United States v. MacDonald & Watson Waste Oil Company, United States of America v. Narragansett Improvement Company, United States of America v. Eugene K. D'allesandro, United States of America v. Faust Ritarossi, United States of America v. Frances Slade

This appeal concerns the criminal liability of individuals and corporations under hazardous waste disposal laws.

Following a jury trial in the district court, appellants were convicted, inter alia, of having violated criminal provisions of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq. (1982 & Supp. V 1987) and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9603(b) (1982 & Supp. V 1987).

The indictment originally contained 53 counts. By September 11, 1989, when the trial began, 16 counts had been dismissed and eight severed; and, during trial 12 more counts were dismissed on the government's motion, leaving 17 for submission to the jury. The submitted counts all related to the transportation and disposal of toluene waste from the Master Chemical Company. Appellants were convicted on all 17 counts, as follows:

MacDonald & Watson Waste Oil Co. ("MacDonald & Watson"), Faust Ritarossi, Frances Slade and Eugene K. D'Allesandro were convicted, on two counts each, of knowingly transporting and causing the transportation of hazardous waste, namely toluene and soil contaminated with toluene, to a facility which did not have a permit, in violation of RCRA, Sec. 3008(d)(1), 42 U.S.C. Sec. 6928(d)(1).

MacDonald & Watson and Narragansett Improvement Co. ("NIC") were convicted of knowingly treating, storing and disposing of hazardous waste, namely toluene and soil contaminated with toluene, without a permit, in violation of RCRA, Sec. 3008(d)(2)(A), 42 U.S.C. Sec. 6928(d)(2)(A).

MacDonald & Watson and NIC were convicted of failing to report the release of a hazardous substance into the environment in violation of CERCLA, Sec. 103(b)(3), 42 U.S.C. Sec. 9603(b)(3).

MacDonald & Watson was convicted of making false statements in violation of 18 U.S.C. Sec. 1001 and of mail fraud in violation of 18 U.S.C. Sec. 1341.

Located in Boston, Massachusetts, Master Chemical Company manufactured chemicals primarily for use in the shoe industry. Master Chemical had been owned by the Estate of Moses Weinman (hereinafter "the Estate"), which was the principal in transactions with appellants. Among the chemicals Master Chemical used was toluene, which it stored in a two thousand gallon underground storage tank. When Master Chemical personnel discovered in the late fall or early winter of 1982 that water was entering the tank and contaminating the toluene, the tank was emptied and its use discontinued. In 1984, Master Chemical Company was sold, and the toluene tank was excavated and removed. A Master Chemical employee testified that he found a small hole in the tank, and that the soil surrounding the tank appeared black and wet and smelled of toluene.

An environmental consulting firm, Goldberg-Zoino & Associates, Inc. ("GZA"), was retained to assist in the cleanup. GZA prepared a study of the site and solicited a bid from MacDonald & Watson for the excavation, transportation, and disposal of the toluene-contaminated soil. MacDonald & Watson, a company with offices in Johnstown, Rhode Island, was in the business of transporting and disposing of waste oils and contaminated soil. MacDonald & Watson operated a disposal facility on land in Providence, Rhode Island, known as the "Poe Street Lot," leased from appellant NIC.1 MacDonald & Watson operated the Poe Street Lot under NIC's Rhode Island RCRA permit, which authorized the disposal at the lot of liquid hazardous wastes and soils contaminated with non-hazardous wastes such as petroleum products. Neither NIC nor MacDonald & Watson held a RCRA permit authorizing them to dispose of solid hazardous wastes such as toluene-contaminated soil at the lot. At the Rhode Island administrative hearing held when NIC sought its permit, appellant D'Allesandro, president of MacDonald & Watson, testified that hazardous waste operations at the Poe Street Lot would be managed by MacDonald & Watson and that he would be the manager of the facility there. According to the terms of NIC's lease of the Poe Street Lot to MacDonald & Watson, NIC retained responsibility for compliance with state and federal law with respect to permitting and operating the hazardous waste treatment and storage facilities.

