March 2006
Legally Speaking with Brad Tamarro


Negligence is a Crime – Not an Accident

In the legal world, disputes often turn on the meaning of a word. In most cases, a specific statute will explain or define crucial concepts or terms, allowing people to conform their actions to the requirements of that law. This is especially important in criminal litigation where lengthy jail terms may be imposed when a dispute is resolved in favor of the government. When the statute at the center of the storm does not clearly define a relevant term or concept, the potential for a misstep that can lead to a criminal conviction is greatly increased.

The Clean Water Act prohibits the discharge of pollutants to the waters of the United States and contains both civil and criminal enforcement mechanisms.

Although the Clean Water Act has existed since 1977, the meaning of criminal negligence under the act was examined as recently as November 5, 2005, when the Federal Tenth Circuit Court of Appeals, which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, decided the case of United States v. Ortiz, 427 F.3d 1278 (2005). The importance of this decision is that, despite the length of time the Act has been around, only one other case has previously addressed the question of what constitutes a negligent crime under the Clean Water Act, United States v. Hanousek, a 1999 case heard in the Federal Ninth Circuit covering California, Hawaii, Alaska and several other western states. Thus, to the extent two fairly recent decisions constitute a “trend,” this is certainly a trend worth discussing.

Mr. Ortiz was the operations manager for Chemical Specialties, Inc., and the sole employee of the Colorado facility that distilled aircraft de-icing fluid. While the process generated large amounts of wastewater, the company did not obtain a discharge permit. Instead, it represented that it would ship all wastewater to a nearby business. In April 2002, a complaint of a noxious onion-like odor associated with the discharge of a black substance from a storm drain into the Colorado River led inspectors to Chemical Specialties. Samples that were taken contained elements consistent with the de-icer being distilled by the company.

In early May, inspectors told Ortiz that the black substance reeking of onions seemed to be coming from his facility and asked him if he had discharged any wastewater, which he denied. An inspection of the facility disclosed a large amount of water on the bathroom floor and several hoses and pumps lying nearby, as well as a strong odor of onions and a black substance which Ortiz stated was used in the distillation process. Samples of pooled water at the storm drain taken during a follow-up inspection disclosed elements consistent with the de-icer distilled by Chemical Specialties. A test conducted during the first week of June established that the toilet was connected to the storm sewer that discharged to the river. Ortiz was informed of the test results and the water was shut off at Chemical Specialties. Ortiz was told not to dump anything down the toilet or sink.

A complaint inspection in mid-June revealed a tanker truck leaking a liquid onto the ground and the distinctive onion-like odor. In addition, the storm drain again contained the odorous black liquid. Inside the facility, the water had been turned back on, the toilet appeared operational and large puddles of water with hoses lying nearby were once again found in the bathroom.

Ortiz was charged with negligently discharging a pollutant to the Colorado River for the time frame that covered the period immediately after when he was told by the inspectors that they thought the toilet was hooked to the storm drain and was discharging to the river. He also was charged with knowingly discharging a pollutant for the time frame that covered after he was told that the test results established the toilet was discharging to the river. While a jury found him guilty on both charges, the judge dismissed the negligence charge, reasoning that Ortiz did not have knowledge that using the toilet would result in a discharge to the river.

The appeals court reinstated the conviction, recognizing that, as to the Clean Water Act, the ordinary meaning of the term “negligent” should have been used by the trial judge, i.e., failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances. The appeals court found that there was no requirement to prove that a person knew a discharge would enter waters of the United States.

The potential lessons to be learned from this unfortunate event are relevant to any entity using an industrial process that generates wastewater. Some actions that may be taken to ensure compliance with applicable regulations include:

•Establish clear and specific procedures to ensure that wastewater is handled in accordance with regulatory requirements.
•Where a procedure is coordinated with a governmental agency, ensure that the procedure is in fact followed.
•Obtain the required permits for handling wastewater and ensure that they are kept current.
•Ensure that all personnel who handle wastewater are properly trained in the requirements of all applicable permits and the procedures necessary to comply with them and that the terms and conditions of the permits are followed by all personnel.
•Establish procedures for internal reporting of deviations in handling wastewater that result in discharges to the environment and form action teams to eliminate the discharges and, where possible, remediate the resulting contamination.
•Establish procedures for notifying legal counsel and the appropriate governmental agencies when discharges occur.

While taking these steps will not eliminate the possibility of a criminal prosecution, it will go a long way toward limiting the potential for such a result.

 

 


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