Opposition Brief — Elias v. United States

3 ppteroe ‘ourt, [ 13

(2) Suprtae Cone US,

JULI5 2082

No. 01-1502

In the Supreme Court of the Bnies Dass |

ALLAN ELIAS, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

DAVID M. UHLMANN 7

DAVID C. SHILTON

TODDS. KIM

Attorneys

Department of Justice

os Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

The Resource Conservation and Recovery Act of

1976 (RCRA), 42 U.S.C. 6901 et seqg., regulates the

transportation, treatment, storage, and disposal of haz-

ardous waste. Petitioner was convicted under RCRA’s

criminal provisions of improperly storing and disposing

of hazardous cyanide-bearing waste that seriously

injured an individual. The questions presented are:

1. Whether the court of appeals correctly rejected

petitioner’s defense that the United States loses its

authority to enforce the criminal provisions of RCRA

once the Environmental Protection Agency (EPA)

authorizes a State to operate a RCRA hazardous waste

program.

2. Whether the court of appeals correctly concluded

that the United States adequately demonstrated that

petitioner stored and disposed of hazardous waste.

3. Whether the court of appeals correctly rejected

petitioner’s defense that the United States had to show

that the waste was hazardous through a particular test

in an EPA guidance manual.

4. Whether, in the face of allegations of jury tam-

pering, the court of appeals correctly placed the burden

on the United States to show that the alleged jury

tampering did not cause prejudice and placed the bur-

den on petitioner to show that, notwithstanding the

absence of prejudice, there existed juror bias.

(1)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984)

Electric Serv., In re, 1 E.A.D. 947 (EPA Env. App. Bd.

1985)

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

(8th Cir. 1999)

Huddleston v. United States, 485 U.S. 681 31 (1988) pedeenia

Irvin v. Dowd, 366 U.S. 717 (1961)

Jackson v. Virginia, 443 U.S. 307 (1979)

Remner v. United States, 347 U.S. 227 (1954) .........cccsssee

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

(10th Cir. 1992)

United States v. Dee, 912 F.2d 741 (4th Cir. 1990),

cert. denied, 499 U.S. 919 (1991)

United States v. Fiorillo, 186 F.3d 1136 (9th Cir.

1999), cert. denied, 528 U.S. 1142 (2000)

United States v. Flanagan, 126 F. Supp. 2d 1284

(C.D. Cal. 2000)

United States v. Freeman, 30 F.3d 1040 (8th Cir.

1994)

United States v. Hansen, 262 F.3d 1217 (11th Cir.

2001), cert. denied, 122 S. Ct. 2326 (2002)

United States v. Henry, 136 F.3d 12 (1st Cir.

1998)

15

15

Cases—Continued: Page

United States v. Johnson & Towers, Inc., 741 F.2d

662 (3d Cir. 1984), cert. denied, 469 U.S. 1208

(1985) 15

United States v. Kelly, 167 F.3d 1176 (7th Cir.

1999) 15

United States v. Laughlin, 10 F.3d 961 (2d Cir.

1993), cert. denied, 511 U.S. 1071 (1994) 15

United States v. MacDonald & Watson Waste Oil

Co., 933 F.2d 35 (1st Cir. 1991) 10, 13

United States v. Power Eng’g Co., 125 F. Supp. 2d

1050 (D. Colo. 2000), appeal pending, No. 01-1217

(10th Cir. argued Mar. 20, 2002) 17-18

United States v. Sims Bros. Constr., Inc., 277 F.3d

734 (5th Cir. 2001) 10

United States v. Self, 2 F.3d 1071 (10th Cir. 1998) .......... 15

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

Cir. 1993), cert. denied, 513 U.S. 1128 (1995) .............s000 23

United States v. Williams, 195 F.3d 823 (6th Cir.

1999) 15

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

(1992) 12, 15, 16

United Techs. Corp. v. EPA, 821 F.2d 714 (D.C.

Cir. 1987) 3

Wainwright v. Witt, 469 U.S. 412 (1985) 24

Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986) ......... 13

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7413 13

Clean Water Act, 33 U.S.C. 1251 et seq.

33 U.S.C. 1319(a) 13

33 U.S.C. 1323(a) 16

33 U.S.C. 1342(b) 13

33 U.S.C. 1342() 13

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq.

V

Statutes and regulations—Continued: Page

42 U.S.C. 6902(a)(7) 3

42 U.S.C. 6921 3,8

42 U.S.C. 6921-6939e (Subtit. C) 2,3, 9,14

- 42, U.S.C. 6922 8

42 U.S.C. 6922-6924 (1994 & Supp. V 1999) ............000. 3

42 U.S.C. 6923 9

42 U.S.C. 6924 (1994 & Supp. V 1999) 9

42 U.S.C. 6925 (1994 & Supp. V 1999) 3,9

42 U.S.C. 6925(c) 13

42 U.S.C. 6925(c)(1) 10

42 U.S.C. 6926 3, 9, 14

42 U.S.C. 6926(b) 3, 8, 9,11

42 U.S.C. 6926(d) 10

42 U.S.C. 6926(e) 4

42 U.S.C. 6927(a) 9

42 U.S.C. 6928 4, 12, 13,17

42 U.S.C..6928(a) 9,13

42 U.S.C. 6928(a)(1) 4,13

42 U.S.C. 6928(a)(2) 4,14

42 U.S.C. 6928(a)(3) 4,11

42 U.S.C. 6928(d) 9, 10, 13, 14, 16

42 U.S.C. 6928(d)-(e) 4,19

42 U.S.C. 6928(d)(2) 2,7

42 U.S.C. 6928(d)(3) 14

42 U.S.C. 6928(d)(4) 14

42 U.S.C. 6928(d)(5) 14

42 U.S.C. 6928(e) 3,7

42 U.S.C. 6930 3

Safe Drinking Water Act, 42 U.S.C. 300g-3 13

18 U.S.C. 1001 £7

40 C.F.R.:

Pt. 260:

