United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
J. CASPER UNITED STATES DISTRICT JUDGE
found liability against Defendants R.M. Packer Co., Inc.,
(“R.M. Packer”) and Tisbury Towing and
Transportation (“Tisbury Towing”) (collectively,
“Defendants”) on claims pursuant to the Clean Air
Act, 42 U.S.C. § 7413(b) and on claims against R.M.
Packer pursuant to the Clean Water Act, 33 U.S.C.
§1319(b), D. 55, the Court now turns to the civil
penalties and injunctive relief that Plaintiff (“United
States” or “the government”) now seeks. D.
74-75, 78. After a bench trial over the course of four days
and having considered the filings and arguments of the
parties, the Court makes the following findings of fact and
conclusions of law, incorporating its summary of same in the
excerpt of transcript attached hereto.
determine the appropriate penalties for Clean Air Act and
Clean Water Act violations, the parties agree that the Court
should adopt a “bottom-up” approach. D. 75 at 21;
D. 77 at 11. Under this approach, the analysis begins with
the economic benefit, if any, that the failure to comply gave
the Defendants and then the Court considers the other penalty
factors to adjust the figure upward so that the penalty
constitutes both punishment for non-compliance and deterrence
of any future violations. See United States v. Citgo
Petroleum Corp., 723 F.3d 547, 552 (5th Cir.
2013) (internal citation omitted); Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 890 F.Supp. 470,
492 (D.S.C. 1995).
both the Clean Air Act and the Clean Water Act, the other
factors for the Court to consider include the Defendants'
compliance history and history of violations, the duration of
such violations, any good faith efforts to comply, the
seriousness of the violations, the size of the business and
the economic impact of any penalty on the business. 42 U.S.C.
§ 7413(e); 33 U.S.C. § 1319(d); see D. 75
at 22-23 and cases cited.
Court having already found liability as to both R.M. Packer
and Tisbury Towing, the Court will not repeat its factual
findings as to same or the incidents of non-compliance that
supported those findings, but incorporates its prior
Memorandum and Order, D. 55, here. Having considered the
evidence as to the relevant penalty factors during the course
of the trial, the Court now turns to address each factor. As
an initial matter, the Court notes that much of the factual
presentation by the government, both from percipient
witnesses and expert witnesses, was largely undisputed. Where
there were disputes of fact, the Court has addressed them
Economic Benefit to Non-Compliance
upon the unrefuted and persuasive analysis present by Dr.
Joan Meyer, an economist, there was an economic benefit to
R.M. Packer for its non-compliance with Clean Water Act and
Clean Air violations. (Any such benefit to Tisbury Towing was
negligible so the government does not press the same argument
as to Tisbury Towing, but given the common ownership and
operation of the Defendants, the Court has considered this
economic benefit in its bottom-up approach as to both).
Relying upon information from Jonathan Jones (who testified
about, among other things, the reasonable costs of stormwater
compliance) and Clement Mesavage (who testified about, among
other things, the reasonable costs of air pollution
compliance), publicly available records, adjusting for
inflation, taxes and depreciation, and subtracting the actual
costs of R.M. Packer's compliance efforts from the
reasonably estimated costs of full compliance, Dr. Meyer
opined that the economic benefit to R.M. Packer of
non-compliance was between $84, 762 and $110, 567. Exh. 293;
Meyer testimony. Although Defendants dispute their ability to
pay the civil penalty that the government seeks (as discussed
below), they presented no evidence disputing that R.M. Packer
reaped an economic benefit from failing to comply with the
law and this Court finds that it did so at the upper level of
Dr. Meyer's range ($110, 567) given the scope and
duration of that non-compliance as discussed further below.
Accordingly, any penalty should exceed this figure so as to
serve as both punishment and deterrence for Defendants.
Citgo Petroleum Corp., 723 F.3d at 552.
Defendants' History of Non-Compliance
among the undisputed matters at the bench trial was that R.M.
Packer's non-compliance with Clean Air Act and Clean
Water Act regulations and Tisbury Towing's non-compliance
with Clean Air Act regulations have been ongoing for some
time. As to Tisbury Towing, just considering non-compliance
with the Clean Air Act violations alleged in this action, its
failure to conduct loading events in a vapor tight vessel
extends back until November 2011 and spans several years.
Exh. 290 at 2; Kudarauskas testimony. The same is true as to
its failure to submit an emission control plan, which extends
back to April 2010, pursuant to a tolling agreement, and also
spans several years. Exh. 290 at 1, 3; Kudarauskas testimony.
Similarly, just the multiple (and, in some cases, continuous)
instances of non-compliance with both the Clean Air Act and
Clean Water Act charged in this case have occurred over the
course of years, and as indicated by several witnesses,
continue through the present. Exh. 288; Exh. 289; Kudarauskas
testimony; Canzano testimony.
even before the violations giving rise to this civil action,
the EPA had issued a notice of violation and compliance order
to R.M. Packer in 2002 for not having a VRU in operation in
1999. D. 75 at 7. As a result, the business was required to
make such installation and install the appropriate system.
Id. Given that many of the claims in the present
case arise out of the failure to maintain and inspect that
same system, it is appropriate for the Court to consider that