David M. Eldridge is a partner in the firm of Ritchie, Fels & Dillard, P.C. with offices in Knoxville, Tennessee and Washington, D.C. He is a Vice Chair of the NACDL Environmental Crimes Committee. This article is based on his presentation to the NACDL environmental crimes seminar in Chicago, Illinois, June 1993. He will be a speaker at NACDL's Second Annual National Seminar On The Nuts And Bolts Of Defending An Environmental Case, June 2-3, 1994 in San Francisco, California.
The terms "motion practice" do not usually evoke a passionate, excited, reaction. These words, for the criminal defense lawyer, are simply not sexy like "cross examination" or "closing argument."1
Sexy or not, motion practice like investigation and preparation is a basic component of providing effective representation to our clients. It just has to be done.
An environmental crimes case is no different. A broad based, well-researched, -- and--- well executed motion practice is a must in an environmental crimes case.
Indictments in these cases are complex. The allegations rest upon a statutory and regulatory framework that is also very complex.2
The prosecution (with the assistance of the Environmental Crimes Section of the Department of Justice or state regulatory agency) will likely appear well versed in the area. The judge will likely not be. Therefore, the judge will be more inclined than in an ordinary case to look to (and defer to) the prosecution on the complex questions presented by an environmental case.
An effectively prepared motion practice provides aids in solving these problems. First, without an aggressive motion practice designed to obtain essential information and flush out the prosecution's theories, the complexity will overwhelm you and your client at trial. Second, through an aggressive motion practice the judge can become convinced that you also understand this area of the law and can be trusted to guide him or her through this tangled thicket of environmental rules and regulations.
The complexity of these cases presents difficult problems for defense lawyers. Fortunately, this complexity also presents many opportunities for a successful motion practice.
This article will outline three fertile grounds for motion practice in environmental cases: Recycling, The Mixture Rule, and Bills of Particular.
An environmental crime case is a criminal case. That fact should not be lost on those planning their motion practice. Therefore, this article will conclude with a motions "punch list" of opportunities that may present themselves in a criminal environmental case.
The RCRA Statute -- Almost Strict Liability
Among the most frequently used criminal environmental statutes are the criminal provisions of the Resource Conservation and Recovery Act (RCRA).3 Before an effective motion practice can be undertaken, it is of course necessary to understand the statute and its elements.RCRA has no misdemeanor viola-tions in it.4 All its criminal provisions are felony violations.
In general, RCRA makes it a felony to "knowingly" handle a "hazardous waste" in any way without the required permit. RCRA also includes a "knowing endangerment" provision that makes it a felony, punishable by up to 15 years to commit a RCRA violation "knowing at the time that [the defendant] thereby places another person in imminent danger of death or serious bodily
injury. . . ." A commonly charged RCRA violaton is 42 U.S.C. 6928(d)(2) which provides, in pertinent part as follows:
Any person who -- knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter-
(A) without a permit under this subchapter . . .; or
(B) in knowing violation of any material condition or requirement of such permit;
(C) in knowing violation of any material condition or requirement of any applicable interim status or regulations orstandards; . . . . 42 U.S.C. 6928(d)(2).
All circuits that have examined RCRA's criminal provisions have agreed that the knowledge requirement in the statute does not extend to knowledge of RCRA's provisions or that the substances at issue are RCRA regulated "hazardous wastes." The prosecution must prove that material handled is in fact a RCRA regulated hazardous waste but the defendant's knowledge of that fact is irrelevant.5
The circuits also agree that a RCRA prosecution requires proof that the defendant had knowledge of what was being handled. Thus, a RCRA conviction cannot be supported if the defendant mistakenly believed that the material being handled was an innocuous substance. Thus, a mistake of fact defense is valid in a RCRA prosecution.6
Most circuits agree that to sustain a criminal RCRA conviction, the defendant must know that the material handled had the potential to be harmful to the environment or the public.7
There is a disagreement among the circuits as to whether the knowledge requirement extends to the absence of a permit. The Third Circuit, in Johnson & Towers,8 held that such knowledge was an element that the government must prove. The Sixth and Ninth Circuits have clearly held that knowledge of the absence of a RCRA permit is not an element of a criminal RCRA violation.9
Thus, the criminal provisions of RCRA do not require the prosecution to prove a great deal on the critical issue of knowledge. No level of specific intent to violate the law is required to be shown. Therefore charges must be closely examined to determine if a defense is available on other issues.
