THE "RESPONSIBLE RELATIONSHIP" DOCTRINE OF UNITED STATES V. PARK: A TOOL FOR THE PROSECUTION OF CORPORATE OFFICERS UNDER FEDERAL AND STATE ENVIRONMENTAL LAWS

by Todd W. Grant, M.H.S.A., J.D.
Ann Arbor, Michigan
Temple Environmental Law & Technology Journal
Volume XI, No. 2. Fall 1992

Copyright © 1992 by the Temple Environmental Law & Technology Journal,
Temple University Law School, Room 102C,
1719 North Broad Street, Philadelphia, PA 19122

I. INTRODUCTION 1

II. THE DEVELOPMENT OF THE "RESPONSIBLE RELATIONSHIP" DOCTRINE:
UNITED STATES v. PARK AND UNITED STATES v. DOTTERWEICH
8

A. UNITED STATES V. DOTTERWEICH 9

B. UNITED STATES V. PARK 14

C. THE IMPOSSIBILITY DEFENSE 18

D. THE TRUE MEANING OF THE "RESPONSIBLE RELATIONSHIP" DOCTRINE 21

III. THE "RESPONSIBLE RELATIONSHIP" DOCTRINE IN THE ENFORCEMENT OF FEDERAL ENVIRONMENTAL LAWS 25

A. CASES BEFORE 1984 25

B. CORPORATE OFFICER LIABILITY UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT 28

1. "Knowingly" running to "without a permit" 31

2. "Knowingly" running to "hazardous waste" 37

3. "Knowingly" running only to "disposes" 40

C. LIMITS TO THE "RESPONSIBLE RELATIONSHIP" DOCTRINE 44

IV. THE "RESPONSIBLE RELATIONSHIP" DOCTRINE IN THE ENFORCEMENT OF STATE ENVIRONMENTAL LAWS 47

V. IMPLICATIONS 53

VI. CONCLUSION 60

I. INTRODUCTION

The United States Supreme Court developed the "responsible relationship" doctrine to help courts determine the criminal liability of corporate officers in cases involving violations of laws designed to protect the lives and health of the public. Stated simply, the doctrine requires a court inquiry into whether a corporate officer exercised extraordinary care and diligence, by virtue of his or her position and authority, toward preventing the resulting violation. The Court developed, then later clarified, this doctrine in two cases brought under the Federal Food, Drug and Cosmetic Act (FDCA) of 1938 (1) -- United States v. Dotterweich (2) and United States v. Park. (3) Courts have expanded the application of this doctrine to decisions enforcing federal and state environmental laws, most notably the Federal Resource Conservation and Recovery Act (RCRA) of 1976. (4)

Commentators such as Brickey, (5) Seymour (6) and Zipperman (7) have noted this expansion of the responsible relationship doctrine, beyond its roots in cases under the FDCA. They have also noted this expansion through the appearance of the doctrine's language in many environmental cases. Seymour has noted also that it is unclear to what extent this doctrine ultimately will be used in enforcing federal environmental laws. (8)

This article examines the application of the responsible relationship doctrine in environmental law prosecutions of corporate officers now possible in view of recent decisions from the First, Fourth, Fifth, Sixth and Ninth Circuits. (9) This article also examines the application of criminal law to corporate officers who may have had little or nothing to do with "bad acts" as one normally thinks of them. These recent decisions under RCRA are changing the definition of who is thought to be a criminal. While it is sometimes easy for managers to hide behind layers of organizational bureaucracy, it is also difficult for them to know what is really going on in a large and complex organization. For large and complex organizations, the implications of the responsible relationship doctrine of Dotterweich and Park in prosecutions under federal and state environmental laws may prove to be a managerial nightmare.

Criminal prosecutions of corporate officers for federal and state environmental crimes face two difficulties not present in prosecutions of individual criminal acts such as armed robbery. The first difficulty is in obtaining a conviction based on circumstantial evidence, where there is only indirect evidence of a corporate officer's guilt from the "bad act" (actus reus) of his subordinates, who may work far down in the corporation's bureaucratic hierarchy. (10) The second difficulty is in showing "bad intent" (mens rea) where a corporate officer has failed to act (i.e., an omission rather than a commission). This second difficulty exists, in part, because prosecutors and courts think of mens rea in transitive terms, that is, for commissions rather than omissions. It is clearer to think of mens rea in terms of those circumstances not excused, whether acts or omissions. (11) This difficulty also exists because a corporate officer's particular omission may be no more than a failure to closely supervise tasks that were properly delegated to subordinates.

An argument by analogy from the responsible relationship doctrine has been proposed by prosecutors and accepted by courts as an answer to the difficulties in obtaining convictions of corporate officers. (12) The responsible relationship doctrine provides a good argument toward convictions for environmental crimes, because the FDCA, like many federal and state environmental laws, clearly falls within the classification of "public welfare offenses" (13) that often allows for criminal penalties without requiring mens rea or consciousness or knowledge of anything more than one's own actions. (14) In addition, the responsible relationship doctrine can be used to convict a corporate officer where there is only indirect evidence of his or her involvement in the actus reus, and where the mens rea was established from his or her failure to act.

The responsible relationship doctrine provides for a criminal conviction where a corporate officer was personally involved with the actus reus of a crime through an omission, where he used less than extraordinary care, and where it would have been possible for him (now with hindsight) to have prevented the actus reus. (15) The actual effect of the doctrine during trial is to shift the burden of production to the defendant, who must then go forward with enough evidence to create a reasonable doubt that he failed to act with extraordinary care or diligence. The burden of persuasion, however, never shifts to the defendant from the prosecution, since this would be unconstitutional. (16) Proving mens rea requires only a showing of ordinary negligence. (17)

But there is a problem with the importation of the responsible relationship doctrine from the FDCA to federal environmental laws. The majority of federal environmental laws requires a finding of "knowledge" or "willfulness" to gain a criminal conviction. (18) Because of this explicit requirement of mens rea, one could expect the use of the responsible relationship doctrine to be limited. But despite the explicit mens rea requirement of knowledge, the expansion of criminal enforcement of environmental laws in the mid- and late 1980's allowed the application of the doctrine and its own means for determining culpability. (19)

The opportunity to import the responsible relationship doctrine into federal and state environmental laws, especially RCRA, exists for four reasons. First, statutes such as RCRA that define knowledge are linguistically ambiguous: it is difficult to tell which elements of a crime the word "knowledge" or "knowingly" modifies, that is, how far down the sentence the word runs. (20) Second, with the exception of the "knowing endangerment" provision, Congress has provided little guidance on the scope of RCRA's knowledge requirement. (21) Third, courts' discussions of mens rea under the responsible relationship doctrine are blurred by thinking of mens rea in transitive terms, under a test involving omissions more often than commissions. And fourth, courts' views of organizational decision-making influence their views of mens rea. Courts generally follow a simplistic "brain and arms" theory regarding acts of omission in which top corporate managers, and to some ill-defined extent middle managers, do the thinking, and the remainder of the employees carry out orders. (22) This theory conceives of a deliberate decision by an individual to commit a crime, and it leaves no room for complex theories about organizational decision-making. Complex theories of decision-making recognize that an organization's action may be one that no single individual intended to commit, that decisions are the result of compromises, and that crimes can be the result of systems' failures, failures of internal politics and bargaining, or the mis-alignment of political coalitions. (23) In contrast, simplified theories of organizational decision-making result in simplified approaches to the attribution of knowledge to corporate officers.

The application of the responsible relationship doctrine to RCRA cases has resulted in a split in the federal courts of appeals. Different interpretations, even subtly different ones, about the level of knowledge required can have a major impact in criminal prosecutions of corporate officers not directly involved in the acts or omissions of subordinates, because the knowledge of such acts or omissions may be attributed to persons at the top of the organizational hierarchy. It is possible to convict a corporate officer not for acting badly, and not for failure to act with a conscious awareness of probability of harm to others, but for not supervising subordinates closely enough. The conceptual rationale for this seemingly harsh result is that for a public welfare offense the corporate officer is in a better position than any member of the public to guard against harm. Any harsh result is saved in practice only by Environmental Protection Agency (EPA) and Food and Drug Administration (FDA) enforcement methods and by the Department of Justice's prosecutorial discretion, which seeks criminal prosecutions in egregious cases. These are cases in which the corporate officer should have known, or in reality very likely knew, of the conditions giving rise to violations of the law because of previous FDA inspections. (24) The FDA's actual enforcement bears out this meaning. (25)

II. THE DEVELOPMENT OF THE "RESPONSIBLE RELATIONSHIP" DOCTRINE:
UNITED STATES v. PARK AND UNITED STATES v. DOTTERWEICH

Appeals of criminal convictions under the Federal Food, Drug and Cosmetic Act (FDCA) of 1938 (26) constituted the background against which the Supreme Court created the responsible relationship doctrine. The doctrine is applied to cases involving public welfare offenses. (27) After five years of hearings, Congress had passed the FDCA in response to perceptions that the adulteration, mislabeling and false advertising targeted by the 1906 Federal Food and Drugs Act still continued. (28)

A. UNITED STATES V. DOTTERWEICH

United States v. Dotterweich (29)

was the first significant decision under the FDCA. Dotterweich was the president and general manager of the Buffalo Pharmaceutical Company, a small drug jobber employing 26 persons, all of whom worked on one floor and were directly supervised by Dotterweich. (30) His company repackaged and mailed drugs it bought from manufacturers. It did not make any of the drugs it shipped. Dotterweich, as a corporate officer, and his company were indicted on two violations of Section 301 of the FDCA. (31) The government did not allege that Dotterweich had possessed any knowledge of the facts underlying the violations. The trial court acquitted the corporation but found Dotterweich criminally liable in his capacity as a corporate officer. (32)

In defining the standard for criminal liability, the Supreme Court noted that the FDCA "dispenses with the conventional requirement for criminal conduct -- awareness of some wrongdoing." (33) This was because the Act was designed to protect the lives and health of the public "which, in the circumstances of modern industrialism, are largely beyond self-protection." (34) The Court continued: "In the interest of the larger good, [the FDCA] puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." (35) Thus, the risk of a mistake falls "upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers . . . rather than . . . [up]on the innocent public who are wholly helpless." (36)

In further describing this "responsible share" or "responsible relationship" doctrine, the court stated:

[U]nder 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission -- assuming the evidence warrants it -- to the jury under appropriate guidance. The offense is committed . . . by all who do have a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs . . . though consciousness of wrongdoing be totally wanting. (37)

Thus, whether or not someone shares such responsibility depends upon the evidence introduced at trial, the Court concluded, so that it did not need to describe the limits of hierarchical liability under this doctrine. (38)

The Supreme Court was not precise about Dotterweich's liability. It did not describe the nature of the actus reus involved, that is, whether it was personal or vicarious in nature; nor did it describe the necessary mens rea requirement. (39) As to the nature of the actus reus, different interpretations are possible. (40) If Dotterweich's liability was personal, it was because it arose from an omission to perform a legal duty. Under the criminal common law, an omission leading to an actus reus could have arisen under several legal duties applicable here: 1) by statute, 2) by the voluntary assumption of responsibility for the public's health, 3) from the creation of peril in the mislabeled drugs, or 4) from the duty to control those subordinates who actually labeled and mailed the drugs. (41) Alternatively, if Dotterweich's liability was vicarious, he was not himself guilty of any actus reus; rather, the acti rei of his subordinates were imputed to him.

As for the necessary mens rea requirement, the Supreme Court stated that the FDCA dispensed with the requirement of "awareness of some wrongdoing," which would seem to imply strict liability or the absence of mens rea. (42) The dissent also accepted this view, as have others. (43) However, the Court described the responsible relationship doctrine in aiding and abetting language and rejected the Court of Appeals' interpretation that the statute would sweep "within its condemnation any person however remotely entangled in the proscribed shipment." (44) These statements seem to imply that some responsibility or organizational control and authority over the actus reus should be necessary for conviction. Noting this ambiguity or imprecision in describing the mens rea requirement, commentators have noted that this doctrine requires some minimal showing of culpability. (45) Most likely, as one commentator has concluded, the Court did not differentiate the theory of strict liability, which is a type of personal liability, from that of vicarious liability. While it determined that the statute was one of strict liability, requiring no mens rea (by individual subordinate actors), the Court vicariously imputed this lack of mens rea to Dotterweich as corporate officer and president. (46)

The Court left to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" (47) the relative importance in determining guilt factors such as the authority and responsibility of the defendant's position, the size of the corporation as it affects the ability of managers and corporate officers to know and monitor policies and procedures, and the degree of ongoing personal supervision of subordinates. (48) The individual actions of corporate officers are different depending on the size of the corporation, the degree of decentralization, the delegation of management and the expertise of subordinates. (49) Dotterweich's company was small, and he supervised all of its employees. (50) In a small company, the actus reus is met by direct, personal participation or by directing or authorizing others who have intent or knowledge of specific hazards. Such corporate officers are thus found personally responsible. At most, a jury could find that these officers' ignorance was deliberate or reckless. (51) At bottom, the responsible relationship doctrine functions as an inference tool. The effect of employing the doctrine in Dotterweich may simply have been to make the prosecutor's job easier where guilt was likely, where the evidence was weak, and where the need to protect the public was great. The doctrine balances public privilege and private responsibility in keeping with Congress' overall purpose. (52) The nature of the responsible relationship doctrine was described more fully in United States v. Park. (53)

B. UNITED STATES V. PARK

United States v. Park (54) clarified some of the ambiguities caused by Dotterweich. (55) Park was president and chief executive officer of Acme Markets, Inc., "a national retail food chain with approximately 36,600 employees, 874 retail outlets, 12 general warehouses, and four special warehouses." (56) Park's office was at company headquarters in Philadelphia, but the violations leading to the FDA's 1972 indictments against him and his company had occurred at a warehouse in Baltimore. The violations were the result of continued rodent infestation and food contamination. The FDA had cited the Philadelphia warehouse in 1970 and the Baltimore warehouse in 1971 and 1972. The district court found that Park had known of the FDA citations. The government decided not to prosecute the vice president of the Baltimore division or those employees and supervisors in charge of sanitation for the warehouse. Acme Markets pled guilty; Park pled not guilty. The jury found Park guilty on five counts, and he was fined $50 (out of a possible $1,000) on each count. The Court of Appeals reversed, and the Supreme Court reversed again, reinstating Park's conviction and fine.

