id.

49 Id. at 823.

A-21

2. The SW-486 interim testing protocol.

The district court concluded that it would be prefer-

‘able to have some numerically-quantified, test-based

standard for determining whether a substance releasing

cyanide gas should be deemed hazardous but that this is

not possible given the variety of situations and circum-

stances in which cyanide may exist and pose a hazard.

Elias contends that quantifying reactivity is possible, and

that, during the period in question, the EPA embraced a

test that did precisely that. The test methodology to

which Elias refers was first mentioned in an internal EPA

memorandum dated July 12, 1985.59 This memorandum

from the Director of the Characterization and Assessment

Division to Solid Waste Branch Chiefs provided as fol-

lows:

Over the past year, we have received many

inquiries about how to evaluate wastes for reac-

tivity (§ 261.23(a)(5)). We have initiated a

number of studies in this area, and expect to

propose a quantitative threshold for toxic gas

generation reactivity in December of this year.

On an interim basis, however, we feel strongly

that wastes releasing more than the following

levels of toxic gas should be regulated as haz-

ardous wastes:

Total Available Cyanide: 250 mg HCN/Kg waste

50 Memorandum from Eileen Claussen, Director,

Environmental Protection Agency Characterization &

Assessment Division to Solid Waste Branch Chiefs on “Interim

Thresholds for Toxic Gas Generation Reactivity (261.23(a)(5)),”

(July 12, 1985).

A-22

The available cyanide . . . should be measured

using the attached draft testing method. Work

currently being done . . . may result in signifi-

cant changes in the subsequent proposed test.

However, pending the conclusion of investiga-

tions, we recommend use of this draft pro-

cedure.5!

December of 1985 came and went without the EPA

ever finalizing a quantitative testing methodology. How-

ever, the interim threshold (250 mg HCN/Kg waste) and

the draft testing methodology was republished in EPA

publication SW-846, which is entitled “Test Methods for

Evaluating Solid Waste, Volume IC: Laboratory Manual

Physical/Chemical Methods.”52 Although the manual

was “intended to provide a unified, up-to-date source of

information on sampling and analysis related to compli-

ance with RCRA regulations,” it also warned that it could

not always be used “in rote fashion.”53 It explained that

some “situations . . . will require a combination of techni-

cal abilities, using the manual as guidance rather than in

a step-by-step, word-by-word fashion,” and that this

“burden on the user . . . is unavoidable because of the

variety of sampling and analytical conditions found in

hazardous waste.”%4

51 Id.

52 Environmental Protection Agency, Office of Solid Waste

and Emergency Response, Test Methods for Evaluating Solid

Waste; Volume IC: Laboratory Manual Physical/Chemical Methods,

SW-846, § 7.3.3 (1986).

53 Id. at 1.

34 Id.

A-23

The interim threshold and draft testing methodology

remained in the SW- 846 manual for thirteen years, until

growing dissatisfaction with it prompted the EPA to

remove it.5> It is undisputed that Elias did not know of

the interim test’s existence in 1996, when he ordered his

employees to clean the tank. Nonetheless, Elias argues

that because the waste in his tank would have passed the

SW-486 test with flying colors and that without that test,

the regulation gives him no guidance at all, he lacked fair

notice that the material in the tank was in fact “hazard-

ous.”

We reject this argument. As noted above, at the end

of the day, the question is whether a reasonable person

who knew cyanide had previously been stored in the tank

and who was aware of previous health complaints by

those working with or near the substance would have

known that the sludge in Elias’s tank was dangerous to

human health. The uncontroverted evidence is that they

would have - despite the apparent vagueness of the

terminology, those in the industry apparently understand

what it means. Thus, even without the guidance of the

55 See, e.g., Joe Lowery, Chief, Chemistry Branch,

Environmental Protection Agency, “Releasable Cyanide;

Dysfunctional Regulation” (paper presented at 8th Annual

Waste Testing & Quality Assurance Symposium, Arlington, VA,

July 13-17, 1992, urging withdrawal or modification of SW- 846

guidance); Memorandum from Diana Love, Director, EPA

National Enforcement Investigations Center to David Brussard,

Director, EPA Hazardous Waste Identification Division, OSWER

(Feb. 18, 1998) (urging the Office of Solid Waste to withdraw

guidance); Memorandum from David Brussard to Diana Love

(April 1998) (withdrawing guidance).

A-24

SW-486 test, 40 C.F.R. § 261.23(a)(5) is not unconstitu-

tionally vague.

Even if we presume that, unlike Elias, a reasonable

person in the industry would have known of the interim

testing protocol, it does not follow that he or she would

have been so confused by the interplay between the

regulation and the SW-486 test as to lack fair notice of

what is hazardous. As the district court concluded, the

interim threshold did not provide a “safe harbor” for

waste that emitted toxic gas below the threshold level. It

did not purport to tell waste generators a level below

which their substances were non-hazardous; it simply told

them a level above which they definitely were: “On an

interim basis . . . we feel strongly that wastes releasing

more than the following levels of toxic gas should be

regulated as hazardous wastes.”

D. Mens Rea Instruction

Elias argues that we must reverse his convictions

because Jury Instruction 26 misstated the mens rea appli-

cable to his offenses. Whether a jury instruction misstated

elements of a statutory crime is a question of law the

court normally reviews de novo.5”? However,

56 Memorandum from Eileen Claussen, Director,

Environmental Protection Agency Characterization &

Assessment Division to Solid Waste Branch Chiefs on “Interim

Thresholds for Toxic Gas Generation Reactivity (261.23(a)(5)),”

(July 12, 1985).

57 United States v. Armstrong, 909 F.2d 1238, 1243 (9th Cir.

1990).

A-25

[dje novo review .. . is only available when a

proper objection has been made in the district

court. Federal Rule of Criminal Procedure 30

prohibits a party from assigning error unless

that party objects thereto before the jury retires

to consider the verdict, stating distinctly the

matter to which that party objects and the

grounds of that objection.

Elias failed to make such a distinct objection. He did

object to the court’s failure to give his proposed jury

instructions and “to the Court’s instructions that are

being given to the extent they are inconsistent with the

ones that we have submitted.”59 As this court held in

United States v. Klinger,6° however, such a global objection

is simply not enough: “Rule 30 . . . requires that a defen-

dant object with adequate specificity - an objection must

state distinctly the matter to which the party objects as

well as the grounds of the objection. A defendant’s mere

proposal of an alternate instruction does not satisfy Rule

30’s standard of specificity.”©1 Because Elias failed to

58 Id. at 1243 (internal quotation marks omitted). _

59 Elias’s counsel then went on to make several specific

objections to particular instructions and/or omissions.

Ironically, the Government specifically objected to Jury

Instruction 26, arguing that the court should have included even

more language than it ultimately did. It did so, moreover,

immediately before Elias had an opportunity to state his

objections.

60 128 F.3d 705 (9th Cir. 1997).

61 Id. at 710 (internal quotation marks, alteration, and

citations omitted). The court stated that “Klinger’s mere

proposal of an alternate definition of ‘knowingly’ was

inadequate to preserve the challenge he now makes on appeal.”

Id. at 711.

A-26

properly object to Jury Instruction 26, we review his

objection to it for plain error.%2

The instruction provided as follows:

In determining whether the defendant knew

that his conduct placed another person in immi-

nent danger of death or serious bodily injury,

you are instructed that a person’s state of mind

is knowing with respect to (A) his conduct, if he

is aware of the nature of his conduct; (B) an

existing circumstance, if he is aware or believes

that the circumstance exists; or (C) a result of his

conduct, if he is aware or believes that his con-

duct is substantially certain to cause danger of

death or serious bodily injury.

