2005 Federal Sentencing Guidelines
Chapter 2 - PART Q - OFFENSES INVOLVING
THE ENVIRONMENT
§2Q1.3. Mishandling of Other
Environmental Pollutants; Recordkeeping, Tampering, and Falsification
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) (A) If the offense resulted in an ongoing, continuous, or repetitive
discharge, release, or emission of a pollutant into the environment, increase
by 6 levels; or
(B) if the offense otherwise involved a discharge, release, or emission
of a pollutant, increase by 4 levels.
(2) If the offense resulted in a substantial likelihood of death or serious
bodily injury, increase by 11 levels.
(3) If the offense resulted in disruption of public utilities or evacuation
of a community, or if cleanup required a substantial expenditure, increase
by 4 levels.
(4) If the offense involved a discharge without a permit or in violation
of a permit, increase by 4 levels.
(5) If a recordkeeping offense reflected an effort to conceal a substantive
environmental offense, use the offense level for the substantive offense.
Commentary
Statutory Provisions: 33
U.S.C. §§ 403, 406, 407, 411, 1319(c)(1), (c)(2), 1415(b), 1907,
1908; 42 U.S.C. § 7413. For additional statutory provision(s), see Appendix
A (Statutory Index).
Application Notes:
1. "Recordkeeping offense" includes both recordkeeping and reporting offenses.
The term is to be broadly construed as including failure to report discharges,
releases, or emissions where required; the giving of false information; failure
to file other required reports or provide necessary information; and failure
to prepare, maintain, or provide records as prescribed.
2. If the offense involved mishandling of nuclear material, apply
§2M6.2 (Violation of Other Federal Atomic Energy Agency Statutes, Rules,
and Regulations) rather than this guideline.
3. The specific offense characteristics in this section assume knowing conduct.
In cases involving negligent conduct, a downward departure may be warranted.
4. Subsection (b)(1) assumes a discharge or emission into the environment
resulting in actual environmental contamination. A wide range of conduct, involving
the handling of different quantities of materials with widely differing propensities,
potentially is covered. Depending upon the harm resulting from the emission,
release or discharge, the quantity and nature of the substance or pollutant,
the duration of the offense and the risk associated with the violation, a departure
of up to two levels in either direction from that prescribed in these specific
offense characteristics may be appropriate.
5. Subsection (b)(2) applies to offenses where the public health is seriously
endangered. Depending upon the nature of the risk created and the number of
people placed at risk, a departure of up to three levels upward or downward
may be warranted. If death or serious bodily injury results, a departure would
be called for. See Chapter
Five, Part K (Departures).
6. Subsection (b)(3) provides an enhancement where a public disruption, evacuation
or cleanup at substantial expense has been required. Depending upon the nature
of the contamination involved, a departure of up to two levels in either direction
could be warranted.
7. Subsection (b)(4) applies where the offense involved violation of a permit,
or where there was a failure to obtain a permit when one was required. Depending
upon the nature and quantity of the substance involved and the risk associated
with the offense, a departure of up to two levels in either direction may be
warranted.
8. Where a defendant has previously engaged in similar misconduct established
by a civil adjudication or has failed to comply with an administrative order,
an upward departure may be warranted. See §4A1.3
(Adequacy of Criminal History Category).
Background: This section
parallels §2Q1.2 but applies to offenses involving substances which are
not pesticides and are not designated as hazardous or toxic.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 205).
