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Article Excerpt
I. INTRODUCTION
A. Criminal versus Civil Penalties B. Enforcement C. Interaction with Other Criminal Violations II. GENERAL ISSUES A. Overview of Elements of Environmental Criminal Violations B. Liability 1. Corporate Liability 2. Individual Liability C. Common Defenses 1. Constitutional Defenses 2. Other Defenses D. Voluntary Compliance and Sentencing E. Sentencing Guidelines III. CLEAN AIR ACT A. Purpose B. Elements of CAA Offense 1. Violation a. Emissions Standards i. National Ambient Air Quality Standards ii. National Emission Standards for Hazardous Air Pollutants iii. New Source Performance Standards iv. Acid Deposition Regulation v. Stratospheric Ozone Protection b. EPA Monitoring of Emissions Standards 2. Intent C. Defenses D. Penalties IV. CLEAN WATER ACT A. Purpose B. Elements of a CWA Offense 1. Violation a. Effluent Limitations and Water Quality Standards; National Pollutant Discharge Elimination System ("NPDES") Permit Program b. Monitoring, Reporting, and Regulatory Searches c. Discharge of Oil and Hazardous Substances d. Prohibition on Dredge and Fill Activities 2. Intent C. Defenses D. Penalties 1. Penalties Under the CWA a. Negligent Violations b. Knowing Violations c. Knowing Endangerment d. False Statements, Representations, and Tampering 2. Penalties Under the Sentencing Guidelines V. THE RIVERS AND HARBORS ACT OF 1899 A. Purpose B. Elements of an RHA Offense 1. Violation 2. Intent C. Defenses D. Penalties VI. SAFE DRINKING WATER ACT A. Purpose B. Elements of SDWA Offense 1. Underground Injection of Contaminants a. Elements of the Offense b. Penalties 2. Regulation of Drinking Water Coolers a. Elements of the Offense b. Penalties 3. Enforcement of Ban on Tampering a. Elements of the Offense b. Penalties VII. COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT A. Purpose B. Elements of a CERCLA Offense C. Defenses D. Penalties VIII. RESOURCE CONSERVATION AND RECOVERY ACT A. Purpose B. Elements of a RCRA Offense 1. Violation 2. Intent a. Knowing Violation b. Knowing Endangerment C. Defenses D. Penalties IX. Toxic SUBSTANCES CONTROL ACT A. Purpose B. Elements of a TSCA Offense 1. Violation a. Testing Requirements b. Notice and Premanufacturing Approval c. Restrictions on Manufacturing, Processing, Distributing, Using, and Disposing d. Prohibition on Commercial Use 2. Intent 3. Defenses C. Penalties X. THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT A. Purpose B. Elements of a FIFRA Offense 1. Violation 2. Intent 3. Defenses C. Penalties XI. ENDANGERED SPECIES ACT A. Purpose B. Elements of an ESA Offense 1. Violation 2. Intent 3. Exemptions C. Defenses D. Penalties
I. INTRODUCTION
Nine principal statutes (the "statutes") govern the enforcement of federal environmental regulations through criminal prosecution. Section II of this article discusses issues common to most of these statutes, including theories of liability, defenses, and sentencing.
Section III examines the Clean Air Act ("CAA"), (1) which imposes penalties on violators of federal and state air pollution control laws and regulations. Section IV studies the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"). (2) Sections V and VI address additional water pollution issues discussing, respectively, the Rivers and Harbors Act of 1899 ("RHA") (3) and the Safe Drinking Water Act ("SDWA"), (4) which together with the CWA restore and protect the quality of the nation's surface and ground waters. Section VII examines the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), (5) which authorizes the cleanup of hazardous substances at contaminated sites and imposes criminal penalties on those who violate its provisions. Section VIII addresses the Resource Conservation and Recovery Act ("RCRA"), (6) which is a set of amendments reinforcing the Federal Solid Waste Disposal Act ("SWDA"). (7) Section IX reviews the Toxic Substances Control Act ("TSCA"), (8) which governs the manufacture, processing, and distribution or disposal of chemicals that pose a danger to the public or the environment. Section X discusses the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), (9) which regulates the manufacture, registration, transportation, sale, and use of toxic pesticides. Finally, Section XI examines the efforts of the Endangered Species Act ("ESA") to regulate crimes against wildlife. (10)
A. Criminal versus Civil Penalties
Over time, Congress has elevated some violations from misdemeanors to felonies and has increased potential jail sentences and fines for those convicted. (11) Most of the statutes enumerated above contain overlapping civil, criminal, and administrative penalty provisions. (12) Because the statutes permit simultaneous civil and criminal enforcement actions against violators, the policy of the Environmental Protection Agency ("EPA") is to evaluate which method would best address the violation. (13)
The EPA will generally favor a criminal proceeding if complete relief can be achieved criminally, but if remedial measures are necessary, or if the violation is particularly egregious, civil liability may be pursued alone or in conjunction with criminal liability. (14) The Parallel Proceeding Memo outlines the criteria EPA will use to determine how it will proceed. (15)
B. Enforcement
The criminal provisions of nearly all of the statutes addressed in this article are enforced by the EPA in conjunction with the Department of Justice ("DOJ"). However, the ESA is enforced by the Department of the Interior ("DOI") and the EPA may recommend against prosecution of criminal violations if the violating entity has voluntarily disclosed the violations prior to any EPA-initiated investigation. (16)
In enforcing the environmental statutes, the EPA emphasizes cooperation with other administrative agencies (17) and focuses on select national enforcement priorities that are revised on a bi-annual basis. (18) Since states have the primary responsibility for implementing many federal environmental laws, a significant amount of enforcement activity takes place at the state level and must be coordinated with federal enforcement efforts. (19)
The DOJ's policy provides for a flexible approach to enforcement. In deciding whether to prosecute violations of federal environmental statutes, the department may consider several factors, including: (i) voluntary disclosure; (ii) the degree and timeliness of cooperation; (iii) preventive measures and compliance programs; (iv) pervasive non-compliance; (v) disciplinary systems to punish employees who violate compliance policies; and (vi) subsequent compliance efforts. (20) These factors are intended "to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations." (21)
C. Interaction with Other Criminal Violations
General criminal statutes can serve as alternative bases for prosecution of environmental crimes. (22) Prosecution of environmental offenses may be pursued under general criminal statutes which provide for harsher penalties than the applicable environmental statute. (23) Prosecutors choosing this path generally append environmental criminal offenses as additional charges.
