U.S. v. Cooper

• Decision Date: 28 March 2007
• Docket Number: No. 05-4956.,05-4956.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. D.J. COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

482 F.3d 658

UNITED STATES of America, Plaintiff-Appellee, v. D.J. COOPER, Defendant-Appellant.

No. 05-4956.

United States Court of Appeals, Fourth Circuit.

Argued: February 2, 2007.

Decided: March 28, 2007.

ARGUED:

Wayne D. Inge, Roanoke, Virginia, for Appellant. Michael Ray Fisher, Environmental Protection Agency, Washington, D.C., for Appellee.

ON BRIEF:

John L. Brownlee, United States Attorney, Jennie L.M. Waering, Assistant United States Attorney, Office of the United

States Attorney, Roanoke, Virginia, for Appellee.

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge MOTZ and Judge TRAXLER joined.

OPINION

WILKINSON, Circuit Judge:

D.J. Cooper was convicted by a jury on nine counts of knowingly discharging a pollutant from a point source into waters of the United States, in violation of the Federal Water Pollution Control Act Amendments of 1972, as amended 33 U.S.C. § 1251 et seq. (2000), commonly known as the Clean Water Act ("CWA" or "the Act"). He claims that the district court should have granted an acquittal for lack of sufficient evidence, in part because the government failed to prove Cooper knew that he was discharging pollutants into waters of the United States. Because the district court did not err, and because the CWA does not require the government to establish Cooper's knowledge as to the jurisdictional status of the waters he affected, we affirm the judgment of the district court.

I.

The CWA prohibits the knowing discharge of a pollutant from a point source to waters of the United States without a permit. See 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), 1362(7), 1362(12). The Act defines "discharge of a pollutant" as the "addition of any pollutant to navigable waters from any point source." Id. § 1362(12). The term "pollutant" includes "sewage ... sewage sludge ... [and] biological materials ... discharged into water." Id. § 1362(6). The term "point source" denotes a "confined and discrete conveyance," including any pipe "from which pollutants are or may be discharged." Id. § 1362(14). "Navigable waters" are defined as "waters of the United States," id. § 1362(7), which are defined by regulation to include, among other things, "[a]ll interstate waters" and the "[t]ributaries of [such] waters," 40 C.F.R § 122.2 (2006).

Defendant Cooper has been operating a sewage lagoon at his trailer park in Bedford County, Virginia, since 1967. In recent times the lagoon has served as the only method of human waste disposal for twenty-two of the trailers in the park. The lagoon treats sewage according to the following process: Solid materials settle to the bottom of the lagoon, while the fluid level rises until it reaches an overflow structure in the middle of the lagoon, from which it flows through a pipe into a chlorine contact tank. In the tank, an electric pump dispenses a solution of water and granular chlorine, which mixes with the sewage. The chlorinated fluid then flows through a discharge pipe, down a channel of a few feet, and thence into a small creek.

The creek into which the treated sewage flows is a tributary of Sandy Creek, which is in turn a tributary of the Roanoke River. The Roanoke River flows from the foothills of the Appalachian Mountains in Virginia, through North Carolina, and into the Albemarle Sound. There is no dispute that, as a tributary of an interstate water, the small creek into which the lagoon discharges constitutes a water of the United States. See id.

The CWA provides that permits regulating discharge of pollutants other than dredge and fill material are issued under the National Pollutant Discharge Elimination System program ("NPDES"). See 33 U.S.C. §§ 1342(a), 1344. It also provides that states may, upon EPA approval choose to administer their own permit program in accordance with the CWA. See id. § 1342(b). The Commonwealth of Virginia maintains an EPA-approved Virginia Pollution Discharge Elimination System ("VPDES") program, pursuant to which the Virginia Department of Environmental Quality ("DEQ") issues permits that suffice for both state and federal discharge authorization. See Va.Code Ann. § 62.1-44.15(5a) (2006). DEQ regulated discharges from the lagoon through a series of permits to Cooper, the last of which issued in 1997 and remained in effect until March 7, 2002.

Cooper's permit regulated discharge from the lagoon in a number of ways. It fixed "effluent limitations" or permitted pollutant levels for various pollutants associated with sewage, and it set the degree to which the discharge was allowed to decrease oxygen levels in the creek. It required chlorination of the sewage in order to kill pathogens, as well as dechlorination, for which purpose DEQ instructed Cooper to install dechlorination facilities. The permit also required Cooper to sample the pollutant levels of the discharge and to report the results each month to DEQ.

