Petition for Writ of Certiorari — Goodner v. United States
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Court, U.S,
FILED
CL
927697 | OCT 5 1992
PAGE OF THE CLERK
In The
Supreme Court of the United States
October Term, 1992
o
ALBERT S. GOODNER, JR.,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
| For The Eighth Circuit
+
_
PETITION FOR A WRIT OF CERTIORARI
+
James B. Harris*
Becky L. JOLIN
THompson & KNIGHT, P.C.
3300 First City Center
1700 Pacific
Dallas, TX 75201
(214) 969-1102
*Counsel of Record
Jerry McComss
McComss, Brock & LEONARD
P. O. Box 5917
Idabel, OK 74745
(405) 286-3363
DANNY THRAILKILL
Pace & THRAILKILL
P. O. Drawer 30
Mena, AR 71753
(501) 394-3091
Counsel for Petitioner
October 5, 1992
COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964
OR CALL COLLBCT (402) 342-
QUESTIONS PRESENTED FOR REVIEW
In interpreting administrative regulations that are or
could be the basis of a criminal prosecution, is a court
to apply the “rule of lenity” and strictly construe
applicable regulatory provisions without deferring to
administrative policy statements, interpretations, or
other agency guidance?
As interpreted using the “rule of lenity,” does the
Environmental Protection Agency’s (“EPA”) listing
description for a hazardous waste assigned code
F002, and found at 40 C.E.R. § 261.31(a), include paint
waste generated in preparing aircraft for repainting?
As interpreted using the “rule of lenity,” do EPA's
hazardous waste regulations, in the absence of the
“mixture” rule, implicitly make hazardous any waste
that “contains” a hazardous waste?
As interpreted using the “rule of lenity,” does the
term “release,” as used in § 103 of the Comprehensive
Environmental Response, Compensation, and Lia-
bility Act (“CERCLA”), mean any contact of a report-
able quantity of a hazardous substance with soil, air,
or water, or must there be some movement of the
hazardous substance into the environment after the
initial contact before a release occurs?
ii
LIST OF PARTIES
United States of America
Goodner Brothers Aircraft, Inc.
Albert S. Goodner, Jr.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW .........-. i
LIST OF PARTIES . 2.2... cee ccc csc nec cnc encceces ii
TABLE OF CONTENTS. ...........2.sseeeeeeeceees iii
TABLE OF AUTHORITIES...........---0-++-+eeee: Vv
OPINIONS BELOW..........-2cccec cece ce ece cece: 1
0 8) Oy) 6. eee nce 2
STATUTES AND REGULATIONS INVOLVED ...... 2
STATEMENT OF THE CASE.............-522++005: 3
I. COURSE OF PROCEEDINGS AND DISPOSI-
TION IN COURTS BELOW ...............++-- 3
Il. FACTUAL BACKGROUND. .........---++.-55- 5
Ill. REGULATORY BACKGROUND ............... 6
REASONS WHY THE WRIT SHOULD BE GRANTED
I. WITH RESPECT TO THE PROSECUTION OF
“REGULATORY” CRIMES, THIS CASE PRESENTS
A TIMELY, IMPORTANT, AND UNIQUE OPPOR-
TUNITY FOR THE COURT: (1) TO REAFFIRM
THAT THE “RULE OF LENITY” APPLIES; (2) TO
CLARIFY THE ROLE OF THE ASSOCIATED
DOCTRINE OF DEFERENCE TO AGENCY
INTERPRETATIONS; AND (3) TO INSTRUCT
LOWER COURTS TO ANALYZE CRITICALLY
REGULATIONS DEFINING CRIMINAL CON-
ec Santee va hs ence eVeen betes sevens 9
Il. IN CONCLUDING THE PAINT WASTE WAS
HAZARDOUS, THE EIGHTH CIRCUIT DISRE-
GARDED THE “RULE OF LENITY” IN DIRECT
CONFLICT WITH DECISIONS OF THIS COURT
APPLYING THE RULE ...............---00:- 13
iv
TABLE OF CONTENTS - Continued
Page
| Il. THE EIGHTH CIRCUIT’S DECISION INTER-
PRETING A “RELEASE” UNDER CERCLA AS
THE PLACEMENT OF A HAZARDOUS SUB-
STANCE INTO A FACILITY THAT IS EXPOSED
TO THE ENVIRONMENT DIRECTLY CON-
FLICTS WITH DECISIONS OF THE COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
AND THE FIFTH CURCUIT .......0.c00ccsceues 22
CA mR bab hance VenRdew da thaccea dese cea ees 27
TABLE OF AUTHORITIES
Page
Cases
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 US. G37 (1966) .......0.00500. 11, 15
Crandon v. United States, 494 U.S. 152 (1990)......... 15
Federal Communications Commission v. American
Broadcasting Company, 347 U.S. 284 (1954)......... 16
M. Kraus & Brothers, Inc. v. United States, 327 U.S.
et Ae Sere ey ART ce 11, 15, 18, 20, 21
Shell Oil Company v. Environmental Protection
Agency, FD F2G 741 (DC. Cie. 1998) 2 css cc cecces 14
The Fertilizer Institute v. United States Environmen-
tal Protection Agency, 935 F.2d 1303 (D.C. Cir.
i | errs per ree yy fein peso rr aa 24, 25
United States v. Goodner Brothers Aircraft, 966 F.2d
oe ee | errr ere rr yey rey: 14, 23
United States v. McGoff, 831 F.2d 1071 (D.C. Cir.
SUN Di sn cnnsckcpanceveukieeesseeteeel eae 15
United States v. Bass, 404 U.S. 336 (1971)............ 15
United States v. Baytank (Houston), Inc., 934 F.2d
SRP: Ge I THRs wa vei padnd swiss ceeeee teases 24, 25
United States v. Boston and Maine Railroad, 380 U.S.
OF CIR 5 0k0.c ck dkans Uneeedens nese eeueee sein de 15
United States v. Douglas, __ F.2d __, 1992 W.L.
og 8 ee, eer rr rr ee 15
United States v. Grimaud, 220 U.S. 506 (1911)......... 9
vi
TABLE OF AUTHORITIES - Continued
Page
United States v. Thompson/Center Arms Co., __ U.S.
__, 412 S. Ct. 2102 (1992)... 6. once cee ne ee eeens 12
United States v. Wiltberger, 34 U.S. 76, 5 Wheat. 37
(>. Pereeprary re Teeny sere yer yet 15
Williams v. United States, 458 U.S. 279 (1982) ........ 15
STATUTES
16 U.S.C. & BOSD i ccc cause ceccccewcanescnee 2
26 USC. © TSA) «cnn cee ene eee cewceeeseeenen 2
SB UGC. & UDG «issn sc eck ciwces Keven cases sence eueems 3
BD UG. BGI. unvs occu eis ce a eer ene 3
42 U.S.C. § 692Z1(a) .. reece cece eee e cere n ete ecenes 7
42 U.S.C. § GRAB) «2... nese c sce eeewesvcennsstennes 2
42 U.S.C. § 9601(8)-(9) ... 6... cece eee eee ee eee ees 25
42 U.S.C. § S60B(A) .... occ senscccensscnnes 2, 6, 22, 26
42 U.S.C. § SGORID) . 2.5. c cece nce cecesecanenssenes 2, 23
MIscELLANEOUS
40 C.F.R. § 260.20. ....... cece cece cere eee e ee eenees 8
40 C.B.R. § 260.22. ......cccseccciscsvensrccssesnvenes 8
40 C.BR. © DEER ccc cs cc ncccnenviuseseeweeesens 2, &, 3
40 C.F.R. § 261.31(a) .... 0... eee eee eee eens 2, 7, 16
40 C.P.R. § 263.32. ... 2... c csc ceccncencncnssnnntnes 7
0 CER. § A oi ae 20
Vii
TABLE OF AUTHORITIES - Continued
Page
gw! ok rere rr re a Oye e 22
43 Fed. Reg. 58,946, 58,957 (December 18, 1978)...7, 21
45 Fed. Reg. 33,066, 33,106 (May 19, 1980)........... 7
46 Fed. Reg. 4617 (January 16, 1981)................ 21
48 Fed. Reg. 23,552, 23,555 (May 25, 1983) .......... 2
50 Fed. Reg. 13,455, 13,462 (Apr. 4, 1985) ........... 25
e
In The
Supreme Court of the United States
October Term, 1992
4
ALBERT S. GOODNER, JR.,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
4
PETITION FOR A WRIT OF CERTIORARI
¢
Petitioner Albert S. Goodner, Jr. respectfully prays
that a Writ of Certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Eighth Circuit, entered on June 4, 1992.
¢
OPINIONS
The opinion of the Court of Appeals for the Eighth
Circuit is reported at 966 F.2d 380 (8th Cir. 1992), and is
reprinted in the appendix. Appendix (“App.”) at 22.
The sentencing order of the United States District
Court for the Western District of Arkansas (Waters, D.J.),
has not been reported. It is reprinted in the appendix.
App. at 9.
JURISDICTION
Invoking federal jurisdiction under 18 U.S.C. § 3231,
the United States returned an indictment against Peti-
tioner on October 3, 1990, based on alleged violations of
42 U.S.C. § 6928(d) and 42 U.S.C. § 9603(b).
The jurisdiction of the Court to review the judgment
and opinion of the Eighth Circuit is invoked under 28
U.S.C. § 1254(1).
+
STATUTES AND REGULATIONS INVOLVED
Section 103(a)-(b) of CERCLA, 42 U.S.C. § 9603(a)-(b),
is reprinted in the appendix. App. at 42-43.
40 C.F.R. § 261.3 is reprinted in the appendix. App. at
46-51.
40 C.F.R. § 261.31(a) is reprinted in pertinent part in
the appendix. App. at 54.
STATEMENT OF THE CASE
I.
COURSE OF PROCEEDINGS AND DISPOSITION
IN COURTS BELOW
On October 3, 1990, a fourteen count indictment was
returned against three companies and three individuals,
including Goodner Brothers Aircraft, Inc. (“Goodner
Brothers Aircraft”) and Albert S. Goodner, Jr., for alleged
violations of the Clean Water Act, 33 U.S.C. §§ 1251 to
1387, the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. §§ 6901 to 6991i, and the Compre-
hensive Environmental Response, Compensation, and
Liablity Act (“CERCLA”), 42 U.S.C. §§ 9601 to 9675. All
charges were based on the handling by the defendants of
paint waste generated during the repainting of aircraft.
The trial began January 28, 1991, and concluded Feb-
ruary 2, 1991. At the start of the trial, three of the four-
teen counts were dismissed. The jury acquitted all
defendants on the first count (discharge of pollutants into
waters of the United States without a permit), and a
judgment of acquittal was entered on count two (conspir-
acy to dispose of hazardous waste without a permit). The
jury was unable to reach a verdict on the remaining
counts and a mistrial was declared as to those counts.
A second indictment, containing nine counts, was
then returned against Goodner Brothers Aircraft and
Albert S. Goodner, Jr. App. at 1. Four of the counts
alleged a failure to notify the EPA of four separate
releases of hazardous substances (supposedly the paint
waste) into the environment, as required by CERCLA.
Five of the counts alleged various violations of RCRA.
The jury convicted Goodner Brothers Aircraft on all five
of the RCRA counts. Mr. Goodner was inconsistently
found not guilty on four of the RCRA counts, guilty on
one of the RCRA counts, and not guilty on one of the
CERCLA counts, but guilty on three of the CERCLA
counts. App. at 9.
Mr. Goodner was subsequently sentenced on June 24,
1991, to a term of imprisonment of fifteen (15) months
and one (1) year of supervised release. App. at 9. Good-
ner Brothers Aircraft was fined $150,000.00. Id.
The Eighth Circuit reversed and remanded for new
trial the RCRA convictions of Goodner Brothers Aircraft
and Mr. Goodner, but sustained the CERCLA convictions
of Mr. Goodner. App. at 22.
The court of appeals found that the RCRA convic-
tions could have resulted from the jury’s use of an invali-
dated regulation in deciding if the paint waste was
hazardous. But according to the court, in making the
same analysis to determine guilt under the CERCLA
counts, the jury could not have used and did not use the
invalidated regulation.
A timely filed Petition for Rehearing raising the argu-
ments advanced here - misinterpretation of EPA’s haz-
ardous waste regulations and § 103 of CERCLA; a result,
in part, of disregarding the “rule of lenity” - was sum-
marily denied in an order dated July 7, 1992. App. at 36.
The government has decided not to retry the RCRA
counts.
eee
Il.
FACTUAL BACKGROUND
Goodner Brothers Aircraft, of which Mr. Goodner is the
president and sole shareholder, repaints aircraft. The com-
pany was born in the back of a pickup truck. It prospered
through the initiative and hard work of Mr. Goodner, a high
school graduate and veteran. It is still relatively small, with
approximately one-hundred employees — none lawyers or
engineers. It is the archetype of the small business upon
which this country is built.
The initial step in the repainting process is the
removal of existing paint, using a commercial paint
remover containing the solvent methylene chloride as the
main active ingredient. The paint remover is applied to
the aircraft to allow the solvent to come in contact with
and soften resins in the paint that normally cause adhe-
sion of the paint to metal. As the resins soften, paint no
longer adheres, thereby allowing removal by brushing
the paint off or applying water under pressure. The
removal process generates a waste consisting of peeled
paint or paint chips with absorbed paint remover, some
limited amount of uncombined paint remover, and water.
During the time relevant to this action, the paint
waste was collected in piles on the floor of the building
where repainting occurred, and shoveled into containers.
According to the government, on four occasions the con-
tainers were loaded into a truck or flat-bed trailer and
transported during normal business hours on public
highways to Mr. Goodner’s farm. There, the material was
placed into three depressions in deposits of clay - two
natural and one man-made. No mixing of the paint waste
with any other material occurred from the time of genera-
tion through placement at the farm. Neither Goodner
Brothers Aircraft nor Mr. Goodner notified EPA or other
regulatory authorities about the placement of paint waste
at the farm, because they had no reason to believe the
placement created a threat to the environment.
At the trial there was no specific identification of any
substantial present or potential hazard to human health
or the environment presented by paint waste. Anecdotal
testimony from employees suggested contact of
unprotected skin with the paint remover could cause a
reaction. There was also no evidence that the placement
of the paint waste at Mr. Goodner’s farm ever caused any
environmental harm or adverse environmental impact.
The paint waste placed in the depressions at the farm was
not found to have moved into the soil, did not enter
ground water, did not reach surface waters, and was not
demonstrated to cause releases to the air. The paint waste
simply stayed where it was put, until Mr. Goodner
moved it to a disposal facility.
Ill.
REGULATORY BACKGROUND
If the placement of the paint waste at Mr. Goodner’s
farm constituted a “release” of a “hazardous substance”
in a “reportable quantity,” notification was required
under § 103 of CERCLA. 42 U.S.C. § 9603(a). The
“release” was supposedly the placement of materials into
the depressions at the farm. The “hazardous substance”
was supposedly the paint waste. In the context of this
case, only if the paint waste was considered a “hazardous
cece
waste” under RCRA could it be a “hazardous substance”
uinder CERCLA. Determining if the paint waste is a “haz-
ardous waste” requires a journey into what may be the
densest and deepest regulatory forest our modern
bureaucratic state has ever cultivated.
In adopting RCRA, Congress directed EPA to initially
develop criteria: (1) for identifying the characteristics of
hazardous wastes, and (2) for determining if a waste
should be “listed,” i.e., specifically described as a hazard-
ous waste. 42 U.S.C. § 6921(a). Based on the developed
criteria, EPA established two independent methods of
identifying a waste as hazardous. First, the agency iso-
lated four characteristics — ignitability, corrosivity, reac-
tivity, and toxicity — which if exhibited by a waste
rendered it “hazardous.” See 45 Fed. Reg. 33,066, 33,106
(May 19, 1980). Second, EPA decided to designate certain
wastes as hazardous by “listing” them - that is speci-
fically describing them.! Id.
