“Double Criminal Liability Under RCRA: An Analysis of United States v. Wasserson.”

Appearing in JNREL Vol. 21 No.1 this comment was written by former staff member Stephanie Vincent. The following abstract was written by current staff member Warren B. Wells.

When Congress passed the Resource Conservation and Recovery Act ("RCRA"), its main goal was to put in place legislation that could control hazardous wastes from creation to disposal, and to remove many of the dangers inherent in unregulated hazardous wastes. 42 U.S.C.A. § 6901 (2006). Section 6928(d) is the sanction provision of the RCRA, and it separates violations into transport and disposal violations.

In a recent decision of the Third Circuit, United States v. Wasserson, it was held that a generator of hazardous waste could be held liable under both the provision for disposal as well as the provision of transport, even if he did not dispose of it himself. United States v. Wasserson, 418 F.3d 225 (3rd Cir. 2005). This was on the theory that the generator "aided and abetted" the disposal.

Unlike the Third Circuit, the district court in Wasserson and the Ninth Circuit in Fiorillo held that a generator of hazardous waste could not be held liable for "aiding and abetting" the disposal. United States v. Fiorillo, 186 F.3d 1196 (9th Cir. 1999). The Wasserson district court and Fiorillo focused on the plain language of the sanction provision and found that there was a distinction between creating and shipping the waste and receiving and disposing of the waste. The district court was also uncomfortable with the possibility of a double jeopardy conviction, noting that "If a generator who did not actually dispose of the materials himself were able to be convicted under both subsection(s) . . . then he would be convicted twice for the same conduct." Wasserson, 2004 WL 433824 at *4.

Disregarding the district court's interpretation, the Third Circuit agreed with the government's contention that the sanction provisions of 6928(d) triggered "aiding and abetting" liability. The Third Circuit opened up the ability for the generator to be convicted of both the transport and the disposal of the waste, as long as he "aided and abetted" the disposal, no matter how little his involvement was. In doing so, the Third Circuit ignored the fact that only one act had taken place in the Wasserson case. Wasserson had the ability to dispose of the waste himself, but he did not, and hired a separate company to do that for him. Under the facts, there was no way for Wasserson to know that the disposal of the chemicals was being performed illegally.

In drafting the RCRA, Congress clearly had the ability to include a causation element both with respect to the creation and transport sanction and the disposal sanction. While it does include a causation element with respect to the former, it does not with the latter. If it had intended for hazardous waste generators to be convicted twice simply because they caused the hazardous waste to be created or transported, then Congress would have included the causation element in the disposal sanction as well. Due to the fact that Congress clearly chose not to punish twice for a single act, and the unfair convictions that would result from an "aiding and abetting" reading of the statute, when faced with this issue, future courts should follow decisions such as Fiorillo and the Wasserson district court and not allow for multiple convictions under the RCRA.