* Judge Clement participated by designation in the oral

argument of this case as a United States District Judge for the

Eastern District of Louisiana. Since that time she has been

appointed as a Fifth Circuit Judge.

1 Revised January 4, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 00-31462

00-31463

00-31464

01-30024

_______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SIMS BROTHERS CONSTRUCTION, INC., ROBERT

L. CASE, MARK E. JERKINS, AND AMTEK OF

LOUISIANA,INC.

Defendants-Appellants.

_________________________________________________

Appeals from the United States District Court

for the Middle District of Louisiana

_________________________________________________

December 21, 2001

Before GARWOOD, WIENER, and CLEMENT * , Circuit Judges.

CLEMENT, Circuit Judge:

Defendants-Appell ants, Sims Brothers Construction, Inc.

(S ims), Robert Case (Case), Mark Jerkins (Jerkins), and Amtek of2

Louisiana, Inc. (Amtek) (collectively "Defendants"), challenge

their convictions for illegal storage of hazardous waste in

violation of the Resource Conser vation and Recovery Act (RCRA),

Title 42 U.S .C. §6928(d)(2)(A). We affirm the district court's

conclusion that Title 42 U.S.C. §6928(d)(2)(a), as applied to this

case, does not violate due process. We also affirm the district

court's conclusion that the indictment charged the defendants with

the essential elements of the crime and that the factual basis was

sufficient to s upport the defendants' guilty pleas. Finally, we

conclude that the district court did not lack jurisdiction.

I.

FACTS AND PROCEEDINGS

The facts were stipulated to by the parties. In January 1997,

Albertson's Inc. ("Albertso n's"), a corporation which owns and

operates grocery stores throughout the nation, purchased property

in Baton Rouge, Louisiana o n which to build a supermarket.

Subsequent to its purchase of the property, Albertson's contracted

with Sims to be its general contractor. Sims subcontracted the

demolition and site preparation work to Amtek.

On May 20, 1997, after commencing work, Amtek discovered two

yellow canisters designed to hold gases under pressure. The

canisters were located inside one of the buildings scheduled to be

demolished. Both canisters had a label bearing a skull and3

crossbones and the word "poison" written on it. The canisters

additionally had "Property of Reddick Fumigants" stamped on them.

It was subsequently disco vered that the canisters contained

liquified methyl bromide. Testing revealed that one or both of the

canisters contained hazardous waste. The methyl bromide in both

canisters weighed less than 100kg, and the total hazardous waste on

the site was less than 1000kg in any one calendar month and less

than an average of 100kg per calendar month for the calendar year.

An employee discovered the canisters in the building and

immediately informed defendants Case, the president of Amtek, and

Jerkins, the superintendent hired by Sims to oversee the project.

Case and Jerkins, aided by others, removed the canisters from the

building and set them in an open on-site area. Jerkins saw a

poison labe l on one of the canisters, and Case saw the word

"fumigant" on a nother. Case and Jerkins were not aware of the

precise contents of the canisters until after they had been tested.

Jerkins and Case intended to have someone remove the canisters

from the work site. They had discussions regarding proper removal

of the canisters by an environmental company. However, no further

effort to have the canisters removed from the site was made.

Neither Jerkins nor Case or any representative of Sims or Amtek

notified Albertson's, law enforcement, an environmental agency, or

any commercial or industrial entity regarding the presence of the

canisters. Both Jerkins and Case knew that Albertson's had4

conducted an environmental site assessment on the property which

did not indicate the presence of containers with hazardous waste.

The canisters remained at the site until approximately June

13, 1997 when an Amtek employee removed the canisters from the

property without the defendants' knowledge. The employee gave the

canisters to his cousin, Edith Rome. Ms. Rome had the canisters

brought to her home and connected to her propane stove. The methyl

b romide leaked from the canisters and made Ms. Rome and he r son

ill. Ms. Rome later died from methyl bromide poisoning.

Subsequent investigation revealed that the canisters were

filled by Reddick Fumigants, Inc. and were bought by W.L. Albritton

Farms in Octo ber, 1977. In 1977, the property was operated as a

peach and vegetable farm. When it ceased being used as a farm,

apartments were built on the property. Ms. Hallie Box managed the

properties owned by ASA. She stated that the building in which the

canisters were found was used for storage. Ms. Box was not aware

of the canister s. ASA did not own the canisters. Ms. Box

explained that, had she known of the canisters, she would have

considered them trash and had them properly disposed of by an

environmental company. Reddick Fumigants was still in existence in

May and June of 1997 and would have accepted a return of the

cylinders and their contents.