EPA, apparently concerned that the regulated com-
munity could circumvent a “hazardous waste” designa-
tion by combining a “hazardous waste” with a “non-
hazardous waste” and asserting that the product was not
subject to regulation, developed the “mixture” rule. That
provision, which was not part of the originally proposed
hazardous waste rules, 43 Fed. Reg. 58,946 (December 18,
1978), appeared for the first time in May 1980. 45 Fed.
Reg. 33,066 (May 19, 1980). The “mixture” rule provided
that combining a “non-hazardous waste” and any amount
1 Each listed waste is assigned a unique letter and number
code to expedite recordkeeping tasks. See 40 C.F.R. §§ 261.31(a),
261.32.
of a “listed hazardous waste” created a mixture that must
be managed as hazardous unless it was delisted i.e.,
found to be non-hazardous. 40 C.F.R. § 261.3(a)(2)(ii)-(iv);
40 C.F.R. §§ 260.20, 260.22.
In Mr. Goodner’s care, the paint waste could be
considered hazardous: only if it exhibited one of four
characteristics; or if it had been specifically identified
(that is “listed”) by EPA as hazardous.? The paint waste
was not shown to exhibit any of the four characteristics.
The Eighth Circuit, however, concluded that the paint
waste was a “listed” hazardous waste.
4
REASONS WHY THE WRIT SHOULD BE GRANTED
Two independent grounds are presented to establish
that the Eighth Circuit, in failing to follow the “rule of
lenity,” wrongly upheld Mr. Goodner’s convictions for
failure to tell the EPA when he placed paint waste at his
farm. First, because the material he placed at the farm
was not a hazardous waste, no duty to report existed.
Second, the manner of placement did not trigger a duty
to report. Correcting the Eighth Circuit’s errors is of
immediate concern to Mr. Goodner, who faces fifteen
months in prison, but it is also vitally important to the
thousands of other individuals and businesses subject to
2 As discussed below EPA’s “mixture” rule was found
legally inapplicable to this proceeding. A waste “derived-from”
(i.e., generated from the treatment, storage or disposal of a
hazardous waste) is also considered hazardous unless delisted.
40 C.F.R. § 261.3(a)(2). This rule, referred to as the
“derived-from” rule, has no direct application to this case.
eee
RCRA and CERCLA. The method of correction, appropri-
ate judicial use of the “rule of lenity,” is of critical con-
cern to anyone potentially subject to criminal prosecution
for violating a regulation.
I.
WITH RESPECT TO THE PROSECUTION OF “REGU-
LATORY” CRIMES, THIS CASE PRESENTS A TIMELY,
IMPORTANT, AND UNIQUE OPPORTUNITY FOR
THE COURT: (1) TO REAFFIRM THAT THE “RULE OF
LENITY” APPLIES; (2) TO CLARIFY THE ROLE OF
THE ASSOCIATED DOCTRINE OF DEFERENCE TO
AGENCY INTERPRETATIONS; AND (3) TO
INSTRUCT LOWER COURTS TO ANALYZE CRITI-
CALLY REGULATIONS DEFINING CRIMINAL CON-
DUCT.
Until the turn of the century, it was generally
accepted that defining federal crimes was solely a con-
gressional prerogative. By 1911 the Court had explicitly
recognized that failure to follow the regulations of an
administrative agency could constitute a crime. United
States v. Grimaud, 220 U.S. 506 (1911). Although agencies
may have been slow initially to use criminal proceedings
as a tool to achieve compliance with regulatory programs,
they are now making up for lost time, especially in the
environmental area.
For instance, the number of EPA special agents
assigned to criminal enforcement is expected to quadru-
ple between 1991 and 1995, from 50 to 200. James M.
Strock, Environmental Criminal Enforcement Priorities for
the 1990's, 59 GEO. WASH. L. REV. 916, 926 (1991). The
10
Department of Justice (“DOJ”) increased its staff of envi-
ronmental prosecutors from four in 1981 to thirty-four in
1991. 22 Env’t Rep. [File Binder] (BNA) at 484 (June 21,
1991). Since fiscal year 1983, the DOJ’s Environmental
Crimes Section has indicted 761 individuals and corpora-
tions; and in fiscal year 1990, DOJ indicted 33 percent
more defendants than the previous year. Judson W. Starr,
Turbulent Times at Justice and EPA: The Origins of Environ-
mental Criminal Prosecution and the Work that Remains, 59
GEO. WASH. L. REV. 900, 901 n.3 (1991). This heightened
emphasis on criminal prosecution in the environmental
arena has triggered an avalanche of law review articles.?
3 Brown, Harris & Cox, The Liability of the Employees of a
Federal Agency Charged With Criminal Environmental Violations:
Do the Rules of Fair Play Apply to the Football?, 35 FED. BAR
NEWS & J. 441 (1988); Starr, Countering Environmental Crimes, 13
B.C. ENVTL. AFF. L. REV. 379 (1986); Note, In Search of Effective
Hazardous Waste Legislation: Corporate Officer Criminal Liability,
22 VAL. U.L. REV. 385 (1988); McElfish, State Hazardous Waste
Crimes, 17 ENVTL. L. REP. (Envtl. L. Inst.) 10,465 (1987); McMu-
rry & Ramsey, Environmental Crime: The Use of Criminal Sanctions
in Enforcing Environmental Laws, 18 LAND USE & ENT’T. L. REV.
427 (1987); Habicht, The Federal Perspective on Environmental
Criminal Enforcement: How to Remain on the Civil Side, 17 ENVTL.
L. REP. (Envtl. L. Inst.) 10,478 (1987); Seymour, Civil and Crimi-
nal Liability of Corporate Officers Under Federal Environmental
Laws, 20 ENV’T REP. (BNA) 337 (1989); Glenn, The Crime of
“Pollution”: The Role of Federal Water Pollution Criminal Sanctions,
11 AM. CRIM. L. REV. 835 (1973); Comment, Putting Polluters in
Jail: The Imposition of Criminal Sanctions on Corporate Defendants
Under Environmental Statutes, 20 LAND & WATER L. REV. 93
(1985); Reisel, Criminal Prosecution and Defense of Environmental
Wrongs, 15 ENVT’L. L. REP. (Envt’l. L. Inst.) 10,065 (1985); Com-
ment, Prosecuting Corporate Polluters: The Sparing Use of Criminal
Sanctions, 62 U. DET. L. REV. 659 (1985); Note, Element Analysis
Applied to Environmental Crimes: What Did They Know and When
11
Their number is but a small fraction of what has been
written in newspapers, magazines, and trade publications.
During the same period when prosecution of “regula-
tory” crimes and, in particular environmental crimes, was
becoming more common, the Court was in civil cases
requiring more judicial deference to an agency’s inter-
pretation of both organic statutes and its own regulations.
See Chevron U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). That trend is at odds with the
Court’s previous recognition that with “regulatory”
crimes the “rule of lenity” applies, regulations are to be
strictly construed, and deferring to agency “interpreta-
tions” is inappropriate. M. Kraus & Brothers, Inc. v. United
States, 327 U.S. 614 (1946). Recent law review commen-
tary has highlighted this tension. Note, Increased Judicial
Scrutiny for the Administrative Crime, 77 CORNELL L.
REV. 612 (1992). Unfortunately, and as evidenced by this
case, the application of the “rule of lenity” to “regula-
tory” crimes has often been largely brushed aside by the
lower courts. Indeed, the judiciary’s movement toward a
Did They Know It?, 19 B.C. ENVTL. AFF. L. REV. 53 (1988);
Comment, The Criminal Responsibility of Corporate Officials For
Pollution of The Environment, 37 ALB. L. REV. 61 (1972); Aurelius,
Letton, Macbeth, Menotti & Lentin, Review of Criminal Provisions
in Environmental Law: Task Force Report, 40 BUS. LAW 761 (1984);
DeCicco & Bonanno, A Comparative Analysis of the Criminal Envi-
ronmental Laws of the Fifty States: The Need for Statutory Unifor-
mity as a Catalyst for Effective Enforcement of Existing and Proposed
Laws, 9 CRIM. JUST. Q. 216 (1988); Perry, Criminal Enforcement
Priorities for the Environmental Protection Agency, 13 ENVTL. REP.
(BNA) 859 (1982); Criminal Enforcement of Environmental Laws
Seeks Deterrence Amid Need for Increased Coordination, Training,
and Public Awareness, 17 ENVTL. REP. (BNA) 800 (1986).
12
less demanding review of agency actions in a civil context
has regularly allowed the more deferential civil approach
to influence regulatory interpretations in a criminal set-
ting.
By granting review here, the Court can provide an
urgently needed reaffirmation of the aggressive role the
judiciary is to play in interpreting regulations and stat-
utes where “regulatory” crimes are involved. The need
for such a reminder is not limited to this case. It is also
required for the multitude of “regulatory” crimes cases
that are and will be a logical outgrowth of our ever
expanding bureaucratic state, and especially for the
explosion in the prosecution of environmental crimes.
Significantly, if lower courts do not have a proper appre-
ciation for their role, an unlevel playing field will exist
for the trial of “regulatory” crimes. Even more impor-
tantly, failure to address and correct the Eighth Circuit’s
misunderstanding of the law will send a clear signal that
the Court is retreating from the “rule of lenity” in the
“regulatory” crimes arena. Such a signal is at odds with
the Court’s recent emphasis on the importance of that
rule in criminal cases, and in civil actions where a crimi-
nal statute is interpreted. United States v. Thompson/Center
Arms Co.,___ U.S. __, 112 S.Ct. 2102, 2110 n. 10 (1992). To
avoid confusion regarding the proper approach to inter-
pret regulations in a “regulatory” crimes proceeding, the
Court should review this case and provide needed guid-
ance to the lower courts.
I ereeeerneaealeaemaaiaiaaaiiamaaiaiiiaiiaaiiaiiaaiiial
13
Il.
IN CONCLUDING THE PAINT WASTE WAS HAZ-
ARDOUS, THE EIGHTH CIRCUIT DISREGARDED
THE “RULE OF LENITY” IN DIRECT CONFLICT
WITH DECISIONS OF THIS COURT APPLYING THE
RULE.
At trial the government sought to prove that the
paint waste was a “mixture” of the paint on the aircraft
and a purported listed hazardous waste - the paint
remover.* In other words, the paint waste was sup-
posedly hazardous under EPA’s “mixture” rule. In fact,
however, when initially combined the paint and paint
remover were not wastes. A mixing of non-wastes could
not trigger the “mixture” rule, which only applied to a
combination of wastes. 40 C.E.R. § 261.3(a)(2)(iii). In this
case, the paint remover, containing the solvent methylene
chloride, when combined with paint, generated a unitary,
not a mixed, waste — namely paint waste.
While this case was on appeal, the “mixture” rule
was invalidated because EPA failed under the Adminis-
trative Procedure Act to properly propose the rule for
4 The government’s testimony was generally to the effect
the paint waste “contained” spent solvent. The term “con-
tained” is synonymous with “mixed” under EPA’s hazardous
waste rules. For instance, 40 C.F.R. § 261.3(d) identifies how the
following three types of hazardous waste can avoid regulation;
(1) “listed” wastes, (2) those that “contain” a listed waste, and
(3) those that are “derived-from” a listed waste. The only haz-
ardous waste identified by EPA that could “contain” a listed
waste is a waste considered hazardous under the “mixture”
rule.
14
public comment. Shell Oil Company v. Environmental Pro-
tection Agency, 950 F.2d 741 (D.C. Cir. 1991). Based on the
Shell decision, the Eighth Circuit correctly concluded that
the “mixture” rule was void from its inception and could
not be used in Mr. Goodner’s criminal case to support a
finding that the paint waste was a “hazardous waste.”
Goodner at 384-385; App. at 27-29. Because the wording of
the jury instructions applicable to the RCRA counts,
could have led the jury to convict on the basis of the
“mixture” rule, those convictions were overturned. Good-
ner at 384, 385; App. at 27, 30.
The court of appeals nonetheless believed that the
jury instructions neither required nor allowed the jury to
rely upon the “mixture” rule in determining, for purposes
of the CERCLA counts, whether the paint waste was a
“hazardous substance” because it was a “hazardous
waste.” Compare App. at 26, 30, 63-66 with App. at 31-32,
67-69. The Eighth Circuit ther. ~ead the CERCLA instruc-
tion defining the term “hazard »1s substance” as correctly
specifying that the paint wast. itself could be considered
the “listed” hazardous waste - “spent halogenated sol-
vent; assigned code F002.” App. at 32-33. The reasoning
of the court of appeals, however, supplied a link explic-
itly missing in the instructions: that the paint waste (as
opposed to the paint remover) was a spent halogenated
solvent because it contained paint remover that consisted
in part of a solvent identified in the listing description for
the F002 waste. Id. The Eighth Circuit’s analysis is but a
transparent contrivance to resurrect EPA’s voided “mix-
ture” rule, without using the word “mixture.”
The Eighth Circuit’s construction of the description
of a F002 waste, if allowed to stand, repudiates the long
15
recognized “rule of lenity,” which mandates that in crimi-
nal prosecutions, whether based on statutes or regula-
tions, the language describing illegal conduct must be
strictly construed. As stated by Chief Justice Marshall:
The rule that penal laws are to be construed
strictly, is, perhaps, not much less old than con-
struction itself. It is founded on the tenderness
of the law for the rights of individuals; and on
the plain principle that the power of punish-
ment is vested in the legislative, not in the judi-
cial department. It is the legislature, not the
court, which is to define a crime, and ordain its
punishment.
United States v. Wiltberger, 34 U.S. 76, 95, 5 Wheat. 37, 42
(1820).
The Court has been a staunch defender of the “rule of
lenity.” United States v. Boston and Maine Railroad, 380 U.S.
157, 160 (1965); United States v. Bass, 404 U.S. 336, 398
(1971); Williams v. United States, 458 U.S. 279, 286 (1982);
Crandon v. United States, 494 U.S. 152 (1990). The Court
has also made it clear the rule applies to administrative
regulations, although its application in that context has
been encountered far less often. But see M. Kraus &
Brothers, Inc. v. United States, 327 U.S., 614 (1946).°
5 There should be two corollaries to the “rule of lenity” ina
“regulatory” crimes context. First, Chevron USA, Inc. v. NRDC,
Inc., 467 U.S. 37 (1984), which requires considerable deference to
an agency’s interpretation of statutes or regulations, should
have no application. While the D.C. Circuit has adopted this
view, United States v. McGoff, 831 F.2d 1071, 1077, 1080 n. 17
(D.C. Cir. 1987), the Ninth Circuit has recently suggested “it is
unclear whether an agency’s interpretation of a criminal statute
is entitled to deference under Chevron.” United States v. Douglas,
ee
16
Understanding how the Eighth Circuit wrongly
expanded the description of the listed hazardous waste -
“spent halogenated solvents,” assigned code F002 — starts
with the following description of that waste set forth in
40 C.F.R. § 261.31(a):
(a) The following solid wastes are listed hazardous
wastes from non-specific sources . . .
Industry Hazardous Waste Hazard
and EPA Code
hazardous
waste No.
FOO2 The following spent (T)
halogenated
solvents: . . . methylene
chloride .. . ; all spent
solvent mixture/blends
containing, before use, a
total of 10% or more (by
volume) of one or more
of the above halogenated
solvents ... ; and still
bottoms from the
recovery of the spent
solvents and spent
solvent mixtures.
The F002 listing (that is, the description under the head-
ing “Hazardous Waste”) does not include the term “paint
waste” or otherwise describe the waste generated by
___ F.2d ___, 1992 W.L. 194755 (9th Cir. 1992). Second, when an
agency develops regulations it can criminally enforce, it is
required to interpret narrowly the organic statue directing the
adoption of such rules. Federal Communications Commission v.
American Broadcasting Company, 347 U.S. 284, 296 (1954).
.
17
Goodner Brothers Aircraft. It does mention methylene
chloride (which is present in the paint waste), but as a
stand-alone waste not as a component of another waste.
The reason for the omission is simple to find: EPA’s
“mixture” rule determined, to the extent deemed appro-
priate by EPA, whether one waste containing another
waste was a hazardous waste.
