Full opinion text
MEMORANDUM OPINION MARY L. COOPER, District Judge. INDEX TO MEMORANDUM OPINION PRELIMINARY STATEMENT..................................................192 DISCUSSION..................................................................195 I.APPLICABLE GUIDELINE EDITION .....................................195 II. CHAPTER TWO CALCULATIONS.........................................197 A. OSHA-RELATED OFFENSES.........................................197 1. Application of Section 2J1.2 to these offenses...........................197 2. USSG § 2J1.2(a) — Base offense level..................................198 3. USSG § 2J1.2(b)(2) — Substantial interference with the administration of justice........................................................198 B. CWA-RELATED OFFENSES..........................................208 1. Review of convictions...............................................208 2. USSG § 2Q1.3 — Mishandling of environmental pollutants................209 3. USSG § 2Q1.3(a) — Base offense level.................................211 4. USSG § 2Q1.3(b)(l)(A) or (B) — Discharge, release, or emission of pollutant........................................................212 5. USSG § 2Q1.3(b)(4) — Discharge without or in violation of permit.........221 6. USSG § 2Q1.3, Notes 4 and 7 — Departure of up to two levels either direction ........................................................222 7. USSG § 2Q1.3, Note 3 — Departure involving negligent conduct...........229 8. USSG § 2Fl.l(a) — Base offense level.................................231 C. CAA-RELATED OFFENSES..........................................231 1. Review of convictions...............................................231 2. USSG § 2Q1.3 — Mishandling of environmental pollutants................232 3. USSG § 2Q1.3(a) — Base offense level.................................233 4. USSG § 2Q1.3(b)(l)(A) or (B) — Discharge, release, or emission of pollutant........................................................233 5. USSG § 2Q1.3(b)(4) — Discharge without or in violation of permit.........236 6. USSG § 2Q1.3, Notes 4 and 7 — Departure of up to two levels............236 III. CHAPTER THREE, PART B (ROLE IN OFFENSE).........................239 A. Guidelines Introductory Commentary.....................................239 B. USSG § 3B1.1 — Aggravating Role.......................................240 C. USSG § 3B1.2 — Mitigating Role.........................................257 D. USSG § 3B1.3 — Abuse of Position of Trust................................260 1. This enhancement has been applied most commonly in the contractual setting. The contracts can be in the public or the private sector......262 2. The enhancement has also been applied to public employees occupying positions of trust........................................266 3. The enhancement has been applied to certain persons holding government-issued professional or occupational licenses................267 4. The enhancement has been applied to a manager for abuse of trust by forcing mine workers to falsify safety training certifications............268 5. There is sharp disagreement whether the enhancement applies to environmental offenses by private persons...........................269 IV. CHAPTER THREE, PART C (OBSTRUCTION OF JUSTICE).................275 A. USSG § 3C1.1 — Obstructing or Impeding the Administration of Justice— Perjury.............................................................275 1. John Prisque ......................................................281 2. Scott Faubert......................................................295 3. Jeffrey Maury.....................................................312 4. Craig Davidson ....................................................344 B. USSG § 3C1.1 — Obstructing or Impeding the Administration of Justice— Unlawfully Influencing or Attempting to Influence a Witness..............366 V. CHAPTER THREE, PART D (MULTIPLE COUNTS) ........................375 A. USSG § 3D1.1 — Procedure for Determining Offense Level on Multiple Counts .............................................................375 B. USSG § 3D1.2 — Groups of Closely Related Counts.........................376 C. USSG § 3D1.4 — Determining the Combined Offense Level..................380 1. John Prisque ......................................................380 2. Scott Faubert......................................................382 3. Jeffrey Maury.....................................................382 4. Craig Davidson ....................................................383 SUMMARY ....................................................................383 PRELIMINARY STATEMENT This memorandum opinion pertains to the sentencing of all defendants convicted in this case: ATLANTIC STATES CAST IRON PIPE CO., JOHN PRISQUE, SCOTT FAUBERT, JEFFREY MAURY, and CRAIG DAVIDSON. A summary of the counts of conviction as to each defendant may be found on the docket. (See dkt. 721 at 1-3, 112-13, 133-34.) The parties were given notice of the contents of this memorandum on December 31, 2008, in the form of tentative rulings. Sentencing was completed on April 20-24, 2009. These tentative rulings were made final at the sentencing hearings, after the parties had been afforded full opportunity to respond. The Court must sentence each defendant individually. However, the convictions in this multi-count, multi-defendant prosecution raise some common sentencing issues, as well as some separate issues. In addition, the post-Booker sentencing process for each defendant must include three steps, in which the Court must: (1) determine the guideline range; (2) rule on departure motions under the guidelines; and (3) determine the sentence pursuant to 18 U.S.C. § 3553(a), including ruling on any requests for variance from the guideline rulings. See United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir.2008). An indispensable part of arriving at a reasonable sentence is a correct calculation of the advisory guidelines range. See United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). A ruling at Step 1 pertaining to a particular defendant here may be dispositive of an issue common to one or more other defendants. Therefore, the parties were given the opportunity to brief their arguments at Step 1 simultaneously, pursuant to scheduling orders entered for that purpose. (Dkt. 728, 729.) In doing so, the parties raised arguments on potential departures mentioned in the application notes for the Clean Water Act (“CWA”) and Clean Air Act (“CAA”) offenses. This memorandum contains a preliminary discussion of those issues, which were to be decided along with any other departure issues at Step 2. This memorandum sets forth our guideline rulings at Step 1, concentrating primarily upon the calculations for each individual defendant. Some of these points also pertain to the corporate defendant, but the primary focus here is on guideline calculations for the individual defendants. The purpose of this memorandum, when circulated to the parties on December 31, 2008, was to notify all parties of these Step 1 rulings, by reference to the trial record and pertinent authorities. It is now being filed on the Docket as a sentencing opinion, without substantial modification. The topic headings emerge from the issues identified by the parties. The following discussion provides