U.S. v. Heuer

• Decision Date: 31 August 1993
• Docket Number: 92-10546,Nos. 92-10545,s. 92-10545
• Citation: 4 F.3d 723
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 723

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:

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. Sec. 6901 et seq., and of making false statements under 18 U.S.C. Sec. 1001. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231 and we have jurisdiction under 28 U.S.C. Sec. 1291.

Holderness was convicted of illegally storing hazardous waste from Saugus in the Storey 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 under Sec. 6928(d)(2)(B) with disposal of hazardous waste contrary to the conditions of an RCRA permit, because disposal only of waste generated at Storey was not a material condition of Hi-Shear's permit, which did allow open-burning of waste propellant at the Storey facility. This turns on whether Sec. 6928(d)(2)(B), which requires a knowing violation of a material condition of an RCRA permit, ¹ can be violated when the condition allegedly violated does not appear in the permit but is rather derived from the history of dealings between the defendant and environmental protection authorities. We hold the condition must be clear from the permit. Thus, we conclude that Holderness's conviction for disposal of hazardous waste in violation of a material condition cannot stand, as there is no condition in the permit for the Storey facility which unambiguously limits disposal to waste generated at Storey.

I

Heuer and Holderness were high level management employees at Hi-Shear Technology Corporation, Inc., a propellant manufacturer, which had facilities in Saugus, California and Torrance, California. ² When Hi-Shear moved its manufacturing facility from Saugus to Storey County, Nevada, Holderness became the manager of the Storey facility. As part of his duties, Holderness applied for a permit from the Nevada Department of Environmental Protection (NDEP) ³ for the disposal of explosive hazardous waste generated during Hi-Shear's manufacture of propellants. The application was rejected, but NDEP on February 16, 1988 issued a temporary permit to dispose of hazardous waste by open-burning at the Storey facility in order to minimize the risk of harm from prolonged storage. ⁴ Although Holderness was aware that he did not have a permit which allowed the storage or disposal at Storey of waste from the Saugus facility, he burned waste transported from Saugus in the burn pit at Storey. Heuer, the vice-president of operations in charge of Hi-Shear's shipping and receiving department, directed the transport of this waste from Saugus to Storey in Spring 1988.

NDEP conducted an unannounced inspection of the Storey facility on June 9, 1988. While on the premises, the inspection team was told by an employee that Hi-Shear had transported hazardous waste from California to Storey. NDEP rescinded Hi-Shear's temporary permit and formally notified Hi-Shear of numerous alleged violations. As part of an attempt to have the permit reinstated, Holderness directed the creation of a backdated bill of lading for the waste transported from Saugus. This bill of lading, which was typed in July 1988 and dated April 27, 1988, contained a false entry which described M119 propellant waste material as a "gross sample." Heuer signed the bill of lading, and Holderness submitted it to NDEP.

Holderness and Heuer were each indicted on one count of making a false statement within the jurisdiction of the United States Environmental Protection Agency (EPA), in violation of 18 U.S.C. Sec. 1001 and 18 U.S.C. Sec. 2. Heuer was also indicted on one count of transporting hazardous waste without a manifest in violation of 42 U.S.C. Sec. 6928(d)(5) and 18 U.S.C. Sec. 2. In addition, Holderness was charged with one count of storing hazardous waste without a permit in violation of 42 U.S.C. Sec. 6928(d)(2)(A) and 18 U.S.C. Sec. 2, and one count of disposing of hazardous waste in violation of a material condition of a permit, an offense under 42 U.S.C. Sec. 6928(d)(2)(B) and 18 U.S.C. Sec. 2.

Following a jury trial, Heuer was acquitted of transporting waste without a manifest, but convicted of making a false statement. Holderness was convicted on all counts. Both timely appeal their convictions.

II

The indictment charges Holderness with unlawful activity with respect to two different waste management functions: storage (without a permit), and disposal (in violation of a material condition of a permit). Count Two concerns storage of hazardous waste, and charges that between April 27, 1988 and November 4, 1988, Holderness knowingly stored propellants and other explosive waste at the Storey facility without a storage permit or interim status authorization in violation of 42 U.S.C. Sec. 6298(d)(2)(A). Count Three pertains to disposal, and alleges that Holderness knowingly disposed of hazardous waste in knowing violation of a material condition of a permit, 42 U.S.C. Sec. 6928(d)(2)(B).

RCRA was enacted to address the problem of disposing of solid waste that is hazardous to public health and the environment. See 42 U.S.C. Sec. 6902; United States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990). "Solid waste" is defined as "discarded material." 42 U.S.C. Sec. 6903(27). EPA Regulations define "discarded material" as, among other things, any material that is "abandoned" by being disposed of, burned, or stored. 40 C.F.R. Sec. 261.2(a)-(b). Particularly dangerous solid wastes are "hazardous," and persons generating hazardous waste must identify it as hazardous and provide for its proper transportation, treatment, storage, and disposal. 42 U.S.C. Secs. 6903(5), 6922; 40 C.F.R. Part 262.

A "generator" of hazardous waste means "any person, by site, whose act or process produces hazardous waste...." 40 C.F.R. Sec. 260.10 (emphasis added). "[A] generator may accumulate hazardous waste on-site for 90 days or less without a permit," 40 C.F.R. Sec. 262.34(a) (emphasis added), but otherwise no hazardous waste may be stored, treated, or disposed of except at a facility for which EPA has granted a permit, 42 U.S.C. Sec. 6925(a); 40 C.F.R. Sec. 262.34(b). These provisions make it clear that an entity which generates hazardous waste at more than one site must have a permit for temporary accumulation at one site of waste that is produced at another site. Likewise, a generator may not transport hazardous waste except to a facility that has a permit to either store, treat, or dispose of hazardous waste. 42 U.S.C. Sec. 6923(a)(4); 40 C.F.R. Sec. 262.20(a)-(d).

An RCRA permit application consists of two parts. Part A describes the facility and identifies the activities requiring a permit. 40 C.F.R. Sec. 270.13. Part B details the operation of storage, treatment, or disposal units and how compliance will be accomplished. 40 C.F.R. Secs. 270.14-270.26. Operators of a proposed hazardous waste facility must submit both Parts A and B 180 days before construction is expected to begin, 40 C.F.R. Secs. 270.1(b), 270.10(f), and may not commence construction or engage in any hazardous waste activities until the permit is received, 42 U.S.C. Sec. 6925(a); 40 C.F.R. Secs. 270.1(c), 270.10(f).

Certain facilities which qualify for "interim status" are "treated as having been issued [a] permit" until their application has been acted upon. 42 U.S.C. Sec. 6925(e). Interim status is accorded to a facility which has notified EPA of its activities, which has submitted Part A of the application, and which was in existence on November 19, 1980 ⁵ or at the time of a statutory or regulatory change which subjected it to an RCRA permit requirement. 42 U.S.C. Sec. 6925(e)(1); 40 C.F.R. Secs. 265.1(b), 270.10(e). Facilities which qualify for interim status are required to adhere to EPA's standards for operation of interim status facilities. 40 C.F.R. Secs. 264.3, 265.1(b), 270.1(b), 270.71.

A

Holderness first argues that he could not have violated Sec. 6928(d)(2)(A), which makes knowingly storing a hazardous waste without a permit unlawful, because Hi-Shear had interim status authorization and was therefore not "without a permit or interim status authorization" to store hazardous waste from its California facility as the indictment charges. He points to evidence that Hi-Shear submitted Part B of an RCRA application on October 5, 1987 and notified NDEP that propellant operations at Storey would commence in October 1987. NDEP responded by letter of October 22, 1987 that Hi-Shear's application was...