32 ELR 20361 -- United States v. Chemetco, Inc.

United States v. Chemetco, Inc.

No. 00-3940 (274 F.3d 1154) (UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT December 17, 2001)

ELR Digest

The court holds that a district court properly interpreted the Clean Water Act (CWA) in concluding that the number of violation days are a sentencing factor and not an element of the crime and, therefore, upholds the fines imposed against a scrap metal factory for illegally discharging wastewater in violation of the CWA. Relying on the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the company argued that it had to be charged in the indictment with each day of violation and that the number of days of violation had to be proven by the government beyond a reasonable doubt. The court first holds that the plain meaning of CWA §§ 309(c)(2)'s language expresses Congress' unambiguous intent that the number of violation days is a sentencing factor and not an element of a CWA offense. CWA § 309(c)(2)'s "shall be punished by" clause indicates that the language following it sets forth the terms of punishment for a CWA violation, and the terms of punishment for a CWA violation include a fine that depends on the number of days of violation. Additionally, the "per day of violation" language in § 309(c)(2) qualifies the term of punishment by indicating that there is a "violation" defined elsewhere in the CWA and that the punishment received for this violation depends on the number of days that the violation occurred. Thus, the number of days that the violation occurred is a factor to be determined after a violation has been established, and it was proper for the district court to apply sentencing factors based on a preponderance of the evidence. The court also holds that the Supreme Court's decision in Apprendi does not apply here because, unlike the statute at issue in that case, the CWA does not have a prescribed statutory maximum penalty.

The full text of this decision is available from ELR (10 pp., ELR Order No. L-410).

Counsel for Plaintiff
Todd Kim
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Harriet H. Hamilton
Hamilton Legal Offices
4901 W. 103d Cir., Westminster CO 80031
(303) 404-2535

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]