                        Revised January 4, 2002

                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                             No.  00-31462
                                  00-31463
                                  00-31464
                                  01-30024
                   _______________________________


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

versus


SIMS BROTHERS CONSTRUCTION, INC., ROBERT
L. CASE, MARK E. JERKINS, AND AMTEK OF
LOUISIANA,INC.

                                                 Defendants-Appellants.

         _________________________________________________

             Appeals from the United States District Court
                  for the Middle District of Louisiana
         _________________________________________________

                           December 21, 2001

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

CLEMENT, Circuit Judge:

     Defendants-Appellants,        Sims   Brothers   Construction,   Inc.

(Sims), Robert Case (Case), Mark Jerkins (Jerkins), and Amtek of


     *
      Judge Clement participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.

                                     1
Louisiana, Inc. (Amtek) (collectively "Defendants"), challenge

their   convictions    for   illegal       storage    of   hazardous   waste   in

violation of the Resource Conservation and Recovery Act (RCRA),

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

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

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

court's conclusion that the indictment charged the defendants with

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

sufficient to support the defendants' guilty pleas.                Finally, we

conclude that the district court did not lack jurisdiction.



                                       I.

                         FACTS AND PROCEEDINGS

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

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

operates grocery stores throughout the nation, purchased property

in   Baton   Rouge,   Louisiana   on    which    to    build   a   supermarket.

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

with Sims to be its general contractor.               Sims subcontracted the

demolition and site preparation work to Amtek.

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

yellow canisters designed to hold gases under pressure.                        The

canisters were located inside one of the buildings scheduled to be

demolished.     Both canisters had a label bearing a skull and


                                       2
crossbones and the word "poison" written on it.                  The canisters

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

It   was   subsequently   discovered      that    the    canisters   contained

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

canisters contained hazardous waste.             The methyl bromide in both

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

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

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

      An employee discovered the canisters in the building and

immediately informed defendants Case, the president of Amtek, and

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

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

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

poison label on one of the canisters, and Case saw the word

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

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

      Jerkins and Case intended to have someone remove the canisters

from the work site.    They had discussions regarding proper removal

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

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

Neither Jerkins nor Case or any representative of Sims or Amtek

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

any commercial or industrial entity regarding the presence of the

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



                                      3
conducted an environmental site assessment on the property which

did not indicate the presence of containers with hazardous waste.

       The canisters remained at the site until approximately June

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

property without the defendants' knowledge.    The employee gave the

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

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

bromide leaked from the canisters and made Ms. Rome and her son

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

       Subsequent investigation revealed that the canisters were

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

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

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

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

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

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

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

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

considered them trash and had them properly disposed of by an

environmental company. Reddick Fumigants was still in existence in

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

cylinders and their contents.

       The defendants were indicted by a grand jury in the Middle

District of Louisiana on February 9, 1999.    They were charged with



                                  4
illegal storage of hazardous waste in violation of RCRA, Title 42

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

dismiss the indictment in the district court.            They alleged that

they were denied due process either because the regulations at

issue were unconstitutionally vague or because the government had

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

asserted that the indictment was defective and that the district

court lacked jurisdiction because the government was seeking to

enforce state law.

     The   defendants   maintained       throughout   the   district      court

proceedings that they were "small quantity generators1" and were

exempt from the permit requirements for the storage of hazardous

waste.     The government asserted that the defendants were not

"generators" and therefore could not be small quantity generators

entitled to an exemption.        The district court held that the

defendants were not generators because the canisters were already

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

waste,   and   therefore   subject   to    regulation,      when   they   were

abandoned by W.L. Albritton.



     1
      Under federal regulations, a small quantity generator of
hazardous waste is a generator who produces less than an average
of 1000kg of hazardous waste per month. 40 C.F.R. §260.10. Such
generators who produce no more than 100kg are "conditionally
exempt small quantity generators" (CESQG's). 40 C.F.R.
§261.5(a). Entities that qualify for CESQG status are subject to
less stringent permitting requirements than larger quantity
generators.

                                     5
     The motions to dismiss the indictments were denied by the

district court, and the defendants subsequently entered into a plea

agreement with the government.        The defendants pled guilty to the

indictment but specifically reserved their right, on appeal, to

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

contest whether the stipulated facts supported the defendants'

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

defendants argued that the stipulated facts were insufficient to

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

concluded that the factual basis was sufficient and accepted the

defendants'   guilty    pleas.    The      defendants      were   sentenced   on

December 1, 2000, and judgments were entered on December 7, 2000.2

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

were consolidated.