II. GENERAL ISSUES
A. Overview of Elements of Environmental Criminal Violations
Although criminal provisions vary among statutes, the basic elements of an environmental criminal violation are (i) an act that substantively violates a statute and (ii) an intent to so violate the statute. Common acts that constitute substantive criminal violations include making false statements, (24) failing to file required reports, (25) failing to pay required fees, (26) operating without a permit, (27) and violating the limits or conditions of a permit. (28) Generally, environmental criminal provisions require a mens rea of "knowing." (29) However, the CWA has some criminal provisions for negligent violations. (30) Courts have interpreted the "knowing" element for some CWA violations to mean a defendant need only have knowledge of the discharge of a pollutant. (31)
B. Liability
1. Corporate Liability
Each statute includes corporations in its definition of "persons" (32) who may be prosecuted for violations of environmental laws. (33) Corporate liability for environmental crimes is "based on the imputation of agents' or employees' conduct to a corporation, usually through the application of the doctrine of respondeat superior." (34) Corporations may also incur liability for the conduct of their subsidiaries (35) or predecessors. (36) The recent trend is to indict individual corporate officers instead of--or in addition to--the corporation itself for criminal violations of environmental law. (37)
A corporation will generally be held criminally liable for acts committed by an employee acting within the scope of his employment (38) and for the benefit of the corporation, (39) or under certain statutes for directly or indirectly supervising illegal dumping conducted by high-level employees. (40)
2. Individual Liability
Most criminal sanctions under the environmental statutes apply to any "person" who violates a regulation. (41) In the corporate arena, the "responsible corporate officer" doctrine generally imposes individual liability upon those with the responsibility or authority to prevent or correct the violation, (42) rather than those who actually commit the contaminating act. (43)
The degree to which the responsible corporate officer doctrine eliminates the mens rea requirement of various environmental statutes is currently unclear. The First Circuit has held that actual knowledge of the alleged misconduct by the corporation or its employee is required to incur liability under the RCRA. (44) Similarly, the Fifth Circuit requires that officers possess actual knowledge of the facts and law attendant to the violation to incur liability under the CWA. (45) The Third Circuit, assessing CERCLA liability, has required personal participation in the liability-creating activity. (46) In contrast, the Tenth Circuit has allowed a jury to infer both knowledge and control of environmental crimes on the part of corporate officers based on circumstantial evidence. (47) Similarly, the Eleventh Circuit has held that a jury could infer the knowledge requirement from a corporate officer's business plan and knowledge of environmental compliance problems. (48) The Second, Sixth, Seventh, Eighth, and Ninth Circuits have adopted comparatively liberal interpretations of the knowledge requirement. (49)
C. Common Defenses
1. Constitutional Defenses
Constitutional defenses to charges brought under environmental statutes have had limited success in the courts. (50) While dormant Commerce Clause challenges by landfill operators prosecuted under state law have had some success, (51) due process arguments against retroactive application of certain statutes (52) and sovereign immunity claims by federal facilities have been less successful. (53) Claims that the ESA violates the Takings Clause of the Fifth Amendment have been unsuccessful. (54) In addition, the Supreme Court has held that extending federal agency jurisdiction to isolated, non-navigable waters would violate the Commerce Clause. (55)
Other constitutional defenses have generally failed, including claims that the National Environmental Policy Act ("NEPA") (56) and other environmental statutes improperly delegated power to state and executive authorities, (57) as well as challenges under the Due Process Clause. (58)
Fourth Amendment claims challenging environmental inspections have also been largely ineffective. (59) For such challenge to be successful the defendant must establish that he had a legitimate expectation of privacy. (60) Moreover, the DOJ need only satisfy a low "probable cause" threshold to warrant criminal investigation of environmental offenses. (61) Likewise, administrative inspection and search warrants, like those granted under the National Pollution Discharge Elimination System ("NPDES"), (62) require less than criminal probable cause. (63) The EPA therefore has broad discretion to conduct investigations. (64)
Fifth Amendment Double Jeopardy Clause challenges to contemporaneous civil and criminal actions (65) are generally unsuccessful in staying criminal actions. (66) The imposition of civil fines subsequent to a criminal prosecution does not trigger the Double Jeopardy Clause, even if the civil fine is arguably punitive and penalizes the same conduct as the criminal prosecution. (67) The double jeopardy defense is also unavailable for defendants seeking to resist prosecution by separate sovereigns, pursuant to different statutory provisions, for the same conduct--for example, imposition of federal criminal sanctions following state assessment of civil fines that may be punitive in nature. (68)
