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United States v. Sawyer

ELR Citation: 46 ELR 20108
Nos. 15-5181, (6th Cir., 06/03/2016)

The Sixth Circuit upheld a lower court decision sentencing an individual to 60 months in prison and ordered the individual and his co-defendants, jointly and severally, to pay $10,388,576.71 in restitution to EPA for asbestos NESHAPS violations. The individual and co-defendants formed a salvage company and purchased the salvage rights to a former industrial site in eastern Tennessee in order to demolish the buildings on site and obtain salvageable material. Despite the presence of large amounts of regulated asbestos-containing material, the individual and co-defendants knowingly violated the NESHAPS. EPA eventually intervened and cleaned up the site under CERCLA at a total cost of over $16 million. The individual entered a plea agreement, but then challenged his sentence and the restitution award. The court declined to review the reasonableness of his sentence because he entered his plea agreement knowingly and voluntarily. And given the ample reliable evidence in the record establishing that the salvage company's activities directly caused the asbestos contamination, which EPA then cleaned up, it was not an abuse of discretion for the lower court to award the government all of its claimed costs (minus $300,000 in costs that were spent cleaning up other hazardous materials on the site). The lower court properly concluded that restitution was mandatory under §3663A of the Mandatory Victims Restitution Act (MVRA) because his offense is a qualifying "offense against property" and EPA is an identifiable victim of that offense, despite the argument that the Agency does not have a possessory interest in the asbestos-contaminated land. Offenses that result in the contamination of property with a dangerous or an apparently dangerous substance typically qualify for restitution, and a government agency can be a victim to whom restitution is owed, regardless of whether it has a possessory interest in the affected property.