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20 ELR 20444 | Environmental Law Reporter | copyright © 1990 | All rights reserved United States v. MaioranoNo. 87 C 4491 (N.D. Ill. January 8, 1990)The court imposes a $ 100,000 civil penalty against Resource Conservation and Recovery Act (RCRA) defendants who disregarded an Environmental Protection Agency (EPA) administrative order. The defendants operated an electroplating business that generated hazardous wastes. EPA alleged serious violations of federal and state hazardous waste regulations. After an administrative hearing, defendants were ordered to submit a closure plan. Defendants failed to submit a closure plan and were in violation of this order for 515 days. Defendants were also 270 days late responding to an EPA request for information pursuant to RCRA § 3007 and 124 days late submitting a revised closure plan. Defendants relet the premises, and the government obtained a court order requiring them to notify the new owner, tenants, and other persons at the facility of the potentially hazardous conditions and to post warnings. The defendants did not fully comply. The court finds the defendants to have been intransigent and therefore deserving of no mercy based on their financial circumstances. The penalty of $ 100,000, although a small proportion of the over $ 22 million statutory maximum penalty, adequately serves RCRA's purpose of deterrence. Counsel for Plaintiff Counsel for Defendants Rovner, J.: This case was brought by the United States for injunctive relief and civil penalties pursuant to Sections 3008(a) and (g) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6928(a) and (g). The complaint alleged that defendants had violated an administrative order entered by the U.S. Environmental Protection Agency ("EPA"). On October 28, 1987, the Court granted the government's motion for partial judgment on the pleadings. The sole remaining issue is the government's request for imposition of a civil penalty. The defendants, Louis J. Maiorano, Sr. and Louis J. Maiorano, Jr., owned and operated an electroplating business called Aero Plating Works, Inc., until the mid 1980's. This business generated hazardous wastes. In September 1984, following inspections by the Illinois Environmental Protection Agency ("IEPA"), the EPA issued an Administrative Complaint and Compliance Order to defendants alleging violations of federal and state hazardous waste laws and regulations. An administrative hearing was held in July 1985. On February 13, 1986, after finding numerous violations in connection with the storage and disposal of hazardous wastes, the administrative law judge issued an order requiring defendants to submit a closure plan for EPA approval, to complete closure within thirty days of EPA approval, and to comply with Illinois regulations concerning off-site transportation of hazardous wastes. The order also required Louis J. Maiorano, Jr. to pay a civil penalty of $ 3,500 and held defendants jointly and severally liable for an additional civil penalty of $ 18,500. Defendants did not appeal the order, which accordingly became final on April 13, 1986 pursuant to 40 C.F.R. § 22.27(c). On February 3, 1987, the EPA requested certain information from defendants concerning the facility pursuant to Section 3007 of the RCRA, 42 U.S.C. § 6927. Defendants were required to respond in seven days but did not do so.1 Defendants apparently complied with the EPA's information request on October 23, 1987. Defendants failed to comply with any of the provisions of the EPA order or with the EPA information request. On May 18, 1987, the government filed this lawsuit seeking enforcement of the order and information request and the imposition of civil penalties. On October 16, 1987, defendants finally submitted a closure plan to the IEPA. On December 10, 1987, the IEPA notified defendants that their submission was deficient and directed them to submit a revised plan within 30 days. Defendants requested an extension to February 5, 1988, and they did not submit a revised plan until June 9, 1988. In the meantime, no lawful closure of the premises could occur without an approved closure plan. Nonetheless, the premises were being relet to new tenants. Upon discovering this, the government moved for partial summary judgment on the pleadings with respect to its request for injunctive relief. That motion was granted by this Court on October 28, 1987. Provision 7 of the Judgment Order required defendants to notify the new owner, tenants, and other persons at the facility of the potentially hazardous conditions. Among other things, defendants were required to post notices that the facility had "utilized hazardous materials and that it has not been shown that said facility was properly closed and that all hazardous wastes have been fully removed and properly disposed." On December 23, 1987, the government notified defendants that they had not complied with