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Thursday, June 20, 2024 | Back issues
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Court Says $18M Penalty for Mercury Spill Is Just

(CN) - A natural gas company failed to convince the 1st Circuit overturn its conviction and $18 million penalty imposed for storing mercury without a permit.

Southern Union, a Texas-based company, argued that it should not have been indicted under the Resource Conservation and Recovery Act and that the prosecution violated due process.

The three-judge panel in Boston rejected Southern Union's claims, finding that the company needed a permit to store hazardous waste and that it was given proper notice that it could face prosecution for its crimes.

"Obliviousness is not a defense," Chief Judge Sandra Lynch wrote for the court.

Lynch described how Southern Union knew that the mercury was piling up at its facility and being kept in unsafe conditions at a 12 acre complex on Tidewater Street in Pawtucket, Rhode Island.

"Here, 140 pounds of mercury became the play toy of young vandals who spread it about, including at their homes in a local apartment complex, after they spilled it around Southern Union's largely abandoned and ill-guarded Tidewater site in Pawtucket, Rhode Island," the ruling states.

Southern Union began supplying natural gas to New England customers in 2000 and stopped serving Rhode Island customers in 2006. Most of the Tidewater complex sat unused, but Southern Union used parts to store construction supplies and waste, including malfunctioning mercury-sealed gas regulators.

Homeless people and vandals took up residence at the site, which did not have security cameras, as it fell into disrepair.

After the mercury theft and spill in 2004, the company spent more than $6 million in remediation. Five buildings in an apartment complex were evacuated, and 150 residents were displaced for two months tested for mercury exposure.

Southern Union also contested the penalty that came with its conviction: a $6 million fine and a $12 million "community service obligation." The company claims it should only have to pay $50,000, the maximum penalty for a one-day violation.

Lynch wrote that the fine was reasonable, and the court had not determined the total number of days that Southern Union was in violation.

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