By its terms then, the F002 listing is limited to a
waste that is a “spent solvent” — i.e., a solvent that can no
longer dissolve another substance, not a waste that may
contain a spent solvent. Here the paint that became a
waste was not originally a solvent, because in place, on
the aircraft, it could dissolve nothing. Therefore, when it
was softened and removed it could not become a “spent
solvent,” having never been a solvent. What was gener-
ated was paint, softened and removed from an aircraft
with associated solvent, not spent solvent.
Paint waste is not described by the EPA’s listing fora
F002 waste. To find otherwise, as the Eighth Circuit did in
its rush to replace the “mixture” rule, requires placing a
gloss on the listing for F002 wastes either inconsistent
6 A solvent works by “breaking up” the attractive forces
between the molecules of the material being dissolved, thereby
causing those molecules to be dispersed and suspended
throughout the solvent. SIENKO & PLANE, CHEMISTRY
210-211 (4th Ed. 1971). This breakup occurs because the attrac-
tive forces between the solvent and the material being dissolved
are greater than the attractive forces holding together the mate-
rial to be dissolved. Id. As material is dissolved, the attractive
capability of the solvent to further dissolve material is dimin-
ished. Id. Once the solvent can no longer “breakup” material it
is considered “spent.”
18
with its plain meaning or at odds with a strict construc-
tion of its terms.
The Eighth Circuit’s inappropriately expansive read-
ing of the F002 listing is in direct conflict with the teach-
ing of the Court in M. Kraus & Brothers, Inc. v. United
States, 327 U.S. 614 (1946), where in applying the “rule of
lenity” to an ambiguous regulatory provision the Court
noted:
A prosecutor in framing an indictment, a court
in interpreting the Administrator’s regulations
or a jury in judging guilt cannot supply that
which the Administrator failed to do by express
word or fair implication. Not even the Adminis-
trator’s interpretations of his own regulations
can cure an omission or add certainty and defi-
‘niteness to otherwise vague language. The pro-
hibited conduct must, for criminal purposes, be
set forth with clarity in the regulations and
orders which he is authorized by Congress to
promulgate under the Act.
Id. at 622.
In Kraus the defendant’s insistence that butchers who
purchased poultry from him during the Thanksgiving
season also buy chicken feet or chicken skin was found to
criminally violate a regulation implementing the Emer-
gency Price Control Act of 1942. Id. at 616-617. The defen-
dant asserted his conduct was not proscribed by the
regulation. The government argued the defendant’s tying
arrangement violated § 1429.5 of the Price Control Act’s
regulations, which read as follows:
Price limitations set forth in this revised maxi-
mum price regulation No. 269 shall not be
19
evaded whether by direct or indirect methods,
in connection with any offer, solicitation, agree-
ment, sale, delivery, purchase or receipt of, or
relating to, the commodities prices of which are
herein regulated, alone or in conjunction with
any other commodity or by way of commission,
service, transportation or other charge, or dis-
count, premium, or other privilege or other
trade understanding or otherwise.
Id. at 620.
The Court assumed that a regulation could have been
adopted prohibiting all tying agreements and combina-
tion sales. Id. at 622. Nevertheless, the Court refused to
interpret § 1429.5 as doing so. As the Court noted, “no
specific mention is made of tying agreements or combina-
tion sales.” Id. at 623.
Nevertheless, the government asserted that a price
limitation on the primary commodity (poultry) was
evaded, in the words of the regulation, “in conjunction
with any other commodity” (chicken feet or chicken
skins), and that the government's position in the criminal
case was consistent with prior interpretations by the
Administrator of the regulatory provision in question. Id.
The Court strictly construed the regulatory language
relied upon by the government as only prohibiting “eva-
sions through the use of tying agreements where the tied-
in commodity is worthless or is sold at an artificial price,
thereby hiding an above-ceiling price for the primary
commodity.” Id. In the Court’s view the regulatory lan-
guage was not specific enough to apply where a second-
ary product has value, which it did in that case, and is
sold at its ceiling or market price. Id.
20
In responding to the government's plea that a
broader interpretation was necessary to prevent profiteer-
ing and to ensure administrative consistency the Court
noted:
All of this may well be true. But these are
administrative judgments with which the courts
have no concern in a criminal proceeding. We
must look solely to the language actually used
in § 1429.5. And when we do we are unable to
say that the Administrator has made his posi-
tion in this respect self-evident from the language
used.
Id. at 625 (emphasis supplied).
The teaching oi Kraus is simple. Does the language of
the regulation make “self-evident” what conduct is crimi-
nal? As applied here, is it self-evident from the F002
listing that the paint waste was hazardous? The answer
can only be no.
Nor does any other provision of EPA’s hazardous
waste regulations supply the rule devised and applied by
the Eighth Circuit.? The paint waste did not exhibit any
7 EPA apparently shares the view that nothing in the plain
meaning of its hazardous waste regulations describes the “con-
tained-in” rule invented by the Eighth Circuit. If such a provi-
sion existed, EPA would not have found it necessary to make
explicit that a listed hazardous waste placed in a container
should still be treated as a hazardous waste. 40 C.F.R.
§ 261.7(a)(2). App. at 52. If a material that contains a hazardous
waste was always transformed into a hazardous waste, as the
Eighth Circuit believes § 261.7(a)(2) is unnecessary. Addi-
tionally, although not appropriate for use by the government in
a criminal case, but certainly an admission by the government,
21
hazardous characteristic. it was not described by any
other “listing.”® It is not a hazardous waste.
By disregarding the “rule of lenity” the Eighth Cir-
cuit has replaced the “mixture” rule with a much more
onerous cousin - a “contained-in” rule. This new rule,
adopted without analysis or comment in a criminal pros-
ecution, will require generators to parse their wastes to
determine if any component or combination of compo-
nents could be described by a listing for a hazardous
waste - a burden they have not until now been required
by EPA to shoulder. It is indeed ironic that after the
Eighth Circuit’s decision in a criminal case the reach of
EPA’s hazardous waste regulations has expanded. The
court of appeals has turned the “rule of lenity” on its
head.
The Eighth Circuit has thus created a precedent
directly at odds with the Court’s ruling in Kraus, and by
failing to follow Kraus, has exponentially expanded the
scope of EPA’s hazardous waste regulations. The decision
an EPA directive makes clear a waste is not hazardous simply
because the way it is generated causes it to contain material that
might otherwise be considered a hazardous waste. App. at 55.
8 At one time, the agency had a separate listing for paint
waste. EPA’s initial description of proposed “listed” wastes
included two distinct categories; (1) “Paint Waste” and (2)
“Waste paint and varnish remover or stripper”. 43 Fed. Reg.
58,946, 58,957 (December 18, 1978). In the May 1980 final rule,
those two separate categories were combined into a single list-
ing - “Paint residues generated from industrial painting”. 45
Reg. 33,066, 33,117 (May 19, 1980). That listing was adopted on
July 16, 1980, and suspended indefinitely on January 16, 1981,
because it was overly broad. 46 Fed. Reg. 4617 (January 16,
1981).
22
will create confusion where none should exist and subject
many members of the regulated community to criminal
liability not apparent from the plain meaning of EPA’s
hazardous waste regulations. Only review by the Court
can prevent those results.
III.
THE EIGHTH CIRCUIT’S DECISION INTERPRETING
A “RELEASE” UNDER CERCLA AS THE PLACEMENT
OF A HAZARDOUS SUBSTANCE INTO A FACILITY
THAT IS EXPOSED TO THE ENVIRONMENT
DIRECTLY CONFLICTS WITH DECISIONS OF THE
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA AND THE FIFTH CIRCUIT.
Section 103 of CERCLA imposes an obligation on the
owners and operators of nearly every commercial and
industrial operation in the nation to notify EPA of any
“release” “from a facility” “of a reportable quantity of a
hazardous substance.” 42 U.S.C. § 9603(a). Given that
there are over 1800 different materials identified as haz-
ardous substances, including such ubiquitous materials
as copper, ammonia, nickel, silver, and sodium, 40 C.F.R.
§ 302.4, virtually any spill of any material at a commercial
or industrial facility will trigger the need to determine if
there has been a “release.” Because criminal penalties can
attach for a failure to report, it is imperative that the
regulated community have a clear understanding of the
types of “releases” that require notification.
Unfortunately, the decision of the Eighth Circuit in
this case leaves a clear split in authority regarding what
constitutes a “release.” The Eighth Circuit has adopted
the broadest interpretation of the term. It is at odds with
23
the overall structure of CERCLA and inconsistent with
the command of the “rule of lenity.” That rule applies
because this case is a criminal prosecution and because
§ 103 of CERCLA provides criminal sanctions for its
violation. 42 U.S.C. § 9603(b).
Finding the correct meaning of the term “released”
demands an involved analysis; the issue was briefed at
length before the Eighth Circuit. The court of appeals,
decided the question in five sentences. Goodner at 386;
App. at 33. In the lower court’s view, the containers
holding paint waste were “facilities,” the transfer of the
material from those containers into the depressions at Mr.
Goodner’s farm constituted “dumping or disposing,”
(terms used to define the phrase “release”), and the
depressions at the farm were “land surfaces,” which are
included in the definition of “environment.” This analysis
stands or falls on a crucial assumption — that mere contact
between a hazardous substance and the environment is a
reportable event. That superficially plausible position
leads to absurd results.
For instance, the concrete floor of a building could be
viewed as a land surface. Under the Eighth Circuit's view,
a spill of a reportable quantity of a hazardous substance
in a building would require a report. Yet even EPA agrees
no report is necessary in such a case. 48 Fed. Reg. 23,552,
23,555 (May 25, 1983). Likewise in the lower court’s view,
placing a hazardous substance into an unenclosed con-
tainer, empty save for air, would constitute a release,
because that placement would literally be a discharge
into “air” - also part of the “environment.” In short,
24
under the Eighth Circuit’s construct, almost every move-
ment of a hazardous substance becomes a release, defeat-
ing the purpose of the notification requirement — to alert
EPA to situations of potentially serious environmental
concern.
The other two circuits that have addressed the same
issue have adopted a more commonsense approach. For
instance, in resolving a challenge to EPA’s regulations
regarding CERCLA release-reporting requirements, the
D.C. Circuit concluded that Congress did not intend in
CERCLA that “exposure” to the environment was the
same as movement “into” the environment. The Fertilizer
Institute v. United States Environmental Protection Agency,
935 F.2d 1303, 1309-1310 (D.C. Cir. 1991). In particular, the
D.C. Circuit rejected EPA’s interpretation of the term
“release” as including placement of a hazardous sub-
stance in an unenclosed structure open to the atmo-
sphere. In other words, exposure to the air is not a
release. Under that analysis, simple contact between a
hazardous substance and a land surface likewise would
not constitute a “release.”?
The Fifth Circuit reached a similar conclusion in
United States v. Baytank (Houston), Inc., 934 F.2d 599 (Sth
Cir. 1991), when it agreed with the district court that the
9 It is problematic whether a hazardous substance could
come in contact with water and not be released into that
medium. The physical properties of water are such that any
contact will immediately result in movement from the point of
contact further into the water. The same effect does not neces-
sarily occur when air or soil come in contact with a hazardous
substance.
25
movement of 4,000 pounds of acrylonitrile, a hazardous
substance with a reportable quantity of 100 pounds, into
a containment structure as a result of a tank overflow did
not constitute a release “into” the environment. Id. at 619.
The movement was instead from one facility to another,
from the tank to the containment area. Id. But the Fifth
Circuit also made it clear that volatilization of material
from the containment structure was a “release” to the air
if what escaped through volatilization exceeded the
reportable quantity. Id. at 620.
Not only does the construction adopted by the D.C.
Circuit and the Fifth Circuit make practical sense, it also
prevents a potential conflict between the terms “facility” and
“environment” as used in § 103 of CERCLA. 42 U.S.C.
§ 9601(8)-(9). Those words are so broadly defined that with-
out the practical understanding adopted in Fertilizer Institute
and Baytank, there is no way to distinguish one from the
other. In that circumstance, either no reporting requirements
exist because the entire environment becomes a facility, or
virtually any movement of material above a reportable quan-
tity requires notification because all facilities are simply a
subset of the environment. By making it clear that simple
contact with or exposure to the environment does not consti-
tute a release, the courts are recognizing that such initial
placement simply creates a new “facility.”1° Only if there is
10 In another context EPA shared a similar view. The pre-
amble to regulations implementing § 103 of CERCLA includes
the following statement: “Thus the distinction between the
“facility” (or “vessel”) from which a substance is released and
the “environment” into which a substance passes is the deter-
mining factor in requiring notification.” 50 Fed. Reg. 13,455,
13,462 (Apr. 4, 1985).
26
further movement, for instance volatilization or migration
into the soil subsequent to the initial contact or exposure, has
a “release” occurred.
The distinction made by the D.C. Circuit and the
Fifth Circuit also differentiates a “release” from a “threat-
ened release” by recognizing that exposing the environ-
ment to a hazardous substance only creates a threat not
an actual release. Section 103 of CERCLA does not
require a report of “threatened” releases. 42 U.S.C.
§ 9603(a).
In this case the evidence at trial established no more
than that paint waste came in contact with or was
exposed to clay soils. The EPA could have tried to estab-
lish the paint waste migrated into the soils after the initial
contact, or that the material placed in the depressions
volatilized in a reportable quantity. It chose not to do so.
Based on the proof the government did offer, Mr. Good-
ner would not have been convicted in the D.C. Circuit or
the Fifth Circuit. As a result of the erroneous ruling of the
Eighth Circuit, his conviction now stands.
In order to avoid uncertainty in the regulated com-
munity about the extent of the duty to provide notifica-
tion under § 103 of CERCLA, the Court should review
this case and resolve the existing conflict among the
circuits.
27
CONCLUSION
Without a clear map and no compass, Mr. Goodner’s
journey through the forest of hazardous waste regula-
tions placed him at the bottom of a concealed sinkhold.
The Petition for a Writ of Certiorari should be granted to
make the journey less difficult for all travelers - the
courts, the agencies, and the regulated.
Dated: October 5, 1991.
Respectfully submitted,
James B. Harris*
Becky L. JOLIN
THompson & KNIGHT, P.C.
3300 First City Center
1700 Pacific
Dallas, TX 75201
(214) 969-1102
* Counsel of Record
Jerry McComas
McComss, Brock & LEONARD
P. O. Box 5917
Idabel, OK 74745
(405) 286-3363
DANNY THRAILKILL
Pace & THRAILKILL
P. O. Drawer 30
Mena, AR 71753
(501) 394-3091
Counsel for Petitioner
App. i
TABLE OF CONTENTS
44
Page
ONS i cn kno kone rane senas dc tassegseseisss App. 1
Sentencing Order of the U.S. District Court....App. 9
Opinion of the Eighth Circuit..........-...+++- App. 22
Denial of Petition for Rehearing .........--..-. App. 36
42 U.S.C. § 6903(5), RCRA § 1004(5); Definition of
Hazardous Waste... .......cccccccccesscerese App. 37
42 U.S.C. § 6921(a)-(b)(1), RCRA § 3001(a)-(b)(1);
Identification and Listing of Hazardous
Se err rrr reer re Tree tee ee. ee App. 38
42 U.S.C. § 9601(8), (9), (22), CERCLA § 101(8), (9),
(22); Definitions of Environment, Facility, and
ee rer reer rrr rr rere Tee re eee eee App. 40
42 U.S.C. § 9603(a)-(b), CERCLA § 103(a)-(b);
Notification requirements respecting released
IG ois ohn eRe tress erence is eesens App. 42
40 C.E.R. § 260.10; Definition of Disposal....... App.
40 C.F.R. § 261.2(a)-(b); Definition of Solid
WE cia cca ca sevneyctbnw ssp endvrtbe es nals on App. 45
40 C.F.R. § 261.3; Definition of Hazardous
Pree rrr Terr errr re Tee ee Teer ree App. 46
40 C.F.R. § 261.7; Residues of Hazardous Waste in
Empty Containers ..........-.0eeee eee e eens App. 52
40 C.F.R. § 261.31(a); Listing for FO02.......... App. 54
EPA Directive Number 9444.15(85) ...........-. App. 55
Jury Instructions..............:e eee seer ee eeees App. 59
App. 1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
UNITED STATES OF AMERICA PLAINTIFF
V. CR. No. 90-20031-01, 04
GOODNER BROTHERS AIRCRAFT, INC.,
ET AL DEFENDANTS
INDICTMENT
The Grand Jury Charges:
COUNT ONE
1. At all times material herein, GOODNER
BROTHERS AIRCRAFT, INCORPORATED (hereinafter
GOODNER AIRCRAFT) and Goodner Brothers Farms
were incorporated to do business in the State of
Arkansas. GOODNER AIRCRAFT did business at the
Intermountain Regional Airport in Mena, Arkansas.