Recycling -- The Issue Of Solid Waste
The Threshold Requirement: That It Be a Solid Waste
It is common sense that before a material can become a regulated "hazardous waste," it must be a "waste." Under RCRA regulations, the determination whether something is a "waste" is made by the regulations that define what is a "solid waste."10A substance cannot be a regulated "hazardous waste" unless it falls within the definition of a "solid waste."11 It is within this regulatory definition that a motion to dismiss based upon the notion that the substance at issue is not a "solid waste" has its genesis.
How will you know when you are sitting on top of such a motion? Anytime during the investigation that you learn that the alleged hazardous waste either: (1) was reused or (2) was going to be reused; then, the question whether a valid motion to dismiss or a defense at trial can be developed should be examined.
This question is generally very difficult to answer, but the prosecution should always be made to answer it.
What is a 'Solid Waste'
A "solid waste" is "any discarded material."12 The term "discarded material" is further defined as: (1) abandoned; (2) recycled; or (3) inherently waste-like.13
Abandoned
The term "abandoned" has been defined by the Environmental Protection Agency (EPA) as "thrown away."14 The regulatory definition of "abandoned" includes "disposed of," "burned or incinerated" and "accumulated, stored or treated . . . before or in lieu of being disposed of, burned or incinerated."15If the facts present a midnight dumping case, a lot of time is not necessary to determine that the material is a "solid waste."
Recycled
This is a very complex determination, but is the most likely fertile ground for a motion. The RCRA statutes express a preference for recycling and recovery of resources. Materials and resources should be conserved by: (1) minimizing the generation of hazardous waste and (2) encouraging process substitution, materials recovery, properly conducted recycling and reuse and treatment.16The real problem is whether the recycling done is "good" or "bad" in the eyes of the Environmental Protection Agency. A complete discussion of all the factors that go into this determination is far beyond what would be appropriate in this article. In general, however, "bad" recycling is defined as: (1) used in a manner constituting disposal; (2) burned for energy recovery; (3) reclaimed; or (4) accumulated speculatively.17
When recycling is an issue, it is probable that the "used in manner constituting disposal" category will be relevant. This category is further divided into five categories of materials (three of which are further defined by reference to other hazardous waste regulations). Thus, with respect to this likely relevant category, two questions must be answered: (1) Does the material fall into one of the five categories identified in 40 C.F.R. 261.2(c)(1)? and (2) If so, is the manner of use (or recycling) precluded by applicable regulations?18
Another important regulation is the exemption for "materials that are not solid waste when recycled."19 This exemption provides that materials are not solid waste when they can be shown to be recycled by being: (1) used or reused as ingredients in an industrial process to make products [when not reclaimed]; (2) used or reused as effective substitutes for commercial products; or (3) returned to the original process from which they were generated [without first being reclaimed].20
When your client says "We reuse this stuff," think recycle and think motion to dismiss. As can be seen, however, a detailed understanding of exactly what is done before, during and after its reuse will be necessary to determine whether the solid waste definition holds promise.
The Mixture Rule
When Is a 'Solid Waste' also a 'Hazardous Waste?'
There are three avenues by which a "solid waste" can become a regulated "hazardous waste": (1) characteristic wastes; (2) listed wastes; and (3) mixture wastes.21
Characteristic Wastes
Generally, a solid waste is a characteristic waste if it exhibits one of four characteristics: ignitability, reactivity, toxicity, or corrosivity.22 If the solid waste exhibits any of these characteristics, then it remains a hazardous waste until it no longer exhibits these characteristics.
Listed Wastes
A solid waste can be deemed a hazardous waste if it has been placed upon the lists of hazardous wastes included in Subpart D of Part 261 of Title 40 (unless it is otherwise excluded by other regulations).23 Once a waste becomes hazardous as a result of being listed, the waste is hazardous until made non-hazardous by a change in regulatory status, sometimes prompted by a delisting petition.
