Environmental crimes.

Author:Fissell, Brenner
Position:IV. Clean Water Act C. Defenses through XI. Endangered Species Act, with footnotes, p. 656-701 - Twenty-Seventh Annual Survey of White Collar Crime
 
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  1. Defenses

    The CWA sets forth several complete and partial defenses. (275) 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. (276) 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. (277)

    The CWA's oil and hazardous waste discharge notification requirement (278) provides limited use immunity, preventing use of such notification information in criminal proceedings. (279) This immunity extends from the CWA to other environmental statutes. (280) However, failure to make a timely notification of the discharge may estop an immunity claim. (281)

    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." (282)

    A violator charged with a non-permitted discharge may argue that the government affirmatively misled him into believing a permit was not required. (283) Laboratory error in effluent monitoring has also been a successful defense to charges of NPDES permit violations. (284)

    There is no de minimis violation defense; the CWA applies to any discharge regardless of the amount. (285) The presence of harm is immaterial. (286) Intent and good faith are also irrelevant in determining liability. (287) Acting in good faith does not absolve a violator from liability, although it may mitigate the penalties assessed. (288) Similarly, business necessity is not available as a defense. (289) Finally, attempts to challenge regulatory definitions or interpretations of provisions are generally unsuccessful due to the deference given by courts to agency interpretations. (290)

    The CWA has withstood a broad variety of constitutional challenges. (291) The EPA has broad discretion to decide whether to pursue enforcement against a violator and, if so, whether through criminal or civil proceedings. (292) There is no requirement that a violator be given notice of alleged violations prior to the initiation of proceedings. (293)

  2. 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. (294) Each level establishes two penalty ranges, one for first-time violators and a second, higher level, for persons previously convicted of a CWA violation. (295) The alternative fine statute, which can apply to any provision of the CWA, authorizes a fine "for each day of violation." (296)

      1. Negligent Violations

        Criminal fines for first time negligent violations range from $2500 to $25,000 per day, per violation. (297) Alternatively, or in addition to a fine, a violator may be imprisoned for up to one year. (298) Subsequent offenses double the maximum penalty. (299) Fines and punishments for negligence have not been considered excessive or disproportionate. (300)

      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. (301) Subsequent offenses double the maximum penalty. (302) In addition, a company convicted of a criminal offense under the CWA may not provide contract services for the government. (303)

      3. Knowing Endangerment

        An individual convicted of "knowing endangerment" is subject to a fine of up to $250,000, fifteen years imprisonment, or both. (304) An "organization" (305) may be assessed a fine of up to $1,000,000. (306) Double penalties may be assessed for subsequent violations. (307)

      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. (308) Second convictions are subject to double penalties. (309) 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. (310)

    2. Penalties Under the Sentencing Guidelines (311)

      Penalties for violations of the CWA fall within section 2Q1 of the Guidelines. (312) Penalties for the discharge of hazardous or toxic substances and record-keeping violations involving those substances have a base offense level of eight. (313) The offense level may be increased by six levels for ongoing, continuous, and repetitive discharges, releases, or emissions of a hazardous or toxic substance or pesticide into the environment. (314) 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. (315) If the offense results in a substantial likelihood of death or serious bodily injury, the offense level may be increased by nine levels. (316) Penalties for knowing endangerment have a base offense level of twenty-four. (317) 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 levels. (318) 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 levels. (319) 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. (320) If there is merely a record- keeping or reporting violation, the offense level is to be decreased by two steps. (321)

      For discharges of other pollutants, the offense level begins at six, with adjustments similar to those applied to hazardous or toxic substances. (322) For tampering with a public water system, the base offense level is twenty-six. (323)

      1. 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"). (324) 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.

  3. Purpose

    The purpose of the RHA is to protect the integrity of navigable waters (325) and the viability of commercial shipping activity (326) by regulating deposits of refuse matter. (327)

  4. Elements of an RHA Offense

    1. Violation

      The RHA makes it unlawful to throw, discharge, or deposit refuse matter of any kind (328) into the navigable waters of the United States without a permit from the EPA. (329) 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. (330) Like the CWA, (331) the RHA applies to point sources operating without permits or operating in violation of permits. (332) The RHA, however, also regulates non- point sources. (333)

      Each act of depositing refuse is punishable, regardless of type or amount. (334) The refuse need not be an obstruction to navigation. (335) Creating an unauthorized obstruction is separately punishable. (336)

    2. Intent

      Some courts have imposed strict liability for the criminal provisions of the RHA, while other courts have required general intent or negligence. (337) The Supreme Court has reserved the question of whether a specific mens rea is required. (338) Because the statute is directed at "public welfare offenses," most courts interpret the RHA broadly. (339)

  5. Defenses

    Courts have entertained defenses such as sabotage, theft, and accidental causes. (340) Defendants have avoided conviction by showing that a third party was responsible. (341) Defendants may also argue that they were "affirmatively misled" by administrative agencies (342) or that estoppel applies. (343)

    Compliance with water quality standards does not protect defendants from prosecution under the RHA, even in the absence of an explicit permit program. (344) There is also no "generalized due care" defense; (345) it is not enough that the defendant behaved consistently with the industry practice or commonly accepted standards. (346)

    The courts have allowed limited use immunity for defendants who report violations of hazardous waste discharges under the CWA. (347)

  6. 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. (348)

    Penalties for violation of the RHA are governed by section 2Q of the Guidelines. (349) For hazardous or toxic pollutants, the base offense level is eight. (350) The offense level can be adjusted upward by six points for ongoing, continuous, and repetitive discharges, releases, or emissions of a hazardous or toxic substance or pesticide into the environment. (351) For other pollutants, the offense level begins at six with similar adjustments as applied to hazardous or toxic substances. (352)

    Because the penalties applicable under the RHA are less severe than those applicable under the CWA, (353) defendants often plea bargain to RHA violations to avoid CWA convictions. (354)

    1. SAFE DRINKING WATER ACT

    Part A of this Section explains the purpose of the Safe Drinking Water Act ("SDWA"). (355) Part B presents programs under the SDWA, including the elements of specific offenses and the penalties for violations.

  7. Purpose

    Congress passed the SDWA in 1974 (and amended it in 1986 and 1996) (356) to regulate harmful contaminants in public water systems and the injection of contaminants into underground sources of public drinking water. (357) SDWA...

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