U.S. v. Sinskey

• Decision Date: 11 July 1997
• Docket Number: 96-3965,Nos. 96-3962,s. 96-3962
• Citation: 119 F.3d 712
• Parties: , 27 Envtl. L. Rep. 21,468, 47 Fed. R. Evid. Serv. 664 UNITED STATES of America, Appellee, v. Timothy J. SINSKEY, Appellant. UNITED STATES of America, Appellee, v. Wayne KUMM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 712

119 F.3d 712

44 ERC 2081, 27 Envtl. L. Rep. 21,468,

47 Fed. R. Evid. Serv. 664

UNITED STATES of America, Appellee, v. Timothy J. SINSKEY, Appellant.

UNITED STATES of America, Appellee, v. Wayne KUMM, Appellant.

Nos. 96-3962, 96-3965.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1997.

Decided July 11, 1997.

Mark D. Hopson, Washington, DC, argued (Mark V. Meierhenry, Thomas C. Green, Jeffrey T. Green, Michael J. Raphael, Paul J. Zidlicky, on the brief), for appellant Sinskey.

Cheryl Krause Zemelman, Washington, DC, argued (Scott W. Muller, Thomas E. Haroldson, on the brief), for appellant Kumm.

Ethan G. Shenkman, Department of Justice, Washington, DC, argued (Lois J. Schiffer, Karen E. Schreier, Dennis R. Holmes, David M. Uhlmann, Ellen Durkee, on the brief), for appellee United States.

Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The defendants appeal their convictions for criminal violations of the Clean Water Act. We affirm the judgments of the trial court. ¹

I.

In the early 1990s, Timothy Sinskey and Wayne Kumm were, respectively, the plant manager and plant engineer at John Morrell & Co. ("Morrell"), a large meat-packing plant in Sioux Falls, South Dakota. The meat-packing process created a large amount of wastewater, some of which Morrell piped to a municipal treatment plant and the rest of which it treated at its own wastewater treatment plant ("WWTP"). After treating wastewater at the WWTP, Morrell would discharge it into the Big Sioux River.

One of the WWTP's functions was to reduce the amount of ammonia nitrogen in the wastewater discharged into the river, and the Environmental Protection Agency ("EPA") required Morrell to limit that amount to levels specified in a permit issued under the Clean Water Act ("CWA"), see 33 U.S.C. §§ 1251-1387. As well as specifying the acceptable levels of ammonia nitrogen, the permit also required Morrell to perform weekly a series of tests to monitor the amounts of ammonia nitrogen in the discharged water and to file monthly with the EPA a set of reports concerning those results.

In the spring of 1991, Morrell doubled the number of hogs that it slaughtered and processed at the Sioux Falls plant. The resulting increase in wastewater caused the level of ammonia nitrate in the discharged water to be above that allowed by the CWA permit. Ron Greenwood and Barry Milbauer, the manager and assistant manager, respectively, of the WWTP, manipulated the testing process in two ways so that Morrell would appear not to violate its permit. In the first technique, which the parties frequently refer to as "flow manipulation" or the "flow game," Morrell would discharge extremely low levels of water (and thus low levels of ammonia nitrogen) early in the week, when Greenwood and Milbauer would perform the required tests. After the tests had been performed, Morrell would discharge an exceedingly high level of water (and high levels of ammonia nitrogen) later in the week. The tests would therefore not accurately reflect the overall levels of ammonia nitrogen in the discharged water. In addition to manipulating the flow, Greenwood and Milbauer also engaged in what the parties call "selective sampling," that is, they performed more than the number of tests required by the EPA but reported only the tests showing acceptable levels of ammonia nitrogen. When manipulating the flow and selective sampling failed to yield the required number of tests showing acceptable levels of ammonia nitrogen, the two simply falsified the test results and the monthly EPA reports, which Sinskey then signed and sent to the EPA. Morrell submitted false reports for every month but one from August, 1991, to December, 1992.

