ELR Citation: ELR 20854
No(s). 92-50288 (9th Cir. May 20, 1993)

The court vacates a U.S. Navy civilian employee's criminal sentence for aiding and abetting the illegal disposal of methyl isocynate in violation of §3008(d)(2)(A) of the Resource Conservation and Recovery Act (RCRA), and remands for resentencing because the district court failed to make sufficient findings to support its offense-level enhancement determinations under the U.S. Sentencing Guidelines (USSGs). The civilian employee supervised several employees for the U.S. Navy at a facility that had only interim permission under RCRA to store, but not to treat or dispose of, hazardous waste pending finalization of the Navy's permit application. Based on video and audio tape recordings showing the civilian employee instructing subordinates to mix methyl isocyanate with another chemical, which caused the emission of gas clouds, and instructing a subordinate to dump the drum containing the chemical in a municipal dumpster outside the Navy facility, a federal grand jury indicted the civilian employee on multiple counts of RCRA violations. After the employee agreed to plead guilty to one count of aiding and abetting the illegal disposal of the chemical, the district court determined that USSG §2Q1.2, which is entitled Mishandling of Hazardous or Toxic Substances or Pesticides; Recordingkeeping, Tampering, and Falsification, was the appropriate guideline. The district court, however, rejected the probation department's presentence report that argued for a four-level increase for the employee's role in the offense and an additional two-level upward enhancement for abuse of a position of trust under USSG §3B1.3. Rather, the court concluded that there had been no discharge into the environment and declined to enhance the employee's offense level on that basis. The court only enhanced the employee's offense level by four based on the employee's supervisory role in mishandling the hazardous waste; enhanced the employee's offense level by two, rather than four; for failure to have a permit; and rejected the government's request for an abuse of trust enhancement.

The court holds that the district court correctly refused to enhance the employee's offense level under USSG §2Q1.2(b)(F), because disposal of the hazardous chemical in the dumpster, although reprehensible, did not result in actual contamination to the environment. The court holds that application note 5 to §2Q1.2, which addresses those responsible for a discharge, release, or emission of a hazardous substance into the environment, requires a showing that some amount of hazardous substance in fact contaminated the environment. Owing to the fortuitous intervention of the authorities, no actual contamination resulted from the irresponsible disposal of the hazardous chemical in the dumpster. The court holds, however, that the district court did err in failing to make appropriate findings concerning the gas cloud that was released into the air as a result the civilian employee's direction to subordinates to combine the chemical with another chemical. On remand, the court orders the district court to determine whether the gas was a hazardous substance since, if it was, its escape into the atmosphere contaminated the environment, and an increase in the employee's offense level would be warranted under §2Q1.2(b)(1).

The court holds that the district court was obligated to enhance the employee's offense level under §2Q1.2(b)(4) for failure to have a valid permit at the time of the disposal of the hazardous substance, even though it could have departed downward from the four-level enhancement if adequate justification existed. It does not matter under the sentencing guidelines whether the employee was aware that the Navy did not have the required permit. The district court adjusted upward the offense level by only two levels based on its conclusion that the employee was not at fault for the Navy not possessing the permit. The court orders the district court on remand to adjust the employee's offense level upward by four levels for failure to have a permit or make appropriate findings relying on bases authorized under §2Q1.2(b)(4) and accompanied by a "reasoned explanation" for departure from that prescribed level increase.

The court next remands to the district court for a determination whether the employee took advantage of his supervisory role at the waste facility to commit a difficult-to-detect wrong, which would militate in favor of further offense level enhancement. The district court did not make an adequate factual finding on whether the employee abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, and because this court is unable to discern whether the district court considered the employee's position and activities in light of relevant Ninth Circuit precedent, remand is necessary.

Finally, the court holds that the sentencing guidelines do not permit the substitution of community service for a fine, and remands the district court's imposition of three months home detention and 240 hours of community service to determine whether the employee is capable of paying a fine. Although the employee's probation report indicates that his financial resources are limited, he is not destitute and if he can pay a fine, the guidelines require the district court to impose one.

Counsel for Plaintiff-Appellant
Melanie K. Pierson, Ass't U.S. Attorney
U.S. Attorney's Office
940 Front St., Rm. 5152, San Diego CA 92101
(619) 557-5610

Counsel for Defendant-Appellee
Thomas H. Senters
425 W. 'B' St., Ste. 201, San Diego CA 92101
(619) 232-4726

Fletcher, J. (before Browning and Schroeder, JJ.):