Goodner Farm is located in Ink, Arkansas. Both Mena
and Ink, Arkansas are in the Western District of
Arkansas.
2. At all times relevant herein, defendant ALBERT
S. GOODNER, JUNIOR, a/k/a “JUNIOR” GOODNER,
was President of GOODNER AIRCRAFT, and Goodner
Farms. He was also the Operating Manager of these com-
panies.
3. During all times relevant to this Count, the
Resource Conservation and Recovery Act (hereinafter
“RCRA”) as amended, Title 42 United States Code, Sec-
tions 6901, et seq., provided that unless a facility was
exempt under certain provisions not applicable here, no
————
aii
App. 2
hazardous wastes could be stored or disposed of without
a permit authorized by the United States Environmental
Protection Agency (hereinafter “EPA”).
4. In or about February 1987, the exact date
unknown to the Grand Jury, at Mena, within the Western
District of Arkansas, GOODNER BROTHERS AIRCRAFT,
INCORPORATED, and ALBERT S$. GOODNER, JUNIOR
a/k/a “JUNIOR” GOODNER, defendants herein, did
knowingly dispose of and cause, counsel, command,
induce and procure the disposal of hazardous wastes as
defined in 40 C.F.R., 261, and Arkansas Hazardous Waste
Management Code Section 4, including, but not limited
to, spent halogenated solvents onto the Goodner Farms at
Ink, Arkansas, without having obtained interim status or
a permit for said disposal pursuant to Title 42, United
States Code, Sections 6925 and 6926; all in violation of
Title 18, United States Code, Section 2; Title 42, United
States Code, Section 6928(d)(2)(A).
COUNT TWO
1. Paragraphs one through three of Count One of
the Indictment are hereby realleged and incorporated by
reference as though fully set forth herein.
2. From in or about June 1988 to in or about August
1988, the exact date unknown to the Grand Jury, at Mena,
within the Western District of Arkansas, GOODNER
BROTHERS AIRCRAFT, INCORPORATED, and ALBERT
S. GOODNER, JUNIOR, a/k/a “JUNIOR” GOODNER,
defendants herein, did knowing dispose of and cause,
counsel, command, induce and procure the disposal of
hazardous wastes as defined in 40 C.F.R., Part 261, and
App. 3
Arkansas Hazardous Waste Management Code Section 4,
including, but not limited to, spent halogenated solvents
onto the Goodner Farms at Ink, Arkansas, without having
obtained interim status or a permit for said disposal
pursuant to Title 42, United States Code, Sections 6925
and 6926; all in violation of Title 18, United States Code,
Section 2; Title 42, United States Code, Section
6928(d)(2)(A).
COUNT THREE
1. Paragraphs One through three of Count One of
the Indictment are hereby realleged and incorporated by
reference as though fully set forth herein.
2. From in or about September 1988 to in or about
November 1988, the exact date unknown to the Grand
Jury, at Mena, within the Western District of Arkansas,
GOODNER BROTHERS AIRCRAFT, INCORPORATED,
and ALBERT S. GOODNER, JUNIOR, a/k/a “JUNIOR”
GOODNER, defendants herein, did knowingly dispose of
and cause, counsel, command, induce and procure the
disposal of hazardous wastes as defined in 40 C.F.R., Part
261, and Arkansas Hazardous Waste Management Code
Section 4, including but not limited to spent halogenated
solvents on the Goodner Farms at Ink, Arkansas, without
having obtained interim status or a permit for said dis-
posal pursuant to Title 42, United States Code, Sections
6925 and 6926; all in violation of Title 18, United States
Code, Section 2; Title 42, United States Code, Section
6928(d)(2)(A).
lll
App. 4
COUNT FOUR
1. Paragraphs one through three of Count One of
the Indictment are hereby realleged and incorporated by
reference as though fully set forth herein.
2. On or about March 14, 1989, at Mena, within the
Western District of Arkansas, GOODNER BROTHERS
AIRCRAFT, INCORPORATED and ALBERT S. GOOD-
NER, JUNIOR, a/k/a “JUNIOR” GOODNER, defendants
herein, did knowingly dispose of and cause, counsel,
command, induce and procure the disposal of hazardous
wastes as defined in 40 C.F.R., Part 261, and Arkansas
Hazardous Waste Management Code Section 4, including,
but not limited to, spent halogenated solvents onto the
Goodner Farms at Ink, Arkansas, without having
obtained interim status or a permit for said disposal
pursuant to Title 42, United States Code, Sections 6925
and 6926; all in violation of Title 18, United States Code,
Section 2; Title 42, United States Code, Section
6928(d)(2)(A).
COUNT FIVE
1. Paragraphs one and two of Count One of the
Indictment herein are hereby realleged and incorporated
as though fully set forth herein.
2. In or about February 1987, the exact date
unknown to the Grand Jury, a quantity in excess of the
reportable quantity of hazardous substances was released
into the environment without a federal permit at the
GOODNER FARMS facility, in Ink, Arkansas.
App. 5
3. Defendant ALBERT S. GOODNER, JUNIOR,
a/k/a “JUNIOR” GOODNER, a person in charge of the
Ink, Arkansas facility and having knowledge of the afore-
mentioned release of hazardous substances into the envi-
ronment without a permit, failed to notify the
appropriate agency of the United States Government of
such release of hazardous substances; in violation of Title
42, United States Code, Section 9603(b).
COUNT SIX
1. Paragraphs one and two of Count One of the
Indictment herein are hereby realleged and incorporated
as though fully set forth herein.
2. From in or about June 1988 to in or about August
1988, the exact date unknown to the Grand Jury, a quan-
tity in excess of the reportable quantity of hazardous
substances, was released into the environment without a
federal permit at the GOODNER FARMS facility, in Ink,
Arkansas.
3. Defendant ALBERT S. GOODNER, JUNIOR
a/k/a “JUNIOR” GOODNER, a person in charge of the
Ink, Arkansas facility and having knowledge of the afore-
mentioned release of hazardous substances into the envi-
ronment without a permit, failed to notify the
appropriate agency of the United States Government of
| such release of hazardous substances; in violation of
Titled 42, United States Code, Section 9603(b).
enicnnaiemeemeaaial
App. 6
COUNT SEVEN
1. Paragraphs one and two of Count One of the
Indictment herein are hereby realleged and incorporated
as though fully set forth herein.
2. From in or about September 1988 to in or about
November 1988, the exact date unknown to the Grand
Jury, a quantity in excess of the reportable quantity of
hazardous substances was released into the environment
without a federal permit at the GOODNER FARMS facil-
ity, in Ink, Arkansas.
3. Defendant ALBERT S. GOODNER, JUNIOR
a/k/a “JUNIOR” GOODNER, a person in charge of the
Ink, Arkansas facility and having knowledge of the afore-
mentioned release of hazardous substances into the envi-
ronment without a permit, failed to notify the
appropriate agency of the United States Government of
such release of hazardous substances; in violation of Title
42, United States Code, Section 9603(b).
COUNT EIGHT
1. Paragraphs one and two of Count One of the
Indictment herein are hereby realleged and incorporated
as though set forth herein.
2. On or about March 14, 1989, a quantity in excess
of the reportable quantity of hazardous substances, was
released into the environment without a federal permit at
the GOODNER FARMS facility, in Ink, Arkansas.
3. Defendant ALBERT S. GOODNER, JUNIOR
a/k/a “JUNIOR” GOODNER, a person in charge of the
App. 7
Ink, Arkansas facility and having knowledge of the afore-
mentioned release of hazardous substances into the envi-
ronment without a permit, failed to notify the
appropriate agency of the United States Government of »
such release of hazardous substances; in violation of Title
42, United States Code, Section 9603(b).
COUNT NINE
1. Paragraphs one and two of Count One of the
Indictment herein are hereby realleged and incorporated
as though fully set forth herein.
2. From on or about August 1, 1985, and continuing
tc on or about May 5, 1989, at Mena, Arkansas, within the
Western District of Arkansas, GOODNER AIRCRAFT,
and ALBERT S. GOODNER, a/k/a/ “JUNIOR” GOOD-
NER, defendants herein, did knowingly generate, store,
treat, transport, dispose or otherwise handle hazardous
wastes and did knowingly fail to file an application
required to be filed for purposes of compliance with
regulations promulgated by the Administrator of the
Environmental Protection Agency and by the State of
Arkansas; to wit: a Hazardous Waste Permit Application
(EPA Form 3510-3); all in violation of Title 42, United
States Code, Section 6928(d)(4).
A True Bill.
J. Michael Fitzhugh
United States Attorney
/s/ Deputy Christopher C. Sugg
Foreperson
iil
App. 8
By: /s/
Mark W. Webb (#77141)
Asst. U.S. Attorney
P.O. Box 1524
Fort Smith, AR 72902
Tele. (501) 783-5125
Patrick M. Flachs
Special Asst. U.S. Attorney
Room 414
U.S. Court & Custom House
1114 Market Street
St. Louis, MO 63101
Tele. (314) 539-2200
App. 9
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA
V. JUDGMENT IN A CRIMINAL CASE
GOODNER BROTHERS
AIRCRAFT, INC.
P. O. Box 1387
Mena, AR 71953 Case Number: 90-20031-01
(Name and Address of Defendant) Danny Thrailkill
Attorney for Defendant
THE DEFENDANT ENTERED A PLEA OF:
, and
[_ guilty _ nolo contendere] as to count(s)
_ not guilty as to count(s)
THERE WAS A:
[_ finding X verdict] of guilty as to count(s) 1,2, 3,4and 9 .
THERE WAS A:
[_ finding _ verdict] of not guilty as to count(s)
__ judgment of acquittal as to count(s)
_ The defendant is acquitted and discharged as to this/
these count(s).
THE DEFENDANT IS CONVICTED OF THE OFFENSE(S)
OF: Counts 1, 2, 3, and 4 - Disposal of Hazardous Waste
without having obtained a permit pursuant to 42 U.S.C.
6925 and 6926, in violation of 18 U.S.C. 2 and 42 U.S.C.
6928(d)(2)(A). Count 9 —- Handling Hazardous Waste and
App. 10
Failing to file an Application for a Hazardous Waste
Permit, in violation of 42 U.S.C. 6928(d)(4).
IT IS THE JUDGMENT OF THIS COURT THAT: The
defendant is hereby placed on probation for a term of
FIVE (5) YEARS and fined $150,000. This term consists of
terms of five years on each of Counts 1, 2, 3, 4 and 9 with
said terms to run concurrently.
In addition to any conditions of probation imposed
above, IT IS ORDERED that the conditions of probation
set out on the reverse of this judgment are imposed.
CONDITIONS OF PROBATION
Where probation has been ordered the defendant shall:
(1) refrain from violation of any law (federal, state, and
local) and get in touch immediately with your proba-
tion officer if arrested or questioned by a law
enforcement officer;
(2) associate only with law abiding persons and main-
tain reasonable hours;
(3) work regularly at a lawful occupation and support
your legal dependents, If any, to the best of your
ability. (When out of work notify your probation
officer at once, and consult him prior to job
changes);
(4) not leave the judicial district without permission of
the probation officer;
(5) notify your probation officer immediately of any
changes in your place of residence;
(6) follow the probation officer’s instructions and report
as directed.
App. 11
The court may change the conditions of probation, reduce
or extend the period of probation, and at any time during
the probation period or within the maximum probation
period of 5 years permitted by law, may issue a warrant
and revoke probation for a violation occurring during the
probation period.
IT IS FURTHER ORDERED that the defendant shall pay a
total special assessment of $ 250.00 _ pursuant to Title 18,
U.S.C. Section 3013 for count(s) 1, 2, 3, 4 and 9 as
follows:
IT IS FURTHER ORDERED THAT counts are
DISMISSED on the motion of the United States.
IT IS FURTHER ORDERED that the defendant shall pay
to the United States attorney for this district any amount
imposed as a fine, restitution or special assessment. The
defendant shall pay to the clerk of the court any amount
imposed as a cost of prosecution. Until all fines, restitu-
tion, special assessments and costs are fully paid, the
defendant shall immediately notify the United States
attorney for this district of any change in name and
address.
IT IS FURTHER ORDERED that the clerk of the court
deliver a certified copy of this judgment to the United
States marshal of this district.
_ The Court orders commitment to the custody of the
Attorney General and recommends:
App. 12
June 19, 1991
Date of Imposition of Sentence
/s/ H. Franklin Waters
Signature of Judicial Officer
H. Franklin Waters
Chief United States District
Judge
Name and Title of Judicial
Officer
Date
RETURN
I have executed this Judgment as follows:
Defendant delivered on to at
Date
___, the institution designated by the Attorney General,
with a certified copy of this Judgment in a Criminal Case.
United States Marshal
By
Deputy Marshal
App. 13
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
V. (For Offenses Committed On or
After November 1, 1987)
ALBERT S. GOODNER, JR. Case Number: 90-20031-04
(Name of Defendant) Jerry McCombs
Defendant’s Attorney
THE DEFENDANT:
__ pleaded guilty to count(s)
X was found guilty on count(s) 6, 7,8 and 9 _ aftera
plea of not guilty.
Accordingly, the defendant is adjudged guilty of such
count(s), which involve the following offenses:
Date
Title & Nature of Offense Count
Section Offense Concluded Number(s)
42 USC Releasing August 1988 6
9603(b) Hazardous
Substance
into the
Environment
without a
Permit.
App. 14
42 USC Releasing November 1988 7
9603(b) Hazardous
Substance
into the
Environment
without a
Permit.
42 USC Releasing March 14, 1989 8
9603(b) Hazardous
Substance
into the
Environment
without a
Permit.
42 USC Handling May 5, 1989 9
6928(d)(4) Hazardous
Wastes and
Failing to
file an
Application
for a
Hazardous
Waste Permit.
The defendant is sentenced as provided in pages 2
through 5 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)
1, 2, 3, 4, and 5__ and is discharged as to such
count(s).
Count(s) — (is)(are) dismissed on the motion of the
United States
It is ordered that the defendant shall pay a special
assessment of $ 200.00 , for count(s) 6, 7,8 and9_,
which shall be due X immediately _ as follows:
App. 15
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. June 19, 1991
No.: 432-46-9950 Date of Imposition
of Sentence
Defendant’s Date of Birth:
09-23-30 /s/ H. Franklin Waters
Signature of
Defendant’s Mailing Judicial Officer
Address: H. Franklin Waters
P. O. Box 1387 Chief United States
Mena, AR 71953 District Judge
Name & Title of
Judicial Officer
June 21, 1991
Date
Defendant’s Residence Address:
Route 1, Box 8013C
Mena, AR 71953
App. 16
IMPRISONMENT
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned to a
term of fifteen (15) months
The court makes the following recommendations to
the Bureau of Prisons:
The defendant is remanded to the custody of the
United States marshal.
The defendant shall surrender to the United States
marshal for this district.
a.m.
at p-m. on
——-
—
__ as notified by the United States marshal.
X The defendant shall surrender for service of sentence at
the institution designated by the Bureau of Prisons.
X before 2 p.m. KK __.
X as notified by the United States marshal.
__ as notified by the probation office.
RETURN
| have executed this judgment as follows:
Defendant delivered on to a
_ with a certified copy of this judgment
United States Marshal
By
Deputy Marshal
App. 17
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall
be on supervised release for a term of __ one (1) year.
