Thursday, July 9, 2015
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Ninth Circuit Upholds Conviction in Burbank Hazmat Case
Panel Rejects Defendant’s Claim That ‘Disposal’ of Waste Was Not ‘Storage’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction of a former Burbank businessman on charges that he illegally stored hazardous waste at his company’s place of business.
The panel rejected Robert Roach’s claim that the statute he was found guilty of violating, 42 U.S.C. §6928(d)(2)(A) of the Resource Conservation and Recovery Act, did not apply because the conduct of which he was conviction constituted “disposal” of hazardous waste, rather than storage.
U.S. District Judge Philip S. Gutierrez, following a bench trial, found Roach guilty and sentenced him to a year and a day in custody. The government presented evidence that Roach was an owner, officer, and director of All Metals Processing Company and was involved in hazardous waste management at the company’s electroplating facility.
Witnesses testified that the company had a “drum storage area” at the Burbank facility, containing hundreds of receptacles filled with potentially hazardous materials, but that it did not have a waste storage permit during the 17 years preceding its 2007 eviction for failure to pay rent.
Although the company and its landlord stipulated during their unlawful detainer litigation that AMP would “remove toxic material from” and clean up the premises by a specified date, the landlord discovered upon taking possession that a large number of barrels, some of which were corroded and others of which were sealed, had been left behind.
The county fire department sent a hazardous materials specialist to examine the property, and the U.S. Environmental Protection Agency later sent in an inspector as well. The found numerous receptacles containing waste, some of which were leaking, and testing of substances found in closed containers found hazardous concentrations of toxic materials.
The EPA ultimately emptied and demolished the building, and in February of the following year, Roach and one other defendant were indicted.
On appeal from his conviction and sentence, Roach argued that he did not violate, or conspire to violate, §6928(d)(2)(A) because the RCRA defines “storage” as “the containment of hazardous waste…in such a manner as not to constitute disposal of such hazardous waste, while defining “disposal” as the “discharge, deposit, injection, dumping, spilling, leaking, or placing of any…hazardous waste into or on any land or water….”
But Senior U.S. District Judge Edward R. Korman of the Eastern District of New York, sitting by designation on the Ninth Circuit panel, said Roach was plainly guilty of the charged offense because he conceded that he knowingly stored hazardous waste without a permit.
The conviction, Korman noted, “was based solely on the hazardous waste contained in five containers that were sealed and were not leaking.”
Although a defendant cannot, as a matter of common sense, be guilty of storing waste after he has disposed of it, Korman wrote, the leakage of waste from some barrels will not preclude the defendant’s conviction of storing waste in other, completely contained, barrels.
“Even accepting Roach’s argument based on the technical definitions of ‘storage’ and ‘disposal’ contained in the RCRA, he was clearly engaged in storing hazardous waste in
the sealed and intact containers left in the premises….Thus, it is not necessary for us to resolve the issue whether, if he had been so charged, Roach could not have been found guilty of both storage and disposal of the containers that were leaking.”
Korman also rejected the argument that Roach did not, within the meaning of the statute, store the containers because he had abandoned them.
“While Roach may have abandoned the premises in which the containers were stored, the containers were not abandoned,” the judge wrote. “They continued to be stored in the same building in which they had always been housed.”
Citing Roach’s violation of the stipulated judgment requiring him to remove toxic materials from the building, Korman said “Roach’s ‘abandonment,’ in effect, merely transferred custody of the storage containers to his former landlord.”
Chief Judge Sidney R. Thomas and Judge Consuelo M. Callahan joined in the opinion.
Lawrence Jay Litman argued the appeal for the defendant and Assistant U.S. Attorney Heather C. Gorman argued for the government.
The case is United States v. Roach, 14-50260.
Copyright 2015, Metropolitan News Company