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US v. S. Union Co., 09-2403

Conviction for storing mercury without permit

US v. S. Union Co., 09-2403, concerned a challenge to a conviction of a natural gas company for storing hazardous waste without a permit.  In affirming the conviction, the court held that defendant is precluded by 42 U.S.C. section 6976(b) from challenging the EPA's 2002 Immediate Final Rule authorizing Rhode Island's Resource Conservation and Recovery Act (RCRA) regulations as, because defendant failed to use the statutory procedure for judicial review, defendant may not raise the issue by collateral attack.  Moreover, the 2002 Rule is valid and was within the EPA's authority to adopt.  The court also held that the conviction does not violate defendant's right to fair notice under the Due Process Clause.  Lastly, the court held that the Apprendi rule does not apply to the imposition of statutorily prescribed fines, and that the financial penalties imposed did not constitute an abuse of discretion.

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