The government does not need to show that the

defendant actually intended to harm or endan-

ger any person.

Elias objects to the very last sentence. He asserts that

telling the jury he did not have to “actually intend[ ]”

harm likely confused the jury because, according to his

reading of the Restatement (Second) of Torts, “knowledge

that there is a ‘substantial certainty’ that a given result

will occur as a result of one’s conduct is equated under

the tort law with ‘intention’ to achieve that result.”©3 He

notes, too, that according to La Buy’s Manual of Jury

Instructions in Federal Criminal Cases, the law has long

recognized that “[i]Jn determining defendant’s intention,

the law assumes that every person intends the natural

62 Id. at 710.

63 Restatement (Second) of Torts § 825, § 8A.

A-27

consequences of his voluntary acts or omissions.”® Thus,

Elias argues that the last part of Jury Instruction 26 told

the jury that the Government did not have to prove the

very thing the first part told them it did.

Although there is potential for confusion here, it does

not rise to the level of plain error because it is confusion

that would only afflict law students or lawyers. The jury

was not instructed on the Second Restatement of Torts.

Nor was it apprized of the principle that intent equals the

natural consequences of voluntary acts. Indeed, intent

was not defined at all.© For this reason, we must assume

that the jury understood “intend” to mean what the dic-

tionary says it does: “to have in mind as a design or

purpose.”6 So understood, there is no conflict between

the two parts of the instruction. The first part set the bar.

The jury had to find that Elias believed his conduct was

“substantially certain to cause danger or death or serious

bodily injury.” The second part told the jury that Elias

didn’t have to have ordered his workers into the tank for

the “design or purpose” of hurting them. In other words,

harming the workers did not have to have been Elias’s

objective in order for him to be guilty as charged. While

this instruction is not a model of clarity, and we would

not advise its use in the future, it was not plainly erro-

neous.

64 W. La Buy, Manual of Jury Instructions in Federal

Criminal Cases § 403 (1963), reprinted in 33 F.R.D. 523 (1963).

65 Elias did not request a specific definition of intent.

66 Webster’s Third New Int’l Dictionary 1175 (1986).

A-28

E. Juror Bias and Perceived Jury Tampering

The jury convicted Elias on May 7, 1999. On June 16,

1999, the Government prosecutors conducted a telephone

conference with the jury foreperson, Boyd Greenlee, to

discuss the trial. During that conference, Greenlee told

the prosecutors that during the trial, he had heard from

another juror, whom the parties later determined was

alternate juror Scott, that Elias had approached her and

asked her what it would take to buy her off. The prosecu-

tors immediately informed the court of Greenlee’s state-

ments and notified defense counsel.

On July 2, 1999, the district court held the first of two

evidentiary hearings on this matter. The hearing occurred

in chambers with each of the available jurors called one at

a time, placed under oath, and questioned by the court.

During the court’s questioning, Greenlee stated that dur-

ing the “middle of the trial,” another juror told her fellow

jurors, including him, that Elias had “approached” her

and asked her “what would it take to turn her decision.”

At another point in the court’s questioning, Greenlee

paraphrased the juror’s accusation against Elias a bit

differently: “She mentioned that [Elias] said what would

it take to win your vote.” When asked by the court, “what

was your understanding as to the tone or nature of Mr.

Elias’ remark?” Greenlee responded, “I kind of think

maybe he was just joking. I wasn’t there, so I didn’t hear.

This is just hearsay.” Seeking to clarify, the court asked

Greenlee whether his understanding was that Elias’s

remark was “somewhat in jest,” to which Greenlee rep-

lied that it was and that the juror who related it to him

A-29

also perceived it that way: “I think she didn’t really feel

totally uncomfortable about it.”

Although none of the other jurors questioned by the

court during the July 2, 1999, hearing recalled hearing

Scott recount to them that Elias had approached her and

asked her what it would take to “win” or “turn” her vote,

the court erred on the side of caution and decided to have

a more thorough evidentiary hearing, where counsel for

both sides could examine the jurors. To accommodate all

jurors, that hearing took place on January 3 and January

7, 2000.

During the second hearing, juror Scott testified that

she had one chance meeting with Elias in the federal

court parking lot, during which he had done nothing

more than greet her. She did not recall whether she told

other jurors about this greeting; she was adamant, how-

ever, that Elias had said nothing more than words to the

effect of “hello” and that she had no recollection of him

saying, jokingly or otherwise, anything along the lines of

“what do I have to do to win your vote” or “what does a

guy have to do to get out of this?” The district court

found juror Scott “very c.:edible on this point.”

Greenlee also testified at the second hearing. He con-

firmed his previous testimony that a juror, whom he now

remembered was juror Scott, related an incident to him

and others in which Elias asked her what it would take to

win her vote or sway her decision. Greenlee also testified

that Scott indicated to him that Elias said this “jokingly”

and was “not serious” and that he understood the pur-

ported comment that way as well. He asserted that after

Scott revealed the encounter, “there was really nothing

A-30

much said about it after that; that is about the extent of

the conversation.” The court then asked Greenlee

whether what Scott told him about her contact with Elias

distracted him or made it difficult for him to concentrate

on the evidence as he was listening to it in the courtroom.

Greenlee replied, “No, it did not.”

Burkhart was the only other juror to aver that he had

heard reports of Scott’s contact with Elias. Like Greenlee,

however, Burkhart testified that he understood that Elias

made the remark to Scott in a joking or jovial manner and

that the jurors did not discuss the incident after Scott

related it. Burkhart also testified that Elias’s alleged

remark did not scare him or distract him from the evi-

dence and that at the time he heard the information from

alternate juror Scott, he was able to remain fair and

impartial in the case.

After hearing testimony from all jurors, the district

court, in an order laying out detailed findings of fact,

denied Elias’s motion for a new trial based on jury tam-

pering, juror misconduct, or juror bias. Among the court’s

most important findings were the following: Elias said

nothing to Scott beyond a brief greeting or acknowledg-

ment; specifically, he did not ask her anything along the

lines of “what it would take to win [her] vote;” Scott told

her fellow jurors of this greeting; Greenlee “misin-

terpreted Scott’s comments to mean that Elias had asked

Scott what it would take to ‘win’ or ‘turn’ her vote;”

Burkhart misinterpreted Scott’s comments to mean that

Elias had asked Scott “what does a guy have to do to get

out of this;” and finally, that b~th Greenlee and Burkhart

interpreted Scott’s comments to mean that Elias had

made his comments to her in a joking manner. The court

A-31

concluded that no juror believed Elias had tampered with

the jury and that Elias had not shown any jurors were

biased against. him. —

Elias argues that under Federal Rule of Evidence

606(b), it was improper for the judge to inquire into the

juror’s perceptions of the incident. However, in the con-

text of a hearing about possible juror tampering, we have

rejected the argument that “juror testimony about the

effect of extraneous information or improper contacts on

a juror’s state of mind is prohibited.”®” We distinguished

between testimony regarding the affected

juror’s mental processes in reaching the verdict

- which is barred by Rule 606(b)-and testimony

regarding a juror’s more general fear and anxi-

ety following a tampering incident, which is

admissible for the purposes of determining

whether there is a “reasonable possibility that

the extraneous contact affected the verdict.”

