The Double Jeopardy Problem Inherent in RCRA Enforcement: An Overview and Possible Solutions

Dennis Leon Arfmann

Editors' Summary: In May 1984, EPA's Office of Solid Waste issued the first Civil Penalty Policy under RCRA. Since then, EPA has been criticized for assessing penalties that are not large enough to offset the economic benefits of noncompliance. On the heels of this criticism, EPA issued its revised RCRA Civil Penalty Policy in October 1990. EPA issued the document to ensure that civil penalties in both judicial and administrative cases are assessed in a fair and consistent manner, reflect the gravity of RCRA violations, deter noncompliance, and eliminate economic incentives to violate the law. The Policy's penalty assessment framework uses complex mathematical and computer models, which incorporate a gravity component, a benefit component to remove any economic benefit of noncompliance, a multiday component, and various adjustment factors.

This Article describes the evolution of the RCRA Civil Penalty Policy and examines the effect of the double jeopardy doctrine, as articulated by the U.S. Supreme Court in United States v. Halper, on assessing penalties under the Policy. The 1990 Halper ruling established a two-prong test for double jeopardy cases: whether Congress indicated in the relevant statutory scheme a preference for either civil or criminal penalties, and whether the statutory scheme is so extreme and divorced from the government's damages to constitute punishment. The Article concludes that Halper encourages a single proceeding with criminal and civil penalties included, and that Halper's second prong is limited to the rare case in which a sanction against a small-gauge offender is overwhelmingly disproportionate to the environmental damage caused. Finally, the Article urges EPA to revisit the RCRA Civil Penalty Policy in light of Halper.

Mr. Armann is special counsel with Bradley, Campbell, Carney & Madsen, P.C., in Golden, Colorado. This Article is derived from a paper submitted while the author was attending the LL. M. program in Environmental Law at George Washington School of Law.

[21 ELR 10711]

The Resource Conservation and Recovery Act (RCRA)¹ sets standards for controlling and preventing pollution on land. Under RCRA, the Environmental Protection Agency (EPA) and authorized states regulate and enforce those standards. Simply stated, EPA's fundamental aim in enforcement is to convince the RCRA regulated community that it is better to comply with RCRA than to violate it.

EPA uses four levels of enforcement action to convince the RCRA regulated community to comply with standards: (1) informal administrative responses — warning letters and notices of noncompliance; (2) formal administrative responses — administrative orders with possible civil penalties under RCRA § 3008(g);² (3) civil judicial responses — litigation with possible civil penalties under RCRA § 3008(a);³ and (4) criminal judicial responses.⁴

These levels of enforcement have been addressed in EPA-established response policies, including the RCRA Enforcement Response Policy⁵ used to determine appropriate enforcement actions in a given factual situation, and the RCRA Civil Penalty Policy⁶ used to calculate civil penalties.⁶ At times, EPA may choose parallel proceedings, such as a formal administrative or judicial response and a criminal judicial response, or one enforcement action and civil penalty followed by a criminal judicial response.

A 1989 U.S. Supreme Court ruling has raised concern over all governmental enforcement actions, including EPA's. In United States v. Halper,⁷ the Court unanimously held that there are limits to the government's choice to enforce punitive and extreme federal civil penalties against a defendant who was already convicted and fined under federal criminal law for the same violation. This Article examines RCRA § 3008(g) and the RCRA Civil Penalty [21 ELR 10712] Policy in light of the double jeopardy defense and the U.S. Supreme Court's decision in Halper.

Background of RCRA Civil Penalty Policy

Congress passed RCRA in 1976,⁸ granting EPA the authority to establish a national system for the proper management of hazardous waste disposal on land. Congress' intent was to reduce threats to public health and the environment.⁹ RCRA was amended in 1978,¹⁰ 1980,¹¹ and 1984¹² to increase EPA's enforcement authority and to strengthen regulatory requirements.

RCRA's enforcement mechanism, like that of most environmental statutes, provides for parallel civil and criminal investigations, proceedings, and penalties. While some environmental statutes direct EPA to calculate the government's losses or costs of prosecution and investigation,¹³ Congress did not provide such explicit direction to EPA for recovering RCRA penalties. In RCRA § 3008, Congress gave the EPA Administrator the authority to assess civil penalties for noncompliance with program requirements or administrative orders.