the Court’s rulings on guideline issues identified by the parties and/or the U.S. Probation Office (“Probation”) in preparation of drafts of the Presentence Investigation Reports (“PSRs”) pertaining to the named defendants. The contents of PSRs are not public, nor are the sentencing memoranda submitted by the parties. (Dkt. 639.) The Court has considered the extensive briefing materials and oral arguments on those topics. The guideline rulings in this memorandum are based on the public trial record and legal authorities as cited herein, rather than on the contents of any PSR drafts. The trial record in this case is extremely lengthy, totaling approximately 20,000 pages of transcript and many exhibits over the course of the trial. (See dkt. 721 at 3, n. 5.) The parties argue many aspects of the evidence in their sentencing memoranda submitted to date. The findings set forth in this memorandum are based on the summary of the record contained in our Memorandum Opinion on the Rule 29 and Rule 33 motions (dkt. 721), except where otherwise noted. In making each ruling we will cite to the relevant portion of our summary of the evidence contained in that Memorandum Opinion, and thus incorporate that portion of the record without repeating it here. This memorandum makes only those factual findings necessary to a ruling on each disputed guideline point, applying the standard of preponderance of the evidence. United States v. Grier, 475 F.3d 556 (3d Cir.2007). There is certainly more evidence that the parties can argue, and have argued, supports their respective positions. However, we decline to elaborate on the factual support for these findings beyond what is necessary to rule on each disputed guideline issue. Here we present a very brief overview of the structure of the sentencing guidelines, as pertinent to the guideline calculation issues raised by the parties. The discussion in this memorandum follows that structure, with reference to each individual defendant in those portions relevant to that defendant. Chapter Two of the guidelines pertains to offense conduct, and is organized by offense statute. “Each offense has a corresponding base offense level and may have one or more specific offense characteristics that adjust the offense level upward or downward.” USSG Ch. 2, intro. cmt. For each type of substantive offense in this case, a part of Chapter Two will apply. See generally USSG § 1B1.6 (structure of the guidelines). Where there are also convictions on a multi-object conspiracy count, the guidelines provide: “A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” USSG § lB1.2(d). Parts A, B, and C of Chapter Three set forth some factors that may be relevant to the offense that are not covered in Chapter Two, including role in the offense and similar factors. USSG Ch. 2, intro, cmt. Chapter Three, Part D, is a separate part that “provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.” These are the so-called grouping rules. USSG Ch. 3, Pt. D, intro, cmt. There are sentencing issues in this case under Chapter Two pertaining to the three main types of substantive convictions in this case. We will address those Chapter Two issues by type of substantive offense statute, and by individual defendant, as follows: (1) OSHA-related offenses [PRISQUE, FAUBERT, MAURY]; (2) CWA-related offenses [PRISQUE, MAURY, DAVIDSON]; and (3) CAA-related offenses [PRISQUE]. The substantive false statement convictions related to categories (1) and (2) are addressed under those categories and later in the discussion of the grouping rules. There are also Chapter Three issues as to each defendant under Part B (role in the offense), and Part C (obstruction of justice). The grouping calculations are disputed under Chapter Three, Part D, by those whose guideline calculations may be enhanced by those provisions [PRISQUE, MAURY], DISCUSSION I. APPLICABLE GUIDELINE EDITION The Court will use the November 1, 1998, edition of the Guidelines Manual, based on United States v. Bertoli, 40 F.3d 1384 (3d Cir.1994). The government’s objection is noted. Bertoli held, based on ex post facto concerns, that the date of the earliest completed offense should dictate the edition to be used, and grouping cannot be used to determine date of offense for the purpose of choosing the applicable guideline edition. Id. at 1402-04. This is contrary to USSG § (hereinafter in text, “Section”) 1B1.11(b)(3), effective 11-1-93, which was in effect when Bertoli was decided but was not mentioned in the decision. Bertoli relied on United States v. Seligsohn, 981 F.2d 1418 (3d Cir.1992), which has since been recognized as ineffective as against Section 1B1.11(b)(2) (one book rule). See United States v. Corrado, 53 F.3d 620, 623-24 (3d Cir.1995). Bertoli remains undisturbed as to its ex post facto holding, however, and the Third Circuit has not addressed Section lBl.ll(b)(3). See generally United States v. Sullivan, 255 F.3d 1256, 1260-62 (10th Cir.2001) (describing circuit split and collecting cases). Thus, we will use the manual for the earliest completed substantive crime, as to each defendant, notwithstanding the fact that the conspiracy allegation runs the whole period of the substantive counts (to August, 2003). The earliest count of conviction as to ATLANTIC STATES is Count 12, a CWA violation in December, 1998. (Dkt. 721 at 3, n. 4, & 189.) The counts of conviction as to each individual defendant (citing dkt. 721) are: PRISQUE Ct. 1 (all five objects) c. 10-31-95-Aug., 2003 Ct. 8 (Owens OSHA obstruction, p. 159) July, 1999 Ct. 9 (Coxe OSHA obstruction, p. 163) 3-24/25-00 Ct. 11 (Velarde OSHA obstruction, p. 176) Dec., 2002 Ct. 27 (CWA neg. only, p. 215) 12-4/5-99 Ct. 34 (CAA, p.243) Feb.-Aug.2003 FAUBERT Ct. 1 (objects C, D, E [all OSHA-related]) Ct. 7 (false statement re: Marchan injury, p. 149) 5-11-00 Ct. 9 (Coxe OSHA obstruction, p. 163) 3-24/25-00 Ct. 10 (OSHA obstruction re: Marchan injury, p. 157) 7-24-00 MAURY Ct. 1 (objects A, C, D, E [all except CAA]) Ct. 3 (false statement re: 12-4/5-99 CWA discharge, p. 136) 2-24-00 Ct. 9 (Coxe OSHA obstruction, p. 163) 3-24/25-00 Ct. 27 (CWA neg. only, p. 215) 12-4/5-99 Cts. 28-32 (CWA discharges from # 4 pit, p. 231) May-Oct.1999 DAVIDSON Ct. 1 (objects A; D [both CWA-related]; Ct. 4 (false statement re: 12-4/5-99 CWA discharge, p. 141) 2-24-00 Cts. 12-20, 22-26 (CWA neg. only, p. 189) Dec. 1998 to Feb. 2000 Ct. 27 (CWA neg. only, p. 215) 12-4/5-99. The completion date of the earliest count of conviction for PRISQUE is July, 1999 (Ct. 8); for FAUBERT is March 25, 2000 (Ct. 9); for MAURY is May, 1999 (Ct. 28); and for DAVIDSON is December, 1998 (Ct. 12). (Dkt. 721 at 3, n. 4 & 159, 163-164,189, 231.) Each of those convictions falls within the guidelines edition effective November 1, 1998, except FAUBERT’s on Count 9, which technically falls within the November, 1999 edition. But the November, 1999 edition was identical to the November, 1998 edition. Therefore, we will refer to the November, 1998 edition for all defendants. See supra n. 9. All of the other arguments of the parties are addressed within that framework. II. CHAPTER TWO CALCULATIONS A. OSHA-RELATED OFFENSES 1. Application of Section 2J1.2 to these offenses Defendants PRISQUE, FAUBERT, and MAURY were convicted of conspiracy and substantive offenses for obstruction of OSHA in relation to worker injuries. Those