The Supreme Court's opinion in Park discussed the propriety of the district court's jury instructions under Dotterweich. Park asserted that he did not know about the ongoing problems at the warehouse and that he was justified in delegating to his subordinates the responsibility of correcting those violations cited in the FDA's reports. (57) The Court reinstated Park's conviction because he was "responsible for . . . the entire operation of the company." (58) The Court also based his conviction on its determination that he had been on notice that his system of delegating solutions to these problems was not working perfectly since the FDA had provided the company with written reports. (59)

In comparison with Dotterweich, the Court was more precise about the actus reus needed to convict Park -- namely, that it was personal rather than vicarious in nature. Park's liability was personal, the Court found, because it arose from an omission to perform two legal duties arising from his voluntary assumption of a position (60) to which the health of the public was entrusted. The Court characterized these duties as one to set up a system of delegation, with feedback to prevent violations, and as one to correct violations when they occurred, again with feedback. The Court stated:

[I]n providing sanctions which reach and touch the individuals who execute the corporate mission -- and this is by no means necessarily confined to a single corporate agent or employee -- the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will ensure that violations will not occur . . . . [T]he main issue for determination was not [Park's] position in the corporate hierarchy but rather his accountability, because of the responsibility and authority of his position, for the conditions. (61)

The Court determined that Park had held the power to prevent the violations in question, (62) and that his failure to exercise that power was an omission constituting the actus reus.

As to Park's mens rea, the Court noted that the FDCA "does not . . . make criminal liability turn on 'awareness of some wrongdoing' or 'conscious fraud.'" (63) It also noted, however, that "[t]he concept of a 'responsible relationship' to . . . a violation of the Act indeed imports some measure of blameworthiness." (64) Commentators have interpreted these statements about the mens rea requirement in various ways. (65) None of these commentators, however, has noted that the difficulty in defining the precise mens rea required results from the difficulty in distinguishing between a corporation's omission and a corporation's act. (66) The Court noted that the statute itself does not distinguish between violations caused by omissions and those caused by acts. (67) The Court's analysis of the mens rea requirement focused on the analysis of the actus reus, as it is virtually the same factual inquiry. Because mens rea is defined in terms of a transitive act, (68) a corporation's failure to act does not necessarily carry with it any mens rea. A corporation's transitive act, in contrast, carries with it an active mens rea imputed to it from one or more employees, unless the act is the involuntary movement of one or more employees. (69)

The mens rea requirement for convictions resulting from the failure of a corporation or that of a corporate officer to act, can be overcome by the defense of "powerlessness," or "objective impossibility." (70) As the Court found in Park, the FDCA "does not require that which is objectively impossible." (71) To be eligible for the impossibility defense, the corporate officer had to have been unable to prevent the violation even though he exercised the "highest standard of foresight and vigilance." (72) Due to a corporate officer's indirect involvement in the actus reus, this defense "becomes in practice a standard of extraordinary care." (73) As with any affirmative defense, the defendant has the burden of production to come forward with evidence to support his powerlessness to act. (74)

The Supreme Court in Park insisted that its opinion did not permit the defendant's conviction based solely on his holding a corporate office. (75) The Court noted with approval that the record showed the jury was aware "that the main issue for determination was not [Park's] position in the hierarchy but rather his accountability, because of the responsibility and authority of his position, for the conditions which gave rise to the charges against him." (76) Despite this statement, the position held by a president or chief executive officer might almost always lead to a finding of personal criminal liability. The hierarchical structure of bureaucratic corporations makes the chief executive officer ultimately responsible for almost all actions in the normal course of day-to-day business operations. The distinction between a chief executive officer's position and his accountability is usually subtle, perhaps too subtle for a jury to draw in practice. This subtle distinction between authority and position has in fact confused some district courts. (77)

C. THE IMPOSSIBILITY DEFENSE

In its application, the responsible relationship doctrine is only subtly different from convicting a person because of his office. As the district court in United States v. New England Grocers Supply Co. stated: "The line drawn by the [Park] Court between a conviction based on corporate position alone and one based on a 'responsible relationship' to the violation is a fine one, and arguably no wider than a corporate bylaw." (78) Nevertheless, the distinction required that court to reverse a magistrate's decision and to remand for his determination the issue of whether or not the defendant had a responsible relationship to violations of the FDCA, where the magistrate had convicted the defendant by virtue of his position as president. In his opinion, the magistrate had stated that the defendant's position as president vested him "with ultimate authority and responsibility for preventing any violations." (79) The district court held that the government must prove beyond a reasonable doubt that the defendant had the power to control the conditions that led to the violations of the FDCA. (80) The district court interpreted the responsible relationship doctrine as an affirmative defense. (81)

The courts are clear in describing the impossibility defense as an affirmative defense. The defendant may raise the defense after the government has presented a prima facie case showing that the defendant had a responsible relationship to subordinates who committed the actus reus. As the court in New England Grocers Supply Co. observed:

[T]he impossibility defense allows the corporate officer to introduce evidence to establish an affirmative defense that he exercised extraordinary care and still could not prevent the violations of the Act. The defense is raised when the defendant introduces a sufficient quantum of evidence as to his exercise of 'extraordinary care' so as to justify placing an additional burden on the government. At this point, the government must prove beyond a reasonable doubt that the defendant, by the use of extraordinary care, was not without the power or capacity to correct or prevent the violations of the Act. (82)

Thus in United States v. Cattle King Packing Co., Inc., (83) the company president's assertion that he lived in a different city and never visited a meat plant did not absolve him of liability where the government produced evidence that he had originally ordered the practices constituting the violations. In United States v. Torigian Laboratories, Inc., (84) although the defendant company president and owner was not technically trained in laboratory science and "lacked the technical expertise to be able to ascertain and correct any 'impropriety' in the processing system [for manufacturing intraocular lenses]," he was held not powerless nor without authority to prevent the violations. In United States v. Gel Spice Co., Inc., (85) the impossibility defense was not met because the company president was involved daily in the operations with his brother and mother in a single-story facility. In cases such as these, "power" comes close to meaning simply the authority to hire and fire coupled with the authority to order expenditures to correct violations.

The responsible relationship doctrine and its impossibility defense have been defined through the practices of the FDA, through both its enforcement policies and its exercise of administrative discretion in seeking criminal proceedings against corporate officers. (86) In Gel Spice, the court described the careful process by which the FDA initiates criminal legal action against an egregious violator. (87)

By means of the impossibility defense, the responsible relationship doctrine imposes a standard of extraordinary care upon the corporate officer who stands in a responsible relationship to subordinate employees whose acts or omissions gave rise to violations of the law. This result is consistent with Park, in which the Supreme Court had noted: "[T]he Act, in its criminal aspect, does not require that which is objectively impossible," but does require a corporate officer to exercise the "highest standard of foresight and vigilance." (88)

D. THE TRUE MEANING OF THE "RESPONSIBLE RELATIONSHIP" DOCTRINE

A corporate officer may be held criminally liable for failure to control corporate conduct under several different types of mens rea: intentional acquiescence in wrongdoing by subordinates, willful blindness (deliberate ignorance), reckless supervision, negligent supervision and strict liability. (89) Negligent supervision and strict liability are exceptions to the general rule that something more than mere negligence is necessary to gain a criminal conviction. At the least, gross negligence is usually required. These two exceptions reflect the idea that a corporate officer should have known what was going on because of a legal duty imposed upon him. (90)

The responsible relationship doctrine of Dotterweich and Park is usually termed a strict liability doctrine, because it obviates the need to prove mens rea for a conviction. Strict liability is an exception to the strong presumption in the law that some level of mens rea is required for a criminal conviction. (91) This presumption applies with less force in so-called public welfare crimes, such as many environmental laws and the Federal Food, Drug, and Cosmetic Act. (92)

The precise nature and effect of such a strict liability doctrine is hard to discern. In part this is because, as in Dotterweich and Park, courts are often not precise in the language they use to define mens rea or in the level of culpability needed to convict a corporate officer. The gradations between strict liability, negligent supervision and reckless supervision are fine ones. The same facts often can be used to satisfy any one of these levels of mens rea. More perplexing still, courts often confuse strict liability and vicarious liability, and cases where both are involved, and describe all three as strict liability. True strict liability indicates the absence of any mens rea requirement. In contrast, true vicarious liability indicates the absence of any requirement of actus reus. The simultaneous application of strict liability and vicarious liability (sometimes termed "absolute liability") indicates the absence of any requirement for either mens rea or actus reus. (93) Finally, the effect of the doctrine during a trial can be different from that which the court articulates in the abstract. The doctrine may shift the burden of production to the defendant to show a lack of negligent or reckless supervision, or it may allow a more liberal judicial review of jury inferences.

Where the effect of the doctrine is to shift the burden of production at trial, the defendant must produce enough evidence of having exercised extraordinary care to justify placing the burden on the government to prove beyond a reasonable doubt that the defendant, acting with extraordinary care or diligence, still could have prevented the violations. (94) The burden of persuasion, however, never shifts from the prosecution to the defendant. (95) This description of the doctrine's effect is different from saying that the test is one of strict liability, that is, that the trier of fact will not consider the defendant's mens rea. (96) Accordingly, the proof of mens rea is reduced to ordinary negligence, a standard which is evidenced by the FDA's actual enforcement. (97)

The importance of the responsible relationship doctrine can be summed up in three points. First, with respect to the actus reus, personal liability may attache to the corporate officer who has failed to act. Where courts have been less precise in their language, the actus reus of subordinates may be said to attach to the corporate officer through vicarious liability. Second, with respect to the mens rea, the articulation of the doctrine involves the language of strict liability (the absence of mens rea), although some modicum of blameworthiness is necessary lest all individuals "however remotely entangled" (98) be held criminally liable. In practice, because of FDA and Department of Justice discretion in prosecuting offenders, the doctrine is closer to one that requires extraordinary care. It imposes a duty of extraordinary care by allowing the burden of production to be shifted to a corporate officer defendant to show the impossibility of his or her having prevented the violations. It also permits jury inferences that he or she should have known about the violations, if he or she actually did not know of them; therefore, criminal liability is founded upon ordinary negligence. And third, the only defense under the responsible relationship doctrine is for a defendant to show his or her powerlessness to have prevented the violations through the impossibility defense. (99)

III. THE "RESPONSIBLE RELATIONSHIP" DOCTRINE IN THE
ENFORCEMENT OF FEDERAL ENVIRONMENTAL LAWS

A . CASES BEFORE 1984

Before the first court of appeals decision in 1984 under the Resource Conservation and Recovery Act (RCRA) of 1976, (100) appellate decisions had used the responsible relationship doctrine under other federal environmental laws, thereby expanding the doctrine's use beyond prosecutions under the FDCA. To trace this expansion in environmental decisions one needs to look for citations of to Park and Dotterweich, as well as for paraphrases of this doctrine and facts similar to those in Dotterweich and Park. (101) In the most often cited of these cases, United States v. International Minerals and Chemical Corp., (102) (a case decided after Dotterweich but before Park) the Supreme Court determined that criminal convictions under the (repealed) Transportation of Explosives Act did not require the government to prove that a defendant knowingly violated the regulation. (103) The case involved an appeal of a criminal conviction under a statute penalizing anyone who "knowingly" violated any Department of Transportation regulation. The specific regulation in question required that shipping papers reflect certain information about corrosive liquids shipped by the defendant. The issue in the case was whether knowledge of the existence of the regulation was an element of the crime. Stating the common law maxim that ignorance of the law does not provide an excuse, the Supreme Court held that knowledge of the existence of the regulation was not an element of the crime. (104)

Other cases affirmed the level of culpability required in Dotterweich and Park for use in prosecuting environmental criminals. While in Park FDA inspections had or should have put the president on notice of violations of the FDCA, (105) the Third Circuit noted in United States v. Frezzo Bros., Inc. (106) that no such notice was necessary to convict the owners of a family business under the Water Pollution Control Act. (107) The Fifth Circuit in United States V. Klehman (108) decided that criminal convictions under the Hazardous Substances Labeling Act (109) could be obtained upon proof that a corporation's owner and sole stockholder "had 'a responsible share in the furtherance of the transaction.'" (110) In United States v. Ward, (111) the chairman of the board of an electrical transformer storage company was convicted under the Toxic Substances Control Act (112) of illegally disposing of a toxic substance when he hired a vendor to dispose of PCB-contaminated oil. Although the board chairman was not directly involved in the illegal dumping, the jury inferred that he either authorized the plan or knew or should have known the risks involved because of the low price paid for its disposal. (113)

In the mid and late 1980's, criminal enforcement of federal environmental laws increased dramatically. (114) The latest expansion of the responsible relationship doctrine outside the FDA's regulatory purview has occurred in prosecutions under RCRA and analogous state environmental laws. (115)

B. CORPORATE OFFICER LIABILITY UNDER
THE RESOURCE CONSERVATION AND RECOVERY ACT

Criminal enforcement of environmental laws increased after Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 and, in the same year, amended RCRA to include the new crime of "knowing endangerment." (116) In January 1981, the EPA created its office of Criminal Enforcement, and the Department of Justice created its Environmental Crimes Unit. (117) The pace of prosecutions accelerated in the mid and late 1980's with increasing numbers of criminal convictions. (118) In 1984, RCRA's criminal penalties were strengthened to the extent that convicted individuals now face fines of up to $250,000 and up to fifteen years imprisonment. (119) With this renewed vigor for obtaining criminal violations under RCRA, courts were soon confronted with the issue of what level of knowledge was required to impose liability upon a corporate officer under the statute.