Section 3008(g) of RCRA: Congressional Evolution

RCRA § 3008(g) applies to civil judicial enforcement actions and provides that any person who violates RCRA Subtitle C requirements, which govern hazardous waste, shall be liable to the United States for a civil penalty of up to $ 25,000 per day for each violation.¹⁴ Similarly, RCRA § 3008(a) provides that if any person violates a Subtitle C requirement, the EPA Administrator may, inter alia, issue an order assessing an administrative civil penalty of up to $ 25,000 per day per violation.¹⁵ Further, RCRA § 3008(a)(3) provides that for administrative civil penalties, the Administrator is required to consider the seriousness of the violation and any good faith efforts to comply with RCRA.¹⁶ RCRA's legislative history contains no relevant discussion of RCRA §§ 3008(a) and (g).¹⁷ However, the RCRA civil penalty provision was patterned after federal enforcement provisions contained in the federal water and air acts.¹⁸

The 1972 amendments to the Federal Water Pollution Control Act (FWPCA)¹⁹ mandated a strong civil penalty enforcement program, which was codified in § 309(d).²⁰ Addressing FWPCA enforcement, Congress directed that

[i]n determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.²¹

Similarly, the Clean Air Act directs that [i]n determining the amount of any civil penalty to be assessed under this subsection, the court shall take into consideration (in addition to other factors) the size of the business, the economic impact of the penalty on the business, and the seriousness of the violation.²²

In contrast, RCRA § 3008(a)²³ is devoid of congressionally mandated directions for courts to use in calculating RCRA civil penalties. This absence could be viewed as a blessing or a curse, depending on one's role in the enforcement action. The EPA Administrator, however, under RCRA § 3008(a)(3)²⁴ may consider the seriousness of the violation and the polluter's good-faith compliance efforts in administrative civil penalty cases.

The distinction between use of criminal and civil penalties has become blurred by RCRA § 3008(g).²⁵ EPA is free to use the civil penalty provisions to obtain discovery from the respondent and to avoid the procedural safeguards of criminal due process, jury trials, the presumption of innocence, the means rea requirements, and strict proof standards. [21 ELR 10713] Three early commentators argued that "the 'civil' penalties of the Air and Water Acts do not differ substantially from criminal penalties, but are merely labeled 'civil' to circumvent the obstacles to conviction in criminal proceedings."²⁶

If Congress has intentionally fostered the evolution of this distinction between civil and criminal penalties, how have courts reacted? Under a deferential approach to judicial review of an administrative agency's construction of an unambiguous statute, one would envision that civil penalties could fulfill both a civil (remedial) and a criminal (deterrent) function.

Purpose of Civil Penalties: Judicial Expansion

Civil and criminal penalties traditionally have had different purposes. Criminal penalties are punitive or deterrent, while the purpose of civil penalties is remedial or compensatory.²⁷ The distinction between remedial and punitive has evolved through litigation. In Kennedy v. Mendoza-Martinez,²⁸ the U.S. Supreme Court listed seven objective factors useful in determining whether a statutory penalty is remedial or punitive, but the Court emphasized that this list is not exclusive.²⁹ To determine if a penalty was civil (remedial) or criminal (punitive), the Court traditionally applied a simple statutory construction test: What was the congressional intent as exhibited by the statute?³⁰ The Court analyzed statutory penalties based on the government's purposes and, until recently, found remediation to be the purpose of civil penalties. In instances where an act provides for sanctions denominated as "civil penalties" and other sanctions denominated "criminal penalties," the Court has historically held that Congress intended a civil, remedial sanction.³¹ The primary focus has been a strict interpretation of the statutory label as a civil penalty provision, and deference has been given to administrative agency interpretations.

However, in United States v. Ward,³² the Court expanded its traditional focus on the statutory label test to look at the penalty's effect on the defendant. Respondent Ward reported a small oil spill under FWPCA § 311(b)(5)³³ and the U.S. Coast Guard subsequently assessed a $ 500 civil penalty against him under FWPCA § 311(b)(6).³⁴ Ward defended against this civil penalty, arguing that it violated his Fifth Amendment privilege against self-incrimination.³⁵ Of course, the Fifth Amendment protections are available only in criminal prosecutions. The Court thus expanded the test to determine whether a particular statutorily defined penalty is civil or criminal beyond the statutory label and announced a two-pronged test: (1) whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other; and (2) where Congress has indicated an intention to establish a civil penalty, whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.³⁶ The Court referred to the seven objective factors listed in Kennedy v. Mendoza-Martinez in examining the second prong from the defendant's perspective.³⁷ The Court in Ward concluded that FWPCA § 311(b)(6)³⁸ had a remedial purpose, not a punitive purpose, that it was a civil penalty provision, and that the Fifth Amendment protections did not apply.

