Environmental Law – Criminal liability under the Water Act

ENVIRONMENTAL LAW – CRIMINAL LIABILITY UNDER THE WATER ACT

ABSTRACT
The water act establishes criminal penalties of fines and imprisonment for non compliance of the water act. This research paper deals with various criminal liabilities which are charged against the polluters and the waste water officials who pollute the water. The research also takes us through the various case laws decided by the supreme court which deals with the criminal prosecution of the offenders under the water act.

The water Act requires any individual or corporation seeking to discharge pollutants to obtain a permit from the Environmental Protection Agency (EPA). The permit establishes the maximum amount of particular pollutants that may be discharged from facilities such as industrial and sewage treatment plants over a set period of time. Whoever does not adhere with such norms , they can be prosecuted under criminal liability.

It is becoming increasingly easy for wastewater officials and operators to be sent to jail for water pollution violations. Though the difference between civil and criminal violations are usually a matter of the defendant’s knowledge and intent. Several recent court decisions are narrowing the gap.

RESEARCH QUESTIONS

1. What are the criminal liabilities associated with violating the water act?
2. Who shall be sent to jail under criminal liability for waste water violation?

CRIMINAL LIABILITY
The water act establishes criminal penalties of fines and imprisonment for noncompliance with section 33 orders, section 20 directions concerning information, section 32 emergency orders and section 33A directions issued by a state board. ¹Polluters violating the act are also subject to criminal penalties. ²The 1988 amendments to the water act increased the penalties for these offences, bringing them into line with the 1987 amendments to the air act.

Section 47 of the water act extends liability for violations committed by companies to certain corporate employees and officials. The act also extends liability for violations to heads of government departments when a department has committed a violation, unless the department head can prove that the offence was committed without the knowledge or that he exercised all due diligence to prevent the commission of the offence.³

The threat of imprisonment and fines, the liability of individual corporate officials has been the subject to extensive litigation. Challenges to actions against corporate officials generally are in the form of motions to quash the action, brought under section 482 of the code of criminal procedure which recognizes the inherent powers of a high court to prevent an abuse of the judicial process or to secure the ends of justice.

Many courts refused to grant these motions when they are based on technical defects in pleadings. ⁴

in Uttar Pradesh pollution control board v. Modi distillery⁵, the supreme court reversed an order quashing a prosecution under section 44 of the water act. The state board initiated the prosecution under section 47 against the company and its corporate officials. The board’s complaint erroneously designated corporate officials as officials of Modi distillery, instead of Modi Industries Limited. The corporate officials sought to quash the prosecution on the ground that under section 47 corporate officials could not be prosecuted if the company was not also prosecuted.

The Supreme Court was hostile to the claims of the corporate officials because, in this case, the officials had failed to respond to the board’s request for information concerning the corporation. The Supreme Court also found that the technical flaw in the complaint could be easily removed by having the matter remitted to the chief judicial magistrate with a direction to cal upon the state board to make formal amendment in the averments of the complaint by simply substituting the proper name of the company.

Twelve years after Modi Distillery the farce continues. In UP pollution control board v. Mohan Meakins Ltd.⁶, the Supreme Court revived a prosecution launched in 1983 against the company and its directors that had been erroneously quashed by the session’s court. The case had languished in the lower courts for sixteen years. those who discharge noxious polluting effluents into streams may be unconcerned about the enormity of the injury which it inflicts on the public health at large, the irreparable impairment it causes on the aquatic organisms , the deleteriousness it imposes on the life and health of animals. So the courts should not deal with prosecution for offences under the act in a causal or routine manner’.