                                     II.

                                 ANALYSIS

                1.     Due Process

     Constitutional      challenges       are   reviewed    de    novo.3      The


     2
      Sims was sentenced to five years probation, a fine of
$100,000, and a special assessment of $400. Amtek was sentenced
to five years probation and a special assessment of $400.
Jerkins was sentenced to five years probation and a special
assessment of $100. Case was sentenced to five years probation,
restitution of $14,628, a fine of $10,000, and a special
assessment of $100.


     3
      See United States v. Lampton, 158 F.3d 251, 255 (5th Cir.
1998).

                                      6
defendants    contend     that   application   of   Title   42   U.S.C.

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

requirement that criminal statutes give fair warning and notice of

proscribed conduct.     The defendants raise four due process issues

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

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

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

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

the on-site storage permit exception which rendered their conduct

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

notice that Chapter 21 of Louisiana's Hazardous Waste Regulations

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

Louisiana legislature.     Fourth, they argue that the definition of

"storage" is unconstitutionally vague because the definition of

"storage" as applied to compressed gas in a cylinder includes

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

the defendants.

                  a.    Whether the defendants were generators

         A "generator" is defined by the Louisiana Department of

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

whose act or process produces hazardous waste identified or listed,

or whose act first causes hazardous waste to become subject to

regulation."4   While storing hazardous waste without a permit is


     4
      L.A.C. 33:V.109 (1997); 40 C.F.R. §260.10 (1997).

                                    7
usually prohibited, there are exceptions to the permit requirement

for generators who meet certain conditions.        "Small quantity

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

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

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

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

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

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

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

to regulation and may be stored without a permit provided certain

conditions are met.

     The defendants submit that demolition contractors who remove

hazardous substances from buildings that are scheduled to be

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

"produces" or "whose act first causes hazardous waste to become

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

the defendants qualify as generators. The facts clearly show that

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

bought the property, so neither Albertson's nor the defendants

could be considered generators because they did not produce or

first cause the hazardous waste to become subject to regulation.


     5
      40 C.F.R. §260.10 (1997).
     6
      40 C.F.R. §262.34(d) (1997).
     7
      40 C.F.R. §261.5 (1997).

                                  8
       Even if the defendants were considered to be generators, to be

exempt from having a permit as an SQG, certain conditions must be

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

the defendants stipulated clearly show that they did not meet these

conditions     and    could    not    qualify    for     unpermitted         storage       of

hazardous     waste.     While       the   defendants     argue       that    the    state

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

stringent than the federal regulations. The defendants failed to

meet the more strict federal regulations for CESQGs and are not

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

even if the defendants were considered generators, they could not

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

process violation.

                         b.     Knowledge

         The defendants maintain that their due process rights were

denied because they lacked knowledge of facts that would have

rendered their otherwise lawful conduct criminal.                     They submit that

they had no knowledge that they would not be considered generators

who    were   exempt    from    the    permit    requirements.            The   parties

stipulated     that    they    lacked      knowledge     of    the    history       of    the

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

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

the canisters and thus fall within the definition of "generator."

This    argument      fails    because       even   if        the    defendants          were



                                            9
"generators," their convictions are valid because they violated the

federal regulations for unpermitted storage of hazardous waste as

we explain below.

                         c.     Vagueness

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

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

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

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

a manner as not to constitute disposal of such hazardous waste."10

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

one stores contained gaseous material, which is contained from

inception, unconstitutionally violates due process.

       This Court is concerned with the fact that the statute fails

to specify a time frame within which, after hazardous waste is

discovered in one's possession, that person becomes criminally

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

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

defendants were indicted for illegal storage of hazardous waste.

What   made     their   conduct    criminal   was   the   knowing   storage   of

hazardous waste without a permit.             The defendants argue that the

definition of storing gaseous material gave them no fair warning


       8
           42 U.S.C.§6903(5).
       9
        42 U.S.C. §6903(27).
       10
            42 U.S.C. §6903(33).

                                        10
that "merely finding the cylinders on a jobsite or placing them on

the ground without further containment constitute[d] a felony."

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

minimum, that they were potentially hazardous because they had

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

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

reporting their existence.