Determining the level of mens rea required for a criminal conviction under RCRA requires solving a subtle problem of statutory interpretation, specifically, how far down the sentence does the word "knowingly" extend as a modifier in 42 U.S.C.A. 6928(d)(2), which reads:

Any person who --

. . .

(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter --

(A) without a permit under this subchapter . . .; or

(B) in knowing violation of any material condition or requirement of such permit; or

(C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards;

. . .

shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed . . . five years in the case of a violation of paragraph (1) or (2), or both [emphasis added].

Statutes such as these are linguistically ambiguous. (120) Three interpretations of Section 6928(d)(2) are possible, and various circuit courts have relied upon one or another of these interpretations. The Third and Eleventh Circuits interpret "knowingly" as running to 1) "disposes," 2) "hazardous," and 3) "without a permit." (121) The Fourth, Sixth, and Ninth Circuits read "knowingly" as running only to "disposes" and "hazardous." (122) And the Fifth Circuit reads "knowingly" as running only to "disposes." (123)

Each interpretation establishes a different level of knowledge required for criminal conviction. When "knowingly" is held to run all the way down the sentence, a criminal conviction requires one's awareness of one's actions plus an awareness that one is acting without a permit or in violation of the law. When "knowingly" is held to run through "hazardous" but not to awareness of a permit violation, a criminal conviction requires one's awareness of one's own actions plus an awareness that harm is probable. (This level of culpability is analogous to the facts in Park.) Finally, when "knowingly" is held to run only to "disposes," a criminal conviction requires only one's awareness of one's own actions and not an awareness that the waste is hazardous, but only that it is waste. (This is the level of culpability required by the Park responsible relationship doctrine.) To put it differently, the circuit courts have looked at: 1) whether a defendant must have known that he was treating, storing or disposing of waste, 2) whether he must have known the waste was hazardous, and 3) whether he must have known he was treating, storing or disposing of this hazardous waste without a permit.

Analogous interpretations are possible for Section 6928(d)(1), which reads:

[a]ny person who--

(1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this subchapter . . .,

. . .

shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed . . . five years in the case of a violation of paragraph (1) or (2), or both [emphasis added].

The Ninth and Eleventh Circuits interpret "knowingly" in this subsection as running all the way to its end. (124) The First Circuit supports the Eleventh Circuit's reasoning without specifically deciding the issue of statutory interpretation. (125) Again, the further down the sentence the word "knowingly" is applied as a modifier, the higher the level of knowledge that will be required for obtaining a conviction.

1. "Knowingly" running to "without a permit"

Four circuits, the First, Third, Ninth and Eleventh, have interpreted the word "knowingly" in Section 6928(d)(1) and Section 6928 (d)(2)(A) as running to knowledge of one's actions, knowledge that the waste is hazardous and knowledge of the lack of a permit or possession of an improper permit. When "knowingly" is held to run through "hazardous" to awareness of a permit violation, a criminal conviction requires one's awareness of one's own actions, plus an awareness that harm is probable and an awareness that one is acting in violation of the law.

In 1984, the Third Circuit in United States v. Johnson & Towers, Inc. (126) became the first court of appeals to address the issue of the level of mens rea needed for valid criminal convictions under Section 6928(d) of RCRA. In so doing, the court made explicit reference to Dotterweich. (127) The defendants in Johnson had successfully moved for dismissal in the lower court on grounds that only the owner or operator of the facility, who was responsible for obtaining a permit, could be convicted. In reversing the dismissal, the Third Circuit determined that the statute applies to "employees as well as owners and operators of the facility . . . if they knew or should have known that there had been no compliance with the permit requirement." (128) It also concluded that "knowingly" runs all the way down Section 6928(d)(2)(A) because to conclude otherwise would render nugatory the word "knowing" in subsection (B). (129) In other words, knowledge of the legal duty to take care in handling hazardous waste, even if not within a defendant's conscious awareness, could be imputed to him nonetheless. (130) The court further noted that RCRA, like the Food, Drug, and Cosmetic Act, was a "public welfare statute," so that the court could have read the statute without any mens rea requirement in subsection (A). (131)

The Third Circuit buttressed its holding by citing the Supreme Court's decision in United States v. International Minerals & Chemical Corp.. (132) In light of International Minerals, the court of appeals held that knowledge of RCRA could be imputed to employees acting above a certain level of responsibility. "[A]ll elements of that offense must be shown to have been knowing, but that such knowledge, including that of the permit requirement, may be inferred by the jury as to those individuals who hold the requisite responsible positions within the Corporate defendant." (133)

In 1986, the Eleventh Circuit in United States v. Hayes International Corp. (134) became the second court of appeals to interpret Section 6928(d) of RCRA. In Hayes, the jury had convicted an employee who was responsible for the disposal of hazardous waste, the president of a waste disposal company and three subordinates for criminal violations of RCRA. The court remanded the case with instructions to reinstate the jury's guilty verdicts. It cited International Minerals in support of its order and distinguished Hayes from the Supreme Court's reasoning in Liparota v. United States. (135) The court reasoned that the RCRA statute, in prohibiting conduct that any reasonable person should know is subject to regulation, is governed by the rule in International Minerals rather than the rule in Liparota. (136) Thus it would not be a defense to argue ignorance of the permit requirement, nor would there be a need for the government to show any awareness of wrongdoing. (137) The court noted the facts from which the jury was free to infer culpable conduct, including the low price paid for the waste as possible recyclable material, the agreement of the disposal company to gratuitously remove other wastes and the pattern of conversation between the two corporations. (138) To convict under 6938(d)(1), a jury must conclude that a defendant knew that he was dealing with hazardous waste and that the disposal site had no permit. (139) Thus "knowingly" travels all the way down the sentence of Section 6928(d)(1).

In United States v. Greer, (140) the Eleventh Circuit decided another criminal liability case under RCRA and treated the mens rea requirement of Section 6928(d)(2)(A) as it did Section 6928(d)(1) in Hayes. The court reinstated a jury's verdict where the owner of a waste recycling business was found guilty for failing to report illegal dumping. (141) Although the evidence did not show that the owner was directly involved in dumping the wastes, the court found that he was involved in the day-to-day operations of the business, instructed the plant manager to "keep the drum count down" and told his employees that "a rainy day is a good day to get your drum count down." (142) This was enough evidence for the jury to infer guilt, the court said.

In 1991, in United States v. MacDonald & Watson Waste Oil Co., (143) the First Circuit vacated the conviction of the president and owner of a disposal contractor company for disposing of toluene-contaminated soil without a proper permit. The defendant president had been warned before that his company did not have the legal authority to dispose of toluene-contaminated soil, so that like the defendant in Park, (144) he had been placed on notice of past violations. The court approved the Eleventh Circuit's reasoning in Hayes that "knowingly" in Section 6928(d)(1) extends to knowledge of a disposal facility's lack of a proper permit. ("Knowingly" in Section 6928(d)(1) requires one's awareness of one's actions plus an awareness that one is acting without a proper permit or in violation of the law.) (145) Thus, actual knowledge of an improper permit is not a defense, nor is willful blindness, in determining whether or not a permit is proper. Reversible error occurred when the district court instructed the jury that the defendant could be convicted without proof of his actual knowledge of the illegal transportation of hazardous waste. The jury instruction allowed the defendant's conviction as long as he believed, even mistakenly, that illegal activity of the same type had occurred before. (146) The court believed the instruction constituted a mandatory presumption. (147) It rejected the government's argument for conviction under what it termed the "strict liability . . . responsible corporate officer" doctrine of Dotterweich and Park, because Section 6928(d)(1) contained an explicit knowledge requirement. (148)

The Ninth Circuit in United States v. Speach (149) recently interpreted "knowingly" as running to all of the elements under Section 6928(d)(1). In Speach a jury had convicted the defendant president of unlawful transportation of waste effluent from his electroplating company. The court cited Liparota in support of its position that, absent an indication of contrary legislative intent, the mens rea requirement of knowledge extends to each element of the offense, including knowledge of not having a permit. (150) The court's interpretation that "knowingly" extends to knowledge of the permit status of the recipient facility in Section 6928(d)(1) was different from its earlier interpretation that "knowingly" in Section 6928(d)(2)(A) did not extend to "without a permit." (151) The court gave two reasons for interpreting the two sections of the statute differently. The first reason it gave was that Section 6928(d)(1), unlike Section 6928(d)(2), is not divided into subsections; instead, it consists of a single sentence. In contrast, Section 6928(d)(2) has three subsections; "knowingly" is present in subsections (B) and (C) but is absent from subsection (A) ("without a permit"), so that the government need not prove the defendant's knowledge of the lack of a permit. The court's second reason was that Section 6028(d)(1) deals with the lack of a permit on the part of the transporter of the waste, whereas Section 6928(d)(2) imposes criminal liability on the person in the best position to know if a facility lacks a permit -- namely, the person who treats, stores or disposes of the hazardous waste. Therefore, Section 6928(d)(2) rightly imposes a higher level of care (specifically, a duty to inquire into the status of a permit) on the part of facility operators. Hazardous waste transporters such as the defendant in Speach are not in the best position to know whether or not the recipient has a permit; thus, Section 6928(d)(1) convicts only upon showing actual knowledge of a lack of a permit or of an improper permit. (152)

2. "Knowingly" running to "hazardous waste"

Three circuits, the Fourth, Sixth and Ninth have interpreted the word "knowingly" in Section 6928(d)(2)(A) as running only to one's knowledge of one's actions and knowledge that the waste is hazardous. (153) When "knowingly" is held to run through "hazardous" but not to awareness of a permit violation, a criminal conviction requires one's awareness of one's own actions, plus an awareness that harm is probable.

In 1989, in United States v. Hoflin, (154) the Ninth Circuit upheld the conviction of the director of a city public work's department for the illegal disposal and burial of sludge. The court ruled that there was enough evidence to infer that the defendant gave orders for the sludge to be illegally dumped and that he knew the sludge "had the potential to be harmful to others or to the environment." (155) It was not necessary, the court held, to find that the defendant knew he lacked a permit or that one was required. Accordingly the court reasoned, the word "knowingly" which begins Section 6928(d)(2) cannot be read to extend to subsection (A) without rendering superfluous the word "knowing" in subsections (B) and (C). (156) It rejected the Third Circuit's interpretation of the statute in Johnson & Towers as "unreasonable." (157) It stated: "Had Congress intended knowledge of the lack of a permit to be an element under subsection (A) it easily could have said so." (158) The difference in the level of culpability in subsection (A) from subsections (B) and (C) reflects Congress' view of the relative importance of obtaining a permit and complying with it, as well as the greater probability that compliance with a permit will be monitored. (159) Citing Dotterweich, the court noted that RCRA's purposes, like those of the Food, Drug and Cosmetic Act, "touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." (160)

In United States v. Dee, (161) the Fourth Circuit upheld criminal sentences of three-years' probation for three civilian managers at a United States Army base for the illegal storage and disposal of chemical-warfare hazardous wastes without a permit. The permit the defendants had did not allow for the storage, treatment or disposal of dimethyl polysulfide and other hazardous wastes at their facility. (162) The court held that the proper standard for criminal liability under Section 6928(d)(2)(A) "does extend to knowledge of the general hazardous character of the wastes," but does not extend to knowledge of the regulations. (163) The defendants protested that they had little authority over facility maintenance and environmental compliance, which would have allowed them to correct a problem they had inherited rather than caused; however, the Fourth Circuit concluded that the district court had been correct in establishing the defendants' criminal culpability from their own ongoing failure to comply with RCRA during a fourteen-month period in which they were in charge of the facility. (164) The daily operations manager and his immediate superior had knowledge of "noxious odors," a weak roof and "corrosion and breakage" of storage containers. (165) For the third defendant, Dee, who was furthest up the organizational hierarchy, there was evidence only that he had been warned by safety inspectors on "several occasions" that the storage was improper. (166) It would appear that Dee was in a similar position to the defendant in Park (167) because he had been put on notice of violations and had relied on his subordinates to correct them, and because this reliance was ultimately held insufficient for avoiding criminal liability. Dee appears to have been held liable not only for his failure to get results (personal liability for an omission) but also because of his subordinates' conduct (vicarious liability). The court held that he had formal authority to control this activity, no matter how hampered this authority to control was in actuality.