Section 260.11(a) 22

Section 260.11(a)(11) 22

Section 260.10 19, 21

Section 260.23 22

Regulations—Continued: Page

Pt. 261 3

Section 261.3(a)(2)(i) 19, 22

Section 261.5(a) 20

Section 261.5(b) 20

Section 261.5(g) 20

Section 261.23 19

Section 261.23(a)(5) 19, 20, 21

Pts. 262-266 3

Pt. 270 3

Section 271.1(f) 11

Section 272.651 &

Miscellaneous:

55 Fed. Reg. 50,327-50,401 (1990) 13

H.R. Rep. 1491, 94th Cong., 2d Sess. (1976) 2

In the Supreme Court of the Gnited States

No. 01-1502

ALLAN ELIAS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A37) is reported at 269 F.3d 1003. An accompanying

memorandum decision (Pet. App. A38-A44) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 23, 2001, and amended on December 21, 2001.

A petition for rehearing was denied on January 4, 2002

(Pet. App. A127). The petition for a writ of certiorari

was filed on April 4, 2002. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the District of Idaho, petitioner was convicted

on one count of storing or disposing of hazardous waste

without a permit, knowing that his actions placed

others in imminent danger of death or serious bodily

injury, in violation of 42 U.S.C. 6928(e); two counts of

improper disposal of hazardous waste without a permit

in violation of 42 U.S.C. 6928(d)(2); and one count of

making material false statements to government in-

vestigators, in violation of 18 U.S.C. 1001. Petitioner

was sentenced to 204 months’ imprisonment and or-

dered to pay restitution in the amount of $6.3 million.

The court of appeals affirmed the conviction and sen-

tence of imprisonment, but set aside the restitution

order. Pet. App. A1-A35.

1. Congress enacted the Resource Conservation and

Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq., to

address increasingly serious environmental and health

dangers arising from the generation, management, and

disposal of waste. Congress’s overriding concern was

“the effect on the population and the environment of

the disposal of discarded hazardous wastes—those

which by virtue of their composition or longevity are

harmful, toxic or lethal” and “present a clear danger to

the health and safety of the population and to the

quality of the environment.” H.R. Rep. 1491, 94th

Cong., 2d Sess. 3 (1976). Through Subtitle C of RCRA,

42 U.S.C. 6921-6939e, Congress created a nationwide

program for protecting the public from the dangers of

improper hazardous waste disposal. Subtitle C estab-

lishes a “‘cradle-to-grave’ regulatory structure oversee-

ing the safe treatment, storage and disposal of hazard-

3

ous waste.” United Techs. Corp. v. EPA, 821 F.2d 714,

716 (D.C. Cir. 1987).

RCRA charges the Environmental Protection

Agency (EPA) with responsibility to establish a com- —

prehensive national regulatory program for hazardous

waste management. EPA must identify hazardous

wastes, 42 U.S.C. 6921; see 40 C.F.R. Pt. 261, which

triggers notification requirements for facilities engaged

in hazardous waste activity, 42 U.S.C. 6930. EPA must

also prescribe regulatory standards for generators and

transporters of hazardous waste and owners and

operators of hazardous waste treatment, storage, and

disposal facilities. 42 U.S.C. 6922-6924 (1994 & Supp V

1999); see 40 C.F.R. Pts. 262-266. In addition, EPA

must establish a permit program for owners and opera-

tors of such facilities. 42 U.S.C. 6925 (1994 & Supp. V

1999) ; see 40 C.F .R. Pt. 270.

RCRA also creates a process by which a State may

request EPA to “authorize” a state hazardous waste

program to operate “pursuant to this subchapter,”

meaning Subtitle C of RCRA. See 42 U.S.C. 6926 (Pet.

App. A128-A132). (Subtitle C of RCRA is codified as

Subchapter III of Chapter 82 of Title 42 of the United

States Code.) To receive authorization, a state regula-

tory program must be equivalent to and consistent with

the federal program and must provide for adequate

enforcement. 42 U.S.C. 6926(b).

RCRA directs EPA to ensure that hazardous wastes

are managed nationally in a responsible manner.

42 U.S.C. 6902(b). At the same time, it has long been a

federal goal and EPA policy to encourage and support

States that seek authorization for their hazardous

waste management programs. 42 U.S.C. 6902(a)(7).

Recognizing both the national interest in consistent and

effective implementation of the RCRA program and the

4

state interest in program administration at the local

level, RCRA provides for the co-existence of indepen-

dent federal and state authority in authorized States. |

Thus, while States can assume responsibility for pro-

gram administration at the local level, EPA has con-

tinuing oversight responsibilities concerning the activi-

ties regulated under state programs. For example,

EPA has authority to revoke a state-issued permit if

the permittee fails to comply with RCRA requirements,

42 U.S.C. 6928(a)(3), and to withdraw program authori-

zation if the State is not administering its program in

accordance with RCRA, 42 U.S.C. 6926(e).

RCRA also vests the federal government with inde-

pendent authority to take direct enforcement action in

States with authorized hazardous waste programs.

42 U.S.C. 6928 (Pet. App. A133-A140). For instance,

EPA may issue compliance orders and assess admini-

strative civil penalties against those who violate RCRA

in such States, and it may also request the Justice

Department to commence a judicial action seeking in-

junctive relief and civil penalties. 42 U.S.C. 6928(a)(1).

In either instance, Congress has directed EPA to give

notice to the State before “issuing an order or com-

mencing a civil action under this section.” 42 U.S.C.

6928(a)(2). The United States may also seek federal

criminal penalties against persons who knowingly vio-

late RCRA requirements, including persons who fail to

obtain, or violate the requirements of, “a permit under

this subchapter.” 42 U.S.C. 6928(d)-(e).