     Vagueness challenges outside the First Amendment context must

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

are not persuaded by the defendants' argument that they could not

reasonably understand that they were storing hazardous waste without

putting the canisters inside an additional container as opposed to

putting them out in the open.   The question that must be resolved

is at what point were the defendants intentionally storing the

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

have notified the appropriate agencies that they found potentially

hazardous material on their property much sooner than they did.

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

three weeks, while doing nothing to facilitate their removal or

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

concerned with the potential danger of prosecutorial discretion

under this statute, as applied to the instant facts, we hold that


     11
      Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 496, 102 S.Ct. 1186, 1192 & n.7, 71 L.Ed.2d 362 (1982).


                                 11
the defendants were storing hazardous waste in violation of Title

42 U.S.C. §6928(d)(2)(A).

     2.   Deficiency of the Indictment

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

charged offense, fairly informs the defendant of the charges against

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

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

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

Defendants' position that the indictment was deficient results from

their incorrect assumption that exemptions to the permit requirement

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

government need prove that the defendants were not entitled to the

permit exemptions provided by statute.       It is an affirmative

defense, not an element of the crime, that the defendants were

entitled to allow the waste to remain on the site as a CESQG.13   We


     12
          United States v. Cavalier, 17 F.3d 90, 92 (5th Cir.
1994).
     13
          The defendants rely on United States v. Baytank, 934
F.2d 599 (5th Cir. 1991), to assert that it was the government's
burden to prove that the defendants "stored hazardous waste
without a permit and...violated the limited conditions under
which [they] could store those wastes without a permit."
However, the sufficiency of the indictment was not at issue in
Baytank. The Court made it clear that such unpermitted storage
was permissible for the ninety day period "only if it complie[d]
with certain safe storage conditions." The Baytank Court's
holding does not necessitate a finding that the government must
charge and negate exceptions to a permit requirement in an
indictment. See United States v. Outler, 659 F.2d 1306, 1310 n.3
(5th Cir. Unit B 1981)(generally, the burden of proving
compliance with a statutory exception is on the defendant).

                                 12
hold that the district court was correct in finding that the

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

crime charged.

     3.    Jurisdiction of the District Court

     Challenges to the jurisdiction of the district court are

reviewed de novo.14    The defendants submit that the district court

lacked jurisdiction over this case because the government was

attempting to enforce state regulations. The state regulations that

the defendants claim were enforced against them only applied to

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

methyl    bromide,   the    argument   that   the   district   court   lacked

jurisdiction to enforce Louisiana regulations applicable to SQGs is

without merit.

     4.    Sufficiency of the Factual Basis

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

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

district court's conclusion that the factual basis was sufficient

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

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

"discarded material...resulting from industrial, commercial, mining,




     14
           United States v. Lynch, 114 F.3d 61, 63 (5th Cir. 1997).
     15
      See United States v. Adams, 961 F.2d 505, 509 (5th
Cir.1992).

                                       13
and agricultural operations...."16       Methyl bromide is a hazardous

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

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

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

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

waste under RCRA.18

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

because the government failed to show that the canisters were

intentionally abandoned or discarded.       The canisters were clearly

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

moment.     Arguments that the contents of the canisters could have

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

the evidence and therefore without merit.      The canisters' contents

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

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

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

canisters' contents for any purpose.          In hindsight, Reddick's

possible willingness to take the canisters back does not necessitate

a conclusion that the defendants actually intended to return the

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

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


     16
          42 U.S.C. §6903(27).
     17
          L.A.C. 33:V. 4901.D.
     18
          L.A.C. 33:V.109.

                                    14
that the canisters were abandoned or discarded.

     The defendants additionally contend that, even if the canisters

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

element of the offense charged.        The factual basis is clearly

sufficient with respect to whether the defendants knew that the

canisters were waste.   The defendants stipulated that the canisters

contained hazardous material as evident from the labels on the

canisters and their corroded appearance.      Case and Jerkins also

stipulated that they discussed what to do with the canisters,

including hiring an environmental company to remove and dispose of

them.   These facts cannot support the defendants' contentions that

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

defendants would have contacted Reddick to reclaim the canisters.

                                III.

                             CONCLUSION

     We affirm the district court's determination that Title 42

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

violate due process.    We affirm the conclusion that the indictment

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

the acceptance of the guilty pleas, as the factual basis was

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

the district court did not lack jurisdiction over this case.

AFFIRMED.




                                  15
