Environmental crimes.

• Author: Crooks, Ashley
• Position: IV. Clean Water Act B. Elements of a CWA Offense 1. Violation d. Prohibition on Dredge and Fill Activities through XI. Endangered Species Act, with footnotes, p. 1099-1147 - Annual Survey of White Collar Crime

4. 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. (281) 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. Under the majority rule in Rapanos, the CWA applies 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." (282)

   2. Intent

      The CWA establishes three levels of criminal culpability: (i) negligence, (ii) knowing violation, and (iii) knowing endangerment. (283) Negligent conduct may render a defendant criminally culpable even if he did not realize that the action might lead to a CWA violation. (284)

      Generally, circuits addressing the "knowing" mens rea requirement for CWA offenses (285) have rejected arguments that the government must prove a defendant knew that the CWA was being violated. (286) Knowledge of a violation may be inferred on the basis of circumstantial evidence, (287) but the proof of the defendant's knowledge of the violation must be established for each element of the offense. (288) Requiring knowledge for each essential element of an offense preserves the mistake-of-fact defense. (289)

      A person who commits a violation knowing that such violation places another person in imminent danger (290) of death or serious bodily injury (291) commits a crime of knowing endangerment. (292) 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. (293) Circumstantial evidence may be used to assess actual knowledge or belief, including affirmative actions taken to protect oneself from information pertaining to a violation. (294)

      3. Defenses

         The CWA sets forth several complete and partial defenses. (295) 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. (296)

         The CWA's oil and hazardous waste discharge notification requirement (297) provides limited use immunity, preventing use of such notification information in criminal proceedings. (298) This immunity extends from the CWA to other environmental statutes. (299) However, failure to make a timely notification of the discharge may estop an immunity claim. (300)

         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." (301) A violator charged with a non- permitted discharge may argue that the government affirmatively misled him into believing a permit was not required. (302) Additionally, although laboratory error in effluent monitoring has been a successful defense to charges of NPDES permit violations, this defense may result in liability for laboratory monitoring violations. (303)

         Generally, there is no de minimis violation defense, as the CWA applies to any discharge regardless of the amount, (304) and regardless of the presence of harm. (305) If a single operational upset--such as a storm causing unauthorized discharge from a plant--is the cause of simultaneous violations of multiple pollutant parameters, the government must treat these violations as a single violation. (306) Intent and good faith are also irrelevant in determining liability. (307) Acting in good faith does not absolve a violator from liability, although it may mitigate the penalties assessed. (308) Business necessity is also unavailable as a defense. (309) Finally, attempts to challenge regulatory definitions or interpretations of provisions are generally unsuccessful due to courts' deference to agency interpretations. (310)

         The CWA has withstood a wide variety of constitutional challenges. (311) The EPA has broad discretion to decide whether to pursue enforcement against a violator and, if so, whether through criminal or civil proceedings. (312) There is no requirement that a violator be given notice of alleged violations prior to the initiation of proceedings. (313)

      4. 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. (314) These four penalty levels correlate with the three types of intent discussed above, with an additional level added for knowingly falsifying information or tampering with results. Each level establishes two penalty ranges, one for first-time violators and a second, higher level, for persons previously convicted of a CWA violation. (315) The alternative fine statute, which can apply to any provision of the CWA, authorizes a fine "for each day of violation." (316) Additionally, any person convicted of a criminal offense under the CWA may not enter into any contract with a federal agency. (317)

1. Negligent Violations

   Criminal fines for first time negligent violations range from $2500 to $25,000 per day, per violation. (318) Alternatively, or in addition to a fine, a violator may be imprisoned for up to one year. (319) Subsequent offenses double the maximum penalty. (320) Fines and punishments for negligence have not been considered excessive or disproportionate. (321)

2. Knowing Violations

   The CWA provides for a higher level of penalties for knowing violations. Fines fall between $5000 and $50,000 per day of violation, and a prison term of up to three years may be imposed. (322) Subsequent offenses double the maximum penalty. (323)

3. Knowing Endangerment

   An individual convicted of "knowing endangerment" is subject to a fine of up to $250,000, fifteen years imprisonment, or both. (324) An "organization" (325) may be assessed a fine of up to $1,000,000. (326) If a person is convicted under this section after a previous conviction under the same section, the maximum statutory punishment for fines and imprisonment shall be doubled. (327)

4. 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. (328) Second convictions are subject to double maximum penalties. (329) 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. (330)

   2. Penalties Under the Sentencing Guidelines

      Penalties for violations of the CWA fall within section 2Q1 of the Guidelines. (331) Penalties for the discharge of hazardous or toxic substances and recordkeeping violations involving those substances have a base offense level of eight. (332) The offense level may be increased by six levels for "an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment ...," (333) 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 levels. (334) If the offense results in a "substantial likelihood of death or serious bodily injury," the offense level may be increased by nine levels. (335)

      Penalties for knowing endangerment have a base offense level of twenty-four. (336) "If the offense result[s] in disruption of public utilities or evacuation of a community, or if cleanup require[s] a substantial expenditure," the offense level may be increased by four levels. (337) "If the offense involve[s] transportation, treatment, storage, or disposal without a permit or in violation of a permit," the offense level may be increased by four levels. (338)

      If a recordkeeping offense indicates an effort to hide a substantive environmental offense, the offense level for the substantive offense should be used. (339) If there is a simple recordkeeping or reporting violation, the offense level is to be decreased by two levels. (340)

      For discharges of other pollutants, the offense level begins at six, with adjustments similar to those applied to hazardous or toxic substances. (341) For tampering with a public water system, the base offense level is twenty-six. (342)

      5. THE RIVERS AND HARBORS ACT OF 1899

      Part A of this Section explains the purpose of the Rivers and Harbors Act of 1899 ("RHA"). (343) 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.

      1. Purpose

         The purpose of the RHA is to preserve the integrity of navigable waters, (344) protect the viability of commercial shipping activity, (345) and prevent the obstruction of navigable waters (346) by regulating deposits of refuse matter. (347)

      2. Elements of an RHA Offense

   1. Violation

      The RHA makes it unlawful to throw, discharge, or deposit refuse matter of any kind into the navigable waters of the United States (348) without a permit from the EPA. (349) 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. (350)

      Like the CWA, (351) the RHA applies to point sources operating without permits or in violation of permits. (352) The RHA, however, also regulates nonpoint sources. (353)

      Each act of depositing refuse is punishable, regardless of type or amount. (354) The refuse need not be an obstruction to navigation. (355) Creating an...