In K.K.Nandi v. Amitabha bannerjee,⁷ the Calcutta high court rejected a motion to quash a prosecution against the manager of a beer company. The manager argued that the complaint was defective because it did not enumerate how he was responsible for the operations of the plant and how he had violated sections 25 and 26 of the act. The court rejected the argument and ruled that a person designated as a manager of a company is prima facie liable under section 47 of the act. Whether or not a person designated ‘manager’ was in fact in overall charge of the affairs of the factory and whether or not he had any knowledge of the violations of the act were held to be questions of fact which could be considered at the trial. ⁸

What are the criminal liabilities associated with violating the clean water act?
The Water Act governs the discharge of pollutants into navigable waters. Navigable waters have been defined as any waters in which one is able to navigate through, including streams or creeks that feed navigable bodies of water. The Act requires any individual or corporation seeking to discharge pollutants to obtain a permit from the State board or the central board. The permit establishes the maximum amount of particular pollutants that may be discharged from facilities such as industrial and sewage treatment plants over a set period of time. The place or facility where the pollutants are discharged from is known as the point source.

Haryana state board v. Jai Woollen finishing works⁹ , Jai Bharat discharged untreated effluents into an open drain in panipat city without obtaining the consent of the board. A number of notices issued by the board were ignored by the firm and eventually on the basis of a test sample; the board prosecuted the firm, one of its partners and managers. The trail court acquitted the accused on the ground that the discharge was onto vacant land and did not constitute an offence. Partly allowing the board’s appeal, the high court held that the discharge of a trade effluent, without the consent of the board did constitute an offence. it made no difference whether the trade effluent was discharged into a municipal drain or flood directly onto land. However, the court held that in the absence of prof that the concerned partner was in charge of or was responsible to the firm for the conduct of business, it would not be possible to convict the partner. On this interpretation, the court upheld the acquittal of a sleeping partner who did not participate in the business of the firm, while imposing a nominal fine of Rs 300 on the firm and Rs 2,500 on its manager.

A knowing violation of the Act constitutes a felony. A knowing violation of the Act occurs when an individual or corporation knowingly discharges pollutants into navigable waters. It is not relevant whether the individual or corporation knew that they actually violated the Act. The prosecution is only required to show that the defendant knowingly engaged in conduct resulting in a violation. Specific intent is not required for a conviction under the Act. Additionally, any false statements or misrepresentations in any document or tampering with a monitoring device constitute a knowing violation of the Act. For individuals, the statutory penalty for a knowing violation of the Act is a fine of up to a maximum amount of Rs2500 and a maximum of 5 years imprisonment. With respect to corporate violations the fine may be up to a maximum amount of Rs1000. With respect to the sentencing guidelines, the penalty for making a false statement or misrepresentation under the Act is a maximum fine of Rs10000 and/or two years imprisonment, or both. With respect to repeat offenders of knowing violations, the Act provides for the doubling of all potential punishments, fines and prison terms alike.¹⁰

In J.S.huja v. state¹¹, the Allahabad high court considered an application to quash a complaint filed by the Uttar Pradesh pollution control board. Since the company was discharging its effluent without obtaining consent, the board prosecuted the secretary and the directors of the company, alleging that they were responsible for the conduct of the day to day business of the company and was guilty of the omission. The applicants pleaded that they had retired and in any event, could not be prosecuted since they were not �?responsible to the company for the conduct of the businesses. The high court rejected the application holding that disputed questions of fact cannot be looked into under section 482. The complaint must be examined as filed and since there was a clear allegation that the applicants were responsible for the conduct of the work of the company when the offence was committed, there was no reason to quash the complaint. ¹²

Who shall be sent to jail under criminal liability for waste water violation?
The Clean Water Act allows sentences of up to three years in jail for knowing violations, and up to one year for negligent violations. This applies not only to operators, but also to “responsible corporate officers” (including municipal officials) who have supervision over the wastewater function. Violations of NPDES (in New York, SPDES) permits are automatically violations of the Clean Water Act.

Other federal environmental statutes in addition to the Clean Water Act carry similar criminal penalties. Most relevant to wastewater operators is probably the Resource Conservation and Recovery Act, which strictly regulates the handling and disposal of hazardous waste (including some wastewater sludge). The Comprehensive Environmental Response, Compensation and Liability Act (the Superfund law) and the Emergency Planning and Community Right-to-know Act (also known as SARA Title III) impose criminal penalties for failure to report certain toxic releases.

