January 2006
Legally Speaking with Brad Tamarro

The laws that control how hazardous wastes are handled divide the world into two distinct categories. The first category concerns activities that involve the generation and shipment of hazardous wastes while the second set is concerned with the receipt and processing of the wastes, i.e. treatment, storage or disposal. In general, the long standing recognition has been that a person was prosecuted for what they specifically did, i.e. just because a person illegally transported hazardous waste did not mean they were automatically guilty of illegally disposing of that waste.

While that recognition is still applicable, with the July 2005 decision in US v. Wasserson, 2005 U.S.App.LEXIS 15605 (3rd Cir. 2005), the landscape slightly shifted. Legal concepts such as aiding and abetting and willful blindness are now being applied to expand the boundaries of criminal liability under the environmental statutes. The result is that an individual who generates a hazardous waste and enters a written contract with a third party that specifies the wastes are to be disposed of at a legal dumpsite may still be convicted for an act of illegal disposal by that third party.

Wasserson operated a dry cleaning supply company in Pennsylvania that went out of business in 1994. Prior to going out of business, Wasserson employed an environmental consultant who advised him on regulatory matters including a hazardous waste generator’s responsibilities regarding the transportation of hazardous wastes and the manifest system used to document the shipment and disposal of such wastes. While Wasserson maintained a warehouse to store chemicals associated with his dry cleaning supply business, his warehouse manager had no training or experience handling or disposing of hazardous wastes. After he went out of business, Wasserson tried to sell off his remaining chemical inventory but left hundreds of containers of chemicals mixed with a substantial amount of rubbish.

In 1999, Wasserson apparently gave up trying to sell the chemicals that had been standing around since 1994 and he approached a former customer with an offer to simply give him the remaining chemicals. The customer rejected the offer and told him that he should contact a hazardous waste company to dispose of the remaining chemicals. Wasserson’s response was that he had already done that and that it was too costly. Wasserson then told his warehouse manager to simply hire someone to remove the materials in the warehouse. The manager contacted a rubbish removal contractor who offered to remove the drummed chemicals in addition to the rubbish for a total amount of money that was well below the price for proper disposal of hazardous wastes. The manager, who had no idea of the costs involved to properly dispose of hazardous wastes, informed Wasserson who then contacted the contractor and to ensure that the contract included a statement that all chemicals were to be removed to a legal dumpsite and that the contractor took full responsibility for the job.

The contractor, who knew the drummed materials were hazardous wastes, commingled the drummed chemicals with other trash in an unmarked dumpster and had the dumpster transported to a solid waste landfill that was not permitted to receive hazardous wastes. When the dumpster was unloaded at the landfill, employees at the landfill recognized a paint-like odor coming from the containers.

The owner was convicted in a jury trial for violating the prohibitions against knowingly transporting and disposing of hazardous waste at a location without a permit. Wasserson asked the trial court to toss out the jury conviction arguing first, that he could not be convicted of both transportation and disposal since it involved the same conduct. Next, he claimed that the statutory prohibition concerning disposal only applied to the individual who actually carried out the disposal and not those who merely generated the wastes. The trial court dismissed the disposal charge holding that one who merely generated but did not carry out the disposal of hazardous waste cannot be convicted of illegal disposal. The government appealed the dismissal.

The appellate court rejected Wasserson’s position that an individual could not be convicted of both transportation and disposal of hazardous wastes. The court stated that transportation and disposal were distinct acts that Congress intended to punish separately because of the different dangers presented by each. The court then reinstated the conviction when it clarified that an individual who generated a waste but did not personally carry out the disposal could be convicted of knowingly disposing of the waste improperly.

First, the court applied the concept of aiding and abetting to the fact that Wasserson was not the actual person who disposed of the waste. Next, the court addressed the fact that the statute only attached criminal liability for disposal where a defendant had knowledge of the illegal act by applying the concept of willful blindness. The court state that willful blindness was not the same thing as negligence or a lack of due care. However, it was more than a reasonable man standard. It was a subjective state of mind where a person is aware of the high probability of the particular fact that was necessary to satisfy the requirement for knowledge. In this instance, the combination of the facts discussed above established Wasserson’s willful blindness to the fact the waste chemicals were going to be disposed of illegally.

 


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