Defendants have been similarly unsuccessful in arguing that the self-reporting, monitoring, and record-keeping provisions of the environmental statutes violate the Fifth Amendment protection against self-incrimination. (69) In addition, at least one defendant has unsuccessfully claimed that reporting requirements were invalid because of the Thirteenth Amendment's prohibition against involuntary servitude. (70)
2. Other Defenses
A potentially effective defense is that the defendant justifiably relied on and was affirmatively misled by administrative action. (71) A claim that the applicable regulation was not adopted pursuant to procedural requirements may also be successful. (72)
Courts have generally declined to recognize the defense of ignorance of permit requirements or lack of knowledge that a particular waste had been classified as hazardous. (73) However, the good faith efforts of a defendant may be considered in the assignment of penalties. (74)
Finally, defendants prosecuted for underlying environmental offenses pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO") (75) have asserted several unsuccessful defenses. (76) Although environmental crimes are not themselves predicate acts for a RICO prosecution, (77) such offenses may be committed in conjunction with chargeable RICO predicate acts, such as mail fraud. (78)
D. Voluntary Compliance and Sentencing
Although compliance is not a defense, the EPA (79) and the DOJ (80) look favorably upon voluntary compliance efforts by regulated entities. In 1996, the EPA implemented a policy making penalty reductions contingent upon self-auditing; (81) the policy encompassed infractions found in the course of an objective self-audit. (82) The EPA revised this policy in 2000 to clarify its language, expand its availability, and conformed its provisions to actual EPA practice. (83) The basic structure and terms of the policy, however, remain largely the same. (84) An organization must disclose any violation discovered within twenty-one days to qualify for penalty reduction. (85) The EPA will completely eliminate gravity-based (or punitive) penalties for companies or public agencies that voluntarily identify, disclose, and correct violations, and it will eliminate up to seventy-five percent of gravity-based penalties for those who meet most of the conditions. (86)
Moreover, except in situations where: (i) violations involve criminal acts of individual managers or employees; (ii) there exists a management philosophy condoning environmental violations; or (iii) there is conscious participation in, or willful blindness to, the violations by high-level corporate employees, the EPA will refrain from making criminal referrals to the DOJ if an entity acts in good faith to identify, disclose, and correct violations. (87)
Self-audits can be a double-edged sword. A thorough audit may become a prosecutor's roadmap, (88) as the DOJ retains full discretion to use voluntary audits for criminal prosecution. (89) Unless there is an independent reason to suspect a violation, the EPA will not request voluntary environmental audits to trigger enforcement actions. (90)
The EPA refuses to treat the environmental audit as privileged information protected from public disclosure. (91) Despite this controversial policy, however, safeguards such as the attorney-client privilege, work product privileges, and critical self-analysis privilege exist to ensure confidentiality of a corporate self-audit. (92) Additionally, some states provide statutory privileges, (93) and Congress has debated bills that would grant similar federal protection. (94)
E. Sentencing Guidelines
Sentencing for most federal environmental crimes is governed by Chapter Two, Section Q of the United States Sentencing Guidelines ("Guidelines"). (95) The CWA, CAA, RHA, and other statutes delineating environmental crimes explicitly provide that "knowing endangerment" is a criminal offense. (96) Knowing endangerment resulting from mishandling of hazardous or toxic substances warrants a base offense level of twenty-four under the Guidelines. (97) If death or serious bodily injury resulted, an unspecified upward departure may be warranted. (98)
A base offense level of eight will be awarded for the mishandling of, or unlawful transporting of, hazardous or toxic substances. (99) A sentencing enhancement may be given when: (i) actual environmental contamination occurs; (100) (ii) the offense resulted in substantial likelihood of death or serious bodily injury; (101) (iii) the public health was seriously endangered; (102) or (iv) a required permit was violated or not obtained. (103) The base offense level is six when an environmental pollutant was mishandled or unlawfully transported. (104)
The SDWA implicates section 2Q1.4, which designates the base offense level for tampering or threatening to tamper with a public water system on a sliding scale from sixteen to twenty-six. (105) Enhancements under this provision depend on the risk of harm, public inconvenience, repetitiveness of the violation, and the violator's purpose. (106)
Sentencing for violations of the ESA is governed by section 2Q2.1 of the Guidelines. (107) Enhancements depend upon whether the motivation for the violation was pecuniary gain, whether there was a pattern of similar violations, and the types of fish, wildlife, or plants involved. (1081)
III. CLEAN AIR ACT
Part A of this section examines Congress's purpose in enacting the Clean Air Act. (109) Part B provides an overview of the elements of criminal violations under the Clean Air Act. Part C addresses available defenses to a CAA violation; finally, Part D reviews the penalties imposed upon violators.