substantive counts of conviction are: PRISQUE Ct. 8 (Owens OSHA obstruction, pp. 159-163) Ct. 9 (Coxe OSHA obstruction, pp. 163-176) Ct. 11 (Velarde OSHA obstruction, pp. 176-188) FAUBERT Ct. 7 (false statement re: Marchan injury, pp. 149-159) Ct. 9 (Coxe OSHA obstruction, pp. 163-176) Ct. 10 (OSHA obstruction re: Marchan injury, pp. 149-159) MAURY Ct. 9 (Coxe OSHA obstruction, pp. 163-176). Counts 8, 9 and 10 are felony OSHA obstruction offenses under 18 U.S.C. § 1505. (Dkt. 721 at 133.) The basic guideline section for that statute is Section 2J1.2, “Obstruction of Justice.” See USSG § 2J1.2, cmt., stat. prov. Count 11 is a felony OSHA obstruction offense under 18 U.S.C. § 1519 (altering object with intent to obstruct OSHA). (Dkt. 721 at 133.) We will also apply Section 2J1.2 to that count. See USSG § 2X5.1 (apply most analogous guideline for felony offense for which no guideline expressly has been promulgated). Counts 5 and 7 are false statement offenses under 18 U.S.C. § 1001. The offense conduct for Counts 5 and 7 is related to, and similar to, the offense conduct underlying Counts 9 and 10 (obstruction of OSHA investigation of Coxe fatality), as we explain in the margin. Therefore, Counts 5 and 7 are analyzed under Section 2J1.2, rather than under the general fraud guidelines. See USSG § 2F1.1, cmt. n. 14 (where the indictment setting forth the count of conviction establishes an offense more aptly covered by another guideline, apply that guideline rather than Section 2F1.1). The following discussion addresses each of the OSHA-related counts as a separate count. Grouping of counts, where applicable, is addressed infra, Sec. V. 2. USSG § 2J1.2(a)-Base offense level Section 2J1.2 covers “Obstruction of Justice” offenses, as we have described above. The background commentary to this section states: “Numerous offenses of varying seriousness may constitute obstruction of justice: ... obstructing a civil or administrative proceeding.” USSG § 2J1.2, cmt. Thus, obstruction of a civil or an administrative proceeding is expressly covered by this section. The government advised during this prosecution, and we can confirm, that the OSHA statute itself contains very limited criminal enforcement provisions. See 29 U.S.C. § 666. In other words, a violation of the OSHA workplace safety law and its rules and regulations can give rise to criminal liability, but those provisions are narrowly drawn. It appears that interference with civil OSHA investigations is therefore commonly prosecuted, as in this case, under federal conspiracy, false statement, and obstruction laws. The base offense level under Section 2J1.2 is 12. USSG § 2J1.2(a). We will apply this base offense level to each of the OSHA-related offenses. 3. USSG § 2J1.2(b)(2) — Substantial interference with the administration of justice Subsection 2J1.2(b)(2) provides as a specific offense characteristic: “If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.” USSG § 2J1.2(b)(2). Application note 1 states: “ ‘Substantial interference with the administration of justice’ includes ... the unnecessary expenditure of substantial governmental or court resources. ” Id., cmt. n. 1 (emphasis added). The commentary adds that the “specific offense characteristics reflect the more serious forms of obstruction.” Id., cmt. The government argues in favor of this enhancement for all three individual defendants who sustained the OSHA-related convictions, PRISQUE, MAURY, AND FAUBERT. (Gov. I at 26-29, 41-44; Gov. II at 1.) Those defendants object, contending that the OSHA incident investigations at Atlantic States during the relevant time frame were normal investigative measures and that OSHA was generally complete and thorough, so OSHA was not substantially interfered with in performing its functions. They also argue that the evidence does not quantify the amount of governmental resources unnecessarily expended, and that the conduct for the enhancement would be the same conduct producing the base offense level, thus creating unwarranted double-counting if we apply this enhancement. (Prisque I at 104; Maury I at 54; Prisque II at 32; Faubert II at 3; Maury II at 26; Faubert III at 2-5; Prisque III at 1-2; Maury III at 1-4; Faubert IV at 1-2.) Any discussion of the legal principles governing this potential guideline enhancement must begin with the recognition that this 3-level adjustment for a specific offense characteristic is found in Chapter 2, Part J of the guidelines. That is the Part covering “Offenses Involving the Administration of Justice,” which contains sections covering obstruction-type offenses such as contempt (§ 2J1.1), obstruction of justice (§ 2J1.2), perjury, suborning perjury, or bribery of a witness (§ 2J1.3), impersonation of a federal agent (§ 2J1.4), failure to appear by a material witness (§ 2J1.5), failure to appear by defendant (§ 2J1.6), commission of an offense while on release (§ 2J1.7), and payment to a witness (§ 2J1.9). See USSG Ch. 2, Part J. We have determined that all of the OSHA-related offenses in this case fall within Chapter 2, Part J, and specifically Section 2J1.2. See supra Sec. II.A.1. Sections 2J1.2(b)(2) and 2J1.3(b)(2) are in pari materia, insofar as each provides a 3-level enhancement to a base offense level of 12, where the particular obstruction-type offenses covered by those sections resulted in “substantial interference with the administration of justice.” Each contains an identical application note including the ground of “unnecessary expenditure of substantial governmental or court resources.” Compare USSG § 2J1.2, cmt. n. 1 with USSG § 2J1.3, cmt. n. 1. Case law addressing Section 2J1.2(b)(2) or Section 2Jl.3(b)(2) is therefore relevant to interpretation of those parallel subsections. See United States v. Tackett, 193 F.3d 880, 886 & n. 2 (6th Cir.1999). However, case law addressing the 2-level adjustment for obstruction of justice found in Chapter 3, Part C, Section 3C1.1 is not applicable to Sections 2J1.2(b)(2) and 2J1.3(b)(3), as we explain in the margin. The Third Circuit Court of Appeals addressed a 3-level adjustment under Section 2J1.3(b)(2) for unnecessary expenditure of substantial governmental resources in United States v. Serafini, 233 F.3d 758 (3d Cir.2000). There, the defendant was a state legislator convicted of having committed perjury while testifying under immunity before a grand jury that was investigating possible violations of federal election laws involving campaign contributions. The district court imposed the 3-level enhancement under Section 2J1.3(b)(2), finding that if defendant had testified truthfully to the grand jury the government would not have been put to significant additional effort that it described. The Court of Appeals affirmed, observing that the district court made explicit factual findings that defendant’s perjury was a “but-for cause” of substantial additional expenditures of the government’s time and effort in conducting the underlying investigation of the election law issues. Id. at 771 & n. 19. It rejected, as did the district court, defendant’s argument that the government’s investigation expenditures would have been undertaken even in the absence of his perjury, agreeing with the district court’s findings that certain investigative steps were necessitated by defendant’s obstructive conduct. Id. at 771 & n. 19. A 3-level enhancement