14-1091-cr
U.S. v. Tonawanda Coke Corp.

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 11th day of January, two thousand sixteen.

PRESENT:          PIERRE N. LEVAL,
                  JOSÉ A. CABRANES,
                  RAYMOND J. LOHIER, JR.,
                               Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                                 14-1091-cr

                           v.

TONAWANDA COKE CORP.,

                           Defendant-Appellant.*



FOR APPELLEE:                                            JOHN EMAD ARBAB, U.S. Department of
                                                         Justice, for John C. Cruden, Assistant
                                                         Attorney General, Washington, DC
                                                         (Joseph J. Karaszewski, Assistant United
                                                         States Attorney, on the brief, for William J.


    *
    The Clerk of Court is directed to amend the official caption to conform with the caption
above.

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                                                            Hochul, Jr., United States Attorney,
                                                            Western District of New York, Buffalo,
                                                            NY).

FOR DEFENDANT-APPELLANT:                                    KEVIN MILES KEARNEY, Hodgson Russ
                                                            LLP, Buffalo, NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-appellant Tonawanda Coke Corp. (“TCC”) appeals the District Court’s March
26, 2014 judgment adjudicating it guilty of offenses under the Clean Air Act, 42 U.S.C. § 7401 et seq.,
and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., and imposing
a sentence that includes, among other elements, a requirement of community service. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        TCC’s principal contention on appeal is that its conviction on Counts 17, 18 and 19 of the
indictment — the RCRA counts — should be reversed because TCC lacked fair notice that its
conduct was criminal under RCRA. It further argues that its conviction on Count 17 should be
reversed because the charged conduct occurred outside the limitations period; that the District
Court erred in failing to deliver to the jury a so-called specific unanimity instruction with respect to
Count 17; and that the District Court “abused its discretion” in requiring that TCC, as a form of
community service, fund two studies designed to evaluate the effects of its conduct. We reject each
of these arguments and affirm.

          Our threshold inquiry concerns the standard of review applicable to TCC’s fair-notice
argument. The government contends that we should review only for plain error because TCC failed
to preserve its argument below, Gov’t Br. 37-38, and we agree. See Millea v. Metro-North R.R. Co., 658
F.3d 154, 163 (2d Cir. 2011) (“Arguments raised for the first time on appeal are deemed waived.”);
United States v. Williams, 399 F.3d 450, 454 (2d Cir. 2005) (plain-error doctrine permits, in certain
circumstances, correction of trial-court errors not raised below). In the proceeding before the
District Court, TCC moved to dismiss the RCRA counts, supporting its motion with a 37-page
opening memorandum and a 20-page reply memorandum. These filings contained much in the way
of garden-variety statutory-interpretation argument but devoted between them no more than the
following sentence arguably addressed to the issue of fair notice: “In view of the government’s
explanation of its legal theories regarding the meanings of the terms ‘active management’ and
‘storage’ as they relate to Count 17 and the meaning of the term ‘land disposal’ as it relates to Counts

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18 and [19], the Defendant respectfully submits that these counts should also be dismissed based on
the application of the rule of lenity.” J.A. 241.

          This passing remark, devoid of explanation, was insufficient to preserve TCC’s fair-notice
argument. We have held that, to preserve an issue for appeal, a party is obliged to “offer some
argument or development of [the issue]” below; “merely incant[ing]” legal phrases before the
District Court is not enough. United States v. Griffiths, 47 F.3d 74, 77 (2d Cir. 1995) (emphasis in
original) (concluding that the government failed to preserve argument when it twice “invoked the
mantra ‘search incident to arrest’” before the trial court but did not develop the point); see also United
States v. Herrera-Martinez, 525 F.3d 60, 65 n.5 (1st Cir. 2008) (“A mere assertion that the rule of lenity
ought to mandate acquittal cannot be said to have preserved the issue.”). This requirement is
particularly salient in view of the argument that TCC failed to develop. The rule of lenity “applies
only if, after using the usual tools of statutory construction, [the court is] left with a grievous
ambiguity or uncertainty in the statute.” Robers v. United States, 134 S. Ct. 1854, 1859 (2014) (internal
quotation marks omitted). Nothing in the competing briefs below suggested that this rigorous
standard was met. TCC and the government advanced opposing views concerning the proper
interpretation and application of the relevant RCRA provisions, but such disagreement (not unusual
in litigation) does not ordinarily indicate insoluble statutory ambiguity. If TCC thought such
ambiguity was present in this case, it was obligated to explain its position — not simply to flag the
issue of lenity and leave to the District Court the task of filling in its argument.

