Wilfred Page Van Loben Sels pled guilty to the negligent
discharge of benzene-contaminated wastewater into the City of Los Angeles (the
City) municipal sewer system in violation of section 307 of the Clean Water Act
(CWA)[1] and
section 64.30 of the Los Angeles Municipal Code. The District Court for the
Eastern District of California refused to apply a six-level upward adjustment
of Van Loben Sels' penalty under sentencing guideline section 2Q1.1(b)(1)(a).
government appealed this refusal, and the Ninth Circuit reversed based on both
the defendant's knowledge of the illegal discharge and an inference that this
discharge created actual contamination.
Van Loben Sels was the owner of Gibson, Inc. (Gibson), a hazardous waste treatment, storage, and disposal facility. Van Loben Sels contracted with Wilmington Liquid Bulk Terminal (WLBT) to allow Gibson to transport wastewater to WLBT's facility where it could be discharged into the Los Angeles Sanitary sewer system. Once in the sewer system, the wastewater flowed into the Terminal Island publicly owned treatment works prior to its release into San Pedro Bay. Van Loben Sels admitted that, for a twenty-six month period between 1991 and 1993, Gibson sent one million gallons of untreated wastewater per month to the WLBT facility. This wastewater contained benzene concentrations that exceeded CWA regulatory limits.
A ninety-two count indictment was issued against three individuals, and Val Loben Sels pled guilty to the negligent discharge of benzene-contaminated wastewater.[3] The district court held an evidentiary hearing regarding Van Loben Sels' sentence. The court concluded that, although Van Loben Sels had "continuously discharged benzene into the environment," contemporaneous tests showed no benzene discharge from Terminal Island.[4] Moreover, the district court held that the government failed to prove that the percentage of benzene at Terminal Island was attributable to Van Loben Sels. Accordingly, the district court refused to upwardly adjust Van Loben Sels' penalty under sentencing guideline 2Q1.2(b)(1)(A).
The Ninth Circuit relied on United States v. Ferrin[5] for guidance and held that application note 5 of sentencing guideline 2Q1.2[6] required "a showing that some amount of hazardous substance in fact contaminated the environment to justify an offense level increase under subsection (b)(1)."[7] However, the court stated that Ferrin allowed "reasonable inferences from available evidence . . . to support a conclusion that the illegal acts resulted in contamination."[8] The Ninth Circuit held that the city pretreatment standards applied to Gibson's discharge at the WLBT facility, and that Van Loben Sels' penalty had not been upwardly adjusted because the district court examined the toxicity of the Terminal Island discharge after the wastewater had been treated. Consequently, the court explained that the record supported the inference that Gibson's acts resulted in actual contamination, and contamination is the prerequisite for application of sentencing guideline 2Q1.2(b)(1)(A). Thus, the Ninth Circuit concluded that the district court's refusal to apply the sentencing guideline was clearly erroneous and reversed and remanded the case for resentencing.
