On June 21, 2012, the United States Supreme Court ruled that under the Sixth Amendment, before a criminal fine can be imposed for multiple days of violations of the Resource Conservation and Recovery Act, a jury, not the judge, must find beyond reasonable doubt that violations occurred on each of the days for which a fine is to be based. This raises new questions for many types of environmental statutes that authorize criminal fines based on “each day of violation.” Must each day of violation be alleged in a separate count of an indictment? Will the Alternative Fines Act provision allowing “doubling of losses or gains” from the violation remain a viable weapon in an environmental prosecutor’s arsenal? Will the presumption of multiday violations under the monthly averaging for discharge testing impact the need for a jury finding on each day of violation? This alert describes the case and discusses how these issues might arise.

The Case

Southern Union is a natural gas distributor that owned a subsidiary in Rhode Island. The subsidiary collected mercury under a proactive program designed to replace customers’ equipment containing mercury with equipment that does not contain mercury. Vandals broke into the subsidiary, took mercury from a locked storage area, and ultimately spread it around an area that included an apartment complex, potentially contaminating the area. The company was indicted for knowingly storing mercury (a hazardous waste) without a permit. The indictment alleged that “on or about September 19, 2002 until on or about October 19, 2004,” this storage occurred in violation of the Resource Conservation and Recovery Act of 1976, as amended, 40 U.S.C. § 6928(d) (“RCRA”). The jury convicted on this count, with the verdict form indicating that the company had “unlawfully stored the mercury during this time period.” The jury was not asked to specify the number of days the violation continued, and the entire period was contained in a single count in the indictment. RCRA defines this crime as a felony and imposes fines of “not more than $50,000 for each day of violation.” 40 U.S.C. § 6928(d). At sentencing, the probation officer assessed the maximum fine at $38.1 million, using the 762-day period as the multiplier for the daily violation.

The issue before the Supreme Court was whether United States v. Apprendi, which held that all facts necessary to impose a sentence of imprisonment beyond the statutory maximum be found by a jury, extends to criminal fines as well, and thus requires that a jury make the specific factual determination regarding the number of days of violation upon which a fine is assessed.