U.S. v. Wells Metal Finishing, Inc., 90-1321
Decision Date | 02 October 1990 |
Docket Number | No. 90-1321,90-1321 |
Citation | 922 F.2d 54 |
Parties | , 21 Envtl. L. Rep. 20,654 UNITED STATES, Appellee, v. WELLS METAL FINISHING, INC., Defendant, Appellee. Appeal of John WELLS, Defendant. . Heard |
Court | U.S. Court of Appeals — First Circuit |
Arthur R. Silen with whom Serra, Jordan & Carbone, P.A. were on brief, for appellant.
Richard E. Welch, III, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for defendant, appellee U.S.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge and ATKINS, * Senior District Judge.
John Wells appeals the enhancement of his sentence and the conditions of supervised release imposed pursuant to the federal sentencing guidelines. Wells and his company, Wells Metal Finishing, Inc., were convicted on December 14, 1989, on nineteen counts of knowingly discharging excessive amounts of zinc and cyanide into the City of Lowell's sewer system between February 24, 1987, and February 28, 1989, in violation of the federal Water Pollution Prevention and Control Act, 33 U.S.C. Secs. 1317(b) and (d), 1319(c)(2), 40 C.F.R. Sec. 433.17 and 18 U.S.C. Sec. 2.
On March 22, 1990, the United States District Court for the District of Massachusetts sentenced Wells to fifteen months in custody to be served concurrently on each of the nineteen counts and one year of supervised release conditioned on the payment of a $60,000 fine which had been levied on Wells by the City of Lowell.
The court based Wells' sentence on a presentence investigation report ("PSI Report") prepared by a United States probation officer. According to the PSI Report, Wells and his company systematically discharged into the City of Lowell's sewer system wastewater containing levels of zinc and cyanide vastly in excess of federal pretreatment limits. The excessive zinc and cyanide impaired the waste treatment process at the Lowell Regional Water and Wastewater Utility.
The Lowell Water Control Department could not specify how much these violations cost the City of Lowell. The record indicates that the city spent from $1,000 to $10,000 per month above normal operating costs to aerate the contaminated water at the wastewater utility during the period that Wells Metal Finishing, Inc. failed to pretreat adequately its wastewater.
To determine the appropriate sentence under the sentencing guidelines, the district court assigned a base level of eight for the offense. See U.S.S.G. Sec. 2Q1.2. The court then made a six-level upward adjustment for the ongoing nature of the acts, a two-level upward adjustment for disruption of a public utility, and a two-level downward adjustment for acceptance of responsibility. The resulting adjusted offense level was fourteen. See U.S.S.G. Secs. 2Q1.2(b)(1)(A), 2Q1.2(b)(3), 3E1.1. 1
Wells appeals the upward adjustment for disruption of a public utility and his term of supervised release conditioned upon payment of the $60,000 fine. He claims that: (1) the PSI Report did not contain sufficient evidence to support the upward adjustment for disruption of a public utility; (2) the district court failed to make specific findings to support the upward adjustment; (3) the district court abused its discretion by failing to hold an evidentiary hearing on the question of whether a public utility had been disrupted; and (4) the district court improperly conditioned Wells' term of supervised release on the payment of the fine when the court had reason to know that Wells lacked the resources to pay it.
We review the district court's sentence, including the adjustment to the base offense level, under the "clearly erroneous" standard of review. United States v. Medeiros, 897 F.2d 13, 17 (1st Cir.1990) (citing United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989)).
To satisfy due process, the government must prove facts relied on in sentencing by a preponderance of the evidence. United States v. Blanco, 888 F.2d 907, 909 (1st Cir.1989); see also McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986) ( ).
Wells claims that the government failed to prove by a preponderance of the evidence that improperly treated wastewater discharged by Wells Metal Finishing, Inc. disrupted a public utility or that a cleanup requiring a substantial expenditure took place. We disagree.
Witnesses at trial testified that the pollution generated by Wells Metal Finishing, Inc. very likely caused serious harm to the Lowell sewage treatment plant: Too much zinc and cyanide could kill beneficial microorganisms in the treatment plant and render its operations much less efficient and therefore much more costly. The presentence report explained:
(12) Excessive amounts of such toxic metals as zinc and dangerous chemicals as cyanide may harm or ruin the biological workings of a municipal sewer treatment works. Thus, the treatment works may inadequately treat the waste before it is discharged into a nearby river. The City of Lowell's sewage treatment works discharges its wastewater into the Merrimack River, a drinking supply for numerous downstream communities. Evidence at trial also revealed that excessive amounts of cyanide may mix with acidic sewer wastes to form highly lethal cyanide gas.
PSI Report at 2. A data summary and analysis from the Lowell Regional Water and Wastewater Utilities stated that zinc concentrations ranging from 0.08 to 0.5 milligrams per liter inhibit the activated sludge processes of the treatment plant. The letter accompanying the report noted that prior to March 3, 1989 (the date the city plugged Wells' bypass pipe designed to circumvent the wastewater pretreatment requirements), the average concentration of zinc entering the Lowell treatment works was .508 mg/1. The report noted a 43.7% reduction in zinc concentration in the total influent at the Lowell treatment plant after Wells Metal Finishing, Inc. ceased operations. Numerous statements in the record, including one from the Lowell Regional Water and Wastewater Utilities, indicated that the treatment plant spent an additional $1,000 to $10,000 per month to compensate for the damage caused by Wells' discharge of zinc and cyanide.
Wells argues that the government provided only general information about the effects of metals and cyanide on wastewater treatment systems. He also contends that evidence regarding financial costs ranging from $1,000 to $10,000 per month was highly speculative: The city should have produced a more exact cost estimate based on overtime worked, additional electric power consumed to aerate the sewage, and loss of efficiency. Prior to sentencing, Wells submitted affidavits from two experts stating that no disruption of a public utility took place: The effluent from Wells' company was too diluted by effluent from other sources to harm the wastewater utility. These experts claimed that the overall composition of wastewater in the city sewer system did not change significantly after Wells' company ceased operations. The government responded to these affidavits by arguing that they were based on erroneous assumptions and calculations.
We cannot find that the district court's decision to enhance Wells' offense level for disruption of a public utility was clearly erroneous. The data report from the Lowell Regional Water and Wastewater Utilities, the testimony at trial, the recommendations of the PSI Report, and the questionable validity of Wells' expert affidavits all indicate that the district court had before it adequate evidence to find that Wells' activities disrupted a public utility.
Wells argues that the sentencing judge erroneously failed to make adequate written or oral findings on whether a public utility had been disrupted and erroneously failed to make findings on letters and affidavits submitted by the defense prior to the sentencing hearing.
A sentencing judge must "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. Sec. 3553(c) (1988). See United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.1990) ( ).
When a defendant alleges a factual inaccuracy in a PSI Report, the district court must make a finding as to the allegation or a determination that no finding is necessary because the matter controverted will not be taken into account in sentencing. Fed.R.Crim.P. 32(c)(3)(D); see also United States v. Hanono-Surujun, 914 F.2d 15, 19 (1st Cir.1990) ( ); United States v. Lyons, 898 F.2d 210, 217 (1st Cir.1990) ( ); United States v. Levy, 897 F.2d 596, 598, 599 (1st Cir.1990) ( ); United States v. Jimenez-Rivera, 842 F.2d 545, 551-52 (1st Cir.1988) ( ).
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