United States v. Charles George Trucking Co., Inc.

• Decision Date: 15 August 1986
• Docket Number: Civ. A. No. 85-2463-G.
• Parties: UNITED STATES of America, Plaintiff, v. CHARLES GEORGE TRUCKING COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

642 F. Supp. 329

UNITED STATES of America, Plaintiff, v. CHARLES GEORGE TRUCKING COMPANY, INC., et al., Defendants.

Civ. A. No. 85-2463-G.

United States District Court, D. Massachusetts.

August 15, 1986.

COPYRIGHT MATERIAL OMITTED

Andrew E. Lauterback, Asst. U.S. Atty., Joseph J. McGovern, Environmental Enforcement Section, U.S. Dept. of Justice, Washington, D.C., for the U.S.

Anne Rogers, Margaret E. Sheehan, Asst. Atty. Gen., Environmental Protection Div., Boston, Mass., for Com. of Mass.

Richard L. Fox, Carragher, Fox and Lampert, Chelmsford, Mass., for Ernest G. Dixon, Jr.

William F. Macauley, Craig and Macauley, Boston, Mass., for defendants.

Bruce F. Smith, Boston, Mass., for Charles George Sr. and Charles George Trucking Co.

Richard E. Bachman, Hale, Sanderson, Byrnes & Morto, Boston, Mass., for Dorothy George and Dorothy Lacerte.

MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IN PART

GARRITY, District Judge.

This action is brought by the United States on behalf of the Environmental Protection Agency ("EPA") in connection with the EPA's efforts to respond to the release or threatened release of hazardous substances into the environment from the Charles George landfill. The government seeks relief from the Charles George Land Reclamation Trust ("the Trust"), which holds title to the landfill, the Charles George Trucking Company ("the trucking company"), which transported hazardous waste to the landfill, and members of the George family in connection with their operation of the landfill and the trucking company. On January 14, 1986, 624 F.Supp. 1185, the court granted a substantial portion of the government's motion for partial summary judgment against the George parents, Charles George, Sr. and Dorothy George, with respect to its claim seeking an injunction ordering the defendants to answer EPA information requests and the imposition of civil penalties for their previous failure to do so. The government now seeks summary judgment on this claim against the three George children, James George, Charles George, Jr. and Karen Karras.¹

Facts

The following facts are undisputed. On January 18, 1985, the Director of the Waste Management Division in EPA's Boston office sent a letter requesting information about the landfill and the trucking company to each of the George children. The letter was received on February 1, 1985 by Karen Karras, on February 6, 1985 by James George, and on February 8, 1985 by Charles George, Jr. It informed the defendants of the statutory authority upon which the requests were based and that a failure to furnish the information within thirty days without adequate justification could result in the EPA bringing an enforcement action seeking the imposition of civil penalties of up to $25,000 per day for non-compliance.

On March 6, 1985, after the thirty-day period had expired for Karen Karras but before the thirty days had expired for James and Charles George, Jr., counsel for the entire George family, Anton T. Moehrke, Esquire, responded to the EPA, acknowledging receipt of the EPA's letter and seeking a sixty-day extension of the time in which to furnish the information requested. The EPA denied this request for extension in an April 3, 1985 letter. The letter reiterated that the EPA might choose to enforce its information request and seek civil penalties for each day of non-compliance. It further noted that the accrual of such penalties began on March 3, 1985 for James George and on March 10, 1985 for Charles George, Jr. Attorney Moehrke responded to this denial of an extension in an April 9, 1985 letter, which requested an explanation of the basis upon which the deadlines were established and information concerning potential avenues of administrative appeal of the denial of extension. Moehrke also advised EPA that he expected to furnish a response by May 5, 1985. No responses were filed by that date. The government instituted this action on June 13, 1985. On August 12, 1985, the George children furnished responses to the EPA's information requests.

Issues

The government contends that the defendants violated both the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. by failing to respond within the thirty days provided for by EPA. Both statutes require that individuals who have handled hazardous wastes provide information relating to those wastes upon the request of a duly designated representative of the EPA. See RCRA, 42 U.S.C. § 6927(a) and CERCLA, 42 U.S.C. § 9604(e)(1). In addition, RCRA provides that any person who violates one of the requirements of its Subchapter III, 42 U.S.C. §§ 6921-6934, is liable to the United States for a civil penalty of up to $25,000 per day for each violation. 42 U.S.C. § 6928(g).

