Ordinary negligence is sufficient to convict a defendant of criminal conduct under the Clean Water Act (CWA), and the prosecution need not establish that gross negligence occurred. Neither, under the CWA, is direct evidence necessary to establish intent if the prosecution can establish that the experience of the defendant was so extensive that there could no reasonable doubt that the defendant knowingly committed a criminal violation.

Those key findings are included in an opinion handed down by the 5th Circuit U.S. Court of Appeals in a criminal case involving the manager of 28 wastewater treatment facilities in northern Louisiana. The ruling should provide guidelines to both the regulated community and government attorneys on whether alleged CWA violations warrant civil or criminal prosecution.

United States v. J. Pruett; Louisiana Land & Water Company; and LWC Management Company (United States v. Pruett; 5th Cir., No. 11-30572, May 15, 2012) originated with charges that between 2005 and 2008, Pruett failed to provide proper operation and maintenance at 6 of the 28 facilities; failed to maintain monitoring results as required by NPDES permits issued by the state of Louisiana; allowed discharges in excess of effluent limitations; and allowed unpermitted discharges. The charges involved both knowing violations, which are felonies, and negligent violations, which are misdemeanors.

Pruett was found guilty in district court and sentenced to prison for 21 months incarceration for the felonies and 12 months for the misdemeanors, with the sentences to run concurrently. The defendant's attorneys did not dispute that violations occurred, but they argued that evidence presented by the government was insufficient to establish criminal conduct.

Regarding discharges at one treatment facility, which were in excess of permitted limits, the defense argued that the government did not present enough evidence to establish that intent was present. According to the government's complaint, discharges at the facility were double or triple the amounts allowed by the permit, and Pruett had made illegal use of a makeshift rail car to receive the discharges. The government said Pruett had worked in the industry since 1986, was "familiar with his permit obligations," and also knew that the rail car was not authorized for water treatment purposes. The 5th Circuit pointed out that intent can be proven by either direct or circumstantial evidence, and, in this case, concluded that "a rational trier of fact could have found beyond a reasonable doubt that [Pruett] knowingly violated the permit limitations."

The same line of reason was used to charge Pruett with knowingly failing to maintain monitoring records on site as required by permit. The defense explained that the records were in the hands of Pruett's attorney in Baton Rouge, that inspectors had access to those records, and that any violation of the recordkeeping requirement was unintentional. The 5th Circuit disagreed, stating that Pruett did not provide access to the records merely by stating that they were with his attorney in Baton Rouge. Again, given his experience, the Court ruled that Pruett knew of his obligations, but intentionally failed to turn over his records to inspectors.

Since, the government's case was largely based on charges that Pruett acted negligently, the defense urged the Court to define negligence as a "gross deviation from the standard of care that a reasonable person would observe in the defendant's situation." Upon reviewing CWA language, the 5th Circuit instead found that an interpretation offered in another case – that "nothing in the statute's terms suggesting that the words 'misconduct, negligence or inattention,' were ever meant to imply gross negligence or heat of passion" – was "equally applicable" to the CWA, and supports the conclusion held by court that the statute imposes an "ordinary negligence" standard. In other words, the government did not need to clear the higher gross-negligence bar to defeat the appeal.

The defense was equally unsuccessful in its argument that the government's case was flawed because it relied on "uncharged offenses" and that the charged offenses were isolated and accidental incidents. "There is no dispute that Appellants were the perpetrators of the offenses, and the uncharged offenses were the same type of environmental crimes as the charged offenses," stated the 5th Circuit. "Although the evidence of uncharged conduct was substantial, it did not overwhelm the charged conduct."

Read the 5th Circuit's opinion in United States v. Pruett.