2. Petitioner owned Evergreen Resources, a fertil-

izer company located near Soda Springs, Idaho. Pet.

App. A2. In August 1996, petitioner decided to store

sulfuric acid in a 25,000-gallon tank that held at least

one to two tons of cyanide-laced sludge. Ibid. Peti-

tioner knew, based on his prior use of the tank, that the

5

sludge contained cyanide. Ibid.; id. at A38-A39. He

decided that the sludge, which was hardened and more

than a foot deep, had to be disposed of before he could

use the tank for sulfuric acid storage. Id.at A2. __

On August 26, 1996, petitioner ordered four of his

employees, Bryan Smith, Gene Thornock, Darrin

Weaver, and Scott Dominguez, to enter the tank and

wash the sludge out of a valve opening in the end. Pet.

App. A2. Despite Smith’s repeated requests, petitioner

failed to provide any safety equipment. Ibid. Conse-

quently, Dominguez and Weaver entered the tank

wearing only their regular work clothes. Jd. at A2-A3.

After about fifteen minutes, they realized that the

sludge could not be washed out the small valve opening,

and they exited. Jd. at A3. Both complained of sore

throats and nasal passages. Ibid.

The next morning, on August 27, 1996, petitioner met

with his employees, who told him of the difficulties of

the day before and tha health effects they had suffered.

Pet. App. A3. Smith again insisted on the necessary

safety equipment. Ibid. Petitioner said he would pro-

vide safety equipment, but he directed his employees to

commence cleaning the tank without the equipment and

stated that he expected the tank to be cleaned out that

morning. Ibid. On past occasions, petitioner had simi-

larly failed to take adequate safety precautions to

protect employees from cyanide exposure. Id. at A39.

After cutting a bigger drainage opening in the end of

the tank, Dominguez and Weaver again entered the

tank with no safety equipment. Pet. App. A3. 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. Ibid. Thornock

and Smith unsuccessfully tried to get Dominguez out of

the tank, which had only a 22-inch manhole at the top.

6

Ibid. When firefighters arrived to rescue Dominguez,

he was in severe respiratory distress and in danger of

dying. Ibid.

After extricating Dominguez, the fire chief asked

petitioner whether cyanide might be in the tank. Pet.

App. A3. Petitioner insisted that he had no knowledge

of anything in the tank other than water and sludge,

which the fire chief understood to mean mud. [bid.

After Dominguez was rushed to the hospital, the

treating physician concluded that the most likely cause

of his condition was cyanide poisoning. Id. at A3-A4.

He called petitioner and asked whether the tank might

contain cyanide, to which petitioner again replied no.

Id. at A4. The doctor nonetheless ordered a cyanide

antidote kit, to which Dominguez responded positively.

Ibid. Blood tests showed extremely toxic levels of

cyanide in his body. Ibid.

Dominguez now suffers from permanently debilitat-

ing injuries, including severe neurological impairment.

Pet. App. A81; Tr. 1383-1385, 3226-3228. He exhibits

symptoms like those associated with Parkinson’s dis-

ease, with slow and rigid muscle movements, poor bal-

ance, and a very “flat” demeanor. Tr. 3194, 3199-3201.

He cannot drive or hold a job or care for himself for any

extended periods. Tr. 3268-3273. He has great diffi-

culty feeding himself, and his parents must wake up

several times a night to turn him over in bed. Tr. 3268-

3269. His symptoms are classic results of cyanide

poisoning. Tr. 3199-3200, 3216-3224, 3226-3227, 3523.

The day Dominguez was injured, petitioner told

investigators that he had completed a confined space ©

entry permit, but he declined to show it to them. Pet.

App. A4. Early the next morning, petitioner visited an

acquaintance at a nearby company, where he inquired

about the requirements for confined space entries and

7

departed with a copy of a safety manual that spelled out

the requirements for a confined space entry permit.

Ibid . The permit that petitioner eventually provided to

investigators stated that it was issued on August 27,

1996, at 10:30 a.m. Ibid.

Petitioner had a long history of failures to handle

cyanide and confined space entries properly or to pre-

pare his employees to do so. Pet. App. A38-A39. His

previous failures and attempts to evade enforcement

were exhaustively documented at trial. E.g., Tr. 1938-

1957, 2012-2034, 2074-2075, 2155-2164, 2182-2189, 2273-

2331, 2343-2345, 2551-2562, 2826-2830, 3099-3104, 3182-

3183.

‘8. A federal grand jury returned an indictment

against petitioner. Pet. App. A4, A45. Count I charged

that he had stored or disposed of hazardous waste with-

out a permit, knowing that his actions placed others in

imminent danger of death or serious bodily injury in

violation of 42 U.S.C. 6928(e). Pet. App. A4-A5, A45.

Counts II and III charged petitioner with improper dis-

posal of hazardous waste without a permit in violation

of 42 U.S.C. 6928(d)(2). Pet. App. A5, A45. Count IV

charged him with a violation of 18 U.S.C. 1001 for

making material misstatements relating to the confined

space entry permit that he alleged was prepared on

August 27, 1996. Pet. App. A5, A47. The jury found

petitioner guilty on all four counts. Jd. at A5, A465.

4. The court of appeals affirmed the conviction and

the resulting seventeen-year prison sentence in a pub-

lished opinion and an unpublished memorandum. Pet.

App. Al-A44. Although petitioner raised and the court

ruled on numerous issues, only four are relevant here.