under Section 2J1.2(b)(2) or its analogue, Section 2J1.3(b)(2), where the offense resulted in the unnecessary expenditure of substantial governmental or court resources, does not require that defendant’s obstructive conduct have occurred during a criminal investigation. The conduct can be committed during civil proceedings. See, e.g., United States v. Fiore, 381 F.3d 89 (2d Cir.2004) (conviction for perjury and related offenses arising out of civil SEC investigation; perjury calculation enhanced under Section 2J1.3(b)(2)); United States v. Tankersley, 296 F.3d 620 (7th Cir.2002) (conviction for criminal contempt of court for selling a yacht in violation of civil injunction and attempting to conceal sale proceeds; calculation enhanced under Section 2J1.2(b)(2)); United States v. Weissman, 195 F.3d 96 (2d Cir.1999) (convictions for obstruction and perjury in connection with Senate committee investigation of health care providers; calculation enhanced under Section 2J1.2(b)(2)). Some courts have stated that a Section 2J1.2(b)(2) enhancement should not be imposed for the governmental effort in exposing and prosecuting the obstruction offense itself. See infra n. 18. The guidelines commentary indicates that an adjustment under Section 3C1.1 should not be imposed on that basis. See application notes quoted in the margin. However, whether substantial governmental effort in exposing and prosecuting the obstruction offense itself will support an adjustment under Sections 2Jl.2(b)(2) or 2Jl.8(b)(2) appears to be an open question. See infra n. 19. We need not resolve that issue here, because that same body of case law demonstrates that if the obstructive conduct that is the basis of an obstruction conviction also results in significant additional governmental effort in conducting the investigation or prosecution that defendant obstructed, Section 2J1.2(b)(2) applies. Compare Tackett, 193 F.3d at 883-87 (where defendants’ conduct underlying their obstruction convictions caused substantial additional governmental expenditures to prosecute those convictions as well as other charges against a related party for conduct already under investigation, and defendants’ obstructive conduct was directed to defeat that previously-commenced investigation, Section 2J1.2(b)(2) enhancement was warranted); United States v. Sinclair, 109 F.3d 1527, 1538-40 (10th Cir.1997) (Section 2J1.3(b)(2) adjustment affirmed where defendant’s conduct underlying perjury conviction also caused increased governmental expenditures in prosecution of his two acquaintances already under indictment); United States v. Harrington, 82 F.3d 83, 86-87 (5th Cir.1996) (additional governmental expenditures caused by defendant’s obstruction offense aided in prosecution of defendant for obstruction but were also necessary for the government to convict defendant in the previously-commenced prosecution for other criminal conduct; Section 2J1.2(b)(2) enhancement was proper); with United States v. Duran, 41 F.3d 540, 542-43, 546 (9th Cir.1994) (Section 2J1.3(b)(2) adjustment reversed where it was based solely on the cost of prosecuting defendants for offenses including obstruction and perjury); of United States v. McSherry, 226 F.3d 153, 157-59 & n. 1 (2d Cir.2000) (reversing enhancements under Sections 2J1.2(b)(2) and 2J1.3(b)(2) where defendant parole official falsely denied in grand jury testimony that he was improperly influenced or corrupt, thus causing general bad publicity for the administration of the parole system, but no further basis was given for imposing the enhancement; appeals court stated in footnote that “[c]onceivably, a public official who lies to a grand jury and thereby misdirects the grand jury’s inquiry may be said to ‘substantially] interfere with the administration of justice.’ ”). The case law has uniformly rejected arguments that a Section 2J1.2(b)(2) enhancement is improper because it is based on the same conduct that is the subject of the underlying obstruction conviction, and therefore constitutes improper double counting. The Second Circuit in Tankersley, for example, addressed this argument as follows: [Defendant] contends that because his base offense level for criminal contempt was calculated using the guideline for obstruction of justice, it is not logical to allow an enhancement for substantially interfering with the administration of justice. This argument is misplaced. The Sentencing Guidelines expressly contemplate analyzing the same conduct that constitutes obstruction of justice to determine whether “the offense resultfs] in substantial interference with the administration of justice” and, if so, the Sentencing Guidelines direct the sentencing court to enhance the sentence by three levels. U.S.S.G. § 2J1.2(b)(2). [Defendant] further contends that this enhancement cannot apply to him because the district court engaged in double counting by considering the same conduct to enhance his sentence as it considered to punish him for criminal contempt. Contrary to [defendant’s] argument, however, double counting occurs when a sentencing court applies two or more upward adjustments based on the same conduct.... In this case, the district court convicted [defendant] of criminal contempt because he sold his yacht and he attempted to transfer the proceeds of this sale to the Bahamas. Then, at sentencing the district court enhanced [his] sentence because [his] conduct resulted in a substantial interference with the administration of justice. 296 F.3d at 623-24 (emphasis in original). These authorities demonstrate that one of the circumstances warranting enhancement under Section 2J1.2(b)(2) is where the defendant’s obstructive conduct, which did result in an obstruction conviction, also had but-for consequences of causing unnecessary additional expenditure of substantial government resources in an underlying investigation or prosecution that was already in progress. That investigation or prosecution could be of defendant himself, or of other persons or entities. As the Sixth Circuit explained in Tackett, “§ 2J1.2(b)(2) increases the punishment for a defendant who obstructs justice when such obstruction has negative consequences.” 193 F.3d at 886 n. 3. The guidelines do not define “substantial” as used in this context. Id. at 887. However, “[t]he government need not particularize a specific number of hours expended by a government employee.” Id., citing Jones, 900 F.2d at 522; accord, Weissman, 195 F.3d at 100; Sinclair, 109 F.3d at 1540; United States v. DeSalvo, 26 F.3d 1216, 1224 (2d Cir.1994); United States v. Bradach, 949 F.2d 1461, 1463 (7th Cir.1991). Indeed, the necessary proof by “a preponderance of the evidence may consist of reasonable inferences drawn from circumstantial evidence.” Jones, 900 F.2d at 522. Courts have generally agreed with the Second Circuit in Jones, that in at least one factual situation, substantiality may be inferred. That court stated: “In some cases, when the defendant has concealed evidence and is the only known source of information, substantial interference with the administration of justice may be inferred.” Id., citing United States v. Barnhart, 889 F.2d 1374, 1379-80 (5th Cir.1989); accord, Tackett, 193 F.3d at 887; Sinclair, 109 F.3d at 1539-40; DeSalvo, 26 F.3d at 1224; Bradach, 949 F.2d at 1463. As the Tackett court observed: This is a logical