Water Pollution: Criminal Or Civil Offense?

Water pollution is a pressing issue that has attracted the attention of green criminologists, who refer to it as a green crime. Water pollution is a criminal offense that endangers public health and safety and threatens environmental sustainability. Criminal enforcement statutes regarding water pollution are primarily contained in Title 33 of the United States Code, with a few in Titles 18 and 42. The Clean Water Act (CWA) is a key piece of legislation that regulates waters of the United States and criminalizes the dumping of waste, debris, and other forms of water pollution. The CWA covers publicly and privately owned rivers, lakes, and waterways, and those protected by state and federal laws. Violations of the CWA can result in criminal charges, with penalties including imprisonment and substantial fines. The Environmental Crimes Section (ECS) works with criminal investigators to gather evidence and prosecute water pollution crimes, targeting those who intentionally disregard environmental statutes. International organizations like INTERPOL also play a crucial role in combating marine pollution crimes through global operations and intelligence-led initiatives.

Water pollution as a green crime

Water pollution is a significant issue that has attracted the attention of various disciplines, including law, sociology, and Marxism. While it is recognised as a criminal offence in many jurisdictions, the specific characterisation of water pollution as a "green crime" is an emerging concept that has not yet been extensively studied by green criminologists.

Green criminology, an interdisciplinary field, examines the intersection of crime and the environment, with a focus on the ecological and societal impacts of human activities. Water pollution, caused by the discharge of pollutants into water bodies, is a prime example of a green crime. It encompasses a range of activities, from illegal dumping by individuals to the emission of pollutants by state-owned treatment facilities.

The characterisation of water pollution as a green crime acknowledges the adverse ecological and public health consequences that can arise from these activities. For instance, the illegal release of mercury into rivers and the sea during mining activities endangers ecosystems and water supplies, threatening environmental sustainability and public health. Similarly, emissions from publicly owned treatment works (POTWs) can lead to ecological disorganisation, even when they operate within legal limits.

The prosecution of water pollution as a green crime varies across jurisdictions. In the United States, the Environmental Crimes Section (ECS) plays a pivotal role in investigating and prosecuting water pollution crimes. They work closely with criminal investigators to gather evidence and build cases under various statutes, including the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The ECS also considers the impact on victims, ensuring that their voices are heard and injuries addressed.

To establish criminal intent, the prosecution must demonstrate that the defendant acted "knowingly," exhibiting voluntary and intentional conduct. This standard also applies to crimes involving the falsification of records or failure to comply with workplace safety standards, particularly in cases involving asbestos removal or pollution from ships in international waters. The penalties for water pollution crimes can include incarceration, fines, restitution, and community service, with the specific penalties varying based on the nature and severity of the offence.

Criminal provisions of water pollution

Water pollution is considered a criminal offense in the United States, with the Environmental Protection Agency (EPA) outlining specific criminal provisions related to water pollution. These provisions aim to deter and punish those who knowingly or negligently discharge pollutants into water bodies or fail to comply with federal, state, and local regulations.

The criminal provisions of water pollution are outlined by the EPA and include penalties for various violations. Here are the key provisions:

• Negligent Discharge of Pollutants: Negligent violations involve discharging pollutants into water bodies without the required permits or in violation of permits. This includes discharges into publicly owned treatment works (POTW) facilities, which are allowed to emit certain amounts and types of pollutants after treatment. Negligent violations carry penalties of up to 1 year imprisonment and/or fines ranging from $2,500 to $25,000 per day for the first conviction. Subsequent convictions can result in up to 2 years imprisonment and/or fines of up to $50,000 per day.
• Knowing Discharge of Pollutants: Knowing violations occur when individuals or entities knowingly discharge pollutants into water bodies, understanding the potential harm caused. These violations carry more severe penalties, including up to 3 years imprisonment and/or fines ranging from $5,000 to $50,000 per day for the first conviction. Subsequent convictions can result in up to 6 years imprisonment and/or fines of up to $100,000 per day.
• Obstruction or Alteration of Navigable Waters: This provision pertains to obstructing, building, excavating, filling, or altering the course of navigable waters in the United States without obtaining the necessary permits. It is considered a misdemeanor offense with maximum penalties of 1 year imprisonment and/or fines of up to $100,000 for individuals and $200,000 for corporations. Certain violations, such as those involving the transportation of materials for ocean dumping without permits, carry mandatory minimum imprisonment of 30 days and a fine of $500.
• Failure to Report Oil or Hazardous Substance Discharges: Individuals or entities in charge of a vessel or facility from which oil or hazardous substances are discharged in harmful quantities into US waters must immediately notify the appropriate federal agency. Failure to do so can result in penalties of up to 5 years imprisonment and/or fines determined under 18 U.S.C. 3571.
• Environmental Crimes Prosecution: The Environmental Crimes Section (ECS) plays a crucial role in prosecuting federal pollution crimes. They work with criminal investigators to gather evidence and build cases, primarily targeting those who knowingly disregard environmental laws to gain economic advantages. ECS prosecutions focus on proving intentional conduct and ensuring that environmental violators are held accountable.

