U.S. v. Southern Union Co., Cr. No. 07-134 S.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
Writing for the CourtWilliam E. Smith
Citation643 F.Supp.2d 201
PartiesUNITED STATES of America v. SOUTHERN UNION COMPANY.
Decision Date22 July 2009
Docket NumberCr. No. 07-134 S.
643 F.Supp.2d 201
UNITED STATES of America
v.
SOUTHERN UNION COMPANY.
Cr. No. 07-134 S.
United States District Court, D. Rhode Island.
July 22, 2009.

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Terrence P. Donnelly, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Providence, RI, Dianne Chabot, U.S. Environmental Protection Agency, Boston, MA, Kevin Cassidy, Esq., Department of Justice, Washington, DC, for United States of America.

Alexandra K. Callam, Esq., Gerald J. Petros, Esq., Hinckley, Allen & Snyder, Providence, RI, John A. Tarantino, Esq., Adler Pollock & Sheehan P.C., Providence, RI, for Southern Union Company.

DECISION AND ORDER ON MOTION FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL

WILLIAM E. SMITH, District Judge.


After having been found guilty by a jury of knowingly storing hazardous waste without a permit in violation of 42 U.S.C. § 6928(d)(2), the Defendant, Southern Union Company, now moves for judgment of acquittal under Fed.R.Crim.P. 29 on the sole ground that the Court erred by allowing the United States to enforce Rhode Island's regulation of conditionally exempt small quantity generators. The Defendant alternatively requests a new trial pursuant to Fed.R.Crim.P. 33 because it claims: (1) it was deprived of a critical defense under the applicable regulations; (2) the evidence weighed heavily against the verdict on the issues of whether the liquid mercury was a waste and whether the company knowingly stored it; and (3) the Court improperly allowed evidence about the conditions at Tidewater and Southern Union's failure to contact police following the spill. For the reasons set forth below, both motions are denied.

I. Background

The Defendant, Southern Union Company, is a Delaware corporation based in Texas and primarily engaged in the business of transporting and distributing natural gas. In 2000, the Defendant acquired several separate gas companies in Rhode Island and Massachusetts, consolidated those companies, and formed the New England Gas Company ("NEGC"). Through NEGC, the Defendant supplied natural gas to Rhode Island and parts of Southeastern Massachusetts.1 In connection with this business, the Defendant owned a vacated, dilapidated, and frequently vandalized facility at the end of Tidewater Street in Pawtucket, Rhode Island. Located along the Seekonk River, the Tidewater facility consisted of several buildings and two unused natural gas storage tanks.

After forming NEGC, in or about June 2001, the Defendant started a mercury reclamation program at Tidewater known

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as the Mercury-Sealed Regulator Removal Program. Prior to the 1960s, many homes in the NEGC service area used gas meters that operated with mercury-sealed regulators or MSRs. Recognizing that mercury is a dangerous substance and hazardous to human health, the Defendant began a program by which workers went to customers' homes and replaced existing MSRs with non-mercury regulators. The work crews would then transport the MSRs and any recovered liquid mercury to the Tidewater facility. At the Tidewater facility, the Defendant employed an environmental services company, International Environmental Trading Company, Inc. ("IETC"), to pour off the liquid mercury from inside the regulators into special containers. The liquid mercury containers were then shipped to a reclamation facility in Pennsylvania. The MSR housings were decontaminated through a rinsing process and recycled. IETC also ensured that all mercury contaminated rags, protective clothing, and cleaning agents were properly disposed.

In November 2001, the Defendant stopped removing MSRs from customer homes, but kept IETC at the Tidewater site to finish processing the remaining MSRs through the end of the year. In the spring of 2002, after settling a brief labor dispute, the Defendant again began removing MSRs from customers' homes, however, the Defendant did not re-contract with IETC to ensure the proper reclamation of the liquid mercury. Instead, the Defendant stored the MSRs removed from customers' homes in one of the vacant buildings at the Tidewater facility. To prevent the spillage of liquid mercury into the environment, the Defendant double bagged each MSR in heavy duty plastic bags and then piled those bags in plastic "kiddie" swimming pools. Liquid mercury that was spilt during the removal process was kept in assorted containers (i.e. paint cans, plastic jugs, glass bottles, etc.) and stored inside the building in a plywood cabinet secured by a hasp and padlock.

