United States v. Chau
Citation: 32 ELR 20717
No. Nos. 00-2720, -2721, 293 F.3d 96/(3d Cir., 06/04/2002)
The court vacates and remands an individual's sentence for asbestos cleanup violations. The individual pleaded guilty to knowingly violating the Clean Air Act (CAA) as well as to obstruction of justice and was sentenced to 51 months in jail. The court first holds that the district court correctly applied a six-level enhancement for the continuous or repetitive discharge of a hazardous substance. Similarly, the court holds that a four-level enhancement was properly applied to his sentence because his actions resulted in a cleanup that required substantial expenditure. Likewise, the court holds that a two-level upward adjustment for being a supervisor of criminal activity was warranted because the individual exercised some degree of control over the actions of others. However, the court holds that the district court erred in applying a four-level enhancement against the individual for an unpermitted offense. The CAA does not impose a permit requirement prior to asbestos cleanup; it only requires notice of the cleanup to the government. And because the individual was charged with violating the federal requirements of the CAA, his apparent violation of a city permit, quite independent of the CAA, cannot be the basis for an enhancement of his sentence.
Counsel for Appellant
Hope C. Lefeber
Law Offices of Hope C. Lefeber
1420 Walnut St., Ste. 1000, Philadelphia PA 19102
Counsel for Appellee
Linda D. Hoffa, Ass't U.S. Attorney
U.S. Attorney's Office
615 Chestnut St., Ste. 1250, Philadelphia PA 19106
Cudahy, * J. before Sloviter and Nygaard, JJ.
* Hon Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit, sitting by designation.