proposition: if a person is the only source of important information, her active concealment of this information will almost certainly change the course of the proceedings, making the investigation more difficult and costly, and hampering the truth-seeking function of government agents. Tackett, 193 F.3d at 887-88 (affirming Section 2J1.2(b)(2) enhancement based upon inference of substantiality and stating that evidence in the record corroborated the inference). The district court must, in deciding whether to apply Section 2J1.2(b)(2) on this ground, make a specific finding that the defendant’s conduct resulted in the expenditure of substantial government resources. See, e.g., id. at 887; Serafini, 233 F.3d at 771; Jones, 900 F.2d at 521-22. The Sixth Circuit in Tackett described this obligation thus: Specifically, we believe the district court must: (1) identify a particular expenditure of governmental resources (time or money), (2) which but for the defendant’s conduct would not have been expended, and (3) was “substantial” in amount. Tackett, 193 F.3d at 887 (citations omitted). Enhancements under Sections 2J1.2(b)(2) or 2J1.3(b)(2) have been affirmed, and the requisite “substantiality” was found to exist, in a wide range of circumstances. See, e.g., United States v. Leung, 360 F.3d 62, 67-68 (2d Cir.2004) (extra investigative steps were required to be undertaken by U.S. Marshals to find bail-jumping defendant because he faked his own death); Tankersley, 296 F.3d at 623 (many weeks of investigative work went into tracking down and determining what happened to the assets defendant sold in committing criminal contempt); Serafini, 233 F.3d at 771 & n. 19 (district court specifically found that defendant’s perjury resulted in the need to re-interview a witness who was defendant’s employee); Weissman, 195 F.3d at 100 (Senate subcommittee staff was required to spend significant additional time on the investigative hearings as a result of defendant’s obstructive conduct); Tackett, 193 F.3d at 888 (inference of substantiality supported because defendants were sole source of knowledge of falsity; record also showed that truthful testimony by defendants would have changed the course of investigation of the underlying events); Sinclair, 109 F.3d at 1539-40 (government had to re-interview and re-call two witnesses who had been induced to perjure themselves); United States v. Atkin, 29 F.3d 267, 268 (7th Cir.1994) (defendant’s perjury caused the grand jury to summon five additional witnesses to complete the underlying investigation, one from a distant state); DeSalvo, 26 F.3d at 1223-24 (defendant, who was in high position in law firm being investigated and had personal knowledge of cases under investigation, had he testified truthfully “[wjithout doubt .... would have saved the government substantial investigative and trial expenses”); United States v. Butt, 955 F.2d 77, 87-88 (1st Cir.1992) (but for defendant’s perjury to grand jury, the government would not have needed to locate several corroborating witnesses and might not have immunized persons whom it otherwise could have prosecuted); Bradach, 949 F.2d at 1463 (defendant suborned perjury from all persons who knew the true nature of the events under investigation, thus impairing the grand jury investigation as well as necessitating perjury-related trials of the defendants and the other perjured witnesses); United States v. Lueddeke, 908 F.2d 230, 232-34 (7th Cir.1990) (defendant’s perjury before grand jury resulted in the work of two officers for “two weeks trying to sort out the truth”); Barnhart, 889 F.2d at 1374, 1379-80 (defendant’s uncooperative and untruthful statements to FBI agent and perjury to grand jury hindered investigation of underlying events and persons involved); see also United States v. Kilgarlin, 157 Fed.Appx. 716, 720-21 (5th Cir.2005) (substantial government expenditure recognized as supporting enhancement where EPA investigators had to conduct further investigation into company procedures and equipment, and interview witnesses, to prove that documents provided by defendants were fabricated; also substantiality was inferred to extent defendant was sole source of the information she was concealing). This Court makes the following factual findings based on the trial record, applying Section 2J1.2(b)(2) and the judicial interpretations summarized above. Here we incorporate by reference and cite the detailed description of the relevant trial evidence, including evidence of the expenditures of time and effort of government investigators in the civil OSHA investigations, set forth in our post-trial Memorandum Opinion, dkt. 721. The Coxe investigation is the subject of substantive convictions of PRISQUE, FAUBERT, and MAURY on Count 9 (obstruction), and of FAUBERT also on Counts 7 and 10 (false statements and obstruction). See supra n. 13. Each of those defendants was also convicted of every alleged objective of the Count 1 conspiracy that refers to OSHA: Objective C, defraud the United States; Objective D, false statements; and Objective E, obstruction of OSHA. See supra n. 12. In other words, the verdict found that their obstructive conduct as to that workplace fatality was not unilateral but rather that they each knowingly participated in a conspiratorial agreement with the objective of obstructing OSHA as to that investigation. We find that the record supports a 3-level enhancement for substantial interference with the administration of justice under Section 2J1.2(b)(2), as to each of defendants PRISQUE, FAUBERT, and MAURY in connection with the Coxe investigation. We base this finding on the evidence pertaining to obstruction of the OSHA efforts to investigate the Coxe forklift fatality by PRISQUE, FAUBERT, and MAURY. (See dkt. 721 at 147-159, 163-176.) This conclusion, as to PRISQUE, FAUBERT, and MAURY in relation to the OSHA investigation of the Coxe fatality, is supported by the inference of substantiality permitted where, as here, all the relevant knowledge was in the control of those defendants and subordinates whom they could influence. Further, it is fully corroborated by the trial evidence itself, which demonstrates that the obstructive actions of those defendants caused substantial unnecessary interference with OSHA’s efforts to investigate that fatality. Those obstructive actions were undertaken collectively by PRISQUE, MAURY, and FAUBERT, and by seeking the assistance of lower-level employees whose communications with OSHA they were in a position to influence. The facts that OSHA eventually uncovered — despite the ongoing obstruetive actions of those defendants— were that the driver of the forklift that ran over Coxe had been involved in a prior, unreported incident in which he ran over and seriously injured another supervisor (Marchan), and that the forklift itself was not in good operating condition. Those two key facts were concealed by the obstruction and conspiratorial conduct of those defendants, thus requiring substantial unnecessary expenditure of time and effort by OSHA investigators to unravel the truth about the circumstances of Coxe’s death. (See dkt. 721 at 147-159, 163-176.) Specifically as to the condition of the forklift, the trial evidence documented the painstaking efforts required of OSHA to get to the truth on that topic, caused by the coordinated obstructive conduct