MURKY WATER: THE CLEAN WATER ACT CRIMINAL PROVISIONS.

• Author: Ventry, Camrie

1. Background 77 II. Criminal Provisions 78 A. Public Welfare Offenses 80 B. Technological Changes 82 C. Elements of the Clean Water Act 84 D. Courts' Interpretation of the Provisions 85 III. Commenter's Definition 90 IV. Corporate Liability 93 V. Conclusion 100 I. Background

   The Federal Water Pollution Control Act was created in 1948 for the purpose of maintaining the chemical, physical, and biological integrity of surface waters. (1) The Act also established, through regulatory authorities, recommendations and standards for wastewater industries with additional regulations that protected fish and helped in controlling toxins. (2) The Federal Water Pollution Control became known as the Clean Water Act ("CWA") in 1972 after revising and expanding its original purpose. (3) The CWA gave the Environmental Protection Agency ("EPA") the ability to set wastewater standards and "develop national water quality criteria recommendations for pollutants in surface waters." (4)

   In 1987, Congress realized that the CWA had deficiencies in regulating toxic pollutants and discharges. This led Congress to pass the Water Quality Act of 1987. (5) In passing the Water Quality Act, Congress changed the mens rea requirement written in the CWA criminal provisions. (6) Legislative history suggests that when changing "willfully" to "knowingly," Congress made clear that one of these linguistic revision goals was to strengthen criminal sanctions. (7) Initially, to be charged with a crime, the criminal provisions stated that an individual must have "willfully or negligently" violated one of the criminal provisions. (8) During the CWA amendment process, the addition of the term "knowingly" replaced the original "willful" standard of intent. (9) Additionally, "knowingly" and "negligently" were separated into two different and distinct sections of the Act: (10) Congress classified the negligent provisions as a misdemeanor, and the knowledge provisions were classified as a felony. (11) This came just after Congress had, for the first time, authorized a felony conviction for violation of an environmental statute. (12)

2. Criminal Provisions

   Both the "knowingly" and "negligently" intent requirements are broad standards. (13) Congress never explained what standard of negligence the revised provisions would require, whether it should be ordinary or gross negligence, or another standard meant explicitly for the CWA. Just as the CWA's negligent provisions leave a substantial amount up to the court's discretion, Congress did not explain how to read the "knowingly" provisions. It also seems that Congress wanted states to have a more significant role in enforcing and defining CWA provisions. (14)

   There are three separate sections within the CWA for criminal provisions of knowledgeability: 33 U.S.C. [section] 1319 (c)(2)(A), 33 U.S.C. [section] 1319 (c)(2)(B), and 33 U.S.C. [section] 1319 (c)(3)(A). (15) U.S.C. [section] 1319 (c)(2)(A) discusses knowingly violating a series of previous provisions, while [section] 1319 (c)(2)(B) is a criminal provision that is violated when someone introduces a pollutant or hazardous substance when "such a person knew or reasonably should have known could cause personal injury or property damage." (16) Another violation would be the unlawful discharge of any pollutant from a point source into navigable waters unless the polluter in question obtained the appropriate permit. (17) For example, individual homes do not need a permit when connected to a municipal system or septic system; however, other facilities, such as industrial and municipal plants, need to obtain a license if the discharge will flow directly to surface waters. (18) The criminal provisions in the CWA, when violated, are punishable by a fine or imprisonment, dependent on the offense. (19) For example, suppose an individual violates a provision by knowingly introducing a dangerous substance into a sewer system. In that case, there is a fine "of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment not more than 3 years, or by both." (20)

   Under the CWA, there are a low number of prosecuted cases because of the uncertain meaning of the "knowingly" requirement in the criminal provisions. Under the traditional mens rea standard, there are both general and specific intent categories. (21) If the accused is aware of his or her actions but not of the consequences, this is enough to prove general intent. (22) The specific intent standard requires that the accused be aware that his or her actions were unlawful. (23) Under traditional mens rea, the prosecution must prove that the accused had the specific intent to violate the law. (24) However, for public health and safety statutes, such as the CWA, that have a mens rea that involves "knowing," this requirement leaves the prosecution to prove only that the person did not engage in the conduct by accident or mistake. (25)

