United States v. Snook: Whatever You Do, Don't Rely on Your Environmental Consultant

David J. Stetler and Jonathan M. Cyrluk

In United States v. Snook (Case No. 00 CR 699 (N.D. Ill.)), the former environmental manager for the Clark Oil Company's (Clark) refinery in Blue Island, Illinois (Clark is now known as the Premcor Refining Group, Inc.), was charged with conspiring to violate the Clean Water Act, 33 U.S.C. §§ 1251, et seq. (the "CWA"), by failing to report all wastewater test results to a local water reclamation district - the Metropolitan Water Reclamation District of Greater Chicago (MWRD). Specifically, the government charged that Snook conspired to violate Section 1319(c)(2)(A) of the Clean Water Act by knowingly failing to report non-compliant wastewater test results for fats, oils and grease (FOG) and pH in violation of Section 1317(d) of the CWA.

Snook's intended defense was that he did not understand that all test results had to be reported so long as Clark obtained a sufficient number of passing test results during the testing periods. Snook planned to offer evidence that he acted in accordance with the procedures established by his predecessors at Clark, including a former EPA lawyer, as well as the advice of an outside environmental consultant hired to perform the wastewater testing and prepare the reports that were submitted to the MWRD.

Prior to trial, the government moved in limine to preclude Snook from arguing any "mistake-of-law" defenses. Snook opposed the motion, and argued that because the charged offense was one of omission (i.e., he allegedly failed to report all wastewater test results) a heightened mens rea should apply. The district court drew no distinction between crimes of omission and crimes of direct affirmative conduct, and precluded Snook from offering any evidence regarding his understanding (or lack thereof) of the reporting requirements. See United States v. Snook, Case No. 00 CR 699, 2001 WL 1335734 (N.D. Ill. June 8, 2001). After trial, Snook was convicted on all counts.

The district court's ruling, backed by a long line of cases interpreting the mens rea requirements under the CWA, highlights how certain aspects of the CWA enhance the already-significant power a prosecutor has in determining how to charge a violation of the CWA. First, under Section 1319(c)(2)(A), even a clerical worker responsible for preparing the reporting forms could be charged if he knew that all test results were not reported even if he had no knowledge of the reporting requirements and merely was following orders. Second, although the CWA creates a distinction between administrative violations (§ 1319(g)), civil violations (§ 1319(d)), criminally negligent violations of reporting requirements (§ 1319(c)(1)(A)) and knowing violations (§ 1319(c)(2)(A)), the CWA provides no guidance for what constitutes an administrative, civil, criminally negligent or knowing violation. Finally, the same set of facts could have been charged under § 1319(c)(4) of the CWA as a knowing false statement to a government agency. Had the government charged Snook with falsely reporting that Clark was in compliance with the pretreatment regulations, it would have had to prove that Snook knew that Clark was not in compliance. Necessarily, Snook's understanding of what constituted "compliance" would have been an issue. Thus, by charging Snook under Section 1319(c)(2)(A), the government sought a felony conviction with a much less stringent burden.

A lesson to be learned from Snook is that environmental practitioners must caution their clients not to blindly follow the advice of their hired consultants when dealing with a morass of regulations, permits and ordinances promulgated under the CWA. Instead, that advice should be scrutinized by outside environmental counsel. Even then, the client should choose counsel carefully. Under Snook, an advice of counsel defense is not available if the client incorrectly reports information to a water district or other authority even if the client believes he is following the law.

The Facts
For more than 20 years, Clark operated an oil refinery in Blue Island, Illinois. Clark discharged its wastewater into the MWRD's sewer system. The water was then treated by the MWRD, which in turn discharged the water into a tributary of the Mississippi River.

