Barg Coffin Lewis & Trapp, LLP Articles

August 1993

Criminal Enforcement of Environmental Laws

Ninth Circuit Announces ‘Misinterpret-A-Permit-Go-To-Jail’ Rule

Brian S. Haughton, Environmental Law Department

The United States Court of Appeals for the Ninth Circuit ruled on August 3, 1993 that corporate managers may be convicted of felony violations of the federal Clean Water Act (CWA) for misinterpreting the provisions of permits issued under the Act’s National Pollution Discharge Elimination System ("NPDES"), related regulations and published guidance of the United States Environmental Protection Agency. United States v. Weitzenhoff, 93 C.D.O.S. 5818 (9th Cir. 1993).

Section 1319(c) of Title 33 of the United States Code provides that persons who knowingly violate the CWA, including its permit requirements, are subject to increased criminal penalties of between $5,000 and $50,000 per day of violation and/or imprisonment of up to three years. Negligent violations of CWA permit requirements may be punished by a fine of $2,500 to $25,000 per day of violation or by imprisonment of up to one year, or both.

Michael Weitzenhoff and Thomas Mariani, the managers of a sewage treatment plant in Hawaii, were prosecuted for discharging sewage sludge into the ocean. They were convicted on several counts, including violation of section 1319(c)(2) of the Act, which makes it a felony to "knowingly violate . . . any [NPDES] permit condition or limitation . . ." The trial court rejected their defense — that they mistakenly believed their conduct was authorized by their permit — and sentenced Weitzenhoff to 21 months and Mariani to 33 months in prison.

The Ninth Circuit affirmed, holding:

The government did not need to prove that the defendants knew that their acts violated the permit or the Clean Water Act.
Defendants’ interpretation of the permit’s "bypass" provision (which, under certain circumstances, allowed waste to bypass treatment in the plant) was incorrect in light of the relevant regulation, 40 C.F.R. § 122.41(m), and EPA’s 1984 comments in the preamble to the regulation when it was first published in the Federal Register, 49 Fed. Reg. 38,037 (1984).
Defendants’ misinterpretation of the permit was no defense.
Defendants’ vagueness attack was rejected because they were persons "knowledgeable in the wastewater field and can be expected to have understood what the permit meant."

The felony convictions of both Weitzenhoff and Mariani for misinterpretation of the terms of the permit seems at odds with that provision of the statute which makes such conduct, at most, a misdemeanor violation. However, whether or not correctly decided, the signal that the convictions send to corporations and their managers is that even negligent conduct that violates the terms of a permit may result in a jury’s decision to impose severe penalties.

The Weitzenhoff case is the latest in a long line of decisions holding that "scienter" — knowledge of wrongful conduct — need not be proven to convict individuals of violations of so-called "public welfare statutes," that is, statutes regulating conduct which inherently exposes the public to potentially high levels of risk. See, United States v. Dotterweich, 320 U.S. 277, 280 (1943) [Food, Drug and Cosmetic Act]; and United States v. Hoflin, 880 F.2d 1033, 1038-39 (9th Cir. 1989) [Resource Conservation and Recovery Act].

If any doubt remained before Weitzenhoff, the Ninth Circuit has made it clear that criminal provisions of environmental laws will be interpreted as public welfare statutes. Moreover, Weitzenhoff confirms that the penalty for misinterpretation of those laws can be severe. With increasingly complex environmental regulation that reaches into nearly every aspect of business life and governments’ stepped-up emphasis on criminal enforcement, the lessons for corporate managers are clear:

know your permits and the environmental regulations that affect your business, and obtain reliable counseling as to their interpretation; and
implement prevention programs to reduce, if not eliminate, the chance of even inadvertent violations that may lead to criminal liability

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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