Under this rationale, it was proper for the district

court to question the jurors regarding their thoughts

about the alleged tampering by Elias. While the judge

ultimately found that there was in fact no tampering

incident, this does not affect our decision to apply Henley

because, at the time of the hearings, the allegation of

tampering was both specific and serious. Thus, we hold

that the evidentiary hearings did not result in impermis-

sible inquiry into the jury’s deliberative processes in vio-

lation of Federal Rule of Evidence 606(b).

67 United States v. Henley, 238 F.3d 1111, 1117 (9th Cir. 2001)

68 Id. at 1118, quoting United States v. Cheek, 94 F.3d 136, 144

(4th Cir. 1996).

A-32

“Because the district court held extensive evidentiary

hearings and made findings of fact, we review the find-

ings of fact to determine whether they are ‘clearly erro-

neous.’ “°? There is no evidence that they are. By far, the

most difficult thing to understand is how, if Scott merely

said that Elias had greeted her, two people came to

believe he had suggested a bribe, jokingly or otherwise.

There is no satisfactory explanation. The fact remains,

however, that both jurors testified that whatever they

thought Elias had said, he had said jokingly. They testi-

fied that it did not preoccupy them at the time, frighten

them, or distract them from focusing on the evidence. In

light of this, the district court’s conclusion that Elias had

not borne his burden” of showing juror bias appears

correct. Accordingly, we affirm the district court’s denial

of Elias’s motion for a new trial.

°° Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206

F.3d 900, 911 (9th Cir. 2000).

7° See United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir.

1999) (“A defendant bears the burden of showing that a juror

was actually biased against him or her and that the district court

abused its discretion or committed manifest error when it failed

to excuse the juror for cause.”) (internal quotation marks and

alteration omitted). See also Dyer v. Calderon, 151 F.3d 970, 975

(9th Cir. 1998) (en banc) (reviewing state court’s ruling on juror

bias, en banc court stated that “[s]o long as the fact-finding

Process is objective and reasonably explores the issues

presented, the state trial judge’s findings based on that

investigation are entitled to a presumption of correctness.”)

A-33

F. Restitution Order

The district court ordered Elias to pay $6.3 million in

restitution to Dominguez. Elias argues that this consti-

tutes plain error”! because 18 U.S.C. § 366372 only autho-

rizes imposition of restitution for violations of Title 18

and certain other provisions not applicable here, whereas

his crimes were violations of Title 42. Because Elias is

correct, we vacate the sentence in that respect and

remand for entry of an amended judgment.

The jury convicted Elias of four counts. The first of

these listed only 42 U.S.C. § 6928(e) as the redevant stat-

ute, so it cannot possibly support the imposition of resti-

tution. By contrast, Counts II and III listed violations of

both 18 U.S.C. § 2 and 42 U.S.C. § 6928(d)(2)(a). The

reference to 18 U.S.C. § 2 likely explains why the district

court thought imposing restitution was proper. In United

States v. Snider,73 however, this court held that “[t]he

mention of [18 U.S.C. § 2] does not bring the restitution

order within the ambit of [18 U.S.C. § 3663]” because

“Section 2 does not establish ‘an offense’ of which a

71 Elias failed to raise this issue before the trial court.

72 This section provides in relevant part:

The court, when sentencing a defendant convicted of

an offense under this title, section 401, 408(a), 409,

416, 420, or 422(a) of the Controlled Substances

Act .. . or section 46312, 46502, or 46504 of title

49 ...may order... that the defendant make

restitution to any victim of such offense. .. .

73 957 F.2d 703 (9th Cir. 1992).

Sain acc

A-34

defendant may be convicted; it merely determines which

offenders may be punished as principals.”74

The Government asserts that even if the restitution

order cannot be upheld on the basis of Counts II and III,

it may be upheld on the basis of Count IV, the material

misstatement count that alleged a violation of 18 U.S.C.

§ 1001. Although, as a theoretical matter, § 1001 offenses

may support the imposition of restitution,75 Elias’s § 1001

offense cannot support the court’s order of restitution for

Dominguez because Dominguez was not a victim of that

particular crime.”6 Elias did not harm Dominguez by

lying; he harmed him by knowingly exposing him to

hazardous waste. This latter offense is one of the few for

which Congress has not sanctioned the imposition of

restitution. Perhaps this case will change that. At present,

however, we conclude that the law does not sanction the

imposition of restitution in this instance.

Il.

CONCLUSION

For the reasons stated above, we AFFIRM in part,

VACATE in part, and REMAND the case to the district

court with instructions to amend the sentence by deleting

the restitution provision. The district court may consider

further amending the sentence by imposing a term of

74 Id. at 706.

7° See, e.g., United States v. Hoover, 175 F.3d 564, 569 (7th Cir.

1999).

76 See United States v. Rodrigues, 229 F.3d 842, 845 (9th Cir.

2000).

A-35

supervised release with a condition requiring restitution,

pursuant to U.S. Sentencing Guidelines § 5E1.1(a)(2)

(1995). In fulfilling the mandate of this remand, the court

may hold such hearings and enter such orders as it deems

appropriate. In all other respects, the judgment and sen-

tence shall remain as written.

AFFIRMED in part, VACATED in part, and

~ REMANDED.

APPENDIX

42 U.S.C. § 6928. Federal enforcement

(a) Compliance orders.

(1) Except as provided in paragraph (2), when-

ever on the basis of any information the Admin-

istrator determines that any person has violated

or is in violation of any requirement of this

subchapter, the Administrator may issue an

order assessing a civil penalty for any past or

current violation, requiring compliance imme-

diately or within a specified time period, or

both, or the Administrator may commence a

civil action in the United States district court in

the district in which the violation occurred for

appropriate relief, including a temporary or per-

manent injunction.

(d) Criminal penalties. Any person who...

(2) knowingly treats, stores, or disposes of any

hazardous waste identified or listed under this

subchapter . . .

(A) without a permit under this subtitle...

A-36

(3) knowingly omits material information or

makes any false material statement or represen-

tation in any application, label, manifest, record,

report, permit, or other document filed, main-

tained, or used for purposes of compliance with

regulations promulgated by the Administrator

(or by a State in the case of an authorized State

program) under this subchapter;

(4) knowingly generates, stores, treats, trans-

ports, disposes of, exports, or otherwise handles

any hazardous waste or any used oil not identi-

fied or listed as a hazardous waste under this

subchapter . . . and who knowingly destroys,

alters, conceals, or fails to file any record, appli-

cation, manifest, report, or other document

required to be maintained or filed for purposes

of compliance with regulations promulgated by

the Administrator (or by a State in the case of an

authorized State program) under this subchap-

ter;

(5) knowingly transports without a manifest,

or causes to be transported without a manifest,

any hazardous waste or any used oil not identi-

fied or listed as a hazardous waste under this

subchapter required by regulations promulgated

under this subchapter (or by a State in the case

of a State program authorized under this sub-

chapter) to be accompanied by a manifest... .

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 viola-

tion committed after a first conviction of such

person under this paragraph, the maximum

A-37

punishment under the respective paragraph

shall be doubled with respect to both fine and

imprisonment.

(e) Knowing endangerment.

Any person who knowingly transports, treats, stores,

disposes of, or exports any hazardous waste identified or

listed under this subchapter or used oil not identified or

listed as a hazardous waste under this subchapter in

violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of

subsection (d) of this section who knows at that time that

he thereby places another person in imminent danger of

death or serious bodily injury, shall, upon conviction, be

subject to a fine of not more than $250,000 or imprison-

ment for not more than fifteen years, or both.””

