Mens Rea in the CWA Simple Negligence Criminal Liability Under the Clean Water Act, 0716 SCBJ, SC Lawyer, July 2016, #20

AuthorBrook B. Andrews, J.

Mens Rea in the CWA Simple Negligence Criminal Liability Under the Clean Water Act

No. Vol. 28 Issue 1 Pg. 20

South Carolina BAR Journal

July, 2016

Brook B. Andrews, J.


The Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA), is a cornerstone of environmental regulation in the United States.1 Passed in 1972, the CWA establishes a comprehensive regulatory framework designed to preserve and protect America's waters. Included among its many components are two criminal provisions: one that makes it a crime to knowingly violate certain substantive provisions of the CWA, and one that makes it a crime to negligently do so. The latter provision— which has been read by at least three federal circuit courts of appeal to support a conviction based upon a showing of simple or ordinary negligence—is charged sparingly by prosecutors. Nevertheless, since the penalty for simple negligence under this provision may include imprisonment and substantial monetary penalties, attorneys who practice in the fields of environmental and criminal law would be well-advised to study its scope, application and resilience in the face of constitutional challenges.

Section 309(c)(1) of the Clean Water Act

In its original form, the CWA made it a crime to "willfully or negligently" discharge pollutants into America's waters.2 In 1987, Congress divided this provision into two separate sections, reflecting two different mens rea standards: negligent violations under Section 309(c)(1) (a misdemeanor) and knowledgeable violations under Section 309(c)(2) (a felony).3At no time in the 40-year history of the CWA, however, has Congress defined or otherwise explained which species of negligence—simple, gross, criminal or otherwise it intended to apply to Section 309(c)(1). The question is a meaningful one, since Section 309(c)(1) authorizes the imposition of a fine of up to $24,000 per day per violation and up to one year in prison for negligent violations of certain specific substantive provisions of the CWA.4 Under the joint operation of Section 309(c)(1) and the CWA's substantive provisions, persons who negligently discharge oil, waste or other pollutants into waters of the United States, or who negligently discharge pollutants into public sewers or water treatment systems, may find themselves on the sharp end of a federal criminal indictment, facing the possibility of substantial fines and imprisonment. In the absence of legislative guidance on the proper interpretation of "negligence" under Section 309(c)(1), the burden has fallen to federal courts. And thus far, each federal circuit court to have considered the matter has agreed: simple negligence is sufficient to violate Section 309(c)(1) of the CWA.

Hanousek v. United States: the simple negligence standard

The Ninth Circuit Court of Appeals was the first court to arrive at this conclusion, in Hanousek v. United States.5 The defendant in that case, Edward Hanousek, was a project supervisor for a railroad company constructing a railroad line from Skagway Alaska to Whitehorse, Yukon Territory, Canada.6 In that role, he was responsible for "every detail of the safe and efficient maintenance and construction" of railroad tracks and related projects, which occasionally involved the blasting and removal of rock from the railway corridor.7 During one such excavation, on an embankment 200 feet above the Skagway River, one of Hanousek's supervisees backed an earthmover into an unprotected above-ground petroleum pipeline.[8]The resulting pipeline rupture discharged between 1,000 and 5,000 gallons of oil into the Skagway River.9 Though Hanousek was not at the site when the accident occurred, he was primarily responsible for the safe operation of the construction effort.10 Furthermore, the resulting government investigation found that Hanousek had abandoned previously-used safety procedures that would have better protected the pipeline from potential damage.11 On these grounds, the U.S. Department of Justice indicted Hanousek with one count of negligently discharging a harmful quantity of oil into the Skagway River, in violation of Section 309(c)(1) of the CWA.12

At trial, Hanousek asked the district court to instruct the jury that the government had to prove that he had acted with criminal negligence, rather than simple negligence, in discharging oil into the Skagway River.13 Hanousek's proposed jury instruction, borrowed from the Model Penal Code, defined criminal negligence as "a gross deviation from the standard of care that a reasonable person would observe in the situation."14The court rejected Hanousek's proposed definition, instructing the jury instead that Hanousek could be found to violate Section 309(c)(1) if it found that Hanousek was liable for simple negligence, or "the failure to use reasonable care."15 The jury returned a guilty verdict.16 Hanousek was sentenced to six months imprisonment, six months in a halfway house, six months of supervised release and ordered to pay a $5,000 fine.17Hanousek's appeal to the Ninth Circuit followed.

On appeal, the Ninth Circuit looked first to the plain language of the CWA and found that the term "negligently" is not defined anywhere in the statute.18Following the traditional canon of statutory construction, the court then looked to the ordinary meaning of the word, finding that "negligently"—as it is used in Section 309(c)(1) and defined in Black's Law Dictionary—connotes simple negligence, or the "failure to use such care as a reasonably prudent and careful person would use under similar circumstances."19 The Ninth Circuit reasoned that if Congress had wanted to require a heightened standard of liability, such as the criminal negligence standard proposed by Hanousek, it could have done so explicitly[20] Moreover, the court found it significant that Congress had in fact provided a heightened negligence standard in another section of the CWA, which provides for enhanced penalties in cases of "gross negligence or willful...

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