Every state also has its own criminal environmental statutes. The New York Environmental Conservation Law, for example, imposes criminal penalties for certain violations of the water pollution regulations of the New York State Department of Environmental Conservation.

The kind of act that seems to have led to the most criminal prosecutions under the Clean Water Act and these other laws is false reporting. Several individuals and companies have been convicted for failing to report spills, falsifying test results, or concealing permit violations in their discharge monitoring reports.

Protective Measures
One key factor that, in the environmental arena, typically distinguishes a criminal prosecution from a civil one is the element of deceit. Just about any violation of an environmental statute or regulation can lead to civil fines; but prosecutors are most likely to press criminal charges if they believe that the defendant has covered up his acts, or acted with stealth or trickery.

Thus when a permit violation occurs, it is usually far better to quickly report it and take corrective measures, than to try to conceal it. If the concealment is unsuccessful, the responsible parties may find themselves in real peril.

In 1991 the U. S. Department of Justice issued a policy “Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator.” This policy highlighted three major factors to be considered by the government in deciding whether to prosecute: disclosure that is voluntary, complete and timely; cooperation with the government; and preventive measures and compliance programs. The government also takes a close look at the gravity and extent of any health or environmental impacts (actual or potential) of the violations; and whether there seems to have been a conscious decision to violate the law. These are merely considerations and not requirements, however, and criminal charges may be brought even if, for example, no one was endangered by the conduct, and this is a first violation.

The importance of internal compliance programs was emphasized by the Organizational Sentencing Guidelines issued by the U.S. Sentencing Commission. These guidelines provide that judges imposing sentences on companies and other organizations should look favorably on an “effective program to prevent and detect violations of law.”

Such a program will, according to the Commission, include compliance standards and procedures; assignment of high-level personnel to ensure compliance with them; precautions against delegating sensitive functions to employees who might have a propensity to violate the law; effective communication of the standards and procedures to all employees and contractors; monitoring and auditing systems to track compliance; and enforcement of the program through discipline of employees who violate it.

The Commission’s guidelines provide an important bench-mark for those in charge of a company or municipality’s wastewater function. The government is much more likely to be lenient if this compliance program was in effect before the violation occurred. Such a program is not a mere paperwork exercise, but is likely to significantly reduce the number and severity of violations that occur, as well as the penalties imposed.

If all goes wrong, and a criminal prosecution does ensue, it is vital for the defendants to be sure they have both expert criminal counsel and expert environmental counsel. The criminal counsel will be familiar with the procedural intricacies of the investigative and grand jury process. The environmental council will be able to find whatever of the many technical defenses may be available, and to help ensure that the company or municipality has an adequate compliance program in place. It is absolutely essential that counsel be consulted at the first whiff of a criminal investigation, because otherwise many admissions may be made and other mistakes committed that could jeopardize the defense.¹³

CONCLUSION
However, the debatable issues of the EPA are: It is unclear whether criminal prosecutions should be initiated if: the EPA has not defined a limitation on discharges of pollutants by a particular kind of business. The business or individual discharges a pollutant into navigable waters without a permit. Defendants contend that it must first be shown that they violated particular discharge limitations established by the EPA before they can be prosecuted. Many courts have held that the absence of applicable regulations by the EPA is not a defense because the Act bans discharges of pollutants without a permit.

Thus, the water act establishes criminal penalties of fines and imprisonment for noncompliance with the provisions of the act. The threat of imprisonment and fines, the liability of individual corporate officials has been the subject to extensive litigation. And also the research paper compares various water act across the country.

BIBILOGRAPHY

• Oxford India paperbacks, Shyam divan and Armin Rosencrantz, Environmental law and policy of India
• http://www.bertrandlaw.com
• http://www.arnoldporter.com
• http://sooperkanoon.com