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Another Federal Court of Appeals Finds Simple Negligence Sufficient for Criminal Liability

under the Clean Water ActDecember 2005

White Collar Alert

On November 1, 2005, the U.S. Tenth Circuit Court of Appeals joined the Ninth Circuit in holding that a

defendant can be criminally convicted of discharging a pollutant into the navigable waters of the United

States, in violation of the Clean Water Act, upon proof that the defendant was merely negligent. United States

v. Ortiz, No. 04-1228 (10th Cir. Nov. 1, 2005). The opinion is the latest in a trend in the federal courts to

premise criminal liability under the environmental laws on simple negligence, rather than on criminal

negligence or knowing and intentional conduct.

The Offending Discharges

Defendant Ortiz was employed by Chemical Specialties, Inc. as the operations manager and sole employee

of a Grand Junction, Colorado facility that distilled propylene glycol, an airplane wing de-icing fluid. The

distillation process for this chemical generates a significant amount of wastewater, which in most instances

is discharged to a municipal waste water treatment plant consistent with terms and conditions of a National

Pollutant Discharge Elimi-nation System (NPDES) permit. Here, however, Chemical Specialties declined to

obtain an NPDES permit, informing the city that it would instead ship its wastewater to a nearby business.

Investigating complaints of a noxious odor emanating from a storm drain that discharges into the Colorado

River, city employees determined that the source of the odor was a substance containing propylene glycol

that had originated at the Chemical Specialties facility.

During a subsequent inspection by city officials and the Colorado Department of Public Health and

Environment, Ortiz denied that the facility had discharged any wastewater into the Colorado River. The

inspection, however, revealed the same noxious odor on the grounds behind the facility, and significant

amounts of water on the facilitys bathroom floor, with several pumps and hoses lying nearby. The authorities

determined that the bathrooms toilet was connected to a storm drain rather than the sanitary sewer line

leading to the wastewater treatment plant, so that pollutants discharged through the toilet ended up in the

Colorado River. Accordingly, the authorities instructed Ortiz not to dump anything down the toilet or sink. They

also instructed him to shut off the bathrooms water and not use the toilet, with the city itself providing a

portable toilet and handwash station in its stead. A few weeks later, federal EPA special agents inspected the

facility and again found puddles of water on the bathroom floor with hoses again laying nearby. Further, the

water supply to the bathroom had been turned on and the toilet was operational.

A federal grand jury returned a two-count indictment charging Ortiz with violating the Clean Water Act by (1)

negligently discharging chemical pollutants from a storm drain into the Colorado River, based on discharges

that occurred before Ortiz was instructed to shut off the water and not use the toilet, and (2) knowingly

discharging chemical pollutants from a storm drain into the Colorado River, based on discharges that

occurred after Ortiz was instructed to shut off the water and not to use the toilet.

Ortizs Motion for Acquittal

Following trial, a jury convicted Ortiz on both counts. Ortiz subsequently filed a motion for acquittal on both

counts. The trial court denied the motion as to the knowing discharge, but granted the motion with respect to

the negligent discharge. The trial court reasoned that Ortiz could not be guilty of negligently discharging

pollutants because there was no evidence he knew that the toilet was connected to a storm drain that

discharged into navigable waters ( i.e. the Colorado River), rather than to a pipe going to the wastewater

treatment plant. As a result, the trial court also declined to apply sentence enhancements for an ongoing,

continuous, discharge, and a discharge without a permit. Defendant Ortiz received a sentence of 12-

months imprisonment.

The Governments Appeal

The government appealed the acquittal and the trial courts rejection of sentencing enhancements. In

reinstating the jury verdict for the negligent discharge of pollutants, the Tenth Circuit Court of Appeals noted

that the Clean Water Acts unambiguous language does not require an offender act with any particular state

of mind when discharging a pollutant. Rather, the appellate court noted, an individual violates the [Clean

Water Act] by failing to exercise the degree of care that someone of ordinary prudence would have exercised

in the same circumstance, and, in so doing, discharges any pollutant into United States waters without anNPDES permit. This, of course, is a classic statement of the negligence standard. The court of appeals

accordingly held that a criminal conviction under the Clean Water Act does not require proof that a defendant

knew that a discharge would enter U.S. waters. The court therefore reversed the acquittal regarding the

negligent discharge count and reinstated the negligent discharge conviction, ruled that the trial court had

erred failing to impose the sentence enhancements, and remanded the case to the trial court with

instructions to vacate Ortizs sentence and resentence him.

Conclusions and Recommendations

As noted, the Ortiz case continues a trend in the federal courts of imposing criminal liability under the Clean

Water Act for simple negligence. Thus an individual need not act knowingly or intentionally in order to violate

the Act. Rather, individuals may face substantial fines and incarceration for conduct that amounts to nothing

more than inadvertence and inattenti on. It is thus imperative that companies bec ome pro -active by (1)

understanding the requirements of environmental laws as applied to their operations, (2) understanding just

how its facilities dispose of chemicals and pollutants, (3) hiring competent environmental compliance

officers, and (4) assuring that all employees handling chemicals and pollutants follow clear and specific

guidelines for handling and disposing of waste materials.

SERVICES

Environmental

Litigation

Appellate Litigation

INDUSTRIESMaritime

Chemical

PROFESSIONALS

Jane F. Barrett

Jeanne M. Grasso

MATERIALS

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If you have questions or desire assistance, please contact Jane Barrett ( Barrett@BlankRome.com) or

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