ELR Citation: ELR 20085
No(s). 85-2463-G (D. Mass. Aug 15, 1986)

The court holds that the Environmental Protection Agency's (EPA's) information requests from former operators of an inactive waste site are authorized under §3007(a) of the Resource Conservation and Recovery Act (RCRA), RCRA's penalty provision is not criminal in nature, and defendants' failure to object to the information requests within the 30-day period provided waived their Fifth Amendment self-incrimination and due process rights defenses. The court first holds that EPA's information requests, authorized by §104(e)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act, are also authorized by RCRA §3007(a), even for information concerning an inactive hazardous waste site. Civil penalties under RCRA §3008(g) for defendants' failure to respond to EPA's information requests are available. The court rules that the relevant RCRA penalties are civil rather than criminal sanctions. Congress clearly intended that RCRA §3008(g) function as a civil penalty and provided only monetary sanctions, as opposed to clearly criminal sanctions in §3008(d) and (e). Because defendants are not entitled to a jury trial or other criminal procedural protections, the court may grant summary judgment. Next the court holds that defendants' failure to invoke their Fifth Amendment privilege against self-incrimination within 30 days of EPA's requests waived the privilege as a justification for their refusal to respond. Likewise, the court holds that defendants' failure to respond within the statutory deadline precluded their assertion of due process defenses. Finding an issue of material fact as to whether one defendant handled hazardous waste, the court holds that summary judgment against this defendant is inappropriate.

[A related opinion appears at 16 ELR 20495.]

Counsel for Plaintiff
Andrew E. Lauterback, Ass't U.S. Attorney
Rm. 2800, U.S. Courthouse, 3d & Constitution Ave. NW, Washington DC 20001
(202) 633-5107

Anne Rogers, Margaret E. Sheehan, Ass't Attorneys General
One Ashburton Pl., Boston MA 02108
(617) 727-3688

Counsel for Defendants
William F. Macauley
Craig & Macauley
One Post Office Square, Boston MA 02109
(617) 426-8220

Bruce F. Smith
Jager, Smith & Stetler
28 State St., Boston MA 02109
(617) 523-3075