Appeal from the United States District Court for the Eastern District of Pennsylvania (Crim. No. 03-cr-00110). District Judge: Hon. Berle M. Schiller.
The opinion of the court was delivered by: McKEE, Circuit Judge.
Argued: November 18, 2004
Before: SCIRICA, Chief Judge, and McKEE and CHERTOFF,*fn1 Circuit Judges
We are asked to review the district court's grant of the defendant's motion for judgment of acquittal on Count Three of an indictment charging Gary Wasserson with causing, and aiding and abetting, the disposal of hazardous waste without a permit in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d)(2)(A) and 18 U.S.C. § 2. For the reasons that follow, we will reverse.
Gary Wasserson was the president and chief executive officer of Sterling Supply Company, located in Philadelphia, Pennsylvania. Sterling supplied commercial laundry and dry cleaning products to dry cleaning establishments in Philadelphia, Pennsylvania, Virginia Beach, Virginia, and Hanover, Maryland. Sterling had a warehouse in Philadelphia where it stored cleaning products consisting of cleaners, soaps and detergents, as well as equipment and business records. When Sterling went out of business in 1994, the warehouse contained hundreds of containers of chemicals, including napthene, acetone and perchloroethylene.
After Wasserson closed Sterling in 1994, he began selling off remaining inventory. In 1999, Wasserson met with Samuel Graboyes. Sterling had sold Graboyes dry cleaning supplies in 1995, and Wasserson offered to give Graboyes some of the remaining supplies free of charge. Graboyes declined the offer and told Wasserson to contact a hazardous waste hauling company to dispose of the remaining supplies. Wasserson replied by telling Graboyes that he had already contacted such companies, but that it was costly to have them dispose of the remaining inventory.
Charles Hughes was a Sterling employee from 1980 through 1994. His job involved transporting Sterling's inventory and products, first in a box truck and later in a tractor-trailer. After 1994, Wasserson worked for another company in northern New Jersey and Hughes worked as a driver for him at that company. Wasserson claimed that he put Hughes in charge of Sterling's warehouse and that he (Wasserson) rarely visited it.
According to the government, in August of 1999, Wasserson asked Hughes to hire someone to remove the remaining materials at Sterling's warehouse. The material included scrap metal, wooden pallets, debris and hundreds of containers of chemicals. The government further claimed that Hughes had no experience in transporting or disposing of hazardous waste and no knowledge of the Resource Conservation and Recovery Act ("RCRA") which we will discuss below. In response to Wasserson's request, Hughes consulted the yellow pages and found a company named, "Davis Rubbish Removal" under the heading, "Rubbish & Garbage Removal." Hughes then proceeded to contact Charles Davis, a rubbish removal contractor who had no environmental experience. The government claims that Wasserson never communicated directly with Davis about the removal. Rather, Wasserson telephoned Davis's receptionist and dictated a contract. That contract gave Davis responsibility for properly disposing of the chemicals at a "legal dumpsite." In turn, Davis hired a disposal company called, "Will-Haul, Inc.," to provide dumpsters, remove them once filled, and dispose of their contents.
Wasserson admits that he called Hughes in August of 1999, but claims that he instructed Hughes to have all of the trash (file cabinets, paper, wooden pallets, and equipment) removed from certain parts of the warehouse in preparation for a potential tenant. Hughes testified that both he and Wasserson intended that Hughes remove only the trash and not any of the chemical products that were stored in the warehouse. Wasserson conceded that Hughes contacted Davis Rubbish Removal, but claimed not to know how Hughes selected Davis.
Hughes testified that when Davis visited the warehouse in late August of 1999 to inspect the trash removal job, he inquired about the steel racks where the drums of cleaners and chemicals were stored. Hughes purportedly told Davis that the drums and the racks were not part of the job because the drums held chemicals. Hughes testified that Davis volunteered the fact that he had experience in disposing of such materials: "we've done this dozens of times, we do this all the time." Hughes replied: "this might be something that Mr. Wasserson would be interested in at this point to clean the whole warehouse out versus just the trash."
Davis telephoned Hughes shortly afterwards with an estimate for the work. That estimate was originally $14,500, but was later reduced to $13,000. According to Wasserson, Davis stood to collect $14,000 or more from selling the large amount of scrap metal, which included stainless steel, brass, copper and cast iron. However, Davis testified that he factored the resale price of the scrap metal into his estimate.
