ELR Citation: 41 ELR 20054
No(s). 09-2403 (1st Cir. Dec 22, 2010)

The First Circuit affirmed a natural gas company's conviction for storing hazardous waste without a permit in violation of RCRA. The company is precluded from challenging a 2002 EPA rule authorizing Rhode Island's RCRA regulations because it failed to use the proper statutory procedure for judicial review. Accordingly, it may not raise the issue by collateral attack. Even were the court to hold otherwise, the 2002 rule is valid and within EPA's authority to adopt. In addition, the conviction does not violate the company's right to fair notice under the Due Process Clause. The court also affirmed the fine imposed. Although the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a criminal fine must be vacated where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines, the Apprendi rule does not apply to the imposition of statutorily prescribed fines. Nor did the financial penalties imposed constitute an abuse of the lower court's discretion.