Wastes Deemed Hazardous by the Mixture Rule
A waste can become hazardous through the application of the "mixture" or "derived from" rule.24 Under the mixture rule, whenever a listed waste is mixed with a solid waste, all of the resulting mixture was considered a regulated "hazardous waste." The "mixture" and "derived from" rules have been the heart of litigation in many civil and criminal RCRA cases since these rules were vacated by the District of Columbia Court of Appeals in December of 1991.25 The vacation of the "mixture and derived from" rules is a significant event in RCRA litigation and therefore one of the "hot areas" for exploration in a RCRA case.26The Mixture Rule Issue
The Mixture Rule was promulgated to close "a major loophole in the Subtitle C [hazardous waste] management system."27 After reviewing comments on the proposal, EPA realized that:Without such a rule, generators could evade Subtitle C [hazardous waste] requirements simply by commingling listed waste with nonhazardous wastes. Most of these waste mixtures would not be caught by the Subpart C characteristics.28
Over the past decade, the government has heavily relied upon the mixture rule to simplify its RCRA enforcement. Under the mixture rule, the government has only to prove that a measurable quantity of a chemical was found in a mixture of solid and hazardous waste. If the government could prove that the source of that chemical was a listed hazardous waste, then the entire mixture was regarded as a hazardous waste. This eliminated the government's need to prove any hazardous characteristics.
Shell Oil: Vacation of the Mixture Rule
In December 1991, the D.C. Circuit struck down the "mixture" and "derived from rules" on the ground that the EPA had issued the rules in violation of the notice and comment requirements of the Administrative Procedure Act (APA).29 The Shell Oil court further held that the final mixture rule provision was not a "logical outgrowth" of the proposal and therefore still invalid under the APA.30 The court therefore vacated the "mixture" and "derived from" rules and remanded to EPA.Because of the Shell Oil decision, EPA repromulgated the mixture rule on an interim-final basis.31 Since March 1992, there has thus been a valid mixture rule in effect. The important question that remained after Shell Oil, however, was whether the decision applied retroactively.
EPA's Query: Does the Shell Oil Decision Apply Retroactively?
If the Shell Oil decision applied retroactively, then the mixture rule could not be used as the basis for hazardous waste enforcement before March 1992. Accordingly, EPA recognized that many enforcement actions or investigations being conducted under the mixture rule were vulnerable. EPA therefore petitioned the D.C. Circuit to issue a separate order stating that its decision was intended to have prospective effect only, and would not apply retroactively to pending cases. EPA argued that unless such an order were entered, the decision "might jeopardize a substantial number of past and present enforcement actions that were premised, in whole or in part, on the mixture and derived-from rules." 32 On March 5, 1992, the court denied EPA's motion.
The Question Resolved: The Goodner Brothers Decision
In United States v. Goodner Brothers Aircraft, Inc., the Eighth Circuit held that Shell Oil applies retroactively.33 Accordingly, the court reversed RCRA convictions where the prosecution relied, in part, on the mixture rule to establish that the material at issue was a regulated hazardous waste.Shell Oil and Goodner Brothers thus conclusively establish two significant points:
(1) The "mixture" and "derived from" rules are invalid ab initio, from the date of their purported promulgation in 1980 until their repromulgation in March 1992; and
(2) The "mixture" and "derived from" rules may not be used as the basis for a criminal prosecution for activities that occurred prior to that repromulgation.
Therefore, if the government charges that your client unlawfully handled a listed hazardous waste, it is necessary to find out if that waste was mixed with anything else. If so, the prosecution may have a mixture rule problem.
Application of Shell Oil and Goodner: United States v. Recticel Foam Corp.
