News
1996

Who Goes to Jail? Understanding Criminal Liability for Wastewater Violations

Clearwaters
It is becoming increasingly easy for wastewater officials and operators to be sent to jail for water pollution violations. Though the difference between civil and criminal violations is usually a matter of the defendant’s knowledge and intent. Several recent court decisions are narrowing the gap.
 
This article discusses how wastewater professional have gotten into, and can best stay out of, criminal trouble.
 
The most alarming case, from the operator’s point of view, involved Michael Weitzenhoff and Thomas Mariani, who ran the sewage treatment plant in East Honolulu, Hawaii. In 1988 they directed that certain sludge generated by the plant be pumped directly into the outfall, rather than being hauled away or retreated. The sludge bypassed the effluent sampler and went directly in the ocean.
 
Following an FBA investigation, Weitzenhoff and Mariani were indicted for violating, and conspiring to violate, the federal Clean Water Act. Their principal defense was that they thought their method of disposing of the sludge was allowed by the plant’s National Pollutant Discharge Elimination System (NPDES) permit as a permissible bypass. The jury found them guilty, and the judge sentenced each to prison.
 
The case bounced around the appellate courts for several years, but ultimately the conviction was upheld. Several judges who reviewed the case disagreed with the decision of the appellate panel that upheld the conviction; one of the dissenters wrote, "Whether these defendants were innocent or not, in the sense of knowing that they were exceeding their permit limitation, the panel’s holding will make innocence irrelevant in other permit violation cases where the defendants had no idea that they were exceeding permit limits. The only thing they have to know to be guilty is that they were dumping sewage into the ocean, yet that was lawful activity expressly authorized by their federal permit."
 
In April 1995 the U.S. Court o Appeals for the Second Circuit (which has jurisdiction over New York, Connecticut and Vermont) agreed with the Hawaii convictions. It upheld the 21-month jail sentence imposed upon Robert Hopkins, the vice president for manufacturing at a Connecticut zinc plating company. The jury had found that Hopkins had tampered with sampling results to make them show no permit violations. The Second Circuit ruled that the prosecutors were required to prove only that Hopkins knew the nature of his acts and performed them intentionally, but not that he knew these acts violated the Clean Water Act or the permit.
 
The U.S. Supreme Court refused to review the Hawaii case. It has not yet decided whether to take the Hopkins case.
 
With the Clean Water Act now up for reauthorization, Congress is being urged by some to overrule these court decisions and establish that plant official cannot be charged criminally unless they actually knew they were violating the law. Few have confidence, however, that this proposal will be enacted.
 
Laws Imposing Criminal Liability
 
If these decisions stick, and even if they do not, it is important for wastewater professional to understand what kinds of acts can be a basis for criminal prosecutions.
 
The Clean Water Act allows sentences of up to three years in jail for knowing violations, and up to one year for negligent violations. This applies not only to operators, but also to "responsible corporate officers" (including municipal officials) who have supervision over the wastewater function. Violations of NPDES (in New York, SPDES) permits are automatically violations of the Clean Water Act.
 
Other federal environmental statutes in addition to the Clean Water Act carry similar criminal penalties. Most relevant to wastewater operators is probably the Resource Conservation and Recovery Act, which strictly regulates the handling and disposal of hazardous waste (including some wastewater sludges). The Comprehensive Environmental Response, Compensation and Liability Act (the Superfund law) and the Emergency Planning and Community Right-to-know Act (also known as SARA Title III) impose criminal penalties for failure to report certain toxic releases.
 
Every state also has its own criminal environmental statutes. The New York Environmental Conservation Law, for example, imposes criminal penalties for certain violations of the water pollution regulations of the New York State Department of Environmental Conservation.
 
The kind of act that seems to have led to the most criminal prosecutions under the Clean Water Act and these other laws is false reporting. Several individuals and companies have been convicted for failing to report spills, falsifying test results, or concealing permit violations in their discharge monitoring reports.
 
Protective Measures
 
This highlights an important fact. One key factor that, in the environmental arena, typically distinguishes a criminal prosecution from a civil one is the element of deceit. Just about any violation of an environmental statute or regulation can lead to civil fines; but prosecutors are most likely to press criminal charges if they believe that the defendant has covered up his acts, or acted with stealth or trickery.
 
Thus when a permit violation occurs, it is usually far better to quickly report it and take corrective measures, than to try to conceal it. If the concealment is unsuccessful, the responsible parties may find themselves in real peril.
 
In 1991 the U. S. Department of Justice issued a policy "Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator." This policy highlighted three major factors to be considered by the government in deciding whether to prosecute: disclosure that is voluntary, complete and timely; cooperation with the government; and preventive measures and compliance programs. The government also takes a close look at the gravity and extent of any health or environmental impacts (actual or potential) of the violations; and whether there seems to have been a conscious decision to violate the law. These are merely considerations and not requirements, however, and criminal charges may be brought even if, for example, no one was endangered by the conduct, and this is a first violation.
 
The importance of internal compliance programs was emphasized by the Organizational Sentencing Guidelines issued by the U.S. Sentencing Commission. These guidelines provide that judges imposing sentences on companies and other organizations should look favorably on an "effective program to prevent and detect violations of law."
 
Such a program will, according to the Commission, include compliance standards and procedures; assignment of high-level personnel to ensure compliance with them; precautions against delegating sensitive functions to employees who might have a propensity to violate the law; effective communication of the standards and procedures to all employees and contractors; monitoring and auditing systems to track compliance; and enforcement of the program through discipline of employees who violate it.
 
The Commission’s guidelines provide an important bench-mark for those in charge of a company or municipality’s wastewater function. The government is much more likely to be lenient if this compliance program was in effect before the violation occurred. Such a program is not a mere paperwork exercise, but is likely to significantly reduce the number and severity of violations that occur, as well as the penalties imposed.
 
One additional precaution should be mentioned. As Weitzenhoff and Mariani learned to their sorrow, ambiguities in their plant’s NPDES permit are not necessary construed in the operator’s favor. Thus when the NPDES permit is first negotiated with the environmental regulators, it is vital to ensure that its terms are understandable and achievable. Agreeing to enter into a permit that invites violations also invites prosecutions. Most states, including New York, have administrative procedures in place to challenge permit provisions before they are issued. After issuance, such challenges are far more difficult.
 
If all goes wrong, and a criminal prosecution does ensue, it is vital for the defendants to be sure they have both expert criminal counsel and expert environmental counsel. The criminal counsel will be familiar with the procedural intricacies of the investigative and grand jury process. The environmental counsel will be able to find whatever of the many technical defenses may be available, and to help ensure that the company or municipality has an adequate compliance program in place. It is absolutely essential that counsel be consulted at the first whiff of a criminal investigation, because otherwise many admissions may be made and other mistakes committed that could jeopardize the defense.

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