Between 1993 and 1998, DEQ recorded over 300 violations of the permit, including excessive levels of Kjeldahl nitrogen, chlorine, and suspended solids and impermissibly low levels of oxygen in the creek. In response, DEQ took enforcement action which culminated in a 1998 Consent Order. Under the Consent Order, Cooper agreed to pay a $5,000 fine for past violations. Given that the sewage lagoon was incapable of meeting CWA standards in its existing form, the Consent Order gave Cooper until August 2000 to choose among several courses of remedial action: (1) upgrading the lagoon; (2) replacing the lagoon with a self-contained treatment plant or a septic field, or (3) closing the twenty-two trailer lots served by the lagoon. The Consent Order gave Cooper until August 2002 to implement his chosen course of action.

After the Consent Order, discharges from the lagoon continued to violate the permit. DEQ inspections of the creek found a strong sewage smell, decreased oxygen levels, dark solids, and a proliferation of bloodworms, pollution-tolerant organisms that thrive in low-oxygen environments like that provided by raw sewage.

In August 2000, Cooper violated the 1998 Consent Order by failing to elect a course of remedial action by the established deadline. This resulted in a 2001 amendment to the Consent Order, which imposed a $2,000 fine, set a new deadline for a choice of remedy, and left in place the August 2002 implementation deadline. The amendment also set interim discharge limits that were less demanding than those of the 1997 permit but still deemed protective of the environment by DEQ.

In March 2002, Cooper's discharge permit expired with Cooper having failed to file the necessary paperwork to receive a new permit. After the expiration of the permit, DEQ treated the interim discharge limits in the 2001 amendment to the Consent Order as a "de facto permit," until Cooper again violated the Consent Order in August 2002. At that time, not only had Cooper failed to complete the required update to the lagoon, but the lagoon was still operating exactly as it had at the time of the 1998 Consent Order. In response, in October 2002 the State Water Control Board canceled the Consent Order, and DEQ notified Cooper that he was no longer operating with a valid discharge permit.

Nevertheless, discharges from the lagoon into the creek continued. DEQ sent Cooper many Notices of Violation and inspection reports stating that he was discharging illegally. After an administrative hearing, DEQ in July 2003 issued an order imposing a $10,000 fine and ordering Cooper to cease discharging. Even after the order, the discharges continued, and DEQ continued to send Cooper inspection reports and Notices of Violation.

In late 2003, the U.S. Environmental Protection Agency's Criminal Investigation Division ("CID") began to investigate discharges from the lagoon. On various dates between August 2003 and October 2004, DEQ inspectors observed the lagoon, estimated the volume of the discharge, sampled the discharge's pH and total residual chlorine, collected samples for fecal coliform analysis, and completed inspection reports that were mailed to Cooper. A number of the samples were found to have the maximum quantifiable concentration of fecal coliform, a type of bacteria present in human feces.

On October 29, 2003, in an interview with CID Special Agent Matthew Goers, Cooper admitted that he was discharging from the lagoon into the creek without a permit and that DEQ had notified him that these discharges were in violation of the VPDES program. Cooper acknowledged that he might go to jail. He told Goers that he had hired an attorney to fight on his behalf and stated, "I'm going to fight as long as God gives me the power to fight."

On October 21, 2004, Cooper was indicted on thirteen felony counts of knowingly discharging a pollutant into waters of the United States without a permit, in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). After his indictment, Cooper finally ceased discharging from the lagoon. He hired a septic hauling company to collect sewage and ultimately disconnected most of the trailers from the lagoon.

Before trial, the government sought a ruling on the admissibility of evidence of Cooper's dealings with DEQ from 1998 until the start of the charging period in 2003. The district court allowed the evidence, finding that it was relevant to the charged offenses and that it was admissible under Federal Rule of Evidence 404(b) as evidence of intent and the absence of mistake or accident.

During jury deliberations, the jury sent a question to the judge, asking for clarification on how to weigh certain evidence relating to laboratory analysis of the discharge samples. The court declined to give direction, explaining that doing so would constitute an inappropriate encroachment upon the jury's role as fact-finder.

After a three-day jury trial, on April 28, 2005 the jury found Cooper guilty on nine counts.^* The district court sentenced Cooper to 27...