In United States v. Dean, (168) the Sixth Circuit recently sided with the Ninth Circuit in Hoflin, when it interpreted "knowingly" as not extending to "without a permit" in Section 6928(d)(2)(A). The defendant in Dean was the production manager at a metal stamping, plating and painting facility. As such, he had daily responsibility for the company's hazardous waste disposal. Under his supervision, hazardous chemicals were dumped into an earthen lagoon and shoveled by hand into drums, which were thrown into a concealed pit behind the facility. (169) Citing International Minerals in support, the court stated that it saw "no basis on the face of the statute for concluding that knowledge of the permit requirement is an element of the crime." (170)

3. "Knowingly" running only to "disposes"

The Fifth Circuit has interpreted the word "knowingly" in Section 6928(d)(2)(A) as running only to knowledge of one's actions and knowledge that one is disposing of waste. When the word "knowingly" is held to run only through "disposes" and not to "hazardous" or to awareness of a permit violation, a criminal conviction requires only one's awareness of one's own actions. This level of culpability matches the level of culpability required in the Park responsible relationship doctrine.

In United States v. Sellers, (171) the Fifth Circuit developed the lowest level of culpability yet for conviction under Section 6928(d)(2)(A). A jury convicted the defendant of dumping sixteen 55-gallon drums of methylethylketone, a paint solvent, on a creek bank. He was sentenced to forty-one months imprisonment and three years supervised release, and he was ordered to make restitution to the state for the costs to clean up the site. (172) In its decision, the court cites with approval both International Minerals (173)and Dotterweich. (174)

The issue on appeal in Sellers was the jury instructions. (175) The defendant argued that the district court should have instructed the jury that "the [d]efendant knew or reasonably should have known that the substance was waste and that the waste could be harmful to persons or the environment if . . . improperly disposed of." (176) The court noted that this instruction was incorrect:

The Government is not required to prove that the Defendant knew that the waste was a hazardous waste within the meaning of the regulations. In other words, the Government need only prove that the Defendant knew what the waste was; that is, paint and paint solvent waste . . . . There is no requirement that the defendant must know that the waste would be harmful "if improperly disposed of." (177)

Because the issue of the extent to which "knowingly" modifies Section 6928(d)(2)(A) was raised first on appeal, and because the district court's "failure to give a more complete instruction was not plain error," the court did not incorporate its decision on the issue of statutory interpretation into its holding. (178) However, the only statutory interpretation consistent with the court's discussion of the jury instructions reads "knowingly" as running only to "treats, stores, or disposes" and not to "hazardous" or "without a permit." Through a constricted reading of "knowingly" as a modifier, the court introduced the responsible relationship standard of culpability into a statute with an explicit-knowledge mens rea requirement! The court noted that its interpretation was different from those in Dee, Hoflin, Greer and Johnson. (179) Thus, a criminal conviction requires only an awareness of one's own actions and not an awareness that the waste is hazardous -- only that it is waste.

Just three months after its decision in Sellers, a different panel of the Fifth Circuit retreated from its holding in that case. In United States v. Baytank (Houston), Inc., (180) the court ignored the possible subtle interpretations of mens rea under the statute and stated that the district court "was not required to instruct that the jury must find that the defendants knew the waste had been identified by the EPA regulations as hazardous under RCRA." (181) It further stated that it interpreted the word "knowingly" in Section 6928(d)(2)(A) similarly to the Fourth, Ninth and Eleventh Circuits:

[K]nowingly means no more than that the defendant knows factually what he is doing -- storing, what is being stored, and that what is being stored factually has the potential for harm to others or the environment, and that he has no permit -- and it is not required that he knows that there is a regulation which says what he is storing is hazardous under the RCRA. (182)

In view of the Fifth Circuit's decision in Baytank, one might ask whether its decision in Sellers is an anomaly, or whether that decision represents the clearest example of the insertion of the responsible relationship standard into a statute that would otherwise require more than ordinary negligence (i.e., knowledge) for a criminal conviction. The courts of appeals have split on whether or not a defendant must be aware that he is acting "without a permit." The First, Third and Eleventh Circuits agree that the government must prove the defendant knew he had no permit. The Fourth and Sixth Circuits relieve the government of this burden. The Ninth Circuit has "split," interpreting Section 6928(d)(2)(A) differently from Section 6928(d)(1). If a defendant before the Ninth Circuit is a facility operator who treats, stores or disposes of hazardous waste ((d)(2)(A)), the government need not prove his knowledge of the lack of a permit; but, if the defendant is a transporter ((d)(1)), the government must prove his knowledge of the lack of a permit. Whether or not Sellers is an anomaly, it is clear that the courts of appeals have blurred the distinction between the mens rea requirements of negligence and knowledge. On the same facts, a defendant may be acquitted in one circuit and be imprisoned for five years in a different circuit.

C. LIMITS TO THE "RESPONSIBLE RELATIONSHIP" DOCTRINE

There are at least three effective limits to the explicit use of the responsible relationship doctrine under Park (183) in the enforcement of RCRA. The first of these limits is that, except for Sellers, all courts have recognized that the word "knowingly" modifies more than the first element of the offense. "If Congress had intended such a strict statute, it could have dropped the 'knowingly' requirement." (184) Obviously, this limit does not apply where the statute is articulated as requiring no mens rea, such as the criminal penalties of the Rivers and Harbors Act of 1899 or the civil penalties of CERCLA response actions. (185) The presence of the term "knowingly" means that the use of the responsible relationship doctrine will be applied subtly, so that the same fact patterns that convicted the defendants in Dotterweich and Park will be expressed in different words; or to put it another way, the responsible relationship doctrine for criminal liability of a "responsible corporate officer" (which is how the term is usually expressed under RCRA) will appear as: 1) a statutory interpretation of Section 6928(d), 2) an easing of the government's burden of proof, or 3) an approval of a jury inference. The appearance of the responsible relationship's standard reflects the great public and Congressional pressure to strictly enforce RCRA.

The second limit to the application of the responsible relationship doctrine is evidenced by Congress' inclusion in 1980 of the crime of "knowing endangerment" into RCRA. (186) This particular crime requires "[t]he government to show that the defendant possessed a high level of awareness about the circumstances and potential consequences of his conduct before criminal penalties will attach." (187) Although "[t]he statute allows the trier of fact to infer guilty knowledge from circumstantial evidence, . . . [Congress] insisted on a finding of actual knowledge rather than the imputed knowledge of someone else." (188)

The third limit to the Dotterweich-Park test is the prosecutorial discretion afforded the EPA and the Department of Justice. (189) It is the current policy of both agencies "to seek [criminal] penalties against the highest ranking officers in the corporate hierarchy for whom personal culpability can be shown." (190) Almost all of such criminal convictions are obtained against corporate officers of closely held companies, in which the officers and owners are intimately involved with daily operations. Courts likely will use broader language suggestive of Park and Dotterweich; but, as in those two cases, the facts almost always indicate that the corporate officer probably did know what was going on, or at least may have known or should have known. The case of the corporate officer of the very large corporation being convicted for culpable acts far down the corporate hierarchy in a subsidiary, for example, has not yet appeared in federal environmental cases.

IV. THE "RESPONSIBLE RELATIONSHIP" DOCTRINE IN THE
ENFORCEMENT OF STATE ENVIRONMENTAL LAWS

Many state environmental laws permit criminal penalties without an explicit proof of mens rea. (191) Unburdened by RCRA's knowledge requirement, state court decisions since 1980 have explicitly applied the responsible relationship standard of Dotterweich-Park. In reviewing appeals of criminal convictions of corporate officers for state environmental crimes, appellate courts in Hawaii, Delaware, California and Wisconsin have cited Dotterweich or Park or used the responsible relationship doctrine's standard of culpability. Only one court, in Pennsylvania, has rejected Park as inappropriate under a state environmental statute. (192)

The first state case to cite Dotterweich or Park was State v. Kailua Auto Wreckers. (193) In this case, the Supreme Court of Hawaii relied on Park as its primary persuasive authority in convicting the husband and wife owners of a corporation for the open burning of junked automobiles, contrary to an air pollution statute:

[I]n accordance with the principles set forth in Park, we hold that high corporate officers who possess managerial authority bear a personal responsibility to the public to exercise reasonable care to discover any violation of the open burning regulation, to remedy any such violation of which the officer knows or should have known, and to prevent future violations. (194)

As vice-president, secretary and general manager, the husband set company policy and carried out day-to-day operations. His wife, the president and treasurer, was convicted as a "responsible corporate officer" who could have prevented these violations even though the record showed that she:

did not take an active part in the business, never issued orders on business operations and never set company policy. Her only participation in the business was to run a few errands now and then and occasionally to attend the corporations's annual director's meeting. [S]he was and always has been just a housewife. (195)

More than Park, this decision comes close to being a criminal conviction for simply holding a corporate office.

In State v. Colbert, (196) the Supreme Court of Delaware cited Park (197) with approval. A jury found the defendant guilty of intentionally storing hazardous waste (in this case, paint) without a permit. (198) The only evidence connecting the defendant as a corporate officer to the corporation which had stored the paints was his signature on "the 1984 State Franchise Tax Report" as one of two corporate officers together with his brother, who had actually ordered and stored the paint. (199) Delaware law makes an individual criminally liable for corporate conduct "which he performs or causes to [be] perform[ed]." (200) The court held that there was insufficient evidence to allow a jury to find the defendant had "caused" the offense to be performed, and that there was no evidence that he had "performed" the offense. The evidence introduced at trial amounted to conviction for "the holding of corporate office alone," and had to be reversed under Delaware law and, by analogy, under the reasoning of a comparable public welfare statute, the FDCA. (201)

In People v. Martin, (202) the California Court of Appeals, Second District, upheld the conviction of the president of a chemical blending plant under the California Hazardous Waste Control Act. (203) The president received a five-year felony probation and personal fines of $127,200 for having illegally disposed of virtually empty hazardous waste containers, because California law, unlike federal law, regulates the disposal of "empty" drums as hazardous waste. (204) The court held that the California "legislature intended to impose criminal liability . . . even where . . . conduct falls short of gross negligence or recklessness;" that is, a jury should apply "a civil negligence standard of conduct in determining [criminal liability]." (205) The factors a jury may take into consideration include: 1) the president's physical presence at the plant, 2) his supervision of operations and employees, 3) his instructions to employees, and 4) the structural and operational procedures of the plant. (206) The court cited both Dotterweich (207) and Park (208) as imposing criminal liability for ordinary negligence. While noting that "though not a strict liability offense," the court found liability on "a standard of ordinary care." (209)

The Supreme Court of Wisconsin in State v. Rollfink (210) upheld summary judgment against the owner of a manufacturing plant for improperly disposing of waste byproducts from the manufacture of insecticides, herbicides and paint solvents. The court stated:

We hold that a corporate officer is personally liable for violations of [Wisconsin's solid and hazardous waste laws] committed by the corporation if the officer is responsible for the overall operation of the corporation's facility . . . . [W]e do not hold or imply that every corporate officer or majority shareholder is subject to personal liability for violations . . . committed by the corporation. The test of liability . . . is that of responsibility for the overall operation of the facility in question. (211)

In this case, the evidence showed that the owner "knew of the hazardous waste problems prior to the opening of the . . . plant" and "fired an employee who informed him that . . . [the] waste disposal methods were illegal." (212) The court did not reference Dotterweich or Park; it did not need to. The language of the "responsible relationship" doctrine is written into the statute and regulations. (213)

Pennsylvania courts dealt with Park in two unusual contexts. One court rejected it as an inappropriate standard to impose civil liability on a corporate officer under an abatement order, in Kaites v. Department of Environmental Resources. (214) Another court approved of Park's standard of criminal liability in upholding the conviction of a corporation, rather than an individual corporate officer, in Waste Conversion, Inc. v. Commonwealth. (215) In Kaites, the State Environmental Hearing Board had held the president of a mining, coal processing and refuse complex individually responsible for complying with an abatement order pertaining to acidic discharges from an improperly sealed coal mine. In reversing the board's decision, the court stated that Pennsylvania law imposes individual tortious liability on a corporate officer only for his actual participation in a wrongful act and not for "simple nonfeasance"; the board had been incorrect to base individual liability on the defendant's position as president. (216)

In Waste Conversion, Inc. the court approvingly cited Park with approval, (217) while rejecting as insufficient the defendant corporation's impossibility defense, because it did indeed have the responsibility and control to prevent the illegal dumping of waste. The defendant, a hazardous waste facility, had hired a transporter to truck waste to a disposal site. The transporter had lost part of his load of waste while in the process of negotiating a hill he had taken in order to avoid detection of excessive weight at a highway weighing station. In affirming the trial court's imposition of vicarious liability on the defendant, the court rejected the defendant's argument that the transporter was an independent contractor whose actions were beyond its control. (218)

Apart from the arguably improper use of Park in one Pennsylvania case, Waste Conversion, to impose criminal liability upon a corporation rather than a corporate officer, the other four states that have considered the "responsible relationship" doctrine have approved of its standard of culpability for corporate officer criminal liability. Those four cases are proof of the establishment of the doctrine under statutes analogous to RCRA and which, like California's Hazardous Waste Control Act, may be more inclusive than RCRA.