Ward's expansion in 1980 of the statutory label test for determining whether a penalty is civil or criminal parallels the evolution of pollution control enforcement tools. In late 1960 and early 1970, commentators cogitated over the use of civil sanctions on polluters. Regarding pollution control, criminal law was characterized as "too blunt a weapon," "cumbersome," and "not well-suited" to corporate and other business organizations.³⁹

Congress agreed and wrote civil penalty provisions into the FWPCA, the Clean Air Act, and RCRA.⁴⁰ The legislative history of the FWPCA and Clean Air Act civil penalty provisions indicates a remedial or compensatory purpose — to make noncompliance more costly than investment in pollution prevention technology.⁴¹ The penalty is calculated based on the cost of compliance and remedies the competitive disadvantage suffered by sources that promptly comply with the Acts.

The Court's view of civil penalties in the environmental enforcement field is continuing to respond to evolution within both Congress and administrative agencies. The question is how has EPA responded to the evolution of environmental enforcement that is based on civil penalties?

EPA Policy on Civil Penalties

In the 1970s, commentators advanced the need for a national, uniform, and comprehensive environmental enforcement strategy.⁴² Industry demanded predictability and even-handedness. In 1978, EPA issued a memorandum stating that the civil penalty policy would be based on four factors: the harm done to the public health or the environment; the [21 ELR 10714] economic benefit gained by the violator; the violator's degree of recalcitrance; and any unusual or extraordinary enforcement costs thrust upon the public.⁴³ Of these factors, three are remedial, and one — recalcitrance — is punitive in purpose and nature.

This guidance was a welcome step towards a predictable national environmental enforcement effort, and it appeared to fit the historical distinction between a civil or remedial purpose and a criminal or punitive purpose that the Court had adopted before the Ward decision in 1980. Six years lapsed before EPA finalized its uniform civil penalty policy.⁴⁴

In 1984, EPA issued two general enforcement policies — the uniform Policy on Civil Penalties⁴⁵ and A Framework for Statute-Specific Approaches to Penalty Assessments.⁴⁶ Both policies remain in force. These policies established a single set of goals for penalty assessment for both judicial and administrative enforcement actions. These goals, which are incorporated into all current program-specific policies, are deterrence, fair and equitable treatment of the regulated community, and swift resolution of environmental problems. Of these three goals, one appears punitive on its face — deterrence; one appears remedial — swift resolution; while the third appears to be both punitive and remedial — fair and equitable treatment.

However, EPA has included in its first goal, that is, to deter people from violating the law, two prongs: a benefit component and a gravity component. The benefit component is to remove any significant economic benefits resulting from noncompliance, which is a traditional compensatory or remedial purpose. The gravity component is an additional amount to ensure that violators are worse off economically than if they had obeyed the law, which is traditionally a punitive purpose. Program-specific penalty policies have virtually copied the agency-wide general penalty policy.⁴⁷

RCRA Civil Penalty Policy

In May 1984, the Office of Solid Waste issued the first RCRA Civil Penalty Policy. Since then, EPA's enforcement programs in all areas have been criticized, including RCRA enforcement. One recent report stated: "Our review showed that penalties assessed by EPA and the states against violators of RCRA requirements may not be large enough to offset the economic benefits of noncompliance."⁴⁸ An internal report found that EPA needs to take more assertive action to fully meet the Administrator's goals. This includes the computation and recovery of economic benefits that violators receive from noncompliance with EPA's regulations and full documentation of the rationale for reducing calculated penalties.⁴⁹

On the heels of this criticism, EPA issued its revised RCRA Civil Penalty Policy in October 1990.⁵⁰ EPA issued the document to ensure that civil penalties in both judicial and administrative cases are assessed in a fair and consistent manner, reflect the gravity of RCRA violations, deter non-compliance, and eliminate economic incentives to violate the law.⁵¹

The 1990 RCRA Civil Penalty Policy is patterned on the Agency's uniform civil penalty policy⁵² and therefore has the same goals as the Agency's civil penalty policy — deterrence, fair and equitable treatment of the regulated community, and swift resolution of environmental problems. It also adheres to the Agency's assessment framework by calculating the gravity component, adding a benefit component to remove the violators' economic benefit of non-compliance, applying various adjustment factors to increase or decrease the penalty based on the violators' actions, and adding a multiday component:⁵³

Gravity-Based Component

+ Multiday Component

+/- Adjustments Component

+/ Economic Benefit Component

= Penalty

The gravity component is calculated by a matrix with the horizontal factors as "extent of deviation from a statutory or regulatory requirement" and the vertical factor as "potential for harm."⁵⁴ Each factor is divided into major, moderate, and minor. The multiday component in the policy provides that for days 2 to 180 of multiday violations, multiday penalties are mandatory, presumed, or discretionary, depending on the "potential for harm" and "extent of deviation" of the violations.⁵⁵ Regions have discretion to impose in excess of 180 days multiday penalties for deterrence.⁵⁶ [21 ELR 10715] The economic benefit component can be calculated quickly and accurately by a computer model called BEN.⁵⁷ The adjustment component can be adjusted upward or downward depending on the facts, but only as applied to the gravity-based component and the multiday component.⁵⁸ Adjustment factors include good faith efforts to comply/lack of good faith; degree of willfulness or negligence; history of noncompliance; ability to pay; environmental projects to be undertaken by the violator; and other unique factors, including, but not limited to, the risk and cost of litigation.⁵⁹

