ELR Citation: ELR 21429
No(s). 92-5174 (4th Cir. May 13, 1993)

The court affirms the conviction and sentence of a marina manager for discharging pollutants into navigable waters of the United States in violation of §§301(a) and 309(c)(2) of the Federal Water Pollution Control Act. The court first holds that the evidence presented and the reasonable inferences arising from that evidence support the jury's conclusion that the sewage discharged by the manager on July 19, 1991, and July 26, 1991, reached the navigable waters of the United States. The government's case in chief provided considerable circumstantial evidence showing that the waste the manager and his employees pumped into the marina's storm grate flowed into the marina's boat basin on the dates in question. Several witnesses testified to seeing what appeared to be raw sewage on the storm grate on July 19 and July 26, 1991, and an agent of the Federal Bureau of Investigation witnessed a brown, cloudy plume emerging out of an outfall pipe in the boat basin on July 26, 1991, and on August 2, 1991. Tests run on the substances that the witnesses observed confirmed the presence of raw sewage on the storm grate and that the water in which the brown plume floated contained raw sewage. Also, a red-dye test revealed that the sewage flowed from the grate, through an underground pipe, and reemerged in the boat basin at the outfall pipe.

Following its holding in a prior case, the court next holds that §2Q1.3 of the U.S. Sentencing Guidelines, which applies to the mishandling of environmental pollutants, and under which the lower court sentenced the manager to a prison term, does not contravene the Guidelines' enabling legislation. The imposition of prison sentences under §2Q1.3 reflects a determination of the seriousness of environmental offenses. The court holds that the district court properly applied the Guidelines in determining the manager's sentence. Using its discretion to increase a sentence determination by up to two levels based on the nature of the pollutant and the degree of harm caused by the defendant's actions, the district court concluded that the nature of the contamination in the instant case merited a one-level increase. The court holds that the district court's finding of contamination was not clearly erroneous, because sufficient circumstantial evidence was produced for the district court to infer environmental contamination from the discharges of raw sewage into the storm grate. The court also holds that the district court properly enhanced the base level pursuant to §2Q1.3(b)(1)(A) for an "ongoing, continuous, or repetitive discharge." The government established at trial that the discharges with which the manager was charged occurred on more than one occasion, specifically on July 19, 1991, and July 26, 1991. Finally, the court holds that the district court did not err by refusing to grant a reduction in the offense level for acceptance of responsibility. The manager challenged the findings that the sewage actually flowed into the boat basin from the grate and denied that he personally knew the sewage would flow into the boat basin.

Counsel for Plaintiff-Appellee
Jane F. Barrett, Ass't U.S. Attorney
U.S. Attorney's Office
820 U.S. CtHse., 101 W. Lombard St., Baltimore MD 21201
(410) 962-4822

Counsel for Defendant-Appellant
David P. Towey
Towey & Associates
1914 Sunderland Pl. NW, Washington DC 20036
(202) 452-9886

Before MURNAGHAN and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.