V. IMPLICATIONS

The precise nature of the "responsible relationship" doctrine is revealed in its effect during a trial, which is to shift the burden of production through the affirmative defense of "impossibility." The defendant corporate officer must introduce enough evidence to establish that he exercised extraordinary care and still could not prevent the violations. Once created, the affirmative defense places an additional burden on the government to prove beyond a reasonable doubt that the defendant, by the use of extraordinary care, was powerless to prevent the violations. (219) The burden of persuasion never shifts from the prosecution to the defendant, inasmuch as this would be unconstitutional. (220) This description of the doctrine is more precise than stating that the trier of fact will not consider the defendant's mens rea, i.e., saying the statute is one of strict liability. In actuality, while described in strict liability terms, the statute imposes criminal liability for ordinary negligence. The proof of mens rea is reduced to ordinary negligence. As the Supreme Court stated in Park, "[t]he concept of a 'responsible relationship' to a violation of the Act indeed imports some measure of blameworthiness." (221)

Both federal and state courts have applied the doctrine to impose criminal penalties upon individual corporate officers in environmental cases. The recent Fifth Circuit case, United States v. Sellers, (222) shows this. Sellers severely narrows the level of knowledge required under RCRA by interpreting the word "knowingly" as running only to the first element of the crime -- "treats, stores, or disposes." (223) Under Sellers, a criminal conviction requires only an awareness of one's own actions, even without an awareness that the waste is hazardous. This is the level of culpability required in the "responsible relationship" doctrine. Many state statutes contain a similar level of culpability for such convictions. Cases in California, Delaware and Wisconsin may be indicative of increased state approval of the "responsible relationship" doctrine.

There are several limits to the responsible relationship doctrine's expansion under RCRA and analogous state statutes. First, courts can restrict but never obliterate "knowingly" in the statute's language. Second, judicial limits on jury inference also act as a constraint, because the doctrine allows juries to infer culpability from circumstantial evidence. Third, the prosecutorial discretion exercised by the EPA and the Department of Justice has a large impact. (224) In one sense, strict liability only exists as an abstract enunciation of the doctrine. Given prosecutorial discretion, there is always some evidence to implicate a defendant corporate officer. The doctrine helps the prosecutor where there is some evidence, but not enough to convict under the usual criminal law standard of greater-than-ordinary negligence. The doctrine balances competing needs: the need to protect the public, the need to convict corporate officers insulated and protected by layers of bureaucracy, and the need not to criminalize innocent conduct. To some extent these needs compete, so that meeting one endangers the others. The doctrine balances public privilege and private responsibility in keeping with Congress' overall intent. (225)

One final point needs to be made: courts' views about organizational decision-making, as shown in their use of the "responsible relationship" doctrine, influence, in turn, their views on mens rea for omissions. Simple theories of organizational decision-making result in simplified approaches to the attribution of knowledge to corporate officers.

With respect to the actus reus, the responsible relationship doctrine requires that responsible corporate officers in small and large -- but not yet very large -- corporations meet the legal duty to avoid violations government requires of them from: 1) their assumption of public responsibility, 2) their obligation to correct a peril they have caused from hazardous waste, or 3) their obligation to ensure mistake-free operational performance and control systems. Responsible corporate officers face opposing dangers. If they improperly delegate responsibility without adequate feedback, they can be found criminally liable for their omission to prevent a violation; but, if they retain the knowledge of every day business operations, they can also be criminally convicted as direct participants or as aiders and abettors. In essence, the law requires that responsible corporate officers be in control of the operational feedback loop of their corporations' operational performance and control systems.

In large corporations, corporate officers or top management are usually not in the immediate feedback loop for line-item budgeting and operational control: their focus is more on planned programs and less on operational control of day-to-day production systems. The "responsible relationship" doctrine requires that corporate officers or top management be involved intimately in operational control, thereby obliterating the normal divisions that lead to efficient delegation in large organizations. This doctrine shows no sensitivity to the size of a corporation, so that multi-state corporations with thousands of employees (as in Park) are subject to the same doctrine as a corporation with a single person as owner, president and operations manager. In short, the doctrine requires, in effect, that corporate officers or top managers not delegate to subordinates the control or feedback portion of any standard operating procedures relevant to statutory compliance.

That courts do not appreciate the organizational difficulties involved in not delegating such tasks results from their (unconscious) balancing of public privileges with public duties. The "responsible relationship" doctrine means that courts will not allow corporate officers any excuses for mislabelled or contaminated drugs or for improperly disposed of hazardous wastes.

With respect to the mens rea, the responsible relationship doctrine requires a standard for extraordinary care, consistent with its constraints on management delegation. In delegation, actions and omissions become blurred. For example, is a failure to secure adequate feedback from delegated responsibility the result of inaction (an omission) or is it the result of a poorly shaped standard operating procedure (an act)? The courts' discussions of mens rea under the responsible relationship doctrine is blurred by thinking of mens rea in transitive terms, for acts rather than omissions. It would be clearer for the courts to think of mens rea in terms of those circumstances not allowed to excuse a defendant, whether acts or omissions. (226) Specifically, a corporate officer cannot allege delegation as an excuse, even if proper from the points of view of organizational structure, organizational efficiency and personnel management.

This standard of extraordinary care is realized during trial either by shifting the burden of production of the affirmative defense of impossibility or powerlessness to the defendant or by a more expansive review of jury inferences from the admitted evidence. Because the mens rea inquiry is factually similar to that for the actus reus and because courts talk more in terms of omissions (and their confused perception with respect to mens rea), the reality at trial seems to be a blurring of actus reus with mens rea. In prosecuting any corporate officer with ultimate authority for day-to-day operations, it is always possible to argue that in this capacity he or she should have known of and corrected any violations, even if he or she did not. Causation is simplified. This simplification closely approaches criminally convicting an individual for a state of being, namely, being a corporate officer. In jury deliberations about the guilt of a president, who is responsible for "everything," and who sits where the buck stops, the distinction between being a corporate officer, on the one hand, and being the responsible corporate officer for the violations, on the other hand, may well be lost. It is lost on some trial judges. (227)

There is one final implication of the responsible relationship doctrine which results from how courts articulate the difference between an abstract rule (the responsible relationship doctrine) and the rule's application (the effect of the rule during trial). Articulating this difference is more difficult in the "responsible relationship" doctrine than in other rules because courts discuss in legal terms those terms derived from management. The language of court decisions abstracts from corporate realities of delegation, supervision, control and feed-back. It translates the actions and inactions of corporate officers who have a "responsible relationship," i.e., authority to control an area of operations in a business, into pieces of evidence to be judged on admissability and to be fitted into jurors' thinking through jury instructions.

There is a chain of abstraction and reinterpretation from the language of previous decisions, specifically as to what they say about the application of the responsible relationship doctrine and its burdens of production and persuasion, to the individual pieces of evidence in an instant case, including the actions of corporate officers. These corporate officers' actions are then placed into the abstract concept-boxes by the trier of fact for a determination as to: 1) their actus reus by evaluating their degree of direct involvement or indirect involvement with respect to their subordinates in selection, training, delegation, ongoing supervision, feedback, correction and discipline; and 2) their mens rea through an inquiry into the same facts with a almost indistinguishable analysis of the facts.

The individual actions of corporate officers with respect to their subordinates are different depending on the size of the corporation, the degree of decentralization, management style in delegating and the expertise of subordinates. Courts acknowledge the difference in size among corporations only to a limited degree by considering, in making decisions about individual corporate officers' criminal liability, the size of the corporation, these individual corporate officers' percent of ownership, their technical or operational background (goes to knowledge), their personal participation in day-to-day operations (a function of both size and management style) and their sanctioning powers over subordinates.

The typical defendant in an environmental case is a corporate officer with day-to-day operational involvement in waste disposal, who has an intimate knowledge of employees' actions, budgetary control, and policy and procedure formulation, and who owns at least part of the corporation. (228) These corporations are relatively small. Their operations are knowable by a single person. In such small corporations, the actus reus is met by direct, personal participation, by directing or authorizing others with intent or knowledge of the results, by consent or by authorization. Thus, liability for omissions is properly personal, rather than vicarious as some courts have stated.

The intermediate case (e.g., Park) is a large corporation, with several sites of operation, either in different states or far apart, and a large enough number of employees that it is impossible for a senior corporate officer to know what is going on in all areas. This does not mean it is not possible for him to inquire diligently and determine what is likely or actually going on, despite the ubiquitous problem of subordinates telling bosses what they think the bosses wish to hear as opposed to what is really going on. Here, the senior corporate officer is indirectly involved in regulatory compliance, unless of course, the criminal penalties through their deterrence effect force him to be intimately aware of particular areas of the business. In corporations of this size, the "responsible relationship" doctrine is used, first, when the FDA or the EPA believes there is actual notice and knowledge from previous inspections and citations, or second, where there was a large or ongoing problem, such that the senior corporate officer very likely knew what was occurring, but nonetheless it is difficult to prove in court that he really knew what occurred under the traditional burden of persuasion in the criminal law. Here the doctrine is used to shift the burden of production in order to make it easier for the prosecution to meet its burden of persuasion and to allow the jury to infer from the manifold actions of his subordinates, if not knowledge, than involvement.

The case not yet reported is that involving the senior corporate officer of the very large, publicly-held, national or multi-national corporation, with many layers of authority, who is not involved in or aware of any violations. Here the size of the corporation may finally protect a top corporate officer where there is no scintilla of evidence of his involvement. If the doctrine as stated in the abstract will not protect him, in effect the prosecutorial discretion of the FDA and the EPA, in their respective purviews, will do so.

VI. CONCLUSION

Courts have entrusted prosecutors with the judgment to avoid indicting corporate officers for negligently supervising their subordinates. Whether this trust is appropriate or not depends upon one's point of view about giving prosecutors what amounts to, in the circumstances of convicting a corporate officer of a large and complex organization, a large amount of discretion. The courts' allowance of this discretion, while in keeping with Justice Frankfurter's words in Dotterweich, (229) can criminalize innocent conduct.

In favor of this trust of prosecutorial discretion is the practical difficulty in obtaining a conviction of a corporate officer who is protected by layers of bureaucracy based on circumstantial, indirect evidence. "Environmental criminal cases prosecuted to date have involved testimonial or other compelling evidence that the individuals involved clearly were aware of and directed or encouraged the illegal disposal activities;" (230) yet, the "responsible relationship" test by reducing its burden of proof, allows the government to obtain convictions where, in a different context, the criminal justice system would have failed to convict. Where the danger to the public is great and where the public cannot protect itself, the law places the burden of protection "upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers." (231)

Against this trust of prosecutorial discretion is the context in which this discretion is allowed. First, prosecutors conceived of using the responsible relationship doctrine as an argument for conviction. (232) Second, neither the Department of Justice nor the EPA has clear policies to govern their discretion in determining whether to proceed with a criminal case. Under these circumstances, enforcement can be uneven, and the results severe. (233) Third, courts have had difficulty in understanding how managers in large and complex organizations make decisions and ensure that these decisions are implemented. Fourth, they also have had difficulty in determining mens rea based on omissions. The courts' blurring of the distinction between knowledge and negligence in criminal convictions under RCRA, (234) such that all that is necessary is for a corporate officer to be negligent, gives prosecutors much maneuverability in deciding whether or not to indict. Today, there exists the possibility that a manager may be convicted not for acting badly, not for being consciously aware or willfully ignorant of the probability of harm to others, but for being negligent in the supervision of subordinates who may work layers down in the organization's bureaucracy.

The federal courts of appeals have given criminal defendants under RCRA an amazing state of affairs. A doctrine applied to a public welfare statute, the Food, Drug and Cosmetic Act, which has no explicit mens rea requirement, has been transposed onto a statute, RCRA, which has an explicit mens rea requirement of knowledge. The knowledge requirement is eviscerated, and negligence is substituted sub rosa by means of grammatical ambiguity. Penalties for conviction are severe: fines of $50,000 per day and jail for up to five years. (235) Whether trusting this discretion to prosecutors is appropriate or not, can be reduced to one question: Is the potential for a criminal conviction based, in effect, on negligence a proper balancing of public responsibility with private duty?

ENDNOTES

1. Food, Drug, and Cosmetic Act of 1938, ch. 675, 1, 52 Stat. 1040, 21 U.S.C. 301-392 (1984 & Supp. 1992). See infra notes 26-31 and accompanying text for a discussion of the FDCA.

2. 320 U.S. 277 (1943).

3. 421 U.S. 658 (1975).

4. Resource Conservation and Recovery Act of 1976, amended by the Solid Waste Disposal Act Amendments of 1980 and the Hazardous Waste Amendments of 1984, 42 U.S.C. 6901-6991i (1982 & Supp. II 1984).

5. Kathleen F. Brickey, Criminal Liability of Corporate Officers for Strict Liability Crime -- Another View, 35 Vand. L. Rev. 1337 (1982) [hereinafter Criminal Liability]; Kathleen F. Brickey, 1 Corporate Criminal Liability: A Treatise on the Criminal Liability of Corporations, Their Officers and Agents 142-46 (1984 & Supp. 1991) [hereinafter Corporate Criminal Liability].

6. John F. Seymour, Civil and Criminal Liability of Corporate Officers Under Federal Environmental Laws, 20 Env't Rep. (BNA) 337, 341-43 (June 9, 1989).

7. Steven Zipperman, The Park Doctrine -- Application of Strict Criminal Liability to Corporate Individuals for Violation of Environmental Crimes, 10 UCLA J. Envtl. L. Rev. 123 (1991).

