Enacted in 1972, The Clean Water Act (CWA) attempts to restore and maintain the chemical, physical, and biological integrity of United States waters by regulating the discharge of pollutants into the nation's surface waters, water treatment plants, and wetlands. Generally, a violation of the CWA occurs when a pollutant is discharged without an appropriate permit or in contravention or an effluent limitation or pretreatment requirement.

A negligent violation of the CWA generally subjects a person to a fine in a range from $2,500 to $25,000 for each day that the violation occurs and/or a prison term of no more than one year. The penalties increase for subsequent convictions. Knowing violations of the CWA are dealt with more harshly. Most knowing violations are punishable by a fine of up to $50,000 for each day of the violation and/or a prison term of up to three years. Knowing violations include the making of false statements in reports required under the CWA or tampering with monitoring devices required under the CWA. A knowing endangerment violation (in which a person knows that the discharge of a pollutant or hazardous substance into United States waters places others in imminent danger or serious bodily injury or death) subjects a person to a fine of no more than $250,000 and/or a prison term of up to 15 years. An organization convicted of a knowing endangerment violation is subject to a $1,000,000 fine. The penalties with respect to both fine and imprisonment double for subsequent convictions.

An individual, a corporation, and other business entities are considered "persons" under the CWA. Unlike some other environmental laws, the CWA includes a "responsible corporate officer" in the definition of a "person" who may criminally liable. Clearly, a corporate officer or director can be subject to personal liability under the proper fact circumstances.

Director and Officer Liability

A director or officer may be exposed to personal liability under the CWA if there is proof of his or her direct involvement in the offending activity. A director or officer may be personally liable if he or she aided or abetted another in an act or omission that violates the CWA. Additionally, the responsible corporate officer doctrine has been applied in cases dealing with CWA violations.

Most courts that have applied the responsible corporate officer doctrine in felony cases under the CWA have required proof that the defendant had knowledge of the offending activity and the authority "to exercise control over the corporation's activity" that caused the violation. However, the responsible corporate officer doctrine has been applied with greater frequency in negligence cases. In a case out of the Ninth Circuit, a company supervisor that was not present when subordinates spilled oil and did not direct or supervise the oil spill was held liable under the CWA. The court found that the supervisor failed to act with the reasonable care of an ordinary person under similar circumstances. This case stands for the proposition that liability may attach without a showing of gross negligence and further suggests that negligent supervision is actionable under the CWA. The Fourth Circuit has held that liability as a responsible corporate officer is not predicated on the person's corporate title or lack of a corporate title. What is dispositive is the person's relationship to the corporation and whether it is appropriate under the circumstances to impose liability. The question for determination in the Fourth Circuit is whether the person was in a position of authority and could have prevented violations of the CWA.

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