A. Purpose
The CAA was enacted in 1963 and developed into its current form after an extensive set of amendments were passed in 1970. (110) The general purpose of the CAA is to protect and enhance the quality of the nation's air resources to promote public health and welfare and the nation's productive capacity. (111) To that end, the CAA authorizes the EPA to establish National Ambient Air Quality Standards (NAAQS), (112) to protect the public health. The CAA has also been used to direct the states to establish state implementation plans (SIP's) for reducing air pollution. (113) With the exception of the Acid Deposition and Stratospheric Ozone programs, (114) the resolution of regulatory disputes under the CAA is guided by its stated goal of promoting public health. (115)
B. Elements of a CAA Offense
Criminal sanctions are available if the CAA standards are violated either knowingly or negligently. (116) Criminal sanctions apply to any person who: (i) violates the CAA by making false statements; (117) (ii) fails to notify or report as required, (118) (iii) tampers with EPA monitoring devices; (119) or (iv) fails to pay fees owed to the United States. (120) Criminal sanctions may be imposed upon both an organization (121) and the individuals responsible for the actions of the organization. (122)
1. Violation
The primary ways (123) in which an actor may violate the CAA include: (i) emitting criteria pollutants in excess of the National Ambient Air Quality Standards ("NAAQS"); (124) (ii) emitting hazardous air pollutants in excess of the applicable National Emission Standards For Hazardous Air Pollutants ("NESHAP"); (125) (iii) emitting pollutants in excess of the applicable New Source Performance Standards ("NSPS") for new or modified sources; (126) (iv) emitting sulfur dioxide in excess of its emissions limitation requirement; (127) or (v) producing or emitting an unauthorized ozone-affecting substance. (128) Failure to file reports or to comply with an EPA order are also a violation(s) of the CAA. (129)
a. Emissions Standards
Pollution standards under the CAA are administered in three basic stages. First, the EPA sets national emissions standards for clean air. Second, the states, and to a lesser extent Native American tribes, work with the EPA to develop a plan for meeting the national standards at the local and regional levels. Third, the EPA, states, and tribes cooperate to monitor and enforce CAA programs.
i. National Ambient Air Quality Standards
The CAA directs the EPA administrator to create primary (130) and secondary (131) national ambient air quality standards (NAAQS) (132) for certain noxious elements. (133)
The Act places the responsibility for the attainment and maintenance of the NAAQS with states and tribes; states are charged with implementing the standards through an EPA-approved State Implementation Plan ("SIP"). (134) In devising SIPs, states and tribes must consider the regional impact of their air emissions. (135) States are bound by their SIP and are not free to amend or repeal aspects of their SIP without prior EPA approval. (136) If EPA determines that a SIP will not bring the state into attainment, it must then devise a Federal Implementation Plan ("FIP"). (137) To avoid the costs associated with developing a FIP, however, the EPA will go to great lengths to help states achieve attainment.
ii. National Emission Standards for Hazardous Air Pollutants (138)
The CAA also directs the EPA to promulgate National Emissions Standards for Hazardous Air Pollutants ("NESHAPs") in order to regulate the emission of Hazardous Air Pollutants ("HAPs") (139) from new or existing (140) major or area sources. (141) The standards are required to provide an ample margin of safety to protect the public health. (142) The EPA can approve state programs that establish more stringent standards for HAPs. (143) As with NAAQS, state standards must be at least as stringent as those established by the EPA. (144)
iii. New Source Performance Standards
In order to control the emission of air pollutants (145) by newly constructed sources, the CAA directs the EPA to set New Source Performance Standards ("NSPS") for new (146) or modified (147) stationary sources (148) that are major (149) sources of air pollution. (150)
The EPA Administrator is authorized to identify categories of sources whose emissions pose a public health risk. Any new or modified source that falls within one of these categories must comply with NSPS. (151) NSPS's are enforced by the states through EPA-approved SIPs or by EPA itself. (152) Selection of a strategy to control NSPS's is accomplished through top-down "Best Available Control Technology" (BACT) analysis. (153)
iv. Acid Deposition Regulation
Congress has found that at least one causal factor in the formulation of "acid rain" (154) is the release of sulfur dioxide ("SO2") into the air. (155) The CAA sets sulfur SO2 allowances for emitting sources in order to reduce acid deposition and rain. (156) The regulations work by setting allowances for specific manufacturing facilities. (157) The program gradually reduces SO2 emissions through planned reductions divided into two phases. (158) Phase I requirements took effect on January 1, 1995, (159) affecting 110 mostly coal-burning electric utility plants located in twenty-one states. Phase II requirements took effect on January 1, 2000, and tightened the annual emissions limits (160) imposed on the original 110 plants and set regulations on smaller, existing plants and new utility units.
