Creative Lawyering In RCRA Criminal Action Fails to Find Favor with the Ninth Circuit

The Resource Conservation and Recovery Act, the federal law that regulates management of hazardous waste, is complicated and compliance can be tricky . . . but not impossible.  Our experience is that good faith efforts to comply will avoid serious regulatory problems.  A recent decision by the Ninth Circuit proves that the converse is true as well and that the courts will sniff out attempts at evasion.

In U.S. v. Roach,  the Ninth Circuit rejected a criminal defendant’s effort to avoid conviction for “storing” hazardous waste without a permit by arguing he had in fact been “disposing” of it because the barrels of waste were leaking.  In the alternative, he argued he had “disposed” of the barrels when he abandoned the building in which they had been stored.  In support he cited a 2013 decision of the Circuit, U.S. v. Humphries, that held that disposal and storage were two different crimes, and a person cannot be convicted of storing a waste after he has disposed of it.

The court affirmed Roach’s conviction, holding that, whatever the merits of his argument about leaking barrels, his conviction was based on five barrels that were sealed and not leaking.  On the alternative argument, the court held that while he may have left the barrels behind, they were not abandoned – they were in the same building they had always been in, which was owned by a third party, so all he had done was transfer custody to an innocent party. His argument was not helped by the fact that he had stipulated at trial and admitted at oral argument that he had been storing the waste without a permit prior to the time charged in the indictment.  To accept his argument that the abandonment transformed his behavior from storage to disposal, the court held, would render the term “storage” meaningless. A triumph for common sense in the tangled jungle of environmental law.