In United States v. Recticel Foam Corporation,34 the government charged Recticel Foam Corporation and five of its managers with many RCRA violations over a ten-year period. The substances alleged in the indictment to be RCRA regulated hazardous wastes were a combination of chemicals generated by the process in which foam rubber is manufactured. These substances were a mixture of two non-hazardous waste "solid waste" streams and one allegedly "hazardous waste" stream. Based upon Shell Oil and Goodner, the defendants moved to dismiss all of the RCRA counts of the indictment.After extensive briefing, testimony and argument, the magistrate to whom it was assigned recommended that the defendants' motion be granted because ". . . the material which is the subject of this indictment did not constitute 'hazardous waste' under the properly promulgated EPA regulations applicable during the time encompassed by this indictment."35 Objections have been filed to this report and recommendation and this issue has not been decided by the district court. An examination of this opinion is very helpful in anticipating how the prosecution will respond to mixture rule claims and developing appropriate counter-arguments.
In reaching this ruling, the magistrate rejected each of the government's arguments. The magistrate first rejected the government's theory that even absent the mixture rule, the F002 listing covers mixtures of spent solvents and other non-hazardous wastes. The magistrate relied heavily upon EPA's public explanations of how waste becomes hazardous: "The regulated public had the right to rely on this clear pronouncement of EPA policy. . . . EPA never said anywhere else during the critical time period that mixed spent solvents were regulated under anything other than the Mixture Rule."36
The magistrate next rejected the government's argument that RCRA regulates hazardous waste contained in a matrix of non-hazardous material. The government's argument was based on the theory that listed hazardous waste remains hazardous until delisting. In rejecting this argument, the magistrate explained that: ". . .a waste which falls within the regulatory definition of hazardous waste at its point of generation does not necessarily remain a hazardous waste (at least not absent the Mixture Rule); and that the 'continuing jurisdiction' theory has no application to a waste mixture like the one involved in this case because such a mixture evades subtitle C and is never brought under the jurisdiction of the EPA in the first instance."37
The magistrate further found that the so-called "contained-in" policy did not apply because ". . . the evidence presented is overwhelming that the 'contained-in' policy has only been applied to mixtures of a hazardous waste and an environmental media (a non-solid waste). . . ."38
The magistrate also dismissed the government's reliance on the state mixture rule because ". . .the state Mixture Rule is broader in scope than the federal program and, as such, cannot be enforced."39
The government's argument that Shell Oil did not vacate the mixture rule retroactively also did not carry the day. Fully adopting the reasoning of Goodner Brothers, the magistrate found that ". . . the Shell Oil, supra, decision invalidated the Mixture Rule ab initio; and that, therefore, it is as if the Mixture Rule had never been promulgated."40
The government finally argued that the mixing of the "hazardous" and non-hazardous waste constituted the illegal treatment of hazardous waste. The magistrate rejected that argument also explaining that, ". . .if mixing hazardous and nonhazardous waste had been considered illegal treatment of a hazardous waste by the EPA there would have been no 'major loophole' to close with the promulgation of the Mixture Rule."41
The magistrate defended his conclusion with this assertion: "The government refers to this as an absurd result. If it is absurd, the absurdity is the direct result of the EPA's failure to promulgate the Mixture Rule properly in 1980."42
Conclusion
The key to effective use of the Shell Oil/Goodner cases in pretrial motion practice is a close reading of the indictment combined with a detailed investigation of the process that resulted in the alleged wastes at issue. It can be apparent from the face of the indictment whether the prosecution is relying on the mixture rule or some other basis for its contention that the materials at issue are regulated hazardous wastes. The investigation of the factual issue of what chemicals went into the waste stream at what point is absolutely necessary to the determination of whether a defense based on the invalid mixture rule is feasible.
The Bill Of Particulars
As criminal defense practitioners, we often spend a great deal of time crafting requests for information we would like to require the government to tell us in a bill of particulars only to have it denied because:(1) the prosecution files a milk toast reply that says that it is not the function of the bill of particulars to prove a detailed disclosure of the government's evidence before trial; and
(2) the court rules that the defendant knows enough about the charge from the indictment.
Environmental crime cases are different and on the issue of a bill of particulars, different is good.