77 42 U.S.C. § 6928.

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT -

UNITED STATES OF No. 00-30145

erry D.C. No.

Plaintiff-Appellee, CR-98-00070-BLW

ALLEN ELIAS, (Filed

V. | MEMORANDUM*

Defendant-Appellant. | Oct. 23, 2001)

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding.

Argued and Submitted June 5, 2001

Seattle, Washington

Before: WALLACE, HALL, and T.G. NELSON, Circuit

Judges.

Because the facts of this case are recounted in the

opinion filed contemporaneously, we do not repeat them

here.

I. KNOWING ENDANGERMENT

The evidence at trial showed the following: Elias put

cyanide in the tank sometime in the 1980s; he knew that

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may

be provided by Ninth Circuit Rule 36-3.

oe REN ET ONY NTR,

A-39

one to two tons of sludge remained in the tank when he |

transported it years later; OSHA had informed Elias that

his failure to have a cyanide antidote kit, his failure to

continuously monitor for cyanide with appropriate

equipment, his violations of closed entry permits, and his

failure to properly train and equip his employees caused

a “substantial probability of death or serious physical

harm” on other occasions; nonetheless, Elias failed to

provide any training or the safety equipment he knew he

should provide; after Dominguez collapsed, Elias denied

any knowledge that cyanide might be in the tank; after

Dominguez’s injury, Elias persisted in endangering

employees by having them acknowledge training that

they never undertook and by instructing another man to

bury the sludge that harmed Dominguez without the

benefit of safety equipment. Viewing this evidence in the

light most favorable to the prosecution, a rational trier of

fact could have found beyond a reasonable doubt that

Elias knowingly exposed his employees to hazardous

waste that he knew with substantial certainty would

cause death or serious bodily injury.’

Il. THEORY OF DEFENSE INSTRUCTIONS

The district court did not err in refusing to give

Elias’s proposed instruction regarding assumption of risk

because no evidence supported it. One cannot logically

infer from the fact that at least two coworkers knew or

suspected that the tank was dangerous that Dominguez

1 See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining

standard of review).

A-40

knew that there was potentially deadly cyanide in the

tank and that he ncnetheless consented to entering it,

particularly in view of his direct testimony to the con-

trary.

The empty container instruction was similarly

unwarranted. A “container” is “any portable device in

which a material is stored, transported, treated, disposed

of, or otherwise handled.”2 In contrast, a “tank” is “a

stationary device, designed to contain an accumulation of

hazardous wastes which is constructed primarily of non-

earthen materials ... which provide structural support.”*

The district court sensibly concluded that the fact that

this 36 x 11 ft, 25,000-gallon tank had been moved did not

necessarily mean the tank was portable and thus a “con-

tainer.” Contrary to Elias’s assertion, the EPA's OSWER

Directive 9441.19185 supports the district court’s decision

rather than undermines it. The OSWER directive only

concluded that the “tanks” at issue there were “con-

tainers” because those tanks were tank cars.* Moreover,

even if Elias’s tank could be characterized as a “con-

tainer,” the instruction he sought would not have been

warranted because there was no evidence that it was

“empty” within the meaning of 40 C.F.R. § 261.7(b).

Finally, the district court did not err in failing to

instruct the jury that 40 C.F.R. § 261.4(b)(7) exempts from

RCRA regulations waste resulting from extraction and

2 40 C.ER. § 260.10.

3 Id.

4 OSWER Directive 9441.1985(41), Dec. 12, 1985, 1985 WL

286839 (OSWER).

A-41

beneficiation of ores and minerals. By its terms, that

exemption only applies to primary mineral production

where the feedstock contains less than 50 percent scrap

materials.5 It does not apply to secondary production of

mineral commodities like recovery from flue dust, which

is what AEI did.

Ill. PRIOR BAD ACTS EVIDENCE®

Contrary to Elias’s contention, the OSHA inspector’s

testimony, as well as the testimony from several of Elias’s

employees, is relevant to offense elements. It tends to

show that Elias had long ago been put on specific notice

of the risks associated with confined spaces and the han-

dling of cyanide. This, in turn, provides circumstantial

evidence that Elias knew the tank was in fact dangerous.

The evidence, in other words, was admissible to show

intent, knowledge, or absence of mistake or accident.’

IV. STATEMENTS BY THE EPA ENGINEER

During Elias’s direct examination of EPA engineer

Michael Silverman, the Government objected based on

hearsay and lack of personal knowledge. The gist of the

5 40 C.ER. § 261.4(b)(7)(iii)(A).

6 Review of Elias’s claim that evidence of prior bad acts

was improperly admitted is complicated by the fact that, rather

than drawing this court’s attention to specific statements, Elias

simply directs us to 171 pages in the transcript containing

testimony from several different witnesses.

7 Fed. R. Evid. 404(b).

A-42

objection was that Silverman was simply repeating what

Elias had told him during an inspection. The court sus-

tained the objection:

I’m not going to preclude any inquiry of the

witness, but Rule 602 requires that as a condi-

tion to any witness’ testimony, that a foundation

be established of personal knowledge and

unless such questions are phrased that way, I

will sustain the objection as violative of Rule 602

and if the basis of knowledge relies upon hear-

say, I will sustain the objection pursuant to Rule

801, 802. So, with that limitation, I’m not going

to exclude the witness from testifying, but it

needs to be clear that this was based upon

observation and not based upon hearsay.

To this Elias’s counsel replied, “I understand, Your

Honor.” Counsel did not object to the exclusion of the

evidence and did not advance the argument that the

information sought was not hearsay or was otherwise

admissible. Under these circumstances, the Government

is correct that this court reviews for plain error.§

There is 10 such error here. Counsel gave no indica-

tion at the time that the exclusion of the testimony would

“seriously affect the fairness, integrity or public reputa-

tion of judicial proceedings, or . . . would amount to a

miscarriage of justice.”? Given the ample evidence that

8 See United States v. Sarno, 73 F.3d 1470, 1490 (9th Cir. 1995)

(reviewing for plain error where defendant failed to object

when court sustained an objection and struck testimony as

irrelevant).

9 United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

1993) (internal quotation marks and alteration omitted).

A-43

Elias knew that there was dangerous cyanide sludge in

the tank, any error was not plain.

V. EVIDENCE OF MATERIAL MISSTATEMENT

Viewing the evidence in the light most favorable to

the prosecution, there is evidence from which a rational

trier of fact could have found that Elias made a material

misstatement to OSHA investigators by representing that

he completed a confined space entry permit on August

27, 1996, when he did not in fact complete it until after

that date.1° The permit Elias signed states that it was

“issued” on August 27, 1996, at 10:30 a.m. After Domi-

nguez was injured, Elias told investigators that he had

completed a permit that day, though he described it as

“handwritten” and “not very formalized.” Elias declined,

however, to actually provide the permit to investigators

on that day, or even on the next day. Most damaging,

however, was a Kerr-McGee Corporation manager’s testi-

mony that early on the morning of August 28, Elias

visited him, inquired about the requirements for confined

space entries, and departed with Kerr-McGee’s safety

manual, which spelled out the requirements for a con-

fined space entry permit. Although this evidence is cer-

tainly not overwhelming, it is legally sufficient.