8. Seymour, supra note 6, at 342.

9. United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991); United States v. Dee, 912 F.2d 741 (4th Cir. 1990), cert. denied, 111 S.Ct. 1307 (1991); United States v. Sellers, 926 F.2d 410 (5th Cir. 1991); United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991); United States v. Dean, 969 F.2d 187 (6th Cir. 1992); United States v. Speach, 968 F.2d 795 (9th Cir. 1992).

10. Under common law, a crime requires the "concurrence of an evil-meaning mind with an evil-doing hand." Morissette v. United States, 342 U.S. 246, 251 (1952). Actus non facit reum, nisi mens sit rea ("an act does not make one guilty unless his mind is guilty"). United States v. Winston, 558 F.2d 105, 107 (2nd Cir. 1977), cited in Zipperman, supra note 7, at 125 n.16.

11. See Graham Hughes, Criminal Omissions, 67 Yale L.J. 590, 601-07 (1958):

The concept of mens rea and its subconcepts, intention and recklessness, were constructed as generalizations of the instances of liability for offenses of commission. They cannot be fluently applied to offenses of omission, and it is a mistake to attempt to do so. The real concern should not be with the circumstances in which an omission may properly be described as intentional but with those circumstances in which an omission is excusable or ought to be excusable . . . If we can reject the mesmerizing impact of the affirmative concepts of mens rea and begin to approach the defendant's position by considering exactly what he alleges by way of excuse, most of the difficulties will disappear.

Id. at 605-06, 607.

12. That this is what occurred is occasionally shown in the comments of courts of appeals. See MacDonald & Watson Waste Oil Co., 933 F.2d at 50.

13. "Public welfare offense" refers to:

a now familiar type of legislation whereby penalties serve as effective means of regulation . . . such legislation dispenses with the conventional requirement for criminal conduct -- awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to the public danger.

Dotterweich, 320 U.S. at 280-281, citing Morissette 342 U.S. at 259-260 (emphasis added).

14. United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 565 (1971); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1502-03 (11th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 666-668 (3rd Cir. 1984).

15. United States v. Park, 421 U.S. 658, 669-73.

16. Sandstrom v. Montana, 442 U.S. 510 (1979); Francis v. Franklin, 471 U.S. 307 (1985).

17. Karen M. Hansen, "Knowing" Environmental Crimes, 16 Wm. Mitchell L. Rev. 987, 988, 1012, 1016 (1990). See United States v. Y. Hata & Co., 535 F.2d 508, 510-12 (9th Cir. 1976), cert. denied, 429 U.S. 828 (1976); United States v. Starr, 535 F.2d 512, 515-16 (9th Cir. 1976).

18. Provisions collected in Christopher Harris, et al., Criminal Liability for Violations of Federal Hazardous Waste Law: The "Knowledge" of Corporations and Their Executives, 23 Wake Forest L. Rev. 203, 219 n.94.

19. F. Henry Habicht II, The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 Envtl. L. Rep. (Envtl. L. Inst.) 10478, 10479-10480 (December 1987); Robert G. Schwartz, Jr., Criminalizing Occupational Safety Violations: The Use of "Knowing Endangerment" Statutes to Punish Employers Who Maintain Toxic Working Conditions, 14 Harv. Envtl. L. Rev. 487, 492 (1990).

20. The Supreme Court has noted this linguistic ambiguity. Liparota v. United States, 471 U.S. 419, 424 & n.7 (1985). In interpreting a statute criminalizing the improper use of food stamps, the Court noted that in the absence of contrary legislative intent, the "knowledge" requirement of mens rea extended to each element of the offense. Id. at 425 (interpreting 7 U.S.C. 2024(b)(1)).

21. Schwartz, supra note 19, at 487.

22. For example, United States v. Empire Packing Co., 174 F.2d 16 (7th Cir.), cert. denied, 337 U.S. 959 (1949) (conviction of a corporation and its president for filing false claims for government subsidies); and United States v. Carter, 311 F. 2d 934 (6th Cir.), cert. denied, 373 U.S. 915 (1963) (conviction of a corporation and its president for illegal payments to union officials). See Corporate Criminal Liability, supra note 5, at 39-58. The Model Penal Code provision for corporate liability illustrates this approach:

(1) A corporation may be convicted of the commission of an offense if: (c) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment . . . (4) As used in this Section: . . . (c) "high managerial agent" means an officer of a corporation . . . or any other agent of a corporation . . . having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation.

Model Penal Code 2.07 (Proposed Official Draft 1962). For a discussion of the Model Penal Code, see Developments in the Law -- Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227, 1251-57 (1979).

23. See Simeon M. Kriesberg, Decisionmaking Models and the Control of Corporate Crime, 85 Yale L.J. 1091 (1976). One theory that tackles the problem of complex decision-making in organizations is that of "collective knowledge" of guilt, where no single employee has the entire mens rea that can be imputed to the corporation. See United States v. Board of New England, N.A., 821 F.2d 844 (1st Cir. 1987). See further Herbert A. Simon, Administrative Behavior 79-171 (3d ed. 1976); Marshall B. Clinard, Corporate Ethics and Crime: The Role of Middle Management 12-13, 131-63 (1983); Marshall B. Clinard & Peter C. Yeager, Corporate Crime 43-73, 272-98 (1980).

24. See Habicht, supra note 19, at 10480-81; Seymour, supra note 6, at 343.

25. See Corporate Criminal Liability, supra note 5, at 146-49.

26. 21 U.S.C. 301-392 (1984 & Supp. 1992).

27. United States v. Park, 421 U.S. 658, 672 (1975). A public welfare offense is an offense that attaches to regulatory statutes designed to protect the public's health. Where the threat to the public is serious enough, as "where . . . dangerous or deleterious devices or products or obnoxious waste materials are involved, [and] the probability of regulation is so great . . . anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 565 (1971) (violation of Interstate Commerce Commission regulation requiring shipping papers to reflect information concerning the corrosive liquids being shipped).

28. Federal Food and Drugs Act of 1906, 34 Stat. 768 (repealed). For the gross abuses which had led to the 1906 Act, see the muckraking classic Upton Sinclair, The Jungle (1906). The weak criminal penalties under the 1906 Act led to the stronger penalties under FDCA. See Developments in the Law -- The Federal Food, Drug, and Cosmetic Act, 67 Harv. L. Rev. 632, 634-35, 693-95 n.495 (1954). Despite the omission of a mens rea requirement under the 1906 Act, courts had frequently instructed juries that mens rea was necessary for conviction. See cases cited in Burton R. Rissman, Criminal Intent Under the Federal Food, Drug, and Cosmetic Act, 7 Food Drug Cosm. L.J. 498, 501 (1952), cited in Developments in the Law, 67 Harv. L. Rev. at 695 n.505. In passing the FDCA, Congress removed mens rea from the one section of the law that had contained it. Developments in the Law at 695 n.507.

29. United States v. Buffalo Pharmaceutical Co., 131 F.2d 500 (2d Cir. 1942), rev'd sub nom., United States v. Dotterweich, 320 U.S. 277 (1943), reh'g denied, 320 U.S. 815 (1943). Just prior to Dotterweich, the Third Circuit had interpreted the FDCA as dispensing with "knowledge" as an element of a crime under 301 of the act. United States v. Greenbaum, 138 F.2d 437 (3d Cir. 1943) ("knowledge" of the actus reus not necessary; corporate president criminally liable for introducing into interstate commerce cans of rotten eggs).

30. As noted by the Fourth Circuit in United States v. Park, 499 F.2d 834, 841 n.3 (4th Cir. 1974), rev'd, 421 U.S. 658 (1975), cited in Tracey L. Spiegelhoff, Limits on Individual Accountability for Corporate Crimes, 67 Marq. L. Rev. 604, 612-13 n.54 (1984).

31. Section 301(k) of the FDCA provides, in part:

The following acts and the causing thereof are prohibited:. . . (k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded.

21 U.S.C.A. 331(k). The first violation involved the interstate shipment of a compound to which an old label had been affixed indicating the presence of strychnine sulphate, a drug that had recently been dropped from the Food and Drug Administration's (FDA's) National Formulary. The second violation involved the interstate shipment of digitalis tablets that were less than one-half of the potency represented on the label.

32. The court fined Dotterweich $500 on each of three counts (the last two were suspended) and gave him 60 days probation concurrently on each count. While the fines and probation were minor criminal sentences, a second offense was an automatic felony. Buffalo Pharmaceutical Co., 131 F.2d at 503.

33. Dotterweich, 320 U.S. at 281.

34. Id. at 280.

35. Id. at 281 (emphasis added).

36. Id. at 285. Congress has refused to amend the FDCA to require mens rea. See Daniel F. O'Keefe, Jr., & Marc H. Shapiro, Personal Criminal Liability Under the Federal Food, Drug, and Cosmetic Act -- The Dotterweich Doctrine, 30 Food Drug Cosm. L.J. 5, 44, n.19a. (1975). See also Vincent A. Kleinfeld, Legislative History of the Federal Food, Drug, and Cosmetic Act, 1 Food Drug Cosm. L.J. 532 (1946).

37. Dotterweich, 320 U.S. at 284.

38. It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress . . . would be mischievous futility. In such matters, the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on 'conscience and circumspection in prosecuting officers' [citations omitted].

Id. at 285.

39. Herbert L. Packer, Mens Rea and the Supreme Court, Sup. Ct. Rev. 107, 116-19 (1962).

40. Criminal Liability, supra note 5; Norman Abrams, Criminal Liability of Corporate Officers for Strict Liability Crimes -- A Comment on Dotterweich and Park, 28 UCLA L. Rev. 463 (1981).

41. See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 203-07 (2d ed. 1986) (describing the circumstances under which an omission to act can lead to criminal liability).

42. Dotterweich, 320 U.S. at 281. It is unclear from the court's opinion, whether, in addition to the defendant's conscious awareness of his own actions, he must have had the capacity for awareness that his actions were wrong or, alternatively, simply must not have known that his actions were wrong.

43. Id. at 283. Criminal Liability, supra note 5.

44. 320 U.S. at 284.

45. Abrams, supra note 40, at 475.

46. Packer, supra note 39, at 116-19; LaFave & Scott, supra note 41, at 253. But compare the view that this case establishes a standard of extraordinary care rather than of strict liability, Developments in the Law -- Corporate Crime, supra note 22, at 1262 n.102, 1265 n.114.

47. 320 U.S. at 285.

48. Id.

49. "It is very difficult to distinguish this holding from the line of cases in which courts have inferred knowledge on the part of corporate officers from their intimate involvement in the corporate business and their acquiescence in the criminal activity which occurred." Spiegelhoff, supra note 30, at 612.

50. Id. at 612-13 n.54.

51. Equivalent to "recklessness" or "tacit approval," from which a jury can infer "knowledge." United States v. Jewell, 532 F.2d 697, 700-04 (9th Cir. 1976), cert. denied, 426 U.S. 951 (1976). See also other cases cited in Seymour, supra note 6, at 347 n.49.

52. "Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers . . . rather than to throw the hazard on the innocent public who are totally helpless." United States v. Dotterweich, 320 U.S. 270, 285 (1943), reh'g denied, 320 U.S. 815 (1943). See O'Keefe & Shapiro, supra note 36.

53. During the thirty-two years between Dotterweich and Park, the targets of prosecution under the FDCA were owners or officers of relatively small corporations who were regularly involved in day-to-day operations. O'Keefe & Shapiro, supra note 36; Corporate Criminal Liability, supra note 5, at 130-32.

54. 421 U.S. 658 (1975).

55. For articles discussing Park's impact on the food and drug industry and on the liability of responsible corporate officers, see Corporate Criminal Liability, supra note 5, at 133 n.125.

56. 421 U.S. at 660.

57. Park is cited often today as authority that an appellate court must take jury instructions as a whole in deciding whether or not they constitute error, as well as authority for the "responsible relationship" test. See United States v. Terzado-Madruga, 897 F.2d 1099, 1122 (11th Cir. 1990) (conviction for possession and distribution of cocaine); United States v. Alcantar, 832 F.2d 1175, 1178 (9th Cir. 1987) (embezzlement from a federally-insured bank); United States v. Solomon, 825 F.2d 1292, 1295 (1987) (income tax evasion and conspiracy).

58. Although he "delegated 'normal operating duties,' including sanitation, . . . he retained 'certain things, which [were] the big broad, principles of the operation of the company,' and [he] had 'the responsibility of seeing that they all work[ed] together.'" 421 U.S. at 663.

59. Id. at 664-65, 678.

60. Id. at 672.

61. Id. at 672, 675.

62. Id. at 673.

63. Id. at 672.

64. Id. at 673 (emphasis added).

65. Compare Criminal Liability, supra note 5, with Abrams, supra note 40.

66. See Hughes, supra note 11 at 601-07 (discussing the difficulty of determining mens rea from an omission).

67. Cause-in-fact is required between a corporate officer's failure to act and any violation, but the prosecution need not show specific wrongful action. "We cannot agree with the Court of Appeals that it was incumbent upon the District Court to instruct the jury that the Government had the burden of establishing 'wrongful action.'" Park, 421 U.S. at 673-74.

68. "[T]ransitive: . . . expressing an action that is thought of as passing over to and taking effect on some person or thing . . . . " Webster's New Universal Unabridged Dictionary 1939 (2d ed. 1983).

69. Hughes, supra note 11, at 605-06 (discussing the concept of mens rea as based on acts rather than omissions).

70. Park, 421 U.S. at 673. See Corporate Criminal Liability, supra note 5, at 138-41; Developments in the Law -- Corporate Crime, supra note 22, at 1262-65.

