Mens rea and permit interpretation under the Clean Water Act.

• Author: Cohn-Lee, Richard G.
• Position: 1993 Ninth Circuit Environmental Review - Case Note

1. Introduction 1351 Il. The Clean Water Act and NPDES Permits 1353 III. United States v. Weitzenhoff 1354 IV. Permit Interpretation as a Matter of Law 1357 A. Permit Interpretation 1358 B. Permit Issuance 1359 C. Clarify Ambiguities or Contest Permit

   Conditions 1360 V. Mental State Required Under Section 309(c)(2) 1361 A. The Development of Public Welfare Statutes 1362 B. Comparison of the CWA to Mental State 1365 C. Weitzenhoff Consistent with the Analysis of

   Other Environmental Public Welfare Statutes 1368 VI. Conclusion 1369 I. Introduction

   In August 1993, in United States v. Weitzenhoff,(1) the Court of Appeals for the Ninth Circuit affirmed criminal convictions of two sewage treatment plant (STP) managers who violated the terms of their National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to the Clean Water Act (CWA). (2) The court interpreted a contested term in the defendants' NPDES permit without considering expert legal testimony on its meaning. Rather, the court interpreted the term using only the language of the permit and the Environmental Protection Agency's (EPA) commentary on its permitting guidelines.(3) It found that admitting expert testimony on "contested issues of law" (here the permit terms), "in lieu of instructing the jury" as to the law (here the scope of the permit terms), was manifest error.(4) The court held that because interpretation of NPDES permit terms is a question of law for the court, not a question of fact for the jury,(5) the admission of expert legal testimony on this issue alone is generally improper.(6) Further, the court decided, on an issue of first impression, that section 309(c)(2) of the CWA, which makes it a felony offense to "knowingly" violate the terms of a NPDES permit,(7) did not require that the defendants know they were violating the law, but only that they were aware of the actions which caused the violation.(8)

   This decision is consistent with analyses of permit interpretation and mental state requirements under other environmental statutes and cases.(9) Weitzenhoff serves as a valuable reminder to those applying for and receiving new NPDES permits that they should resolve any ambiguities or complaints regarding the permit terms as soon as possible in the permit issuance process, unlike the Weitzenhoff defendants who waited until after the government brought an enforcement action to contest their permit terms.(10)

   This chapter discusses the Weitzenhoff court's holding(11) that permit interpretation is solely a legal matter for the court.(12) The author stresses that permit applicants should take advantage of provisions in the CWA to appeal and clarify their permits during the drafting stage and before the federal government or a state agency brings an enforcement action.(13) The author then discusses the Weitzenhoff court's conclusion that the mental state requirements of CWA section 309(c)(2) require only general, and not specific, intent(14) to invoke criminal sanctions.(15)

2. The Clean Water Act and NPDES Permits

   Section 301 of the CWA prohibits any person from discharging pollutants into navigable waters unless that person has and is in compliance with a NPDES permit.(16) Section 402 of the CWA enables the EPA Administrator or an authorized state agency to issue NPDES permits to STPs, among others, to discharge pollutants at certain levels into navigable waters.(17) As the primary federal agency administering the CWA, EPA creates regulations controlling the content and requirements of NPDES permits.(18)

   Provided that EPA offers permittees an opportunity for a public hearing, the federal or state agency may issue permits that contain numerical criteria limiting the amounts of pollutants in discharges of waste water, require monitoring, and provide for any "conditions as the [issuing authority] determines are necessary" to achieve the goals of the CWA." The content of NPDES permits is based on the CWA, regulations promulgated by EPA pursuant to its CWA authority, EPA permitting guidelines and commentary, and individual facts and information specific to the unique permittee.(20)

3. United States v. Weeitzenhoff

   In August 1993, the Ninth Circuit held that two managers of an STP violated the terms of their NPDES permit and were guilty of criminal violations under the CWA.(21) The Weitzenhoff defendants managed an STP near Sandy Beach, a recreational swimming and surfing beach on the island of Oahu, Hawaii.(22) The Hawaii Department of Health issued the defendants an NPDES permit that prescribed monitoring and sampling requirements and set the maximum levels of certain pollutants that they could discharge into the ocean.(23) The permit allowed some waste to "bypass" treatment so long as the defendants did not exceed the permit's flow limitations and the bypass was for "essential maintenance" of the STP's operation.(24)

