Deleted departure provisions of §2Q1.2. Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce

Former §2Q1.2, comment. (n.4) (Downward departure based on negligent conduct): Except when the adjustment in subsection (b)(6) for simple recordkeeping offenses applies, this section assumes knowing conduct. In cases involving negligent conduct, a downward departure may be warranted. Former §2Q1.2, comment. (n.5) (Departure based on the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation): Subsection (b)(1)[29] assumes a discharge or emission into the environment resulting in actual environmental contamination. A wide range of conduct, involving the handling of different quantities of materials with widely differing propensities, potentially is covered. Depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate. Former §2Q1.2, comment. (n.6) (Departure provisions relating to nature of the risk created and the number of people placed at risk, and death or bodily injury): Subsection (b)(2)[30] applies to offenses where the public health is seriously endangered. Depending upon the nature of the risk created and the number of people placed at risk, a departure of up to three levels upward or downward may be warranted. If death or serious bodily injury results, a departure would be called for. See Chapter Five, Part K (Departures). Former §2Q1.2, comment. (n.7) (Departure based upon the nature of the contamination involved): Subsection (b)(3)[31] provides an enhancement where a public disruption, evacuation or cleanup at substantial expense has been required. Depending upon the nature of the contamination involved, a departure of up to two levels either upward or downward could be warranted. USSG §2Q1.2(b)(1) (Nov. 2024) provided: (A) If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment, increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a hazardous or toxic substance or pesticide, increase by 4 levels. USSG §2Q1.2(b)(2) (Nov. 2024) provided: “If the offense resulted in a substantial likelihood of death or serious bodily injury, increase by 9 levels.” USSG §2Q1.2(b)(3) (Nov. 2024) provided: “If the offense resulted in disruption of public utilities or evacuation of a community, or if cleanup required a substantial expenditure, increase by 4 levels.” Former §2Q1.2, comment. (n.8) (Departure based upon the nature and quantity of the substance involved and the risk associated with the offense): Subsection (b)(4)[32] applies where the offense involved violation of a permit, or where there was a failure to obtain a permit when one was required. Depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels either upward or downward may be warranted. Former §2Q1.2, comment. (n.9(A)) (Upward departure relating to civil adjudications and failure to comply with administrative order): In a case in which the defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order, an upward departure may be warranted. See §4A1.3 (Departures Based on Inadequacy of Criminal History Category). Former §2Q1.2, comment. (n.9(B)) (Upward departure based on extreme psychological injury): If the offense caused extreme psychological injury, an upward departure may be warranted. See §5K2.3 (Extreme Psychological Injury). Former §2Q1.2, comment. (n.9(C)) (Upward departure based on terrorism): If the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, an upward departure would be warranted. See Application Note 4 of the Commentary to §3A1.4 (Terrorism).[33]