VI. SENTENCE

Under U.S.S.G. § 3D1.1, offense levels for multiple

counts are consolidated into a single “combined offense

10 Jackson, 443 U.S. at 319.

A-44

level.” In this case, that level was 36, yielding a sentenc-

ing range of 188-235 months. In turn, U.S.S.G. § 5G1.2,

which governs “Sentencing on Multiple Counts of Con-

viction,” provides that where, as here,

the sentence imposed on the count carrying the

highest statutory maximum is less than the total

punishment [the combined offense level dic-

tates], then the sentence imposed on one or

more of the other counts shall run consecutively,

but only to the extent necessary to produce a

combined sentence equal to the total punish-

ment. In all other respects, sentences on all

counts shall run concurrently. ... 1

The district court followed this guideline. Because the

statutory maximum for each of the individual counts of

conviction was less than the combined sentence, it imposed

the statutory maximum, with the concurrent/consecutive

nature of those sentences determined according to U.S.S.G.

§ 5G1.2(d). That Elias’s material misstatement conviction,

standing alone, would only have warranted a 12-18 month

sentence is immaterial. Elias simply overlooks the fact that

when offenses are grouped into a combined offense level, it

is that level — and not the individual offense levels — that

dictates his ultimate sentence.!2

AFFIRMED in part, VACATED in part, and

REMANDED.

11 U.S.S.G. 5G1.2(d).

12 See USSG §§ 3D1.1 and 3D1.4.

A-45

Unitep States District Court

District of Idaho

UNITED STATES JUDGMENT IN A

OF AMERICA CRIMINAL CASE

Vv (For Offenses Committed

; On or After

Allan Elias November 1, 1987)

(Filed May 5, 2000)

Case Number:

4:98CR00070-001

Craig Jorgensen

Defendant’s Attorney

THE DEFENDANT:

[ ]

pleaded guilty to count(s)

pleaded nolo contendere to count(s)

which was accepted by the court.

X was found guilty on count(s) 1, 2, 3, and 4

after a plea of not guilty.

Title & Nature of Date Count

Section Offense Concluded Number(s)

& USC. Knowing 08/27/1996 1

Section Endangerment

6928(e)

18 U.S.C. _ Disposal of 09/30/1996 2 and 3

Section 2 & Hazardous Waste

42 U.S.C. without a Permit

Section 6928

(d)(2)(A)

A-46

The defendant is sentenced as provided in pages 2

through 8 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on count(s)

X Count(s) 5 X is [ ] are dismissed on the

motion of the United States.

IT IS FURTHER ORDERED that the defendant shall

notify the United States attorney for this district within

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

Defendant’s Soc. Sec. 04/28/2000

114-28-0755 Date of Imposition of

Defendant’s DOB Judgment

01/16/1938 /s/ B. Lynn Winmill

Defendant’s USM No.: ling of Judicial

94520-023 —

Defendant’s Residence B. Lynn Winmill, United

Address: States District Judge

680 E 3rd N Name and Title of Judicial

Soda Springs, ID 83276 Officer

5/5/00

Date

Defendant’s Mailing

Address:

Same as Above

A-47

ADDITIONAL COUNTS OF CONVICTION

Date

Title & Nature of Offense Count

Section Offense Concluded Number(s)

18 U.S.C. False Statements 09/30/1996 4

Section 1001

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

a total total term of 204 months __, consisting of a

term of 180 months on count 1; a term of 24 months on

each of counts 2 and 3 to be served consecutive to count

1, but concurrent to each other; and a term of 60 months

on count 4 of which 36 months are to be served concur-

rent to count 1 and 24 months to be served consecutive to

Count 1 and concurrent to counts 2 and 3.

X The court makes the following recommendations to

the Bureau of Prisons: that the defendant be placed in

a facility in the State of California, close to his family.

X The defendant is remanded to the custody of the

United States Marshal.

[ ] The defendant shall surrender to the United States

Marshal for this district:

[ ] at [ ] am. [ ] p.m. on

[ ] as notified by the United States Marshal.

[ ] The defendant shall surrender for service of sentence

at the institution designated by the Bureau of Prisons:

[ ] before 2 p.m. on

A-48

[ ]. as notified by the United States Marshal.

[ ] as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to at

, with a certified copy of this judgment.

UNITED STATES MARSHAL

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 3 years ‘

consisting of 3 years on each count to be served concur-

rently.

The defendant shall report to the probation office in

the district to which the defendant is released within 72

hours of release from the custody of the Bureau of

Prisons.

The defendant shall not commit another federal, state, or

local crime.

NAA DIP ESE LA ADAIR RIE MH I

3 he sa a

——— or

A-49

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of

a controlled substance. The defendant shall submit to one

drug test within 15 days of release from imprisonment

and at least two periodic drug tests thereafter, as directed

by the probation officer.

X The above drug testing condition is suspended

based on the court’s determination that the defen-

dant poses a low risk of future substance abuse.

(Check, if applicable.)

X The defendant shall not possess a firearm as defined

in 18 U.S.C. § 921. (Check, if applicable.)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised

release that the defendant pay any such fine or resti-

tution that remains unpaid at the commencement of

the term of supervised release in accordance with the

Schedule of Payments set forth in the Criminal Mon-

etary Penalties sheet of this judgment.

The defendant shall comply with the standard condi-

tions that have been adopted by this court (set forth

below). The defendant shall also comply with the addi-

tional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION -

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

10)

11)

12)

A-50

the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;

the defendant shall support his or her dependents

and meet other family responsibilities;

the defendant shall work regularly at a lawful occu-

pation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer ten

days prior to any change in residence or employ-

ment;

the defendant shall refrain from excessive use of

alcohol;

the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distrib-

uted, or administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless

granted permission to do so by the probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer;

the defendant shall notify the probation officer

within seventy-two hours of being arrested or ques-

tioned by a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

A-51

enforcement agency without the permission of the

court;

13) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant's criminal record or per-

sonal history or characteristics, and shall permit the

probation officer to make such notifications and to

confirm the defendant’s compliance with such noti-

fication requirement.

SPECIAL CONDITIONS OF SUPERVISION

1) Defendant shall comply with the rules and regula-

tions of the Probation Department.

2) Defendant shall pay any special assessment and resti-

tution that is imposed by this judgement and that

remains unpaid at the commencement of supervised

release as a condition of supervision. Payments to be on a

monthly payment scheduled to be established and may

be periodically modified by the probation officer, pro-

vided the entire financial penalty is paid no later than the

termination of term of supervised release. Payments to be

made to Clerk of the Court, District of Idaho, 550 W. Fort

St., MSC 039, Boise, ID 83724. Clerk shall disburse restitu-

tion payments to the victim(s).

3) Defendant shall provide the probation officer with

access to any requested financial information. Defendant

shall not incur new credit charges or open additional

lines of credit without the approval of the probation

officer unless the defendant is in compliance with the

installment payment schedule.

A-52

4) Defendant shall not possess a firearm or other dan-

gerous weapon.

5) Defendant shall submit to a search of his person,

place of residence, or automobile at the direction of the

U.S. Probation Officer and submit to seizure of any con-

traband found therein.

Special conditions of supervised release shall supersede

any standard condition that is inconsistent with the spe-

cial conditions.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payments set forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals: $ 400.00 $ $ 6,300,836.00

[ ] If applicable, restitution amount

ordered pursuant to plea agreement..... $

FINE

The above fine includes costs of incarceration and/or

supervision in the amount of $

The defendant shall pay interest on any fine of more

than $2,500, unless the fine is paid in full before the

fifteenth day after the date of judgment, pursuant to 18

U.S.C. § 3612(f). All of the options on Sheet 5, Part B may

be subject to penalties for default and delinquency pur-

suant to 18 U.S.C. § 3612(g).