v. Stratospheric Ozone Protection
Congress expanded the CAA in an attempt to deal with the problems associated with stratospheric ozone depletion.161 The program creates two classes of substances based on their ozone depletion potential162 and creates a plan to phase out their production and consumption.163 Similar to the acid rain program, the regulations establish allowances for individual manufacturing facilities. (164)
b. EPA Monitoring of Emissions Standards
Under the CAA, the EPA Administrator may require any operator of an air pollution source to maintain records, install monitoring equipment, allow the sampling of emissions, provide the EPA with relevant information, or submit compliance certifications. (165) Furthermore, any operator of a pollution source must allow the EPA or its authorized representative to have access to additional records upon request. (166)
Failure to comply with CAA requirements may result in administrative, civil, and criminal sanctions. (167) The government has discretion to decide whether to proceed criminally or civilly under the CAA. (168)
In order to monitor emissions standards, administrative warrants may be issued based on suspicion less than criminal probable cause. (169) The EPA need only demonstrate that Congress authorized the investigation and that the documents sought are relevant to the investigation and adequately described. (170) The EPA may request additional relevant records from a source if the EPA first obtains an administrative warrant.
2. Intent
A criminal violation results if a source knowingly (171) violates any provision of the CAA, including those standards listed above. (172) Courts interpret "knowingly" to refer to knowledge of facts. (173) The government, therefore, need only prove that the defendant was aware of the facts leading to a CAA violation, and not that the defendant was actually aware that his conduct violated the CAA. (174)
The statute also criminalizes negligent and knowing endangerment. (175) A person who negligently or knowingly places another in danger of death or serious bodily injury by releasing hazardous air pollutants can be imprisoned, fined, or both. (176)
C. Defenses
The only criminal violations of the CAA with specific statutory defenses are those violations involving knowing endangerment. "All general defenses, affirmative defenses, and bars to prosecution applicable to other federal crimes apply" to the crime of knowing endangerment. (177) In addition, if one freely consents to the dangers posed by hazardous air pollutant emissions and those emissions are reasonably foreseeable hazards of certain professions, medical treatment, or scientific experimentation, such consent is an affirmative defense to knowing endangerment. (178)
Courts have differed as to whether claims of technological or economic infeasibility are valid defenses to criminal enforcement under the CAA. (179) However, technological and economic infeasibility, as well as good faith compliance efforts, must be considered by courts in assessing penalties, even when the court is unwilling to consider infeasibility as a defense. (180) Governmental delay in bringing an action is not a defense, but actions are generally subject to a five year statute of limitations that begins on the last day of a violation. (181) Commentators have suggested that the most effective defense is to argue, at the pre-indictment stage, that the regulations were ambiguous. (182)
Unsuccessful defenses include claims that there was a pending NAAQS variance application (183) and that the violator has initiated insolvency proceedings. (184) Constitutional defenses of double jeopardy based on prosecution under the CAA and other statutes for the same conduct have failed as well. (185) Both state agencies and the EPA, as separate sovereigns, may pursue claims against a violator for the same conduct. (186) In addition, criminal prosecutions against an employer do not relieve an employee of liability, by way of double jeopardy, even in closely held S-corporations. (187) Fourth (188) and Fifth (189) Amendment challenges to the CAA's disclosure requirements have also, historically, failed.
D. Penalties
Willful violations under the CAA for failure to comply with emission standards, failure to pay assessed fines, or failure adequately to report and monitor are punishable by criminal fines under Title 18, up to five years in prison, or both. (190) Furthermore, a criminal fine under Title 18, up to two years in prison, or both, may be assessed for the following "knowingly" committed acts: (i) falsifying, concealing, or altering material information in required CAA reports; (ii) failing to report or notify as required by the CAA; or (iii) tampering with EPA monitoring devices. (191) A knowing failure to pay a fee required under the CAA is punishable by a Title 18 fine, up to one year in prison, or both. (192)
Additional criminal sanctions apply to NESHAP violations. (193) A negligent release of hazardous air pollutants can result in a criminal fine under Title 18, up to one year in prison, or both. (194) A knowing release of hazardous air pollutants in violation of NESHAP carries different penalties for individual violators and violating organizations. (195) An individual violator is subject to a Title 18 criminal fine, up to fifteen years in prison, or both. (196) Organizations that violate NESHAP are subject to a $1,000,000 fine for each violation. (197)
IV. CLEAN WATER ACT
Part A of this section discusses the legislative rationale for the Clean Water Act ("CWA"). (198) Part B examines CWA violations. Part C highlights defenses to CWA violations. Finally, Part D looks at the CWA's penalty provisions.