The Defendant accumulated MSRs and liquid mercury at the Tidewater facility over the course of 2002, 2003, and 2004. Despite drafting several requests for proposals to solicit bids from contractors to dispose of the liquid mercury, the Defendant did not restart the reclamation component to the MSR Removal Program.

Throughout this time period, the Tidewater facility (to include the mercury storage building) was in a state of utter disrepair and the Defendant was well aware of the shoddy security conditions. Although the Defendant periodically stationed a security guard at the facility, the evidence established that graffiti covered the buildings, doors and windows were broken, the perimeter security fencing contained numerous gaps, and the site was subject to repeated break-ins and had become the periodic home to several homeless people.

In September 2004, three youths broke into the mercury storage building. Once inside, they removed several containers of waste liquid mercury and proceeded to spill the mercury throughout the building and the outside grounds. The vandals also brought some of the liquid mercury to a nearby residential apartment complex where they littered it in and around parking lots and outdoor common areas.

The spilled liquid mercury lay undiscovered on the Tidewater property for approximately three weeks. On October 19, 2004, an employee discovered the spill and a clean up was conducted. The ensuing investigation then led to the discovery of the second spill at the apartment complex.

For its part, the Government charged the Defendant in a three count indictment with violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and the Emergency

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Planning and Community Right-to-Know Act ("EPCRA"). 42 U.S.C. § 11001 et seq. After an almost four week trial, the jury returned a verdict of guilty on Count I, knowingly storing a hazardous waste (i.e. liquid mercury) without a permit at the Tidewater facility in Pawtucket, Rhode Island, in violation of RCRA; and not guilty on Counts II and III.2

II. Hazardous Waste Management Overview

A. Federal Enforcement of RCRA

Congress enacted RCRA to address the nation's problems with hazardous waste disposal. See 42 U.S.C. § 6901. The intent behind RCRA is to facilitate the safe management of hazardous waste from the time it is generated to its ultimate disposal, to protect human health and the environment from the dangers of hazardous waste, and to encourage the conservation and recovery of natural resources. See id. § 6902.

A key feature of RCRA is that the Federal Government, namely the U.S. Environmental Protection Agency (EPA), may authorize states to enact their own hazardous waste management programs. Once authorized, a state's program effectively supplants the federal regulations and operates "in lieu" of the federal program as long as the state's regulations are "equivalent to" and "consistent with" the federal hazardous waste management regulations. Id. § 6926(b).

In developing their own programs, states may add to the federally mandated requirements and may impose requirements that are "more stringent" than the federal counterpart, but not less. See 42 U.S.C. § 6929; 40 C.F.R. § 271.1(i) (2008). In effect, the federal regulatory scheme establishes a uniform baseline standard. The Federal Government retains authority to enforce an authorized state program and may criminally prosecute violations of state hazardous waste management regulations. United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 43-46 (1st Cir.1991) (upholding federal criminal enforcement of state permit violation under 42 U.S.C. § 6928(d)(2)); United States v. Elias, 269 F.3d 1003, 1009 (9th Cir. 2001).

There is a caveat to the general rule that the Federal Government may enforce an authorized state RCRA program. See United States v. Recticel Foam Corp., 858 F.Supp. 726, 740-43 (E.D.Tenn.1993). The Federal Government is barred from enforcing state requirements that have a greater scope of coverage than the federal regulations. 40 C.F.R. § 271.1(i)(1). If a state chooses to operate a hazardous waste management program with a greater scope of coverage than required by federal law (as opposed to "more stringent"), "the additional coverage is not part of the Federally approved program," id. § 271.1(i)(2), and the Federal Government is without authority to enforce those state regulations. However, if a state chooses to make its regulations "more stringent" than the federal regulations, the Federal Government's enforcement authority is not restricted. 42 U.S.C. § 6929; 40 C.F.R. § 271.1(i)(1); see Recticel Foam, 858 F.Supp. at 742. Where the line of demarcation between "greater in scope" and "more stringent" lies is not always crystal

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clear and, as it is in this case, can be the source of substantial dispute.