First, the court rejected petitioner’s defense that the

United States lacks authority to enforce the criminal

penalties set out in RCRA in States with authorized

8

hazardous waste programs. Id. at A6-A14. Second, the

court ruled that the United States had to demonstrate

only that some of the sludge was’ hazardous in order to

prove the RCRA counts, and it rejected petitioner’s

assertion that the United States had to examine what

petitioner considered a more “representative sample”

of all the waste from the tank. Jd. at A15-A17. Third,

the court held that the United States was not required

to employ a test for “hazardous” levels of cyanide that

EPA published in a guidance document in 1985 and

that, in any event, that test did not undermine the

conclusion that the waste here was hazardous. Id. at

A21-A24. Fourth, the court affirmed the district court’s

conclusion that a new trial was not required on account

of two jury members’ belief that petitioner’s brief

greeting to another juror had consisted of a joking offer

of a bribe. Jd. at A28-A3z2.

ARGUMENT

1. Petitioner contends (Pet. 9-17) that RCRA does

not grant the United States the authority to bring an

enforcement action for violations of RCRA permitting

requirements in States that are authorized, under

RCRA, to issue state permits for storage and disposal

of hazardous waste. See 42 U.S.C. 6926(b); see also 40

C.F.R. 272.651 (EPA’s authorization of Idaho’s pro-

gram). The court of appeals correctly rejected that

argument, which rests on a fundamental misapprehen-

sion of RCRA and the resulting hazardous waste

regulatory program. See Pet. App. A6-A14.

a. As explained above (pp. 2-4, supra), RCRA

creates a national program for regulation of hazardous

wastes. It directs EPA to set out national standards

identifying hazardous wastes, 42 U.S.C. 6921, and regu-

lating their generation, 42 U.S.C. 6922, transportation,

9

42 U.S.C. 6923, and treatment, storage, and disposal,

42 U.S.C. 6924 (1994 & Supp. V. 1999). RCRA also

creates a national program, administered by EPA, for

issuing permits to persons who own or operate facilities

for treatment, storage, and disposal of hazardous

wastes. 42 U.S.C. 6925 (1994 & Supp. V. 1999). RCRA

additionally provides, however, that individual States

may develop their own hazardous waste programs.

42 U.S.C. 6926. If a State develops a program that is

consistent with RCRA’s requirements, and EPA

“authorizes” the program, then the State program

operates “pursuant to this subchapter” (i.e., Subtitle C

of RCRA). 42 U.S.C. 6926(b).

The fact that EPA has authorized a state hazardous

waste program does not mean that the federal gov-

ernment thereafter lacks authority to enforce RCRA

requirements, including the requirements of the

authorized state program. Rather, RCRA explicitly

preserves that federal authority. See, ¢.g., 42 U.S.C.

6927(a) (preserving EPA’s authority to request infor-

mation from “any person” who stores, treats, trans-

ports, handles, or disposes of hazardous wastes); 42

U.S.C. 6928(a) (preserving EPA’s authority to issue a

compliance order to “any person” who is in violation of

“any requirement of this subchapter”); 42 U.S.C.

6928(d) (subjecting “[a]Jny person” who knowingly vio-

lates RCRA requirements to federal criminal sanc-

tions).

Petitioner’s contrary view rests on a misreading of

the relevant provisions. Petitioner mistakenly suggests

that Section 6926 of RCRA allows States to “opt out of

the federal RCRA program.” Pet. 10; see id. at 14.

Quite the opposite is true. Section 6926 allows States to

opt into RCRA by developing a “hazardous waste pro-

gram pursuant to this subchapter.” 42 U.S.C. 6926(b)

10

(emphasis added). Contrary to petitioner’s suggestion

(Pet. 15-16), the RCRA provisions governing authoriza-

tion of state programs do not require the delegation of

federal authority to States. Hence, petitioner’s sugges-

tion that such a delegation would pose constitutional

problems is without merit.’

Section 6926(d) of RCRA, entitled “Effect of State

permit,” makes clear that, upon EPA’s authorization of

the state program, the State’s permitting actions “have

the same force and effect as action taken by the Ad-

ministrator under this subchapter.” 42 U.S.C. 6926(d).

As a consequence, the federal government may bring

an enforcement action based on state permit violations,

including the failure to obtain a permit. See, ¢.g.,

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

933 F.2d 35, 44 (1st Cir. 1991). As the First Circuit ex-

plained in the specific context of criminal enforcement:

The statute [Section 6928(d)] criminalizes “Any per-

son” who acts without, or in respect to facilities

lacking, “a permit under this subchapter.” A permit

under this subchapter is one issued by the Admin-

istrator of the EPA or by an authorized state. 42

U.S.C. § 6925.

933 F.2d at 44. See 42 U.S.C. 6925(c)(1) (“Upon a deter-

mination by the Administrator (or a State, if applica-

ble), of compliance by a facility for which a permit is

1 RCRA does not require a State to develop a state hazardous

waste program. If it does develop such a program, the State may

enforce the requirements of its program as a matter of state law,

whether or not the program receives EPA authorization. EPA’s

authorization of a state program pursuant to RCRA is significant

because, among other things, that authorization allows the federal

government to enforce the state permitting requirements under

federal law. 42 U.S.C. 6926(d).

=

11

applied for under this section with the requirements of

this section and section 6924 of this title, the Adminis-

trator (or the State) shall issue a permit for such facili-

ties.”); see also, e.g., 42 U.S.C. 6928(a)(3) (authorizing

EPA to issue orders suspending or revoking “any per-

mit issued by the Administrator or a State under this

subchapter”).

Petitioner also misreads Section 6926(b)’s specific

provisions for authorization of a state program. Pet. 10,

13-14. Those provisions direct that, once a State sub-

mits an application for authorization of a state program,

EPA shall issue a notice of whether it expects to

authorize the program. 42 U.S.C. 6926(b). Section

6926(b) then continues:

Such State is authorized to carry out such program

in lieu of the Federal program under this subchapter

in such State and to issue and enforce permits for

the storage, treatment, or disposal of hazardous

waste * * * unless, witiin ninety days following

submission of the application the Administrator

notifies such State that such program may not be

authorized * * *.