However complex the 1990 RCRA Civil Penalty Policy is, at least it is less subjective and more predictable than the 1978 civil penalty policy for air and water.⁶⁰ The complexity stems not only from understanding mathematical formulas and computer models; it is also more difficult to determine if the components of the 1990 RCRA Civil Penalty Policy are remedial or punitive.

The adjustment component (formerly recalcitrance) still appears to be punitive, since it does not primarily provide for remediation. However, the violator can undertake environmental projects as offsets, which is remedial. The economic benefit component is still remedial as it attempts to place the violator on at least equal footing with complying industry. The multiday component is arguably remedial, since the daily harm to public health and the environment is compensated by this component. The gravity-based component is also arguably remedial since it compensates for potential for harm to the environment based on degrees. However, it has punitive components since it punishes the violator for the extent of deviation from a statutory or regulatory requirement.

This basic understanding of the structure of the RCRA Civil Penalty Policy, as it has evolved over the past dozen years, leaves a final variable unaddressed: What effect, if any, does the double jeopardy doctrine, as enunciated by the U.S. Supreme Court in United States v. Halper,⁶¹ have on the RCRA Civil Penalty Policy?

The Double Jeopardy Problem: United States v. Halper

A 1989 headline read: "Crimping Enforcement? High Court Ruling Boosts Double-Jeopardy Defense."⁶² The Court's ruling in United States v. Halper⁶³ touched off concern among enforcement-minded government lawyers, fearing that they may not be able to pursue both severe criminal and civil penalties.⁶⁴ The decision was viewed as having the potential to stop agencies from routinely seeking civil penalties. In May 1989, the Halper ruling was discussed only by government enforcement lawyers and a few criminal defense lawyers. No one else paid much attention, because it was perceived as covering a technical topic. It concerns the Double Jeopardy Clause, which provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."⁶⁵ The double jeopardy concept is embodied in legal systems to protect individual rights against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.⁶⁶ Halper concerns this third protection of multiple punishments for the same offense.

Halper was a medical services provider for Medicare patients. From January 1982 to December 1983, Halper submitted 65 false claims for services, and the government overpaid him $ 585. He was convicted of violating the criminal False Claims Act,⁶⁷ sentenced to two years in prison, and fined $ 5,000.⁶⁸ The government then brought a civil False Claims Act case, which provided for double damages and a penalty of $ 2,000 per count.⁶⁹ After reargument, the trial court agreed with the government that the $ 2,000 per count penalty was mandatory, but the court held that the second punishment would violate Halper's constitutional rights under the Double Jeopardy Clause. The court did not impose the per count penalty and allowed only the statutory double damage.⁷⁰

On direct appeal, the U.S. Supreme Court affirmed the district court's holding that a $ 130,000 fine would violate the Double Jeopardy Clause. The Court remanded to allow the government to prove its actual damages and to allow the district court to determine if the relationship between the $ 130,000 penalty and the actual damages was so disproportionate as to trigger double jeopardy protection.⁷¹

To invoke double jeopardy protection for Halper, the Court was required to depart from three precedents: Helvering v. Mitchell,⁷² United States ex rel. Marcus v. Hess,⁷³ and Rex Trailer Co. v. United States.⁷⁴ All three cases [21 ELR 10716] concerned criminal prosecutions followed by a civil penalty, and each defendant raised the double jeopardy defense. In all three cases, the Court focused on the statutory construction/label test: Did Congress in establishing the penalizing mechanism, indicate either expressly or impliedly a preference for one label or the other? In all three cases, the Court had ruled that the second civil penalties did not invoke double jeopardy protection, because the statutory purpose was remedial, that is, to compensate the government for its damages and costs.⁷⁵

The Court distinguished Mitchell, Hess, and Rex Trailer on the basis that the penalty at issue was exponentially greater than the amount of the government's actual damages.⁷⁶ Significantly, the Court did not distinguish Mitchell, Hess, and Rex Trailer based on the traditional statutory criminal/civil label test. Instead, Halper cut across the distinction between civil and criminal penalties and expanded the traditional multiple punishment test to determine if a second penalty is remedial or punitive beyond the statutory label. Halper examined the second penalty according to its effect on the defendant and concluded that "in a particular case a civil penalty authorized by the Act may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment."⁷⁷ Subsequent to Halper, the two-prong test for determining whether a particular statutorily defined penalty is civil (remedial) or criminal (punitive) is used in double jeopardy cases, or at least in multiple punishment/double jeopardycases. The test's first prong is whether Congress indicated a preference for one label or the other in the statutes, and the second prong is whether the statutory scheme is so extreme and divorced from the government's damages and expenses to constitute punishment.