The defendants were indicted by a grand jury in the Middle

District of Louisiana on February 9, 1999. They were charged with1 Under federal regulations, a small quantity generator of

hazardous waste is a generator who produces less than an average

of 1000kg of hazardous waste per month. 40 C.F.R. §260.10. Such

generators who produce no more than 100kg are "conditionally

exempt small quantity generators" (CESQG's). 40 C.F.R.

§261.5(a). Entities that qualify for CESQG status are subject to

less stringent permitting requirements than larger quantity

generators.

5 illegal storage of hazardous waste in violation of RCRA, Title 42

U.S.C. §6928(d)(2)(A). The defendants filed several motions to

dismiss the indictment in the district court. They alleged that

they were denied due process either because the regulations at

issue were unconstitutionally vague or because the government had

not shown the minimum mens rea required for conviction. They also

a sserted that the indictment was defective and that the district

c ourt lacked jurisdiction because the government was seeking to

enforce state law.

The defendants maintained throughout the district court

proceedings that they were "small quantit y generators 1 " and were

exempt from the per mit requirements for the storage of hazardous

waste. The government asserted that the defendants were not

"generators" and therefore could not be small quantity generators

entitled to an exemption. The district court held that the

defendants were not generators because the canisters were already

waste when Albertson's bought the property. The canisters became

waste, and therefore subject to regulation, when they were

abandoned by W.L. Albritton.2 Sims was sentenced to five years probation, a fine of

$100,000, and a special assessment of $400. Amtek was sentenced

to five years probation and a special assessment of $400.

Jerkins was sentenced to five years probation and a special

assessment of $100. Case was sentenced to five years probation,

restitution of $14,628, a fine of $10,000, and a special

assessment of $100.

3 See United States v. Lampton , 158 F.3d 251, 255 (5th Cir.

1998).

6 The motions to dismiss the indictments were denied by the

district court, and the defendants subsequently entered into a plea

agreement with the government. The defendants pled guilty to the

indictment b ut specifically reserved their right, on appeal, to

review the denial of the motions to dismiss the indictment and to

contest whether the stipulated facts supported the de fendants'

guilty pleas. At the hearing to accept the plea agreements, the

defendants argued that the stipulated facts were insufficient to

s upport a conviction under §6928(d)(2)(A). The district court

concluded that the factual basis was sufficient and accep ted the

defendants' guilty pleas. The defendants were sentenced on

December 1, 2000, and judgments were entered on December 7, 2000. 2

The defendants timely filed notices of appeal, and all four appeals

were consolidated.

II.

ANALYSIS

1. Due Process

Constitutional challenge s are reviewed d e novo

. 3 The4 L.A.C. 33:V.109 (1997); 40 C.F.R. §260.10 (1997).

7 defendants contend that application of Title 42 U.S.C.

§6928(d)(2)(A) to the ins tant facts violates the due process

requirement that criminal statutes give fair warning and notice of

proscribed conduct. The defendants raise four due process issues

on appeal. First, the defendants had no notice or fair warning

that they would not be considered "generators" and thus not exempt

from permit requirements for on-site storage of hazardous waste.

Second, they had no knowledge of the facts supporting the denial of

the on-site storage permit exception which rendered their conduct

criminal. Third, the defendants maintain that they did not have

notice that Chapter 21 of Louisiana's Hazardous Waste Regulations

would apply to them since it was repealed as state law by the

Louisiana legislature. Fourth, they argue that the definition of

" storage" is unconstitutionally vague because the definition of

"storage" as applied to compressed gas in a cylin der includes

containing gas in a cylinder with no further action on the part of

the defendants.

a. Whether the defendants were generators

A "generator" is defined by the Louisiana Department of

Environmental Quality ("DEQ") and the EPA as "any person, by site,

whose act or process produces hazardous waste identified or listed,

or whose act first causes hazardous waste to become subject to

regulation." 4 While storing hazardous waste without a permit is5 40 C.F.R. §260.10 (1997).

6 40 C.F.R. §262.34(d) (1997).

7 40 C.F.R. §261.5 (1997).

8 usually prohibited, there are exceptions to the permit requirement

for generators who meet c ertain conditions. "Small quantity

generators" ("SQGs"), those who "generate less than 1000kg of

hazardous waste in a calendar month," have more lenient standards

by which to abide. 5 Federal regulations permit SQGs to store

hazardous waste o n-site without a permit for 180 days as long as

they comply with safe storage conditions. 6 SQGs who generate 100kg

or less of hazardous waste in a calendar month are "conditionally

exempt" SQGs ("CESQGs"). 7 Waste generated by CESQGs is not subject

to regulation and may be stored without a permit provided certain

conditions are met.