71. 421 U.S. at 673.

72. Id.

73. Developments in the Law -- Corporate Crime, supra note 22, at 1264-65.

74. Thus, as one commentator explained, a vice president of production would be able to use the impossibility defense for a violation in sales; however, he would not be able to use it for a similar violation in production even if he was away from the premises when it occurred. Developments in the Law -- Corporate Crime, supra note 22, at 1263. In two subsequent cases under FDCA, defendants did not meet the "impossibility" defense because they did not demonstrate the "highest standard of foresight and vigilance" required by Park. United States v. Y. Hata & Co., 535 F.2d 508, 510-12 (9th Cir. 1976), cert. denied, 429 U.S. 828 (1976) (precautions could have and should have been implemented prior to the FDA citations); United States v. Starr, 535 F.2d 512, 515-16 (9th Cir. 1976) (improper reliance on a subordinate; a corrective reprimand to an employee is insufficient to establish the "impossibility" defense).

75. 421 U.S. at 671.

76. Id.

77. United States v. Torigian Lab., Inc., 577 F. Supp. 1514, 1529 (E.D.N.Y. 1984) (the district court affirmed a magistrate's holding that "[a]ll that need be shown is that the individual was in a position of power or authority to detect, prevent, or correct violations of the Act") (emphasis added).

78. United States v. New England Grocers Supply Co., 488 F. Supp. 230, 234 (D. Mass. 1980).

79. The magistrate had interpreted Park as "stand[ing] for the proposition that the head of a corporation can be charged because of his conviction as corporate chief," and that the defendant in Park "was individually convicted . . . by virtue of his position as president." Id. at 233 (quoting the magistrate's opinion).

80. Id. at 233-34.

81. Id. at 235-36.

82. Id. at 236.

83. 793 F.2d 232, 235, 237, 239-40 (10th Cir. 1986).

84. 577 F. Supp. 1514, 1529-30 (E.D.N.Y. 1984).

85. 601 F. Supp. 1205, 1213 (E.D.N.Y. 1984), aff'd, 773 F.2d 427, 429 (2d Cir. 1985).

86. The FDA policies and exercise of discretion have aptly followed Justice Frankfurter's words: "In such matters the good sense of prosecutors . . . must be trusted. Our system of criminal justice necessarily depends on 'conscience and circumspection in prosecuting officers'." United States v. Dotterweich, 320 U.S. 277, 285 (1943) (stating that the Court should not formulate a precise standard).

87. 773 F.2d at 429. The process involves the following steps: 1) An FDA inspector conducts an inspection; 2) violations are referred to the compliance branch of the local field office; 3) the field office may recommend legal action to the proper FDA Bureau (e.g., Bureau of Foods); and 4) where criminal prosecution is contemplated, the field office provides the potential defendant a hearing in order to give him an opportunity to present his opinions. 5) If the Bureau concurs with the field office's recommendation and course of action, it refers the matter to the Enforcement Policy Staff for approval. 6) It then goes to the Office of General Counsel of the FDA; and only after the Office of General Counsel's approval, 7) to the Department of Justice. As a result, the Department of Justice agrees to prosecute the vast majority of cases the FDA refers to it. The FDA's success in getting the Department of Justice to prosecute is in contrast to other governmental agencies. See Sam D. Fine, The Philosophy of [FDA] Enforcement, 31 Food Drug Cosm. L.J. 324 (1976); Corporate Criminal Liability, supra note 5, at 146-49.

88. 421 U.S. at 672, 673.

89. Corporate Criminal Liability, supra note 5, at 99-150; Harry First, Business Crime 240, 279 (1990); Developments in the Law -- Corporate Crime, supra note 22, at 1259-76. A corporate officer is criminally liable under three other general theories: (1) directly where he participates or authorizes the actus reus, (2) indirectly as an accomplice or as an aider and abettor, and (3) indirectly as part of a conspiracy.

90. Developments in the Law -- Corporate Crime, supra note 22, at 1271 n.145, 166, 168.

91. Morissette v. United States, 342 U.S. 246, 250-60 (1952); United States v. Gypsum Co., 438 U.S. 422, 437 (1978); Liparota v. United States, 471 U.S. 419 (1985); United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971); Harris, et al., supra note 18, at 215-16, nn.71-75 (1988).

92. Developments in the Law -- Corporate Crime, supra note 22, at 1260-62; Harris, et al., supra note 18, at 227-28.

93. LaFave & Scott, supra note 41, at 260.

94. New England Grocers Supply Co., 488 F. Supp. at 235, 236; Gel Spice Co., Inc., 601 F. Supp. at 1213.

95. Shifting the burden of persuasion to the defendant would be unconstitutional. Sandstrom v. Montana, 442 U.S. 510 (1979); Francis v. Franklin, 471 U.S. 1301 (1985).

96. "The concept of a 'responsible relationship' to a violation of the Act indeed imports some measure of blameworthiness." United States v. Park, 421 U.S. 658, 673 (1975) (emphasis added).

97. See Habicht, supra note 19, at 10482-83; Corporate Criminal Liability, supra note 5, at 146-49.

98. The Supreme Court in Park noted as incorrect that 301 of the FDCA literally interpreted "might operate too harshly by sweeping within its condemnation any person however remotely entangled." 320 U.S. at 284.

99. United States v. Y. Hata & Co., 535 F.2d 508 (9th Cir.), cert. denied, 429 U.S. 828 (1976); United States v. Starr, 535 F.2d 512 (9th Cir. 1976).

100. United States v. Johnson & Towers, Inc., 741 F.2d 662 (3rd Cir. 1984), cert. denied sub nom. Angel v. United States, 469 U.S. 1208 (1985). RCRA, 42 U.S.C. 6901-6991i.

101. United States v. Dotterweich, 320 U.S. 277, reh'g denied, 320 U.S. 815 (1943); United States v. Park, 421 U.S. 658 (1975).

102. 402 U.S. 558 (1971).

103. Act of June 25, 1948, ch. 645, 62 Stat. 739 (sometimes referred to as the Transportation of Explosives Act (1960 U.S.C.C.A.N. 3351) (codified at 18 U.S.C. 831-835), repealed by Act of Nov. 30, 1979, ch. 645, 216 (b), 93 Stat. 1015. The particular statute at issue read:

(a) The Interstate Commerce Commission shall formulate regulations for the safe transportation within the United States of explosives and other dangerous articles, including . . . corrosive liquids . . . (f) Whoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both; and, if the death or bodily injury of any person results from such violation, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

18 U.S.C. 834(a), (f) (repealed 1979) (emphasis added).

104. "[W]here, as here . . ., dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." 402 U.S. at 565.

105. 421 U.S. at 661, 677-78.

106. 602 F.2d 1123, 1124, 1125-26 (3rd Cir. 1979), cert. denied, 444 U.S. 1074 (1980).

107. The Clean Water Act, 33 U.S.C. 1251-1386 (formerly the Water Pollution Control Act of 1972) (violations of 1311(a), 1319(c)).

108. 397 F.2d 406 (5th Cir. 1968).

109. Federal Hazardous Substances Act, 15 U.S.C. 1261-76 (1982 & Supp. 1991).

110. "[E]vidence tending to show that . . . [the defendant] exercised close control of all details of the corporate activity would be a substantial link in the chain of evidence." 397 F.2d at 408 (citing Dotterweich, 320 U.S. at 284).

111. 676 F.2d 94 (4th Cir. 1982).

112. 15 U.S.C. 2601-2654 (1982 & Supp. IV 1986) (violations under 2614, 2605).

113. 676 F.2d at 95, 97.

114. Habicht, supra note 19, at 10479-80; Schwartz, supra note 19, at 492. Individuals convicted of the crime of "knowing endangerment" under RCRA, 42 U.S.C. 6928(e) can be fined up to $250,000 and be imprisoned for up to fifteen years.

115. RCRA, 42 U.S.C. 6901-6991i (1976). Congress passed the first federal environmental law in 1899, the Rivers and Harbors Act. The next significant federal law was the Resource Conservation and Recovery Act (RCRA) of 1976, which defined hazardous waste and provided both civil and criminal penalties for improper disposal of waste without a proper permit or manifest. States were left room to provide for tougher laws. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, which along with RCRA is the other major federal law, uses civil remedies to enforce hazardous waste response (clean-up), with criminal penalties only in cases of submittal of false records. Other federal laws include the Clean Air Act, the Clean Water Act (formerly the Federal Water Pollution Control Act of 1972), the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Safe Drinking Water Act, and the 1986 amendments to CERCLA known as the Superfund Amendment and Reauthorization Act (SARA) of 1986. Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1152 (now a part of RCRA, infra); RCRA, 42 U.S.C. 6901-6991i; CERCLA, 42 U.S.C. 9601-9675; Clean Air Act, 42 U.S.C. 7401-7642; Clean Water Act 33 U.S.C. 1251-1386; Toxic Substances Control Act, 15 U.S.C. 2601-2629; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136-136y; Safe Drinking Water Act, 42 U.S.C. 300f-300j-ll; SARA, 42 U.S.C. 9603. See federal and state statutes collected in Bret L. Warning, In Search of Effective Hazardous Waste Legislation: Corporate Officer Criminal Liability, 22 Val. U. L. Rev. 385, 386 nn.4-5 (1988).

116. CERCLA, 42 U.S.C. 9601-9691i; RCRA, 42 U.S.C. 6928(e) (discussing the crime of "knowing endangerment"). The crime of "knowing endangerment" requires "the government to show that the defendant possessed a high level of awareness about the circumstances and potential consequences of her conduct before criminal penalties will attach." Although this crime "allows the trier of fact to infer guilty knowledge from circumstantial evidence,. . .[Congress] insisted on a finding of actual knowledge rather than the imputed knowledge of someone else." Schwartz, supra note 19, at 498, 502 (emphasis in original). See also Seymour, supra note 6, at 337-38; Warning, supra note 115, at 385-87.

117. Habicht, supra note 19, at 10479.

118. Id.

119. 42 U.S.C. 6928(e). The First Circuit referenced and discussed the legislative history in United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 44 n.9 (1st Cir. 1991).

120. The Supreme Court has noted this linguistic ambiguity. Liparota v. United States, 471 U.S. 419, 424-25 n.7 (1985). In interpreting a statute criminalizing the improper use of food stamps, the Court noted that in the absence of contrary legislative intent, the "knowledge" requirement of mens rea extended to each element of the offense. Id. at 425 (interpreting 7 U.S.C. 2024(b)(1)).

121. United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984), cert. denied sub nom. Angel v. United States, 469 U.S. 1208 (1985); United States v. Greer, 850 F.2d 1447 (11th Cir. 1988).

122. United States v. Dee, 912 F.2d 741 (4th Cir. 1990) cert. denied, 111 S.Ct. 1307 (1991); United States v. Dean, 969 F.2d 187 (6th Cir. 1992); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989).

123. United States v. Sellers, 926 F.2d 410 (5th Cir. 1991).

124. United States v. Speach, 968 F.2d 795 (9th Cir. 1992); United States v. Hayes Int'l Corp., 786 F.2d 1499 (11th Cir. 1986).

125. United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 44-45 n.9 (1st Cir. 1991).

126. Johnson & Towers, Inc., 741 F.2d 662 (3rd Cir. 1984), cert. denied sub nom. Angel v. United States, 469 U.S. 1208 (1985). See Frederick C. Barnes, Environmental Crime: Case Study of Divergent Interpretations of the Scienter Requirement in RCRA's Criminal Provision, 5 Temp. Envtl. L. & Tech. J. 3 (1986) (comparing and contrasting this case with Hayes Int'l Corp., 786 F.2d at 1499.

127. 741 F.2d at 666-67, 670. Several other cases have specifically cited Dotterweich or Park: United States v. Sellers, 926 F.2d 410, 416 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir. 1989).

128. 741 F.2d at 664-65 (emphasis added).

129. Treatment, storage or disposal of hazardous waste in violation of any material condition or requirement of a permit must be 'knowing,' since the statute explicitly so states in subsection (B). It is unlikely that Congress could have intended to subject to criminal prosecution those persons who acted when no permit had been obtained irrespective of their knowledge (under subsection (A)), but not those persons who acted in violation of the terms of a permit unless that action was knowing (subsection (B)). Thus we are led to conclude either that the omission of the word 'knowing' in (A) was inadvertent or that 'knowingly' which introduces subsection (2) applies to subsection (A).

Id. at 668.

130. Id. at 670.

131. Id. at 667, 668.

132. 402 U.S. 558 (1971).

133. 741 F.2d at 669-70 (emphasis added).

134. 786 F.2d 1499 (11th Cir. 1986) (dealing with 6928(d)(1)).

135. 471 U.S. 419 (1985) (illegal possession of food stamps). The statute at issue, 7 U.S.C. 2024(b)(1), provided punishment for anyone who "knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations." 471 U.S. at 419. Absent explicit language or legislative intent to the contrary, the Supreme Court held that the government must prove knowledge of each element of the offense. 471 U.S. at 433-34.

136. Hayes Int'l Corp., 786 F.2d at 1502-03.

137. Id. at 1503-04. Harris, et al., supra note 18, at 226-27.

138. 786 F.2d at 1506.

139. Id. at 1505.

140. 850 F.2d 1447 (11th Cir. 1988).

141. Id. at 1452-53.

142. Id. at 1451.

143. 933 F.2d 35, 47-48 (1st Cir. 1991).