The Estate accepted MacDonald & Watson's bid to remove and clean up the contaminated soil. The Estate's attorney, Deborah Shadd, discussed the proposed arrangement with appellant Slade, MacDonald & Watson's employee, and sent Slade a contract under which MacDonald & Watson would remove "contaminated soil and toluene." Shadd asked Slade to review the contract. Shadd also asked Slade to have it signed for MacDonald & Watson, which she did. Thereafter, appellant Ritarossi, another employee of MacDonald & Watson, supervised the transportation of the toluene-contaminated soil from Master Chemical to the Poe Street Lot in nine 25-yard dump truck loads and one 20-yard load. A Massachusetts hazardous waste manifest accompanied each truckload, bearing the Massachusetts hazardous waste code M-001.2 Four of the manifests bore Ritarossi's signature. Prior to acceptance of the waste at the Poe Street Lot, MacDonald & Watson employees received an "Authorization to Accept Shipment of Spill Cleanup Material" form bearing Slade's typed name, describing the spilled material as "toluene," and describing the "petroleum product and the material spilled into" as "toluene and gravel." At this point, a MacDonald & Watson employee stamped the manifests "Non-hazardous in Rhode Island, Accepted for Processing at Asphalt Production Plant." Neither NIC nor MacDonald & Watson reported the disposal of the Master Chemical wastes as a release of a hazardous substance into the environment pursuant to CERCLA Sec. 103(b)(3).

Appellants argue that the evidence was insufficient to support their convictions. In United States v. Gomez Pabon, 911 F.2d 847, 852 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991), we stated the applicable standard of review:

[W]e must view the evidence "in the light most favorable to the government, drawing all legitimate inferences and resolving all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990) [cert. denied, [--- U.S. ----] 111 S.Ct. 130 [112 L.Ed.2d 98] (1990) ]. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st Cir.1990) [cert. denied, [--- U.S. ----] 111 S.Ct. 531 [112 L.Ed.2d 541] (1990) and [--- U.S. ----] 111 S.Ct. 975 [112 L.Ed.2d 1061] (1991) ]; United States v. Bernal, 884 F.2d 1518, 1523 (1st Cir.1989).

With respect to the convictions under RCRA, appellants contend that the evidence was insufficient to establish that the Master Chemical contaminated soil was a "hazardous waste" for purposes of RCRA.3 They argue that petroleum constituents other than toluene were detected in the soil, (including benzene and methyl tert-butyl ether), and that another tank containing non-hazardous petroleum derivatives toluene and benzene was located near the site of the toluene tank. They also argue that testimony regarding water entering the toluene tank and the hole discovered when the tank was removed did not establish that the toluene tank leaked, because the water could have entered through a pipe and the hole could have resulted during tank removal. These arguments are not persuasive. Contamination with other non-hazardous chemicals would not render soil that was also contaminated with toluene a non-hazardous waste. Groundwater in the toluene tank excavation pit showed toluene at 360,000 parts per million, vastly greater than levels of any other chemical. This sample data, along with testimony regarding the soil's toluene smell, and other testimony, was plainly sufficient to enable the jury to find that the soil was contaminated with toluene and was a hazardous waste as defined in the relevant regulations implementing RCRA. See 42 U.S.C. Secs. 6921, 6903(5) and (27).

Appellant Frances Slade challenges the sufficiency of the evidence to convict her under Sec. 3008(d)(1) of RCRA, which penalizes, "Any person who ... (1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this subchapter....". (Emphasis supplied). She contends that the evidence was insufficient to prove that her actions on behalf of MacDonald & Watson were taken with knowledge that the material involved was a RCRA hazardous waste. She complains that the prosecution relied "exclusively" on the testimony of the Estate's lawyer, Deborah Shadd, who dealt with Slade and sent her the contract covering transportation and disposal of the Master Chemical waste. This evidence, Slade contends, does not establish that Slade actually reviewed the contract and specifications, or would have learned from these the specific nature of the contaminated soil. Further, she argues that neither the contract nor the attached specifications identified the contaminating substance as commercially pure toluene.

