823 F.2d 685 (1st Cir. 1987), 87-1039, United States v. Charles George Trucking Co.

Docket Nº:87-1039.
Citation:823 F.2d 685
Party Name:UNITED STATES of America, Plaintiff, Appellee, v. CHARLES GEORGE TRUCKING CO., et al., Defendants, Appellees, Charles George, Sr. and Dorothy George, Defendants, Appellants.
Case Date:July 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 685

823 F.2d 685 (1st Cir. 1987)

UNITED STATES of America, Plaintiff, Appellee,

v.

CHARLES GEORGE TRUCKING CO., et al., Defendants, Appellees,

Charles George, Sr. and Dorothy George, Defendants, Appellants.

No. 87-1039.

United States Court of Appeals, First Circuit

July 13, 1987

Heard June 3, 1987.

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Bruce F. Smith with whom Lisa Renee Schwartz, Jager, Smith & Stetler, Richard E. Bachman and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on briefs, for appellants.

Elizabeth Ann Peterson, Dept. of Justice, Washington, D.C., with whom Joseph J. McGovern, Boston, Mass., and David C. Shilton, Dept. of Justice, F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Robert S. Mueller, III, U.S. Atty., and Andrew Lauterback, Sp. Asst. U.S. Atty., Boston, Mass., were on brief, for the U.S.

Before COFFIN, DAVIS [*] and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The defendants-appellants, Charles George, Sr. and Dorothy George, husband and wife, challenge a judgment for civil penalties entered against them in an action prosecuted by the United States on behalf of the federal Environmental Protection Agency (EPA). For the reasons set forth below, we affirm.

I. BACKGROUND

From 1971 to 1983, Mr. and Mrs. George, and at least some of their children, were shareholders and trustees of a hazardous waste dump in Tyngsboro, Massachusetts, somewhat grandiloquently known as the "Charles George Land Reclamation Trust Landfill". 1 In the course of investigating the feared contamination of Tyngsboro's water supply, the EPA sent each appellant a written request for information concerning the landfill and its operation. These letters were transmitted pursuant to the dual authority of Sec. 3007 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Sec. 6927, 2 and Sec. 104 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sec. 9604, 3 and were received on February 4, 1985. (Inasmuch as the two letters were substantially identical, we shall henceforth refer to the pair in the singular.) After referencing the statutes, the communique informed the addressee that,

[f]ailure to respond to [the questions] within thirty (30) days of receipt of this letter, or to adequately justify such failure to respond, can result in enforcement action by the EPA pursuant to Sec. 3008 of the [RCRA] under which the EPA may seek the imposition of penalties of up to $25,000 for each day of continued non-compliance.

This warning fell on deaf ears. During the next thirty days, the appellants neither replied to the questionnaire nor lifted a finger to explain their silence. On March 6, 1985, the sleeping dragon awoke--or at least stirred; the Georges, through their

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attorney, requested an additional sixty days within which to answer "in order to respond accurately and fully to [the] request." The EPA rebuffed this entreaty, and urged the appellants to reply as promptly as possible so as to avoid or minimize noncompliance penalties. This admonition brought only a further plea for an extension, also refused by the EPA. The appellants' subsequent promise that they would "continue to search for and review their records in order to respond as fully and expeditiously as possible to the information request" was honored only in the breach. The inquiries went unanswered.

At no time during this pre-litigation pavane did the Georges claim that the agency was acting in excess of its authority, or that they were legally entitled to spurn the request. At no time did they attempt "to adequately justify" their unreceptiveness. Repeated demands by the government proved entirely futile, as the appellants continued along the course they had charted: disdaining any substantive response and equally disdaining any meaningful explication of a possible excuse for their inaction.

The EPA, its patience exhausted, filed a complaint in the United States District Court for the District of Massachusetts on June 13, 1985 against the appellants and other parties in interest. Inter alia, the suit sought (i) a finding that, in failing to respond to the letter, the defendants had violated both the RCRA and the CERCLA, (ii) an order insuring compliance with the information request, and (iii) the imposition of penalties under the RCRA, to wit, 42 U.S.C. Sec. 6928(g). 4 In due course and after a hearing, the district court granted the government's motion for partial summary judgment against the appellants on these issues. United States v. Charles George Trucking Co., 624 F.Supp. 1185 (D.Mass.1986). Although determining that seven of the twenty-six questions contained in the letter were insufficiently relevant to require a response, id. at 1187-88, the court found the remainder of the inquiries to be entirely appropriate. Id. It held that the appellants' failure to make a timely rejoinder transgressed both CERCLA and RCRA, and that liability vested under Sec. 6928(g). Id. at 1188. Accordingly, the Georges were ordered to answer nineteen of the queries and were adjudged liable for civil penalties. Id. at 1188-89. The amount of the penalties was fixed by the district court in a later proceeding, wherein these two defendants were fined $20,000 apiece for their intransigent failure to reply. A judgment was entered and this appeal followed apace. 5

The arguments which Mr. and Mrs. George make before us marshall themselves into two lines of attack. They contend, first, that RCRA Sec. 6928(g) is a weapon reserved to combat actual despoilers of the planet, and cannot be used to punish those who commit purely paperwork offenses. A classic example of the exempted group, as described by the appellants, would be persons who, like themselves, have been found guilty only of failing to respond to information requests issued pursuant to 42 U.S.C. Sec. 6927(a), but not of any illegal disposal or of causing harm to the environment. Alternatively, the Georges assert that the accrual and imposition of penalties under Sec. 6928(g) without prior judicial approval of the information request and the issuance of a court order mandating answers, comprises a preemptive strike banned by the fourth and fifth amendments to the federal Constitution.

We consider these asseverations seriatim.

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II. THE REACH OF THE RCRA PENALTY PROVISION

In arguing that 42 U.S.C. Sec. 6928(g) stops shy of reaching violators of RCRA's information access provision, 42 U.S.C. Sec. 6927(a), the appellants' contentions are reminiscent of a mirage in the shimmering heat of the desert: the closer one approaches, the less substantial the assertions seem. Eventually, on close perscrutation, they vanish entirely. The basic problem is that the Georges would have us deny the clear and unambiguous language of the statute and, in the bargain, ignore well established interpretative canons. We are disinclined to do so.

We start--as all statutory construction must start--by looking at the language of the law, in this instance 42 U.S.C. Sec. 6928(g), quoted supra n. 4. It is as plain as the nose on one's face that the RCRA information access provision, quoted supra n. 2, is a part of the "subchapter" to which Sec. 6928(g) expressly refers. This verity, one would think, makes it abundantly clear that Sec. 6928(g) applies to infractions of Sec. 6927(a), and thus controls the case at bar. Yet, notwithstanding the inexorable purport of these interlocking statutes, the...

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