Halper's Focus: The Government's Actual Damages

The proscription established by the Halper ruling is that "the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole."⁷⁸ When the penalty is not rationally related to the government's actual damages and costs, the defendant is entitled to an accounting of the government's damages and costs.⁷⁹ Bearing in mind that rough remedial justice allows liquidated damages clauses, and fixed-penalty-plus-double-damages provisions make the government whole,⁸⁰ agencies, including EPA, would be wise to implement internal records to account for personnel time and expenses.

Limits on Halper

Halper is limited to the rare case "where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damage he has caused."⁸¹ In a RCRA case, where the violator typically has caused environmental damage and may not be classified as small gauge, Halper may not apply. Halper also does not preclude EPA from assessing full civil penalties against a respondent who has not been criminally prosecuted. Halper in fact encourages a single proceeding with criminal and civil penalties included, if the procedural kinks can be ironed out.

A Solution: Remedial Damages in the RCRA Civil Penalty Policy

The Supreme Court in Ward⁸² and Halper⁸³ outlined a two-prong test to determine whether a penalty is punishment, which is subject to double jeopardy protection and possibly other safeguards, or remediation. The test's first prong is whether Congress indicated a preference for one label or the other in the statutes, and the second prong is whether the statutorily created scheme was so extreme and so divorced from the government's damages and expenses as to constitute punishment. RCRA § 3008(g)⁸⁴ passes the first prong, since it is labeled civil. For the second prong, the Court would review the effect of the RCRA Civil Penalty Policy⁸⁵ on a defendant.

The RCRA Civil Penalty Policy's primary goal is deterrence. Halper again stated that the twin goals of punishment are deterrence and retribution.⁸⁶ Logically, technically, and legally the goal of the RCRA Civil Penalty Policy is punishment, and it triggers an accounting by EPA in a double jeopardy defense case.⁸⁷

Three possible solutions emerge with respect to the effect of U.S. Supreme Court precedent on the RCRA Civil Penalty Policy. First, EPA should consider revising the RCRA Civil Penalty Policy to remove the goal of deterrence. The goal of the policy could be labeled "remediation" rather than "deterrence," since the Policy's four components are arguably remedial. Second, the RCRA Civil Penalty Policy could be revised to add a component for government damages and costs. Halper invites the government to collect its damages and costs in civil penalty cases. Implementing an internal hourly and cost billing system patterned after those of private law firms and engineering firms would suffice.⁸⁸ [21 ELR 10717] Third, EPA and the U.S. Department of Justice could jointly explore a single proceeding concept. This concept is ripe with due process considerations (e.g., burden of proof, due process), but the idea is worth pursuing.

Conclusion

It may be too early to measure the full impact of Halper's effect on the continuing evolution of American double jeopardy jurisprudence. One commentator suggests that Halper has already had a direct effect both on how the government handles parallel prosecutions and on how Congress designs legislation containing civil and criminal enforcement provisions.⁸⁹ Other writers cautiously suggest that Halper will require the government and the courts to use a case-by-case analysis to guard against civil penalties serving punitive purposes.⁹⁰ From EPA's perspective, the RCRA Civil Penalty Policy should be revisited and revised in light of Halper.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

2. 42 U.S.C. § 6928(g), ELR STAT. RCRA 021.

3. 42 U.S.C. § 6928(a), ELR STAT. RCRA 020-021.

4. RCRA civil penalties fall under § 3008(g), 42 U.S.C. § 6928(g), ELR STAT. RCRA 021, and criminal penalties are under § 3008(d)-(e), 42 U.S.C. § 6928(d)-(e), ELR STAT. RCRA 021. See also Federal Water Pollution Control Act (FWPCA) § 311(b)(5) and (b)(6)(A), 33 U.S.C. § 1321(b)(5) and (b)(6)(A), ELR STAT. FWPCA 043 for civil and criminal penalties under the FWPCA for illegal discharge into navigable waters; Safe Drinking Water Act (SDWA) § 1463(b) to (d), 42 U.S.C. § 300j-23(b) to (d), ELR STAT. SDWA 023, for civil and criminal penalties under the SDWA for the use of lead in drinking water coolers; and Clean Air Act § 113(b)-(c), 42 U.S.C. § 7413(b)-(c), ELR STAT. CAA 45-46 for civil and criminal penalties under the Clean Air Act, as amended by the Clean Air Act Amendments of 1990, for major stationary source violations.