While on supervised release, the defendant shall not
commit another federal, state, or local crime and shall not
illegally possess a controlled substance. The defendant
shall comply with the standard conditions that have been
adopted by this court (set forth below). If this judgment
imposes a restitution obligation, it shall be a condition of
supervised release that the defendant pay any such resti-
tution that remains unpaid at the commencement of the
term of supervised release. The defendant shall comply
with the following additional conditions:
X The defendant shall report in person 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 pay any fines that remain unpaid
at the commencement of the term of supervised
release.
| ><
The defendant shall not possess a firearm or destruc-
tive device.
STANDARD CONDITIONS OF SUPERVISION
While the defendant is on supervised release pur-
suant to this judgment, the defendant shall not commit
another federal, state or local crime. In addition:
1) the defendant shall not leave the judicial district
without the permission of the court or probation
officer;
sinatra
App. 18
2) the defendant shall report to the probation officer as
directed by the court or probation officer and shall
submit a truthful and complete written report within
the first five days of each month;
3) the defendant shall answer truthfully all inquiries
by the probation officer and follow the instructions
of the probation officer;
4) the defendant shall support his or her dependents
and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occu-
pation unless excused by the probation officer for
schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer
within 72 hours of any change in residence or
employment;
7) the defendant shall refrain from excessive use of
alcohol and shall not purchase, possess, use, distrib-
ute, or administer any narcotic or other controlled
substance, or any paraphernalia related to such sub-
stances, except as prescribed by a physician;
8) the defendant shall not frequent places where con-
trolled substances are illegally sold, used, distrib-
uted, or administered;
9) 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;
10) 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;
ieee nieeaananaanmaiaaiel
App. 19
11) the defendant shall notify the probation officer
within seventy-two hours of being arrested or ques-
tioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to
act as an informer or a special agent of a law
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.
FINE
The defendant shall pay a fine of $ 7,500.00. The fine
includes any costs of incarceration and or supervision.
This amount is the total of the fines imposed on
individual counts, as follows:
The court has determined that the defendant does not
have the ability to pay interest. It is ordered that;
The interest requirement is waived.
_ The interest requirement is modified as follows:
This fine plus any interest required shall be paid:
in full immediately.
in full not later than
in equal monthly installments over a period of
___ months. The first payment is due on the date
of this judgment. Subsequent payments are due
monthly thereafter.
App. 20
in installments according to the following sched-
ule of payments:
If the fine is not paid, the court may sentence the defen-
dant to any sentence which might have been originally
imposed. See 18 U.S.C. § 3614.
STATEMENT OF REASONS
The court adopts the factual findings and guideline
application in the presentence report.
OR
The court adopts the factual findings and guideline
application in the presentence report except (see
attachment, if necessary): The court did not feel the
defendant was entitled to a 4 level increase pursuant
to 2Q1.2(b)(3).
|><
Guideline Range Determined by the Court:
Total Offense Level: 14 _
Criminal History Category: T__
Imprisonment Range: 15_ to 21_ months
Supervised Release Range: 0 to 1_ year¢
Fine Range: $ 4,000_ to $ 40,000_
_ Fine is waived or is below the guideline range,
because of the defendant’s inability to pay.
Restitution: $ 0
_ Full restitution is not ordered for the following
reason(s):
X The sentence is within the guideline range, that range
does not exceed 24 months, KKK KKK KK KKK
App. 21
KKIKKX KK KKKKKK KK KA KAKK KKKNK KKK
KAKKKKAK KAKKKK KKK KY APP KKKAKKK KK
XK KEK XKKKMKAKKK KK.
OR
The sentence is within the guideline range, that range
exceeds 24 months, and the sentence is imposed for
the following reason(s):
OR
The sentence departs from the guideline range
upon motion of the government, as a result of
defendant’s substantial assistance.
| ><
for the following reason(s): Two level reduction
pursuant to Section 2Q1.2 Application Notes #5
and a two level reduction pursuant to 2Q1.2
Application Note #8.
App. 22
United States Court of Appeals
for the Eighth Circuit
No. 92-2466
United States of America,
eo, Appeal from the United
States District Court for
the Western District of
Arkansas.
V.
Goodner Brothers Aircraft,
Incorporated; and Albert
S. Goodner, Jr., also known
as Junior Goodner,
e486 @ @. 6 6 4 8 ©
Appellants.
Submitted: December 11, 1991
Filed: June 4, 1992
Before LAY,* Chief Judge, WOLLMAN and HANSEN,
Circuit Judges.
HANSEN, Circuit Judge.
Appellants Goodner Brothers Aircraft and Albert S.
Goodner, Jr. (Junior Goodner) were charged with criminal
violations of the Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. § 6921 et seq., and the Comprehen-
sive Environmental Response Compensation and Liability
*The Honorable Donald P. Lay was Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the time this
case was submitted and took senior status on January 7, 1992,
before the opinion was filed.
i eniniaeeaaeiei inane
App. 23
Act (CERCLA), 42 U.S.C. § 9601 et seq. This case has been
tried twice. The first trial resulted in a hung jury on nine
counts and acquittals on approximately four other counts.
In the second trial on the remaining nine counts, the jury
returned a guilty verdict against the appellants on most
counts. Appellants appeal from their convictions in the
district court. We affirm in part, reverse in part, and
remand.
I. Background
Goodner Brothers Aircraft, of which Junior Goodner
was the owner and operator, was in the business of
repainting aircraft. Paint was removed from the aircraft
by spraying undiluted paint removers onto the plane. The
paint removers used were PR 3500 and PR 3700, pur-
chased from El Dorado Chemical Company. These sol-
vents consisted of 50% to 70% methylene chloride and a
lesser amount of phenol. The paint remover would cause
the paint on the plane to bubble up and slide off the
plane. Water under high pressure was also applied to the
plane to help peel off the paint. When the collected paint
waste filled fifteen to twenty barrels, the waste was dis-
posed of at the Goodner Brothers Farm. The waste was
placed in three pits at the farm: two natural ravines and
one man-made excavation. The evidence indicated that
the total amount of waste so deposited was approx-
imately 51,000 pounds or 25 tons.
In 1988, a neighbor noticed “two men dumping
creamy beige, toxic-smelling waste into a ravine” on the
Goodner Brothers Farm. Junior Goodner assured the
neighbor that he knew about the situation and that he
App. 24
should not be concerned. The neighbor reported the
dumping to the authorities. The Arkansas Department of
Pollution Control and Ecology and later the United States
Environmental Protection Agency (EPA) began to investi-
gate. Pursuant to a search warrant, the EPA seized docu-
ments at the Goodner Brothers Aircraft facility. The
documents included a 1980 letter from the EPA and a
1982 letter from the Arkansas Department of Pollution
Control and Ecology, both sent to Goodner Brothers Air-
craft warning it of its potential liability for hazardous
substances. Also pursuant to the warrant, the EPA took
samples of the material coming off the plane and the
substance found in the dumpsites. Upon testing, the sam-
ples from the dumpsites were found to contain up to 20%
phenol and, in several cases, up to 20% methylene chlo-
ride.
Goodner Brothers Aircraft was convicted of counts 1
through 4, and Junior Goodner was found not guilty of
counts 1 through 5. Counts 1 through 4 charge RCRA
violations, the disposal of hazardous waste on certain
dates without having obtained a permit pursuant to 42
U.S.C. §§ 6925 and 6926, in violation of 42 U.S.C.
§ 6928(d)(2)(A). Count 5 is not at issue. Both Goodner
Brothers Aircraft and Junior Goodner were convicted of
count 9, a RCRA count involving the handling of hazard-
ous waste and failing to file an application for a hazard-
ous waste permit, in violation of 42 U.S.C. § 6928(d)(4).
Junior Goodner was convicted of counts 6 through 8 as
well. These counts charge CERCLA violations involving
the release of hazardous substances into the environment
on certain dates without a permit, in violation of 42
U.S.C. § 9603(b). The district court sentenced Goodner
App. 25
Brothers Aircraft to five years probation, a $150,000 fine,
and a $250 special assessment. The district court denied
Junior Goodner a reduction adjustment for acceptance of
responsibility and sentenced him to fifteen months
imprisonment, a $7,500 fine, and a $200 special assess-
ment.
Appellants raise numerous issues regarding the
RCRA counts (counts 1 through 4 and 9) and the
CERCLA counts (counts 6 through 8). Junior Goodner
also challenges the district court’s refusal to grant him an
offense level reduction at sentencing for acceptance of
responsibility.
II. Discussion
A. RCRA Counts 1 through 4
Counts 1 through 4, of which Goodner Brothers Air-
craft was convicted, involve violations of 42 U.S.C.
§ 6928(d)(2)(A). This subsection provides criminal penal-
ties for “[aJny person who . . . knowingly treats, stores, or
disposes of any hazardous waste identified or listed
under this subchapter [RCRA] . . . without a permit under
this subchapter [RCRA]. . . . ” Jury instruction number 9
stated that the third element necessary to prove the
RCRA violations charged in counts 1 through 4 was “that
the wastes were listed or identified by the Environmental
Protection Agency as hazardous waste pursuant to
[RCRA].” This instruction was clarified in jury instruction
number 11.
App. 26
INSTRUCTION NO. 11
HAZARDOUS WASTE LISTING
You are instructed that the Environmental
Protection Agency has listed as hazardous the
following wastes:
The spent halogenated solvent, methylene
chloride, and all spent solvent mixtures
and/or blends containing, before their use,
a total of ten percent or more by volume of
methylene chloride.
You are further instructed that pursuant to
the regulations of the Environmental Protection
Agency and the Arkansas Department of Pollu-
tion Control and Ecology, when a listed hazard-
ous waste is mixed with a solid, liquid, or
semisolid material, the resulting mixtures is also
a hazardous waste.
A jury is presumed to follow the instructions given to
it by the court. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).
Under this instruction, the jury could have determined
that the waste was hazardous under two alternative
grounds. First, the jury could have found that the waste
was a listed waste under the quoted language from 40
C.F.R. § 261.31. See 42 U.S.C. § 6921(b). This type of listed
hazardous waste is referred to as F002 waste. Second, the
jury could have found the waste to be “hazardous waste”
pursuant to the mixture rule set forth in the last para-
graph of the instruction.
The mixture rule was promulgated by the EPA, cod-
ified at 40 C.F.R. § 261.3(a)(2)(iv), and incorporated by
reference under the Arkansas regulations, 2 Ark. Admin.
Code § 2(5). Recently, the mixture rule was successfully
App. 27
challenged on procedural grounds by other parties in
Shell Oil Company v. Environmental Protection Agency, 950
F.2d 741 (D.C. Cir. 1991). Because the EPA failed to follow
the proper notice and comment procedures required
under the Administrative Procedures Act, the court
vacated the mixture rule. Id. at 752.
When a jury verdict may be supportable on one
ground but also may be based on another ground that is
unconstitutional or illegal, and when it is impossible to
tell which ground the jury selected, then the verdict must
be set aside. Griffin v. United States, 112 S. Ct. 466, 474
(1991); Yates v. United States, 354 U.S. 298, 312 (1957).
From the jury’s general verdict in this case, it is impossi-
ble to determine whether the jury found the waste to be a
listed F002 waste or whether it relied upon the invali-
dated mixture rule.
To avoid the reversal of the convictions under counts
1 through 4, the government first argues that the
invalidation of the rule does not apply retroactively. A
regulation not promulgated pursuant to the proper notice
and comment procedures has no “force or effect of law”
and therefore is void ab initio. See Chrysler Corp. v. Brown,
441 U.S. 281, 313 (1979). “Yet, when equity demands, an
unlawfully promulgated regulation can be left in place
while the agency provides the proper procedural rem-
edy.” Fertilizer Inst. v. E PA., 935 F.2d 1303, 1312 (D.C. Cir.
1991) (citations omitted). The Shell Oil court “vacated”
and “set aside” the mixture rule. 950 F.2d at 752. The
government argues, however, that under the same
authority the court had to leave the rule in place, it chose
to invalidate the rule only prospectively. Based upon the
language in Shell Oil that the EPA may wish to reenact the
App. 28
mixture rule on an interim basis pending full notice and
comment to avoid “discontinuity in the regulation of haz-
ardous wastes,” the government asserts that the court
must have intended only prospective invalidation
because discontinuity would not exist if the rule was void
ab initio. 950 F.2d at 752 (emphasis added). We reject the
government's interpretation because it is inconsistent
with the language in Shell Oil that specifically pronounces
that the rule is “vacated” and “set aside.”' The District of
Columbia Circuit has previously noted in another case
that “[t]o ‘vacate,’ as the parties should well know, means
‘to annul; to cancel or rescind; to declare, to make, or to
render, void; to defeat; to deprive of force; to make of no
authority or validity; to set aside.’” Action on Smoking &
Health v. C.A.B., 713 F.2d 795, 797 (D.C. Cir. 1983) (cita-
tions omitted). In addition, the language regarding “dis-
continuity” could easily refer to the practical effect of
invalidation of the mixture with respect to the compliance
practices of the regulated industries rather than referring
to the legal force of the mixture rule.
The government argues that under the test in Chevron
Oil Co. v. Huson, 404 U.S. 97 (1971), the invalidation
should only apply prospectively. Retroactive application
of the decision in Shell Oil, however, is “consistent with
the Supreme Court’s recent decision in James B. Beam
Distilling Co. v. Georgia, 111 S. Ct. 2439, 2445-46 (1991), in
1 Subsequent to filing its opinion, the court summarily
denied the government's request to “clarify” that the opinion
only voided the mixture rule prospectively. Shell Oil Co. v.
E.P.A., No. 80-1532, et al. (D.C. Cir. March 5, 1992) (order deny-
ing motion for clarification).
App. 29
which the Court announced that full retroactivity is the
normal rule in civil cases and limited the applicability of
Chevron Oil[’s] . . . test for prospectivity.” Bottineau
Farmers Elevator v. Woodward-Clyde Consultants, No.
90-5151, slip op. at 20 (8th Cir. May 5, 1992). Under James
B. Beam Distilling, full retroactive effect must be given to
a new rule of civil law when the new rule is applied to
the litigants in the case in which the rule was announced.
Boudreau v. Deloitte, Haskins & Sells, 942 F.2d 497, 498 n.1
(8th Cir. 1991). The court in Shell Oil did not expressly
reserve the question of retroactivity or of whether its
holding should apply to the parties before it. On the
contrary, it declined to reach the substantive arguments
of the petitioner regarding the mixture rule because it
had vacated the mixture rule. 950 F.2d at 952. If the court
had not applied the invalidation of the mixture rule to the
parties before it, it would have been required to reach the
substantive arguments. Under James B. Beam Distilling
and consistent with the meaning of the word “vacate,”
we find that invalidation of the mixture rule applies
retroactively.
The second argument raised by the government to
avoid reversal on counts 1 through 4 is that the Arkansas
mixture rule could be relied upon in place of the vacated
federal one. Goodner Brothers Aircraft was convicted of a
federal statute, 42 U.S.C. § 6928(d)(2)(A), which is
defined by federal law. The federal law did not incorpo-
rate state law definitions of hazardous waste. See 42
U.S.C. §§ 6903(5), 6921(b). We find any reliance on the
State mixture rule in this case inappropriate.
Based upon the invalidation of the federal mixture
rule, we reverse the district court and remand so that the
App. 30
verdicts on counts 1, 2, 3, and 4 may be set aside and a
new trial held. Consequently, we need not address the
numerous other issues raised by Goodner Brothers Air-
craft with respect to counts 1 through 4.
B. RCRA Count 9
Both Goodner Brothers Aircraft and Junior Goodner
were convicted of count 9 involving the handling of
hazardous waste and failure to file an application for a
hazardous waste permit under RCRA, in violation of 42
U.S.C. § 6928(d)(4). This subsection provides criminal
liability for any person who knowingly generates, dis-
poses of, or otherwise handles any hazardous waste and
who knowingly fails to file “any record, application, man-
ifest, report, or other document required to be maintained
or filed” under RCRA. 42 U.S.C. § 6928(d)(4).