   From March 1987 through March 1988, the defendants hauled sludge generated as a byproduct of the waste treatment process off-site to another treatment facility.(21) In March 1988, the STP underwent improvements which eliminated the need for off-site hauling.(26) The by-product sludge, however, began to build up in storage tanks.(27) Instead of resuming to off-site sludge hauling, the defendants instructed STP employees to discharge the sludge directly into the ocean. The defendants did not report these direct ocean sludge discharges to the Hawaii Department of Health.(28)

   Following complaints of excess sewage by Sandy Beach lifeguards, the Federal Bureau of Investigation investigated. The defendants were charged with and convicted of multiple counts of conspiracy and CWA violations for their unlawful direct ocean sludge discharges.(29)

   At trial, the defendants admitted to authorizing the discharges, but argued that the terms of their NPDES permit allowed them to do so.(30) They argued that they discharged sludge to try to restore the plant's biological equilibrium and to avoid its complete shutdown.(31) Relying on the language of their permit, including the bypass provision which stated that a "permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it is also for essential maintenance to assure efficient operation,"(32) they argued that because the ocean sludge disposal fell under the permit's allowable bypass provision, they had not violated the CWA.(33)

   Whether the terms of the defendants' permit allowed their conduct was a critical issue at trial.(34) The district court judge allowed the government and the defendants to present expert testimony as to the meaning and usage of contested permit terms, including the meaning of "essential maintenance."(35) Predictably, the expert witnesses provided conflicting testimony.(36) For example, the government's witness testified that "essential maintenance" encompassed only maintenance performed on a STP's physical facilities. The defendants' expert, on the other hand, said the term could include maintenance performed on both physical and biological processes.(37)

   The district court judge did not resolve the conflicting testimony of the expert witnesses with a final jury instruction as to the meaning of the contested terms.(38) Instead, the judge instructed the jury to "construe' the [language of] the permit based on |the plain meaning of the language therein' and the testimony of the expert . . . witnesses."(39) After the jury found the defendants guilty of violating the CWA, the two STP managers were sentenced to twenty-one months and thirty-three months respectively in prison.(40)

   On appeal, the Ninth Circuit held that NPDES permit interpretation is a question of law for the court, not a question of fact for the jury." Because the district court judge failed to instruct the jury on the law, i.e., the meaning of the contested terms in the permit, his admission of expert testimony on this issue was improper.(42) He violated the principle that the judge alone has the responsibility to instruct the jury on the law by allowing experts to educate the jury on the contested permit terms and by failing to resolve the experts' conflicting interpretations in the jury instruction.(43) The court explained that "[a]lthough the testimony of the [expert] witnesses regarding technical terms in the permit might have been permissible had the judge proceeded properly to instruct the jury . . . in this case it compounded the error of consigning the interpretation of the law to the jury."(44)

   Nevertheless, the court explained that the district court judge's error of admitting expert testimony in place of a proper jury instruction was harmless because the jury reached the correct conclusion that the defendants violated their NPDES permit.(45) The court found that both the language of the permit itself and the EPA permitting guidelines commentary sufficiently defined the disputed permit terms.(46) Giving "considerable weight" to EPA's interpretation of its regulations,(47) the court agreed with the government's interpretation that "essential maintenance" included only unavoidable maintenance necessary to ensure continued operation of plant equipment.(48) The court accordingly affirmed the convictions of the defendants.(49)

   The court also held that because the legislative history of CWA section 309(c)(2) indicated that the CWA was a "public welfare" statute, the term "knowingly" meant only that a court could apply criminal sanctions when a defendant "knowingly engages in conduct that results in permit violation, regardless of whether the polluter is cognizant of the requirements or even the existence of the [CWA or] the permit."(50)

4. Permit Interpretation as a Matter of Law

   The court noted that because "construction of the permit is a matter of law" (and therefore the court was...