5. U.S. EPA, RCRA ENFORCEMENT RESPONSE POLICY (Dec. 1987), ELR ADMIN. MATERIALS 35161.

6. U.S. EPA, RCRA CIVIL PENALTY POLICY (Oct. 1990), ELR ADMIN. MATERIALS 35273 [hereinafter RCRA PENALTY POLICY].

7. 490 U.S. 435 (1989).

8. Pub. L. No. 94-580, 90 Stat. 2795. Technically, RCRA was a set of amendments to the previously existing federal Solid Waste Disposal Act.

9. See RCRA § 1003, 42 U.S.C. § 6902, ELR STAT. RCRA 004 (objectives and national policy).

10. The Quiet Communities Act of 1978, Pub. L. No. 95-609, 92 Stat. 3081.

11. The Solid Waste Disposal Act Amendment of 1980, Pub. L. No. 96-482, 94 Stat. 2334.

12. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221.

13. See CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. CERCLA 024, where Congress directed EPA to recover its costs (including natural resource damages) and actually outlined the types of costs to recover. See also FWPCA § 311(f) and (g), 33 U.S.C. § 1321(f) and (g), ELR STAT. FWPCA 045-046 directing EPA to recover costs (including natural resource damages) for oil and hazardous substance discharges into navigable waters; CAA § 120, 42 U.S.C. § 7420, ELR STAT. CAA 55, as amended by the Clean Air Act Amendments of 1990, for noncompliance penalties under the Clean Air Act.

14. 42 U.S.C. § 6928(g), ELR STAT. RCRA 021.

15. 42 U.S.C. § 6928(a), ELR STAT. RCRA 020-021.

16. 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 020-021.

17. Congress did discuss RCRA § 3008(a)(2), 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA 020. Specifically, Congress addressed how the Administrator could bring an enforcement action "where the state fails to act." See H.R. REP. NO. 1491, 94th Cong., 2d Sess., pt. 1, at 31-32.

18. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-071; Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 1-186. The 1972 FWPCA amendments contained the first $ 10,000 civil penalty provision. Similar civil penalties were incorporated in the 1977 amendments to the Clean Air Act, and the ceiling was increased to $ 25,000. RCRA then adopted the same ceiling, as did the FWPCA. All three statutes basically provide for up to $ 25,000 per day per violation for civil penalties, as well as injunctive relief and criminal enforcement. See generally supra note 1; for Clean Air Act, see H.R. REP. NO. 294, 95th Cong., 1st Sess. 70, reprinted in 1977 U.S. CODECONG. & ADMIN. NEWS 1148.

19. Pub. L. No. 92-500, 86 Stat. 816.

20. 33 U.S.C. § 1319(d), ELR STAT. FWPCA 040.

21. FWPCA § 309(d), 33 U.S.C. § 1319(d), ELR STAT. FWPCA 040.

22. Clean Air Act § 113(e), 42 U.S.C. § 7413(b), ELR STAT. CAA 49, as amended by the Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399. Title VII of the Clean Air Act Amendments of 1990 modernize the Clean Air Act and add provisions similar to those included in amendments to the FWPCA, the TSCA, RCRA, and CERCLA since the last Clean Air Act amendments in 1977. For example, under the old law noncompliance penalties were controlled by § 120, which only allowed penalties prospectively from the issuance of a notice of noncompliance. Now such penalties can be applied for past violations under § 113. The penalties in § 113(e) are based on the size of the business; economic impact of the penalty; violator's compliance history; good-faith efforts to comply; duration of the violation; economic benefit of noncompliance; seriousness of the violation; and other factors as justice may require. 42 U.S.C. § 7413(e), ELR STAT. CAA 51.

23. 42 U.S.C. § 6928(a), ELR STAT. RCRA 020-021.

24. 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 020-021.

25. 42 U.S.C. § 6928(g), ELR STAT. RCRA 021.

26. Olds, Unkovic & Lewin, Thoughts on the Role of Penalties in the Enforcement of the Clean Air Act and Clean Water Act, 17 DUQ. L. REV. 1, 17 (1978).

27. United States v. Halper, 490 U.S. 435 (1989); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972); Helvering v. Mitchell, 303 U.S. 391, 398-401 (1938); Olds, Unkovic & Lewin, supra note 26.

28. 372 U.S. 144 (1963).

