Deleted departure provisions of §2Q1.3. Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification

Former §2Q1.3, comment. (n.3) (Downward departure based on negligent conduct): The specific offense characteristics in this section assume knowing conduct. In cases involving negligent conduct, a downward departure may be warranted. USSG §2Q1.2(b)(4) (Nov. 2024) provided: “If the offense involved transportation, treatment, storage, or disposal without a permit or in violation of a permit, increase by 4 levels.” USSG §3A1.4, comment. (n.4) (Nov. 2024) provided: By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. Former §2Q1.3, comment. (n.4) (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)[34] 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 that prescribed in these specific offense characteristics may be appropriate. Former §2Q1.3, comment. (n.5) (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)[35] 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 §2Q1.3, comment. (n.6) (Departure based upon the nature of the contamination involved): Subsection (b)(3)[36] 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 in either direction could be warranted. Former §2Q1.3, comment. (n.7) (Departure based upon the nature and quantity of the substance involved and the risk associated with the offense): Subsection (b)(4)[37] 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 in either direction may be warranted. Former §2Q1.3, comment. (n.8) (Upward departure relating to civil adjudications and failure to comply with administrative order): USSG §2Q1.3(b)(1) (Nov. 2024) provided: (A) If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment, increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a pollutant, increase by 4 levels. USSG §2Q1.3(b)(2) (Nov. 2024) provided: “If the offense resulted in a substantial likelihood of death or serious bodily injury, increase by 11 levels.” USSG §2Q1.3(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.” USSG §2Q1.3(b)(4) (Nov. 2024) provided: “If the offense involved a discharge without a permit or in violation of a permit, increase by 4 levels.” Where a 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 (Policy Statement)).