Opinion
CR No. 98-00070-E-BLW.
March 8, 1999
MEMORANDUM DECISION AND ORDER
The Court has before it the Defendant's Motion to Dismiss Counts I-III on Void for Vagueness Grounds; or, in the Alternative, a Violation of the Ex Post Facto Clause. The Court held an evidentiary hearing on all pending motions in this case beginning March 4 and concluding with oral arguments on March 9, 1999. At the conclusion of that hearing the Court took the Defendant's motion under advisement. For the reasons set forth below, the Court denies the Defendant's motion to dismiss Counts I-III.
Background
The Defendant seeks to have Counts I, II, and III of the Indictment dismissed. Each of these Counts is based upon an alleged violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq. Common to each count is the allegation that the Defendant illegally stored or disposed of cyanide-bearing "reactive hazardous waste." Federal regulations that define what constitutes reactive cyanide-bearing hazardous wastes makes up a critical element of the Government's case. The Defendant contends that those regulations are unconstitutionally vague, and that the withdrawal of a guidance and test protocol applicable to those regulations amounts to an ex post facto action that violates the Defendant's constitutional rights.
In brief, the Indictment against the Defendant relates to a series of events that occurred at a facility in Soda Springs, Idaho, operated by the Defendant as Evergreen Resources Inc. According to the Indictment, on August 26, 1996, the Defendant directed his employees to clean sludge from a 25,000 gallon storage tank by washing it out onto the ground outside the tank. The workers developed sore throats and, concerned for their health, stopped working inside the tank. On August 27, the employees advised the Defendant of the problems they had experienced inside the tank. The Defendant directed them to reenter the tank to clean out the sludge, and to use the protective gear available at the business. The protective gear was not designed to protect the workers from exposure to cyanide. While working inside the tank at the Defendant's direction, one of the Defendant's employees, Scott Dominguez, became overwhelmed by the fumes, collapsed into the sludge, and lay in the sludge for an extended period of time because of difficulties encountered in extricating him from the tank. Mr. Dominguez has suffered permanent brain damage. The indictment also alleges that some weeks later, the Defendant disposed of the waste from the tank by dumping it onto the ground at his business establishment.
In considering the Defendant's arguments, it is necessary to briefly review the application of RCRA and its supporting regulations to the facts of this case. The provision of RCRA under which the Defendant is charged makes it a crime to knowingly store or dispose of a hazardous waste. This relatively simple criminal offense is given substance through regulations first promulgated by the Environmental Protection Agency ("EPA") in 1980. Those regulations define a hazardous waste as falling within two categories. The first such category includes specific wastes generated by particular industries or activities. The second category, and the one applicable here, includes substances that have one of four hazardous characteristics — ignitability, corrosivity, toxicity and reactivity. A sub-part of the regulation defines the reactivity characteristic, and provides that a substance shall constitute a reactive hazardous waste, and therefore be subject to the criminal prohibitions of RCRA, if it is "a cyanide or sulfide bearing waste that, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors, or fumes in a quantity sufficient to present a danger to human health or the environment." 40 C.F.R. § 261.23(a)(5).
Stated in a narrative form, this definition of reactivity focuses on the possible harms that make reactive wastes hazardous, rather than on a quantifiable, test-based standard. This approach was taken because of a perceived problem in trying to establish a specific, numerically quantified, test-based standard which would apply under all circumstances and in all situations. See 45 Fed. Reg. 33110 (May 19, 1980). This approach is apparently acceptable in other regulatory contexts, since the reactivity definition set forth in 40 C.F.R. § 261.23(a)(5) closely parallels the top three reactive classes of the National Fire Protection Association, tracks the definition of reactive wastes used by the Chemical Manufacturers Association, and is substantially similar to the classification system used by the United States Navy.
Despite the concern that it was not possible to adequately measure reactivity with a specific, numerically quantified, test-based measure, the EPA in July 1985, issued its " Interim Thresholds for Toxic Gas Generation Reactivily (§ 261.23(a)(5 ))" which reads as follows:
Over the past year, we have received many inquiries about how to evaluate wastes for reactivity (§ 261.23(a)(5)). We have initiated a number of studies in this area, and expect to propose a quantitative threshold for toxic gas generation reactivity in December of this year. On an interim basis, however, we feel strongly that wastes releasing more than the following levels of toxic gas should be regulated as hazardous wastes:
Total Available Cyanide: 250 mg HCN/Kg waste
Total Available Sulfide: 500 mg H2S/Kg waste
The available cyanide and sulfide should be measured using the attached draft testing methods.
Although it was suggested that a final threshold would be issued in six months, none was ever issued. However the interim threshold was republished in the EPA's "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, "SW-486, a methods manual which was subsequently incorporated by reference into the RCRA regulations. However, it appears to be undisputed that the Defendant was unaware of the interim threshold and never attempted to use the SW-486 test protocols to determine whether the cyanide-bearing sludge exceeded the interim thresholds.
