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U.S. Supreme Court Agrees to Review High Criminal Fine in Mercury-Spill Case

Tuesday, November 29, 2011

By Robert C. Cook 

The U.S. Supreme Court Nov. 28 granted a petition for review of the question of whether a criminal environmental fine must be approved by a jury in a case involving the illegal storage of mercury in violation of the Resource Conservation and Recovery Act (Southern Union Co. v. United States, U.S., No. 11-94, 11/28/11).

Southern Union Co. contended that it should have faced a fine of $50,000 for a single incident of illegally storing mercury at properties it owned in Pawtucket, R.I., not the $6 million a federal judge imposed as a criminal fine for the months of illegal storage.

Any amount over $50,000 should have been put before a jury, and the government should have had to prove beyond a reasonable doubt to the jury that the facts justified the higher penalty, according to the company.

A U.S. District Court for the District of Rhode Island jury found Southern Union, a Texas-based natural gas distributor, guilty of illegally storing mercury without a permit on property it owned in Pawtucket, R.I. In October 2009, Judge William E. Smith imposed $18 million in penalties, which included a $6 million criminal fine and $12 million in payments to community interests (190 DEN A-10, 10/5/09).

The potential fine identified by a pre-sentencing report was a maximum of about $38 million for storage of the mercury from Sept. 19, 2002, to Oct. 19, 2004, at a maximum of $50,000 per day.

Fines, Civil Payments Totaled $18 Million

During a 12-day jury trial, federal prosecutors argued that the mercury was carried from unattended and frequently vandalized buildings by three teenagers and spilled in a nearby apartment complex, resulting in the displacement of about 150 tenants for about two months.

The U.S. Court of Appeals for the First Circuit upheld the conviction, fines, and penalties for the company's illegal storage of mercury at the site (United States v. Southern Union Co., 630 F.3d 17, 72 ERC 1262 (1st Cir. 2010); 246 DEN A-7, 12/27/10).

Sixth Amendment at Issue

Southern Union filed a petition for a writ of certiorari on July 15, arguing that Sixth Amendment principles—as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000)—require “any fact” other than a prior conviction “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” The company argued that the statutory maximum for the fine was $50,000.

In a brief filed Oct. 19, Solicitor General Donald B. Verrilli Jr. argued that in this case the petitioner seeks to expand the Sixth Amendment requirement of jury fact-finding “into a new context.”

The government argued that the First Circuit “correctly heeded” the Supreme Court's warning “against expanding the Apprendi doctrine far beyond its necessary boundaries.”

Do Fines Fall Under Apprendi Rule?

The government argued that the Supreme Court has never taken up the question of whether the imposition of a fine falls under the Apprendi rule.

The government argued that the Sixth Amendment allows a trial court, rather than a jury, to make the findings needed to impose a criminal fine. According to the government, the First Circuit reached the correct conclusion based on the reasoning and logic of the Supreme Court opinion in Oregon v. Ice, 555 U.S. 160 (2009).

The Supreme Court wrote in Ice that states currently allow judges to make a variety of sentencing determinations and that trial judges often find facts about the nature of an offense or the character of the defendant.

The government also argued that “no rational jury could have concluded that Southern Union illegally stored the mercury for less than the two years alleged in the indictment, let alone less than the four months necessary to support the fine imposed by the district court.”

Amicus Brief Supports Company

The U.S. Chamber of Commerce and the National Association of Criminal Defense Lawyers filed an amicus brief Aug. 19 in support of Southern Union.

They argued that “subjecting criminal fines to Sixth Amendment scrutiny will not cause law enforcement to grind to a halt.”


The Justice Department brief in support of the United States' petition for certiorari in Southern Union Co. v. United States is available at http://op.bna.com/env.nsf/r?Open=mdas-8p2ujv.