Summary
In United States v. Elias, 2000 WL 489732 (D.Idaho March 16, 2000), the trial judge concluded that "(1) EPA-approved state hazardous waste laws supplant their RCRA counterparts; (2) The EPA retains authority to enforce those approved state laws; (3) When the EPA approves the state program, the EPA loses the authority to enforce those RCRA provisions with counterparts in the approved state program; (4) When the EPA approves a state program, the EPA retains the authority to enforce RCRA provisions that have no counterparts in the approved state program."
Summary of this case from United States v. FlanaganOpinion
Cr. No. 98-0070-E-BLW
March 16, 2000
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The defendant was convicted of four counts alleging hazardous waste violations. He filed a motion to dismiss three of those counts on the ground that the Court had no jurisdiction over them. More specifically, he claims that the federal laws contained in counts one, two, and three were supplanted by the State of Idaho's hazardous waste laws when those laws were approved by the Environmental Protection Agency. The Court agrees with respect to counts two and three, but disagrees as to count one. The Court will therefore grant in part the motion to dismiss, and will order that counts two and three be dismissed and that the convictions on those counts be set aside. The Court will deny the motion as to count one. Thus, the defendant remains convicted of counts one and four. The Court will set a date for sentencing in the separate Judgment. The Court's analysis is set forth below.
ANALYSIS
Defendant Elias was convicted on four counts of making false statements to the Government, improperly handling hazardous waste, and endangering his employees by exposing them to that waste. In his motion to dismiss, Elias claims that the Court did not have jurisdiction over three of those counts. Elias claims that state law supplanted analogous federal law, leaving the Government without authority to charge Elias with the federal offenses contained in the first three counts of the indictment.
The first three counts of the indictment alleged violations of the Resource Conservation and Recovery Act (RCRA). That Act creates a federal program governing management of hazardous waste. RCRA contains a provision allowing the Environmental Protection Agency (EPA) to authorize a state to administer and enforce a hazardous waste program. See 42 U.S.C. § 6926 (b). To receive such authorization, the state's hazardous waste program must be substantially equivalent to the federal law. In this case, the EPA approved Idaho's hazardous waste program in 1995, just over a year before the incidents in this case occurred. See 40 C.F.R. § 272.650.
Having obtained EPA approval, Idaho was authorized to operate its program "in lieu of the Federal program under this Subchapter in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste." 42 U.S.C. § 6926 (b). Elias asserts that the "in lieu of" language means that the Idaho hazardous waste laws supplant the analogous federal laws, leaving the EPA without authority to enforce the supplanted federal laws. The Government responds that even after approving Idaho's hazardous waste program, the EPA retains the authority to enforce RCRA in Idaho. To resolve this dispute, the Court must examine the relationship between the EPA and the states in enforcing hazardous waste laws.
The plain meaning of the phrase "in lieu of" as used in § 6926(b) is that approved state hazardous waste laws supplant their RCRA counterparts. That is precisely how the EPA itself interpreted § 6926(b) in its Enforcement Memorandum: When EPA authorizes a [state] hazardous waste management program . . . the state program becomes the RCRA program in that state. In other words, the only hazardous waste program in effect in that state is the state program. See EPA Enforcement Memorandum (attached as exhibit 1 to Brief of Elias) at 15-8. The Supreme Court appears to agree, having noted that RCRA's provisions are "subject to displacement by an adequate state counterpart." Department of Energy v. Ohio, 503 U.S. 607, 611 (1992) (emphasis added).
The EPA's Enforcement Memorandum was authored by the EPA's Enforcement Counsel in 1982. The Government makes no contention that the Memorandum does not accurately reflect the EPA's views or should be excluded from consideration. The Court will therefore consider the Memorandum.
While the state program becomes the RCRA program once approved by the EPA, the EPA is not barred from all enforcement activity. The provisions of § 6928(a)(2) state that
in the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program . . . the [EPA] shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.
This provision clearly contemplates that the EPA will have a continuing enforcement role even after it has approved a state program. This interpretation is confirmed by the
This legislation permits the states to take the lead in the enforcement of the hazardous waste laws. However, there is enough flexibility in the act to permit the [EPA], in situations where a state is not implementing a hazardous waste program, to actually implement and enforce the hazardous waste program against violators in a state that does not meet the federal minimum requirements. Although the [EPA] is required to give notice of violations of this title to the states with authorized hazardous waste programs, the [EPA] is not prohibited from acting in those cases where the states fail to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program pursuant to Title III of this act.
1976 U.S.C.C.A.N. 6269.
A similar description of the EPA/state relationship is contained in the EPA regulations approving Idaho's hazardous waste program: "Idaho has primary responsibility for enforcing its hazardous waste program. However, EPA retains the authority to exercise its enforcement authorities under sections [6927, 6928, 6934, and 6973] of RCRA." See 40 C.F.R. § 272.650 (c) (1999). The Ninth Circuit, in Washington v. United States EPA, 752 F.2d 1465, 1467 (9th Cir. 1985), interpreted the law similarly: "Where a state program is in effect, EPA retains certain oversight and enforcement powers, including the power to withdraw authorization if the state program fails to comply with the federal requirements." Thus, by approving a state's program, the EPA does not lose the authority to enforce hazardous waste laws.