         Accordingly, we apply plain-error review to TCC’s fair-notice argument. “[T]he plain error
doctrine permits a trial court error, not properly preserved for appeal, to warrant appellate relief
when four factors are present: there must be an error, the error must be plain, the error must affect
substantial rights, and the error must seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” Williams, 399 F.3d at 454 (internal quotation marks omitted). TCC does not
appear to contend that it is entitled to relief under this standard; in its briefing, it argues that the
District Court erred but fails even to address the other elements of the plain-error test. We
therefore conclude that TCC’s fair-notice claim cannot survive review for plain error.

        TCC next argues that Count 17 of its July 29, 2010 indictment charged conduct that
occurred outside of the applicable five-year statute of limitations, see 18 U.S.C. § 3282(a), and should
therefore have been dismissed as time-barred. Count 17 alleged that TCC knowingly “stored”
hazardous waste without a permit, in violation of 42 U.S.C. § 6928(d)(2)(A), from May 1998 to
December 2009. J.A. 61. The government contends that Count 17 was not time-barred because the
unpermitted “stor[age]” of hazardous waste is a so-called continuing offense, and the limitations
clock therefore did not start until December 2009. Reviewing the question de novo, see City of Pontiac
Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011), we agree with the government.

        A statute of limitations typically begins to run “when the crime is complete.” United States v.
Eppolito, 543 F.3d 25, 46 (2d Cir. 2008) (quoting Toussie v. United States, 397 U.S. 112, 115 (1970)).

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“The time at which a crime is complete depends largely on the nature of the crime. Some crimes are
instantaneous; others are continuing. A continuing offense is, in general, one that involves a
prolonged course of conduct; its commission is not complete until the conduct has run its course.”
Id. (internal quotation marks and citations omitted). We presume that offenses are not continuing,
but will conclude otherwise when circumstances so warrant: when “the explicit language of the
substantive criminal statute [at issue] compels [the] conclusion that Congress intended the offense in
question to be construed as a continuing one, as where the nature of the crime involved is such that
Congress must assuredly have intended that it be treated as a continuing one, or where the statutory
language describing the offense contemplates a prolonged course of conduct.” Id. at 46-47
(alterations in original) (internal quotation marks and citations omitted).

         We have no trouble concluding that the unpermitted “stor[age]” of hazardous waste under
42 U.S.C. § 6928(d)(2)(A) is a continuing offense. The statutory definition of “storage” provides
that “[t]he term ‘storage,’ when used in connection with hazardous waste, means 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,” 42 U.S.C. § 6903(33) (emphasis supplied); thus, “the statutory
language describing the offense contemplates a prolonged course of conduct,” Eppolito, 543 F.3d at
47 (internal quotation marks omitted). It is unsurprising that Congress, in enacting RCRA,
employed language indicating that it understood “storage” to be a continuing offense. “Storage” of
hazardous waste is in its nature similar to a crime of possession, and crimes of possession are
generally regarded as continuing. See, e.g., United States v. Waters, 23 F.3d 29, 36 (2d Cir. 1994)
(observing that possession is a continuing offense); United States v. Berndt, 530 F.3d 553, 554-55 (7th
Cir. 2008). A person might initially store an item, or come to possess it, in a moment; but once
stored or possessed, the item generally remains so until some affirmative act terminates the period of
custody. See Berndt, 530 U.S. at 555 (“Everyday experience tells us that we possess things until we
lose them, abandon them or they are taken from us.”). And as is true of possession of contraband,
“each day[ ]” that hazardous waste is stored “bring[s] a ‘renewed threat of the substantive evil
Congress sought to prevent.’” Eppolito, 543 F.3d at 47 (quoting Toussie, 397 U.S. at 122).

         TCC advances several arguments in support of its position that storage of hazardous waste is
not a continuing crime, but none is convincing. It argues, first, that 42 U.S.C. § 6928(d)(2)(A) makes
it unlawful not just to “store[ ]” hazardous waste without a permit, but to “treat[ ]” it or “dispose[ ]”
of it; observing that neither treatment nor disposal seems a plausible candidate for continuing-
offense treatment, TCC contends that “storage” should be treated the same as its statutory
companions. But TCC identifies no reason why these three discrete forms of proscribed conduct
must be subject to the same limitations period. Nor can we think of one. Each, after all, is defined
separately in RCRA’s “Definitions” section, and each comprises different elements, see 42 U.S.C. §
6903(3) (defining “disposal”); id. § 6903(33) (defining “storage”); id. § 6903(34) (defining
“treatment”); we have no cause to think that Congress expected each to be treated identically for
limitations purposes. We likewise find no merit in TCC’s second argument: that the gravamen of its

