Environmental crimes.

Author:Dioguardi, Christopher
Position:Continuation of IV. Clean Water Act B. Elements of a CWA Offense through IX. The Federal Insecticide, Fungicide, and Rodenticide Act, with footnotes, p. 1017-1055 - Thirtieth Annual Survey of White Collar Crime
 
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i. 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 (243) that prohibits the "discharge of any pollutant" (244) "by any person" (245) into navigable waters of the United States, (246) unless authorized by an NPDES permit. (247) Again, the CWA penalties apply only to discharges from "point sources." (248)

"Discharge of a pollutant" is defined as "any addition of any pollutant ... from any point source." (249) This definition "includes within its reach point sources that do not themselves generate pollutants," but merely transport them, (250) though some ambiguity exists as to what precisely this means. (251) In addition, although the CWA focuses principally on the control of pollutant discharges, it does not preclude states from exercising broader means of controlling water quality. (252)

NPDES permits set source-specific effluent limitations. (253) Effluent limitations set forth in NPDES permits are derived primarily from state water quality and federal effluent limitation standards applicable to specific industries. (254) Ordinarily, provision terms include limitations on the amount, rate, or concentration of a specific pollutant. (255) Permit limitations will usually require the use of the best available control technology. (256) The Ninth Circuit, however, has held that the EPA may issue NPDES permits that do not specify numeric discharge limitations. (257)

Both the EPA and the states can issue NPDES permits. (258) Currently, only the District of Columbia, Idaho, Massachusetts, New Hampshire, and New Mexico do not have their own EPA-approved NPDES permitting program. (259) States are allowed to impose stricter standards for discharge of pollutants than those mandated by the federal government. (260) Transfer of the permit system to the states still requires EPA oversight and approval. (261)

With the exception of discharges of toxic pollutants injurious to human health, compliance with an NPDES permit constitutes compliance with the CWA. (262) "Pollution" is defined as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." (263) "Man-induced" refers to the effect of a discharge on receiving water, even where the discharge is not altered. (264) "Pollutant" is broadly defined to include "dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." (265) The CWA also bans discharges of certain pollutants, specifically radiological, chemical, or biological warfare agents, high-level radioactive wastes, and medical wastes. (266) Several statutory and judicial exceptions to "pollution" exist. (267)

The CWA also requires pretreatment of toxic pollutants (268) introduced into Publicly Owned Treatment Works ("POTWs"). (269) 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. (270) However, the lack of a published effluent limitation standard for a particular type of pollutant does not preclude finding that a party has violated the CWA if that party is not operating under, or has not applied for, an NPDES permit. (271)

The EPA applies stringent national standards of performance to "new sources" of water pollution. (272) Compliance requires the application of the "best available demonstrated control technology, processes [or] operating methods" to the source of discharge. (273) The EPA Administrator has the authority to mandate the use of technology and methods with respect to new sources that will result in the "greatest degree of effluent reduction ... including, where practicable, a standard permitting no discharge of pollutants." (274) This contrasts with the more lenient requirements for existing sources, which were initially based on the application of the "best practicable control technology" (by 1977) or the "best available technology economically achievable" (by 1987). (275) Unlike the existing source standards, which allowed variances, the standards for new sources represent absolute prohibitions without variances for individual plants. (276)

To maintain the integrity of a body of water and ensure that water quality standards are achieved, (277) the EPA may modify national effluent limitations applicable to a specific portion of a navigable water. (278)

ii. Monitoring, Reporting, and Regulatory Searches

Owners and operators of point sources must measure their pollutant discharges and submit "Discharge Monitoring Reports" ("DMRs"). (279) NPDES permits deter mine the frequency of DMRs, and they differ depending on the situation. (280) A DMR showing discharge in excess of NPDES limits can be conclusive evidence of a violation. (281)

The EPA can require owners and operators to establish extensive monitoring and reporting discharge procedures. (282) To enforce these provisions, EPA officials can 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. (283)

c. Discharge of Oil and Hazardous Substances

The CWA prohibits the unauthorized discharge of oil (284) or hazardous substances (285) in "harmful" quantities (286) into or onto the waters of the United States. (287) In addition, any "person in charge" of a vessel or onshore or offshore facility involved in a discharge of oil or other hazardous substance must report the discharge immediately to the appropriate government agency. (288) Failure to report immediately (289) upon discovery of the discharge is a criminal violation. (290) Additionally, as a matter of practice, the EPA generally foregoes or reduces the severity of criminal actions against parties that voluntarily disclose. (291) The information obtained from this disclosure may not be used in criminal actions against the disclosing party. (292) The circuits are somewhat divided, however, on the question of whether disclosure by an employee of a company grants immunity to the entire corporation or just to the individual who volunteered the information to an appropriate agency. (293)

"Person in charge" includes any employee in a position to know about the discharge, as well as the corporation itself. (294) "Person in charge" does not, however, include persons with only a temporary connection to the facility and not in its employ. (295) An "onshore facility" is defined as: "(A)ny facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under any land within the United States other than submerged land." (296) Courts have broadly construed this definition of an "onshore facility" in order to best effectuate the policy embodied in the Act, namely, to ensure the prompt commencement of cleanup operations. (297) An "offshore facility" is defined as "any facility of any kind located in, on, or under any of the navigable waters of the United States, ... other than a vessel or public vessel." (298) The term "facility" for the purposes of both onshore and offshore is defined as "any structure, group of structures, equipment, or device (other than a vessel), which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling transferring, processing, or transporting oil...." (299)

In 1990, the criminal provisions of the CWA were amended, making the unauthorized discharge of oil a felony rather than a misdemeanor. (300) The oil spill in the Gulf of Mexico in 2010 was the worst environmental disaster in the history of the United States. (301) The subsequent criminal prosecution of British Petroleum (BP), Transocean, and Halliburton under the Clean Water Act resulted in one of the largest criminal settlements ever in U.S. courts. (302) Charges were brought against BP because individual officers and employees failed to alert appropriate government agencies of a known oil discharge. (303) Additionally, it was charged that the same individuals failed to take appropriate steps to prevent the spill despite the awareness that significant dangers were posed by the condition of the oil well. (304)

  1. Intent

    The CWA establishes three levels of criminal culpability: (i) negligence, (ii) knowing violation, and (iii) knowing endangerment. (305) Negligent conduct may render a defendant criminally culpable even if he did not realize that the action might lead to a CWA violation. (306) Acts of negligence (307) are criminalized if they:

    * Violate permit conditions; (308)

    * "introduce[] into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage"; (309)

    * result in a failure to make a timely application for a permit; (310) or

    * manipulate a monitoring or reporting system. (311)

    Generally, circuits addressing the "knowing" mens rea requirement for CWA offenses (312) have rejected arguments that the government must prove a defendant knew that the CWA was being violated. (313) Knowledge of a violation may be inferred on the basis of circumstantial evidence, (314) but the proof of the defendant's knowledge of the violation must be established for each element of the offense. (315) Requiring knowledge for each essential element of an offense preserves the mistake-of-fact defense. (316)

    A person who commits a violation knowing that such violation places another person in imminent danger (317) of death or serious bodily...

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