The Criminalization of Negligence Under the Clean Water Act — By David E. Roth, Stephen R. Spivack, and Joseph G. Block — “I think we should be hesitant to expose countless conduct. Perhaps this high-profile effort to prosecute numbers of construction workers and contractors to negligence will provide the U.S. Supreme Court with an heightened criminal liability for using ordinary devices opportunity to revisit the question it declined to consider to engage in normal industrial operations.” eight years ago in Hanousek. Section 309(c)(1) of the CWA (codified at 33 U.S.C. Hanousek v. United States, 585 U.S. 860, 861 (2000) § 1319(c)(1)), makes it a misdemeanor to negligently vio- (Thomas, J., dissenting from denial of petition for late a laundry list of CWA sections (including 1311, 1312, writ of certiorari). 1316, 1317, 1318, 1321(b)(3), 1328, and 1345). The pro- vision also criminalizes negligent violations of National little after 7:45 on the morning of November 7, Pollutant Discharge Elimination System (NPDES) per- 2007, the 900-foot, 63,131-ton container ship mits issued pursuant to 33 U.S.C. § 1342 (CWA § 402) A M/V Cosco Busan slipped from its berth at Pier by the United States Environmental Protection Agency 56 in the Port of Oakland and headed for open water. or by states with delegated CWA NPDES-permitting It was a typically foggy morning in the San Francisco/ programs. A first conviction under section 1319(c)(1) Oakland Bay area. The Cosco Busan was helmed not by is punishable by a fine of $2,500 to $25,000 per day of an officer of the ship, but by a pilot specifically provided violation and/or not more than one year in prison. Sub- by the San Francisco Bar Pilots. Shadowing the ship was sequent convictions can result in a fine of up to $50,000 the assist tug Revolution. The Cosco Busan was also in per day per violation and/or up to two years in prison. contact with the Coast Guard Sector San Francisco Ves- Although a misdemeanor statute, section 1319(c)(1) has sel Traffic Service, a land-based advisory system provid- very real teeth. ing navigational assistance. And yet, despite these mul- Few federal statutes purport to criminalize negligent tiple layers of protection, at 8:30 a.m., the Cosco Busan conduct. (See, e.g., 15 U.S.C. § 5408(c)(3) (negligent re- allided with the fender system of the San Francisco/ cord-keeping related to fasteners); 18 U.S.C. § 1115 (neg- Oakland Bay Bridge. The accident tore a ragged 100 by ligent ship officer conduct leading to death); 18 U.S.C. 12-foot gash in her hull, puncturing two fuel tanks and § 755 (custodian negligently allowing a prisoner to es- a ballast tank. Most importantly, she was leaking heavy cape); 42 U.S.C. § 9113(b) (negligently damaging sub- fuel oil from the gaping hole in her side. Despite diligent marine electronic transmission cables or equipment); 47 response efforts, approximately 58,000 gallons of fuel oil U.S.C. § 22 (negligent damage to a submarine cable).) We ultimately leaked into the ecologically sensitive Bay. are aware of only one other environmental statute that On March 17, 2007, the second chapter in the Cosco criminalizes negligent conduct—section 113(c)(4) of the Busan story opened with the filing of a two-count federal Clean Air Act, which makes it a misdemeanor for a per- misdemeanor information against John Joseph Cota, the son to negligently release into the ambient air any haz- San Francisco Bar pilot guiding the ship at the time of ardous air pollutant or extremely hazardous substance its allision. Although the information did not allege that when, at the time of the release, such person negligently Cota intentionally violated the federal Clean Water Act places another person in imminent danger of death or (CWA), it did charge him with the negligent discharge serious bodily injury. (42 U.S.C. § 7413(c)(4).) Because of a pollutant in violation of the Act. In July 2008, a section 7413(c)(4) differs substantially in construction second superseding indictment added a laundry list of from section 1319(c)(1), we have chosen not to discuss counts, including negligent CWA charges, against the it in this article. company responsible for operating the Cosco Busan. As In its initial enactment as part of the Federal Water it continues to move forward, the Cosco Busan prosecu- Pollution Control Act of 1972, section 1319(c)(1) made tion will again highlight section 309(c)(1) of the CWA, it a misdemeanor for anyone to “willfully or negligently” which, unlike virtually all other criminal environmental violate certain provisions of the CWA. In 1987, as part statutes, criminalizes negligent as opposed to intentional