A. Purpose
The CWA was enacted in 1977 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by minimizing the effects of water pollution. (199) To achieve its purpose, the CWA seeks to eliminate discharges of pollutants, prohibit the discharge of toxic pollutants, provide federal assistance to publicly-owned wastewater treatment facilities, develop area-wide treatment management planning processes to assure adequate control of sources, conduct major research to develop technology to eliminate the discharge of pollutants into national waters, and implement programs for the control of nonpoint pollution. (200)
B. Elements of a CWA Offense
Criminal penalties may be assessed against any "person" (201) who fails to comply with the statutory requirements of the CWA. (202) Falsifying or misrepresenting material information and tampering with monitoring equipment required by the CWA are also criminal violations. (203)
1. Violation
The CWA establishes programs to regulate the discharge of pollutants into the navigable waters of the United States. (204) In the past, courts have broadly construed the term "navigable waters" to include all bodies of water that Congress could regulate under the Commerce Clause. (205) However, the Supreme Court recently constructed two tests that limited the jurisdiction of the CWA. It is unclear which test is the standard lower courts must follow. These tests limited the definition of "navigable waters" either by requiring waters to possess "a significant nexus to waters that are navigable in fact or that could reasonably be made so" or by excluding waters that either are not "relatively permanent" (206) and wetlands that have no "continuous surface connection to bodies that are waters of the United States." (207)
Traditionally, the CWA's effluent limitations standards have been applied only to discharges from point sources. (208) However, environmental advocates (209) have pressed for a broader scope, arguing effluent limitation standards additionally should apply to non-point sources. (210) To date, no court has adopted this broader interpretation. (211)
The core sections of the CWA's enforcement scheme establish effluent limitations, (212) water quality standards, (213) and permit programs regulating discharges of pollutants; (214) impose discharge reporting and monitoring requirements; (215) mandate the cleanup of oil and hazardous substances; (216) and prohibit impermissible dredging or filling and the discharge of sewage sludge. (217)
The failure to comply with any of these sections may lead to criminal penalties. (218) Violations generally involve a failure to comply with regulations that prohibit or regulate the discharge of pollutants; (219) failure to obtain a permit or abide by the terms and conditions of a permit; (220) or failure to adhere to statutory notification, record keeping, or monitoring requirements. (221)
a. Effluent Limitations and Water Quality Standards; National Pollutant Discharge Elimination System ("NPDES") Permit Program
The CWA establishes a comprehensive regime of effluent limitation and water quality standards (222) that prohibits the "discharge of any pollutant," (223) "by any person" (224) into navigable waters of the United States, (225) unless authorized by a NPDES permit. (226) The CWA applies only to discharges from point sources, defined as "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged except agricultural storm water discharges and return flows from irrigated agriculture." (227)
NPDES permits set source-specific effluent limitations. (228) The EPA or the states can issue NPDES permits. (229) With the exception of discharges of toxic pollutants injurious to human health, (230) compliance with an NPDES permit constitutes compliance with the CWA. (231)
The CWA also requires pretreatment of toxic pollutants (232) introduced into Publicly Owned Treatment Works ("POTWs"). (233) In addition, the CWA requires the EPA to develop and promulgate industry-wide federal effluent limitation standards, which limit the discharge of pollutants into POTWs. (234)
The EPA applies stringent national standards of performance to "new sources" of water pollution. (235) To maintain the integrity of a body of water and ensure that water quality standards are achieved, (236) EPA may modify national effluent limitations applicable to a specific portion of a navigable water. (237)
b. Monitoring, Reporting, and Regulatory Searches
Owners and operators of point sources must measure their pollutant discharges and submit "Discharge Monitoring Reports" ("DMRs"). (238) The EPA may require owners and operators to establish extensive monitoring and reporting discharge procedures. (239) To enforce these provisions, EPA officials may conduct warrantless searches of any premises where an effluent source is located in order to gain access to or copy any required records, inspect required monitoring equipment and methods, or take samples of any effluents that the owner or operator is required to test. (240)
c. Discharge of Oil and Hazardous Substances
The CWA prohibits the unauthorized discharge of oil (241) or hazardous substances (242) in "harmful" quantities (243) into or onto the waters of the United States. (244) In addition, any "person in charge" (245) of a vessel or onshore or offshore facility (246) involved in a discharge of oil or any hazardous substance must report the discharge immediately to the appropriate government agency. (247) Failure to do so immediately upon discovery of the discharge is a criminal violation. (248) In 1990, the criminal provisions of the CWA were amended, making the unauthorized discharge of oil a misdemeanor rather than a felony. (249)
d. Prohibition on Dredge and Fill Activities
The United States Army Corps of Engineers administers a permit program controlling the discharge of dredged or fill material into the navigable waters of the United States. (250) The most controversial impact of this section has been the inclusion of "wetlands" within the definition of "waters of the United States." In Rapanos v. United States, the Supreme Court significantly limited those wetlands to which the CWA applies. The CWA applies only to those wetlands that are both "adjacent to 'waters of the United States' in their own right" and have "a continuous surface connection to that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." (251)
2. Intent
The CWA establishes three levels of criminal culpability: (i) negligence; (ii) knowing violation; and (iii) knowing endangerment. (252) Negligent conduct may render a defendant criminally culpable even if he did not realize that the action might lead to a CWA violation. (253)
Generally, circuits addressing the "knowing" mens rea requirement for CWA offenses (254) have rejected arguments that the government must prove a defendant knew that the CWA was being violated. (255) Knowledge of a violation may be inferred on the basis of circumstantial evidence, (256) but the defendant must have knowledge of the violation for each element of the offense. (257) Requiring knowledge for each essential element of an offense preserves the mistake-of-fact defense. (258)
