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United States v. Carr

decided: July 25, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
DAVID JAMES CARR, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Northern District of New York (Munson, J.), convicting appellant of failing to report a hazardous waste release from a facility over which he was "in charge." 42 U.S.C. § 9603. Affirmed.

Kearse, Cardamone, and Pierce, Circuit Judges.

Author: Pierce

PIERCE, Circuit Judge

Appellant David James Carr appeals from a judgment of the United States District Court for the Northern District of New York (Munson, J.), convicting him under section 103 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9603 (1982 & Supp. IV 1986). Under section 103, it is a crime for any person "in charge of a facility" from which a prohibited amount of hazardous substance is released to fail to report such a release to the appropriate federal agency. Appellant, a supervisor of maintenance at Fort Drum, New York, directed a work crew to dispose of waste cans of paint in an improper manner, and failed to report the release of the hazardous substances -- the paint -- to the appropriate federal agency. At appellant's trial, the district court instructed the jury that appellant could be found to have been "in charge" of the facility so long as he had any supervisory control over the facility.

Appellant contends on appeal that this instruction was erroneous because (1) it extended the statutory reporting requirement to a relatively low-level employee, and (2) it allowed the jury to find that appellant was "in charge" so long as he exercised any control over the dumping. For the reasons stated below, we hold that the statutory reporting requirements were properly applied to appellant. We also hold that the jury instruction challenged on appeal, viewed as a whole, was not erroneous.

BACKGROUND

Appellant was a civilian employee at Fort Drum, an Army camp located in Watertown, New York. As a civilian employee at a military installation, he was supervised by Army officers. His position was that of maintenance foreman on the Fort's firing range, and as part of his duties he assigned other civilian workers to various chores on the range. In May 1986, he directed several workers to dispose of old cans of waste paint in a small, man-made pit on the range; at that time, the pit had filled with water, creating a pond. On Carr's instructions, the workers filled a truck with a load of cans and drove to the pit. They backed the truck up to the water, and then began tossing cans of paint into the pond. After the workers had thrown in fifty or so cans, however, they saw that paint was leaking from the cans into the water, so they decided instead to stack the remaining cans of paint against a nearby target shed. At the end of the day, the workers told Carr of the cans leaking into the pond, and warned him that they thought that dumping the cans into the pond was illegal. Two truckloads of paint cans remained to be moved the next day, so Carr told the workers to place those cans alongside the target shed.

Approximately two weeks later, Carr directed one of the workers to cover up the paint cans in the pond by using a tractor to dump earth into the pit Another worker, however, subsequently triggered an investigation by reporting the disposal of the cans to his brother-in-law, a special agent with the Department of Defense. A 43-count indictment was returned against appellant, charging him with various violations of federal environmental laws. The indictment included charges under the Resource Conservation and Recovery Act of 1976, 42 U.S.C § 6928(d)(2)(A), 18 U.S.C, § 2 (Counts 1-4), the CERCLA charges here at issue (Counts 5-6), and multiple charges under the Clean Water Act of 1977, 33 U.S.C. §§ 1311(a), 1319(c)(1), 18 U.S.C. § 2 (Counts 7-43). Appellant pleaded not guilty, and a 6-day trial before a jury began on October 3, 1988.

After the government had presented its evidence, it filed with the court various proposed jury instructions, including one regarding the definition of the term "in charge." Over appellant's objection, the district court gave the government's proposed instruction to the jury, essentially unchanged, as follows:

There has been testimony that the waste paint was released from a truck assigned to the workers by the Defendant David Carr. The truck, individually, and the area of the disposal constitute facilities within the meaning of [CERCLA]. So long as the Defendant had supervisory control or was otherwise in charge of the truck or the area in question, he is responsible under this law. The Defendant is not, however, required to be the sole person in charge of the area or the vehicle. If you find that he had any authority over either the vehicle or the area, this is sufficient, regardless of whether others also exercised control.

The jury acquitted appellant of all charges except Counts 5 and 6, the CERCLA charges. The district court imposed a suspended sentence of one year's imprisonment, and sentenced appellant to one year of probation. This appeal followed.

Discussion

I. The Meaning of "In Charge" Under Section 103

Appellant raises two claims on this appeal, both of which arise out of the district court's instruction quoted above. The first claim turns on the meaning of the statutory term "in charge." Under section 103, only those who are "in charge" of a facility must report a hazardous release. There is, however, no definition of the term "in charge" within CERCLA. Appellant argues that the district court's instruction was erroneous because Congress never intended to extend ...


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