29. The factors are (1) whether the sanction involves an affirmative disability or restraint, (2) whether it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment-retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) as an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alternative purpose assigned. Id. at 169 (footnotes omitted).

30. Rex Trailer Co. v. United States, 350 U.S. 148 (1956); United States ex. rel. Marcus v. Hess, 317 U.S. 537 (1943); Helvering v. Mitchell, 303 U.S. 391, 399 (1938).

31. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Flemming v. Nestor, 363 U.S. 603 (1959); Trop v. Dulles, 356 U.S. 86 (1957); Olds, Unkovic & Lewin, supra note 26, at 17.

32. 448 U.S. 242, 10 ELR 20477 (1980).

33. 33 U.S.C. § 1321(b)(5), ELR STAT. FWPCA 043.

34. 33 U.S.C. § 1321(b)(6), ELR STAT. FWPCA 043-044.

35. U.S. CONST. amend. V.

36. 448 U.S. at 248, 10 ELR at 20479.

37. Id., 10 ELR at 20479, citing Kennedy v. Mendoza-Martinez, 372 U.S. 148, 168-69 (1963).

38. 33 U.S.C. § 1321(b)(6), ELR STAT. FWPCA 043-044.

39. Olds, Unkovic & Lewin, supra note 26, at 5 (footnotes omitted).

40. See generally supra notes 18-24.

41. H.R. REP. NO. 294, 95th Cong., 1st Sess. 70, reprinted in 1977 U.S. CODE CONG. & ADMIN. NEWS 1148: "Since the committee viewed the civil penalty as primarily remedial in purpose, the committee also intends that the penalty be assessed in amounts which are adequate to assure [that] compliance will result, rather than permitting continued non-compliance to be economically profitable." See also Olds, Unkovic & Lewin, supra note 26, at 17.

42. See Olds, Unkovic & Lewin, supra note 26, at 24.

43. U.S. EPA, CIVIL PENALTY POLICY — CERTAIN AIR AND WATER ACT VIOLATORS (Apr. 11, 1978) [hereinafter CIVIL PENALTY POLICY FORIR AND WATER], cited in Olds, Unkovic & Lewin, supra note 26, at 28.

44. The six-year lapse coincides with a turbulent period at EPA, including the Anne Gorsuch/Rita Lavelle years, which culminated in the resignation of Administrator Gorsuch on March 9, 1983. See C. HARRIS, W. WANT, M. WARD, HAZARDOUS WASTE: CONFRONTING THE CHALLENGE 23-45 (1987); J. LASH, SEASON OF SPILLS 3-81 (1984).

45. U.S. EPA, NO. GM-21, POLICY ON CIVIL PENALTIES (Feb. 16, 1984), ELR ADMIN. MATERIALS 35083 [hereinafter UNIFORM PENALTY POLICY].

46. U.S. EPA, No. GM-22, A FRAMEWORK FOR STATUTE-SPECIFIC APPROACHES TO PENALTY ASSESSMENTS: IMPLEMENTING EPA's POLICY ON CIVIL PENALTIES (Feb. 16, 1984), ELR ADMIN. MATERIALS 35073.

47. See, e.g., U.S. EPA, CLEAN WATER ACT CIVIL PENALTY POLICY (Feb. 11, 1986) (listed at ELR ADMIN. MATERIALS 35000:15, 35000:17); U.S. EPA, CLEAN AIR ACT STATIONARY SOURCE CIVIL PENALTY POLICY (Mar. 25, 1987) (listed at ELR ADMIN. MATERIALS 35000:21, 35000:22); U.S. EPA, PENALTY GUIDANCE FOR VIOLATIONS OF UST REGULATIONS (Nov. 1990), ELR ADMIN. MATERIALS 35303; U.S. EPA, CLEAN WATER ACT SECTION 404 CIVIL ADMINISTRATIVE PENALTY ACTIONS (Dec. 1990).

48. U.S. GENERAL ACCOUNTING OFFICE, NO. GAO/RCED-88-140, HAZARDOUS WASTE: MANY ENFORCEMENT ACTIONS DO NOT MEET EPA STANDARDS 51 (June 1988).

49. OFFICE OF THE INSPECTOR GENERAL, U.S. EPA, NO. EIG8E9-05-0087-9100485, CAPPING REPORT ON THE COMPUTATION, NEGOTIATIONS, MITIGATION AND ASSESSMENT OF PENALTIES UNDER EPA PROGRAMS, AUDIT REPORT (Sept. 1989); OFFICE OF THE INSPECTOR GENERAL, U.S. EPA, NO. E1G68-09-0188-9100479, REVIEW OF EPA's CONTROLS OVER ADMINISTRATIVE PENALTIES UNDER RCRA ENFORCEMENT PROGRAM, AUDIT REPORT (Sept. 1989) (finding that regional offices are not including the value of the economic benefits of noncompliance in proposed and assessed penalties against RCRA violators; proposed gravity based penalties should be higher; regions are excessively mitigating penalties; and documentation needs improvement).