Hughes telephoned Wasserson and told him that Davis was willing to remove the hazardous waste as well as the trash, that Davis said he would handle the waste properly, and that Davis said he had "been doing this for year[s]." Wasserson claimed to have told Hughes that Davis could only remove the waste if it would be handled properly. Wasserson purportedly insisted that this requirement be put in writing.
Davis's secretary, Ethel Briscoe, testified that Wasserson called Davis's office before the work began to ensure that the contract contained language requiring that the waste be properly handled. According to Briscoe, Wasserson dictated the following for inclusion in the contract: "Remove all scrap metal, debris, trash and pallets throughout building. Remove all chemicals to legal dumpsite. Davis Rubbish Removal will take full responsibility for job." Briscoe signed the contract on behalf of Davis.
Davis then arranged to have empty dumpsters delivered to the warehouse. Davis planned to fill them with trash and hazardous waste and send them to the Girard Point Transfer Station, a municipal solid waste transfer station in Philadelphia. However, the first dumpster that was to be used contained a sticker that read, "No Hazardous Chemicals." Since Davis knew that the drums contained hazardous waste, he contacted a different company, "Will-Haul, Inc.," which delivered dumpsters that did not contain any such stickers. Davis testified that he told Will-Haul's proprietor, Carlos Rivera, about the hazardous nature of the cleaners and chemicals, and that Rivera agreed to take them. Rivera testified that has been in the waste business for 31 years.
Hughes helped Davis load the drums and trash into the dumpsters, while Davis and his employees focused on collecting the scrap metal. Hughes, believing that the drums were being transported to a location where they would be sorted and transferred to their ultimate destinations, shrink-wrapped them to avoid leaks and spills. Hughes kept drums that were not in pristine condition. Hughes left labels on the drums that bore the Sterling name and address and disclosed their contents.
On September 7, 1999, Rivera picked up a dumpster at Sterling's warehouse that contained hazardous waste and transported it to the Girard Point Transfer Station. However, when Rivera dumped the load onto the floor at Girard Point he saw the drums containing hazardous materials. Rivera knew the drums could not be accepted at the transfer station. Indeed, he had told Davis that he would not accept drums. However, the transfer station operator loaded the drums into a landfill-bound truck. The contents of the dumpster were commingled with other trash, loaded into a container and transported to Modern Landfill, a solid waste landfill in York, Pennsylvania, that did not have a permit to receive hazardous waste.
When the container was unloaded at the landfill, employees recognized an organic, paint-like odor coming from containers with Sterling labels on them. Landfill employees immediately shut down the affected part of the landfill and isolated the area. Thereafter, environmental specialists discovered that the drums were filled with hazardous waste.
Later that same day, a representative from the Pennsylvania Department of Environmental Protection ("PaDEP") arrived at Sterling's warehouse and alerted Hughes to the problem. Wasserson was contacted and arrived at the warehouse later that evening. Wasserson claimed that because most of the chemical drums had never left the warehouse, he personally undertook to have them properly removed from the premises.
According to the government, neither Wasserson nor Hughes, his representative, provided Davis or Will-Hall with the required hazardous waste manifest identifying the items for disposal. Similarly, no one informed Davis or Will-Haul that the drums and containers contained hazardous waste and therefore had to be transported to, and disposed of at, a permitted facility pursuant to the RCRA. Neither Girard Point nor Modern Landfill had a hazardous waste permit. The government claimed that neither Wasserson nor Davis nor Will-Hall complied with the RCRA. According to the government, that Act requires that persons possessing hazardous waste must prepare a manifest identifying the waste, properly transport the waste to a RCRA-permitted hazardous waste disposal facility, and dispose of the waste only at such a facility.
At trial, Wasserson stipulated that he knew that a manifest must accompany hazardous waste when shipped for disposal; that a facility that receives the hazardous waste must have a permit; and that hazardous waste may properly be disposed of only at a facility that has obtained a permit from either the Environmental Protection Agency or the Commonwealth of Pennsylvania.*fn2 Wasserson also stipulated that he knew that the materials being disposed of were hazardous wastes.
II. DISTRICT COURT PROCEEDINGS
Wasserson was indicted by a federal grand jury and charged with three counts of violating the RCRA: causing, and aiding and abetting, the transportation of hazardous waste without a manifest, in violation of 42 U.S.C. § 6928(d)(5) and 18 U.S.C. § 2 (Count One); causing, and aiding and abetting, the transportation of hazardous waste to facilities which were not authorized to store or dispose of hazardous waste, in violation of 42 U.S.C. § 6928(d)(1) and 18 U.S.C. § 2 (Count Two); and causing, and aiding and ...