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Howrey LLP
Allen
Elias, owner of Evergreen Resources, a fertilizer company
located near Soda Springs, Idaho, has been sentenced to
17 years in prison for sending one of his workers to clean
a chemical storage tank without any protective equipment.
His sentence was affirmed by the 9th U.S. Circuit Court
of Appeal. U.S. v. Elias, 269 F.3d 1003 (2001).
The
storage tank, measuring 36 feet long and 11 feet high with
only a 22-inch manhole at the top, was used to store the
byproducts of a cyanide leaching process Elias had patented.
In 1996, Elias decided to clean out the tank and use it
as sulfuric acid storage. To do so, Elias on two successive
days ordered Scott Dominguez, along with three other workers,
to remove more than a foot of sludge that had hardened at
the bottom of the tank. The sludge was dumped onto the ground.
Despite
the workers' request, Elias failed to provide any safety
equipment for this task. Dominguez, who eventually entered
the tank wearing only his regular work clothes, collapsed
after he and the other workers had cleaned out about a third
of the sludge. Dominguez suffered severe respiratory distress.
Blood drawn from Dominguez revealed extremely toxic levels
of cyanide in his body. Elias denied any knowledge of cyanide
in the tank when questioned by the fire chief who oversaw
the rescue and by the doctor who was treating Dominguez.
Weeks after Dominguez was injured, Elias ordered another
employee to move and bury the same sludge, again without
safety precautions.
The
day Dominguez was injured Elias told investigators that
he had completed a confined space entry permit, but it was
"handwritten" and "not very formal."
He declined to provide the permit. Early the next morning,
Elias visited an acquaintance at a nearby company, Kerr-McGee
Corp., where he inquired about the requirements for confined
space entries and left with a copy of Kerr-McGee's safety
manual, which spelled out the requirements for a confined
space entry permit. Elias eventually provided investigators
with a permit, which stated that it was issued on the morning
Dominguez was injured.
Elias
was indicted on four federal counts. Count I charged Elias
with storing or disposing hazardous waste without a permit,
knowing that his action placed others in imminent danger
of death or serious bodily injury. Counts II and III charged
Elias with improper disposal of hazardous waste without
a permit. Count IV charged Elias with making material misstatements
relating to his confined space entry permit. The first three
counts involved 42 USC §6928, the Resource Conservation
and Recovery Act ("RCRA"); the fourth involved
18 USC §1001.
A
jury convicted Elias on all four counts. The U.S. District
Court in Idaho sentenced Elias to 17 years in prison and
ordered him to pay $6.3 million in restitution. Elias appealed,
arguing that Idaho law, not federal law, should apply for
environmental violations in Idaho because the Environmental
Protection Agency had approved Idaho's hazardous waste program.
Even if federal law did apply, Elias contended, the EPA
regulation defining reactive hazardous waste was so vague
that it deprived him of his constitutional right to fair
and adequate notice.
The
Court of Appeals concluded that the federal government "retains
both its criminal and its civil enforcement powers"
even if EPA has approved a state hazardous waste program.
What changes with EPA's approval of a state program is the
"definition of hazardous waste and the sovereign from
whom generators must obtain the necessary permit -- in this
case, Idaho."
The
court also rejected Elias' vagueness argument. In doing
so, the court reiterated the established law that persons
whose business involves the use, storage and disposal of
hazardous waste are presumed to know the perils of their
business. Hence, persons using cyanide are presumed to "know
how much cyanide, under certain conditions, may prove 'harmful
to human health or the environment.' " The court found
that because Elias' business involved the use, storage and
disposal of hazardous wastes, he should have known the dangers
of cyanide and that such knowledge is adequate notice under
the Constitution for what constitutes a reactive hazardous
waste.
The
court affirmed the 17-year prison term for Elias. Because
Congress had not authorized the imposition of restitution
for knowingly exposing a person to hazardous waste, it struck
down the District Court's order for $6.3 million in restitution.
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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-848-4996 or at paulberning@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2002 Howrey LLP
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