Permit Violators Serve Hard Time

A federal appeals court has affirmed the convictions of two slaughterhouse employees for knowingly violating the Clean Water Act. (U.S. v. Sinskey, No. 96-3962, 8th Cir., July 11, 1997).

The appeals court refused to set aside the convictions of general manager Thomas J. Sinskey and engineer Wayne Kumm for their roles in a scheme to make it appear that discharges from a South Dakota meat packing plant did not exceed limits in the facility's wastewater discharge permit.

The meat-packing process created a large amount of contaminated wastewater, which was piped to the facility's own wastewater treatment plant (WWTP). From there, the company discharged the wastewater into the Big Sioux River.

One of the WWTP's functions was to reduce the amount of pollutants in the wastewater, and the U.S. Environmental Protection Agency (EPA) set discharge limits in its National Pollutant Discharge Elimination System (NPDES) permit. In addition, the permit required the company to perform a weekly series of tests to monitor pollutant levels in the discharge water and to report the test results monthly to EPA.

When, in 1991, the company doubled its production at the plant, the level of pollutants in the discharge water greatly exceeded the amount the permit allowed. The WWTP operators responded by manipulating the testing process so that the company would not appear to have violated its permit's terms.

First, through a technique known as the "flow game," the WWTP would discharge very low levels of water (and correspondingly low levels of pollutants) early in the week when the operators would perform sampling and testing. Later in the week, the plant would discharge high levels of water and contaminants. Thus, the tests did not represent the overall pollutant levels in the water accurately.

Second, the WWTP employees engaged in "selective sampling," conducting more than the number of tests required by EPA, but reporting only the tests with favorable results. When these measures failed to yield enough test results with acceptable pollutant levels, the workers simply falsified the readings and the monthly reports, which Sinskey then signed and sent to EPA. These activities continued, month after month, for almost a year and a half.

The jury convicted Sinskey and Kumm of knowingly distorting a required monitoring method and found Sinskey guilty on 11 other felony counts, including knowingly discharging pollutants in amounts exceeding permit limits.

The trial judge sentenced Sinskey to 24 months in prison, placed him on probation for two years and fined him $5,000. Kumm was sentenced to six months in prison and six months in home confinement, and was ordered to pay a $2,000 fine and $8,000 in restitution to a local environmental trust fund.

On appeal, the 6th Circuit panel ruled that the trial court correctly instructed the jury that the defendants could be found guilty of "knowingly" violating a permit limitation if the government proved that they were "aware of the nature of their acts, perform[ed] them intentionally, and [did] not act or fail to act through ignorance, mistake or accident."

The court also instructed the jury that the government did not need to prove that either defendant knew that his acts violated the Clean Water Act or the discharge permit.

The appeals court rejected Sinskey's claim that no conviction was possible without proof he knew his actions violated the Clean Water Act or the NPDES permit. The court disagreed with Sinskey that U.S. v. Ahmad required that his convictions be overturned (See Legal, March 1997, page 88).

In Ahmad, the 5th Circuit Court of Appeals held that if a defendant did not know either the nature of the discharged substance or the receiving waters, then he could escape criminal responsibility.

The 8th Circuit panel, however, said that the Ahmad decision did not apply because Sinskey and Kumm never claimed they were confused or ignorant about what was discharged or where it ended up.

"We have repeatedly held that, in other statutes with similar language, the word 'knowingly' refers only to knowledge of the relevant activities," the opinion said. What the defendants knew about the illegal nature of their acts need not be proved, the court added.

The appeals court also rejected Kumm's claim that he was held responsible merely because he failed to prevent others from engaging in the misleading monitoring scheme. "He encouraged others involved in the crime and engaged in overt acts that support the jury's verdict," the court said. The jury did not convict him for being an "innocent bystander," the court concluded.

Criminal prosecutions under the Resource Conservation Recovery Act and other hazardous waste laws have been made easier by this ruling.