The defendants submit that demolition contractors who remove

hazardous substances from buildings that are schedu led to be

demolished are "generators." Recalling that a generator is one who

"produces" or "whose act first causes hazard ous waste to become

subject to regulation," it is clear that neither Albe rtson's nor

the defendants qualify as generators. The facts clearly show that

the canisters of methyl bromide were "waste" when Albertson's

bough t the property, so neither Albertson's nor the defendants

could be considered generators because they did not produce or

first cause the hazardous waste to become subject to regulation.9

Even if the defendants were considered to be generators, to be

exempt fromhaving a permit as an SQG, certain conditions must be

met under both state and federal regulations. The facts to which

the defendants stipulated clearly show that they did not meet these

conditions and could not qualify for unpe rmitted storage of

hazardous waste. While the defendants argue that the state

regulations do not apply, the regulations under Chapter 21 are less

stringent than the federal regulations. The defendants failed to

meet the more stric t federal regulations for CESQGs and are not

entitled to the exemption under state or federal law. As a result,

even if the defendants were considered generators, they could not

qualify for the permit exemption. Accordingly, there was no due

process violation.

b. Knowledge

The defendants maintain that their due process rights were

denied because they lacked knowledge of facts that would have

rendered their otherwise lawful conduct criminal. They submit that

they had no knowledge that they would not be considered generators

who were exempt from the permit requirem ents. The parties

stipulated that they lacked knowledge of the history of the

canisters. The defendants argued that, as far as they knew, either

they or Albertson's were the first to decide whether to dispose of

the canisters and thus fall withi n the definition of "generator."

This argument fails because even if the defendants were8 42 U.S.C.§6903(5).

9 42 U.S.C. §6903(27).

10 42 U.S.C. §6903(33).

10 "generators," their convictions are valid because they violated the

federal reg ulations for unpermitted storage of hazardous waste as

we explain below.

c. Vagueness

Under RCRA, for waste to be hazardous it must be "solid

waste." 8 For gaseous material to be "solid waste" it must be

"contained." 9 "Storage" is defined as "the containment of hazardous

waste, either on a temporary basis or for a period of years, in such

a manner as not to con stitute disposal of such hazardous waste." 1 0

The defendants argue that the statute's vagueness in defining how

one stores c ontained gaseous material, which is contained from

inception, unconstitutionally violates due process.

This Court is concerned with the fact that the statute fails

to specify a time fr ame within which, after hazardous waste is

di scovered in one's possession, that person becomes criminally

liable for storing it without a permit. However, under the facts

of this case, the statute is not unconstitutionally vague. The

defendants were indicted for illegal storage of hazardous wa s te.

What made their conduct criminal was the knowing storage of

hazardous waste without a permit. The defendants argue that the

definition of storing gaseous material gave them no fair w arning11 Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455

U.S. 489, 496, 102 S.Ct. 1186, 1192 & n.7, 71 L.Ed.2d 362 (1982).

11 that "merely finding the cylinders on a jobsite or placing them on

the ground without fur t her containment constitute[d] a felony."

The defendants moved the canisters from the building knowing, at a

minimum, that they were potentially hazardous because they had

"poison" and "fumigant" stamped on them, yet the defendants allowed

the canisters to remain in an open area for three weeks without

reporting their existence.

Vagueness challenges outside the First Amendment context must

be considered in light of the particular facts of the case. 11 We

are not persua ded by the defendants' argument that they could not

reasonably understand that they were storing hazardous waste without

putting the canisters inside an additional container as opposed to

putting themout in the open. The question that must be resolved

is at what point wer e the defendants intentionally storing the

methyl bromide? This is a question of fact. The defendants should

have notified the appropriate agencies that they found potentially

hazardous material on their property much sooner than they did.

Allowing the canisters to remain in an open area on the property for

three weeks

, whi le doing nothing to facilitate their removal or

disposal, is "storage" in violation of §6928(d)(2)(A). While we are

concerned with the potential danger of pros ecutorial discretion

under this statute, as applied to the instant facts, we hold that12 United States v. Cavalier , 17 F.3d 90, 92 (5 th Cir.

1994).

13 The defendants rely on United States v. Baytank

, 934

F.2d 599 (5 th Cir. 1991), to assert that it was the government's

burden to prove that the defendants "stored hazardous waste

without a permit and...violated the limited conditions under

which [they] could store those wastes without a permit."

