Specific Environmental Statutes

AuthorJudson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
Page 123
Part Three: Statutes and Cases
Chapter 9:
Specific Environmental Statutes
At the heart of environmental criminal law are several, sector-specic statutes that criminalize certain
violations of environmental laws and regulations. Issues related to voluntary disclosures, govern-
ment investigations, prosecution decisions, trial strategy, and sentencing all revolve around the pri-
mary question of whether the defendant’s conduct violated a specic statutory prohibition.
e most important environmental statutes that provide for criminal prosecution in appropriate circum-
stances include: the Clean Water Act (CWA); the Clean Air Ac t (CAA); the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES); the Endangered Species Act (ESA); the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Lacey Act; the Migratory Bird Treaty
Act (MBTA); the Act to Prevent Pollution From Ships; the Ocean Dumping Act; the Oil Pollution Act
(OPA); the Resource Conservation and Recovery Act (RCRA); the Safe Drinking Water Act (SDWA); and
the Toxic Substances Control Act (TSCA).
When the government brings an indictment under these statutes directly, it often also charges various oenses
under Title 18 of the U.S. Code, including conspiracy, obstruction of justice, destruction of evidence, or false
statements to the government. In some situations, these Title 18 violations have the potential to criminalize con-
duct under other environmental statutes, which do not themselves provide independent criminal penalties, such
as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).
e Environmental Crime Sections (ECS’) Worker Endangerment Initiative similarly is geared toward using
the criminal provisions of environmental statutes to punish corporations that violate worker safety regulations,
because the Occupational Safety and Health Act does not contain a provision that punishes as a felony acts by
corporations or managers that threaten worker safety. ere are other synergies as well, such as criminal sanc-
tions associated with laws that govern the transportation of hazardous chemicals and pollutants, and, in the
current absence of more specic regulations, utilization of the CWA in hydraulic fracturing (“fracking”) cases.
e following sections are an overview of each of these statutes, highlighting the nuances as they apply to
environmental criminal cases, and discussing signicant decisions. e case law discussion is not intended
to be exhaustive, but simply to provide a avor for the types of prosecution typically brought under the
dierent statutes. For a more comprehensive discussion of case law specic to each statute, see Appendix 1
at www.eli.org/environmental-crimes-second-edition.1
I. The Clean Water Act
A. Overview
e CWA prohibits discharges of pollutants into the waters of the United States without a permit. Covered
pollutants include most substances that can be ha rmful to aquatic functions and values. Most waters are
covered, including all interstate waters, their tributaries, and adjacent wetlands.
1. Other sources include the websites of the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) and Steve
Solow’s annual surveys of developments in environmental crime enforcement, http://www.kattenlaw.com/steve-solow/ (last visited May 29,
Page 124 Environmental Crimes Deskbook 2nd Edition
Prohibited discharges take two main forms: point source and nonpoint source emissions. Point source
discharges are discrete discharges from the end of a pipe or channel, a shovel blade, or similar source.
Nonpoint source discharges are generally stormwater discharges owing from developed or undeveloped
property, city streets, suburban lawns, and farm elds.2
With some exceptions, the civil aspects of the CWA are implemented and enforced by the U.S. Environ-
mental Protection Agency (EPA). e principal exception is the CWAs statute’s prohibition against lling
wetlands, which falls under the regulatory authority of the U.S. Army Corps of Engineers (the Corps), with
oversight by EPA. is division of regulatory authority signica ntly complicates enforcement of the law.3
B. Prohibitions
e CWA4 prohibits “the discharge of any pollutant by any person,” except in compliance with its terms.5
is broad prohibition is somewhat narrowed by the dened terms in this phrase, but each of those terms
contains multiple dened and circular references. Ultimately, the CWA’s scope—and thus the scope of the
U.S. Department of Justice’s (DOJ’s) potential criminal jurisdiction—is broad. To aid the reader in under-
standing the reach of this phrase, the dened terms appear in bold in the following discussion.
e term person” is inclusive and does not limit the scope of the CWA. It refers to “an individua l,
corporation, partnership, association, [s]tate, municipality, commission, or political subdivision of a [s]tate,
or any interstate body.6 e denitions of “state” and “municipality” are equally broad. “State” refers to
“a [s]tate, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Ameri-
can Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacic
Islands.”7 A “municipality” is
a city, town, borough, county, parish, d istrict, association, or ot her public body created by or pur suant to [s]
tate law and havi ng jurisdiction over disposal of sew age, industrial wastes, or other wastes, or a n Indian tribe
or an authorized I ndian triba l organization, or a designated a nd approved management a gency under section
1288 of the CWA.8
Other dened terms place some limits on the expansive reach of the law. For example, “discharge of a
pollutant” is dened as “any addition of any pollutant to navigable waters from any point source” or “any
addition of any pollutant to the waters of the contiguous zone or the ocean from a ny point source other
than a vessel or other oating craft.”9
e phrase point source” is dened in turn to cover “any discernible, conned and discrete convey-
ance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete ssure, container,
rolling stock, concentrated animal feeding operation, or vessel or other oating craft from which pollutants
are or may be discharged.”10 A “pollutant” is dened as “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioact ive materials,
2. At the time the CWA was rst passed, point source discharges from industrial or municipal solid waste treatment facilities constituted 85%
of all water pollution and were of signicantly greater concern to Congress than nonpoint source discharges. See William Ruckelshaus, A New
Shade of Green, www.wsj.com/article/SB10001424052702303410404575151640963114892.html (last visited May 29, 2013). As a result,
the CWA establishes a fairly strict regime for point source discharges but largely leaves control of nonpoint source discharges to the states. As
a result, there are few criminal prosecutions related to nonpoint source discharges, and this chapter does not discuss them in detail.