The Dominguez incident occurred during the summer of 1996. On the day following the incident, samples of were taken from the tank. When tested using the cyanide reactivity test established by the interim threshold, results ranging from .285 to 2.47 mg/kg-wet of Reactive Cyanide were obtained. Obviously these were far below the standards of 250 mg HCN/Kg waste. It is this test result that fuels the Defendant's argument that the regulatory standards are impermissibly vague.
On April 21, 1998, and possibly as a response to the test results obtained from the Defendant's tank, the EPA withdrew the interim threshold. In doing so, it stated:
Until revised guidance is developed, we reiterate the RCRA regulatory language. That is, 40 C.F.R. § 261.23(a)(5) specifies that human and health and the environment must not be endangered by evolved toxic gases when these wastes are exposed to pH conditions between 2 and 12.5. Any waste causing a hazard, when in the pH range of 2-12.5 would certainly be considered a characteristic hazardous waste.See Memorandum of David Bussard, Director of EPA Hazardous Waste Identification Division, OSWER, to Diana Love, Director, NEIC, April 21, 1998. The Defendant contends that this withdrawal of the interim threshold constitutes an unconstitutional cx post facto law.
Discussion
The Defendant's motion to dismiss Counts I, II, and III of the indictment can best be addressed by first considering what role the interim thresholds played in the regulatory scheme. The Defendant contends that the interim threshold and accompanying test methods constituted "the" standard for determining whether a reactive substance constituted a hazardous waste at the time of the incident giving rise to this Indictment. In support of this argument, the Defendant points to the EPA's failure to implement any final guidance, leaving the interim thresholds in effect for 13 years. The Defendant also relies on the EPA's incorporation of the interim thresholds into its official methods manual, which was, in turn, incorporated into federal regulations. Finally, the Defendant refers to various internal memoranda, in which EPA officials have made statements suggesting that the interim threshold has been broadly used in enforcing the RCRA regulations and statutes.
The Government, on the other hand, contends that the interim threshold constitutes a non-binding guidance that proposed a test method for determining whether cyanide-bearing was reactive. It was intended, the Government argues, only to establish the outside limits of what was clearly regulable. If the test method is used, and toxic gas was released above the levels set forth in the interim thresholds, the releasing waste would be regulated as hazardous waste. However, if the waste released toxic gas below the threshold levels, nothing in the interim threshold suggested that the waste would not be subject to regulation. In short, the Government contends that the interim threshold did not provide a "safe harbor" for wastes that emitted toxic gas below the threshold levels.
The Court finds the Government's perception of the interim thresholds correct. A review of the language used in the interim threshold clearly suggests that it was an effort by the EPA to establish standards for the most extreme health- and environment-threatening forms of cyanide that would be regulable under all circumstances and in all settings. The operative language of the interim threshold — those words that state the legal effect of the quantified standards — clearly indicates as much: "On an interim basis . . . we feel strongly that wastes releasing more than the following levels of toxic gas should be regulated as hazardous wastes." Nothing in that language suggests that the interim threshold is stating a "safe harbor" rule for wastes that fall below the threshold levels. To the contrary, the language used clearly indicates that it is intended, on an interim basis, to indicate those substances that are clearly regulable and subject to the RCRA criminal and civil provisions.
This view of the interim threshold has two significant impacts on the Defendant's motion to dismiss. First, it requires that we consider whether the regulations are unconstitutionally vague by looking at the narrative definition, without considering the effect of the interim thresholds. Second, it effectively disposes of the ex post facto claim, since withdrawing the interim threshold did not effect a change in the law applicable to the Defendant.
Even if the Court were inclined to find that the interim threshold was an integral part of the regulations which provided a safe harbor for a waste generator, the Defendant could not avail himself of this argument because of the lack of any evidence that he knew of the threshold or attempted to comply with it.
Turning then to the Defendant's vagueness challenge, the Court notes that in the criminal context, a statute or regulation cannot be challenged as vague on its face, but only as applied. See United States v. Martinez, 49 F.3d 1398, 1403 (9th Cir. 1995), cert. denied, 116 S.Ct. 749 (1996). Furthermore, where a regulation is challenged as vague as applied, the challenge must be based on the facts at hand, and not on hypothetical applications. See United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). The fundamental question in determining whether a regulation is impermissibly vague is whether a defendant has fair notice that certain conduct is forbidden. See United States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994), cert. denied, 115 S.Ct. 1365 (1995). This notice must be examined in light of the conduct in which the Defendant is charged. See United States v. E. C. Investments, Inc., 77 F.3d 327, 33 1-32 (9th Cir. 1996).