42 U.S.C. 6926(b). That passage, read in context, sim-

ply makes clear that, once a state program is author-

ized, permit applicants should submit their applications

to the State rather than EPA. 42 U.S.C. 6926(b). See

40 C.F .R. 271.1(f) (“upon approval of a State permitting

program, the Administrator shall suspend the issuance

of Federal permits for those activities subject to the

approved State program”). The passage provides no

basis for concluding that the federal government may

not continue to exercise its explicit enforcement powers

under RCRA. See Pet. App. A8-A9. —

12

Contrary to petitioner’s assertion (Pet. 10), this

Court’s decision in United States Department of En-

ergy v. Ohio, 503 U.S. 607 (1992), does not suggest that

Section 6926(b)’s “in lieu of” language deprives the fed-

eral government of enforcement authority. The Court

stated:

RCRA regulates the disposal of hazardous waste in

much the same way [as the Clean Water Act, 33

U.S.C. 1251 et seq.], with a permit program run by

EPA but subject to displacement by an adequate

state counterpart.

Id. at 611 (emphasis added). See Pet. App. A13 n.29.

The Court did not questoin EPA’s power to exercise

enforcement authority in States that have EPA-

authorized water pollution control programs. See 33

U.S.C. 1819(a), 1842(b), 1842(i).?

Petitioner also points to the fact (Pet. 10-11) that

EPA’s regulations for approval of state hazardous

waste programs require States to include “remedies for

violations of State program requirements.” 40 C.F.R.

271.16. But there is nothing unusual in the fact that

both the federal government and the state government

can take enforcement action with respect to the same

wrongs. The concept of dual enforcement is a familiar

2 Petitioner’s reliance on a passage from RCRA’s legislative

history suggesting that a State may “take over the hazardous

waste program” (Pet. 10 n.5 (emphasis added by petitioner)) is

similarly misplaced. That passage plainly is speaking to state

assumption of responsibility for issuance of permits, since RCRA’s

text explicitly preserves federal enforcement authority. See, ¢.g.,

42 U.S.C. 6928 (discussed in text infra). Indeed the more relevant

legislative history, pertaining to Section 6928, indicates that the

federal government retains its criminal enforcement authority. See

Pet. App. All1-A13; MacDonald, 933 F 2d at 44-45.

13

feature of federal environmental law. See, e.g., 33

U.S.C. 1819(a), 1342(b), 13424) (Clean Water Act); 42

U.S.C. 300g-3 (Safe Drinking Water Act); 42 U.S.C.

7413 (Clean Air Act). Indeed, in the preamble to the

Federal Register notice first codifying Idaho’s author-

ized hazardous waste program, EPA emphasized that it

“retains the authority under [42 U.S.C. 6928] of RCRA

to undertake enforcement actions in authorized states.”

Pet. App. A9 n.14 (quoting 55 Fed. Reg. 50,327-50,401

(1990)).

Moreover, RCRA’s specific enforcement provisions

explicitly preserve federal enforcement in States with

authorized programs. Section 6928(a)(1) empowers

EPA to issue a compliance order or seek civil judicial

relief against “any person [who] has violated, or is in

violation of any requirement of this subchapter.”

42 U.S.C. 6928(a)(1). Because RCRA allows EPA or an

authorized State to issue a permit, 42 U.S.C. 6925(c),

the failure to obtain a permit from either is a violation

of a “requirement[] of this subchapter.” See Pet. App.

A8-A10; Wyckoff Co. v. EPA, 796 F.2d 1197, 1199-1200

(9th Cir. 1986). Similarly, Section 6928(d) subjects

“[alny person who * * * knowingly treats, stores, or

disposes of any hazardous waste identified or listed

under this subchapter * * * without a permit under

this subchapter” to federal criminal prosecution. 42

U.S.C. 6928(d). Like Section 6928(a), Section 6928(d)

does not distinguish between federal and state permits.

Thus, Section 6928 preserves the full panoply of federal

enforcement options. Pet. App. Al3 (“the federal gov-

ernment retains both its criminal and its civil enforce-

ment powers”); MacDonald, 933 F.2d at 44 (Section

6928(d) “does not limit prosecutions thereunder to

14

those who deal with facilities lacking a federal

permit..”).3

In short, when EPA authorizes a state prograru, the

program operates “pursuant to” Subtitle C of RCRA

(42 U.S.C. 6926), but that authorization does not disable

the federal government from continuing to exercise its

overarching authority to enforce Subtitle C through

criminal sanctions. Pet. App. Al3. Even if RCRA’s

“plain language and legislative history” were not suffi-

cient to eliminate any doubt on that score, EPA’s long-

standing interpretation of RCRA would be entitled to

deference as a reasonable construction of a regulatory

statute by the agency charged with its administration.

3 As the court of appeals and MacDonald explain, the legis-

lative history of Section 6928(d) confirms the meaning of the text.

Pet. App. All-A13 (quoting MacDonald, 933 F.2d at 44-45). As

they specifically observe:

The 1984 amendments [to Section 6928(d) of RCRA] increased

the applicable criminal penalties and simply substituted “under

this subchapter” for the references to the specific subsections

under which permits, federal and state, may be granted. The

new language, “without a permit under this subchapter,” sub-

sumed 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 criminal

jurisdiction.

Id. at Al2-A13. The text of other portions of Section 6828 also

demonstrates that federal enforcement authority survives state

authorization. For example, Section 6928(a)(2) directs EPA to

notify a State before taking civil enforcement action in a State that

has an authorized program. 42 U.S.C. 6928(a)(2). Additionally,

Section 6928(d) makes specific reference to criminal sanctions for

non-compliance with “regulations promulgated by the Admini-

strator (or by a State in the case of an authorized State program)

under this subchapter.” 42 U.S.C. 6928(d)(3), (4) and (5).

