ELR Citation: ELR 20690
No(s). 90-6026 (6th Cir. Mar 1, 1991)

The court holds that a federal indictment charging defendants with asbestos-related violations of the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not barred by the Double Jeopardy Clause of the Fifth Amendment. Defendants moved to dismiss the indictment, claiming that a state environmental enforcement agency's repeated fines for the same conduct covered in the indictment were so disproportionate to any remedial purpose as to constitute punishment under the Double Jeopardy Clause. Defendants also moved to dismiss claiming that the Clean Air Act and CERCLA claims were multiple prosecutions of the same conduct. After the district court rejected these arguments, defendants brought this appeal. The court first holds that individual defendants are provided no unique double jeopardy protection by being organized as a Subchapter S corporation. Holding to the contrary would allow any individual who receives income on a pro rata basis, whether employed by a Subchapter S or not, to claim double jeopardy protection when the income producer has been punished. The court next holds that the Double Jeopardy Clause bars only additional prosecution by the same sovereign. In this case dual sovereignty by the state and federal government is involved. Accordingly, the state enforcement agency and the United States may each pursue claims against defendants for the same conduct without subjecting the defendants to double jeopardy. Moreover, a review of the documents in this case reveals that the state enforcement agency was not acting as a conduit or tool for federal enforcement, which is an exception to the dual sovereignty doctrine. Finally, the court notes that while the U.S. Supreme Court's decision in Grady v. Corbin, 110 S. Ct. 2084 (1990), bars successive prosecutions for the same offense, it does not bar simultaneous prosecutions for separate offenses. Since a Clean Air Act conviction requires proof that defendants emitted asbestos or violated Environmental Protection Agency adopted work practice standards, and a conviction under CERCLA requires proof that defendants were in charge of a facility from which a hazardous substance was released and they failed to notify the appropriate agency, the court concludes that each offense requires proof of a different element.

Counsel for Appellant
Frank Haddad
500 Kentucky Home Life Bldg., Louisville KY 40202
(502) 583-4881

Counsel for Appellant
Vicki Plaut
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MARTIN and KRUPANSKY, Circuit Judges; and PECK, Senior Circuit Judge.