What You Want to Know and and How to Get It
Environmental crime indictments are complicated, and the more complicated, the stronger the argument for a bill of particulars. In spite of their complexity, when analyzed closely, the indictment often includes a dearth of information. For instance, it may fail to identify:(1) the process by which the alleged hazardous wastes were generated;
(2) the specific dates and locations that hazardous wastes were allegedly unlawfully stored, disposed of or treated;
(3) the alleged participants in the crimes charged; or
(4) the identity of the individuals allegedly knowingly endangered -- the alleged victims of the crime.
Motions seeking to compel the prosecution to provide this information should be filed. motions requesting this information have been granted by several courts.43
Environmental crime prosecutions are in many ways like tax prosecutions: they often involve complex allegations of violations of complex regulations by relatively "clean" individuals. These characteristics can make a defendant's effort to further flesh out the allegations through a bill of particulars appealing to the judge. Take advantage of these factors: file and pursue a detailed request for a bill of particulars.
The Motions Punch List
Statements of Corporate Employees
An environmental crimes indictment almost universally contains a corporate defendant. This fact presents a discovery opportunity not available often: the pretrial discovery of the grand jury testimony of current or former employees who will be witnesses at trial and potentially any of their other statements to law enforcement officers.Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure provides that when a current or former corporate officer or employee testifies before the grand jury or gives a statement, that testimony or statement is legally indistinguishable from the testimony or statement of the corporation itself and is therefore discoverable under Rule 16.44
To be entitled to discovery of a particular witness' grand jury testimony or statement, the witness must have been in a position (either at the time of the testimony or at the time of the conduct) "legally to bind" the defendant corporation.45
Discovery of grand jury testimony is currently discretionary under Rule 16. Some courts have therefore denied this request on the theory that disclosure of the testimony would result in some potential for intimidation of the employees whose testimony was disclosed -- thus "chilling" their trial testimony.
the Committee on Rules recognized the flaws in the current rule and proposed that disclosure be mandatory upon showing that the employee was in a position to legally bind the corporation.46 This proposed rule makes clear that the defendant corporation is entitled by right to both statements made by its corporate should and their grand jury testimony, provided that the employee (either at the time of the conduct or at the time of the statement) were in a position to legally bind the corporation.47
This proposed rule was not adopted, but it could provide persuasive authority that discovery of statements made by corporate employees should be mandatory under Rule 16. In United States v. Recticel Foam Corporation,48 the magistrate granted defendant's motion to compel discovery of all "FBI Forms 302 containing written summaries of oral statements by present or past Recticel employees whose conduct the government contends can bind Recticel criminally due to their alleged personal participation in alleged conduct constituting the offenses . . . [and] [o]ther written summaries of oral statements made by Recticel officials who were speaking on behalf of Recticel and whose statements could legally bind Recticel. . . ."49
Cleaning Up The Indictment
Environmental crime indictments generally contain lengthy preambles explaining the history, purpose, and details of the statutory and regulatory scheme alleged to be violated. There is no reason why the government should have the opportunity to pre-educate the jury on the grand purpose behind RCRA simply by reading the indictment to the jury. Rule 7(d) of the Federal Rules of Criminal Procedure gives the court the discretion to strike this surplusage upon motion by the defendant.50Paperwork Reduction Act
Whenever the government has charged illegal treatment, storage, or disposal, the defendant can also expect to be charged with failing to make certain filings. In general, the Paperwork Reduction Act (PRA) requires all federal agencies to obtain approval from the Office of Management and Budget (OMB) before soliciting information from the public.51 Furthermore, the act mandates that an information request is not enforceable if it does not display a current control number.52 The PRA provides an uncommon and interesting possibility for motion practice because the EPA has failed to obtain the required OMB control number for many of its regulatory information collection requests.53Non-compliance with the Paperwork Reduction Act has resulted in the reversal of a conviction on criminal charges.54 In United States v. Smith,55 the defendants were convicted of working on mining claims in a national forest without first having filed a Plan of Operations with the Forest Service. A Forest Service regulation required the filing of such a plan; the regulation, however, did not bear a control number because the OMB Director had not approved it. Based on noncompliance with the Paperwork Reduction Act, the Ninth Circuit reversed the conviction.56
Accordingly, in all cases charging failure to make certain filings, the defendant should file a motion, citing Brady, compelling the government to provide the control numbers for the regulations requiring the filing. If there are no control numbers or if the control numbers were not current during any portion of the time period during which the filings were not made, file for dismissal on grounds that the regulations are not enforceable.
