ELR Citation: ELR 20356
No(s). 90-3228 (6th Cir. Dec 3, 1990)

The court holds that the district court improperly failed to increase the offense levels under the Sentencing Guidelines in sentencing a former municipal airport official who pled guilty to failing to report a release of ignitable hazardous waste under §103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and making a false statement about the release. Defendant, a former airport commissioner, ordered used paint drums to be buried in a pit at the airport. Some of the drums turned out to contain paint thinner and other liquid waste. The district court set the appropriate offense level under the Sentencing Guidelines at 10, a level that gave the district court the discretion to impose probation in lieu of imprisonment. The district court determined that §2Q1.2(b)(1)(B) did not warrant an increase in the offense level, since the government failed to show that the disposal caused "actual environmental contamination." The court of appeals holds that the district court's determination was clearly erroneous. While there may have been no actual harm, there was clearly environmental contamination of the soil and water. The district court also determined that §2Q1.2(b)(3) did not warrant an increase in the offense level, since the government did not show that a cleanup of "substantial expense" was required. The court of appeals holds that this determination was also clearly erroneous. The cleanup costs greatly exceeded the estimate accepted by the district court.

A concurring judge would emphasize that the court's decision does not indicate that a sentence reduction is either appropriate or reasonable. The record reveals a serious risk of harm to the environment.

[The district court's decision is published at 20 ELR 21446.]

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

Counsel for Defendant-Appellee
Nicholas DeVito
DeVito & Associates
1000 Terminal Tower, Cleveland OH 44113
(216) 687-1212

Before: WELLFORD and NELSON, Circuit Judges, and MEREDITH, District Judge.^*