15

Pet. App. A7-A9; see, e.g., Chevron U.S.A. Inc. v. Natu-

ral Res. Def. Council, Inc., 467 U.S. 837 (1984).

b. Petitioner is wrong in his assertions (Pet. 11-12,

14-16) that the court of appeals’ construction of RCRA

conflicts with decisions of this Court or another court of

appeals. Neither this Court nor any court of appeals

has ever held that the United States loses its enforce-

ment powers under RCRA upon authorizing a State

program. To the contrary, the courts of appeals have

repeatedly affirmed federal convictions under RCRA

based on unlawful activities in States with authorized

RCRA programs.‘

There is no merit to petitioner’s contention (Pet. 14-

15) that the court of appeals’ decision in this case

‘conflicts with United States Department of Energy v.

Ohio, 503 U.S. 607 (1992). The Court in that case ruled

that Congress had not waived the federal government’s

sovereign immunity from liability for civil penalties

that a State sought to impose against a federal facility

for alleged past violations of the CWA and RCRA. Id.

at 611. Thus, the issue in that case bears no similarity

* See, e.g., United States v. Henry, 136 F.3d 12 (1st Cir. 1998)

(New Hampshire); United States v. Laughlin, 10 F.3d 961 (2d Cir.

1993) (New York), cert. denied, 511 U.S. 1071 (1994); United States

v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984) (New

Jersey), cert. denied, 469 U.S. 1208 (1985); United States v. Dee,

912 F.2d 741 (4th Cir. 1990) (Maryland), cert. denied, 499 U.S. 919

(1991); United States v. Sims Bros. Constr., Inc., 277 F.3d 734 (5th

Cir. 2001) (Louisiana); United States v. Williams, 195 F.3d 823 (6th

Cir. 1999) (Tennessee); United States v. Kelly, 167 F.3d 1176 (7th

Cir. 1999) (Wisconsin); United States v. Freeman, 30 F.3d 1040

(8th Cir. 1994) (Missouri); United States v. Fiorillo, 186 F.3d 1136

(9th Cir. 1999) (California), cert. denied, 528 U.S. 1142 (2000);

United States v. Self, 2 F.3d 1071 (10th Cir. 1993) (Utah); United

States v. Hansen, 262 F.3d 1217 (11th Cir. 2001) (Georgia), cert.

denied, 122 S. Ct. 2326 (2002).

16

to the issue posed here. Petitioner nevertheless focuses

on passages from the decision that rejected Ohio’s

contention that a State’s assessmént of civil penalties

under an EPA-authorized state water pollution control

program is permissible under Section 1323(a) of the

Clean Water Act because those state-law penalties

“aris[e] under Federal law” (33 U.S.C. 1323(a)). See 503

U.S. at 623-627. The Court recognized that “the

complementary relationship between state and federal

law” did not support the State’s argument that “state-

law fines thereby ‘arise under Federal law.’” Id. at 625

(emphasis added). This federal prosecution, however,

does not involve “state-law fines.” The Court in no way

suggested that the federal government’s pursuit of

federal criminal sanctions against an individual pur-

suant to Section 6928(d) of RCRA would be beyond the

federal government’s authority. As the court of appeals

correctly recognized, that issue “was not an issue

presented to or resolved by the Ohio court.” Pet. App.

A13-A14 n.29.

Petitioner is also wrong in asserting (Pet. 11-12) that

the court of appeals’ decision conflicts with Harmon

Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999)

(reproduced at Pet. App. Al45-A164). That case

involved a federul government practice known as “over-

filing.” The federal government had initiated a civil

enforcement action and continued that action after a

State with an authorized program had resolved a state

enforcement action on terms that the federal govern-

ment believed to be inadequate. See 191 F.3d. at 897-

898 (Pet. App. A150). As the court of appeals explained

in this case, Harmon held that the federal government

may not continue to pursue its own civil penalty action

after a State that has an authorized program has

settled the identical claim with the same defendant.

17

Pet. App. A10-All. See 191 F.3d at 902 (Pet. App.

A159) (“TW]e find that the EPA’s practice of overfiling,

in those states where it has authorized the state to act,

oversteps the federal agency’s authority under the

RCRA.”). But that court did not rule that EPA lacks

authority to bring its own enforcement action in the

absence of a state enforcement proceeding. See id. at

901 (Pet. App. A158) (EPA may proceed in accordance

with Section 6928 “when the authorized state fails to

initiate any enforcement action.”); see also id. at 902 n.4

(Pet. App. A158 n.4) (reconciling its decision with

Wyckoff on that basis).

As the court of appeals correctly recognized, Har-

mon “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.” Pet. App. All

(quoting United States v. Flanagan, 126 F. Supp. 2d

1284, 1289 & n.3 (C.D. Cal. 2000)). Because the decision

in Harmon dealt with an instance of the federal

government’s “overfiling” during a state civil action,

and that decision expressly recognized that a federal

enforcement action is permissible where, as here, there

has been no state enforcement action, Harmon does not

conflict with the decision in this case. (Indeed, in this

case, the State of Idaho expressed its concurrence with

the United States’s criminal enforcement action. Govt.

C.A. Supp. E.R. 58-59.) Hence, even assuming that

Harmon is correct, that decision “does not support

[petitioner’s] contention that federal law is supplanted

or that the United States lacks power to try him.” Pet.

App. All.

5 The United States District Court for the District of Colorado

has declined to follow Harmon, concluding that it “incorrectly

interprets the RCRA.” United States v. Power E'ng’g Co., 125 F.

