United States v. Richard Heuer, United States of America v. Eugene Holderness

4 F.3d 723 23 Envtl. L. Rep. 21 ,357 UNITED STATES of America, Plaintiff-Appellee, v. Richard HEUER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eugene HOLDERNESS, Defendant-Appellant. Nos. 92-10545, 92-10546. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1993. Decided Aug. 31, 1993. N. Patrick Flanagan, III, Beckley, Singleton, De Lanoy, Jemison & List, Chartered, Reno, NV, for defendant-appellant Heuer. C. Frederick Pinkerton, Reno, NV, for defendant-appellant Holderness. John A. Bryson, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: REINHARDT, TROTT, and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 Eugene Holderness and Richard Heuer worked for Hi-Shear Technology Corporation. These consolidated appeals involve the storage, transportation, and disposal of hazardous waste after Hi-Shear closed a facility which produced propellants in Saugus, California, and opened a new facility in Storey County, Nevada. Holderness and Heuer were convicted in connection with these activities of violations of the Resource Conservation and…

concurring:

Although I agree that Holderness could not be convicted of disposal in violation of a material condition of a permit under 42 U.S.C. § 6928 (d)(2)(B), I write separately to emphasize that we do not today decide that an “implied” condition can ever exist in a RCRA permit. The applicable regulations clearly state that “[a]ll permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit.” 40 C.F.R. § 270.32 (e). This regulation makes no mention of “implied” conditions, and the clear import of its language is that there is no such thing as an “implied” condition to a RCRA permit.

I am concerned that the majority’s somewhat offhand discussion of “implied” conditions threatens to add considerable and unnecessary confusion to this area of the law. The majority states that a permit which allowed only the burning of waste from a particular source would include an implied condition that the permit holder could not burn waste from any other source. Ante, at [730]. There are two better answers to the question of what violation would occur under…

Eugene Holderness and Richard Heuer worked for Hi-Shear Technology Corporation. These consolidated appeals involve the storage, transportation, and disposal of hazardous waste after Hi-Shear closed a facility which produced propellants in Saugus, California, and opened a new facility in Storey County, Nevada. Holderness and Heuer were convicted in connection with these activities of violations of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., and of making false statements under 18 U.S.C. § 1001 . The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 .

Holderness was convicted of illegally storing hazardous waste from Saugus in the Sto-rey facility without a permit, disposing of such waste in violation of a condition of a permit, and falsely representing that the material he stored and disposed of was a sample instead of waste. Heuer was convicted of making a false bill of lading that incorrectly described a shipment from Saugus to Storey as propellant instead of hazardous waste, which it was.

We affirm on all issues but one raised by Holderness. He contends that he was improperly charged…