   There must be two elements present to convict someone of a crime: the guilty act and the guilty mind. In the eighteenth century, Blackstone proclaimed that if there is to be a crime, there must first be a "vicious will." (26) However, because of the lack of clarity surrounding the Clean Water Act's criminal provisions, there has been confusion and inconsistencies in interpreting the mens rea requirement. The Supreme Court in United States v. Bailey, a case which involved the escape of several prisoners from confinement, stated that "[f]ew areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." (27)

   1. Public Welfare Offenses

      The primary difference between the traditional mens rea requirement and the CWA is that most courts view the CWA criminal provisions as public welfare offenses. (28) A public welfare offense is one that has a direct threat to human health or safety. (29) Through defining a statute or provision as a public welfare offense, a person is convicted on a strict liability standard because of the harm to the public at large. (30) A charge of a public welfare offense gives the court a special standard. There is no longer a need for traditional mens rea requirements, as the activity itself makes the individual guilty. (31) Multiple courts have found that public welfare statutes uphold due process because the defendant should have had awareness that there would be strict regulations when handling a dangerous or hazardous substance. (32)

      In United States v. Weizenhoff, the defendants, the treatment plant managers, were charged with a CWA violation because they instructed employees to dump waste-activated sludge directly into the ocean. (33) Specifically, in finding the defendants guilty, the court ruled that "[t]he criminal provisions of the Clean Water Act are clearly designed to protect the public at large from the potentially dire consequences of water pollution, and as such fall within the category of public welfare legislation." (34) The court's statement in Weizenhoff puts the defense attorneys' backs against the wall.

      Most environmental doctrines are seen as public welfare statutes. (35) For example, the Resource Conservation and Recovery Act ("RCRA") has a long history, which demonstrates that its purpose is to protect the public's safety and welfare. (36) Since the nineteenth century, public welfare offenses have evolved, and this evolution is attributed to the steady increase in technology and industrial advancements. (37) Public welfare offenses pose "no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize." (38) However, with this standard, the Supreme Court in Morissette v. United States stated that the penalties for violating a public welfare statute are "relatively small, and conviction does no grave damage to an offender's reputation." (39)

   2. Technological Changes

      Rapid changes in technology and agriculture have created additional frustrations for those who already find the provisions vague and uninterpretable. (40) As modern-day technology swiftly advances, there are increased difficulties in defining public welfare offenses. (41) The phenomena of "emerging contaminants" are examples of how new technology changes are creating unforeseen debates. (42) These contaminants are called "emerging" because "new analytical technologies and methods are now making trace amounts detectable." (43) The contaminants are defined as "potentially toxic substances whose effects or presence is poorly known..." (44) The potential harm from these newly found contaminants is still unknown, which causes more debate as to whether the misuse of the new contaminants constitutes an environmental offense. (45)

      On the other hand, technology has made it easier to advance the protection and preservation of the country's social and economic status, which leads to a growing question as to what now constitutes a direct, widespread impact. Currently, in society, pollution is permitted to a certain extent. However, this does not mean that pollution itself is good for the environment. (46) Unfortunately, for society to continue to function properly, pollution is a necessary component. (47) Pollution control will have to continue to keep progressing towards a better and more advanced way of living. This is one example of the frustration that comes with balancing technological changes with environmental concerns.

      Some believe the modern-day definition of a public welfare offense should require some type of mental culpability. (48) With its new and complex machinery, the Industrial Revolution increased the number of workers subjected to injury and harm. (49) The simpler times before the congestion of people, traffic, and pollution within city limits have passed. (50) The court in Morissette made itself very clear when it held that "[s]uch dangers have engendered increasingly numerous and detailed regulations which heighten the...