A-53

[ ] The court determined that the defendant does not

have the ability to pay interest and it is ordered that:

[ ] The interest requirement is waived.

[ ] The interest requirement is modified as fol-

lows:

RESTITUTION

+<+' The determination of restitution is deferred until

. An Amended Judgment in a Criminal Case

will be entered after such a determination.

X The defendant shall make restitution to the following

payees in the amounts listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportional payment

unless specified otherwise in the priority order or per-

centage payment column below.

Priority

*Total Amount of Order or

Amount Restitution Percentage

Name of Payee of Ordered of Payment

Scott

Dominguez $5,936,036.00 $5,936,036.00

Evergreen Site

Clean Up $364,750.00 $364,750.00

Totals: $ 6,300,836.00 $ 6,300,836.00

* Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18 for

offenses committed on or after September 13, 1994 but

before April 23, 1996.

a oe es Ris - eS

A-54

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal mone-

tary penalties shall be due as follows:

A X in full immediately; or

B []$ immediately, balance due (in accordance

with C, D, or E); or

C [ ] not later than ; or

D [ Jin installments to commence day(s) after the

date of this judgment. In the event the entire

amount of criminal monetary penalties imposed is

not paid prior to the commencement of supervi-

sion, the U.S. probation officer shall pursue collec-

tion of the amount due, and shall request the

court to establish a payment schedule if appropri-

ate; or

E [ Jin (e.g. equal, weekly, monthly, quarterly)

installments of $ over a period of

year(s) to commence day(s) after the date of

this judgment.

The defendant will be credited for all payments previ-

ously made toward any criminal monetary penalties

imposed.

Special instructions regarding the payment of criminal

monetary penalties:

$400 special assessment and $6,300,836.00 restitution con-

sisting of $5,936,036.00 to the accident victim and

$364,750.00, is due immediately. Payments to be made to

WRG Ee REAGAN ARTI OY YP aR H

sr itso py Thay me ya es HORE

A-55

Clerk of the Court, District of Idaho, 550 W. Fort St., MSC

039, Boise, ID 83724. Clerk shall disburse restitution pay-

ments to the victims. Interest on restitution is NOT

waived.

[ ] The defendant shall pay the cost of prosecution.

[ ] The defendant shall forfeit the defendant’s interest

in the following property to the United States:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment imposes a

period of imprisonment, payment of criminal monetary

penalties shall be due during the period of imprisonment.

All criminal monetary penalty payments, except those

payments made through the Bureau of Prisons’ Inmate

Financial Responsibility Program, are to be made as

directed by the court, the probation officer, or the United

States attorney.

STATEMENT OF REASONS

[ ] The court adopts the factual findings and guideline

application in the presentence report.

X The court adopts the factual findings and guideline

application in the presentence report except (see

attachment, if necessary): Court did not apply the

“Role in the Offense” Guideline at section 3B1.1(a)

and removed 4 points from the guideline calcula-

tion.

A-56

Guideline Range Determined by the Court:

Total Offense Level: — 36 __

Criminal History Category: _I |

Imprisonment Range: _ 188 to __235__ months

Supervised Release Range: _2_ to _3_ years

Fine Range: $ 20,000 to $ __ 200,000

X Fine waived or below the guideline range due

to substantial restitution.

Total Amount of Restitution: $ 6,300,836.00

[ ] Restitution is not ordered because the compli-

cation and prolongation of the sentencing pro-

cess resulting from the fashioning of a

restitution order outweighs the need to provide

restitution to any victims, pursuant to 18 US.

§ 3663(d).

[ ] For offenses committed on or after September

13, 1994 but before April 23, 1996 that require

the total amount of loss to be stated, pursuant

to Chapters 109A, 110, 110A, and 113A of Title

18, restitution is not ordered because the eco-

nomic circumstances of the defendant do not

allow for the payment of any amount of a

restitution order, and do not allow for the pay-

ment of any or some portion of a restitution

order in the forseeable future under any rea-

sonable schedule of payments.

[ ] Partial restitution is ordered for the following

reason(s):

[ ] The sentence is within the guideline range, that

range does not exceed 24 months, and the court

finds no reason to depart from the sentence called

for by application of the guidelines.

A-57

[ ] The sentence is within the guideline range, that

range exceeds 24 months, and the sentence is

imposed for the following reason(s):

[X] The sentence departs from the guideline range:

[ ] upon motion of the government, as a result of

defendant's substantial assistance.

[X] for the following specific reason(s):

Court departs upward from the total offense

level by 2 points pursuant to section 2Q1.2

application note 6 to result in a total offense

level of 36.

A-58

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

UNITED STATES )

OF AMERICA, ) Cr. No. 98-0070-E-BLW

Plaintiff, .

v. ) MEMORANDUM DECISION

ALLAN ELIAS, ) AND ORDER

Defendant.

)

INTRODUCTION

The defendant was convicted of four counts alleging

hazardous waste violations. He filed a motion to dismiss

three of those counts on the ground that the Court had no

jurisdiction over them. More specifically, he claims that

the federal laws contained in counts one, two, and three

were supplanted by the State of Idaho’s hazardous waste

laws when those laws were approved by the Environmen-

tal Protection Agency. The Court agrees with respect to

counts two and three, but disagrees as to count one. The

Court will therefore grant in part the motion to dismiss,

and will order that counts two and three be dismissed

and that the convictions on those counts be set aside. The

Court will deny the motion as to count one. Thus, the

defendant remains convicted of counts one and four. The

Court will set a date for sentencing in the separate Judg-

ment. The Court’s analysis is set forth below.

ponianeettanoal

asi dona a li panty teeters Wee = ata

evr Mae sae ALORS IO, x ire PRT fpr peta

A-59

ANALYSIS

Defendant Elias was convicted on four counts of

making false statements to the Government, improperly

handling hazardous waste, and endangering his

employees by exposing them to that waste. In his motion

to dismiss, Elias claims that the Court did not have juris-

diction over three of those counts. Elias claims that state

law supplanted analogous federal law, leaving the Gov-

ernment without authority to charge Elias with the fed-

eral offenses contained in the first three counts of the

indictment.

The first three counts of the indictment alleged viola-

tions of the Resource Conservation and Recovery Act

(RCRA). That Act creates a federal program governing

management of hazardous waste. RCRA contains a provi-

sion allowing the Environmental Protection Agency

(EPA) to authorize a state to administer and enforce a

hazardous waste program. See 42 U.S.C. § 6926(b). To

receive such authorization, the state’s hazardous waste

program must be substantially equivalent to the federal

law. In this case, the EPA approved Idaho’s hazardous

waste program in 1995, just over a year before the inci-

dents in this case occurred. See 40 C.F.R. § 272.650.

Having obtained EPA approval, Idaho was autho-

rized to operate its program “in lieu of the Federal pro-

gram under this Subchapter in such State and to issue

and enforce permits for the storage, treatment, or dis-

posal of hazardous waste.” 42 U.S.C. § 6926(b). Elias

asserts that the “in lieu of” language means that the

Idaho hazardous waste laws supplant the analogous fed-

eral laws, leaving the EPA without authority to enforce

A-60

the supplanted federal laws. The Government responds

that even after approving Idaho's hazardous waste pro-

gram, the EPA retains the authority to enforce RCRA in

Idaho. To resolve this dispute, the Court must examine

the relationship between the EPA and the states in enforc-

ing hazardous waste laws.