Jury instruction number 20 properly includes as the
third element that “the wastes were listed or identified by
the Environmental Protection Agency as a hazardous
waste pursuant to [RCRA].” No separate definition of
hazardous waste was given for this count. Because the
third element in this RCRA count is identical to that
given for RCRA counts 1 through 4, the definition for all
of the counts presumably is the one given in jury instruc-
tion number 11. Therefore, we must reverse and remand
—for-retrial with respect to RCRA count 9 for the same
reasons as given for the reversal and remand of RCRA
counts 1 through 4. Consequently, we need not reach the
additional arguments raised by the appellants with
respect to this count.
eS ee OR OE ee ee ee ee a er eee aes
App. 31
C. CERCLA Counts 6 through 8
Counts 6 through 8, of which only Junior Goodner
was convicted, involve the release of hazardous sub-
stances into the environment on certain dates with a
permit in violation of 42 U.S.C. § 9603(b). Jury instruction
number 16 properly identified as an element of the
CERCLA counts “that the defendant knew of the release
into the environment from the facility of a hazardous
substance in an amount in excess of the reportable quan-
tity.” Instruction 17 defined “hazardous substances”
under CERCLA.
INSTRUCTION NUMBER 17
CERCLA - DEFINITIONS
The term “hazardous substance” is defined
to include any hazardous waste listed under
[RCRA]. Therefore, because it is listed as an
F002 hazardous waste, the spent solvent meth-
ylene chloride, and spent solvents which con-
tained more than ten percent methylene
chloride before use are hazardous substances.
Appellants argue that this CERCLA instruction also refer-
ences back to instruction 11, which defined hazardous
waste under RCRA and which stated both that the waste
may be a listed F002 hazardous waste and that the waste
may be hazardous waste under the invalidated mixture
rule. This CERCLA instruction defining hazardous sub-
stances, however, does more than refer back to the haz-
ardous waste definition. It specifically identified the
waste as a listed F002 hazardous waste and, consequently,
App. 32
eliminated any need for the jury to rely upon the mixture
rule. We find that the invalidation of the mixture rule
does not affect the convictions under CERCLA counts 6
through 8. With respect to these counts, therefore, appel-
lant’s other arguments must be addressed.
Junior Goodner argues that the paint waste was not a
listed F002 hazardous waste within the definition in 40
C.F.R. § 261.31. The paint remover clearly falls within the
definition of F002 waste because, before use, it was a
solvent that contained 50% to 70% methylene chloride.
Even some samples of the paint waste, containing the
solvent after use, were found to have over the required
10% methylene chloride. Junior Goodner, however, dis-
tinguishes the paint remover from the paint waste and
argues that the paint waste is not a “spent solvent.” In
promulgating the rule listing certain spent solvents as
F002 hazardous waste, the EPA noted that:
the spent solvent listings cover only those sol-
vents that are used for their “solvent” properties
— that is, to solubilize (dissolve) or mobilize
other constituents. . . . A solvent is considered
“spent” when it has been used and is no longer
fit for use without being regenerated, reclaimed,
or otherwise reprocessed. On the other hand,
process wastes where solvents were used as
reactants or ingredients in the formulation of
commercial chemical products are not covered
by the listing.
50 Fed. Reg. 53,315, 53,316 (1985). The paint waste con-
tains paint remover that was used for its solvent proper-
ties and was not used for the formulation of a commercial
product. It is considered “spent” because it cannot be
reused unless it is reprocessed. Therefore, the paint
App. 33
remover in the paint waste is a spent solvent within the
meaning of 40 C.F.R. § 261.31.
Junior Goodner next argues that insufficient proof
existed to support a finding that he knowingly failed to
notify authorities of a “release” from a “facility” into the
“environment” within the meaning of the statute. The
definition of environment includes “land surface .. . or
ambient air.” 42 U.S.C. §-9601(8). The definition of release
includes any “dumping or disposing” into the environ-
ment. 42 U.S.C. § 9601(22). The definition of facility
includes “storage containers.” 42 U.S.C. § 9601(9). Under
the plain language of the statute, the uncontroverted
evidence that the paint waste was dumped from the
barrels onto the land falls within the statutory language.
Junior Goodner also argues that the jury instructions
were faulty because they did not specify that the release
of a reportable quantity of a hazardous substance must
occur within a 24-hour period and that the indictment
also suffered the same defect. The limitation that the
release of a reportable quantity occurred in a 24-hour
period is not within the language of the statute, 42 U.S.C.
§ 9603(b), but is contained in an interpretative regulation,
40 C.FR. § 302.6(a). If only the statutory language and not
the regulatory language is included, the indictment is
permissible, as long as the essential elements of the crime
are set forth. United States v. Crow, 824 F.2d 761, 762 (9th
Cir. 1987). Even if the regulation narrowed the scope of
the statute in this case, it was harmless error because the
uncontroverted evidence demonstrated that a reportable
quantity of the paint waste was dumped onto the Good-
ner Brothers Farm in an amount of time less than 24
hours.
App. 34
The final argument Junior Goodnér raises with
respect to the CERCLA counts is that the indictment was
fatally flawed because it did not contain the term “ facil-
ity.” This contention has little merit because the definition
of facility includes storage containers, and the barrels
from which the paint waste was dumped constitute stor-
age containers. Furthermore, the jury instructions
included the term “facility” in defining the elements of
the offense.
D. Acceptance of Responsibility
Junior Goodner contends that the district court erred
in sentencing by refusing to reduce his offense level by
two levels for acceptance of responsibility. This court
gives great deference to the district court on review of
this determination and will not reverse unless the district
court’s decision is without foundation. United States v.
Evidente, 894 F.2d 1000, 1002 (8th Cir.), cert. denied, 495
U.S. 922 (1990). The district court did not abuse its discre-
tion in refusing to grant Junior Goodner a reduction for
acceptance of responsibility.
E. Motion to Strike
Taken with the merits of this case, we consider the
government’s motion to strike various letters from the
EPA that appellants included in their appendix. These
letters are non-binding legal reference materials that were
not relied upon by this court in the case. Therefore, we
deny the government’s motion to strike.
App. 35
Ill. Conclusion
We reverse the district court on counts 1 through 4
against Goodner Brothers Aircraft and on count 9 against
both Goodner Brothers Aircraft and Junior Goodner and
remand these counts for a new trial. We affirm the district
court with respect to counts 6 through 8 against Junior
Goodner. In addition, we deny the government’s motion
to strike.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
App. 36
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 91-2466WAFS
United States of America, * Appeal from the
* United States
Appellee, + District Court
Vv. : for the
Goodner Brothers : Western District
Aircraft, Inc., et al, fp of Arkansas
Appellants, *
The petition for rehearing by the panel has been
considered by the court and is hereby denied.
July 7, 1992
Order Entered at the Direction of the Court:
/s/ Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit
App. 37
§ 6903. Definitions [RCRA § 1004]
(5) The term “hazardous waste” means a solid
waste, or combination of solid wastes, which because of
its quantity, concentration, or physical, chemical, or infec-
tious characteristics may —
(A) cause, or significantly contribute to an increase
in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to
human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise
managed.
App. 38
§ 6921 Identification and listing of hazardous waste
[RCRA § 3001]
(a) Criteria for identification or listing
Not later than eighteen months after October 21,
1976, the Administrator shall, after notice and oppor-
tunity for public hearing, and after consultation with
appropriate Federal and State Agencies, develop and pro-
mulgate criteria for identifying the characteristics of haz-
ardous waste, and for listing hazardous waste, which
should be subject to the provisions of this subchapter,
taking into account toxicity, persistence, and degrad-
ability in nature, potential for accumulation in tissue, and
other related factors such as flammability, corrosiveness,
and other hazardous characteristics. Such criteria shall be
revised from time to time as may be appropriate.
(b) Identification and listing
(1) Not later than eighteen months after October 21,
1976, and after notice and opportunity for public hearing,
the Administrator shall promulgate regulations identify-
ing the characteristics of hazardous waste, and listing
particular hazardous wastes (within the meaning of Sec-
tion 6903(5) of this title), which shall be subject to the
provisions of this subchapter. Such regulations shall be
based on the criteria promulgated under subsection (a) of
this section and shall be revised from time to time there-
after as may be appropriate. The Administrator, in coop-
eration with the Agency for Toxic Substances and Disease
Registry and the National Toxicology Program, shall also
identify or list those hazardous wastes which shall be
subject to the provisions of this subchapter solely because
App. 39
of the presence in such wastes of certain constituents
(such as identified carcinogens, mutagens, or teratagens)
at levels in excess of levels which endanger human
health.
App. 40
§ 9601. Definitions [CERCLA § 101)
(8) The term “environment” means (A) the naviga-
ble waters, the waters of the contiguous zone, and the
ocean waters for which the natural resources are under
the exclusive management authority of the United States
under the Magnuson Fishery Conservation and Manage-
ment Act [16 U.S.C.A. § 1801 et seq.], and (B) any other
surface water, ground water, drinking water supply, land
surface or subsurface strata, or ambient air within the
United States or under the jurisdiction of the United
States.
(9) The term “facility” means (A) any building,
structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treat-
ment works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle, rolling
stock, or aircraft, or (B) any site or area where a hazard-
ous substance has been deposited, stored, disposed or, or
placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any
vessel.
(22) The term “release” means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into
the environment (including the abandonment or discard-
ing of barrels, containers, and -other closed receptacles
containing any hazardous substance or pollutant or con-
taminant), but excludes (A) any release which results in
exposure to persons solely within a workplace, with
respect to a claim which such persons may assert against
the employer of such persons, (B) emissions from the
App. 41
engine exhaust of a motor vehicle, rolling stock, aircraft,
vessel, or pipeline pumping station engine, (C) release of
source, establishing reportable quantities not later than
December 31, 1986. For all hazardous substances for
which proposed regulations establishing reportable quan-
tities were not published in the Federal Register under
this subsection on or before March 1, 1986, the Adminis-
trator shall publish under this subsection proposed regu-
lations establishing reportable quantities not later than
December 31, 1986, and promulgate final regulations
under this subsection establishing reportable quantities
not later than April 30, 1988.
App. 42
§ 9603 Notification requirements respecting released
substances [CERCLA § 103]
(a) Notice to National Response Center upon release
from vessel or offshore or onshore facility by person
in charge; conveyance of notice by Center
Any person in charge of a vessel or an offshore or an
onshore facility shall, as soon as he has knowledge of any
release (other than a federally permitted release) of a
hazardous substance from such vessel or facility in quan-
tities equal to or greater than those determined pursuant
to section 9602 of this title, immediately notify the
National Response Center established under the Clean
Water Act [33 U.S.C.A. § 1251 et seq.] of such release. The
National Response Center shall convey the notification
expeditiously to all appropriate Government agencies,
including the Governor of any affected State.
(b) Penalties for failure to notify; use of notice or infor-
mation pursuant to notice in criminal case
Any person -
(1) in charge of a vessel from which a hazardous
substance is released, other than a federally permitted
release, into or upon the navigable waters of the United
States, adjoining shorelines, or into or upon the waters of
the contiguous zone, or
(2) in charge of a vessel from which a hazardous
substance is released, other than a federally permitted
release, which may affect natural resources belong to,
appertaining to, or under the exclusive management
authority of the United States (including resources under
the Magnuson Fishery Conservation and Management
App. 43
Act [16 U.S.C.A. § 1801 et seq.]), and who is otherwise
subject to the jurisdiction of the United States at the time
of the release.
App. 44
40 C.E.R. § 260.10 Definitions
Disposal means the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any solid waste
or-hazardous waste into or on any land or water so that
such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the
air or discharged into any waters, including ground
waters.
tem NA
App. 45
40 C.F.R. § 261.2 Definition of solid waste.
(a)(1) A solid waste is any discarded material that is
not excluded by § 261.4(a) or that is not excluded by
variance granted under §§ 260.30 and 260.31.
(2) <A discarded material is any material which is:
(i) Abandoned, as explained in paragraph (b) of this
section; or
(ii) Recycled, as explained in paragraph (c) of this
section; or
(iii) Considered inherently waste-like, as explained in
paragraph (d) of this section.
(b) Materials are solid waste if they are abandoned
by being:
(1) Disposed of; or
(2) Burned or incinerated; or
(3) Accumulated, stored, or treated (but not
recycled) before or in lieu of being abandoned by being
disposed or, burned, or incinerated.
App. 46
40 C.R.R. § 261.3 Definition of hazardous waste.
(a) A solid waste, as defined in § 261.2, is a hazard-
ous waste if:
(1) It is not excluded from regulation as a hazard-
ous waste under § 261.4(b); and
(2) It meets any of the following criteria:
(i) It exhibits any of the characteristics of hazardous
waste identified in subpart C except that any mixture of a
waste from the extraction, beneficiation, and processing
of ores and minerals excluded under § 261.4(b)(7) and
any other solid waste exhibiting a characteristic of haz-
ardous waste under subpart C of this part only if it
exhibits a characteristic that would not have been exhib-
ited by the excluded waste alone if such mixture had not
occurred or if it continues to exhibit any of the charac-
teristics exhibited by the non-excluded wastes prior to
mixture. Further, for the purposes of applying the Extrac-
tion Procedure Toxicity characteristic to such mixtures,
the mixture is also a hazardous waste if it exceeds the
maximum concentration for any contaminant listed in
table I to § 261.24 that would not have been exceeded by
the excluded waste alone if the mixture had not occurred
or if it continues to exceed the maximum concentration
for any contaminant exceeded by the nonexempt waste
prior to mixture.
(ii) It is listed in subpart D and has not been
excluded from the lists in subpart D under §§ 260.20 and
260.22 of this chapter.
(iii) It is a mixture of a solid waste and a hazardous
waste that is listed in subpart D of this part solely
App. 47
because it exhibits one or more of the characteristics of
hazardous waste identified in subpart C, unless the resul-
tant mixture no longer exhibits any characteristic of haz-
ardous waste identified in subpart C of this part or unless
the solid waste is excluded from regulation under
§ 261.4(b)(7) and the resultant mixture no longer exhibits
any characteristic of hazardous waste identified in sub-
part C of this part for which the hazardous waste listed in
subpart D of this part was listed.
(iv) It is a mixture of solid waste and one or more
hazardous wastes listed in subpart D and has not been
excluded from this paragraph under §§ 260.20 and 260.22
of this chapter; however, the following mixtures of solid
wastes and hazardous wastes listed in subpart D are not
hazardous wastes (except by application of paragraph
(a)(2) (i) or (ii) of this section) if the generator can demon-
strate that the mixture consists of wastewater the dis-
charge of which is subject to regulation under either
section 402 or section 307(b) of the Clean Water Act
(including wastewater at facilities which have eliminated
the discharge of wastewater), and:
(A) One or more of the following spent solvents
listed in § 261.31-carbon tetrachloride, tetra-
chloroethylene, trichlorethylene-Provided, That the maxi-
mum total weekly usage of these solvents (other than the
amounts that can be demonstrated not to be discharged
to wastewater) divided by the average weekly flow of
- wastewater into the headworks of the facility’s wastewa-
ter treatment or pre-treatment system does not exceed 1
part per million; or
App. 48
(B) One or more of the following spent solvents
listed in § 261.31-methylene chloride, 1,1,1-tri-
chloroethane, chlorobenzene, o-dichlorobenzene, cresols,
cresylic acid, nitrobenzene, toluene, methyl ethyl ketone,
carbon disulfide, isobutanol, pyridine, spent chloro-
flurocarbon solvents-provided that the maximum total
weekly usage of these solvents (other than the amounts
that can be demonstrated not to be discharged to waste-
water) divided by the average weekly flow of wastewater
into the headworks of the facility’s wastewater treatment
or pre-treatment system does not exceed 25 parts per
million; or
(C) One of the following wastes listed in § 261.32 -
heat exchanger bundle cleaning sludge from the petro-
leum refining industry (EPA Hazardous Waste No. K050);
or
(D) A discarded commercial chemical product, or
chemical intermediate listed in § 261.33, arising from de
minimis losses of these materials from manufacturing
operations in which these materials are used as raw mate-
rials or are produced in the manufacturing process. For
purposes of this subparagraph, “de minimis” losses
include. those from normal material handling operations
(e.g. spills from the unloading or transfer of materials
from bins or other containers, leaks from pipes, valves or
other devices used to transfer materials); minor leaks of
process equipment, storage tanks or containers; leaks
from well-maintained pump packings and seals; sample
purgings; relief device discharges; discharges from safety
showers and rinsing and cleaning of personal safety
equipment; and rinsate from empty containers or from
containers that are rendered empty by that rinsing; or
—_
PR
App. 49
(E) Wastewater resulting from laboratory opera-
tions containing toxic (T) wastes listed in subpart D,
Provided, That the annualized average flow of laboratory
wastewater does not exceed one percent of total wastewa-
ter flow into the headworks of the facility’s wastewater
treatment or pre-treatment system, or provided the
wastes, combined annualized average concentration does
not exceed one part per million in the headworks of the
facility’s wastewater treatment or pretreatment facility.
