US v. Bogas, Crim. A. No. CR88-282.

• Decision Date: 13 February 1990
• Docket Number: Crim. A. No. CR88-282.
• Citation: 731 F. Supp. 242
• Parties: UNITED STATES of America, Plaintiff, v. William M. BOGAS, a.k.a. Nick Bogas, Defendant.
• Court: U.S. District Court — Northern District of Ohio

731 F. Supp. 242

UNITED STATES of America, Plaintiff, v. William M. BOGAS, a.k.a. Nick Bogas, Defendant.

Crim. A. No. CR88-282.

United States District Court, N.D. Ohio, E.D.

February 13, 1990.

COPYRIGHT MATERIAL OMITTED

Gregory Sasse, for U.S.

Nicholas DeVito, Bernard J. Stuplinski, Cleveland, Ohio, for defendant.

SENTENCING MEMORANDUM

ANN ALDRICH, District Judge.

William Bogas is here for sentencing on a criminal conviction based on his guilty plea involving the failure to report the disposal of hazardous wastes at the Cleveland Hopkins Airport. The government urges the Court to apply the stiffest possible penalties — to make an example of the "nation's first hazardous waste violation under the new sentencing guidelines." This Court acknowledges the necessity for stringent enforcement of laws protecting our environment. Disregard for such laws places all of us at risk. Such concerns, however laudable, do not absolve the government from proving the facts necessary under the Guidelines to support the imposition of the stringent penalties it seeks. It is not disputed that the government bears the burden of proving, by a preponderance of the evidence, the facts necessary to support adjustments upward in the sentence imposed. United States v. Silverman, 889 F.2d 1531, 1537 (6th Cir. 1989). For this purpose, evidence was taken at a hearing which extended over a period of five days, and included twenty-three witnesses, and fifty-two exhibits. After considering all the evidence presented, the Court concludes that the government, for the most part, has failed in its proof.

I

Bogas was indicted on five counts, all of which involved the digging of a pit at the Cleveland Hopkins Airport and the disposal, in March of 1988, into that pit of barrels containing a variety of chemicals. Bogas thereafter plead guilty to two counts of this indictment, Counts II and V. The remainder of the criminal charges are to be dismissed upon sentencing. Count II charges that on March 10, and 11, 1988, a quantity equal to or greater than one hundred pounds of a hazardous substance was released into the environment without a federal permit, and that Bogas failed to notify the EPA as soon as he had knowledge of this release, thereby violating Title 42, United States Code, Section 9603(b)(3).

Count V charges that on March 15, 1988 Bogas made a false statement to Edward Burk of the U.S. EPA by stating that only eight to ten empty drums, which had previously contained water based paints, were disposed of in the pit, when he well knew that drums containing toluene and other liquid wastes had been buried in the pit, in violation of Title 18, United States Code, Section 1001.

To determine the appropriate sentence, the Sentencing Guidelines ("the Guidelines") promulgated pursuant to Title 28 U.S.C. § 994 require that the Court first apply the offense guideline section in Chapter Two which is most applicable to the offense of conviction. United States v. Silverman, 889 F.2d 1531, 1537 (6th Cir. 1989) (citing § 1B1.2(a) of the Guidelines). Both the government and Bogas agree that pursuant to § 3D1.2(b)¹ the two counts of conviction are combined and regarded as a single group because they involve the same criminal objective. To determine the offense level for this group, the Court must look to the most serious of the offenses involved, which is Count II. § 3D1.3(a).

Count II is encompassed in § 2Q of the Guidelines which relates to offenses involving the environment and more specifically to § 2Q1.2, entitled "Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering and Falsification." Both the government and Bogas agree that the base offense level under this section is 8. Both also agree that Bogas has a criminal history score of 0, which under the Guidelines is a criminal history category of I.

Once this base offense level has been determined, the Court may adjust the level either upward or downward in two ways. The first requires the Court to examine the "relevant conduct" and within the framework set forth in the Guidelines make adjustments either upward or downward. Once this process is completed the Court may depart from the Guideline range if the Guidelines have failed to adequately account for factors which are present in a specific case. § 5K2.0.

II

Bogas was the Commissioner of Cleveland Hopkins Airport since 1978 until his retirement in 1988. (Tr. 739, 808). He had been employed by the airport since 1954. (Tr. 739). As Commissioner, he was responsible for the day-to-day operations of the airport, including general maintenance and clean-up as well as the oversight of the painters' operations. Bogas closely supervised the operations and expected that work be performed to his satisfaction. He also required compliance with the rules such as not using the garage to work on personal vehicles, not performing personal tasks while on city time, and the wearing of uniforms. The government implies that there is something sinister about Bogas's strict management style. However, this Court fails to see anything evil or culpable in a supervisor requiring compliance with work rules and requiring that a job be well done.