We disagree that the evidence was insufficient for the jury to infer Slade's knowledge concerning soil contaminated with commercial chemical product toluene, the hazardous waste charged. There was testimony from a former MacDonald & Watson employee that Slade was "in charge of material coming in and coming out of MacDonald & Watson to Narragansett Improvement." There was evidence that Slade had attended state compliance inspections. The jury could infer that she was knowledgeable as to what substances were allowed, and what were disallowed under NIC's permit. It could also infer from her responsibilities and her dealings with Deborah Shadd that she reviewed the contract and specifications Shadd sent to her, and learned therefrom the nature of the substance. Attorney Shadd's May 29, 1986, letter of transmission to Slade requested her to "review the enclosed agreement, particularly the first four pages," and then arrange for it to be signed before a Notary Public by an authorized representative of MacDonald & Watson. Shadd's letter to Slade also requested her to send copies of MacDonald & Watson's licenses to transport and dispose of hazardous waste, further indicating that hazardous waste was involved and that the question of legality and a proper permit was critical. The first page of the enclosed agreement recited that the contractor "agrees to remove and dispose of contaminated soil and toluene," and would do so "in accordance with all applicable federal, state, and local laws, regulations, and requirements." The specifications attached stated that soil "contaminated with toluene and lesser amounts of other volatile organic compounds has been identified ... at the site of a formerly existing 2,000 gallon underground storage tank used for the storage of toluene." (Emphasis supplied.) Clearly, Slade was on notice that more than a mere petroleum by-product was involved. The specifications also conditioned disposal of the contaminated soil at MacDonald & Watson's facility upon soil characteristics meeting "criteria for disposal at this facility." The jury could reasonably infer that Slade received Shadd's letter and the enclosed contract, and followed Shadd's directions, including her directions to review it, especially since the contract was thereafter executed by the firm's controller, Naples, who returned it to Shadd. We find the evidence sufficient, therefore, for the jury to have inferred that Slade knew the material was the hazardous waste in question.4

Ritarossi contends that the evidence was insufficient to prove that he either knew that the material shipped to NIC was subject to RCRA regulation as toluene-contaminated soil or to prove he knew the substance and limitations of NIC's permit. However, Ritarossi could be found to have signed several of the "Authorization to Accept Shipment" forms which describes the "spilled material" as toluene and provides "toluene and gravel" as the "Description of petroleum product spilled and material spilled into." Joseph Weinman (son of Moses Weinman) testified that he discussed the circumstances surrounding the leaking toluene tank with Ritarossi during excavation of the tank. Moreover, a GZA environmental consultant testified that he asked Ritarossi to include options in MacDonald & Watson's bid both for disposal at MacDonald & Watson's facility and for disposal at an out-of-state RCRA secure landfill because the consultant did not know whether MacDonald & Watson had the proper permits to dispose of the material at their facility. We find sufficient evidence from which the jury could determine that Ritarossi knew the material was toluene-contaminated soil and also to infer that he either knew that NIC's permit did not permit acceptance of such material or, at very least, willfully failed to determine the material's status under NIC's permit. Infra.

D'Allesandro and NIC contend that the evidence was insufficient to support their convictions. D'Allesandro was the manager and principal of MacDonald & Watson. There was evidence that he participated actively in the firm's day-to-day management, and that he had been warned on other occasions that his company had disposed of toluene-contaminated soil and that this was illegal. There was no direct evidence, however, of his knowledge of the particular shipments at issue. Since we vacate his conviction because of fundamental defects in the court's jury instructions, see infra, we do not reach the question of evidentiary sufficiency in his case.

NIC contends that the evidence was insufficient to support its conviction for the crimes of its purported agents. "A corporation may be convicted for the criminal acts of its agents, under a theory of respondeat superior ... where the agent is acting within the scope of employment." United States v. Cincotta, 689 F.2d 238, 241-42 (1st Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982); United States v. Gold, 743 F.2d 800, 822-23 (11th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).5 NIC denies that either D'Allesandro or two other MacDonald & Watson clerical employees, Giagio Cefala and Brenda Santaniello, were NIC's agents for purposes of imposing criminal liability. We do not reach this question, however, since even assuming all or some of these three MacDonald & Watson employees were agents of NIC, NIC's convictions cannot stand given our determination that D'Allesandro, one of the three, was improperly convicted. We are unable to tell what part the finding of D'Allesandro's guilt played in the jury's determination of NIC's guilt. It is at least conceivable that, without finding D'Allesandro guilty, the jury would have acquitted NIC. Further, while the government proffered evidence that Santaniello signed the name of NIC's president to the waste manifests for the Master Chemical project and received the Authorization to Accept Shipment, the government's evidence of Santaniello's involvement in all elements of the crimes charged to NIC under RCRA, 42 U.S.C. Sec. 6928(d)(2)(A) and CERCLA, 42 U.S.C. Sec. 9603(b)(3) was slight. Indeed, the government did not contend that Santaniello, a clerical employee, was "in charge" of the facility within the meaning of the CERCLA provision. See United States v. Carr, 880 F.2d 1550, 1554 (2d Cir.1989) (term "person in charge" does not extend to every person who might have knowledge of release, but only to supervisory personnel who occupy positions of responsibility and power); United States v. Greer, 850 F.2d 1447, 1453 (11th Cir.1988). In any case, given our uncertainty as to D'Allesandro's role in NIC's convictions, they must be vacated.

