Company asks to lower $18M fine in RI mercury case

Michelle r. Smith, Associated Press

PROVIDENCE, R.I. (AP) -- Lawyers for a Texas natural gas company convicted of illegally storing mercury in Rhode Island have told a judge he should limit the company's fine to no more than $50,000 after the U.S. Supreme Court struck down the original $18 million penalty.

In the same hearing Monday, U.S. District Court Judge William Smith wondered aloud whether he could instead require "higher-ups" in the Southern Union Co. to perform community service as a condition of the sentence.

Southern Union was convicted in 2008 of storing liquid mercury without a permit at a vacant and rundown building in Pawtucket. Prosecutors say Southern Union broke the law for 762 days, or more than two years, though a jury was never asked to specifically decide how many days it broke the law.

Smith based the original $18 million penalty at least in part on that number. He multiplied the maximum daily fine of $50,000 by 762 days and arrived at a maximum fine of $38.1 million. Smith then imposed a $6 million fine and ordered the company to pay $12 million to various charities.

The company argued that the jury found only that Southern Union violated the law for one day. In a Supreme Court decision in June, the high court agreed that Smith should not have imposed the $18 million penalty without a jury being asked to determine the number of days the company broke the law.

Prosecutors on Monday said Smith could seat a new jury to help decide a penalty. But the company objected, saying that would constitute "double jeopardy" because it would, in essence, put the company through a second trial.

Assistant U.S. Attorney Donald Lockhart also argued that the Supreme Court's ruling should not affect the $12 million community service portion of the original sentence because it is part of the company's probation, an argument with which the company disagrees.

As they discussed the community service portion of the sentence, Smith asked Lockhart whether he had the authority to order Southern Union to have its employees perform 10,000 hours of environmental cleanup work. Lockhart responded that he did.

"If I have the authority to do that, do I have the authority to designate who in the company should do that?" Smith asked, then indicated he was talking about "higher-ups" rather than low-level people at the company.

Lockhart said that he wasn't sure but that he possibly could do it.

Smith didn't say when he would make a decision.