00-3940 U.S. v. Chemetco, Inc.

Listen to this article

“Section 309(c)(2) of the CWA, which allows for ‘a fine of not less than $5,000 nor more than $50,000 per day of violation,’ also lacks a statutory maximum penalty. 33 U.S.C. sec. 1319(c)(2). Thus, even though the sentence imposed under Section 309(c)(2) of the CWA depends on a factual finding– the number of violation days–this finding cannot increase the amount of the fine over a prescribed statutory limit. See Behrman, 235 F.3d at 1054. Therefore, Apprendi does not apply and it was proper for the district court to find the number of violation days by a preponderance of the evidence.

“Chemetco claims that the CWA does have a statutory maximum penalty: $50,000 per day of violation. Even if Chemetco’s argument were true, it would not mandate a reversal in this case because an Apprendi violation only occurs when the imposed sentence exceeds the prescribed statutory maximum. See Apprendi, 530 U.S. at 490. In its supplemental sentencing memorandum, Chemetco urged the court to find seventy-one days of violation, which would yield a fine range of $342,500 to $3,425,000. The $3,327,500 fine that the district court actually imposed on Chemetco was less than what Chemetco contends was appropriate. Therefore, even if the CWA had a statutory maximum penalty of $50,000 per day of violation, this limit was not exceeded in this case.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Stiehl, J.