See United States v. Baytank, Inc., 934 F.2d 599, 614 (5th Cir. 1991) (evidence was sufficient to prove drums contained hazardous waste even though the government took no drum samples). Moreover, whether the material tested by Gray was the same material in the Reynolds Metals waste was contested at trial as the government presented test results for the spray material which indicated that it had a flash point of 100° F. See United States v. Dee, 912 F.2d 741, 746 (4th Cir. 1990) (defendant's test results indicating that material had flash point exceeding 140° F were not conclusive as there was evidence of irregularity of testing procedure), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991). Regardless of the flash point of the Reynolds Metals waste, there was evidence that it contained MEK which is a listed hazardous waste.

See United States v. Kelley Technical Coatings, Inc., 157 F.3d 432, 436-40 (6th Cir. 1998);United States v. Wagner, 29 F.3d 264, 265-66 (7th Cir. 1994);United States v. Laughlin, 10 F.3d 961, 964-66 (2d Cir. 1993),cert. denied, 511 U.S. 1071 (1994); United States v. Dean, 969 F.2d 187, 190-92 (6th Cir. 1992), cert. denied, 507 U.S. 1033 (1993); United States v. Hoflin, 880 F.2d 1033, 1036-40 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990); accord United States v. Dee, 912 F.2d 741, 745-46 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); see also United States v. Greer, 850 F.2d 1447, 1450-51 (11th Cir. 1988) (referencing jury instructions on same with apparent approval); United States v. Goldsmith, 978 F.2d 643, 644-46 (11th Cir. 1992) (same); but see United States v. Johnson Towers, 741 F.2d 662 (3d Cir. 1984), cert. denied, 469 U.S. 1208 (1985) (discussed infra, nn. 29 52 and accompanying text). The Court of Appeals for the Ninth Circuit first articulated this statutory interpretation in Hoflin.

The government responds that Goldsmith's requested charge was an incorrect statement of the law because it suggested that the defendant had to have specific knowledge as to what was in the drums of chemicals, and because it suggested that the defendant had to know that the Environmental Protection Agency had defined the chemicals contained in the drums as hazardous waste. The government is correct. It is not necessary that the government prove that the defendant knew a chemical waste had been defined as a "hazardous waste" by the Environmental Protection Agency. United States v. Hayes International Corp., 786 F.2d 1499, 1503 (11th Cir. 1986) (". . . in a prosecution under 42 U.S.C. § 6928(d)(1) it would be no defense to claim no knowledge that the paint waste was a hazardous waste within the meaning of the regulations"); United States v. Baytank, Inc., 934 F.2d 599, 612 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991). The government need only prove that a defendant had knowledge of "the general hazardous character" of the chemical.

This argument has also been rejected by every other court of appeals that has considered the issue. See United States v. Self, 2 F.3d 1071, 1089-91 (10th Cir. 1993); United States v. Goldsmith, 978 F.2d 643, 645 (11th Cir. 1992); United States v. Baytank (Houston), Inc., 934 F.2d 599, 613 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); United States v. Hoflin, 880 F.2d 1033, 1037-39 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990); United States v. Johnson Towers, Inc., 741 F.2d 662 (3rd Cir. 1984), cert. denied, sub nom Angel v. United States, 469 U.S. 1208 (1985). Although the Third Circuit in United States v. Johnson Towers, Inc., 741 F.2d 662 (3rd Cir. 1984), cert. denied, sub nom Angel v. United States, 469 U.S. 1208, 105 S.Ct. 1171, 84 L.Ed.2d 321 (1985), held that "knowingly" applies to all elements of the offense in section 6298(d)(2)(A), the court held that the government need prove only "knowledge of the actions taken and not of the statute forbidding them."

Other courts have also followed International Minerals by similarly construing the knowledge requirement in statutes that regulate deleterious devices or obnoxious waste materials. E.g., United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993) ( § 6928(d)(2)(A) of RCRA), cert. denied, ___ U.S. ___, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991) (pre-1990 version of § 7413(c)(1)(C) of the Clean Air Act); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991) ( § 6928(d)(2)(A) of RCRA); United States v. Corbin Farm Serv., 444 F. Supp. 510, 519-20 (E.D.Cal.), aff'd, 578 F.2d 259 (9th Cir. 1978) (Federal Insecticide, Fungicide and Rodenticide Act).[6] [6] Like the court in International Minerals, we construe the language in § 1319(c)(2)(A) prohibiting knowing violation of "any permit condition" as a "shorthand designation for specific acts" that violate the CWA.

A majority of the circuits have adopted a similar approach under the RCRA. See, e.g., United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990) (RCRA) (indicating an instruction that defendant knew the substance "had the potential to be harmful to others or to the environment" was sufficient; no requirement to have knowledge of lack of permit, and, inferentially, none to know the waste was listed by EPA as hazardous under the RCRA); United States v. Greer, 850 F.2d 1447, 1450 (11th Cir. 1988) (similar, but instructions as such not in issue); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991) (defendant does not have to know "that regulations existed listing and identifying the chemical wastes as RCRA hazardous wastes," but does have to know that chemicals in question are "hazardous," but apparently approves Hoflin and Greer definitions of "hazardous" as having "potential to harm others or the environment"); United States v. Hayes International Corp., 786 F.2d 1499, 1502-5 (11th Cir. 1986) (RCRA) (defendant must know there was no permit and that the waste was a mixture of paint and solvent, but need not know "that the paint waste was a hazardous waste within the meaning of the regulations" or that the regulations required a permit). There are few authorities to the contrary.

Although the government contends that several other cases support its interpretation of the statute, in none of those cases was the question presented here squarely before the court. See, e.g., United States v. Sellers, 926 F.2d 410 (5th Cir. 1991); United States v. Dee, 912 F.2d 741 (4th Cir. 1990), cert. denied, ___ U.S. ___ 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991); United States v. Protex Industries, 874 F.2d 740 (10th Cir. 1959); United States v. Greer, 850 F.2d 1447 (11th Cir. 1988). Those decisions therefore are of limited precedential value.

The term "hazardous waste" is expressly defined by statute, and was explicitly incorporated into the jury instructions in a section which defined "hazardous waste" as referenced by Congress in RCRA, see 40 CFR §§ 261.20(a) and 261.2(a). Other circuits have held that the term "knowingly" modifies the term "hazardous waste," see, e.g., United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989), and this result is consistent with a plain reading of the statute. Kelly did not object to this instruction at trial.

See Laughlin, 10 F.3d at 966. Accord United States v. Wagner, 29 F.3d 264, 265-66 (7th Cir. 1994); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1852, 123 L.Ed.2d 475 (1993); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991); United States v. Hoflin, 880 F.2d 1033, 1037-38 (9th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990). Similarly, with respect to CERCLA, which requires agency notification of an excess discharge of a hazardous substance by any person in charge of a facility "as soon as he has knowledge of any release (other than a federally permitted release)," 42 U.S.C. § 9603(a), we held that the government was not required to prove that the defendant was aware of the regulatory requirements but only that he was "aware of his acts."

Finally, this precise issue has been addressed by five other Circuits. With the exception of the Third Circuit in United States v. Johnson and Towers, 741 F.2d 662, 668 (3rd Cir. 1984), the circuits have unanimously held that knowledge of RCRA's permit requirement is not an element of a violation of § 6928(d)(2)(A). See Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); Hoflin, 880 F.2d 1033, 1036-39 (9th Cir. 1989); United States v. Hayes Int'l, 786 F.2d 1499, 1502, 1503 (11th Cir. 1986). Cf. United States v. Sellers, 926 F.2d 410, 415 (5th Cir. 1991).