Like other industrial users discharging wastewater into a publicly-owned treatment facility, Clark had to comply with a web of federal regulations promulgated under the CWA, and an ordinance promulgated by the MWRD. As it related to Clark, the EPA, pursuant to its authority under the CWA, established pretreatment standards regulating oil refineries. (Section 1317(d) of the Act states that "[a]fter the effective date of any effluent standard or prohibition or pretreatment standard promulgated under this section, it shall be unlawful for any owner or operator of any source to operate any source in violation of any such effluent standard or prohibition or pretreatment standard." The CWA authorizes the Environmental Protection Agency to promulgate regulations governing the introduction of pollutants into publicly-owned treatment works (POTW), such as the MWRD. 33 U.S.C. §§ 1317(b), (c) and (d), 1318(a) and 1361(a). The EPA promulgated pretreatment regulations applicable to all industries, as well as pretreatment regulations tailored to specific industries, commonly known as the "categorical pretreatment regulations." The categorical pretreatment standards applicable to Clark are set forth at 40 C.F.R. § 419.25.) Pursuant to those regulations, Clark could not discharge wastewater into the MWRD's sewer system that contained more than 100 mg/l of FOG. Clark also was prohibited from discharging wastewater with a pH level less than 5. 40 C.F.R. § 419.25. In addition, the MWRD, based on the authority conferred upon it by the EPA (via the Illinois EPA) and the regulations promulgated under the CWA, established pretreatment standards and reporting requirements. Pursuant to the MWRD's ordinance, Clark could not discharge wastewater with a pH level greater than 10. (Pursuant to 40 C.F.R. § 403.5, the MWRD could promulgate more stringent effluent limitations, which would be given the same effect as the standards set by the EPA.)

To ensure that Clark's wastewater was in compliance, the regulations and the ordinance required Clark to test its wastewater bi-annually. Clark was required to have six passing days within each two-week testing period, and submit all test results to the MWRD on a form RD-115. If Clark's testing revealed a wastewater violation, then it was required to notify the MWRD of the violation within 24 hours. In the event of a violation, Clark was required to re-test its wastewater, and submit a form RD-114 demonstrating that it was back in compliance for three days during a one week testing period. Like the form RD-115, all test results taken during the testing period for the RD-114 had to be submitted to the MWRD. See 33 U.S.C. § 1318; 40 C.F.R. §§ 403.8(f), 403.12(b)(6) and 403.12(g)(2).

Before Snook became the environmental manager, Clark had engaged in a practice of selective reporting. Proffered evidence excluded as irrelevant at trial demonstrated that Clark had historically submitted only the passing test results on its RD-115s and RD-114s and omitted non-compliant test results. In fact, Clark hired an environmental consultant to sample the wastewater and prepare the forms that were submitted to the MWRD. (In addition, the environmental consultant's employee testified at trial under grant of immunity that he and others at the firm selectively reported results on behalf of numerous other clients.) In those reports, the consultant listed only passing test results.

During a surprise inspection in 1997, the government discovered that Clark had not reported all violations of its effluent limitations. After three additional years of investigation, Snook and a former assistant environmental manager were charged with conspiring to violate Section 1319(c)(2)(A) of the CWA by failing to report all wastewater test results. (Section 1319(c)(2)(A) of the CWA makes it a felony offense to "knowingly violate [] section . . . 1317 . . . of [the Clean Water Act] . . . or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8)." Thus, Snook was charged with conspiring to violate the pretreatment regulations and the reporting requirements.) Pursuant to a pre-indictment plea agreement, the environmental consulting company pleaded guilty to a misdemeanor. Also pursuant to a pre-indictment plea agreement, Clark pleaded guilty to a felony.

The Government Sought to Preclude Any "Mistake-of-Law" Defenses
Prior to trial, the government moved in limine to preclude Snook from arguing that he relied on the advice of Clark's environmental consultant, and therefore did not have the requisite mens rea to violate the CWA. According to the government, it only had to prove that Snook knew that all test results were not reported, not that Snook knew that all tests had to be reported. In support of its argument, the government argued that the plain language of Section 1319(c)(2)(A) and the case law uniformly had held that mistake-of-law was not a defense to a violation of § 1319(c)(2)(A). See, e.g., United States v. Sinskey, 119 F.3d 712 (8th Cir. 1997); United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995); United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994); United States v. Metalite Corporation, 2000 WL 1234389 (S.D. Ind. July 28, 2000). For the most part, the authority cited by the government involved "dumping" cases. In those cases, courts held that the only "mistake" defense that could be raised was that the defendant was mistaken regarding the type of substance that he was dumping. For example, one who dumped excessive levels of FOG into the sewer system, but did not know that the water contained FOG would not have violated Section 1319(c)(2)(A). Applying the same rationale to a reporting case, the government argued that Snook could argue that he did not know that all test results were not reported on RD-115s and 114s, but Snook was prohibited from arguing that he did not believe that all test results had to be reported.