But what laws does the EPA enforce — the RCRA or the state's laws? According to the EPA's Enforcement Memorandum, it would be enforcing state laws: "[T]he only hazardous waste program in effect in that state [with an EPA-approved program] is the state program, and the state laws and regulations are those which must be enforced by EPA should federal enforcement action be necessary." EPA Enforcement Memorandum, supra, at 15-8. The EPA also took this position in Harmon Industries, inc. v. Browner, 191 F.3d 894, 899 (8th Cir. 1999) where it argued that RCRA "authorizes either the state or the EPA to enforce the state's regulations . . . ."
Later in the Memorandum, the EPA reaffirms that interpretation: "The federal program [in a state with an EPA-approved program] ceases to exist in that state, except for the potential of federal enforcement of the state program. . . ." Id. at 1513.
That interpretation is confirmed by §§ 6928(3), (4), and (5). Those provisions all authorize EPA enforcement based on the failure of any person to comply with "regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subchapter." These provisions clearly contemplate the EPA enforcing state laws, not their analogous counterparts in RCRA, in those states having EPA-approved programs.
Any other interpretation would ignore the "in lieu of" language in § 6926(b). If the EPA could enforce RCRA provisions that had analogous state law counterparts in an EPA approved program, the "in lieu of" language would essentially be stricken from § 6926(b). Such a reading would violate the canon of statutory construction that every part of the statute be given meaning. See U.S. v. Garcia, 112 F.3d 395, 398 (9th Cir. 1997) (rejecting interpretation of statute in criminal case that would ignore a phrase contained in the statute).
The EPA asserts, however, that the Ninth Circuit held in Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986), that the EPA retains the right to pursue enforcement of even those RCRA provisions that have analogous state law EPA-approved provisions. The Court disagrees, because that issue was never raised or addressed in Wyckoff.
The dispute in Wyckoff began when the EPA found hazardous wastes leaking into the soil from two wood treatment plants located in the state of Washington and owned by Wyckoff. The EPA, under the authority of RCRA's § 6934, ordered Wyckoff to submit written proposals for monitoring the sites. Section 6934 states that whenever the EPA finds that hazardous wastes "may present a substantial hazard to human health or the environment," the EPA may order the owner of a facility to conduct monitoring to ascertain the "nature and extent of the hazard."
Wyckoff refused to conduct the monitoring on the ground that Washington had an EPA approved program, divesting the EPA of all authority whatsoever to enforce any provision of RCRA. The Ninth Circuit disagreed, holding that even in a state with an EPA-approved program, the EPA "retains certain oversight and enforcement powers" and that § 6934 is "one of the sections which the EPA retained its powers of oversight and enforcement." Id. at 1201 (quoting from Washington, 752 F.2d at 1467).
There was no discussion in Wyckoff as to whether Washington's EPA-approved program had a counterpart to RCRA's § 6934. If there was an analogous provision, Wyckoff never raised the argument, as Elias has here, that the EPA would be limited to enforcing only the EPA-approved state law provision. Thus, Wyckoff understandably never addressed the issue whether the EPA has the authority to enforce a RCRA provision that has a state law counterpart under an EPA-approved state program.
While Wyckoff never addressed the issue, RCRA § 6934 does have a counterpart in Washington law. Section § 70.105D.030 of the Washington Code permits State authorities to "require potentially liable persons to investigate any releases . . . including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release." However, that provision was not passed until 1988, about two years after Wyckoff. It is unclear whether there was a similar provision in Washington law at the time the EPA approved Washington's program just prior to the Wyckoff decision. All this speculation really leads nowhere, because it cannot alter the fact that Wyckoff never discussed this issue.
As the Court discussed above, the "in lieu of" language must be given some meaning. The most reasonable interpretation of that phrase is that it substitutes an EPA-approved state program for that program's RCRA counterparts. As the EPA's own Enforcement Memorandum concludes, the EPA then enforces the approved state laws, not the RCRA counterparts.
Wyckoff says nothing to the contrary. Wyckoff does allow the EPA to enforce RCRA statutes in a state with an approved program. But Wyckoff never addresses whether it would have reached the same result if the RCRA statute at issue had a counterpart in Washington's approved program. In fact, Wyckoff could not have done so and remained true to settled principles of statutory construction. To allow the EPA to enforce RCRA provisions that have counterparts in approved state programs is to ignore the phrase "in lieu of" in § 6926(b). Such an interpretation would make EPA approval a meaningless act.