Appellants contend that the district court lacked jurisdiction over Counts One and Two, which charged violations of criminal provisions within RCRA, Sec. 3008(d), 42 U.S.C. Sec. 6928(d)(1) and (2).6 Appellants rely on the RCRA provision which allows the United States Environmental Protection Agency ("EPA") Administrator to authorize a state to administer and enforce a hazardous waste program under RCRA Subtitle C, Sec. 3006, 42 U.S.C. Sec. 6926.7 They argue that Rhode Island's authorized state program8 displaced the federal program, leaving no federal crime and ousting the federal court of jurisdiction. Appellants emphasize the statutory language which authorizes the state to carry out its program in lieu of the federal program, and to issue and enforce permits. Appellants argue that, after state program approval, permits issued by the state are to be criminally as well as civilly enforced by the state alone, under EPA-scrutinized state law. They note that pursuant to 42 U.S.C. Sec. 6926(e), whenever the state fails to administer and enforce a state program in accordance with federal standards, the state authorization may be withdrawn and a federal program reinstated.

The linchpin of appellants' argument is that the term "program" in Sec. 6926 incorporates the exclusive responsibility to enforce criminal provisions penalizing the disposal of hazardous wastes. See Wyckoff Co. v. Environmental Protection Agency, 796 F.2d 1197, 1199-1200 (9th Cir.1986) (rejecting argument that Congress intended to revoke EPA's power to issue orders under 42 U.S.C. Sec. 3013 when state program is in effect). Appellants urge that criminal enforcement logically falls within the meaning of "program" just as do the regulatory and permitting provisions which are, with certain explicit reservations, generally part of the federal program that is displaced (not merely supplemented) by authorized state programs. See 40 C.F.R. Sec. 264.1(f) (1990) (exempting persons who treat, store or dispose of a hazardous waste in a state with an approved RCRA hazardous waste program from the scope of Part 264 federal regulations); 42 U.S.C. Secs. 6925, 6927 (providing alternatively for EPA issuance of permits and inspections where state programs have not been authorized, or state issuance of permits and inspections where state programs have been authorized).

We find no merit in the above contention. The language of the challenged federal criminal provision, 42 U.S.C. Sec. 6928(d), does not limit prosecutions thereunder to those who deal with facilities lacking a federal permit. The statute criminalizes "Any person" who acts without, or in respect to facilities lacking, "a permit under this subchapter." A permit under this subchapter is one issued by the Administrator of the EPA or by an authorized state. 42 U.S.C. Sec. 6925.

That Sec. 6928(d), and companion federal criminal provisions, are meant to apply within states having authorized programs is amply supported by the legislative history. Prior to the 1984 RCRA Amendments--when, as today, RCRA provided for state programs which, when federally approved, would be carried out "in lieu" of the federal program, and which authorized the state to issue and enforce permits--the federal penal statute preceding Sec. 6928(d) was worded so as to apply in so many words to violations both of federal and state permitting programs. Thus, the earlier version provided:

Any person who knowingly--

(1) transports any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under section 3005 of this title (or section 3006 of this title in case of a State program), ...

shall, upon conviction, be subject to a fine of not more than $25,000 for each day of violation, or to imprisonment not to exceed one year, or both.

