An earlier case, decided by the U.S. Court of Appeals for the Sixth Circuit on June 3, 2016, is noteworthy because it resulted in an opinion affirming the government’s use of the criminal restitution laws to require a defendant to pay EPA $10.4 million in restitution for EPA’s cleanup efforts. The case is U.S. v. Sawyer.

Sawyer and his compatriots undertook the salvaging of a 300 acre industrial facility located in Hamblen County, Tennessee, but without paying much regard to the EPA’s asbestos removal standards. An expensive cleanup by EPA resulted, after the defendants failed to abide by various EPA administrative orders. Sawyer pled guilty to one charge, and received a sentence of 6 years’ confinement. His pleas included a waiver of his right to appeal if the sentence was consistent with the sentencing guidelines.

On appeal, the Court of Appeals held that his pleas did include a waiver and, therefore, it would not revisit the reasonableness of his sentence. In addition, the Court of Appeals approved the sentence of restitution, holding that this was an offense against “property,” and the fact that EPA did not have a “possessory interest” in the property made no difference. The defendant also objected to EPA’s use of a sophisticated accounting spreadsheet known as “SCORPIOS,” but the Court of Appeals held that it could have been an abuse of discretion if the lower court approved this sentence based solely on the SORPIOS program, but there was sufficient additional evidence supporting this amount of restitution.