ELR Citation: ELR 21446
No(s). CR88-282 (N.D. Ohio Feb 13, 1990)

The court sentences a defendant to four years' probation for failure to report disposal of hazardous waste in violation of §103 of the Comprehensive Environmental Response, Compensation, and Liability Act. Defendant, former commissioner of an airport, ordered drums of paint residues disposed of in a pit at the airport. In applying the new sentencing guidelines, the court first holds that the government failed to show that the disposal resulted in the "actual environmental contamination" necessary to increase defendant's offense level by four. Of the three potential areas of contamination involved—water, air, and soil—the evidence shows no surface or groundwater contamination, minimal or no dangerous soil contamination, and inconclusive evidence of any air contamination. The court next holds that an upward adjustment for cleanup costs is unwarranted. While the sentencing guidelines provide for an increase of four levels for a showing of "substantial expenditure," the government's claim that cleanup will cost $350,000 is specultative, includes duplicated testing efforts and costs, and is not credibly verifiable.

The court holds that the government has proved by a preponderance of the evidence that defendant disposed of a hazardous substance without a permit, thus providing for an increase of four levels. However, the court increases the sentence by only two levels because the quantity and risk involved were so small. The court next holds that the government's request to increase sentencing, claiming that defendant was an organizer or leader of a criminal activity involving five or more persons, must be denied. The government's proof failed to show the culpability of anyone other than defendant. The guidelines have been interpreted to require more than one participant who is criminally responsible in order to increase the sentencing level under the new guidelines. Finally, the court holds that because the defendant plead guilty, the guidelines require an increase of two levels for willful concealment of material facts. However, because defendant accepted responsibility for his crime and evidence exists to show that defendant believed that the drums were empty when he ordered their disposal, the court decreases the sentence by two levels.

Counsel for Plaintiff
Gregory Sasse
U.S. Attorney's Office
1404 E. Ninth St., Ste. 500, Cleveland OH 44114-1748
(216) 363-3900

Counsel for Defendant
Nicholas DeVito, Bernard J. Stuplinski
Kahn, Kleinman, Yanowitz & Arnson Co.
The Tower at Erieview, Ste. 2600, Cleveland OH 44114-1824
(216) 696-3311