Resource Conservation and Recovery Act of 1976, Pub.L. No. 94-580, Sec. 3008(d)(1), 90 Stat. 2795, 2812; 42 U.S.C. Sec. 6928(d)(1). The 1984 amendments increased the applicable criminal penalties and simply substituted "under this subchapter" for the references to the specific subsections under which permits, federal and state, may be granted.9 The new language, "without a permit under this subchapter," subsumed both state and federal permits, as both types are provided for within "this subchapter." The latter did not, therefore, in any way narrow the scope of federal criminal jurisdiction. Nor did the legislative record hint at any intention by Congress to narrow the scope of federal criminal jurisdiction. To the contrary, Congress manifested its desire to retain a strong federal presence. H.R.Conf.Rep. No. 98-1133, 98th Cong., 2d Sess., October 3, 1984 at 110, reprinted in 1984 U.S.Code Cong. & Admin.News 5681; S.Rep. No. 98-284, 98th Cong., 1st Sess., October 28, 1983 at 45 ("The Federal government's ability to obtain criminal penalties against generators and other persons who knowingly cause the transportation of hazardous waste to an unpermitted facility is essential to the regulatory scheme.") Had Congress intended to impose a hitherto unknown limitation upon the scope of its laws criminalizing permit violations, its intentions would surely have been manifested; for example, Sec. 6928(d) would have been reworded to indicate that it applied only to persons in states lacking an authorized state program.

Appellants' reliance upon Congressional reports discussing state takeover and enforcement of the RCRA hazardous waste program is misplaced. These reports, like the statute itself, simply do not focus upon whether "program" was intended to carry with it the exclusive right to engage in criminal enforcement. See, e.g., H.R.Rep. No. 94-1491, 94th Cong., 2d Sess. 24, pt. 1, reprinted in 1976 U.S.Code Cong. & Admin.News 6238, 6262 ("It is the Committee's intention that the States are to have primary enforcement authority and if at anytime (sic) a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the Federal minimum requirements for both administering and enforcing the law.") (Emphasis supplied).

Appellants contend there is significance in the absence from the federal criminal statute of the notice requirement found in RCRA civil enforcement Sec. 3008(a). Section 3008(a) authorizes the Administrator of EPA to bring a civil action in United States district court for RCRA violations, and specifically provides,

[i]n the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 3006 of this title, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.

RCRA Sec. 3008(a)(2). In Sec. 3008(d), there is no specific reference to alternative enforcement by state or federal authorities or to notice in the case of federal enforcement in RCRA-authorized states. Appellants argue that federal criminal enforcement would warrant notice to the authorized state to a greater extent than civil enforcement, and that the absence of such a notice provision for criminal cases indicates that Congress intended no federal criminal enforcement in authorized states. It is apparent from the legislative history, however, that Sec. 6928(a) is directed at obtaining rapid compliance, and notice prior to federal intervention is therefore significant for reasons not applicable to criminal enforcement, which is directed toward after-the-fact penalties. See S.Rep. No. 96-172, 96th Cong., 2d Sess. 4, reprinted in 1980 U.S.Code Cong. & Admin.News 5019, 5022 ("1980 Senate Report") ("This section also amends section 3008 to authorize the Administrator to act against violations before a 30-day period has elapsed. This provision is aimed at stopping so-called 'midnight dumping' which may not continue at any location for more than 30 days, and to seek penalties for single occurrences, rather than just continuing offenses."). The statutory differences, therefore, can be explained on grounds having nothing to do with a purported cancellation of federal criminal jurisdiction.

MacDonald & Watson, D'Allesandro, Slade and Ritarossi were convicted of knowingly transporting, or causing the transportation of hazardous waste, i.e., toluene-contaminated soil, to a facility which does not have a permit, under 42 U.S.C. Sec. 6928(d)(1). See note 6, supra. MacDonald & Watson and NIC were convicted of knowingly treating, storing and disposing of a hazardous waste without a permit, under Sec. 6928(d)(2)(A). See note 6, supra. They now argue that their convictions were illegal because NIC did in fact have a Rhode Island RCRA permit, albeit one that did not allow disposal into its facility of toluene-contaminated soil. NIC's permit, instead, authorized acceptance of liquid RCRA hazardous wastes and non-hazardous solids, such as petroleum-contaminated solid materials. While NIC's permit, therefore, provided no authority to dispose of the hazardous waste in question, appellants contend they did not violate either prong of Sec. 6928(d) because the statute only penalizes transportation "to a facility which does not have a permit under this subchapter," and disposal "without a permit under this subchapter."