Equitable Estoppel
Often the business that is at the center of the allegations in an environmental crimes case has been visited by regulatory authorities in the past. These visits may have generated reports where no violations were found or affirmative representations were made to business employees that the manner in which the alleged wastes were handled was lawful.If this happened, an affirmative defense to the charges may be present on the theory that it is unconstitutional for a prosecution to be conducted by one governmental body if another governmental body represented to the defendant that his or her conduct was lawful.57
Severance
Environmental crime cases can, of course, present many of the usual severance issues (e.g., spill-over prejudice, Bruton problems, etc.), but they can present a unique severance of counts issue if a knowing endangerment count is included in the indictment.A knowing endangerment charge is the most serious environmental criminal charge. Accordingly, it can also be the most prejudicial. Thus, it usually makes sense to attempt to sever the knowing endangerment count from the others.58
Owners or Operators
It is common in environmental cases for the government to charge violations of failing to make certain filings (i.e., permit applications, annual reports).59 RCRA, however, places a duty to file certain annual reports only on "Owners or Operators."Make sure that the defendant you represent had a duty to file the reports the government alleges were not filed as required. The fact that your client is only an employee will not help him or her because employees (although not owners or operators) may be held criminally liable under RCRA.60
But, such a challenge has potential merit when the alleged violation occurred somewhere other than the defendant's facility. Thus, the defendant you represent may not be an "owner or operator" of that facility and thus has no regulatory duty to file the reports the prosecution charges were not filed.
Suppression
In environmental crimes cases, the initial search may have been executed without a warrant on the authority of a state statute authorizing warrantless searches of premises containing hazardous waste.61 Statutes authorizing warrantless searches are vulnerable to constitutional challenges. In Marshall v. Barlow's, Inc.,62 the court struck down as unconstitutional a statutory provision which authorized OSHA "to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer. . . ."A detailed constitutional analysis of such a statute is faar beyond the scope of this article. However, any statute authorizing warrantless searches which does not require a high level of suspicion and leaves unbridled discretion to the agency is particularly vulnerable to a constitutional challenge.
Brady
Brady of course applies to an environmental crimes case. Use it and its progeny to force the prosecution to look for anything in the possession of any governmental agency that you perceive to be exculpatory. Be as specific as you can be.63Besides the obvious inquiries (favorable witness statements, etc.), environmental crimes can present the potential for inquiries about: favorable environmental testing results; interpretations of regulations that are contrary to the prosecution's view; and favorable regulatory inspection reports. The possibilities are limitless depending upon the circumstances of the case. Use Brady, and use it often.
When In Doubt
Environmental crime cases ordinarily present numerous opportunities for an effective motion practice. When in doubt about the question: just file it!
Notes
1. The author wishes to express his appreciation to John B. Enkema, a third year law student at the University of Tennessee School of Law and law clerk at Ritchie, Fels & Dillard, P.C. for his significant assistance in the preparation of this article.2. One judge has described the Resource Conservation and Recovery Act (RCRA) statutes and regulations as "mind numbing." American Mining Congress v. Env'tl Protection Agency, 907 F.2d 1179, 1189 (D.C. Cir. 1987).
3. This article therefore principally addresses motion practice in a RCRA criminal prosecution. RCRA covers the handling of "hazardous wastes". There are, however, a number of federal environmental statutes that contain criminal penalties, including the Clean Air Act (42 U.S.C. 7413(c)), the Clean Water Act (33 U.S.C. 1319(c)), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (42 U.S.C. 9603(b) and (c)).
4.Because 42 U.S.C. 6928(d)(3)-6928(d)(7) carry maximum penalties of two years, if an individual is charged with violating these provisions as an accessory after the fact pursuant to 18 U.S.C. 3, then the individual would face a maximum sentence of one year and thus this charge would be a misdemeanor.
