United States v. Michael Robert Speach

968 F.2d 795 35 ERC 1325 , 60 USLW 2651 , 61 USLW 2056, 22 Envtl. L. Rep. [PG21,498 UNITED STATES of America, Plaintiff-Appellee, v. Michael Robert SPEACH, Defendant-Appellant. No. 90-50708. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 3, 1991. Decided March 20, 1992. Withdrawn May 11, 1992. Filed June 29, 1992. Lupe Martinez, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. Gary S. Lincenberg, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: PREGERSON, CANBY, and RYMER, Circuit Judges. CANBY, Circuit Judge: 1 Michael Robert Speach appeals his conviction on four counts of unlawful transport of hazardous waste, in violation of (d)(1). We reverse. BACKGROUND 2 Speach was the president of ENV, Inc., a company that operated vans equipped to treat waste effluent discharged from electroplating generators. The treatment process created a hazardous waste by-product, which ENV stored at its facility at Rancho Dominguez, California. ENV thereafter shipped this waste to Monarch Milling Company's site in Austin, Nevada. Both facilities…

Michael Robert Speach appeals his conviction on four counts of unlawful transport of hazardous waste, in violation of 42 U.S.C. § 6928 (d)(1). We reverse.

BACKGROUND

Speach was the president of ENV, Inc., a company that operated vans equipped to treat waste effluent discharged from electroplating generators. The treatment process created a hazardous waste by-product, which ENV stored at its facility at Rancho Dominguez, California. ENV thereafter shipped this waste to Monarch Milling Company’s site in Austin, Nevada. Both facilities lacked the storage permits required by the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6987 .

A federal grand jury indicted Speach on eleven counts of unlawful storage of hazardous waste, in violation of 42 U.S.C. § 6928 (d)(2)(A), and four counts of unlawful transportation of hazardous waste, in violation of 42 U.S.C. § 6928 (d)(1). Following a jury trial, Speach was convicted on all counts. On appeal, he challenges only his convictions for unlawful transportation.

DISCUSSION

A person violates 42 U.S.C. § 6928 (d)(1) if he “knowingly transports or causes to be transported any hazardous waste identified or listed under…

dissenting:

While the majority’s approach is tempting, I am constrained to dissent because of the analysis of a parallel clause we adopted in United States v. Hoflin, 880 F.2d 1033 (9th Cir.1989), cert. denied, 493 U.S. 1083 , 110 S.Ct. 1143 , 107 L.Ed.2d 1047 (1990).

42 U.S.C. § 6928 (d)(1) states that a person will be subject to criminal penalties if he “knowingly transports or causes to be transported any hazardous waste ... to a facility which does not have a permit.”

In Hoflin , we addressed the scienter requirement in § 6928(d)(2)(A)-(B), which imposes criminal liability on any person who

We held that knowledge of a lack of a permit is not an element of the offense under § 6928(d)(2)(A). See Hoflin, 880 F.2d at 1038-39 . In reaching this result, we relied on the plain language of the statute itself, see id. at 1037-38 , concluding that it is clear on its face that knowledge is not a requisite element under subsection (A), but that it is a requisite element under subsection (B). We declined to write a knowledge requirement into subsection (A) when Congress chose not to do so. Id.

We also rejected the argument that a knowledge requirement must be read into the statute so…