In the present case, it would be preferable to have some numerically-quantified, testbased standard for determining whether a substance releasing cyanide gas should be deemed hazardous, and thus subject to the instant regulations. However, that is not possible in the regulation of cyanide gas given the variety of situations and circumstances in which cyanide may exist and pose a hazard to the public health and the environment. For example, in a closed and confined area without ventilation, such as a tank, a specific quantity of cyanide gas would be much more hazardous than if the same quantifiable amount were found in an open area with unlimited ventilation, such as a large open field with a breeze blowing. This type of problem has long been recognized by the EPA with regard to reactive substances. See 45 Fed. Reg. 33110 (May 19, 1980). Although the EPA's issuance of the interim standard suggests that it intended to make an attempt at establishing numerically-quantified, test-based standards, the interim standard itself suggests uncertainty as to whether that could be accomplished, and the record as a whole indicates a great deal of concern by EPA officials as to whether such standards are possible.
A numerically-quantified, test-based standard is not required to survive a vagueness challenge. Narrative descriptions of what constitutes hazardous waste have been approved by the Courts in the face of a void-for-vagueness charge. See, e.g., United States v. Clark, 912 F.2d 1087, 1090 (9th Cir. 1990) (a regulation prohibiting "wasteful" taking of "substantial portions" of walruses is not unconstitutionally vague); United States v. Kennecott Copper Corp., 523 F.2d 821, 823-24 (9th Cir. 1975) (the failure to define "harmful quantities" does not render the Clean Water Act's oil spill notification requirements vague); United States v. White, 766 F. Supp. 873, 881-82 (E.D.Wash. 1991) (RCRA's use of words "disposed" and "discarded" for defining waste are not unconstitutionally vague despite the EPA's concession that the definition of solid waste and hazardous waste are difficult to understand and implement). The test for vagueness is not whether a narrative regulation could have been more quantitatively specific, but whether the narrative regulation gives adequate notice to those persons who may be subject to its provisions as to what constitutes illegal activity. See Ayala, 35 F.3d at 425.
It is also significant that the vagueness test in a criminal case is "as applied." A Court must look at the sufficiency of the notice provided in the context of the conduct with which the defendant is charged. See E. C. Investments, Inc., 77 F.3d at 33 1-32. A regulation is not vague if its provisions arise under circumstances where any reasonable person clearly understands that their conduct is prohibited. See United States v. Erickson, 75 F.3d 470, 475-76 (9th Cir.), cert. denied, 116 S.Ct. 1853 (1996); Ayala, 35 F.3d at 425. In other words, the question is whether a reasonable person, in the Defendant's circumstances, would have known that his conduct created risk to others. In the present case, the Defendant had a specialized knowledge of the use of cyanide and regulations applicable to its use. He was further aware of previous health complaints of his employees related to their work around the cyanide in this case. Clearly a reasonable person in the Defendant's circumstances would have known of the "hazardous" nature of a substance without a numerically-quantified, test-based standard.
Furthermore, the test for vagueness may consider the understanding of the regulated community. See United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993), cert denied, 115 S.Ct. 939 (1995). The EPA's narrative description of reactive hazardous waste paraphrases the description of reactive classes of substances by the National Fire Protection Agency, tracks the definition of reactive wastes used by the Chemical Manufacturers Association, and is similar to the classification system used by the United States Navy. It is appropriate to use language that appears vague to lay persons, but has particular meaning within the industry. Id.
The Defendant further contends that the regulation is impermissibly vague because it defines criminal activity based upon the consequences, or potential for harm, caused by unsafe handling of reactive wastes. However, this is not problematic because a key protection to Defendant from unfair prosecution is the requirement of intent. In order to prove the charges against the Defendant, the Government must show that the Defendant acted with knowledge of the unsafe nature of the substance and its potential for harm. See United States v. Heuer, 4 F.3d 723 (9th Cir. 1993); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989). Under these circumstances, the Court cannot find that the RCRA regulations which provide the basis for Counts I, II, and III are unconstitutionally vague.
The Court also finds the Defendant's ex post facto argument to be without merit. As the Court has previously explained, that argument ignores the fact that the law itself has not changed. The withdrawal of the interim threshold did not affect the overall effect of the regulation, which prohibited the storage of harmful reactive substances that emitted substances harmful to the public health or the environment. The Defendant might have made a successful claim of regulatory estoppel, if he were aware of the interim threshold and could show actual reliance upon it. See Weitzenhoff, 35 F.3d at 1290 (citing United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970)); United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991) (citing United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir. 1987)). However, that is not the case here, and there is no basis for applying the ex post facto protection in this setting.
For all of the foregoing reasons, the Court concludes that the Defendant's motion to dismiss must be denied.
Order
NOW THEREFORE lT IS HEREBY ORDERED that the Defendant's Motion to Dismiss Counts I-III on Void for Vagueness Grounds; or, in the Alternative, a Violation of the Ex Post Facto Clause (Docket No. 38) shall be, and the same is hereby, DENIED.
Dated this 8th day of March, 1999.
B. LYNN WINMILL, UNITED STATES DISTRICT COURT