of the Water Quality Act of 1987, the “willful” com- Published in Criminal Justice, Volume 23, Number 4, Winter 2009. © 2009 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. ponent of section 1319(c)(1) was dropped. Since 1987, refuted the argument that section 1319(c)(1) passed con- section 1319(c)(1) has been used sparingly by the gov- stitutional muster simply because the CWA is a “public ernment. (See Steven P. Solow & Ronald A. Sarachan, welfare statute”: “Although provisions of the CWA regu- Criminal Negligence Prosecutions Under the Federal late certain dangerous substances, this case illustrates that Clean Water Act: A Statistical Analysis and an Evaluation the CWA also imposes criminal liability for persons using of the Impact of Hanousek and Hong, 32 ELR 11153-61 standard equipment to engage in a broad range of ordi- (Oct. 2002) (reviewing § 1319(c)(1) prosecutions between nary industrial and commercial activities.” (Hanousek v. 1987 and 1997 and concluding, inter alia, “[t]hat analy- United States, 585 U.S. 860, 861 (2000) (Thomas, J., dis- sis reflects a history of very restrained use of the CWA senting from denial of petition for writ of certiorari).) negligence provisions by the government.”).) According For the dissenters, it was not enough to merely conclude to Solow and Sarachan, between 1987 and 2000, only that the CWA (1) regulated conduct subject to extensive 117 negligence-based environmental prosecutions were regulation, and (2) that conduct might involve risk to the brought in the United States. (Id.) As a result of this community. Such an approach could extend the “narrow” paucity of prosecutorial history, few published decisions public welfare statute doctrine “to virtually any criminal discuss section 1319(c)(1) and little jurisprudence ana- statute applicable to industrial activities.” (Id.) Justice lyzes it. Thomas also felt that the seriousness of the punitive mea- One of the more troubling questions raised by sec- sures available under the CWA strongly militated against tion 1319(c)(1) is how to synthesize the juxtaposition its classification as a public welfare statute. of traditional civil negligence with potential criminal li- Since 2000, only one appellate court has engaged in ability. The most significant case to address this issue is a substantive discussion of section 1319(c)(1), and that United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999). court followed the Ninth Circuit’s rationale. In United Hanousek involved the prosecution and conviction of States v. Ortiz, 427 F.3d 1278 (10th Cir. 2005), the Tenth the roadmaster of the White Pass & Yukon Railroad in Circuit was faced with the question of whether the gov- connection with a pipeline breach—caused by an inde- ernment had to prove that a defendant knew his conduct pendent contractor of the railroad while the defendant would result in a discharge into a navigable water. The was off duty and at home—which resulted in the release court rejected this formulation of section 1319(c)(1), of as much as 5,000 gallons of oil. Affirming the convic- holding that “an individual violates [1319(c)(1)] by failing tion, the Ninth Circuit rejected the defendant’s argument to exercise the degree of care that someone of ordinary that a “heightened negligence standard” applied to sec- prudence would have exercised in the same circumstance, tion 1319(c)(1). (Id. at 1121.) Focusing on the “plain lan- and, in so doing, discharges any pollutant into United guage” of the statute, the court held that “Congress in- States waters, without an NPDES permit.” (Id. at 1283.) tended that a person who acts with ordinary negligence in In reaching this conclusion, the court looked to tradi- violating [the CWA] may be subject to criminal penalties.” tional common-law negligence cases and treatises (such (Id. (footnote omitted).) The court also rejected a direct as Prosser and Keeton on Torts). At least in the mind of due process challenge to section 1319(c)(1), concluding the Tenth Circuit, traditional civil negligence could lead that the CWA was a “public welfare statute” and that “[i]t to a misdemeanor conviction under the CWA. is well established that a public welfare statute may subject Although there is little published district court au- a person to criminal liability for his or her ordinary negli- thority on this issue, at least one district court has recent- gence without violating due process.” (Id.) ly followed the lead of Hanousek and Ortiz. (See United Edward Hanousek sought review of the Ninth Cir- States v. Atlantic States Cast Iron Pipe Co., Criminal No. cuit’s decision by petitioning the U.S.