5 E.g., United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3d. Cir. 1984), cert. denied, 469 U.S. 1208 (1985); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir. 1989), cert. denied, 107 L.Ed. 2d 1047 (1990); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986).
6. See, e.g., Hayes Int'l Corp., 786 F.2d. at 1506-07.
7. See, e.g., Johnson & Towers, Inc., 741 F.2d at 668; Dee, 912 F.2d at 745-46; Hoflin, 880 F.2d at 1039; United States v. Greer, 850 F.2d. 1447, 1451 (11th Cir. 1988).The Fifth Circuit has had the opportunity to reach this issue but declined finding the district court's failure to give a more complete instruction on the question not to be plain error. United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991).
8. 741 F.2d at 669. See also Hayes Int'l Corp, supra. 786 F.2d at 1504.
9. Hoflin, 880 F.2d. at 1037-39; United States v. Gale Dean, 969 F.2d 187 (6th Cir. 1992).
10. 42 U.S.C. 6903(27).
11. 40 C.F.R. 261.3.
12. 40 C.F.R. 261.2(a)(1).
13. 40 C.F.R. 261.2(a)(2).
14. 50 Fed. Reg. 627 (Jan. 4, 1985).
15. 40 C.F.R. 261.2(b).
16. 42 U.S.C. 6903 (a),(c).
17. 40 C.F.R. 261.2(c).
18. See 40 C.F.R. 261.2 (c)(1) and Table 1.
19. 40 C.F.R. 261.2(e).
20. 40 C.F.R. 261.2(e)(1)-(3).
21. See 40 C.F.R. 261.3(a)(2).
22. 40 C.F.R. 261.20-261.24.
23. See generally 40 C.F.R. 261.30 - 261.33.
24. 40 C.F.R 261((a)(2)(iii) and 40 C.F.R. 261.3(C)(2).
25. Shell Oil Co. v. Envt'l Protection Agency, 950 F.2d 721 (D.C. Cir. 1991).
26. As of March 1992, the EPA had "preliminarily" identified over 100 federal administrative, civil, and criminal cases based in "whole or in part on the mixture and derived from rules" that are either currently pending or recently concluded. 57 Fed. Reg. 7630 (March 3, 1992).
27. 45 Fed. Reg. 33066, 33095 (May 19, 1980).
28. 45 Fed. Reg. at 33095 (May 19, 1980).
29. Shell Oil Co. v. Ent'l Protection Agency, 950 F.2d 721 (D.C. Cir. 1991).
30. 950 F.2d at 750.
31. 57 Fed. Reg. 7628 (March 3, 1992).
32. Motion for Clarification of Court's Opinion, filed by EPA in Shell Oil v. Envt'l Protection Agency, (January 21, 1992).
33. 966 F.2d 380 (8th Cir. 1992), cert. denied, No. 92-607 (Jan. 11, 1993).
34. No. 2-92-78 (E.D. Tenn. 1993),
35. United States v. Recticel Foam Corporation, No. 2-92-78 (E.D. Tenn. 1993) (Report and Recommendation, August 10, 1993 at 51.) (Robert P. Murrian, Magistrate) Copies of this Report and Recommendation are available upon request from the author, David M. Eldridge, Ritchie, Fels & Dillard, P.C., 606 W. Main St., P.O. Box 1126, Knoxville, TN 37901 (615) 637-0661.
36. Id. at 13.
37. Id. at 31.
38. Id. at 35.
39. Id. at 43.
40. Id. at 47.
41. Id. at 51.
42. Id. at 52.
43. United States v. Odfjell Westfal-Larsen, No. H-87-220 (S.D. TX 1987), involved allegations of unlawful storage and disposal of hazardous wastes. The Odfjell court required the government to provide in a Bill of Particulars:
1) "the specific occasions on which there was disposal, and for each, identify the date, time, who personally did the disposal, and the nature of the alleged 'hazardous wastes."
2) "the names of all alleged co-conspirators presently known to the government, whether indicted or unindicted herein, and the times of their alleged participation in the alleged conspiracy."
3) "when and what hazardous wastes were generated."
