ELR Citation: ELR 20591
No(s). 93-1511 (2d Cir. Nov 10, 1994)

The court vacates and remands an individual's sentence for violating §103(b) of the Comprehensive Environmental Response, Compensation, and Liability Act by failing to notify the U.S. government of a release of asbestos that took place when contractors removed boilers from his mill and dumped associated asbestos insulation into a gravel pit in the woods. The court first holds that the record supports the district court's enhancement of the individual's sentence under U.S. Sentencing Guideline (USSG) §3B1.1 for being a manager or supervisor of criminal activities. The individual exercised control over the workers, he paid them, and he could have prohibited their illegal activities. The court holds, however, that the district court erred in sentencing the individual under §3B1.1(b), which requires a determination that the individual supervised five or more participants in criminal activity or that the criminal activity was otherwise extensive, because the district court did not make specific findings to support that determination. The court remands for specific findings as to whether the requirements of subsection (b) were satisfied. The court next holds that USSG §2Q1.2(b)(1)(A), which authorizes a six-level sentence enhancement for an ongoing and repetitious discharge of a hazardous substance into the environment, does not require the district court to make a specific finding of actual environmental contamination. The application note for §2Q1.2(b)(1)(A) states that when a hazardous or toxic substance is discharged into the environment, it will be assumed that contamination of that environment ordinarily ensues. The district court was entitled to infer in this case that the conceded asbestos discharges inevitably resulted in contamination of the environment. The court next addresses the individual's claim that the §2Q1.2(b)(1)(A) enhancement was improper because it applies only to substantive offenses, while he pled guilty only to a recordkeeping offense. The court holds that §2Q1.2(b)(5) authorizes application of the §2Q1.2(b)(1) enhancements to recordkeeping offenses if they reflect an effort to conceal a substantive environmental offense. The court thus directs the district court to consider on remand whether the individual's failure to report the asbestos release was an effort to conceal a substantive environmental offense.

Counsel for Appellee
Sharon E. Jaffe, Ass't U.S. Attorney
U.S. Attorney's Office
157 Church St., P.O. Box 1824, New Haven CT 06508
(203) 773-2108

Counsel for Appellant
Hubert J. Santos, Hope C. Seeley
Santos, Peck & Smith
51 Russ St., Hartford CT 06106
(203) 249-6548

Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Judge.^*