18

Petitioner is also mistaken in asserting (Pet. 12-13)

that the decision of the court of appeals conflicts with

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

1991), rev’d in part, 505 U.S. 557 (1992). Contrary to

what petitioner argues, that decision does not hold that

the phrase “pursuant to this chapter” in RCRA’s

*itizen-suit provision, 42 U.S.C. 6972(a)(1)(A), excludes

suits alleging violations of permitting programs in

authorized States. Indeed, that provision was not even

at issue. The plaintiffs there had raised a claim under

42 U.S.C. 6972(a)(1)(A) but had not appealed its

dismissal. 935 F.2d at 1348-1349, 1352. As relevant

here, the decision in Dague states in dictum that “an

EPA-authorized state hazardous waste program * * *

can supersede the permit and notification requirements

of [Subtitle C].” Jd. at 1852. The decision does not bar

citizens from bringing suit under RCRA to enforce

permitting requirements in authorized States and does

not address federal enforcement authority at all.

2. Petitioner contends (Pet. 17-22) that the court of

appeals erred in failing to require the United States to

show that the waste in question was hazardous based

on what petitioner considered a more “representative

sample” of the waste from the tank. Contrary to peti-

tioner’s arguments, the court of appeals correctly rec-

ognized that the government was under no obligation to

test all of the cyanide-containing wastes in the tank and

that there was ample evidence from which the jury

could conclude that the waste was hazardous. Pet. App.

A15-A17. That fact-specific decision is correct and does

Supp. 2d 1050, 1059 (2000). That decision is currently on appeal to

the United States Court of Appeals for the Tenth Circuit. No. 01-

1217 (10th Cir. argued Mar. 20, 2002).

19

not conflict with any decision of this Court or another

court of appeals.

To obtain convictions on the counts of the indictment

under RCRA, the United States was required to prove

that petitioner stored or disposed of hazardous waste

without a permit. 42 U.S.C. 6928(d)-(e). EPA has de-

fined “hazardous waste” by regulation to include solid

wastes that have the characteristic of reactivity. 40

C.F.R. 261.3(a)(2)(i), 261.23 (Pet. App. A142-A143).

Cyanide-bearing wastes are reactive, and thus hazard-

ous, if a “representative sample” shows that the waste

is capable of generating “toxic gases, vapors or fumes in

a quantity sufficient to present a danger to human

health or the environment.” 40 C.F.R. 261.23(a)(5). A

sample is “representative” if it “can be expected to ex-

hibit the average properties of the universe or whole.”

40 C.F.R. 260.10 (Pet. App. A141). In this case, a

sample is sufficiently representative if it exhibits the

average properties of the wastes that were removed

from the tank, since those wastes were sufficient, by

themselves, to establish storage and disposal violations.

See Pet. App. A16-A17 (citing In re Electric Serv. Co., 1

E.A.D. 947 (EPA Env. App. Bd. 1985)).

As the court of appeals explained, the United States

did not need to show that all the waste in the tank was

hazardous; rather, the government fulfilled its burden

at trial by proving that petitioner had improperly

stored or disposed of some hazardous waste. Pet. App.

Al6. Because (1) the waste samples that the United

States’ experts examined tested positive for cyanide,

(2) the samples included waste that petitioner’s em-

ployee was forced to remove from the tank, and (8) that

employee became incapacitated and permanently in-

jured through cyanide poisoning, the samples were

sufficient to support the convictions. Jbid. As the court

20

of appeals observed, “[i]f 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.” Jd. at Al7.° -

Petitioner’s “hypertechnical interpretation” not only

defies “common sense” (Pet. App. A17), it ignores the

underlying purpose and import of EPA’s regulations,

which seek to avert the type of injury that occurred in

this case. EPA requires “representative” samples to

ensure that the hazardous characteristics of the mate-

rial in question are properly identified. Jbid.; see Tr.

3324-3327. If a hazardous waste, such as cyanide-

bearing sludge, is discovered in a tank, then “it’s not

necessary to go to every inch of the tank to see if

there’s more cyanide there.” Pet. App. A17. It is suffi-

cient if the sample demonstrates that the waste “can

generate toxic gases, vapors or fumes, in a quantity suf-

ficient to present a danger to human health or the

environment.” 40 C.F.R. 261.23(a)(5).

In any event, “the relevant question is whether, after

viewing the evidence in the light most favorable to the

prosecution any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

§ Petitioner contends (Pet. 19 n.16) that, if he had only stored or

disposed of “the few grams of cyanide-bearing waste tested,” he

would qualify as a small-quantity generator under EPA’s regula-

tions and would be exempt from prosecution. But petitioner was

not prosecuted for those few grams, but for improper storage and

disposal of wastes from which those samples were taken. Pet.

App. A2. The samples were sufficient, together with the other evi-

dence the government produced, to establish that the wastes were

hazardous. Indeed, even if petitioner could have qualified as a

small-quantity generator, he would still be subject to RCRA

requirements. See 40 C.F.R. 261.5(a), (b) and (g).

21

doubt.” Jackson vy. Virginia, 443 U.S. 307, 319 (1979).

The record here includes ample evidence from which a

rational jury could conclude that the samples exhibited

the “average properties” of the waste that was improp-

erly stored and disposed of, including all the waste in

the tank, and that the waste was hazardous. See 40

C.F.R. 260.10 (defining “representative sample”),

261.23(a)(5) (describing the characteristic of reactivity

in the case of cyanide-bearing compounds).

First, the samples that were taken indicated that the

wastes in the tank demonstrated the characteristic of

reactivity. Tr. 3340-3347. Second, an expert explained

at trial how the sampling of the sludge, under the

circumstances, was representative and that there was

no need to put those conducting the sampling at further

risk by having them enter the tank to take more

samples. Tr. 3344-3351, 3429-3434, 3463-3465. Third, a

hazardous materials team that responded to the site

additionally found hydrogen cyanide gas in samples

taken from both inside and outside the tank. Tr. 1108-

1110, 1180-1209. And fourth, petitioner’s injured em-

ployee, who was directly exposed to the wastes in the

tank, demonstrated the symptoms and permanent

effects of cyanide poisoning. Tr. 3223-3228, 3194-3200.