In response, Snook argued that none of the cases cited by the government involved a failure to report. More particularly, the cases cited by the government all dealt with crimes of commission (i.e., dumping hazardous substances into a waterway), while Snook was accused of a crime of omission (i.e., failing to report all wastewater test results). While there was no case involving the precise situation or even an analogous environmental case, Snook cited Lambert v. California, 355 U.S. 225 (1958), for the general proposition that when the government charges a crime of omission, it must first prove that the defendant knew that he had an obligation to act. Indeed, legal scholars long have recognized the difficulty in applying traditional concepts of mens rea to crimes of omission:

The maxim, "ignorance of the law is no excuse," ought to have no application in the field of criminal omissions, for the mind of the offender has no relationship to the prescribed conduct if he has no knowledge of the relevant regulation.

* * * *

The concept of mens rea, and its sub-concepts, intention and recklessness, were constructed as generalizations of the instances of liability for offenses of commission. They cannot be fluently applied to offenses of omission, and it is a mistake to attempt to do so.

Graham Hughes, CRIMINAL OMISSIONS, 67 Yale L.J. 590, 602, 605-06 (1958); see also Wayne R. LaFave & Austin W. Scott, Jr., CRIMINAL LAW, § 3.3, at 220-21 (3d ed. 2000).

The Snook case was similar to Lambert. In Lambert, the defendant was convicted of violating a Los Angeles municipal code provision that made it unlawful for any person convicted of a felony to remain in Los Angeles for five days without registering with police. Lambert, 355 U.S. at 242. The defendant, a convicted felon, did not register with the police, but was unaware of such duty. The defendant was convicted solely because she met the stated elements of the offense - she was a convicted felon and she remained in Los Angeles for more than five days without registering. The Supreme Court reversed the conviction, holding that, when a person is accused of a crime of omission, due process requires that the government must prove that the defendant knew of a duty to act. Id.

As in Lambert, the government claimed that it could convict Snook without first proving that he was aware of his duty to act. The government argued that Snook knew that test results showed that Clark's wastewater contained levels of FOG greater than 100 mg/l and pH greater than 10, and that those test results were not reported to the MWRD. Similarly, Lambert knew she was a convicted felon and knew that she was in Los Angeles for five days. Just as the State of California asserted that Lambert was guilty because she knew that she had not registered with the police, the government claimed that if test results were not reported, and Snook knew that they were not reported, then he was guilty, regardless of whether he knew or believed there were violations or knew or believed he had any duty to report all violations or test results.

The district court rejected Snook's arguments, and excluded virtually all evidence concerning the environmental consultant's advice and instruction to Snook. See United States v. Snook, Case No. 00 CR 699, 2001 WL 1335734 (N.D. Ill. June 8, 2001). The court excluded all evidence that Clark had been selectively reporting long before Snook was the environmental manager, and that Snook merely was following a procedure established by Clark's former environmental managers, including a former EPA lawyer.

The Flaws in the Clean Water Act's Exclusion of Mistake-of-Law Defenses
Given the plain language of § 1319(c)(2)(A) and the numerous cases rejecting a mistake-of-law defense to a charge under that section, it is hard to fault the district court's rejection of Snook's mistake-of-law defense. The problem lies within the CWA itself.

Snook illustrates three problems with the CWA's current framework. First, Section 1319(c)(2)(A) puts at risk persons significantly less culpable than those the CWA intended to punish. For example, imagine if Snook provided all of the test data to his secretary, told her to fill out the form by selecting six test results for which the FOG test was less than 100 mg/l and the pH level was between 5 and 10. The secretary then reviewed all of the test results, followed Snooks instructions, prepared the forms, and mailed them to the MWRD. Under the literal terms of Section 1319(c)(2)(A), both Snook and his secretary could be prosecuted. The secretary knew that there were test results in excess of 100 mg/l for FOG, that there were pH results greater than 10, and that she did not report test results exceeding 100 mg/l of FOG and with pH readings greater than 10. Yet, the secretary was unaware of the CWA or the regulations, and merely followed Snook's instructions. Although it is difficult to imagine that the secretary would be prosecuted, one need not stretch the imagination to envision the potential criminal exposure of other equally unsuspecting corporate environmental personnel. Such broad exposure underscores the problem with applying a general intent standard to a violation predicated on reporting requirements.

A second more practical problem with the CWA is that it offers no guidance as to what constitutes a negligent versus a knowing violation, let alone a criminal versus civil violation. Section 1319(c)(1)(A) states:

Any person who violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under Section 1342 of this title by the administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State . . . shall be 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 1 year, or by both . . . .