The defendants oppose the government's motion for partial summary judgment on several grounds. First, they argue that the EPA requests were issued solely pursuant to CERCLA not RCRA, and therefore, the RCRA penalty provisions are inapplicable. Furthermore, defendants contend that summary judgment is inappropriate because the RCRA penalty is criminal in nature. The defendants also maintain that the statutory scheme whereby a penalty may be imposed for their failure to respond is constitutionally defective because it unduly burdens their Fifth Amendment privilege against self-incrimination and deprives them of liberty and property without due process of law. Finally, the defendants oppose summary judgment on the ground that a genuine issue of fact exists as to whether Karen Karras handled hazardous waste within the meaning of RCRA or CERCLA.

A. Statutory Authorization

The defendants concede that some² of EPA's information requests are authorized by CERCLA, 42 U.S.C. § 9604(e)(1), but they argue that they are not subject to the RCRA penalty provision, 42 U.S.C. § 6928(g) because none of these requests are authorized by RCRA, 42 U.S.C. § 6927(a). We disagree. RCRA provides,

For purposes of developing or assisting in the development of any regulation or enforcing the provisions of RCRA, any person who generates, stores, treats, transports, disposes of or otherwise handles hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator ... furnish information relating to such wastes ...

42 U.S.C. § 6927(a). Here, the EPA seeks information concerning the nature of the chemical substances handled at the landfill and the manner in which those substances were handled. Not only could such information assist the EPA in developing and revising regulations concerning standards applicable to the transportation, storage, treatment and disposal of hazardous waste, a function delegated to the EPA under RCRA, see 42 U.S.C. §§ 6923, 6924, responses to EPA's requests could also facilitate enforcement of other RCRA provisions. See, e.g., 42 U.S.C. §§ 6934, 6973(a). The defendants' argument that RCRA does not apply to inactive sites like the Charles George landfill is unpersuasive. For example, the provision in RCRA which authorizes the EPA to order the owner of a hazardous waste disposal site to conduct testing on that site, specifically discusses its applicability to inactive sites. See 42 U.S.C. § 6934(b). See also United States v. Waste Industries, Inc., 4 Cir.1984, 734 F.2d 159, 165 (holding that RCRA enforcement provision, 42 U.S.C. § 6973, is not limited to active conduct: "Without a means to respond to disasters precipitated by earlier poor planning, our nation's resources could be `conserved' from further harm, as the title of the Resource Conservation and Recovery Act suggests, but never `recovered' to their former wholesome condition.") Accordingly, the court finds that the EPA requests presently at issue³ were authorized by both CERCLA and RCRA and that the defendants' failure to respond subjects them to liability pursuant to the RCRA civil penalty provision.

B. Nature of RCRA Penalty

The defendants contend that the RCRA civil penalty is criminal in nature, and therefore the court cannot grant the government's motion for summary judgment because the defendants are entitled to a jury trial and other criminal procedural guarantees afforded by the United States Constitution. Again, we disagree. Whether a statutorily defined penalty is civil or criminal is a matter of statutory construction. United States v. Ward, 1980, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742. With reference to the penalty at issue here, Congress clearly intended that § 6928(g) serve as a civil sanction. Congress expressly labelled the penalty provided for by this subsection as civil. Moreover, the juxtaposition of § 6928(g) to RCRA provisions providing for criminal penalties, see 42 U.S.C. § 6928(d), (e), further demonstrates congressional intent to establish § 6928(g) as an alternative to the imposition of criminal sanctions.

In light of this intent, a determination that the § 6928(g) penalty is nevertheless criminal would be warranted only if "the statutory scheme is so punitive either in purpose or effect as to negate that intention." Id. at 248-49, 100 S.Ct. at 2641. In this regard, the defendants contend that the potentially exorbitant fines to which they might be subject demonstrates the punitive nature of the penalty. This factor alone, however, is insufficient to transform the civil remedy intended by Congress into a criminal penalty. See United States v. J.B. Williams Co., 2 Cir.1974, 498 F.2d 414, 421 ("When Congress has characterized the remedy as civil and the only consequence of a judgment for the Government is a money penalty, the courts have taken Congress at its word.") Indeed, "monetary assessments are traditionally a form of civil remedy," United States v. Ward, supra, 448 U.S. at 256, 100 S.Ct. at 2645 ...