The evidence adduced at trial, viewed in its totality,

demonstrated beyond doubt that the waste within the

tank could generate gases sufficient “to present a dan-

ger to human health” and was thus hazardous. 40

C.F.R. 261.23(a)(5). See Huddleston v. United States,

485 U.S. 681, 691 (1988) (“[I]ndividual pieces of evi-

dence, insufficient in themselves to prove a point, may

in cumulation prove it.”). The evidence plainly was

sufficient for the jury to have concluded, beyond a

reasonable doubt, that the waste was hazardous under

22

the regulations. That factbound determination does not

warrant review by this Court.’

3. Petitioner argues (Pet. 22-26) that he lacked fair

notice of the standards under which he could be con-

victed because a sample of the waste was not hazardous

under an EPA guidance manual, known as SW-846, that

elaborated on a test for cyanide-bearing wastes. That

non-binding guidance described a test method for

determining whether cyanide-bearing waste is reactive.

Contrary to petitioner’s suggestion (Pet. 25), the guid-

ance manual is not incorporated into EPA’s regulations

for purposes of determining whether a waste is reac-

tive, and thus hazardous. See 40 C.F.R. 261.3(a)(2)(i),

260.11(a) and (a)(11), 261.28. In any event, his

argument fails for two main reasons.

First, SW-846 did not purport to draw a line between

what was and what was not hazardous waste. Instead,

that guidance suggested a “quantitative threshold for

toxic gas generation” above which waste was clearly

hazardous, without denying that some wastes below

that threshold would also be hazardous. Pet. App. A21-

A22. That is, the guidance did not purport to indicate a

“‘safe harbor’ for waste that emitted toxic gas below

the threshold level.” Id. at A24, A86. Petitioner admit-

ted as much in his reply brief in the court of appeals.

C.A. Rep. Br. 19. Thus, even if the United States were

bound by SW-846, the fact that the waste at issue was

” Petitioner suggests (Pet. 21) that the court of appeals’ deci-

sion is in tension with Renaud v. Martin Marietta Corp., 972 F.2d

304 (10th Cir. 1992), which observed, in the context of a tort claim,

that “no one has any idea whether this [particular] sample is rep-

resentative of the ‘normal’ contaminant concentration.” Id. at 308.

That remark, made outside the RCRA context, plainly does not

give rise to a conflict among the courts of appeals.

23

not proven hazardous under that test would present no

reason to question petitioner’s conviction.

Second, petitioner’s “fair notice” argument founders

on the undisputed fact that petitioner did not even

know of SW-846. Pet. App. A23. Although he argues

that “fair notice” arguments do not depend on actual

notice, Pet. 23-24, his argument is not really based on

“fair notice” at all. Petitioner no longer contends that

the underlying regulation would be impermissibly

vague and that he would lack fair notice without the

quantitative threshold provided by SW-846. The court

of appeals rejected that argument, Pet. App. A17-A20,

and petitioner does not renew it here. Rather, he now

relies on the argument that EPA cannot disclaim SW-

846 because EPA had used it for some purposes in the

past. Pet. 22-23, 25-26. As the district court recog-

nized, that argument rests on estoppel, not fair notice.

Pet. App. A90-A91. Because such an argument is

unavailable absent actual reliance by the party claiming

estoppel, it is unavailable to petitioner here. bid.; see

United States v. Weitzenhoff, 35 F.3d 1275, 1290 (9th

Cir. 1993), cert. denied, 513 U.S. 1128 (1995).

4. Petitioner argues (Pet. 26-28) that the court of

appeals erred by concluding that he bore the burden to

show that he had been prejudiced by two jurors’ belief

that his brief greeting to another juror had consisted of

a joking offer of a bribe. He mistakenly contends that

this allocation of the burden conflicts with decisions of

this Court and various other courts of appeals. Jbid.

Petitioner misapprehends the decision of the court of

appeals. Contrary to his contention (Pet. 27), that court

did not flout this Court’s decision in Remner v. United

States, 347 U.S. 227 (1954), by requiring him to carry

the burden to show that any jury tampering did not

prejudice him. The district court found that no juror

24

thought that he had tampered with the jury and that

the United States had carried its burden of dispelling

any associated presumption of prejudice. Pet. App.

A123. The court of appeals affirmed the district court’s

findings as not clearly erroneous. Jd. at A30-A32.

Thus, the decision is consistent with the decisions that

petitioner cites indicating that jury tampering raises a

presumption of prejudice that the government bears

the burden to dispel.®

The court of appeals referred to petitioner’s burden

in addressing a separate question: whether the jury

was nevertheiess biased against him even though no

juror believed that he actually tampered with the jury.

Pet. App. A382 & n.70. The district court addressed that

issue separately from the “closely related” issue of jury

tampering and noted that the defendant bears the

burden of showing that a juror is biased. Jd. at A1C*,

A123. The district court concluded that petitioner had

not carried the burden of showing any such bias. Jd. at

A123. The court of appeals affirmed, stating that “the

district court’s conclusion that [petitioner] had not

borne his burden of showing juror bias appears

correct.” Jd. at A382 (footnote omitted). That allocation

of the burden of showing bias is consistent with this

Court’s decisions. E.g., Wainwright v. Witt, 469 U.S.

412, 423 (1985); Irvin v. Dowd, 366 U.S. 717, 723 (1961).

Petitioner cites no decisions that question that result.

8 Although petitioner is correct that there is some disagree-

ment among the courts of appeals on whether the government

always bears the burden of showing that jury tampering did not

prejudice the defendant, Pet. 26-27 & n.18, the government carried

that burden here and thus this case does not present an occasion

for resolving the tension in those cases.

25

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

DAVID M. UHLMANN

DAVID C. SHILTON

ToppS. Kim

Attorneys