50. RCRA PENALTY POLICY, supra note 6, ELR ADMIN. MATERIALS 35273.

51. Id., ELR ADMIN. MATERIALS 35274.

52. UNIFORM PENALTY POLICY, supra note 45.

53. RCRA PENALTY POLICY,supra note 6, ELR ADMIN. MATERIALS 35284-99.

54. Id., ELR ADMIN. MATERIALS 35276-78.

55. Id., ELR ADMIN. MATERIALS 35278-79.

56. Id.

57. Id., ELR ADMIN. MATERIALS 35279-81. The term "BEN" is used to denote economic benefit.

58. Id., ELR ADMIN. MATERIALS 35281-84.

59. Id.

60. CIVIL PENALTY POLICY FOR AIR AND WATER, supra note 43. Three of the four factors in the 1978 air and water civil penalty policy appear in the 1990 RCRA Civil Penalty Policy: the economic benefit gained by the violator (now the economic benefit component), recalcitrance of the violator (now in the adjustment component), and the harm done to the public health or the environment (now in the gravity-based component as potential for harm). The fourth factor, any unusual or extraordinary enforcement costs thrust upon the public, for the 1978 penalty policy has been eliminated.

61. 490 U.S. 435 (1989).

62. Himelstein, High Court Ruling Boosts Double-Jeopardy Defense, Legal Times of Washington, June 5, 1989, at 1, col. 3.

63. 490 U.S. at 435.

64. Himelstein, supra note 62, at 1, cols. 3 and 4 (statement of Edward Reich, Deputy Assistant Administrator for Civil Enforcement, U.S. Environmental Protection Agency: the government "might have to determine whether to seek a civil penalty in the civil case and run the risk that it couldn't bring in a criminal case…. It's a tough call to make because many cases can go either way.").

65. U.S. CONST. amend. V.

66. 490 U.S. at 440.

67. 18 U.S.C. § 287 (1982).

68. 660 F. Supp. 531, 532-533 (S.D.N.Y. 1987).

69. 31 U.S.C. §§ 3729-3731 (1982 & Supp. V).

70. 660 F. Supp. at 533; 664 F. Supp. 852, 854 (S.D.N.Y. 1987) (motion for reconsideration).

71. 490 U.S. 435, 452 (1989), vacating 664 F. Supp. 852 (S.D.N.Y. 1987).

72. 303 U.S. 391 (1938) (criminal acquittal under False Claims Act followed by a $ 728,709.84 deficiency tax plus 50 percent penalty).

73. 317 U.S. 537 (1943) (False Claims Act criminal conviction and $ 54,000 fine followed by a $ 315,000 civil penalty, of which $ 112,000 was $ 2,000 per count for 56 counts and $ 203,000 was for double damages).

74. 350 U.S. 148 (1956) (Surplus Property Act criminal conviction and $ 25,000 fine followed by a $ 10,000 civil penalty figured at $ 2,000 per count for 5 counts).

75. For this discussion, it is irrelevant that Mitchell was acquitted and Hess involved a qui tam plaintiff. However, these facts appear to be unresolved issues after Halper.

76. 490 U.S. at 497-500.

77. Id. at 497.

78. Id. at 451 (emphasis added).

79. Id. at 449.

80. Id.

81. Id.

82. 448 U.S. 242, 10 ELR 20477 (1980).

83. 490 U.S. 435, 435 (1989).

84. 42 U.S.C. § 6928(g), ELR STAT. RCRA 021.

85. RCRA PENALTY POLICY, supra note 6.

86. 490 U.S. at 448.

87. As the Court stated in Halper:

The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.

490 U.S. at 449 (footnote omitted).

88. See Note, Crossing the Line Between Rough Remedial Justice and Prohibited Punishment: Civil Penalty Violates the Double Jeopardy Clause, 65 WASH. L. REV. 437, 447 (1990) (arguing that government agents and prosecutors would be well-advised to keep records of time and costs for each action in case the court requires an accounting to determine compensation).

89. Glickman, Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment Doctrine to Parallel Proceedings After United States v. Halper, 76 VA. L. REV. 1251, 1284-85 (1990) (arguing that Halper should cause government attorneys to adopt appropriate prophylactic measures).

90. Clapp, United States v. Halper: Remedial Justice and Double Jeopardy, 68 N.C.L. REV. 979, 993 (1990); Note, supra note 88.