These criminal provisions of water pollution are in place to deter and punish those who contribute to water pollution, protecting the environment and public health. The penalties vary depending on the nature of the violation and the extent of harm caused.

Pollution crimes and penalties

Water pollution is a criminal offense, and in the US, the Environmental Crimes Section (ECS) works with criminal investigators to develop evidence to support prosecutions under a broad array of statutes. The ECS was created to ensure that businesses that intentionally disregard environmental statutes do not gain a competitive advantage over those that bear their share of the cost of clean air, water, and land.

Most environmental crimes require proof of a pollution event, such as the discharge of a pollutant into water, and proof of criminal intent. The government usually proves intent by showing that the defendant acted "knowingly", meaning voluntarily and intentionally. In some cases, the intentional failure to comply with workplace safety standards or the intentional falsification of records may be what drives the analysis of intent.

The penalties for water pollution crimes can vary depending on the specific statute violated and the severity of the offense. For example, negligent violations of certain statutes may result in penalties of up to 1 year in prison and/or fines of up to $25,000 per day, while subsequent convictions for the same offense can lead to 2 years in prison and/or $50,000 per day in fines. Knowing violations of certain statutes can result in even harsher penalties, including up to 3 years in prison and/or fines of up to $50,000 per day, with subsequent convictions doubling the penalties.

In addition to criminal penalties, civil penalties may also be imposed for water pollution offenses. For example, in the US, the Environmental Protection Agency (EPA) can issue administrative orders requiring violators to take action to correct non-compliance with environmental laws and can also assess civil penalties for non-compliance.

Environmental crimes and investigations

Water pollution is a criminal offense and is investigated by the Environmental Protection Agency (EPA). The EPA's Criminal Enforcement Office works with the Department of Justice's (DOJ) Environmental Crimes Section to enforce environmental laws and regulations. These laws include the Clean Water Act (CWA), which regulates the "waters of the United States" and criminalizes the dumping of waste, debris, and other forms of water pollution. The CWA covers rivers, lakes, and waterways that are publicly owned, privately owned, or otherwise protected by state and federal laws.

The EPA can prosecute individuals or corporations that violate these laws, and the burden of proof lies with the EPA investigators. The penalties for violating the CWA can include imprisonment, fines, or both. For example, individuals found guilty of misdemeanor-level offenses can face up to one year in prison and/or fines of up to $100,000, while corporations can be fined up to $200,000. More severe violations can result in mandatory minimum imprisonment of 30 days and/or fines of $500 or more.

In addition to the CWA, other federal laws such as the Clean Air Act (CAA) and environmental regulations prohibit activities that contribute to water pollution, such as the illegal disposal of waste, the use of illegal chemicals in oil blending, and the release of mercury into rivers and the sea. These laws and regulations are enforced through investigations and inspections by the EPA and other law enforcement agencies, such as the Coast Guard and Interpol.

For example, in 2013, the Coast Guard inspected the M/T Bow Lind, a chemical tanker ship, and discovered that the crew had discharged oily bilge water directly into the sea in international waters. This led to guilty pleas and penalties for the ship owner and chief engineer, including incarceration, fines, and the implementation of an environmental compliance plan.

Another case involved an investigation of a coke facility in Tonawanda, New York, which uncovered intentional environmental criminal violations, including the discharge of waste and false claims against the United States. The defendant in this case pleaded guilty and was sentenced to ten months in prison and $270,667 in restitution.

These cases demonstrate the investigative and enforcement actions taken by the EPA, DOJ, and other agencies to address environmental crimes related to water pollution. The prosecution of these crimes aims to protect public health, safety, and the environment, as well as ensure compliance with federal and state regulations.

Civil and criminal cases against individuals and corporations

Water pollution is a criminal offense, and both individuals and corporations can be held accountable through civil and criminal cases.

Civil and Criminal Cases Against Individuals

Civil cases against individuals for water pollution can involve seeking compensation or injunctions to stop the polluting activity. For example, in a case involving water diversion from an adjacent wetland, an individual was ordered to pay a fine and restitution to affected neighbors. Criminal cases, on the other hand, can result in imprisonment and/or fines. Misdemeanor-level offenses for water pollution can carry a maximum of one year of imprisonment and/or fines up to $100,000 for individuals. More severe violations, such as those causing personal injury or property damage, can lead to higher fines and longer imprisonment.

Civil and Criminal Cases Against Corporations

Civil cases against corporations often involve seeking monetary compensation and injunctions to prevent further harm. For instance, in a case against Noble Drilling (U.S.) LLC, the company was sentenced to pay millions in fines and perform community service. Criminal cases against corporations can result in substantial fines, with maximum fines of $200,000 for misdemeanor-level offenses. Corporations may also face additional requirements, such as implementing environmental compliance plans during a probationary period.

In both civil and criminal cases, the Environmental Crimes Section (ECS) plays a crucial role in gathering evidence and presenting the case to a grand jury for indictment. The prosecution team must carefully consider victims' rights and ensure that their cases are robust, especially when facing sophisticated white-collar crime defense counsel.

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