NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEWART S. SMITH, )
) Court of Appeals No. A-4961
Appellant, ) Trial Court No. 3AN-92-7020
Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1344 - May 6, 1994]
________________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, John R. Lohff,
Judge.
Appearances: Moshe Calberg Zorea,
Anchorage, for Appellant. Lee Ann deGrazia,
Assistant District Attorney, Edward E.
McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Coats and Mannheimer, Judges,
and Wolverton, District Court Judge.*
[Bryner, Chief Judge, not participating.]
MANNHEIMER, Judge.
Stewart S. Smith pleaded no contest to seven counts of
violating AS 46.03.790 and regulations promulgated under this
stat-ute by the Department of Environmental Conservation (DEC).
Smith, the owner of C Street Auto Repair, directed his employee,
Robert Riggs, to dispose of several barrels of waste oil. Smith
told Riggs that he did not care where the oil ended up; he told
Riggs to "just get rid of it". Riggs dumped the barrels at
improper sites in the Anchorage area, causing contamination of
the environment.
On Count 1 (discharge of a petroleum product on state
land without a permit) and Count 2 (illegal treatment, transporta
tion, storage, or disposal of hazardous waste), District Judge
John R. Lohff sentenced Smith to concurrent terms of 300 days'
imprisonment with 270 days suspended (30 days to serve). As a
condition of his probation on these counts, Smith was ordered to
make restitution for the costs of cleaning up and restoring the
environment, which Judge Lohff estimated to be $18,039.25. On
the remaining counts, Judge Lohff sentenced Smith to 360 days'
imprisonment, all suspended, and ordered Smith to perform 200
hours of community service.
On appeal, Smith argues that his term of imprisonment
is excessive. Because Smith received a sentence of less than 45
days to serve, he has no right to appeal the severity of the
sentence. Johnson v. State, 816 P.2d 220 (Alaska App. 1991).
(We note that Smith may later have a right to appeal if, because
of a probation violation, he is sentenced to serve more than a
total of 45 days in jail.)
Smith also contends that he has been ordered to pay an
excessive amount of restitution. Judge Lohff ordered Smith to
pay the costs of restoring two sites, one known as the "Fuller"
property and the other, a bluff located near Klatt Road. Smith
asserts that he can not be held responsible for restoring the
bluff site.
Smith's argument rests on Riggs's testimony that he
placed two or three barrels of waste oil next to a yellow tractor
at a construction site near the intersection of Klatt and
Spyglass Roads. These barrels were eventually found on a bluff a
few blocks away. No one knows how the barrels made their way
from one site to the other.
Judge Lohff ordered Smith to pay the cost of cleaning
up the bluff where the barrels were ultimately found. Smith
argues that he might have been held responsible for cleaning up
the site where Riggs placed the barrels, but he can not be held
responsible for cleaning up the bluff where the barrels were
found, since Riggs did not put the barrels there. We disagree.
Riggs placed these barrels at a construction site not far away
from the bluff, next to a piece of heavy equipment. Assuming,
for the sake of argument, that the construction workers, or the
land owner, or any other person found the barrels and decided to
dispose of them illegally (by moving them to another location a
few blocks away rather than transporting them to a hazardous
waste disposal facility), the other person's action would not
absolve Smith of liability for cleaning up the site where the
barrels eventually came to rest. It was reasonably foreseeable
that whoever discovered the waste oil abandoned at the construc
tion site might be tempted to get rid of the oil by moving the
barrels a short distance away rather than spending the time and
effort necessary to dispose of them properly. Riggs's act of
leaving the oil at the construction site was therefore a substan
tial factor in causing the contamination of the bluff site, State
v. Malone, 819 P.2d 34, 36 (Alaska App. 1991), and Judge Lohff
did not err when he held Smith responsible for the environmental
damage inflicted upon the site where the barrels ultimately came
to rest.
Smith also argues that the damage to the bluff might be
partially or even mostly due to other people's acts of illegal
dumping. He points out that the DEC assessed the damage to the
site almost a year after Riggs's acts of illegal dumping, leaving
time for other people to illegally dump hazardous waste at the
same site. This is a factual issue to be determined by the
sentencing court. The record presently before us contains no
indication that the site in question was contaminated by anything
other than Smith's waste oil, nor any indication that the DEC
would knowingly attempt to make Smith pay for cleaning up
anything besides his oil.
The judgement of the district court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