Section 1319(c)(1)(A) and Section 1319(c)(2)(A) are virtually identical, except for the mens rea - negligently versus knowingly. See "The Facts" section for the text of Section 1319(c)(2)(A). But, what is the difference between a negligent violation and a knowing violation - especially with respect to a crime of omission? Can an individual be charged with a negligent violation if he fails to put a stamp on the envelope or records a number erroneously on the form? Isn't a person who fails to report all test results based upon an erroneous understanding of the law negligent as opposed to having an evil motive? The CWA offers no answers to these questions. (The same conduct can be the subject of an administrative or civil proceeding. See 33 U.S.C. §§ 1319(d) and (g).)

Snook illustrates the arbitrary nature in which the prosecutor is free to charge the same set of facts under Section 1319(c)(1)(A) or 1319(c)(2)(A). Originally, both Snook and his co-defendant - the assistant environmental manager - were charged with felonies for failing to report all test results. Shortly before trial, the co-defendant pleaded guilty to a one-count misdemeanor based upon the same set of facts. At trial, she testified for the government that she had been instructed by Snook as to how to prepare the wastewater reporting forms. Presumably, her negligence was not questioning Snook or failing to perform independent research regarding the reporting requirements. But, what about Snook? He relied on the advice of an outside expert consultant and a procedure established by a former EPA lawyer. Yet, he was charged with a felony, and was prevented from arguing any mistake-of-law defense. While this hardly seems equitable, it is the power left to the prosecutor by the CWA's failure to define either a negligent or knowing reporting violation. Although Ron Snook did not intentionally dump hazardous waste into a waterway, nor intentionally falsify a test result, the CWA makes no distinction between his conduct and other more culpable conduct.

Finally, Snook shows that the sweeping language of Section 1319(c)(2)(A) allows a prosecutor to avoid charging a defendant under sections of CWA that, while more applicable to a particular fact pattern, would allow for a mistake-of-law defense. For example, the government could have charged Snook with making a false statement under Section 1319(c)(4), which states:

Any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter . . . shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years or both.

Each of the reporting forms submitted to the MWRD certified that Clark was in compliance with the pretreatment standards. The government could have argued that the certification was false because other test results showed that Clark was not in compliance with the regulations. Yet, the government would have had to prove that Snook believed that Clark was not in compliance, and Snook would have been able to present evidence that he believed that so long as Clark had six passing test results within the two-week testing period then it was in compliance. By charging the same set of facts as a crime under Section 1319(c)(2)(A), however, the government precluded Snook from offering this defense. The result is even more inequitable considering that the maximum punishment under Section 1319(c)(2)(A) is three years, while the maximum punishment for a violation of Section 1319(c)(4) is two years. Compare 33 U.S.C. § 1319(c)(2)(A) with 33 U.S.C. § 1319(c)(4).

Final Thoughts
Other courts may well follow the same logic as the court in Snook, as well as United States v. Sinskey, 119 F.3d 712 (8th Cir. 1997); United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995); United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994); United States v. Metalite Corporation, 2000 WL 1234389 (S.D. Ind. July 28, 2000), and apply a general intent mens rea to all crimes charged under Section 1319(c)(2)(A) - whether they are crimes of commission (e.g., dumping cases) or crimes of omission (e.g., failure to properly report all test results). Accordingly, practitioners should caution their clients that they cannot simply follow the advice of environmental consultants when it comes to complying with the regulations promulgated under the CWA and various ordinances adopted by POTWs. Instead, lawyers should carefully scrutinize the policies and practices regarding preparing compliance reports. Lawyers should explain the ramifications of blindly following the advice of consultants and even lawyers. Perhaps the ultimate lesson (and a scary one at that) to be learned from Snook is that an employee in a corporation's environmental department who is confronted with the often overwhelming and confusing task of following the rules and regulations promulgated under the CWA bears the ultimate risk that both the consultant and the lawyer are wrong.

Mr. Stetler, a founding principal of Stetler & Duffy, Ltd., has more than 25 years of experience as a trial lawyer. He is a former assistant United States attorney for the Northern District of Illinois, and also is a member of the American College of Trial Lawyers. Mr. Cyrluk also is a principal of Stetler & Duffy. He has ten years of litigation experience in both criminal and civil cases. Both Messrs. Stetler and Cyrluk were trial counsel on behalf of Snook. The authors would like to thank Craig Zimmerman, a partner of McDermott, Will & Emery, who is an environmental law practitioner, for his valuable assistance with both this article and the defense of the Snook case.