The plain meaning of the phrase “in lieu of” as used

in § 6926(b) is that approved state hazardous waste laws

supplant their RCRA counterparts. That is precisely how

the EPA itself interpreted § 6926(b) in its Enforcement

Memorandum: “When EPA authorizes a [state] hazardous

waste management program . .- - the state program

becomes the RCRA program in that state. . . . In other

words, the only hazardous waste program in effect in that

state is the state program... - ” See EPA Enforcement

Memorandum (attached as exhibit 1 to Brief of Elias) at 15-8."

The Supreme Court appears to agree, having noted that

RCRA’s provisions are “subject to displacement by an ade-

quate state counterpart.” Department of Energy v. Ohio, 503

U.S. 607, 611 (1992) (emphasis added).

While the state program becomes the RCRA program

once approved by the EPA, the EPA is not barred from all

enforcement activity. The provisions of § 6928(a)(2) state

that

in the case of a violation of any requirement of

this subchapter where such violation occurs in a

1 The EPA’s Enforcement Memorandum was authored by

the EPA’s Enforcement Counsel in 1982. The Government makes

no contention that the Memorandum does not accurately reflect

the EPA’s views or should be excluded from consideration. The

Court will therefore consider the Memorandum.

Sp ph AE Sie RY PELE NE ALG A

A-61

State which is authorized to carry out a hazard-

ous waste program . . . the [EPA] shall give

notice to the State in which such violation has

occurred prior to issuing an order or commenc-

ing a civil action under this section.

This provision clearly contemplates that the EPA will

have a continuing enforcement role even after it has

approved a state program. This interpretation is con-

firmed by the legislative history behind § 6928(a)(2):

This legislation permits the states to take the

lead in the enforcement of the hazardous waste

laws. However, there is enough flexibility in the

act to permit the [EPA], in situations where a

state is not implementing a hazardous waste

program, to actually implement and enforce the

hazardous waste program against violators in a

state that does not meet the federal minimum

requirements. Although the [EPA] is required to

give notice of violations of this title to the states

with authorized hazardous waste programs, the

[EPA] is not prohibited from acting in those

cases where the states fail to act, or from with-

drawing approval of the state hazardous waste

plan and implementing the federal hazardous

waste program pursuant to Title III of this act.

1976 U.S.C.C.A.N. 6269.

A similar description of the EPA/state relationship is

contained in the EPA regulations approving Idaho’s haz-

ardous waste program: “Idaho has primary responsibility

for enforcing its hazardous waste program. However,

EPA retains the authority to exercise its enforcement

authorities under sections [6927, 6928, 6934, and 6973] of

RCRA. ...” See 40 C.ER. § 272.650(c) (1999). The Ninth

Circuit, in Washington v. United States EPA, 752 F.2d 1465,

A-62

1467 (9th Cir. 1985), interpreted the law similarly: “Where

a state program is in effect, EPA retains certain oversight

and enforcement powers, including the power to with-

draw authorization if the state program fails to comply

with the federal requirements.” Thus, by approving a

_ state’s program, the EPA does not lose the authority to

enforce hazardous waste laws.

But what laws does the EPA enforce - the RCRA or

the state’s laws? According to the EPA’s Enforcement

Memorandum, it would be enforcing state laws: “[T]he

only hazardous waste program in effect in that state [with

an EPA-approved program] is the state program, and the

state laws and regulations are those which must be

enforced by EPA should federal enforcement action be

necessary.” EPA Enforcement Memorandum, supra, at 15-8.?

The EPA also took this position in Harmon Industries, Inc.

v. Browner, 191 F.3d 894, 899 (8th Cir. 1999) where it

argued that RCRA “authorizes either the state or the EPA

to enforce the state’s regulations. . . .

That interpretation is confirmed by §§ 6928(3), (4),

and (5). Those provisions all authorize EPA enforcement

based on the failure of any person to comply with “regu-

lations promulgated by the Administrator (or by a State

in the case of an authorized State program) under this

subchapter.” These provisions clearly contemplate the

2 Later in the Memorandum, the EPA reaffirms that

interpretation: “The federal program [in a state with an EPA-

approved program] ceases to exist in that state, except for the

potential of federal enforcement of the state program. ...” Id. at

1513.

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EPA enforcing state laws, not their analogous counter-

parts in RCRA, in those states having EPA-approved pro-

grams.

Any other interpretation would ignore the “in lieu

of” language in § 6926(b). If the EPA could enforce RCRA

provisions that had analogous state law counterparts in

an EPA-approved program, the “in lieu of” language

would essentially be stricken from § 6926(b). Such a

reading would violate the canon of statutory construction

that every part of the statute be given meaning. See U.S. v.

Garcia, 112 F.3d 395, 398 (9th Cir. 1997) (rejecting inter-

pretation of statute in criminal case that would ignore a

phrase contained in the statute).

The EPA asserts, however, that the Ninth Circuit held

in Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986), that

the EPA retains the right to pursue enforcement of even

those RCRA provisions that have analogous state law

EPA-approved provisions. The Court disagrees, because

that issue was never raised or addressed in Wyckoff.

The dispute in Wyckoff began when the EPA found

hazardous wastes leaking into the soil from two wood

treatment plants located in the state of Washington and

owned by Wyckoff. The EPA, under the authority of

RCRA’s § 6934, ordered Wyckoff to submit written pro-

posals for monitoring the sites. Section 6934 states that

whenever the EPA finds that hazardous wastes “may

present a substantial hazard to human health or the envi-

ronment,” the EPA may order the owner of a facility to

conduct monitoring to ascertain the “nature and extent of

the hazard.”

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Wyckoff refused to conduct the monitoring on the

ground that Washington had an EPA approved program,

divesting the EPA of all authority whatsoever to enforce

any provision of RCRA. The Ninth Circuit disagreed,

holding that even in a state with an EPA-approved pro-

gram, the EPA “retains certain oversight and enforcement

powers” and that § 6934 is “one of the sections which the

EPA retained its powers of oversight and enforcement.”

Id. at 1201 (quoting from Washington, 752 F.2d at 1467).

There was no discussion in Wyckoff as to whether

Washington’s EPA-approved program had a counterpart

to RCRA’s § 6934. If there was an analogous provision,

Wyckoff never raised the argument, as Elias has here, that

the EPA would be limited to enforcing only the EPA-

approved state law provision. Thus, Wyckoff understand-

ably never addressed the issue whether the EPA has the

authority to enforce a RCRA provision that has a state

law counterpart under an EPA-approved state program.°

As the Court discussed above, the “in lieu of” lan-

guage must be given some meaning. The most reasonable

3 While Wyckoff never addressed the issue, RCRA § 6934

does have a counterpart in Washington law. Section

§ 70.105D.030 of the Washington Code permits State authorities

to “require potentially liable persons to investigate any

releases . . . including but not limited to inspecting, sampling, or

testing to determine the nature or extent of any release or

threatened release.” However, that provision was not passed

until 1988, about two years after Wyckoff. It is unclear whether

there was a similar provision in Washington law at the time the

EPA approved Washington’s program just prior to the Wyckoff

decision. All this speculation really leads nowhere, because it

cannot alter the fact that Wyckoff never discussed this issue.

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interpretation of that phrase is that it substitutes an EPA-

approved state program for that program’s RCRA coun-

terparts. As the EPA’s own Enforcement Memorandum

concludes, the EPA then enforces the approved state

laws, not the RCRA counterparts.

