February 13, 2013

U.S. Supreme Court Clarifies Jury’s Role in Setting Criminal Fines

The U.S. Supreme Court recently ruled that juries—not judges—should impose criminal fines for RCRA violations. [Southern Union Co. vs. United States; U.S. Supreme Court; Docket No. 11–94; June 21, 2012] The ruling stems from a criminal case in which a natural gas company stored hazardous waste mercury for approximately two years (September 2002 to October 2004) without a RCRA permit at a seldom-used facility. In September 2004, vandals released the mercury into the environment, subsequently contaminating a nearby apartment complex.

When tried in federal district court, a jury found the natural gas company guilty of criminally storing mercury without a permit “on or about September 19, 2002 to October 19, 2004.” Thus, the court determined the maximum penalty was $38.1 million (based on 762 days of illegal storage times the RCRA maximum criminal penalty of $50,000 per day of violation) but ultimately imposed a fine of $6 million and a $12 million “community service obligation.”

Southern Union appealed to the U.S. Court of Appeals for the First Circuit with two arguments:

The jury’s verdict listed only the violation’s approximate start date (i.e., “on or about”); therefore, the only violation the jury found was for one day.
Citing Apprendi vs. New Jersey [U.S. Supreme Court; Docket No. 99–478; June 26, 2000], the natural gas company argued the excessive fine was unconstitutional on the grounds that it was not administered by jury. Apprendi holds that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime must be proved to a jury beyond a reasonable doubt.

The appeals court 1) agreed with the company that the jury in the district court proceedings did not find a violation of 762 days, but 2) found that the Apprendi ruling does not apply to criminal fines—only to imprisonment or death sentences.

Objecting to the Court of Appeals’ decision, the defendant turned to the U.S. Supreme Court. In a decision issued June 21, 2012, the high court overturned the appeals court’s ruling. The court found that Apprendi does apply in setting criminal fines and that a jury “must determine facts that set a fine’s maximum amount.” In the Southern Union case, the jury established only one day of violation. Therefore, the maximum fine must be based upon that fact. The court cannot assert that the violation occurred over 762 days when establishing the penalty unless the jury has established that as fact.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.