ELR Citation: ELR 20305
No(s). 98-10355 (9th Cir. Dec 30, 1999)

The court reverses and remands the sentence imposed against the owner of a hazardous waste treatment, storage, and disposal facility who pled guilty to negligently discharging oil wastewater contaminated with benzene into the Los Angeles sanitary sewer in violation of the Clean Water Act (CWA). The owner entered an agreement with a liquid bulk terminal that allowed the owner to discharge wastewater at the terminal into the sanitary sewer system under the terminal's sewer permit, but the owner did not treat the wastewater before discharge. The court first holds that the district court erred in assessing the toxicity of the wastewater at the time it left the terminal, rather than at the point it was initially discharged into the sewer system at the terminal. Local pretreatment standards prohibited the discharge of benzene to the sewer system, which, in essence, applied to the facility's wastewater discharge from the point source at the terminal on its path to the final treatment stage. The court next holds that the record supports the district court's finding that hazardous material had been continuously discharged into the environment by the facility. Such a finding is the appropriate predicate for upward adjustment under the U.S. Sentencing Guideline §2Q1.2(b)(1) and, thus, it is reasonable to infer from the evidence that the facility's illegal acts resulted in contamination, necessitating application of §2Q1.2(b)(1)(A). Moreover, the court finds that other reasons support an upward adjustment of the sentence for the facility owner. It would be unfair to require the public to absorb any additional cleanup costs attributable to unregulated increases in discharged wastes to either a publicly funded treatment facility or directly into the environment. Additionally, without punishment, the facility's competitors may receive the message that this is acceptable conduct in order to remain economically competitive.

Counsel for Plaintiff
Donald W. Searles, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
501 I St., Ste. 10-200, Sacramento CA 95814
(916) 554-2700

Counsel for Defendant
Christopher H. Wing
Law Offices of Christopher H. Wing
1101 East St., Sacramento CA 95814
(916) 441-4888

Before Sneed and Pregerson, JJ.