His direct supervisor was Jacqueline Shuck, Director of Port Control for the City of Cleveland. (Tr. 740-41). Shuck, an attorney, testified that she supervised three divisions: Cleveland Hopkins Airport, Burke Lakefront Airport and the Division of Harbors. Her primary responsibilities were administrative and financial. (Tr. 487). She was responsible for all interactions with city hall and the city council. (Tr. 488). After March of 1988 she set the environmental policy for the airport. Previously, there had been no policy. (Tr. 507, 514). Deputy Commissioner, Phil Schwenz; the maintenance manager, Cain Edgerson; and the heads of the following departments: building and maintenance, field maintenance, fire, and custodial, reported directly to Bogas. (Tr. 741).

The painters were responsible for maintaining the runway stripes. They used quick-drying oil based paint, toluene, and xylene. (Tr. 248-49). During the painting season prior to the digging of the pit, the painters generated some seventy-five to eighty used paint drums and six to nine drums of waste solvents. (Tr. 253-54).

Painters, Kevin McNally and Aaron Chisolm testified extensively concerning the procedures used for painting. During the 1987 painting season immediately prior to the dumping in the pit in March, the painters had two fifty-five gallon drums of toluene and one of xylene. The xylene was used to clean the truck tank and hoses and was not reused. The toluene was used to clean the painting tips and nozzles and was reused. The toluene was also mixed with paint as a thinner. Toluene evaporates when exposed to air, so during use it necessarily becomes depleted. (Tr. 171). Thus, it is clear that there could not have been 110 gallons of toluene dumped into the barrels and then into the pit. Some percentage would be lost due to evaporation during the painting season. The toluene and xylene were stored under lock and key. (Tr. 245).

When painting, not each fifty-five gallon drum of paint could be used completely. Some were not properly mixed and portions of the paint could not be run through the painting truck. (Tr. 207-08). The paint barrels that were empty were left open. Those with unusable paint or crud from cleaning out the truck were capped. All were stored together. (Tr. 212-13). When the painters ran out of space, they would call field maintenance and have the barrels moved over to the test track area. (Tr. 213). Chisolm estimated that during 1987 he filled three drums with waste solvents, which included paint residue from the cleaning operations. (Tr. 218). Chisolm was able to identify many of the barrels which were extracted from the pit as having come from his painting operation. (Tr. 218-36).

Bogas was aware of the presence of xylene and toluene at the airport. In 1982, he issued a memorandum explaining that toluene was a hazardous substance and if released into the environment, the EPA needed to be contacted. (Tr. 826-27). The City of Cleveland, in 1988, began implementing a right-to-know program to educate workers about their handling of potentially dangerous substances. (Tr. 402). James Brown, airport safety supervisor, was in charge of the program and he briefed Bogas concerning the program. (Tr. 404).

In March 1988, as part of a general spring clean-up, Bogas contracted to have a pit dug at the end of one runway. He instructed that it was to be filled with rubbish from around the airport — materials such as concrete, and the barrels, which he believed to be empty. (Tr. 750). He also requested that the pit be covered each evening and there is conflicting evidence as to whether that request is unusual. (Tr. 270, 852). On Thursday, March 10, 1988, workers Jerry Codner, Jim Arcuri, Harry Kinney and Jesse Reed were assembled to begin the clean-up. (Tr. 447). Bogas did not deal directly with the workers but routinely dealt with their supervisors. (Tr. 619). On this occasion, Cain Edgerson informed Thomas Allegier, superintendent of field maintenance, to assemble the crew. (Tr. 447). Bogas was at the pit several times that Thursday and Friday while loads were being dumped. (Tr. 279-80). The drums taken from the test track area were not empty and contained paint residue, chemicals and water. (Tr. 290, 294, 296).

On Friday, March 11, 1988, the clean-up was discussed at a staff meeting. The testimony concerning what was said at this meeting is in conflict. It is clear that the subject of disposing of toluene, along with other questionable materials, arose. (Tr. 420). Two persons, Tom Allegier, the superintendent of field maintenance, and William Wright, the airport fire chief, testified that in response to concerns about toluene and EPA regulations, Bogas said something to the effect of, "I'm the EPA at this airport." (...