ELR Citation: ELR 21044
No(s). 97-50296 (9th Cir. Apr 9, 1999)

The court upholds a sewage sludge hauler's sentence and conviction for aiding and abetting the unlawful disposal of sewage sludge, for conspiracy, and for mail fraud. Pursuant to a contract, the hauler transported a city's sewage sludge to a disposal site. After learning of U.S. Environmental Protection Agency regulations for the land application of sewage sludge, the hauler began transporting the city's sludge to a farm in violation of the city's national pollutant discharge elimination system (NPDES) permit. The court first holds that federal regulations for land disposal of sludge do not relieve the hauler of the duty to comply with the contracting city's NPDES permit. By their own terms, the regulations do not usurp local control over the disposal of sludge. Further, while the regulations encourage direct land application of sewage sludge, they do not require local governments to allow it. The court then holds that the hauler can be held liable for violating the city's NPDES permit. The phrase "any person" in Federal Water Pollution Control Act (FWPCA) §309(c)(2) for imposing criminal liability is broad enough to cover both permittees and nonpermittees. The court further holds that FWPCA §§309 and 402 are not void for vagueness as applied on the grounds that the sections do not distinguish between different grades of sewage sludge. The FWPCA defines sewage sludge as a pollutant, and a reasonable person who read the statutory definition and the city's NPDES permit would not conclude that the federal regulations encouraging land application of sewage sludge create an ambiguity in the statutory definition.

The court next holds that neither prosecutorial misconduct nor the allegedly false testimony of a government witness require reversal. The government's case did not rise or fall on that witness' credibility, and any prejudice that might have resulted was slight. Last, the court holds proper the district court's 26-level enhancement of the hauler's sentence under the U.S. Sentencing Guidelines for obstructing justice, discharging a pollutant, violating a permit, causing a $500,000 loss, extensive planning, and acting in a supervisory role.

Counsel for Plaintiff
Melanie K. Pierson, Ass't U.S. Attorney
U.S. Attorney's Office
880 Front St., Rm. 6293, San Diego CA 92101
(619) 557-5610

Counsel for Defendant
Roger S. Hanson
Law Offices of Roger S. Hanson
1517 E. 4th St., Santa Ana CA 92701
(714) 953-0638

Before Canby and Kleinfeld, JJ.