United States v. Richard Heuer, United States of America v. Eugene Holderness ( 1993 )

REINHARDT, Circuit Judge,

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 such circumstances. First, one can easily conclude that the condition that the waste could come only from source A — and thus not from sources B or C — would appear expressly on the face of the permit. There is no reason to open up the uncharted territory of implied conditions to deal with such a case. That would be so, incidentally, whether or not the permit contained the word “only.” The import of the condition would be the same with or without the inclusion of that word.

The second answer, which is equally plausible, is that such a case would not involve disposal in violation of a permit, but rather disposal without a permit. That was the approach the First Circuit took on very similar facts. See United States v. MacDonald and Watson Waste Oil Co., 933 F.2d 35, 49 (1st Cir.1991). In MacDonald & Watson, the defendants were convicted of transportation of hazardous waste to a facility without a permit under 42 U.S.C. § 6928(d)(1) and disposal of hazardous waste without a permit under 42 U.S.C. § 6928(d)(2)(a). The facility in that case had a RCRA permit, albeit not one allowing it to dispose of the type of toxic waste in question. On appeal, the defendants argued that they should have been charged with disposal in violation of a condition of the permit, rather than disposal without a permit. The First Circuit held that the defendants were properly charged with disposal without a permit, because the “natural straightforward interpretation” of the statutory language is “without a permit for the hazardous waste in question.” Id. at 46-47 n. 10.¹

We need not in this case address the problems that might arise where someone with a permit to dispose of waste from one source in fact disposed of waste from another source. However, we could resolve such an issue without introducing the troublesome and difficult concept of implied conditions. Such a concept could lead to endless inquiries into “the course of dealings between parties,” ante at [731] to determine just what understandings were meant to be conditions. The majority tells us that the course of dealings, “standing alone,” does not suffice to create a condition, but it does not tell us what if any additional factors are relevant in determining whether an implied condition exists. I would hesitate to read the majority’s offhand comments as venturing into this difficult area.

Although the majority does not hold that an implied condition can exist in a RCRA permit, its casual injection of the issue where it is unnecessary to resolve the ease could have wide ranging effects in the general law of licenses and permits. We should not address such a difficult issue in such an indirect and cursory manner. In any event, the regulations clearly state that any condition to a RCRA permit must appear on the face of the permit or be expressly referred to in the permit. I would not read the casual remarks about “implied conditions” in the majority opinion as holding anything else.

1 . Indeed, neither the majority nor the appellee cites any authority which contradicts the plain language of the regulations and holds that an implied condition to a RCRA permit can exist. The one case the majority cites for this proposition, MacDonald & Watson, supra, treats the issue in a manner that is, if anything, even more casual than the manner in which the majority treats it. The First Circuit’s entire discussion of implied conditions consists of one sentence of dictum: "Perhaps NIC’s permit contained such an express or implicit condition, but, if it did, appellants have not identified it." Id. at 49. Such an offhand remark is not a justification for creating a doctrine which directly contradicts the applicable regulations, but I fear that as offhand remarks add up courts and judges may be tempted to assume incorrectly that the doctrine has been established.