B. The Conditionally Exempt Small Quantity Generator Exemption

When Congress enacted RCRA, it recognized that it would be extremely onerous for small businesses that only generate small amounts of waste to comply with the Act. See H.R.Rep. No. 98-1133, at 103 (1984), as reprinted in 1984 U.S.C.C.A.N. 5649, 5674 ("It is recognized that many small quantity generators may be small businesses that may be adversely affected if the full set of Subtitle C regulations are required."). To deal...

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12 practice notes
  • U.S.A v. Southern Union Co., No. 09-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 22, 2010
    ...Rhode Island. We affirm the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union, 643 F. Supp. 2d 201 (D.R.I. 2009) (Southern Union I). We conclude that: (1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 200......
  • U.S. v. Southern Union Co., No. 09–2403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 22, 2010
    ...Rhode Island. We affirm the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union, 643 F.Supp.2d 201 (D.R.I.2009) ( Southern Union I ). We conclude that: (1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 2002......
  • Emhart Indus., Inc. v. New Eng. Container Co., C.A. No. 06–218 S
    • United States
    • U.S. District Court — District of Rhode Island
    • August 17, 2017
    ...Moreover, agency guidelines, while informative, cannot alter fundamental regulatory requirements. See United States v. S. Union Co., 643 F.Supp.2d 201, 211–12 (D.R.I. 2009), aff'd, 630 F.3d 17 (1st Cir. 2010), rev'd and remanded on other grounds, 567 U.S. 343, 132 S.Ct. 2344, 183 L.Ed.2d 31......
  • RCRA's Statutory and Regulatory Framework
    • United States
    • RCRA permitting deskbook
    • May 10, 2011
    ...§6926(g)(1) (2000). 104. RCRA §3006, 42 U.S.C. §6926 (2000). 105. 40 C.F.R. §§271.1(i)(l), (2). See United States v. Southern Union, 643 F. Supp. 2d 201, 207-08 (D.R.I. 2009) (the federal government can enforce more stringent state RCRA rules, but not state rules that are broader in scope).......
  • Request a trial to view additional results
9 cases
  • U.S.A v. Southern Union Co., No. 09-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 22, 2010
    ...Rhode Island. We affirm the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union, 643 F. Supp. 2d 201 (D.R.I. 2009) (Southern Union I). We conclude that: (1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 200......
  • U.S. v. Southern Union Co., No. 09–2403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 22, 2010
    ...Rhode Island. We affirm the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union, 643 F.Supp.2d 201 (D.R.I.2009) ( Southern Union I ). We conclude that: (1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 2002......
  • Emhart Indus., Inc. v. New Eng. Container Co., C.A. No. 06–218 S
    • United States
    • U.S. District Court — District of Rhode Island
    • August 17, 2017
    ...Moreover, agency guidelines, while informative, cannot alter fundamental regulatory requirements. See United States v. S. Union Co., 643 F.Supp.2d 201, 211–12 (D.R.I. 2009), aff'd, 630 F.3d 17 (1st Cir. 2010), rev'd and remanded on other grounds, 567 U.S. 343, 132 S.Ct. 2344, 183 L.Ed.2d 31......
  • Kent County Water Authority v. State, Island Division of Public Utilities and Carriers, C. A. PC-2013-0270
    • United States
    • Superior Court of Rhode Island
    • February 10, 2014
    ...were specifically authorized by statute. See Great Am. Nursing Ctrs. Inc., 567 A.2d at 356-57; accord United States v. Southern Union, 643 F.Supp.2d 201, 211 (D.R.I. 2009) ("Rules promulgated by an agency through its legislative rule making authority carry with them the force and effect of ......
  • Request a trial to view additional results
1 books & journal articles
  • RCRA's Statutory and Regulatory Framework
    • United States
    • RCRA permitting deskbook
    • May 10, 2011
    ...§6926(g)(1) (2000). 104. RCRA §3006, 42 U.S.C. §6926 (2000). 105. 40 C.F.R. §§271.1(i)(l), (2). See United States v. Southern Union, 643 F. Supp. 2d 201, 207-08 (D.R.I. 2009) (the federal government can enforce more stringent state RCRA rules, but not state rules that are broader in scope).......

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