of defendants. It began with the untruthful statement of FAUBERT (the designated company liaison to OSHA) to OSHA inspector Tiedeman, just hours after the Coxe fatality, that nothing had been done to the forklift post-incident. That statement, and the deceptive forklift demonstration that defendants were able to present that day, caused OSHA to undertake an extensive investigation to ultimately determine that the forklift had been tampered with while in the maintenance garage so that its pre-incident defects such as impaired brakes had been corrected by the time OSHA arrived that day. Also, the untruthful statements on a document resulting from efforts of MAURY and FAUBERT, which FAUBERT presented to OSHA the next day, stating that the forklift was in “perfect operating condition” when inspected on that day, formed part of the puzzle that OSHA had to unravel. To do so, OSHA had to undertake an exhaustive examination of forklift maintenance records, as to the subject forklift as well as similar forklifts, that revealed a pattern of defects both before and soon after the Coxe incident. That extensive document review was coupled with interviews of numerous workers during several more visits to the plant by OSHA inspectors, as the inspectors sought to understand the forklift maintenance practices and failures that featured in causation of the Coxe fatality. Even after conducting most of that review, the OSHA inspector interviewed MAURY who continued to give evasive answers to the questions OSHA had about forklift driver checklists. The investigation included numerous interviews of workers, some who testified at trial, as to the poor condition of the forklifts they were forced to use at the plant. The evidence at trial revealed that all of this OSHA investigation was done in an atmosphere where workers were warned not to reveal the truth. One foreman, for example, testified at trial that on the day of the Coxe fatality he was warned by PRISQUE not to tell the truth to OSHA investigators about the incident. This was conduct covered by Count 9 of the indietment. (See dkt. 721 at 163-176.) We find that those obstructive actions by defendants PRISQUE, FAUBERT, and MAURY can be inferred to have caused, and the record shows that they did in fact cause, substantial expenditure of OSHA investigative effort that would not have been necessary if they had been truthful about material facts pertaining to the forklift involved in the Coxe fatality. The evidence of unnecessary expenditure of OSHA investigative time and effort was also established, for the aspect of the Coxe investigation that came to focus on the forklift driver’s earlier mishap in which he ran over supervisor Marchan and caused him injury. OSHA had to read about that incident in the newspaper. When the OSHA investigator asked FAUBERT about it, he responded orally that he did recall such an incident in about 1999. The investigator asked for any accident reports and entries in log records, as were required to be maintained. When that investigator and a colleague next returned to the plant, FAUBERT and his subordinate handed OSHA a written document signed by Marchan that contained false statements so as to justify the lack of any accident report or log entries. OSHA was then given access to the worker, Marchan, to interview him, at which point Marchan lied consistently with the written statement. FAUBERT and his subordinate backed up that fiction while again being interviewed by OSHA. Only through further investigation by OSHA was it determined that Marchan had (1) been treated for a fracture at the local hospital, (2) been in a cast and on crutches for about five weeks, and (3) lied under instructions of FAUBERT as reinforced by PRISQUE. This was the conduct covered by Counts 7 and 10 of the indictment. (See id. at 149-159.) We find that this concert of obstructive actions by PRISQUE and FAUBERT can be inferred to have caused, and the record shows that it did in fact cause, further substantial expenditure of OSHA investigative effort that would not have been necessary if they had been truthful about facts pertaining to the accident history of the driver of the Coxe forklift. The civil investigation of the Coxe fatality did not result in a separate prosecution of defendants under the OSHA statute. See supra n. 15. The obstruction of that civil OSHA investigation by those defendants did, however, clearly prolong and unnecessarily complicate that OSHA investigation, as we have explained above. This reason alone requires application of the enhancement under Section 2J1.2(b)(2) as to the Coxe investigation. That same obstruction was also very intricate and time-consuming for law enforcement to present through numerous witnesses at trial, even if that alone might not support this enhancement because no substantive OSHA offenses were charged at trial. Id. (Gov. I at 42-43.) For these reasons, we will apply the 3-level enhancement under Section 2J1.2(b)(2) to the base offense level for the OSHA obstruction-related convictions of PRISQUE, FAUBERT, and MAURY pertaining to the Coxe fatality investigation. This Court also finds that the same 3-level enhancement under Section 2J1.2(b)(2) is warranted for the conduct of defendant PRISQUE in obstructing the separate OSHA investigations of the serious workplace injuries sustained by employees Owens and Velarde. PRISQUE was convicted of obstructing both of those OSHA investigations as well as the Coxe investigation. Here again, the trial evidence amply documents that substantial unnecessary governmental expenditures were caused by PRISQUE during those OSHA investigations. The investigating OSHA officers had to spend unnecessary and substantial effort to “sort out the truth,” in the face of elaborate deceptions by PRISQUE and his involved subordinates. The material facts that OSHA eventually obtained — despite the ongoing obstructive efforts of PRISQUE — were regarding the workplace conditions at a cut saw station where employee Owens was struck by a flying saw blade fragment and sustained a fractured skull and lost eye, and at a “jumpered” cement mixer where employee Velarde lost three fingers to rotating mixer blades. Obstruction of the OSHA investigation of the Owens incident was charged in Count 8, and obstruction of the OSHA investigation of the Velarde incident was charged in Count 11, and on both of those counts PRISQUE was convicted. See text accompanying n. 10 supra. PRISQUE’s obstructive conduct pertaining to the Owens incident was to instruct line worker Marchan-Mendoza to lie to OSHA about the pre-incident condition of a safety shield, which the OSHA inspector testified at trial was material to his investigation. That worker later withdrew his lie as a result of further government investigation, and provided the truthful information before and during trial. (Dkt. 721 at 159— 163.) PRISQUE’S obstructive conduct pertaining to the Velarde investigation was his participation in an amazing series of steps to prevent OSHA from discovering that the electrical safety mechanism on the cement mixer had been bypassed at PRISQUE’s direction. The steps that it took OSHA in turn to unravel that deception were very involved, including actually watching the night shift in operation, taking repeated series of pictures, reviewing the manual, re-interviewing co-conspirator Harbin (who