3. For a more complete discussion of this complexity, see M S  L R, W D, (3d Ed., 2009).
In addition, the United States Coast Guard has a role in enforcement of the CWA, primarily as it applies to vessels and marine-transportation-
related facilities, as well as in the coastal zone of the United States. e denition of transportation-related facility is established under a
Memorandum of Understanding between the Secretary of Transportation and the Administrator of the EPA. 40 C.F.R. pt. 112, app. A. e
denition of coastal zone is in the National Contingency Plan, 40 C.F.R. §300.5
5. Id. §1311(a), CWA §301(a). As described below, the primary avenue for lawful discharges is through the CWA permit system. However,
Section 311 of the CWA (33 U.S.C. §1321) specically prohibits the discharge of oil and hazardous substances into (1) the navigable waters
of the United States, (2) the U.S. contiguous zone, and (3) the U.S. Exclusive Economic Zone (EEZ). For a more detailed discussion of this
provision of the CWA, see infra Section II.D.3 of this Chapter.
6. Id. §1362(5), CWA §502(5).
7. Id. §1362(3), CWA §502(3).
8. Id. §1362(4), CWA §502(4).
9. Id. §1362(12), CWA §502(12).
10. Id. §1362(14), CWA §502(14).
Specif‌ic Environmental Statutes Page 125
heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, a nd agricultural
waste discharged into water.11
e most signicant limitation on the government’s jurisdiction under the CWA has developed from
this secondary set of denitions. In particular, t he term “navigable waters,” has been the centerpiece of
much civil and crimina l litigation and agency guidance. As dened in the CWA, the term “means the
waters of the United States, including the territorial seas.”12 But the courts often have been asked to apply
this term to “waters” that do not t the common sense notion of “navigable.
In sum, the l angu age of the CWA prohibits a nyone and everyone f rom using a ny discern ible, con -
ned, and discrete c onveyance to add almos t any t ype of waste to a water of the United State s, unless
speci cally allowed u nder the C WA. E PA’s rules and guidance have provided some c larication of
this prohibition.
C. Penalties
e government is authorized to enforce noncompliance with the C WA through administrative,13 civil,14
or criminal penalties.15 Criminal penalties attach to both negligent16 and knowing17 violations of the CWA.
For both categories of oenses, the penalties may be doubled for repeat violations.18
• Negligent violations are punishable by a ne of between $2,500 and $25,000 per day of violation
and/or up to one year of imprisonment.19 Subsequent negligent violations carry a penalty of between
$2,500 and $50,000 per day of violation and/or up to two years’ imprisonment.20
• Knowing violations are punishable by a ne of between $5,000 and $50,000 per day of violation
and/or up to three years of imprisonment.21 Subsequent repeat violations carry a penalty of bet ween
$5,000 and $100,000 per day of violation and/or up to six years of imprisonment.22
• Knowing violations carry enhanced penalties if the violator knows at the time of the violation that
another person is being placed in imminent danger of death or serious injury by the action.23 Indi-
viduals committing such violations are subject to a maximum penalty of $250,000 and 15 years of
imprisonment,24 and organiz ations to a maximum penalty of $1 million.25 Repeat violators are sub-
ject to doubling of these penalties.26
Maximum penalty calculations are relatively straightforward—the number of violations is multiplied by
the maximum penalty. One wrinkle results from the fact that in the civil enforcement context, violations
of the CWA prohibition against the lling of wetlands are often charged on a “continuing” basis. Under
the “continuing violation” theory, the illegal lling may occur over a discrete period of days, but every day
the illega l ll rema ins in place is calculated as a new “day of violation.”27 While it is possible to consider
discharges into waters other tha n wetlands in violation of a permit as a continuing discharge, histori-
cally, discharges into non-wetland waters are treated as one-time violations in both t he civil and criminal
11. Id. §1362(6), CWA §502(6).
12. Id. §1362(7), CWA §502(7). e territorial sea is specically dened to extend three (3) nautical miles seaward from the line of ordinary
low water along the coast. Id. §1362(8). is is important because the United States, for the application of most other statutes, has adopted
a territorial sea extending seaward out to 12 nautical miles. See, generally, discussion infra at Section II,B. of this Chapter.
13. Id. §1319(g), CWA §309(g).
14. Id. §1319(b), CWA §309(b).
15. Id. §1319(c), CWA §309(c).
16. Id. §1319(c)(1), CWA §309(c)(1).
17. Id. §1319(c)(2), CWA §309(c)(2).
18. Id. §1319(c)(1) and (2), CWA §309(c)(1) and (2).
19. Id. §1319(c)(1), CWA §309(c)(1).
20. Id.
21. Id.
22. Id.
23. Id. §1319(c)(3)(A), CWA §309(c)(3)(A).
24. Id.
25. Id.
26. Id.
27. See, e.g., United States v. Reaves, 923 F. Supp. 1530, 26 ELR 21394 (M.D. Fla. 1996); Strand & Rothschild, supra note 3, at 120-21.

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