We find this argument entirely unpersuasive. Subsections (d)(1) and (d)(2)(A) both penalize unpermitted transportation and disposal of "any hazardous waste identified or listed under this subchapter" (emphasis supplied), thus embracing the hundreds of different noxious substances described and listed in EPA regulations. See 40 C.F.R. Subparts C and D (1990). As these toxic wastes vary enormously in levels of toxicity and other characteristics, they require different kinds of facilities for safe disposal. In order to channel each waste to a proper disposal facility, Congress established a system of permits, with each permit indicating what wastes that particular facility may legally accept. Thus the statutory phrase "which does not have a permit" naturally conveys the meaning: "which does not have a permit for that substance." Having a permit for some different substance would frequently offer no more protection to the public than having no permit at all. Just as a deer hunting license does not imply a license to hunt duck, a facility "which does not have a permit" clearly implies, in this context, a facility which does not have a relevant permit. Any other construction would ignore the central object of the permit program, which is to limit the disposal of any given waste to an appropriate facility. It is well accepted that,

criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose. (Citing cases.)

United States v. Johnson & Towers, Inc., 741 F.2d 662, 666 (4th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1171, 84 L.Ed.2d 321 (1985). RCRA is a public welfare statute "enacted to protect the national health and environment," Wycoff Co. v. E.P.A., 796 F.2d 1197, 1198 (9th Cir.1986), and to provide "nationwide protection against the dangers of improper hazardous waste disposal." H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S.Code Cong. & Admin.News 6238, 6249 (hereinafter, "1976 House Report"). See also United States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990) ("The overriding concern of RCRA is the grave danger to people and the environment from hazardous wastes.")

To construe subsection (d)(1) and subsection (d)(2)(A) as appellants urge would not only involve reading the word "permit" abnormally (i.e., as meaning an irrelevant permit as well as a relevant one),10 but would significantly weaken the protection against the danger that most concerned Congress, namely the improper disposal of toxic wastes. See generally United States v. Park, 421 U.S. 658, 672-73, 95 S.Ct. 1903, 1911-12, 44 L.Ed.2d 489 (1975); United States v. Dotterweich, 320 U.S. 277, 280-81, 64 S.Ct. 134, 136-37, 88 L.Ed. 48 (1943).

Appellants contend that their strained construction of the word "permit" is needed to protect innocent transporters and facility operators. Especially under Sec. 6928(d)(1) which pertains to transporters, they suggest that Congress did not intend to impose criminal penalties on persons who lack responsibility to identify the wastes or designate the facility that will receive them. For this reason, they contend, it is necessary to limit criminal liability to just those transporters who violate "a responsibility that is unambiguously theirs: They may not deliver hazardous wastes to facilities that are outside the RCRA permitting, inspection and reporting system." In other words, so long as a permit of some type exists, the transporter's duty has been correctly fulfilled. Appellants expand this theory into the notion that Congress wanted a "calibrated" system of punishments, limiting the heavy criminal penalties of Sec. 6928(d)(1) to transporters who, like "midnight dumpers," transport hazardous waste to unpermitted disposal sites, and leaving all other violations to the civil enforcement machinery.

While appellants weave an ingenious argument, we find little in the legislative history to suggest that Congress had this restrictive reading of Sec. 6928(d)(1) in mind. To the contrary, when Congress added "or causes to be transported" to subsection (d)(1), the House Report indicated plainly that generators, at least, would be liable under that statute for the improper transportation and disposal of waste:

This provision clarifies the criminal liability of generators of hazardous waste who knowingly cause the waste to be transported to an unpermitted facility. Because the generator is in the best position to know the nature of his waste material, the regulatory scheme established by RCRA places a duty on the generator in the first instance to make arrangements to transport and dispose of his waste properly. EPA's ability to obtain criminal penalties against generators who knowingly cause the transportation of hazardous waste to an unpermitted facility is essential to the regulatory scheme.

H.R.Rep. No. 198, 98th Cong., 2d Sess. 54, pt. 1, reprinted in 1984 U.S.Code Cong. & Admin.News 5576, 5613 (emphasis added) (hereinafter "1984 House Report"). The underscored language is inconsistent with the argument that subsection (d)(1) requires no more than an irrelevant permit, since such a permit would not ensure the making of arrangements to transport and dispose of waste properly. As subsection (d)(1) itself makes no distinction between defendants who are generators, as such, and those who are transporters, it follows that subsection (d)(1) contemplates arrangements in all cases for proper waste disposition, i.e., a proper permit, not merely some type of permit.

