The Ninth Circuit affirmed the defendant's conviction and 204-month sentence for violating the "knowing endangerment" provision of the Resource Conservation and Recovery Act (RCRA).[1] The court emphasized that EPA does not yield its enforcement powers when it authorizes a state enforcement program under RCRA. The court vacated a large restitution award because restitution is not sanctioned for RCRA knowing endangerment violations under federal sentencing guidelines.[2]
Elias owned a fertilizer company in Idaho and held a patent on a cyanide leaching process. He ordered four employees to clean cyanide-laced sludge out of a holding tank without providing safety equipment. The employees experienced adverse health effects during their first attempt. Despite the apparent hazard, Elias refused the employees' requests for safety equipment. During the second attempt, one employee collapsed and was in danger of dying when medical help arrived. Elias subsequently lied to paramedics and authorities about the possibility of the tank containing cyanide and ordered a new employee to move and bury the sludge without taking safety precautions.
Elias was tried and convicted on four counts. The knowing endangerment offense was the most serious, carrying penalties of up to $250,000 and/or fifteen years in prison.[3] On appeal, Elias contended that the United States ceded enforcement authority to Idaho when EPA authorized Idaho's hazardous waste program under RCRA, and therefore three of the four counts of his indictment should be dismissed because they alleged federal, rather than state, offenses.
Elias cited Harmon Industries, Inc. v. Browner (Harmon)[4] for the proposition that federal law was supplanted. In Harmon, the Eighth Circuit held that a consent decree between a state and a violator bound EPA because RCRA provides that actions taken by a state under an EPA-authorized program have the "same force and effect"[5] as action taken by EPA.[6] The Ninth Circuit distinguished Harmon, reading it to control only when, not whether, EPA can bring a civil action in federal court. Although RCRA provides that states will be the primary enforcers of RCRA, EPA loses none of its enforcement powers by authorizing a state program and is free to act when the state has not.
Instead, the court found another Ninth Circuit decision, Wyckoff Co. v. EPA,[7] to be controlling. In Wyckoff, defendants sought to enjoin an EPA civil enforcement action, arguing that RCRA authorizes state programs to be carried out "in lieu of" the federal program and that therefore Congress meant to revoke EPA's enforcement power in states with authorized programs.[8] As in Wyckoff, the court in Elias found no such congressional intent in RCRA. Therefore, EPA's interpretation that the agency retains enforcement authority was reasonable and entitled to deference.
Finally, Elias argued that the single sample of cyanide sludge EPA used to incriminate him did not accurately reflect the level of the tank's contamination; that EPA's regulation regarding acceptable levels of cyanide was unconstitutionally vague; and that the jury instruction regarding intention was contradictory, and thus a new trial was warranted. The court found that EPA's sample of the sludge taken outside the tank reflected the characteristics of the tank waste that led to the employee's collapse, making further sampling irrelevant. Further, the court found that the EPA regulation classifying cyanide as a reactive waste was not vague because Elias had the specialized knowledge required to understand it.[9] Regarding the jury instruction, the court found no error because the potential for confusion in the definition of "intention" was such that it "would only afflict law students or lawyers."[10]