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unlawful conduct was “active management,” not “storage,” and “‘active management’ does not
imply a continuing offense.” Def. Br. 53. TCC was not convicted of actively managing hazardous
waste. It was convicted of storing hazardous waste. The jury was instructed that it could not
convict TCC of a storage offense without making the threshold determination that TCC had actively
managed the waste it stored, see J.A. 1709-10, but the presence of this additional predicate for
liability does not change the essential nature of the crime charged.

        Accordingly, we conclude that “stor[age]” of hazardous waste in violation of 42 U.S.C. §
6928(d)(2)(A) is a continuing offense and that Count 17 did not charge conduct that occurred
outside the limitations period.

         TCC’s third argument, also directed at Count 17, is that the District Court should have
specifically instructed the jury that it could not convict unless it found unanimously that TCC had
engaged in at least one particular act of “active management.” Reviewing the District Court’s charge
de novo, see United States v. White, 552 F.3d 240, 246 (2d Cir. 2009), we find no error. “A general
instruction on unanimity is sufficient to insure that . . . a unanimous verdict is reached, except in
cases where the complexity of the evidence or other factors create a genuine danger of jury
confusion,” United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir. 1986) (citations omitted), and we
perceive no such danger in this case. The jury was repeatedly instructed that it had to be unanimous
to convict, see J.A. 1730, 1733-34; it was told that TCC had not violated RCRA unless it had “actively
managed” the waste it stored, see J.A. 1709; and it found (unanimously) that TCC had violated
RCRA every day from May 1998 (when the first alleged act of “active management” occurred) until
December 2009, see J.A. 1814. TCC’s suggestion that the jury is likely to have encountered
confusion concerning the need for unanimity simply because the alleged acts of “active
management” were “distinct events, separated by time and by their basic nature,” see Def. Br. 55,
finds no support in the record or in our case law.

        Finally, we reject TCC’s argument that the District Court “abused its discretion” in
imposing, as a special condition of probation, a requirement that TCC fund (at a cost of
$12,200,000) two evaluative studies designed to investigate the effects of its conduct on human
health and the environment. According to TCC, absent a finding that its behavior caused
measurable harm of either type, this condition of probation is neither “reasonably related to the
factors set forth in section 3553(a)(1) and (a)(2)” nor “reasonably necessary for the purposes
indicated in section 3553(a)(2).” 18 U.S.C. § 3563(b); see also U.S.S.G. § 8B1.3 (policy statement
concerning imposition of community service on organizational defendants providing that
“[c]ommunity service may be ordered as a condition of probation where such community service is
reasonably designed to repair the harm caused by the offense”).

        TCC’s argument relies on too narrow a conception of “harm.” The District Court found —
irrespective of whether TCC’s conduct has resulted in demonstrable physical injury to the
environment or to the people living near its plant — that it has caused harm to those members of

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the public who are reasonably concerned that their property or their health has been compromised
by the effects of TCC’s illegality. See J.A. 2245-46. The law takes account of this kind of injury in
other contexts. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183-
84 (2000) (citizens’ “reasonable concerns about the effects of [defendant’s] discharges . . . directly
affected [their] recreational, aesthetic, and economic interests,” satisfying the injury-in-fact
requirement and giving rise to standing). We cannot conclude — particularly in view of district
judges’ “wide discretion in determining what sentence to impose,” United States v. Ryan, 806 F.3d
691, 693 (2d Cir. 2015) (internal quotation marks omitted) — that the District Court erred in taking
account of it here.

         Nor are we convinced that TCC’s sentence is improper because the studies it funds might
produce evidence relevant to a pending civil case in which it is a defendant. We are not aware of
(and TCC has not identified) any authority standing for the proposition that a criminal sentence,
otherwise appropriate in all respects, is rendered improper because it might bear incidentally on civil
litigation. Accordingly, we conclude that in requiring TCC to fund evaluative studies designed to
determine the effects of its conduct, the District Court acted within its broad authority to fashion a
just sentence.

                                             CONCLUSION

       We have reviewed all of TCC’s arguments on appeal and find them to be without merit. We
thus AFFIRM the March 26, 2014 judgment of the District Court.


                                                            FOR THE COURT:
                                                            Catherine O’Hagan Wolfe, Clerk




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