Appellants' argument indirectly raises an interesting issue not actually before us: namely, whether "knowingly" in subsection (d)(1) not only requires knowledge as to the nature of the hazardous waste being transported, but also knowledge of the facility's permit status, i.e., that the facility lacked a proper permit. The district court here instructed the jury that, to convict under subsection (d)(1), it had to find that defendants knew that NIC lacked a proper permit authorizing it to treat, store or dispose of this type of hazardous waste, or else must find that defendants willfully failed to determine whether NIC did or did not have such a permit. This instruction, both on the need for knowledge and on "willful failure" to determine permit status, is consistent with the Eleventh Circuit's holding in United States v. Hayes International Corporation, 786 F.2d 1499, 1503-05 (11th Cir.1986). Obviously, if a conviction under subsection (d)(1) requires that a defendant know, or be willfully indifferent to, the facility's lack of a proper permit, this would eliminate the danger of convicting some hypothetical transporter who lacked information that the disposal facility was without the proper license. Thus, under the given instruction, most of the concerns appellants now raise are beside the point. The correctness of this part of the court's instruction is not, however, before us, and we need not, and do not, decide now whether, as charged, the knowledge requirement under subsection (d)(1) extended to the facility's permit status. As an initial matter, however, we find much to be said for the district court's position.

In arguing that "without a permit" means "entirely without a permit," appellants do not limit themselves to subsection (d)(1). In respect to the subsection (d)(2) conviction against MacDonald & Watson and NIC, appellants also urge that the words "knowingly treats, stores, or disposes of any hazardous waste ... without a permit" are confined to facilities lacking in any sort of RCRA hazardous waste permit. They make this argument even though persons who treat, store, or dispose of hazardous wastes will obviously be better positioned than at least some transporters to know what materials a particular permit covers.11

Appellants make much of the fact that subsections (d)(2)(A) and (B) explicitly distinguish between treatment, storage and disposal "without" a permit and treatment, storage and disposal "in knowing violation of any material condition or requirement" of a permit. See note 6, supra. Appellants argue that interpreting subsection (d)(2)(A) to penalize handling any hazardous waste not authorized in a facility's existing permit would emasculate subsection (d)(2)(B), rendering it superfluous. Appellants contend that RCRA originally criminalized only hazardous waste transportation to a facility without a permit and disposal without a permit. Pub.L. No. 94-580, 90 Stat. 2795, 2812. In 1978, Congress amended subsection (d)(2) to include treatment and storage. In 1980, Congress added subsection (d)(2)(B) concerning permit violations to "eliminate ambiguity [regarding "whether a violation of a permit condition constitutes a criminal violation"] by providing explicit penalties for knowingly failing to comply with a material condition of the permit." 1980 Senate Report at 36-37, 1980 U.S.Code Cong. & Admin.News 5036. Appellants find significance in the fact that Congress declined to make a similar change in 1980 to subsection (d)(1) to criminalize transportation to a disposal facility where receipt of the hazardous waste in question is "in violation" of a permit "condition or requirement," leaving subsections (d)(1) and (d)(2)(A) limited to cases where the facility had no permit at all.

We find little force in arguments such as the above.

First, there is nothing to the contention that construing subsection (d)(2)(A) as penalizing disposal without a relevant permit renders subsection (d)(2)(B) surplus. The latter penalizes treatment, storage and disposal "in knowing violation of any material condition or requirement" of a permit. The words "permit condition" and "permit requirement" as used in the EPA's regulations describe a vast array of collateral obligations imposed when wastes are stored at permitted facilities, such as the duty to operate and maintain properly all required treatment and control systems, to maintain proper records, to monitor and sample site conditions, and so on. See, e.g., 40 C.F.R. Sec. 280.30 and Sec. 270.31. Depending on the kind of waste authorized to be stored under the permit, conditions are imposed that form part of the permit: for example, that waste be stored on a concrete pad surrounded by a containment berm, or that mutually reactive wastes not be stored in t