LEGAL REGIME GOVERNING OFFENCES AND PENALTIES FOR WATER POLLUTION IN THE UNITED STATES OF AMERICA
4.2 Offences and penalties for water pollution in the United States
concentration of a pollutant that may be discharged.4 Waters of the United States are broadly defined in EPA regulations to include navigable waters, tributaries of navigable waten., interstate waters, intra-state lakes and waters used by inter-state travellers for recreation or by businesses engaged in interstate commerce. 5 The Clean Water Act requires certain industrial discharges of pollutants to comply with national technology
based effluent standards.6 These standards are primarily set by various states.7 The dischargers must comply or respect the national effluent standards in order to maintain and preserve fishable and swimmable waters.
4.2.1 Criminal penalties
4.2.1.1 Negligent violations
A pen.on who negligently violates any condition in a permit or negligently introduces into a sewer system or into publicly owned works any pollutant or hazardous substances which such person knew, or reasonably should have known, to cause personal injury or property damage in contravention with all applicable Federal, State, local requirements or pennits shall he punished by a fine of not less than $ 2 500 nor more than $ 25 000 per day of violation, or by imprisonment for not more than one year, or by both.8 Upon
4 W L Andreen. Water Quality Today - Has the Clean Water Act Been a Success? Land Use and Environmental law Revie.t.· (2005) 543 at 574, Clean Water Act op cit (n. 2) § 1311 (a).
5 GA Lucero & J M Praitis. "US Clean Weter Act Regulation of Point Source Discharges" in P Thomas.
Water Pollution Law and Liability (1993) 145 at 146 - 147.
6 Ibid at 145.
7 Ibid at 146.
8 Clean Water Act op cit (n. 2) § 309 (c) (1) (A) and (B).
subsequent conviction, the ofiender shall be liable to a fine not more than $ 50 000 per day of violation, or by imprisonment of not more th an two years, or by both. 9
4.2.1.2 Knowing violations
Knowing violations are also criminalized. A person who knowingly introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew, or reasonably should have known, could cause personal injury or property damage or, other than in compliance with all applicable Federal, State or local requirements or pemtlts, which causes such treatment work to violate any effluent limitation or condition in a permit, shall be punished by a fine not less than $ 5 000 nor more than $ 50 000 per day of violation, or by imprisonment of not more than three years, or by both. 10 If the person is subsequently convicted of the same offence, he or she will be liable to a fine of not more than $ 100 000 per day of violation, or imprisonment not exceeding six years, or by both. 11
4.2.1.3 Knowing endangerment
Knowingly putting individuals in danger is an offence. As a general rule, any person who knowingly contravenes any permit condition or limitation issued by the Administrator or a State and who knows at that time that he or she thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a
9 Ibid.
10 Supra § 309 (c) (2) (B).
11 lbid.
fine not exceeding $ 2 5 0 000 or imprisonment of not more than 15 years, or both. 12 If the person is an organization, it shall, upon conviction, be liable to a fine not more than $ 1 000 000. 13 In the event of a subsequent conviction, the maximum punishment shall be doubled with respect to both fine and imprisonment. 14
4.2.2 Administrative penalties
Whenever, on the basis of any information available, the Administrator or the Secretary of the Army finds that a person has violated any condition or limitation in a permit, the Administrator or Secretary, as the case may be, may, after consultation with the State in which the violation occurs, assess a class I or class II civil penalty.15 The amount of a class I civil penalty may not exceed $ IO 000 per violation, except that the maximum amount of any class I civil penalty shall not exceed$ 25 000.16 Before issuing an order assessing a class I civil penalty, the Administrator or Secretary, as the case may be, shall give to the person to be assessed such penalty written notice of the proposal to issue such an order and the opportunity to request, within 30 days of the date the notice is received by such person, a hearing on the proposed order.17 Such a hearing shall provide a reasonable opportunity to be heard and to present evidence.18
12 Ibid§ 309 (c) (3) (A).
13 Ibid.
14 lbid.
15 Ibid§ 309 (g) (1) (A) and (B).
16 Ibid§ 309 (g) (2) (A).
17 Ibid.
l� lbid.
The amount of class II civil penalty IIUtY not exceed$ 10 000 per day for each day during which the violation continues; except that any class 11 civil penalty shall not exceed$ 125 000. 19 A class II civil penalty shall be assessed and collected after notice and opportunity for a hearing on the record.20 The Administrator and the Secretary may issue rules for discovery procedures for hearings.21
In determining the amount of any penalty, the Administrator or the Secretary, as the case may be, shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violations and such other matter as justice may require.22 A single operational upset which leads to simultaneous violations of more than one pollutant parameter is
d ' gl ·1 · 23 treate as a sm e v10 ation,