Provision 7 or with Provisions 5 and 6, which ordered payment of the penalties set by the EPA. On January 22, 1988, defendants submitted to the EPA a copy of the notice which they had posted on the premises. It stated merely: "CAUTION: A Plating Shop Once Occupied This Building, 10/29/87." Provision 7 also required written notification to certain identified persons, and defendants did not comply with this requirement until January 22, 1988. Defendants also failed to satisfy the monetary judgment portion of the order. Accordingly, on March 1, 1988, the Clerk of Court issued a Citation in Supplemental Proceedings requiring defendants to appear on April 1, 1988, to be examined under oath concerning their property and income and to bring with them certain financial documents. As a result, the government and defendants agreed on a payment plan. Section 3008(g) of the RCRA provides: Civil penalty — Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $ 25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation. 42 U.S.C. § 6928(g). The government argues that the number of days of violation should be computed as follows:
Defendants have not objected to this computation, and the Court agrees that the maximum penalty should be determined on the basis of 909 days of violation. Multiplication of this number by the maximum daily fine of $ 25,000 yields a maximum penalty of $ 22,725,000. The government argues that a substantial penalty is warranted for reasons of deterrence.2 The Court agrees. In determining an appropriate penalty, the Court should consider the seriousness of the violation and the extent of any good faith efforts to comply. See United States v. T & S Brass and Bronze Works, Inc., 681 F. Supp. 314, 322 [18 ELR 20905] (D.S.C.), aff'd in relevant part, 28 ERC 1649, 19 Envt'l L. Rep. 20,857 (4th Cir. 1988). Defendants' violations were not minor; they were rather serious. Not only were their substantive violations extensive, as documented in the EPA order, but they disregarded specific orders as well, and there are few acts as serious as violations of orders once the facts have already been adjudicated. Defendants have not taken this matter seriously, and they have exhibited a pattern of behavior which evidences a complete disregard for statutory law, EPA orders, and judicial orders. To impose merely a perfunctory or token penalty would send a message to similarly situated persons that they may flout the law without consequence. Defendants point to delays occasioned by the IEPA's failure to promptly respond to defendants' closure plans. However, there is no showing that the amount of time the IEPA took to review the plans was inordinate, and, in any event, those alleged delays cannot excuse defendants' own conduct. Defendants also emphasize their own personal financial circumstances, apparently in the hope that their lack of affluence will influence the Court's determination of an appropriate penalty. Although the ability to pay may warrant consideration in some circumstances, the Court does not view it as a particularly significant factor in this case. Defendants have never provided evidence concerning their financial circumstances, despite numerous opportunities to do so.3 Furthermore, defendants have been so intransigent that they are in no real position to request mercy based on their personal circumstances. The government has suggested that a civil penalty of $ 100,000 — about $ 110 per day — would be appropriate. Although this figure is a relatively small proportion of the maximum penalty, it is nonetheless a substantial sum, and it would serve the deterrence purposes of § 3008(g) of the RCRA.4 The Court agrees that it is an appropriate penalty. A civil penalty of $ 100,000 is hereby imposed on defendants, to be paid to the United States of America. 1. See United States v. Charles George Trucking Co., 823 F.2d 685, 688-89 [17 ELR 21152] (1st Cir. 1987) (affirming civil penalty under RCRA for failure to respond to EPA information request). 2. See United States v. T & S Brass and Bronze Works, Inc., 681 F. Supp. 314, 322 [18 ELR 20905] (D.S.C.) (the major purpose of a civil penalty is deterrence), aff'd in relevant part, 28 ERC 1649, 19 Envt'l L. Rep. 20,857 (4th Cir. 1988). See also United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1244 [20 ELR 20035] (N.D. Ind. 1989). 3. The government has sought financial information from defendants as part of settlement negotiations (conducted both with and without this Court's assistance), and defendants' financial records were subject to disclosure through the Citation in Supplemental Proceedings. 4. This figure is considerably lower than penalties imposed in other RCRA cases. See Environmental Waste, supra, 710 F. Supp. at 1245 (imposing penalty of $ 2,000 per day); T & S Brass, supra, 681 F. Supp. at 322 (imposing penalty of $ 1,000 per day). 20 ELR 20444 | Environmental Law Reporter | copyright © 1990 | All rights reserved |