144. United States v. Park, 421 U.S. 658, 677-78 (1975).

145. 933 F.2d at 47. The court noted that the issue of how far down the sentence the word "knowingly" traveled was not actually before it; however, it approved the district court's jury instructions requiring the jury to find that the defendant either knew the disposal facility lacked a proper permit or failed to willfully determine whether or not it had a permit before convicting. Id.

146. Id. at 51-55. The erroneous jury instruction read (in part):

The second way [to prove the defendant's knowledge] is to establish that the defendant was what is called a responsible corporate officer of the corporation committing the act. In order to prove that a person is a responsible corporate officer, three things must be shown. [First, status as a corporate officer. Second, direct supervisory responsibility for the activities in question.] And the third requirement is that the officer must have known or believed the illegal activity of the type alleged occurred.

Id. at 50-51 (emphasis added).

147. Id.

148. Id. at 51-52.

149. 968 F.2d 795 (9th Cir. 1992).

150. Id. at 796. The Eleventh Circuit in Hayes Int'l Corp. had rejected the Liparota rule in favor of the rule in Int'l Minerals & Chem. Corp. (402 U.S. 558, 565 (1971)). 786 F.2d at 1503.

151. United States v. Hoflin, 880 F.2d 1033, 1037 (9th Cir. 1989). For a discussion of Hoflin, see infra notes 154-60 and accompanying text.

152. Id. at 797. The dissent in Speach cited its own precedent, Hoflin (880 F.2d 1033), as support for its position that "knowingly" does not govern knowledge of the permit status. The dissent also pointed out that the court relied on Johnson & Towers, 741 F.2d at 668, and Hayes Int'l Corp. ,786 F.2d at 1503-05, two cases it had rejected in Hoflin. United States v. Speach, 968 F.2d 795, 798 (9th Cir. 1992). The distinction between the purposes of 6928(d)(1) and 6928(d)(2)(A) as resulting in possibly different interpretations regarding the word "knowingly" was raised by the First Circuit in MacDonald & Watson Waste Oil Co., 933 F.2d at 48-49.

153. The only other case to interpret the statute with this level of knowledge required to gain a conviction did so as a pre-trial determination. United States v. Laughlin, 768 F. Supp. 957 (N.D.N.Y. 1991) (appeal would have been to the Second Circuit).

154. 880 F.2d 1033.

155. Id. at 1039 (quoting the district court's jury instructions: "First: That [Hoflin] knowingly disposed of or commanded and caused others to dispose of chemical wastes. . .; Second: Defendant knew that the chemical wastes had the potential to be harmful to others or to the environment, or in other words, it was not an innocuous substance like water.").

156. The absence of the word "knowing" in subsection (A) is in stark contrast to its presence in the immediately following subsection (B). The statute makes a clear distinction between non-permit holders and permit holders, requiring in subsection (B) that the latter knowingly violate a material condition or requirement of the permit. To read the word "knowingly" at the beginning of section (2) into subsection (A) would be to eviscerate this distinction. Thus, it is plain that knowledge of the absence of a permit is not an element of the offense defined by subsection (A). The statute is not ambiguous.

Id. at 1037.

157. Id.

158. Id. at 1038.

159. Id. at 1038-39. This same argument was noted in United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992).

160. Id. at 1038 (citing United States v. Dotterweich, 320 U.S. 277, 280 (1943)).

161. 912 F.2d 741 (4th Cir. 1990), cert. denied, 111 S. Ct. 1307 (1991).

162. Id. at 746.

163. Id. at 745.

164. Id. at 746, 748; Seymour, supra note 6, at 337.

165. 912 F.2d at 746-47.

166. Id. at 748.

167. United States v. Park, 421 U.S. 658, 677-78 (1975).

168. 969 F.2d 187 (6th Cir. 1992).

169. Id. at 193-96.

170. Id. at 191. United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971).

171. 926 F.2d 410 (5th Cir. 1991).

172. Id. at 412-13.

173. Id. at 415 (citing United States v. Int'l Minerals & Chem. Corp. 402 U.S. 558 (1971)).

174. Id. at 416 (citing United States v. Doterweich, 320 U.S. 277 (1943)).

175. The district court gave the following instruction (in part):

In order to establish the offense [under 6928(d)(2)(A)], the Government must prove . . . [1] That the defendant knowingly disposed of, or commanded and caused others to dispose of, wastes . . . [2] That the Defendant knew what the wastes were . . . [3] That the wastes were listed or identified . . . as a hazardous waste [under RCRA] . . . And [4] That the Defendant had not obtained a permit . . . .

926 F.2d at 414-15.

176. Id. at 413, 416.

177. Id. at 415, 417.

178. Id. at 416.

179. Id. United States v. Dee, 912 F.2d 741 (4th Cir. 1990), cert. denied, 111 S.Ct. 1307 (1991); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989); United States v. Greer, 850 F.2d 1447 (11th Cir. 1988); United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d. Cir. 1984), cert. denied sub nom. Angel v. United States, 469 U.S. 1208 (1985).

180. 934 F.2d 599 (5th Cir. 1991).

181. Id. at 612.

182. Id. at 613. Note that the Eleventh Circuit in Hayes Int'l Corp., as well as in Greer, differed from both the Fourth Circuit in Dee and the Ninth Circuit in Hoflin in having required that a defendant know he lacked a proper permit. United States v. Hayes Int'l Corp., 786 F.2d 1499 (11th Cir. 1986); Greer, 850 F.2d 1447; Dee, 912 F.2d 741; Hoflin, 880 F.2d 1033.

183. United States v. Park, 421 U.S. 658 (1975).

184. United States v. Hayes Int'l Corp., 786 F.2d 1499, 1504 (11th Cir. 1986).

185. Seymour, supra note 6, at 342, 348 n.67. CERCLA, 42 U.S.C. 9601-9675 (1988); Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1152 (current version at 33 U.S.C. 407 (1988)).

186. 42 U.S.C. 6928(e) (1980), amended by Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, tit. II, 232(b), 98 Stat. 3221, 3257 (1984), and amended by Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, tit. II, 205(i)(5)(A), 100 Stat. 1613, 1703 (1986). The statute currently reads in part:

Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subchapter . . . in violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of subsection (d) of this section who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment for not more than fifteen years, or both [emphasis added].

See Schwartz, supra note 19, at 492-503; and Harris, et al., supra note 18, at 205-14.

187. Schwartz, supra note 19, at 498.

188. In fashioning RCRA's treatment of natural persons, Congress expressly refused to require direct proof of a defendant's actual knowledge. Such a high standard, the lawmakers believed, would make prosecution nearly impossible. Thus, the [knowing endangerment] statute [ 6928(e)] allows the trier of fact to infer guilty knowledge from circumstantial evidence. But by insisting on a finding of actual knowledge rather than the imputed knowledge of someone else, Congress sought to strike a balance that would enable some convictions but would also be 'appropriate to protect persons engaged in complex decision-making from unjust indictment or conviction.' The subsection [(e)] was designed to ensure that people are not prosecuted or convicted for making 'difficult business judgments where such judgments are made without the necessary scienter.'

Id. at 502 (emphasis in original) (quoting S. Rep. No. 172, 96th Cong., 2d Sess. 39-40, reprinted in 1980 U.S.C.C.A.N. 5019, 5039).

189. Seymour, supra note 6, at 343-45.

190. Id. at 344 (emphasis added).

191. James M. McElfish, Jr., State Hazardous Waste Crimes, 17 Envtl. L. Rep. (Envtl. L. Inst.) 10465, 10466 (December 1987). Some of the states as of December 1987 that have criminal penalties without any explicit mens rea include Alaska, Arkansas, California, Kansas, Maryland, Michigan, Pennsylvania and Rhode Island. This article contains a detailed table listing the mens rea requirements of the hazardous waste criminal laws of all 50 states and the District of Columbia as of September 1987. Id. at 10467-77.

192. These four appellate cases are discussed infra, notes 193-213 and accompanying text. United States v. Dotterweich, 320 U.S. 277 (1943), reh'g denied, 320 U.S. 815 (1943); United States v. Park, 421 U.S. 658 (1975). The two Pennsylvania cases are discussed infra, notes 214-18 and accompanying text.

193. 615 P.2d 730, 738-39 (Haw. 1980).

194. Id. at 739.

195. Id. at 737.

196. 1987 WL 26917 (Del., Nov. 23, 1987) (not reported in A.2d).

197. Id. at *3.

198. This storage was a violation of the Delaware Hazardous Waste Management Act, Del. Code Ann. tit. 7, 6302(7),(12), 6304(b).

199. 1987 WL 26917 at *2.

200. Id. at *1 (citing Del. Code Ann. tit. 11, 282).

201. Colbert at *1.

202. 211 Cal. App. 3d 699, 259 Cal. Rptr. 770 (Cal. App. 2 Dist. 1989). See Zipperman, supra note 7, at 146-49.

203. Cal. Health & Safety Code 25,100-25,249 (Deering 1988 & Supp. 1991) (violation of 25,189.5); Cal. Code Regs. tit. 22, 66,260-67,786 (1990).

204. 259 Cal. Rptr. at 774.

205. Id. at 777.

206. Id. at 776 n.7.

207. Id. at 778.

208. Id. at 779.

209. Id. at 779. Cf. Liquid Chemical Corporation v. Department of Health Services, 277 Cal. Rptr. 738 (Cal. App. 5 Dist. 1991) (similar discussion but in a civil context).

210. State v. Rollfink, 469 N.W.2d 398 (Wis. 1991).

211. Id. at 399, 405-06. "Operator" is defined as "the person who is responsible for the overall operation of a hazardous waste facility or for part of a hazardous waste facility." Wis. Admin. Code NR 600.03(152) (Feb. 1991), cited in Rollfink, 469 N.W.2d at 400 n.5. See Wis. Stat. 144.44(4)(a), 144.63 (1987-1988).

212. Rollfink, 469 NW2d at 403-04.

213. Id. at 399-400 nn.2-5 (citing relevant language).

214. 529 A.2d 1148 (Pa. Commw. 1987).

215. 568 A.2d 738 (Pa. Commw. 1990).

216. 529 A.2d at 1151.

Petitioner's position as a corporate officer cannot, in and of itself, lead to the imposition of personal liability for the tortious conduct of [the corporation] . . . By the same token, we do not believe that liability may be imposed by inferring that given Petitioner's managerial position he is necessarily responsible for any statutory infractions committed by [the corporation] . . . [As regards] the Board's reliance on United States v. Park, . . . we do not believe Pennsylvania law supports application of the type of individual liability.

Id. at 1151-52 (emphasis in original). Individual civil liability could be found upon "specific evidence of acts of intentional neglect or misconduct." Id. at 1152.

217. 568 A.2d at 743.

218. Id. at 740-41 (violation of Pennsylvania's Solid Waste Management Act, 35 Pa. Cons. Stat. 6018.610(8)(i), cited in Waste Conversion at 740 n.1).

219. United States v. Park, 421 U.S. 658, 673 (1975); United States v. New England Grocers Supply Co., 488 F. Supp. 230, 236 (D. Mass. 1980).

220. Sandstrom v. Montana, 442 U.S. 510 (1979); Francis v. Franklin, 471 U.S. 307 (1985).

221. Park, 421 U.S. at 673 (emphasis added). Some commentators have noted that this amounts to criminal conviction for negligence. See Hansen, supra note 17, at 1012, 1016, 1022.

222. 926 F.2d 410 (5th Cir. 1991).

223. 42 U.S.C. 6928(d)(2).

224. See discussion in Seymour, supra note 6, at 343; Habicht, supra note 19, at 10480-81.

225. United States v. Dotterweich, 320 U.S. 277, 280-81 (1943); United States v. Park, 421 U.S. 658, 673 (1975).

226. See Hughes, supra note 11, at 601-07.

227. See United States v. Torigian Lab. Inc., 577 F. Supp. 1514, 1529 (E.D.N.Y. 1984) ("All that need be shown is that the individual was in a position of power or authority to detect, prevent, or correct violations of the [Food, Drug, and Cosmetic] Act [emphasis added]"). The trial court in United States v. MacDonald & Watson Waste Oil Co. also blurred the distinction between conviction under the "responsible relationship" test and conviction for mere status:

"[T]he district court erred by instructing the jury that proof that a defendant was a responsible corporate officer . . . would suffice to conclusively establish the element of knowledge expressly required. . . . [A] mere showing of official responsibility under Dotterweich and Park is not an adequate substitute for direct or circumstantial proof of knowledge.

933 F.2d 35, 55 (1st Cir. 1991) (emphasis added).

228. Seymour, supra note 6, at 338.

229. "In such matters the good sense of prosecutors . . . must be trusted. Our system of criminal justice necessarily depends on 'conscience and circumspection in prosecuting officers.'" 320 U.S. 277, 285 (1943) (stating that the Supreme Court should not formulate a precise standard for conviction).

230. Habicht, supra note 19 at 10485.

231. 320 U.S. at 285.

232. See United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 50 (1st Cir. 1991).

233. Seymour, supra note 6, at 343.

234. 42 U.S.C. 6928(d)(1), 6928(d)(2)(A).

235. In the context of war crimes, the Supreme Court has upheld the death penalty for a failure to supervise subordinates. In re Yamashita, 327 U.S. 1 (1946) (conviction either for actual knowledge of the atrocities committed by his subordinates or for negligence in not having such knowledge; Rutledge, W., dissenting).