Don’t Slip and Fall into Noncompliance: EPA’s Proposed Criminal Negligence Standard under the Clean Water Act

The Clean Water Act (CWA) provides various means of enforcement against violators of its permitting programs, including sanctions for those guilty of criminal negligence.  The chief programs in this regard are the National Pollutant Discharge Elimination System (NPDES) program addressing discharges of wastewater and stormwater into regulated “waters of the United States” and the Section 404 program addressing discharges of dredge or fill material into such waters.  For states and Indian tribes to be authorized by EPA to administer the NPDES program or the Section 404 program, the states and tribes must demonstrate sufficient authority for enforcement, including criminal enforcement, to ensure compliance with these programs within their respective jurisdictions. 

EPA recently proposed to grant more flexibility to states and tribes for enforcement of criminal negligence-based violations of their own NPDES and Section 404 programs.  In short, EPA is proposing amendments to its NPDES and Section 404 program authorization regulations at 40 C.F.R. §§ 123.27 and 233.41 to clarify that states and tribes may pick their own level of negligence for what constitutes a criminally negligent violation of their corresponding program laws and regulations.  More particularly, the amendment, if finalized, would provide that, “[t]he burden of proof and degree of knowledge or intent required under State law for establishing [criminal] violations . . . shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the [CWA], except that a State may establish criminal violations based on any form or type of negligence.”  (Emphasis added.)

Criminal enforcement is not the normal route for agencies to take; most violations are settled through administrative or civil judicial proceedings.  Still, ordinary negligence – the legal liability standard used for most retail customer slip-and-fall personal injury cases – does not present a very high burden of proof for a criminal violation of an environmental law.  As a legal principal, negligence does not require the offending party to know or intend that its action or inaction will be a violation of law or will even cause the resulting harm.  Indeed, many people may still be unaware that mere negligence can even serve as a basis for criminal liability for a violation of a Clean Water Act-based regulation or permit.  Even so, for decades now, CWA § 309(c)(1) has explicitly provided that negligence is a basis for criminal liability when EPA is the enforcing agency, and approved state and tribal CWA program laws have followed suit.

What different forms of negligence might be used by states and tribes?  Generally, negligence entails one party failing to exercise the level of care towards another party that a reasonable or prudent person would exercise under the same circumstances.  To prove someone acted negligently, one must generally show that a duty of care existed, that this duty was breached, that the breach was the legally recognizable cause of an injury, and that the injury resulted in legally recognizable damages.  Negligence can involve various injuries to people or property.  There are different degrees of negligent behavior that can lead to different levels of liability: (i) ordinary negligence, as described above; (ii) gross negligence, which goes beyond a mere accident or mistake and involves lack of any regard or great indifference; and (iii) willful, wanton and reckless negligence.  There is also negligence per se, when negligence is inferred based on a violation of some statute, regulation or rule that sets a duty of care.  In the environmental regulatory context, violation of a statutory or regulatory duty, standard or prohibition can be readily inferred as a negligent act.

EPA reasons in support of its proposed approach that the CWA provisions for authorizing state and tribal administration of NPDES and Section 404 programs do not require these state and tribal enforcement powers to mirror exactly EPA’s provisions under CWA § 309 to effectuate reasonably sufficient and enforceable programs.  EPA also expresses concern that some state constitutions may limit criminal sanctions for ordinary negligence, the level of negligence set by CWA § 309 for EPA enforcement based on criminal negligence.  Therefore, EPA considers it appropriate to let states and tribes sort out which level of negligence fits best within their respective program enforcement regimes. 

Despite the relatively low bar of proof for negligent violations, CWA § 309’s sanctions for criminal negligence have serious teeth: a fine of at least $2,500 and up to $25,000 per day of violation, or imprisonment for up to one year, or both, with a second offense triggering twice these limits.  As noted, state NPDES programs and Section 404 programs already include criminal negligence liability, and they also carry substantial sanctions.  See, e.g., Virginia State Water Control Law, Va. Code § 62.1-44.32(b) (negligent violation of this statute or related regulation, order or permit generally constitutes a “misdemeanor punishable by confinement in jail for not more than 12 months and a fine of not less than $2,500 nor more than $32,500, either or both”).

The net result of the proposed rulemaking would be that states and tribes may set levels of negligence that hinge on a higher burden of proof, such as gross negligence, for criminal liability to be imposed, or they may choose to keep ordinary negligence as the requisite standard for this liability.  While some greater flexibility may be in the offing, no one should view the proposed amendments as an abandonment of criminal negligence sanctions altogether; some type of criminal negligence sanction is still expected as part of the enforcement arsenal for state and tribal NPDES or Section 404 programs.  Where the state or tribe does not have an approved program, EPA will have program primacy, so CWA § 309’s ordinary negligence standard would apply.

The public comment period for EPA’s proposed regulatory amendment ends January 13, 2021.  No doubt, some will praise it as reasonable regulatory flexibility for states and tribes, while others will pan it as a reckless disregard of EPA’s duty to ensure adequate enforcement by the states and tribes that will in turn damage the fabric of CWA programs nationally.  It remains to be seen whether, once the noise and dust settle from the related clash of competing viewpoints, EPA’s proposal is found to be a reasonable and prudent action or neglectful regulatory oversight.

Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs, 85 Fed. Reg. 80713 (December 14, 2020).