4) "the name of the person or persons who were allegedly placed in imminent danger of death or serious bodily injury, where each said person was located ..., and the nature and degree of the imminent danger to each said person."
5) "any overt acts not enumerated or incorporated by reference in Count 1, concerning which acts the government intends to offer evidence upon trial of the Indictment herein."
See also United States v. Laughlin, 768 F. Supp. 957, 967 (N.D.N.Y. 1991)(requiring the prosecution to identify in a bill of particulars the precise hazardous wastes upon which it intended to rely); United States v. White, 766 F. Supp. 873 (E.D. Wash. 1991)(In case involving charge of knowing endangerment, court compels prosecution to provide in a Bill the identity of the persons allegedly endangered and the injuries allegedly suffered.)
44. In re United States, 918 F.2d 138 (11th Cir. 1990).
45. Rule 16(a)(1)(A), Fed. R. Crim. P.
46. Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, December 1992.
47. The Committee Notes explain that:
The amendment is intended to clarify that the discovery and disclosure requirements of the rule apply equally to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (rejecting distinction between individual and organizational defendants). Because an organizational defendant may not know what its officers or agents have said or done in regard to a charged offense, it is important that it have access to statements made by persons whose statements or actions could be binding on the defendants.
48. No. 2-92-78 (E.D. Tenn. 1993).
49. United States v. Recticel Foam Corporation, No. 2-92-78 (E.D. Tenn. 1993) (Memorandum and Order, June 22, 1993 at 12). A copy of this Memorandum and Order is available from the author.
50. See United States v. White, 766 F.Supp. 873, 885 (E.D. Wash. 1991)(granting such a motion because the "language goes beyond a plain, concise and definite written statement of the essential facts constituting the offense charged" and that the surplusage was merely a "short statement of the government's version of RCRA and FIFRA and shall be stricken").
51. See 44 U.S.C. 3507(a)(2).
52. 44 U.S.C. 3512 ("Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject to this chapter.")
53. The author is in possession of a list of the EPA regulations that may be affected by the failure to obtain the required OMB control numbers and will provide it upon request.
54. Only the ninth Circuit has squarely addressed whether the Paperwork Reduction Act (PRA) can bar a criminal prosecution. On the other hand, one district court has held that the PRA cannot bar a criminal prosecution. In United States v. Burdett, 768 F.Supp. 409 (E.D.N.Y. 1991), the district court held that "the PRA does not stand as a defense to a criminal prosecution." Id. at 413.
55. 866 F.2d 1092 (9th Cir. 1989).
56. Id. at 1099 ("The plan of Operations filing requirement is an information collection request that lacks a current control number. Consequently, [44 U.S.C. 3512] by its terms prohibits the imposition of `any penalty' against the appellants, including criminal convictions, for their failure to comply with the Plan of Operations filing requirement.")
57. See United States v. Pennsylvania Industrial Chemical Corp. (PICCO), 411 U.S. 655 (1973); Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959). See generally Charles M. Sevilla, The Defense of Equitable Estoppel, The Champion at 9 (June 1990).
58. See United States v. White, 766 F. Supp. 873, 891 (E.D. Wash. 1991) ("All the counts here deal with the same underlying acts -- the alleged mishandling of the hazardous waste. The court finds that it would be extremely difficult for all the defendants not to be prejudiced on counts 1, 2, 3, 4, and 6 by testimony concerning a death and 23 illnesses allegedly resulting from this mishandling. It would be unrealistic to expect a jury to ignore such evidence on the trials of counts 1, 2, 3, 4, and 6.").
59. See, e.g., 42 U.S.C. 6928(d)(4).
60. United States v. Gale E. Dean, 969 F.2d 187 (6th Cir. 1992); United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984), cert. denied sub nom.
61. For instance, the Tennessee statute authorizes the Tennessee Department of Environment and Conservation to ". . .[e]nter any place where wastes (which the commissioner has reason to believe may be hazardous) are, may be, or may have been generated, stored, transported, treated, disposed of, or otherwise handled . . . ." Tenn. Code Ann. 68-212-107(b).
62. 436 U.S. 307 (1978).
63. See generally Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 (1976).