A person who commits a violation knowing that such violation places another person in imminent danger (259) of death or serious bodily injury (260) commits the crime of knowing endangerment. (261) A person must have actual belief or awareness that the action placed another individual in imminent danger of death or serious bodily injury; knowledge possessed by one person may not be attributed to another. (262) Circumstantial evidence may be used to assess actual knowledge or belief, including affirmative steps taken to shield oneself from information. (263)
C. Defenses
The CWA sets forth several complete and partial defenses. (264) Consent of the person endangered is an affirmative defense for the charge of knowing endangerment, if the danger and conduct were reasonably foreseeable hazards of an occupation, medical treatment, or scientific experiment. (265) Additionally, if a single operational upset--such as a storm causing unauthorized discharge from a plant's works--is the cause of simultaneous violations of multiple pollutant parameters, the government must treat these violations as a single violation. (266)
The CWA's oil and hazardous waste discharge notification requirement (267) provides limited use immunity, preventing use of such notification information in criminal proceedings. (268) This immunity extends from the CWA to other environmental statutes. (269) However, failure to make a timely notification of the discharge may estop an immunity claim. (270)
A common defense strategy is to demonstrate compliance with one's NPDES permit because "compliance with a permit is generally deemed to constitute compliance with [CWA's] requirements." (271)
A violator charged with a non-permitted discharge may argue that the government affirmatively misled him into believing a permit was not required. (272) Laboratory error in effluent monitoring has also been a successful defense to charges of NPDES permit violations. (273)
There is no de minimis violation defense; the CWA applies to any discharge regardless of the amount. (274) The presence of harm is immaterial. (275) Intent and good faith are also irrelevant in determining liability. (276) Although absence of fault may mitigate penalties, it does not absolve a violator from liability. (277) Similarly, business necessity is not available as a defense. (278) Finally, attempts to challenge regulatory definitions or interpretations of provisions are generally unsuccessful due to the deference given by courts to agency interpretations. (279)
The CWA has withstood a broad variety of constitutional challenges. (280) The EPA has broad discretion to decide whether to pursue enforcement against a violator and, if so, whether through criminal or civil proceedings. (281) There is no requirement that a violator be given notice of alleged violations prior to the initiation of proceedings. (282)
D. Penalties
1. Penalties Under the CWA
The CWA establishes four levels of criminal penalties based on whether a violation was negligent, knowing, involved knowing endangerment, or involved knowing falsification of information or tampering with monitoring equipment. (283) Each level establishes two penalty ranges, one for first time violators and a second, higher level, for persons previously convicted of a CWA violation. (284) The alternative fine statute, which can apply to any provision of the CWA, authorizes a fine "for each day of violation." (285)
a. Negligent Violations
Criminal fines for first time negligent violations range from $2,500 to $25,000 per day, per violation. (286) Alternatively, or in addition to a fine, a violator may be imprisoned for up to one year. (287) Subsequent offenses double the maximum penalty. (288) Fines and punishments for negligence are not considered excessive or disproportionate. (289)
b. Knowing Violations
The CWA provides for a higher level of penalties for knowing violations. Fines fall between $5,000 and $50,000 per day of violation and a prison term of up to three years may be imposed. (290) Subsequent offenses double the maximum penalty. (291) In addition, a company convicted of a criminal offense under the CWA may not provide contract services for the government. (292)
c. Knowing Endangerment
An individual convicted of "knowing endangerment" is subject to a fine of up to $250,000, fifteen years imprisonment, or both. (293) An "organization" (294) may be assessed a fine of up to $1,000,000. (295) Double penalties may be assessed for subsequent violations. (296)
d. False Statements, Representations, and Tampering
A maximum fine of $10,000, imprisonment for not more than two years, or both may be imposed for knowingly making false statements, representations, certifications, or tampering with monitoring equipment required by the CWA. (297) Second convictions are subject to double penalties. (298) Failure to notify an appropriate federal agency of a discharge of oil or hazardous substance may result in a $10,000 fine, a five-year prison term, or both. (299)
2. Penalties Under the Sentencing Guidelines (300)
Penalties for violations of the CWA fall within [section] 2Q1 of the Guidelines. (301) Penalties for the discharge of hazardous or toxic substances and record-keeping violations involving those substances have a base offense level of eight. (302) The offense level may be increased by six steps for ongoing, continuous, and repetitive discharges, releases, or emissions of a hazardous or toxic substance or pesticide into the environment. (303) If the offense involves a discharge, release, or emission of a hazardous or toxic substance or pesticide, the offense level may be increased by four steps. (304) If the offense results in a substantial likelihood of death or serious bodily injury, the offense level may be increased by nine steps. (305) Penalties for knowing endangerment have a base offense level of twenty-four. (306) If the offense results in disruption of public utilities or evacuation of a community, or if cleanup requires a substantial expenditure, the offense level may be increased by four steps. (307) If the offense involves transportation, treatment, storage, or disposal without a permit or in violation of a permit, the offense level may be increased by four steps. (308) If a record-keeping offense indicates an effort to conceal a substantive environmental offense, the Guidelines indicate that the offense level for the substantive offense should be used. (309) If there is merely a record-keeping or reporting violation, the offense level is to be decreased by two steps. (310)
For discharges of other pollutants, the offense level begins at six with similar adjustments as applied to hazardous or toxic substances. (311) For tampering with a public water system, the base offense level is twenty-six. (312)
V. THE RIVERS AND HARBORS ACT OF 1899
Part A of this section sets forth the purpose of the Rivers and Harbors Act of 1899 ("RHA"). (313) Part B examines the elements of the RHA. Part C highlights the defenses to a charge. Finally, Part D addresses the penalties under the RHA.
