The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant James Spain has pled guilty to Count One of the indictment, violating 18 U.S.C. §§ 371 and 2 by conspiring to knowingly violate the Clean Water Act ("CWA"), 33 U.S.C. § 1319(c)(2)(A). A sentencing hearing was held on November 3, 2008. This order determines Spain's applicable sentencing range under the Federal Sentencing Guidelines.
For the reasons stated below, Spain is assigned a base-level of six under U.S.S.G. § 2Q1.3, an increase of four under § 2Q1.3(b)(1), an increase of four under § 3B1.1(a), and a decrease of two under § 3E1.1(a), for an adjusted level of twelve. Pursuant to the Guidelines, the recommended sentencing range of the Guidelines is 10--16 months.
Defendant Spain pled guilty to discharging industrial wastewater or effluent with abnormally high or low pH levels*fn1 into the sewer system. Spain owned and operated Crown Chemical for decades, inheriting a predecessor company from his father. Crown Chemicals produces various cleaning chemicals for both domestic and industrial use. Crown Chemical uses mixing tanks to produce these chemicals. Residue wastewater that was left over in the mixing tanks would be discharged into the sewer system without being treated.*fn2 This practice started no later than 1986, and continued until 2001. On certain occasions, Spain's employees expressed concern to Spain that this activity was illegal, but Spain declined to change this practice.
Spain was charged on several counts related to illegal discharge. He entered into a plea agreement as to Count I of the indictment; both Count I and the plea agreement acknowledge unlawful discharge of materials into the sewer that had a pH of less than 5 and greater than 10. Though not reflected in either the indictment or the plea agreement, covert surveillance by Environmental Protection Agency ("EPA") agents in the sewer system connected to and surrounding Crown Chemicals detected discharges that were below 2.0 pH and above 12.5 pH. Though the plea agreement is silent on this point, both parties agree that there is no evidence that Crown's discharges into the sewer system interfered with the relevant Metropolitan Water Reclamation District ("MWRD") treatment plant, that the discharged material ultimately "passed through" the treatment plant and into the broader environment, or that the discharged material caused any actual environmental harm.
Although district courts are not to apply "any thumb on the scale favoring a [Federal Sentencing G]uideline sentence," a court is nevertheless "ordinarily obliged to first consider the presentence report and its calculation of the Guidelines and then consider the respective parties' arguments as to whether the Guidelines sentence should apply." United States v. Allday, 542 F.3d 571, 572--73 (7th Cir. 2008) (quotation omitted). The parties disagree with each other and with the Presentence Investigation Report ("PSR") both in terms of what section of the Guidelines is applicable (and therefore what base offense level applies), and also as to the propriety of certain increases and decreases within the selected section.
A. Guidelines Section And Base Offense Level
Both parties agree that the 2007 Guidelines are controlling. The parties disagree over which section of the Sentencing Guidelines is applicable. The crux of this dispute is whether the court should limit its inquiry to the facts set forth in the plea agreement and indictment when deciding which section of the Guidelines is appropriate, or whether it may also consider Spain's relevant conduct, assuming it can be proven by a preponderance of the evidence. This is a rare question, for there is generally a direct correlation between the underlying statute of conviction and the corresponding sections of the Guidelines. Here, however, under the Guidelines either of two sections could apply.
The dispute is between Sections 2Q1.2 and 2Q1.3. Section 2Q1.2 applies to the mishandling of hazardous or toxic substances and has a base level of eight. As application note 3 to Section 2Q1.2 directs, this section applies where the material in question is deemed to be toxic or hazardous, by statute or regulation, at the time of the offense. U.S.S.G. § 2Q1.2 app. note 3. Section 2Q1.3 applies to the mishandling of environmental pollutants and has a base level of six; section 2Q1.3 "parallels § 2Q1.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic." § 2Q1.3 background note. The government advocates for § 2Q1.2, under a theory that the material that was actually discharged-with a pH of less than 2.0 and greater than 12.5-is a hazardous waste as defined by the Resource Conservation and Recovery Act ("RCRA"). Spain asserts that § 2Q1.3 is correct. The PSR recommends § 2Q1.3.
The first step in applying the Guidelines is to select the appropriate offense guideline section. U.S.S.G. § 1B1.1 ("Except as specifically directed, the provisions of this manual are to be applied in the following order: (a) Determine, pursuant to §1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction. See §1B1.2. . . . ."). Section 1B1.2 states as follows:
(a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or ...