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U.S. v. LAUGHLIN

June 20, 1991

UNITED STATES OF AMERICA,
v.
KENNETH LAUGHLIN AND JOHN DONNELLY, DEFENDANTS.



The opinion of the court was delivered by: Munson, Senior District Judge.

MEMORANDUM-DECISION & ORDER

Before the court is the United States' motion in limine for a pre-trial determination regarding the elements of an offense under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928 (d)(2)(A). Also before the court is defendant Laughlin's motion to compel the government to furnish a bill of particulars and to identify documents which the government intends to use as evidence in chief at trial. The court heard oral argument on May 10, 1991 in Syracuse, New York.

I. BACKGROUND

Defendants are charged in a twenty-seven count indictment with illegally storing and disposing of hazardous wastes without a permit in violation of RCRA, 42 U.S.C. § 6928 (d)(2)(A) (Counts 1-11, 23, 26), and failing to report the release of hazardous substances in violation of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9603 (a) & (b) (Counts 12-22, 24-25, 27). Because the government's motion in limine is directed only at that part of the indictment charging defendants with violations of RCRA, the court similarly limits its discussion to that portion of the indictment.

Defendant Kenneth Laughlin was the president and/or plant manager of GCL Tie Treating Inc. and defendant John Donnelly was one of GCL's supervisors. GCL's business involved treating unfinished railroad ties with creosote, a hazardous waste and substance, which is used as a wood preservative and pesticide to prevent rotting. The indictment charges that between April of 1986 and January 7, 1988 defendants knowingly stored and disposed of creosote, or caused such storage or disposal, at a location adjacent to the GCL site without a permit. (Counts 1-11). The indictment further alleges that on October 30, 1986 a pressure treating cylinder containing creosote burst and creosote was released, contaminating the adjacent soil. Thereafter, the soil was gathered into a large mound. Defendants are charged with knowingly storing the hazardous waste produced from this spill from January 30, 1987 through January 7, 1988. (Count 23). Finally, the indictment charges that on or about January 8, 1988 defendant Laughlin knowingly disposed of, or caused to be disposed, all of GCL's remaining creosote and hydrochloric acid without a permit. (Count 26). GCL ceased operations in January of 1988.

II. DISCUSSION

A. Government's Motion In Limine

42 U.S.C. § 6928 (d)(2) provides as follows:

Any person who —

  knowingly treats, stores, or disposes of
  any hazardous waste identified or listed
  under this subchapter —

(A) without a permit under this subchapter. . .; or

      (B) in knowing violation of any material
    condition or requirement of such
    permit; or
      (C) in knowing violation of any material
    condition or requirement of any
    applicable interim status regulations or
    standards
  shall, upon conviction, be subjected to a
  fine of not more than $50,000 for each
  day of violation, or imprisonment not to
  exceed two years (five years in the case
  of a violation of paragraph (1) or (2)) or
  both.

The only issue raised by the government's motion in limine is whether in order to obtain a conviction under section 6928(d)(2)(A) it is necessary that the government prove that the defendants knew that it was illegal to treat, store, or dispose of hazardous waste without first obtaining a permit and also knew that GCL did not have a permit. The government argues that it is not required to prove such knowledge. All that must be demonstrated, the government contends, is the following:

  First: The defendants knowingly stored
  or disposed of or caused others to store
  or dispose of creosote or hydrochloric
  acid on or about the time periods set
  forth in the indictment;
  Second: Pursuant to RCRA, the creosote
  or hydrochloric acid was hazardous;
  Third: The defendants knew the creosote
  or hydrochloric acid had the potential to
  be harmful to others or the environment,
  or in other words, it was not an innocuous
  substance like water; and
  Fourth: Neither the defendants nor GCL
  had obtained a permit or interim status
  which authorized the storage or disposal
  of hazardous waste under RCRA.

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