Thus, the Court refuses to extend Wyckoff into an area that the decision itself never addressed. That is, the Court refuses to interpret Wyckoff as permitting the EPA to enforce even those RCRA statutes that have counterparts in the approved state program. Instead, the Court will interpret Wyckoff as permitting the EPA to enforce those provisions of RCRA that have no counterpart in the approved state program.
To summarize, the Court finds as follows: (1) EPA-approved state hazardous waste laws supplant their RCRA counterparts; (2) The EPA retains authority to enforce those approved state laws; (3) When the EPA approves a state program, the EPA loses the authority to enforce those RCRA provisions with counterparts in the approved state program; (4) When the EPA approves a state program, the EPA retains the authority to enforce RCRA provisions that have no counterparts in the approved state program.
The Court will now apply these general findings to the case at hand. Elias challenges counts one, two, and three of the indictment. All three counts allege violations of RCRA, not Idaho law. The issue is whether the RCRA provisions in counts one, two, and three, of the indictment were supplanted by Idaho's own hazardous waste laws, leaving the Government without authority to pursue the RCRA claims.
Count one charged Elias with a violation of § 6728(e) for knowingly endangering his employees by exposing them to hazardous waste. There is no counterpart to this statute in the Idaho program. Count two of the indictment charges Elias with disposing of hazardous waste without a permit on August 26 and 27, 1996, in violation of § 6928(d)(2)(A). Count three contains a similar charge that he disposed of hazardous waste without a permit in September, 1996. These two charges under § 6928(d)(2)(A) have a direct counterpart in the Idaho program — Idaho Code § 39-4408(1), that similarly forbids disposing of hazardous waste without a permit. The enforcement and criminal penalty provisions of the Idaho Code, §§ 39-4413 to 4415, are also part of the authorized Idaho program and counterparts to the RCRA enforcement and penalty provisions.
The Government argues in its briefing that Idaho Code §§ 39-4413 to 4415 are not part of the authorized Idaho program. The EPA regulations adopting Idaho's program state that these statutory provisions "although not incorporated by reference, are part of the authorized State program." See 40 C.F.R. § 272.651(b)(2). The Government apparently is relying on the "not incorporated by reference" language. The regulation explaining the "incorporation by reference" language says nothing that would support the Government's reading. See 40 C.F.R. § 272.2. In fact, the principal regulation dealing with the EPA's approval process states simply that the EPA "shall make a final determination whether or not to approve the state's program." See 40 C.F.R. § 271.20 (e). That regulation does not state that "incorporation by reference" plays any part in the approval process. Here, the EPA has stated that Idaho Code §§ 39-4413 to 4415 are part of the EPA-authorized program. The Government has offered no credible support for its contention that these statutes were in fact not approved. The Court will therefore assume that these Idaho statutes are EPA-approved.
Thus, there is an Idaho counterpart for the RCRA violation alleged in counts two and three, but none for count one. In accordance with the four findings summarized above, the EPA retained the authority to indict Elias for the crime charged in count one — knowing endangerment — because there was no counterpart to that charge under Idaho's approved program. The Court will therefore deny Elias's motion to dismiss count one. With regard to counts two and three, however, the EPA retained only the authority to indict Elias under the applicable state law, not its RCRA counterpart.
That state law is not cited anywhere in counts two or three, or elsewhere in the indictment. An essential purpose of the indictment is to give a defendant notice of the charge so that he may defend or plead his case adequately. James, 980 F.2d at 1316. Generally, the failure of an indictment to detail each element of the charged offense constitutes a fatal defect. Id. at 1316. "A claim of a defective indictment can be raised at any time, but challenges should be made at the earliest possible moment. Indictments which are tardily challenged are liberally construed in favor of validity." United States v. James, 980 F.2d 1314, 1316 (9th Cir. 1992) (internal punctuation and citations omitted). The court should not reverse the conviction in the absence of prejudice to the defendant. See United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986).
The Government asserts that Elias was not prejudiced because the law under the Idaho statutes is the same as RCRA. However, Elias points to evidence, in the form of letters from Idaho's Department of Environmental Quality, the agency administering Idaho's hazardous waste laws, stating that mining waste is not covered by the Idaho hazardous waste law. Elias was charged with illegally disposing of cyanide-bearing waste, which he produced in "the course of attempting to extract silver from mining waste" according to the indictment. The mining waste defense would have been completely irrelevant under the RCRA charges, but may be relevant if Elias was charged under the Idaho law.
If Elias must show prejudice, he has done so. However, it would appear to the Court that the failure of the indictment to cite the applicable statute is prejudice enough. Either way, counts two and three of the indictment are insufficient, and must be dismissed.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss (docket no. 208) is hereby GRANTED IN PART AND DENIED IN PART. It is granted to the extent that it seeks to dismiss counts two and three from the indictment and to set aside the convictions on counts two and three. It is denied in all other respects. Specifically, the defendant remains convicted on counts one and four of the indictment.
IT IS FURTHER ORDERED, that sentencing shall be held on April 28, 2000, at 9:00 a.m. in the Federal Courthouse in Pocatello, Idaho.