Toxic (T) wastes used in laboratories that are demon-
strated not to be discharged to wastewater are not to be
included in this calculation.
(b) A solid waste which is not excluded from regu-
lation under paragraph (a)(1) of this section becomes a
hazardous waste when any of the following events occur:
(1) In the case of a waste listed in subpart D, when
the waste first meets the listing description set forth in
subpart D.
(2) In the case of a mixture of solid waste and one
or more listed hazardous wastes, when a hazardous
waste listed in subpart D is first added to the solid waste.
(3) In the case of any other waste (including a waste
mixture), when the waste exhibits any part of the charac-
teristics identified in subpart C.
(c) Unless and until it meets the criteria of para-
graph (d):
(1) A hazardous waste will remain a hazardous
waste.
(2)(i) Except as otherwise provided in paragrap
(c)(2)(ii) of this section, any solid waste generated from
App. 50
the treatment, storage, or disposal of a hazardous waste,
including any sludge, spill residue, ash, emission control
dust, or leachate (but not including precipitation run-off)
is a hazardous waste. (However, materials that are
reclaimed from solid wastes and that are used bene-
ficially are not solid wastes and hence are not hazardous
wastes under this provision unless the reclaimed material
is burned for energy recovery or used in a manner consti-
tuting disposal.)
(ii) The following solid wastes are not hazardous
even though they are generated from the treatment, stor-
age, or disposal of a hazardous waste, unless they exhibit
one or more of the characteristics of hazardous waste:
(A) Waste pickle liquor sludge generated by lime
stabilization of spent pickle liquor from the iron and steel
industry (SIC Codes 331 and 332).
(B) Waste from burning any of the materials
exempted from regulation by § 261.6(a)(3)(v) through
(viii). |
(d) Any solid waste described in paragraph (c) of
this section is not a hazardous waste if it meets the
following criteria:
(1) In the case of any solid waste, it does not
exhibit any of the characteristics of hazardous waste
identified in subpart C. (However, wastes that exhibit a
characteristic at the point of generation may still be sub-
ject to the requirements of part 268, even if they no longer
exhibit a characteristic at the point of land disposal.)
(2) In the case of a waste which is listed waste
under subpart D, contains a waste listed under subpart D
App. 51
or is derived from a waste listed in subpart D, it also has
been excluded from paragraph (c) under §§ 260.20 and
260.22 of this chapter.
App. 52
40 C.ER. § 261.7 Residues of hazardous waste in empty
containers.
(a)(1) Any hazardous waste remaining in either (i)
an empty container or (ii) an inner liner removed from an
empty container, as defined in paragraph (b) of this sec-
tion, is not subject to regulation under parts 261 through
265, or part 268, 270 or 124 of this chapter or to the
notification requirements of section 3010 of RCRA.
(2) Any hazardous waste in either (i) a container
that is not empty or (ii) an inner liner removed from a
container that is not empty, as defined in paragraph (b) of
this section, is subject to regulation under parts 261
through 265, and parts 268, 270 and 124 of this chapter
and to the notification requirements of section 3010 of
RCRA.
(b)(1) A container or an inner liner removed from a
container that has held any hazardous waste, except a
waste that is a compressed gas or that is identified as an
acute hazardous waste listed in §§ 261.31, 261.32, or
261.33(e) of this chapter is empty if:
(i) All wastes have been removed that can be
removed using the practices commonly employed to
remove materials from that type of container, ¢.g., pour-
ing, pumping, and aspirating, and
(ii) No more than 2.5 centimeters (one inch) of resi-
due remain on the bottom of the container or inner liner,
or
(iii)(A) No more than 3 percent by weight of the
total capacity of the container remains in the container or
App. 53
inner liner if the container is less than or equal to 110
gallons in size, or
(B) No more than 0.3 percent by weight of the total
capacity of the container remains in the container or inner
liner if the container is greater than 110 gallons in size.
(2) A container that has held a hazardous waste that
is a compressed gas is empty when the pressure in the
container approaches atmospheric.
(3) A container or inner liner removed from a con-
tainer that has held an acute hazardous waste listed in
§§ 261.31, 261.32, or 261.33(e) is empty if:
(i) The container or inner liner has been triple
rinsed using a solvent capable of removing the commer-
cial chemical product or manufacturing chemical inter-
mediate;
(ii) The container or inner liner has been cleaned by
another method that has been shown in the scientific
literature, or by tests conducted by the generator, to
achieve equivalent removal; or
(iii) In the case of a container, the inner liner that
prevented contact of the commercial chemical product or
manufacturing chemical intermediate with the container,
has been removed.
App. 54
——
40 C.E.R. § 261.31 Hazardous wastes from non-specific
sources.
(a) The following solid wastes are listed hazardous
wastes from non-specific sources unless they are
excluded under §§ 260.20 and 260.22 and listed in appen-
dix IX.
Industry
and EPA
hazardous Hazard
waste No. Hazardous waste code
po SET The following spent haloge- (T)
nated solvents: Tetra-
chloroethylene, methylene
chloride, trichloroethylene,
1,1,1-trichloroethane, chloro-
benzene, 1,1,2-tri-
chloro-1,2,2-trifluoroethane,
ortho-dichlorobenzene, tri-
chlorofluoromethane, and
1,1,2-trichloroethane; all
spent solvent mixtures/
blends containing, before
use, a total of ten percent or
more (by volume) of one or
more of the above haloge-
nated solvents or those lis-
ted in F001, F004, or F005;
and still bottoms from the
recovery of these spent sol-
vents and spent solvent mix-
tures.
App. 55
OSWER DIRECTIVE
DIRECTIVE NUMBER: 9444.15.(85)
TITLE: Regulatory Status of Nalcast 6015/Water/Wax
Mixture
APPROVAL DATE: 6-24-85
EFFECTIVE DATE: 6-24-85
ORIGINATING OFFICE: Office of Solid Waste
Key Words: Solvents, Listed Waste
Regulations: 40 CFR 2613({a)(2)(iii)
Subject: Regulatory Status of Nalcast 6015/Water/
Wax Mixture
Addressee: Martin H. Lewis, Smith & Schnacke, Suite
2250, 40 S. High Street, Columbus, Ohio
43215-6199
Originator: Eileen Claussen, Director, Characterization
and Assessment Branch
Source Doc.: #9444.22(85)
Date: 6-24-85
Summary:
The letter discusses the regulatory status of a spent
solvent mixture (Nalcast 6015, water and wax) and resi-
due from a water-wall paint spray booth in which sol-
vent-based paints are sprayed. The letter states that
regulations proposed on April 30, 1985,* will subject
* The December 31, 1985, FR notice (Vol. 50, No. 251, p. 53315)
finalizes the proposed regulations. Solvent mixtures are now
regulated if they contain 10% or more of F001, F002, F004, or
App. 56
Nalcast 6015 and other spent solvent mixtures containing
more than 10 percent of one or more listed solvents to
regulation as listed wastes. Solvent-based paints are not
listed hazardous wastes, nor are they included under the
spent solvent listings.
June 24, 1985
Mr. Martin H. Lewis
Smith & Schnacke
Suite 2250
41 S. High Street
Columbus, Ohio 43215-6199
Dear Mr. Lewis:
This letter responds to your inquiry of June 14, 1985,
regarding the regulatory status of a solvent mixture
(Nalcast 6015, water and wax) and residue from a water-
wall paint spray booth in which solvent-based paints are
sprayed.
First, you are incorrect in stating that Nalcast 6015
(used in the removal of wax) is considered a process
waste when intended to be discarded. Since Nalcast 6015
is used as a “solvent” (i.e., to clean wax from metal parts)
it is considered “spent solvent” when it has served its
intended purpose and can no longer be used without
further processing. However, you are correct in stating
FOOS. Mixtures containing F003 solvents are regulated if they
contain only F003 solvents, or 10% of F001, F002, F004, or FOOS
and one or more of the F003 solvents.
App. 57
that under the current hazardous waste regulations, spent
solvent mixtures are not regulated, unless they exhibit
one or more of the characteristics of hazardous waste (i.e.,
ignitability, EP toxicity, reactivity, and corrosivity).
At this time, the spent solvent listings pertain only to
the technical grade or the pure form of the solvent, thus,
solvent mixtures remain unregulated. On April 30, 1985,
the Agency proposed to close this regulatory loophole by
expanding the universe of wastes considered “spent sol-
vents” to include solvent mixtures containing ten percent
or more of one or more listed solvents (see enclosed
Federal Register notice). When this rule becomes final,
Nalcast 6015, when spent or discarded, will be considered
a listed hazardous waste. In addition the Nalcast 6015/
water/wax mixture also will be considered hazardous
waste based on the provision in the “mixture rule” (40
CFR 261.3(a)(2)(iii)) which states that a mixture of solid
waste and hazardous waste is considered “hazardous
waste.”
With respect to the water-wall spray booth residue,
those wastes are not hazardous waste unless they exhibit
one or more of the characteristics of hazardous waste. As
you correctly stated, solvent-based paints are not listed
hazardous waste when discarded nor are they covered
under the spent solvent listings. The listings do not apply
to waste streams where solvents are a contaminant.
I trust that this letter adequately responds to the
questions raised in your letter. Should you have
App. 58
additional questions, please call Jacqueline Sales, of my
staff, at (202) 382-4807.
Enclosure
Sincerely,
Eileen Claussen
Director
Characterization and
Assessment Branch
App. 59
THE COURT: Thank you very much. Let me make a
note to one of my staff, please.
Ladies and gentlemen of the jury, the Court will now
read to you the instructions which contain the law that |
ask that you use in deciding the case. I’ve already
explained that to you. As I’ve also told you, these will be
available — a set of them will be available in the jury room
if you desire. You should, and there will be an instruction
that says that, you should consider all of the instruction
as a whole in deciding this case. If you do decide to look
at the instructions, read them when you go back there,
make sure that you read at least all the instructions
having to do with a certain issue. And there are certain
counts. You will hear that as you hear the instructions,
but don’t read one and exclude all the others when you
might need to read several or look at several in order to
get the true picture.
11.01 BEGINNING OF CHARGE - PROVINCE OF THE
COURT
INSTRUCTION NO. 1
Now that you’ve heard the evidence -
THE COURT: Well, let me say this to you so it will -
it might help a little bit for you to follow them. The first
several you'll notice have to do with general duties of
jurors. Those are important also. Toward the middle,
you'll hear some instructions that have to do specifically
with this case. That’s a number of them. And towards the
end, you'll have some other instructions that apply to
duties of how you proceed, those kinds of things.
App. 60
INSTRUCTION NO. 1
Now that you’ve heard the evidence and the argu-
ment, it becomes my duty to give you the instructions of
the Court as to the law applicable to this case.
It is your duty as jurors to follow the law as stated in
the instructions of the Court, and to apply the rules of
law so given to the facts as you find them from the
evidence in the case.
You are not to single out one instruction alone as
stating the law, but must consider the instructions as a
whole.
Neither are you to be concerned with the wisdom of
any rule of law stated by the Court. Regardless of any
opinion you may have as to what the law ought to be, it
would be a violation of your sworn duty to base a verdict
upon any other view of the law than that given in the
instructions of the Court; just as it would be a violation of
your sworn duty, as judges of the facts, to base a verdict
on anything but the evidence in the case.
Justice through trial by jury must always depend
upon the willingness of each individual juror to seek the
truth as to the facts from the same evidence presented to
all the jurors; and to arrive at a verdict by applying the
same rules of law, as given in the instructions of the
Court.
INSTRUCTION NO. 2
11.03 (PROVINCE OF THE JURY)
You have been chosen and sworn as jurors in this
case to try the issues of fact presented by the allegations
App. 61
of the indictment and the denial made by the “not guilty”
plea of the accused. You are to perform this duty without
bias or prejudice as to any party. The law does not permit
jurors to be governed by sympathy, prejudice, or public
opinion. Both the accused and the public expect that you
will carefully and impartially consider all the evidence in
the case, follow the law as stated by the Court, and reach
a just verdict, regardless of the consequences.
INSTRUCTION NO. 3
11.14 (BURDEN OF PROOF-REASONABLE DOUBT)
The law presumes a defendant to be innocent of
crime. Thus, a defendant, although accused, begins the
trial with a “clean slate” — with no evidence against him.
And the law permits nothing but legal evidence pre-
sented before the jury to be considered in support of any
charge against the accused. So the presumption of inno-
cence alone is sufficient to acquit a defendant, unless the
jurors are satisfied beyond a reasonable doubt of the
defendants’ guilt after careful and impartial consider-
ation of all the evidence in the case.
It is not required that the Government prove guilt
beyond all possible doubt. The test is one of reasonable
doubt. A reasonable doubt is a doubt based upon reason
and common sense - the kind of doubt that would make a
person — a reasonable person hesitate to act. Proof
beyond a reasonable doubt must, therefore, be proof of
such a convincing character that a reasonable person
would not hesitate to rely and act upon it in the most
important of his own affairs.
App. 62
The jury will remember that a defendant is never to
be convicted on mere suspicion or conjecture.
The burden is always upon the prosecution to prove
guilt beyond a reasonable doubt. This burden never shifts
to a defendant; for the law never imposes upon a defen-
dant in a criminal case the burden or duty of calling any
witnesses or producing any evidence.
So if the jury, after careful and impartial consider-
ation of all the evidence in the case, has a reasonable
doubt that a defendant is guilty of the charge, it must
acquit. If the jury views the evidence in the case as
reasonably permitting either of two conclusions — one of
innocence, the other of guilt — the jury should of course
adopt the conclusion of innocence.
INSTRUCTION NO. 4
13.02
An indictment is but a formal method of accusing a
defendant of a crime. It is not evidence of any kind
against the accused.
INSTRUCTION NO. 5
11.04 (CONSIDER ONLY OFFENSE CHARGED)
The defendant is not on trial for any act or conduct
not alleged in the indictment.
INSTRUCTION NO. 6
13.05 (‘ON OR ABOUT” - PROOF OF)
You will note the indictment charges that the offense
was committed “on or about” a certain date. The proof
App. 63
need not establish with certainty the exact date of the
alleged offense. It is sufficient if the evidence in the case
established beyond a reasonable doubt that the offense
was committed on a date reasonably near the date
alleged.
INSTRUCTION NO. 7
11.07
A separate crime or offense is charged in each count
of the indictment. Each charge and the evidence pertain-
ing to it should be considered separately. The fact that
you may find the accused guilty or not guilty as to one of
the offenses charged should not control your verdict as to
any other offense charged.
You will be given a copy of the indictment which sets
forth the specific charges against each defendant.
INSTRUCTION NO. 8
INSTRUCTIONS APPLY TO EACH DEFENDANT
Unless otherwise stated, the jury should consider
each instruction given to apply separately and individu-
ally to each defendant on trial.
INSTRUCTION NO. 9
RESOURCE CONSERVATION AND RECOVERY ACT
(DISPOSAL OF HAZARDOUS WASTE WITHOUT A
PERMIT)
Counts one through four - and by the way, you just
were told that you'll get a copy of the indictment where
you can actually see the charges. Now I’m telling you
counts one through four of the indictment charge the
App. 64
defendants with a violation of the Resource Conservation
and Recovery Act (called RCRA).
The Resource Conservation and Recovery Act makes
it unlawful for any person to knowingly dispose of any
hazardous waste identified or listed under the act with-
out a permit. Under this act, the concentration of the
wastes after disposal has no bearing of whether the dis-
posal was lawful.