again changed his story), and contacting the out-of-state manufacturer for information and documentation. (Dkt. 721 at 176-188.) As in the case of the OSHA investigation of the Coxe incident, we find that the untruthful and deceptive actions of PRISQUE and his involved subordinates in the Owens and Velarde investigations were a “but-for” cause of substantial investigative effort by OSHA inspectors to discover the causes of those injuries. To summarize, the Court finds that a 3-level enhancement is warranted pursuant to Section 2J1.2(b)(2) for PRISQUE, FAU-BERT, and MAURY in connection with their obstruction of the Coxe forklift fatality investigation by OSHA. We further find that this enhancement is supported, as to PRISQUE, in connection with his obstruction of the Owens and Velarde injury investigations by OSHA. B. CWA-RELATED OFFENSES 1. Review of convictions Defendants PRISQUE, MAURY, and DAVIDSON were convicted of conspiracy and substantive offenses relating to violations of the CWA. Those substantive counts of conviction are: PRISQUE Ct. 27 (CWA neg. only, pp. 215-231) MAURY Ct. 3 (false statement re: 12-4/5-99 discharge, pp. 136-141) Ct. 27 (CWA neg. only, pp. 215-231) Cts. 28-32 (CWA discharges from # 4 pit, pp. 231-243) DAVIDSON Ct. 4 (false statement re: 12-4/5-99 discharge, pp. 141-146) Cts. 12-20, (CWA neg. only, pp. 189-215) 22-26 Ct. 27 (CWA neg. only, pp. 215-231) Counts 12-20 and 22-27 were charged as felony offenses under 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). (Dkt. 721 at 133-134.) ATLANTIC STATES was convicted of those felony offenses, but the named individual defendants (PRISQUE, MAURY, and DAVIDSON on the stated counts) were convicted of the lesser-included substantive negligent offenses under 33 U.S.C. § 1319(c)(1)(A). (Id. at 3 n. 4.) Counts 28-32 were also charged as felony offenses under 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). (Id. at 133-134.) Both named defendants, ATLANTIC STATES and MAURY, were convicted on those counts as charged. (Id. at 3 n. 4.) Counts 3 and 4 are false statement felony counts under 18 U.S.C. § 1001, related to the unpermitted discharge of petroleum-contaminated wastewater from the cement pit underlying Count 27 (“the 12-4/5-99 discharge”), and the subsequent CWA-related investigation. (Dkt. 721 at 136-146, 215-231.) Defendant MAURY was convicted on Count 3, and DAVIDSON was convicted on Count 4. It can be argued that the false statement offenses that are the subject of Counts 3 and 4 should be calculated under the Chapter Two guideline section for the corresponding CWA substantive violations, because those false statements directly related to the environmental offenses about which the false statements were made. No party has urged that treatment of Counts 3 and 4, and we conclude that those counts of conviction are properly analyzed under the general fraud provisions of Chapter Two, Part F. See infra Sec. II.B.8. The following discussion addresses each of the CWA-related counts as a separate count. Grouping of counts, where applicable, is addressed infra Sec. V. 2. USSG § 2Q1.3-Mishandling of environmental pollutants The Court will apply Section 2Q1.3 rather than Section 2Q1.2 to the CWA offenses in this case. The Statutory Index states that for violations of 33 U.S.C. § 1319(c)(1) and (c)(2), either Section 2Q1.2 or Section 2Q1.3 may apply. USSG App. A. Section 1B1.2, entitled “Applicable Guidelines,” provides in pertinent part: (a) Determine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted) — (b) After determining the appropriate offense guideline section pursuant to subsection (a) of this section, determine the applicable guideline range in accordance with § 1B1.3 (Relevant Conduct). USSG § 1B1.2. As explained in Watterson v. United States, 219 F.3d 232, 235 (3d Cir.2000), the sentencing court may not consider relevant conduct until after it selects the appropriate offense guideline section. See United States v. Pizzuto, No. 94-5433, 1995 WL 610346 (4th Cir.1995) (once the applicable guideline is known, relevant conduct is used to determine which specific offense characteristics apply); United States v. Goldfaden, 959 F.2d 1324, 1329 (5th Cir.1992) (“The district court ... should have relied solely on Appellant’s offense of conviction to determine the base offense guideline;” district court erred in selecting Section 2Q1.2 instead of Section 2Q1.3 where offense conduct involved nontoxic industrial waste, and hazardous waste was only involved in relevant conduct.). Section 2Q1.2, by its title, applies to “Mishandling of Hazardous or Toxic Substances or Pesticides”. Its commentary, quoted in the margin, describes what is meant by those terms for guideline purposes. Its base offense level is 8. USSG § 2Q1.2(a). That commentary explains, “[ajlthough other sections of the guidelines generally prescribe a base offense level of 6 for regulatory violations, § 2Q1.2 prescribes a base offense level of 8 because of the inherently dangerous nature of hazardous and toxic substances and pesticides.” USSG § 2Q1.2, cmt. background. Section 2Q1.3, by its title, applies to “Mishandling of Other Environmental Pollutants”. Its commentary states that “[tjhis section parallels § 2Q1.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic.” USSG § 2Q1.3, cmt. background. Its base offense level is 6. USSG § 2Q1.3(a). The statutory structure of the CWA does distinguish the general term “pollutants” from more specifically identified substances including “oil,” “hazardous substances,” and “toxic pollutants.” Compare 33 U.S.C. § 1362(6) (“pollutant”) with id. § 1321(a)(1) (“oil”), §§ 1321(a)(14) and (b)(2)(A) (“hazardous substance,” other than oil, to be designated by regulation), and § 1362(13) (“toxic pollutant”). Defendants PRISQUE, MAURY, and DAVIDSON were convicted of substantive offenses of discharging “a pollutant,” in the form of “petroleum-contaminated wastewater.” (See dkt. 721 at 189-190, 215, and 231 (quoting text of Counts 12-26, 27 & 28-32).) That conduct was also described in Count 1, alleged Overt Acts 1, 3, and 4, respectively. (Dkt. 711 at 15-16.) The jury was instructed that to prove the CWA offenses, as charged in the indictment, the proof must establish “that a discharge of a pollutant” occurred, and that the defendant knew “that he was discharging petroleum-contaminated waste-water.” (Dkt. 721 at 11.) The term “pollutant” was defined in the jury instructions to mean “solid waste and industrial waste discharged into water, including petroleum-impacted wastewater.” (Dkt. 717 at 53.) Defendants PRISQUE, MAURY, and DAVIDSON were also convicted of conspiring to knowingly violate the CWA, Objective A of the Count 1 conspiracy. See supra n. 24. There were numerous overt acts alleged as part of this objective. (See dkt. 711 at 15-17.) However, the jury was not asked to render verdicts as to which alleged overt acts were or were not established by the evidence. (Dkt. 721 at 15, 262; dkt. 717 at 37.) The government does not contend that petroleum-contaminated wastewater is designated as hazardous or toxic. Rather, it argues that we should apply Section 2Q1.2 to the CWA offenses, “because Defendants’ conduct included the discharge of hazardous paint into the Delaware River.” (Gov. I at 32.) This is a reference to evidence presented at trial in support of Count 1, Overt Acts 7-9, which