A. Purpose
The purpose of the RHA is to protect the integrity of navigable waters (314) and the viability of commercial shipping activity (315) by regulating deposits of refuse matter. (316)
B. Elements of an RHA Offense
1. Violation
The RHA makes it unlawful to throw, discharge, or deposit refuse matter of any kind (317) into the navigable waters of the United States without a permit from the EPA. (318) It also bans the deposit of refuse on the banks of any tributary where it is likely that the refuse will wash into any navigable water. (319)
Like the CWA, (320) the RHA applies to point sources operating without permits or operating in violation of permits. (321) The RHA, however, also regulates non-point sources. (322)
Each act of depositing refuse is punishable, regardless of type or amount. (323) The refuse need not be an obstruction to navigation. (324) Creating an unauthorized obstruction is separately punishable. (325)
2. Intent
Some courts have imposed strict liability for the criminal provisions of the RHA, while other courts have required general intent or negligence. (326) The Supreme Court has reserved the question of whether a specific mens rea is required. (327) Because the statute is directed at "public welfare offenses," most courts interpret the RHA broadly. (328)
C. Defenses
Some courts, unwilling to impose strict liability, have entertained defenses such as sabotage, theft, and accidental causes. (329) Defendants have avoided conviction by showing that a third party was responsible. (330) Defendants may also argue that they were "affirmatively misled" by administrative agencies (331) or that estoppel applies. (332)
Compliance with water quality standards does not protect defendants from prosecution under the RHA, even in the absence of an explicit permit program. (333) There is also no "generalized due care" defense; (334) it is not enough that the defendant behaved consistently with the industry practice or commonly accepted standards. (335)
The courts have allowed limited use immunity for defendants who report violations of hazardous waste discharges under the CWA. (336)
D. Penalties
A criminal conviction under the RHA is a misdemeanor and can result in a fine of at least $500 but not more than $25,000, imprisonment of thirty days to one year, or both. (337)
Penalties for violation of the RHA are governed by section 2Q of the Sentencing Guidelines. (338) For hazardous or toxic pollutants, the base offense level is eight. (339) The offense level can be adjusted upward by six for ongoing, continuous, and repetitive discharges, releases, or emissions of a hazardous or toxic substance or pesticide into the environment. (340) For other pollutants, the offense level begins at six with similar adjustments as applied to hazardous or toxic substances. (341)
Because the penalties applicable under the RHA are less severe than those applicable under the CWA, (342) defendants often plea bargain to RHA violations to avoid CWA convictions. (343)
VI. SAFE DRINKING WATER ACT
Part A of this section explains the purpose of the Safe Drinking Water Act ("SDWA"). (344) Part B presents programs under the SDWA, including the elements of specific offenses and the penalties for violations.
A. Purpose
Congress passed the SDWA in 1974 (and amended it in 1986 and 1996) (345) to regulate harmful contaminants in public water systems and the injection of contaminants into underground sources of public drinking water. (346) SDWA authorizes the EPA to implement national health-based drinking water standards. (347) The House of Representatives stated the "purpose of the legislation is to assure that water systems serving the public meet minimum national standards for protection of public health." (348)
B. Elements of SDWA Offenses
Under the SDWA, the EPA is required to establish national primary drinking water regulations ("NPDWR") (349) and dischargers must obtain permits for underground injections of contaminants ("UIC"). (350) The SDWA also regulates the amount of lead found in drinking water coolers (351) and prohibits tampering with public water systems. (352) The SDWA also requires lead-free pipe and plumbing fixtures in facilities that provide drinking water. (353) Each of the primary SDWA violations' (UIC, regulation of drinking water coolers, and ban on tampering with public water systems) elements and applicable penalties are described separately in this section.
1. Underground Injection of Contaminants
The SDWA requires the EPA to establish minimum standards for UIC programs. (354) In addition to constituting a violation of the SDWA, the presence of a contaminant may also indicate a failure to comply with NPDWRs. (355) A state may secure primary enforcement authority for the regulation of underground water sources if the EPA approves the state's UIC program. (356)
a. Elements of the Offense
Willful violators (357) may be subject to criminal penalties. (358) Criminal punishment may also be appropriate for knowingly making false statements regarding UICs. (359)
b. Penalties
Willful violations carry a prison term of up to three years, a criminal fine in accordance with Title 18 of the United States Code, or both. (360) The Sentencing Guidelines prescribe a base offense level of six or eight, depending on the substances involved, which correspond to fines of $500 to $5,000 and $1,000 to $10,000, respectively. (361) The offense levels may be increased or decreased depending on the circumstances of the case. (362)
2. Regulation of Drinking Water Coolers
Congress amended the SDWA in 1988 to address problems caused by lead pollution of drinking water coolers. (363) EPA was directed to identify and publish a list of brands and models of water...
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