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United States v. Eidson

ELR Citation: 27 ELR 20853
Nos. 94-2330, 108 F.3d 1336/(11th Cir., 03/31/1997)

The court affirms two individuals' convictions for violating the Federal Water Pollution Control Act (FWPCA) and the federal mail fraud statute, 18 U.S.C. §1341, but remands their sentences. The court first holds that the individuals' discharge into a storm sewer of industrial wastewater that flowed into an open drainage ditch, a drainage canal, a natural creek, and then into Tampa Bay, Florida, was a discharge into "navigable waters." It is well-established that Congress intended to regulate the discharge of pollutants into all waters that may eventually lead to waters affecting interstate commerce. There is no reason to suspect that Congress intended to regulate only the natural tributaries of navigable waters or intended to exclude from "waters of the United States" tributaries that flow only intermittently. The court next holds that the FWPCA's definition of "pollutant" is not unconstitutionally vague. An ordinary person should have been able to understand that the liquid that the individuals discharged, which had been used as a cleaning agent for an underground storage tank at a gas station and had a strong petroleum odor and a dirty, oily appearance, was industrial waste within the meaning of the Act. The court next holds that ample evidence supports the individuals' mail fraud convictions. The individuals told prospective customers that their company had proper licenses and permits to dispose of wastewater, company documents displayed permit numbers, and the company contracted to dispose of wastewater in accordance with all applicable laws. But in fact the individuals instructed their emloyees to dump the collected industrial wastewater on the ground at and around the company's facility in direct violation of their operating permits and applicable laws.

The court next holds that the district court did not err by increasing the individuals' base offense level by six under U.S. Sentencing Guideline (U.S.S.G.) §2Q1.2(b)(1)(A)(1993). Their admission that there had been another discharge into the sewer is sufficient to show that the offense resulted in an "ongoing, continuous, or repetitive discharge." Also, the district court did not err by increasing their base offense level by four points under U.S.S.G. §2Q1.2(b)(3) (1993). The state's preliminary investigation and cleanup estimate provide an adequate basis to find that the cleanup required a substantial expenditure. But the district court erred by increasing one individual's base offense level by four points under U.S.S.G. §3B1.1(a) (1993). Although the district court did not clearly err with respect to the mail fraud conviction, the district court made no findings with respect to the FWPCA offense that would indicate that the individual was an organizer or leader of a criminal activity that involved five or more participants or was "otherwise extensive." And the district court erred by increasing the individuals' base offense level by eight points under U.S.S.G. §2F1.1(b)(1)(I) (1993) based on its finding that the loss caused by the fraudulent scheme exceeded $200,000, because it is based on an incorrect interpretation of a government chart.

Counsel for Plaintiff
David C. Shilton, Ellen L. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Eric S. Gruman
Gruman Worldwide
3400 W. Kennedy Blvd., Tampa FL 33609
(813) 870-1614

Before ANDERSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.