alleged that ATLANTIC STATES, PRISQUE, MAURY, and co-conspirators also took affirmative steps to conceal from authorities the discharge of asphalt-based waste paint to the storm sewers. (Gov. I at 29-32.) Defendants contend that Section 2Q1.3 is applicable to the CWA offenses of which they were convicted. (Atlantic States I at 77-79; Prisque I at 105-110; Maury I at 38-44; Davidson I at 50-54; Prisque II at 32-35; Maury II at 4-7, 11-15; Davidson II at 23-25.) Section IB 1.2(a) directs the court to “[djetermine the offense guideline section in Chapter Two ... most applicable to the offense[s] of conviction.” USSG § lB1.2(a) (emphasis added). Clearly, here the CWA offenses on which the jury was instructed, and on which these defendants were convicted, primarily involved discharge of the “pollutant” of “petroleum-contaminated wastewater.” The jury was instructed on the definition of “pollutant” under the CWA. (Dkt. 717 at 53.) The jury was given no definition of “hazardous” or “toxic” under that statute. Indeed, not one of the 108 verdict points presented to the jury for decision in this case required the jury to make a factual finding as to any substance meeting a definition of “hazardous” or “toxic.” The indictment charged 22 substantive counts of CWA violations involving discharges of petroleum-contaminated waste-water, with corresponding overt acts alleged under Count 1. Convictions were obtained on the charged offense on 5 of those counts (Cts. 28-32), and on the lesser-included offense under 15 of those counts (Cts. 12-20, 22-27). The indictment charged no substantive counts involving discharge of asphalt-based paint into the water. It is true that several alleged overt acts of the Count 1 conspiracy referred to efforts to conceal discharges of asphalt-based waste paint into the storm sewers, and trial evidence was presented on that topic. However, given the nature of the CWA charges and convictions in this case, we do not believe that concealment of mishandled asphalt-based paint can be considered the determinant offense conduct for purposes of selecting the applicable guideline section. We conclude that the offense guideline section in Chapter Two that is “most applicable” to the CWA offenses of conviction as to PRISQUE, MAURY, and DAVIDSON is Section 2Q1.3. See USSG § lB1.2(a). 3. USSG § 2Q1.3(a) — Base offense level The base offense level for each of the CWA offenses is 6. USSG § 2Q1.3(a). 4. USSG § 2Q1.3(b)(l)(A) or (B)— Discharge, release, or emission of pollutant The guidelines recognize that not all environmental offenses involving mishandling of a pollutant also include an actual discharge, release, or emission of the pollutant. See United States v. Ellen, 961 F.2d 462, 468-69 (4th Cir.1992) (“§ 2Q1.3 applies to offenses that do not involve the discharge of a pollutant, see, e.g., 33 U.S.C. § 403 (prohibiting, inter alia, the obstruction of navigable waters)”). For those that do involve an actual discharge, an incremental specific offense adjustment is provided as follows: (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)(l) (“Subsection (b)(l)”)(A) and (B). The application note to Subsection (b)(1) states in pertinent part: Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. USSG § 2Q1.3, cmt. n. 4 (emphasis added) (“Note 4, First Sentence”). There is a line of case law interpreting Subsection (b)(1) and Note 4, First Sentence. The opinions differ somewhat in articulating what the Subsection (b)(1) standard is, and the Third Circuit has stated that the “circuits are split on the question whether [under that provision] the government must prove that the discharge caused actual environmental contamination.” United States v. Chau, 293 F.3d 96, 99-100 (3d Cir.2002). We present here a brief summary of that case law, because it concerns whether a Subsection (b)(1) adjustment applies in a given case, and the Third Circuit has not expressly adopted either view. Id. As will be seen, it also becomes relevant when considering the guided departure language in Notes 4 and 7. See infra Sec. II.B.6. The text of Subsection (b)(1) requires a “discharge, release, or emission” for the adjustment to apply. See USSG § 2Q1.2(b)(l)(A)-(B); USSG § 2Q1.3(b)(l)(A)-(B). (We use emphasis here to identify the key terms discussed in the cases.) The adjustment under Subsection (b)(1)(A) for “ongoing, continuous, or repetitive” further requires that the discharge, release or emission be “into the environment.” Id. The sentence we call “Note 4, First Sentence,” under 2Q1.3(b) (as well as Note 4 analogue under Section 2Q1.2(b)), states that “Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. ” See USSG § 2Q1.3, cmt. n. 4; USSG § 2Q1.2, cmt. n. 5. Note 4, First Sentence, explains whether to impose the Subsection (b)(1) adjustment. The remaining text of Note 4 lists factors to consider for possible guided departure from a Subsection (b)(1) adjustment. See infra text quoted in Sec. II.B.6. One of those factors is “harm resulting from the emission, release or discharge.” USSG § 2Q1.3, cmt. n. 4.; USSG § 2Q1.2, cmt. n. 5. In other words, Note 4 read literally does not require evidence of harm to the environment for the adjustment to apply. Harm becomes relevant as one of the factors to consider for possible upward or downward departure. The Ninth Circuit Court of Appeals has interpreted [Note 4 analogue], First Sentence, using a dictionary definition of “contamination” meaning “ ‘to soil, stain, or infect by contact or association’ or ‘to make ... impure by admixture.’ ” United States v. Ferrin, 994 F.2d 658, 664 (9th Cir.1993) (quoting dictionary source). The Ferrin defendant pled guilty to illegal disposal of hazardous waste under a section of the Solid Waste Disposal Act that defined the offense as “discharge ... so that such [waste] may enter the environment.” Id. at 662 (emphasis in original). The evidence at sentencing showed that the waste defendant had deposited in a dumpster was retrieved by officials before it leaked out, but defendant had also mixed the waste in open air “as clouds of gas [were] emitted from a fuming drum.” Id. at 660. The circuit court upheld refusal to impose a Subsection (b)(1) adjustment for the material placed in the dumpster, “because, owing to the fortuitous intervention of the authorities, there was no actual contamination.” Id. at 664. It reversed for findings, however, as to whether the gas released into the air was a hazardous substance “since, if it was, its escape into the atmosphere contaminated the environment,” and Subsection (b)(1) would apply. Id The Ferrin court noted with some approval three earlier decisions applying Subsection (b)(1) where there was evidence of actual contamination of the environment, but not necessarily evidence of actual harm. Id. at 663, citing United States v. Bogas, 920 F.2d 363 (6th Cir.1990) (offense was failure to report release of hazardous wastes into the environment, and there was visual contamination of the soil); United States v. Sellers, 926 F.2d 410 (5th Cir.1991) (offense was improper disposal of hazardous waste, and one drum was actually leaking onto creek embankment); and Goldfaden, 959 F.2d 1324 (offense was discharge of industrial waste, and there was evidence of illegal dumping of wastewater into municipal sewer system). Ferrin commented that although offenses such as in Goldfade