December 10, 2012

Category: Arkansas Environmental, Energy, and Water Law

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Author: Walter G. Wright A federal district judge in Colorado issued a November 29 Order addressing jury instructions for certain counts in an upcoming criminal trial. The Order in U.S. v. Executive Recycling, Inc., et al, 2012 U.S. Dist. LEXIS 169679 notes that in 2011 a grand jury returned an indictment charging the Defendants, in relevant part, with the following:

Count 14

42 U.S.C. § 6928(d)(4) On or about April 5, 2008 in the State and District of Colorado and elsewhere, the Defendants ER, Brandon Richter, and Tor Olson knowingly exported and caused to be exported hazardous waste, namely CRTs which exhibited the characteristic of toxicity for lead, in a shipping container labeled GATU 8815610, and in connection with that export failed to file a Notification of Intent to Export with the United States Environmental [*2] Protection Agency as required under 6 C.C.R. 1007-3 § 262.53.

All in violation of Title 42, United States Code, Section 6928(d)(4), and Title 18, United States Code, Section 2.

Count 15

18 U.S. C. § 554

Between on or about March 13, 2008 and April 5, 2008, in the State and District of Colorado and elsewhere, the defendants ER, Brandon Richter, and Tor Olson knowingly and fraudulently facilitated the transportation, concealment and sale of merchandise, articles, and objects, to wit, CRTs prior to exportation, knowingly that such CRTs were intended for exportation contrary to any law and regulation of the United States, specifically 42 U.S.C. § 6928(d)(4) and 42 U.S.C. § 6928(d)(6).

All in violation of Title 18, United States Code, Section 554.

The Court ordered further briefing with respect to the jury instructions that would govern the jury's determination of whether the materials at issue were hazardous waste. The Order is of interest as it addresses the defendants and the government's dispute regarding definition of terms such as hazardous waste, relevant statutes and regulations, instructions guiding the determination of whether the Cathode Ray Tubes ("CRT") were "waste." The Order references stipulated instructions addressing the characteristic of toxicity and the definition of electronic device and electronic component. It then analyzes certain disputed instructions such as definition of terms relevant to hazardous waste, relevant to statutes and regulations, and whether the CRTs at issue were "waste." A copy of the Order can be downloaded below.
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