In order to find defendants guilty of the crimes
charged in counts one through four of the indictment,
you must find that the Government has proven beyond a
reasonable doubt, with respect to each count and for each
defendant charged, the following four elements:
One, that on or about the dates alleged in the
indictment the defendants knowingly disposed
of or commanded or caused others to dispose of
waste;
Two, that defendants knew that the waste had
the potential to be harmful to others or to the
environment;
Three, that the wastes were listed or identified
by the Environmental Protection Agency as haz-
ardous waste pursuant to the Resource Conser-
vation and Recovery Act; and Four, that the
defendants had not obtained from either the
Environmental Protection Agency or the state of
Arkansas a permit or interim status authorizing
the disposal under the Resource Conservation
and Recovery Act.
App. 65
INSTRUCTION NO. 10
DEFINITION OF DISPOSAL
The term “disposal” is defined under the Resource
Conservation and Recovery Act to mean the discharge,
deposit, injection, dumping, spilling, leaking, or placing
of any hazardous wastes into or on land or water so that
the hazardous waste or any constituent of it may enter
the environment or be emitted into the air or discharged
into any waters, including ground waters.
The Government is not required to establish, how-
ever, that the waste in question actually entered into the
environment, was emitted into the air or discharged into
the water. It is sufficient for the Government to prove that
the hazardous waste was placed into or on land in such a
manner that it could enter into the environment, air, or
water, including ground water.
INSTRUCTION NO. 11
HAZARDOUS WASTE LISTING
You are instructed that the Environmental Protection
Agency has listed as hazardous the following wastes:
The spent halogenated solvent, methylene chlo-
ride, and all spent solvent mixtures and/or
blends containing, before their use, a total of ten
percent or more by volume of methylene chlo-
ride.
You are further instructed that pursuant to the regu-
lations of the Environmental Protection Agency and the
Arkansas Department of Pollution Control and Ecology,
when a listed hazardous waste is mixed with a solid,
iain
er
App. 66
|
liquid, or semisolid material, the resulting mixture is also
a hazardous waste.
INSTRUCTION 12
An act is done “knowingly” if done voluntarily and
intentionally, and not because of mistake or accident or
other innocent reason.
The purpose of adding the word “knowingly” was to
insure that no one would be convicted for an act done
because of mistake, or accident, or other innocent reason.
The Government is not required to prove that the
defendant knew he was violating the law.
INSTRUCTION NO. 13
PROOF OF ENVIRONMENTAL HARM NOT REQUIRED
Under the Resource Conservation and Recovery act,
the Government is not required to prove that the disposal
of hazardous wastes caused any damage or harm to the
environment. This act prohibits the disposal of any haz-
ardous wastes except in compliance with a permit or
interim status.
INSTRUCTION NO. 14
INTERIM STATUS AND PERMITS
Under the Resource Conservation and Recovery Act,
in order to lawfully dispose of hazardous waste, the
defendant must have either received a permit from the
state of Arkansas allowing such disposal or been granted
“interim status”.
App. 67
In order to qualify for “interim status”, the defen-
dants must have notified the Environmental Protection
Agency or the Arkansas Department of Pollution Control
and Ecology that they operated a hazardous waste facility
and filed an application for a hazardous waste disposal
permit.
INSTRUCTION NO. 15
Each of the defendants has pleaded “not guilty” to
the charges contained in counts one through four of the
indictment. This plea puts in issue each of the essential
elements of the offense as described in this instructions,
and imposes on the Government of establishing each of
these elements by proof beyond a reasonable doubt.
INSTRUCTION NO. 16
CERCLA-ELEMENTS
Counts five through eight of the indictment charge
the defendants with violations of the Comprehensive
Environmental Response Compensation and Liability Act
(CERCLA).
In order to prove a violation of this act, the Govern-
ment has the burden of proving the following essential
elements:
One, that on or about the date charged in the
indictment, the defendant was in charge of a
facility;
Two, that the defendant knew of the release into
the environment from the facility of a hazardous
substance in an amount in excess of the report-
able quantity;
App. 68
Three, that the defendant failed to notify the
appropriate federal agency, the National
Response Center, of the release;
Four, that the defendant did not have a permit
for the release.
INSTRUCTION NUMBER 17
CERCLA - DEFINITIONS
The term “facility” is defined in the act to include
any building, structure, installation, pipe or
pipeline .. . well, pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor vehicle, rolling stock, or
aircraft or any site or area where a hazardous substance
has been deposited, stored, disposed of, or placed or
otherwise come to be located .. .
The term “person in charge” includes both individ-
uals and corporations responsible for the facility. An indi-
vidual may be the person in charge of a facility even if he
did not have sole control over the facility. All that is
necessary is that the individual have a management or a
supervisory function and be responsibie for the operation
of the facility. With regard to a particular facility, there
may be more than one person in charge. The person in
charge does not have to be the highest ranking individual
at a facility.
The term “release” is defined as any spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into
the environment.
App. 69
The term “environment” is defined to include any
land surface or subsurface strata within the United
States . .
The term “hazardous substance” is defined to include
any hazardous waste listed under the Resource Conserva-
tion and Recovery Act. Therefore, because it is listed as
an F002 hazardous waste, the spent solvent methylene
chloride, and spent solvents which contained more than
ten percent methylene chloride before use are hazardous
substances.
INSTRUCTION NO. 18
REPORTABLE QUANTITY
The reportable quantity for the release of a hazardous
substance that is listed as an F002 waste is one pound.
INSTRUCTION NUMBER 19
Each of the defendants has pleaded “not guilty” to
the charges contained in counts five through eight of the
indictment. This plea puts in issue each of the essential
elements of the offense as described in these instructions,
and imposes on the Gevernment the burden of establish-
ing each of these elements by proof beyond a reasonable
doubt.
INSTRUCTION NO. 20
RCRA-FAILURE TO FILE APPLICATION (ELEMENTS)
In count nine of the indictment, Goodner Brothers
Aircraft, Inc. and Albert Goodner are charged with violat-
ing the Resource Conservation and Recovery Act by
App. 70
knowingly failing to file a permit application with the
Environmental Protection Agency or the Arkansas
Department of Pollution Control and Ecology which is
necessary for the treatment, storage, and disposal of haz-
ardous waste.
Pursuant to the regulations adopted by the Environ-
mental Protection Agency and the Arkansas Department
of Pollution Control and Ecology, anyone who treats,
stores, disposes of or generates a hazardous waste is
required to file a permit application with the agencies.
The Government has the burden of proving the fol-
lowing essential elements:
One, that on or about the dates alleged in the
indictment, defendants knowingly generated,
stored, treated, transported, disposed of,
exported or otherwise handled waste;
Two, that the defendants knew that the waste
had the potential to be harmful to others or to
the environment;
Three, the wastes were listed or identified by
the Environmental Protection Agency as a haz-
ardous waste pursuant to the Resource Conser-
vation and Recovery Act;
Four, that the defendants knowingly failed to
file or commanded and caused others not to file
the application; and
Five, that the application was required by the
regulations to be filed.
App. 71
INSTRUCTION NO. 21
FILING REQUIREMENT
The laws of the United States require anyone who
generates a hazardous waste and then handles it to notify
the state and federal regulatory authorities of this fact.
A “generator” includes any person or corporation
whose acts or process produces a hazardous waste or
whose act first causes a hazardous waste to become sub-
ject to regulation. If the defendants were generators of
hazardous waste, then the legal duty to notify state and
federal regulators exists.
INSTRUCTION NO. 22
Each of the defendants has pleaded “not guilty” to
the charge contained in count nine of the indictment. This
plea puts in issue each of the essential elements of the
offense as described in these instructions, and imposes on
the Government the burden of establishing each of these
elements by proof beyond a reasonable doubt.
THE COURT: I need to make a slight correction in
one of the instructions. I just noticed something we
thought we had removed and didn’t.
INSTRUCTION NO. 23
CORPORATE RESPONSIBILITY
Defendant Goodner Brothers Aircraft, Inc., is a cor-
poration. A corporation may be found guilty of a criminal
offense.
App. 72
A corporation can act only through its agents, that is
— its directors, officers, employees, and other persons
authorized to act for it.
To find a corporate defendant guilty you must find
beyond a reasonable doubt that:
One, each essential element of the crime charged
against the corporation was committed by one
or more of its agents;
Two, in committing those acts, the agent or
agents intended, at least in part, to benefit the
corporation, and
Three, each act was within the scope of employ-
ment of the agent who committed it.
For an act to be within the scope of an agent’s
employment, it must relate directly to the performance of
the agent’s general duties for the corporation. It is not
necessary that the act itself have been authorized by the
corporation.
If an agent was acting within the scope of his
employment, the fact that the agent’s act was illegal,
contrary to his employer’s instructions or against the
corporation’s policies will not relieve the corporation of
responsibility for it.
INSTRUCTION NO. 25
Statements and arguments of counsel are not evi-
dence in the case unless made as an admission or stipula-
tion of fact. When the attorneys on both sides stipulate or
agree as to the existence of a fact, you must, unless
App. 73
otherwise instructed, accept the stipulation as evidence,
and regard that fact as proved.
Unless you are otherwise instructed, the evidence in
the case always consists of the sworn testimony of the
witnesses, regardless of who may have called them: and
all exhibits received in evidence, regardless of who may
have produced them; and all facts which may have been
admitted or stipulated; and all applicable presumptions
stated in these instructions.
Any evidence as to which an objection was sustained
by the Court, and any evidence ordered stricken by the
Court, must be entirely disregarded.
Unless you are otherwise instructed, anything you
may have seen or heard outside the courtroom is not
evidence, and must be entirely disregarded.
You are to consider only the evidence in the case, but
in your consideration of the evidence, you are not limited
to the bald statements of the witnesses. In other words,
you are not limited solely to what you see and hear as the
witnesses testify. You are permitted to drawn, from facts
which you find have been proved, such reasonable infer-
ences as you feel are justified in the light of experience.
INSTRUCTION NO. 26
If a lawyer asks a witness a question which contains
an assertion of fact, you may not consider the assertion as
evidence of that fact. The lawyers’ statements are not
evidence.
App. 74
INSTRUCTION NO. 27
15.022 (DIRECT EVIDENCE-CIRCUMSTANTIAL EVI-
DENCE)
There are two types of evidence from which you may
find the truth as to the facts of a case — direct and
circumstantial evidence. Direct evidence is the testimony
of one who asserts actual knowledge of a fact, such as an
eyewitness; circumstantial evidence is proof of a chain of
facts and circumstances indicating the guilt or innocence
of a defendant. The law makes no distinction between the
weight to be given to either direct or circumstantial evi-
dence. Nor is a greater degree of certainty required of
circumstantial evidence than of direct evidence. You
should weigh all the evidence in the case. After weighing
all the evidence, if you are not convinced of the guilt of
the defendant beyond a reasonable doubt, you must find
him not guilty.
INSTRUCTION NO. 28
15.22 (OPINION EVIDENCE - EXPERT WITNESS)
The rules of evidence ordinarily do not permit wit-
nesses to testify as to opinions or conclusions. An excep-
tion to this rule exists as to those whom we call “expert
witnesses.” Witnesses who, by education and experience,
have become expert in some art, science, profession, or
calling, may state an opinion as to relevant and material
matter, in which they profess to be expert, and may also
state their reasons for the opinion.
You should consider each expert opinion received
into evidence in this case, and give it such weight as you
may think it deserves. If you shouid decide that the
App. 75
opinion of an expert witness is not based upon sufficient
education and experience, or if you should conclude that
the reasons given in support of the opinion are not
sound, or that the opinion is outweighed by other evi-
dence, you may disregard the opinion entirely.
INSTRUCTION NO. 29
18.02 (PUNISHMENT)
The punishment provided by law for the offenses
charged in the indictment is a matter exclusively within
the province of the Court, and should never be consid-
ered by the jury in any way, in arriving at an impartial
verdict as to the guilt or innocence of the accused.
INSTRUCTION NO. 30
17.12 (CREDIBILITY OF ACCUSED AS WITNESS)
A defendant who wishes to testify is a competent
witness; and the defendant’s testimony is to be judged in
the same way as that of any other witness.
INSTRUCTION NO. 31
(CREDIBILITY OF WITNESSES)
In deciding what the facts are, you may have to
decide what testimony you believe and what testimony
you do not believe. You may believe all of what a witness
said, or only part of it, or none of it.
In deciding what testimony to believe, consider the
witnesses’ intelligence, their opportunity to have seen or
heard the things they testify about, their memories, any
motives they may have for testifying a certain way, their
i
App. 76
manner while testifying, whether they said something
different at any earlier time, the general reasonableness
of their testimony, and the extent to which their testi-
mony is consistent with other evidence that you believe.
INSTRUCTION NO. 32
74.01
The verdict must represent the considered judgment
of each juror. In order to return a verdict, it is necessary
that each juror agree thereto. Your verdict must be unani-
mous.
It is your duty, as jurors, to consult with one another,
and to deliberate with a view to reaching an agreement, if
you can do so without violence to individual judgment.
Each of you must decide the case for yourself, but do so
only after an impartial consideration of the evidence in
the case with you fellow jurors. In the course of your
deliberations, do not hesitate to re-examine your own
views, and change your opinion, if convinced it is erro-
neous. But do not surrender your honest conviction as to
the weight or effect of evidence, solely because of the
opinion of your fellow jurors, or for the mere purpose of
returning a verdict.
Remember at all times that you are not partisans. You
are judges — judges of the facts. Your sole interest is to
ascertain the truth from the evidence in the case.
App. 77
INSTRUCTION NO. 33
74.04
(ELECTION OF FOREPERSON - GENERAL VERDICT)
Upon retiring to the jury room, you will select one of
your number to act as your foreperson. The foreperson
will preside over your deliberations, and will be your
spokesman here in Court.
Forms of verdict have been prepared for your conve-
nience.
THE COURT: What we’ve done, ladies and gentle-
men, and what you'll take back and actually answer, are
what we call forms of verdict that are just sheet of paper
that says — one of them says: We the jury in the above
entitled and numbered case find the defendant Albert S.
Goodner, Jr. as to count one - and then a place where you
check either guilty or non guilty. That’s true of each count
of the indictment, in other words, a separate line for each
count of the indictment.
What you should do, of course, when you go in is
elect a jury foreperson who sort of takes the votes and
speaks here in Court. After that’s done, you should
attempt — and you can do it in whatever order you wish,
but you should attempt to determine whether you believe
the defendant - and it doesn’t even make any difference
which defendant you take up first - but the defendant
that you’re considering, whether he or it, in the case of
the corporation, is guilty as to each count.
As you do that, you may refer, of course, to the
indictment to see for certain that you know what count
App. 78
you're talking about. After you have determined in rela-
tion to a particular count, guilty or innocent by a unani-
mous vote — it must be unanimous, as I’ve said —- you
should have your foreperson check the proper place,
either guilty or not guilty. After you’ve done that, go on
to the next count or whichever count you want to until
you complete all of them. After you’ve completed a sheet,
there’s a sheet for Mr. Goodner, Jr. and a sheet for Good-
ner Brothers Aircraft, Incorporated. After you’ve com-
pleted a sheet, have your person date it - your foreperson
— date it, sign it, and when you’ve completed one, then
you go on to the other sheet, whichever one you want to
go to first.
Now, you’ve heard testimony and talk about other —
at least one other corporation and other individuals who
at one time or another were involved in the operation
down there. The verdict forms that you’re receiving are
the only people, the only entities, Mr. Goodner and Good-
ner Brothers Aircraft, Incorporated, are the only defen-
dants that are left in the lawsuit at this time for which
you must determine the guilt or innocence of. Disregard
any other testimony you've heard, at least about guilt or
innocence of those people, and decide the guilt or inno-
cence only of Mr. Goodner, Jr. and Goodner Brothers
Aircraft, Incorporated. They’re the only two verdict forms
you have, okay?
App. 79
INSTRUCTION NO. 34
18.10 (VERDICT-JURY’S RESPONSIBILITY)
It is proper to add the caution that nothing said in
these instructions — nothing in any form of verdict pre-
pared for your convenience - is to Suggest or convey in
any way or manner any intimation as to what verdict |
think you should find. What the verdict shall be is the
sole and exclusive duty and responsibility of the jury.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.