However, the sufficiency of the indictment was not at issue in

Baytank

. The Court made it clear that such unpermitted storage

was permissible for the ninety day period "only if it complie[d]

with certain safe storage conditions." The Baytank Court's

holding does not necessitate a finding that the government must

charge and negate exceptions to a permit requirement in an

indictment. See United States v. Outler , 659 F.2d 1306, 1310 n.3

(5th Cir. Unit B 1981)(generally, the burden of proving

compliance with a statutory exception is on the defendant).

12 the defendants were storing hazardo u s waste in violation of Title

42 U.S.C. §6928(d)(2)(A).

2. Deficiency of the Indictment

"An indictment is sufficient if it contains the elements of the

charged offense, fairly informs the defendant of the charges against

him, and ensures that there is no risk of future pr osecutions for

the same offense." 12 The defendants were charged under Title 42

U.S.C. §6928(d)(2)(A) with storing hazardous waste without a permit.

Defendants' position that the indictment was deficient results from

their incorrect assumption that exemptions to the permit requirement

are elements of the offense. The defendants cannot assert that the

government need prove that the defendants were not entitled to the

permit exemptions provided by statute. It is an affirmative

defense, not an elem ent of the crime, that the defendants were

entitled to allow the waste to remain on the site as a CESQG. 13 We14 United States v. Lynch , 114 F.3d 61, 63 (5th Cir. 1997).

15 See United States v. Adams , 961 F.2d 505, 509 (5th

Cir.1992).

13 hold that the distri ct court was correct in finding that the

indictment was not deficient for failing to allege an element of the

crime charged.

3. Jurisdiction of the District Court

Challenges to the jurisdiction of the dist rict court are

reviewed de novo

. 14 The defendants submit that the district court

lacked jurisdiction over this case because the g overnment was

attempting to enforce state regulations. The state regulations that

the defendants claim were enfor ced against them only applied to

SQGs. Because we hold that the defendants were not generators of

methyl bromide, the argument that the di strict court lacked

jurisdiction to enforce Louisiana regulations applicable to SQGs is

without merit.

4. Sufficiency of the Factual Basis

A district court's acceptance of a guilty plea is a factual

finding which we review under the clearly erroneous standard. 15 The

district court's conclusion that the factual basis was suff icient

to suppo rt a violation of Title 42 U.S.C. §6928(d)(2)(A) was not

clearly erroneous. RCRA defines "solid waste" as including any

"discarded material...resulting from industrial, commercial, mining,16 42 U.S.C. §6903(27).

17 L.A.C. 33:V. 4901.D.

18 L.A.C. 33:V.109.

14 and agricultural operation s...." 1 6 Methyl bromide is a hazardous

waste once it is discarded or intended to be discarded. 17 Materials

that are "abandoned by being...disposed of" or "accumulated, stored,

or treated (but not recycled) before or in lieu of being abandoned

by being disposed of" are considered "discarded" and therefore solid

waste under RCRA. 18

The defendants contend that the methyl bromide was not "waste"

because the governme nt failed to show that the canisters were

intentionally abandoned or discarded. The canisters were clearly

discarded or abandoned. Whether it was done intentionally is of no

moment. Arguments that the contents of the canisters could have

been used as a fumigant or returned to Reddick are not supported by

the evidence and therefore without merit. The canisters' contents

were never intended to be used as a fumigant by the apartment

complex according to the testi mony of Ms. Box, and there is there

no indication that Albertson's or its ag ents intended to use the

cani sters' contents for any purpose. In hindsight, Reddick's

possible willingness to take the canisters back does not necessitate

a conclusion that the defendants actua lly intended to return the

canisters to Reddick. The canisters sat in an open area for three

weeks until they were stolen. There is no possible conclusion but15

that the canisters were abandoned or discarded.

The defendants additionally contend that, even if the canisters

were waste, they had no such knowledge, negating an essential

element of the offense charged. The factual basis is clearly

sufficient with respect to whether t he defendants knew that the

canisters were waste. The defendants stipulated that the canisters

contained hazard o us material as evident from the labels on the

canisters and their corroded appearance . Case and Jerkins also

stip ulated that they discussed what to do with the canisters,

including hiring an environmental company to remove and dispose of

them. These facts cannot support the defendants' contentions that

it was reasonable to assume that the fumigant was usable or that the

defenda nts would have contacted Reddick to reclaim the canisters.

III.

CONCLUSION

We affirm the dist rict court's determination that Title 42

U.S.C. §6928(d)(2)(A), as applied to the facts of this case, did not

violate due process. We affirm the conclusion that the indictment

alleged the essential elements of the crime charged. We also affirm

the ac ceptance of the guilty pleas, as the factual basis was

sufficient to support the crime charged. Finally, we conclude that

the district court did not lack jurisdiction over this case.

AFFIRMED.