Sunday, October 16, 2016

EPA: Criminal Provisions of Clean Water Act -- Are Our Florida Governments Lawbreakers?


Criminal Provisions of the Clean Water Act

 

Direct Discharge (to waters of United States including wetlands)

Elements:
  • A person
    • Negligently or Knowingly
      • Discharges a pollutant from a point source into a water of the United States without a NPDES or 404 Permit or in violation of a permit
photograph of discharge drain
Statute: 33 U.S.C. 1319(1) & (2)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 122
*Note that the Discharge of fill material into a wetland may be permitted under 33 U.S.C. 1344
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Discharges of Oil or Hazardous Substances

Elements:
photograph of discharging oil out a pipe
  • A Person
    • Negligently or Knowingly
      • Discharges Oil or a Hazardous Substance Into a water of the United States/upon adjoining shorelines/into the contiguous Zone In a Harmful Quantity
Statute: 33 U.S.C. 1319(1) & (2) & 1321 (b)(3)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 110, 116 & 117
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Failure to Report Discharges of Oil & Hazardous Substances

Elements:
 
  • A Person
    • In charge of a Vessel, onshore or offshore facility from which oil or hazardous substance is discharged in a reportable (harmful) quantity into or upon waters of the United States/upon adjoining shorelines/into the Contiguous Zone fails to immediately notify the appropriate Federal Agency as soon as he/she has knowledge of the discharge
Statute: 33 U.S.C. 1321(b)(5)

Penalty:
  • 5 years and/or fines under 18 U.S.C. 3571
Relevant Regulations: 40 C.F.R. 110, 116 & 117
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Discharge to a POTW in violation of Federal Pre-Treatment Standards

Elements:
 
  • A Person
    • Negligently or Knowingly
      • Operates a source in violation of an applicable pretreatment standard *
Statute: 33 U.S.C. 1319 (1) (A) & (2)(A)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 403


*General Pretreatment Prohibitions found at 40 C.F.R. 403.5(a) ("Pass Through" & "Interference"); Specific Pretreatment Prohibitions found at 40 C.F.R. 403.5(b){excessive heat, oil, toxic gases, trucked pollutants, etc.}; Local Limit Provision found at 40 C.F.R. 403.5(d); Categorical Standards found at 40 C.F.R. 403.6-424
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Discharge to a POTW in violation of a Local Pre-Treatment Program

Elements:
 
  • A person owns or operates a source
    • Negligently or Knowingly
      • In violation of an approved Local Pre-treatment Program
Statute: 33 U.S.C. 1319(1) (A) & (2)(A)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 403
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Discharge to a POTW causing harm to the system

Elements:
 
  • A Person
    • Negligently or Knowingly
      • Introduces a pollutant or hazardous substance into a POTW and knew or reasonably should have known such pollutant could cause injury or damage
Statute: 33 U.S.C. 1319(1) (B) & (2)(B)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 403
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Discharge to a POTW causing the plant to violate its own Permit/Limitation

Elements:
 
  • A Person who Owns or Operates a Source
    • Negligently or Knowingly
      • Discharges a pollutant or hazardous substance into a POTW other than in compliance with all federal, state, and local requirements and permits which causes the POTW to violate its permit or effluent limitation.
Statute: 33 U.S.C. 1319 (1) & (2)

Penalty:
  • Negligent Violations: 1 year and/or $2,500 - 25,000 per day;
    • Subsequent convictions 2 years and/or $50,000 per day.
  • Knowing Violations: 3 years and/or $5,000 - 50,000 per day;
    • Subsequent convictions 6 years and/or $100,000 per day.
Relevant Regulations: 40 C.F.R. 403
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CWA Knowing Endangerment

Elements:
 
  • A Person
    • Knowingly Committed Specified Offense (33 U.S.C. 1311, 1312, 1313, 1316, 1317, 1318, 1321(b)(3), 1328, 1345, or permits issued under 1342 or 1344)
      • Knew at the time that such acts put another person in imminent danger of death or serious bodily injury
Statute: 33 U.S.C. 1319(3)

Penalty:
  • 15 years and/or $250,000 ($1,000,000 for corps.); subsequent convictions doubled.
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CWA False Statements

Elements:
 
  • A Person
    • Knowingly
      • Makes a false statement, representation, or certification statement/representation/certification was material in any document filed or required to be maintained under the CWA
Statute: 33 U.S.C. 1319(4)

Penalty:
  • 2 years and/or $10,000; subsequent convictions 4 years and/or $20,000 per day
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Tampering with Monitoring Equipment or Method

Elements:
 
  • A Person
    • Knowingly
      • Falsifies, Tampers with, or renders inaccurate monitoring device or method required to be maintained under CWA
Statute: 33 U.S.C. 1319(4)

Penalty:
  • 2 years and/or $10,000; subsequent convictions 4 years and/or $20,000 per day

Rivers and Harbors Act of 1899

Elements:
 
  • A Person or corporation
    • Obstructs, builds, excavates, fills, alters the course, condition, or capacity of any traditionally navigable water of the United States without a permit
Statute: 33 U.S.C. 401

Penalty:
  • Misdemeanor level offenses with maximum 1 year imprisonment and/or fines of up $100,000 for individuals and $200,000 for corporations (see alternative Fines Act 18 U.S.C. 3571). Violations of section 407/411 have mandatory minimum imprisonment of 30 days and fine of $500. Violations of section 403/406 have mandatory minimum fine of $500.
Relevant Regulations:33 C.F.R. 320-323
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Marine Protection, Research, and Sanctuaries Act (MPRSA) or "Ocean Dumping Act"

Elements:
 
  • A Person
    • Knowingly
      • Transports material from the United States For the purpose of dumping Into ocean waters Without a permit or in violation of a permit or in violation of regulations
or
  • A Person
    • Operated or was employed by a United States vessel, aircraft, department, agency, etc. and Knowingly
      • Transported material from any location for the purpose of dumping into ocean waters without a permit or in violation of a permit or in violation of regulations
Statute: 33 U.S.C. 1411

Penalty:
  • Maximum fine $250,000 and/or maximum imprisonment 5 years under 18 USC 3571. [see USC 1415 (c)] Forfeiture to the U.S., any proceeds from violation and any property used in violation.

Act to Prevent Pollution from Ships

Elements:
 
  • Knowing violation of the MARPOL Protocol, the Act, or regulations (relating to wastes from ships, including garbage, oil, and hazardous substances.
Statute: 33 U.S.C. 1908(a)

Penalty:
  • Imprisonment of not more than 10 years and/or fines as set forth in 18 U.S.C. 3571
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