Wyckoff says nothing to the contrary. Wyckoff does

allow the EPA to enforce RCRA statutes in a state with an

approved program. But Wyckoff never addresses whether

it would have reached the same result if the RCRA statute

at issue had a counterpart in Washington's approved

program. In fact, Wyckoff could not have done so and

remained true to settled principles of statutory construc-

tion. To allow the EPA to enforce RCRA provisions that

have counterparts in approved state programs is to

ignore the phrase “in lieu of” in § 6926(b). Such an

interpretation would make EPA approval a meaningless

act.

Thus, the Court refuses to extend Wyckoff into an area

that the decision itself never addressed. That is, the Court

refuses to interpret Wyckoff as permitting the EPA to

enforce even those RCRA statutes that have counterparts

in the approved state program. Instead, the Court will

interpret Wyckoff as permitting the EPA to enforce those

provisions of RCRA that have no counterpart in the

approved state program.

To summarize, the Court finds as follows: (1) EPA-

approved state hazardous waste laws supplant their

RCRA counterparts; (2) The EPA retains authority to

enforce those approved state laws; (3) When the EPA

approves a state program, the EPA loses the authority to

enforce those RCRA provisions with counterparts in the

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approved state program; (4) When the EPA approves a

state program, the EPA retains the authority to enforce

RCRA provisions that have no counterparts in the

approved state program.

The Court will now apply these general findings to

the case at hand. Elias challenges counts one, two, and

three of the indictment. All three counts allege violations

of RCRA, not Idaho law. The issue is whether the RCRA

provisions in counts one, two, and three, of the indict-

ment were supplanted by Idaho’s own hazardous waste

laws, leaving the Government without authority to pur-

sue the RCRA claims.

Count one charged Elias with a violation of § 6728(e)

for knowingly endangering his employees by exposing

them to hazardous waste. There is no counterpart to this

statute in the Idaho program. Count two of the indict-

ment charges Elias with disposing of hazardous waste

without a permit on August 26 and 27, 1996, in violation

of § 6928(d)(2)(A). Count three contains a similar charge

that he disposed of hazardous waste without a permit in

September, 1996. These two charges under § 6928(d)(2)(A)

have a direct counterpart in the Idaho program - Idaho

Code § 39-4408(1), that similarly forbids disposing of

hazardous waste without a permit. The enforcement and

criminal penalty provisions of the Idaho Code, §§ 39-4413

to 4415, are also part of the authorized Idaho program

and counterparts to the RCRA enforcement and penalty

provisions.*

4 The Government argues in its briefing that Idaho Code

§§ 39-4413 to 4415 are not part of the authorized Idaho program.

;

‘

CB PRAT APRA SHE eR NS Go EIR

A-67

Thus, there is an Idaho counterpart for the RCRA

violation alleged in counts two and three, but none for

count one. In accordance with the four findings summa-

rized above, the EPA retained the authority to indict Elias

for the crime charged in count one - knowing endanger-

ment — because there was no counterpart to that charge

under Idaho’s approved program. The Court will there-

fore deny Elias’s motion to dismiss count one. With

regard to counts two and three, however, the EPA

retained only the authority to indict Elias under the

applicable state law, not its RCRA counterpart.

That state law is not cited anywhere in counts two or

three, or elsewhere in the indictment. An essential pur-

pose of the indictment is to give a defendant notice of the

charge so that he may defend or plead his case ade-

quatel”. James, 980 F.2d at 1316. Generally, the failure of

an indictment to detail each element of the charged

The EPA regulations adopting Idaho’s program state that these

statutory provisions “although not incorporated by reference,

are part of the authorized State program.” See 40 C.F.R.

§ 272.651(b)(2). The Government apparently is relying on the

“not incorporated by reference” language. The regulation

explaining the “incorporation by reference” language says

nothing that would support the Government’s reading. See 40

C.ER. § 272.2. In fact, the principal regulation dealing with the

EPA’s approval process states simply that the EPA “shall make a

final determination whether or not to approve the state’s

program.” See 40 C.FR. § 271.20(e). That regulation does not

state that “incorporation by reference” plays any part in the

approval process. Here, the EPA has stated that Idaho Code

§§ 39-4413 to 4415 are part of the EPA-authorized program. The

Government has offered no credible support for its contention

that these statutes were in fact not approved. The Court will

therefore assume that these Idaho statutes are EPA-approved.

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offense constitutes a fatal defect. Id. at 1316. “A claim of a

defective indictment can be raised at any time, but chal-

lenges should be made at the earliest possible moment.

Indictments which are tardily challenged are liberally

construed in favor of validity.” United States v. James, 980

F.2d 1314, 1316 (9th Cir. 1992) (internal punctuation and

citations omitted). The court should not reverse the con-

viction in the absence of prejudice to the defendant. See

United States v. Normandeau, 800 F.2d 953, 958 (9th Cir.

1986).

The Government asserts that Elias was not preju-

diced because the law under the Idaho statutes is the

same as RCRA. However, Elias points to evidence, in the

form of letters from Idaho’s Department of Environmen-

tal Quality, the agency administering Idaho’s hazardous

waste laws, stating that mining waste is not covered by

the Idaho hazardous waste law. Elias was charged with

illegally disposing of cyanide-bearing waste, which he

produced in “the course of attempting to extract silver

from mining waste” according to the indictment. The

mining waste defense would have been completely irrele-

vant under the RCRA charges, but may be relevant if

Elias was charged under the Idaho law.

If Elias must show prejudice, he has done so. How-

ever, it would appear to the Court that the failure of the

indictment to cite the applicable statute is prejudice

enough. Either way, counts two and three of the indict-

ment are insufficient, and must be dismissed.

—.

A-69

ORDER

In accordance with the Memorandum Decision set

forth above,

NOW THEREFORE IT IS HEREBY ORDERED, that

the motion to dismiss (docket no. 208) is hereby

GRANTED IN PART AND DENIED IN PART. It is

granted to the extent that it seeks to dismiss counts two

and three from the indictment and to set aside the convic-

tions on counts two and three. It is denied in all other

respects. Specifically, the defendant remains convicted on

counts one and four of the indictment.

IT IS FURTHER ORDERED, that sentencing shall be

held on April 28, 2000, at 9:00 a.m. in the Federal Court-

house in Pocatello, Idaho.

Dated this 16th day of March, 2000.

/s/ B. Lynn Winmill

B. LYNN WINMILL

CHIEF JUDGE, UNITED

STATES DISTRICT COURT

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

UNITED STATES OF )

AMERICA, ) Cr. No. 98-0070-E-BLW

Plaintiff, ) | MEMORANDUM

; DECISION AND ORDER

ALLAN BLIAS, ) (Filed Apr. 26, 2000)

)

Defendant.)

)

INTRODUCTION

The Court has before it the Government’s motion

seeking reconsideration of the Court’s decision dismiss-

ing counts two and three of the indictment and setting

aside the conviction on those counts. The Court also has

before it defendant Elias’s motion seeking reconsidera-

tion of the Court’s decision rejecting his attempt to dis-

miss count one of the indictment, and Elias’s motion to

dismiss count four. The Court will grant the Govern-

ment’s motion and deny Elias’s motions. Accordingly, the

Court will reinstate the conviction of Elias on counts two

and three. The sentencing on April 28, 2000, will therefore

proceed on the basis that Elias was convicted of counts

one, two, three, and four, The Court find

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