As a result of their participation in these activities, Sinskey and Kumm were charged with a variety of CWA violations. After a three-week trial, a jury found Sinskey guilty of eleven of the thirty counts with which he was charged, and Kumm guilty of one of the seventeen counts with which he was charged. In particular, the jury found both Sinskey and Kumm guilty of knowingly rendering inaccurate a monitoring method required to be maintained under the CWA, in violation of 33 U.S.C. § 1319(c)(4), and Sinskey guilty of knowingly discharging a pollutant into waters of the United States in amounts exceeding CWA permit limitations, in violation of 33 U.S.C. § 1319(c)(2)(A); see also 33 U.S.C. § 1311(a). Each appeals his conviction.

II.

Sinskey first challenges the jury instructions that the trial court gave with respect to 33 U.S.C. § 1319(c)(2)(A), which, among other things, punishes anyone who "knowingly violates" § 1311 or a condition or limitation contained in a permit that implements § 1311. That section of the CWA prohibits the discharge of pollutants except in compliance with, among other provisions, § 1342, which establishes the National Pollutant Discharge Elimination System ("NPDES"). The NPDES authorizes the EPA to issue permits that allow the discharge of certain pollutants within specified limitations and with specified reporting and monitoring conditions. As applied in this case, § 1319(c)(2)(A) therefore prohibits the discharge of pollutants in amounts exceeding the limitations specified in an NPDES permit.

The trial court gave an instruction, which it incorporated into several substantive charges, that in order for the jury to find Sinskey guilty of acting "knowingly," the proof had to show that he was "aware of the nature of his acts, perform[ed] them intentionally, and [did] not act or fail to act through ignorance, mistake, or accident." The instructions also told the jury that the government was not required to prove that Sinskey knew that his acts violated the CWA or permits issued under that act. Sinskey contests these instructions as applied to 33 U.S.C. § 1319(c)(2)(A), arguing that because the adverb "knowingly" immediately precedes the verb "violates," the government must prove that he knew that his conduct violated either the CWA or the NPDES permit. We disagree.

Although our court has not yet decided whether 33 U.S.C. § 1319(c)(2)(A) requires the government to prove that a defendant knew that he or she was violating either the CWA or the relevant NPDES permit when he or she acted, we are guided in answering this question by the generally accepted construction of the word "knowingly" in criminal statutes, by the CWA's legislative history, and by the decisions of the other courts of appeals that have addressed this issue. In construing other statutes with similar language and structure, that is, statutes in which one provision punishes the "knowing violation" of another provision that defines the illegal conduct, we have repeatedly held that the word "knowingly" modifies the acts constituting the underlying conduct. See United States v. Farrell, 69 F.3d 891, 893 (8th Cir.1995), cert. denied, 516 U.S. 1181, 116 S.Ct. 1283, 134 L.Ed.2d 228 (1996), and United States v. Hern, 926 F.2d 764, 766-68 (8th Cir.1991).

In Farrell, 69 F.3d at 892-93, for example, we discussed 18 U.S.C. § 924(a)(2), which penalizes anyone who "knowingly violates" § 922(o)(1), which in turn prohibits the transfer or possession of a machine gun. In construing the word "knowingly," we held that it applied only to the conduct proscribed in § 922(o)(1), that is, the act of transferring or possessing a machine gun, and not to the illegal nature of those actions. A conviction under § 924(a)(2) therefore did not require proof that the defendant knew that his actions violated the law.

We see no reason to depart from that commonly accepted construction in this case, and we therefore believe that in 33 U.S.C. § 1319(c)(2)(A), the word "knowingly" applies to the underlying conduct prohibited by the statute. Untangling the statutory provisions discussed above in order to define precisely the relevant underlying conduct, however, is not a little difficult. At first glance, the conduct in question might appear to be violating a permit limitation, which would imply that § 1319(c)(2)(A) requires proof that the defendant knew of the permit limitation and knew that he or she was violating it. To violate a permit limitation, however, one must engage in the conduct prohibited by that limitation. The permit is, in essence, another layer of regulation in the nature of a law, in this case, a law that applies only to Morrell. We therefore believe that the underlying conduct of which Sinskey must have had knowledge is the conduct that is prohibited by the permit, for example, that Morrell's discharges of ammonia nitrates were higher than one part per million in the summer of 1992. Given this interpretation of the statute, the government was not required to prove that Sinskey knew that his acts violated either the CWA or the NPDES permit, but merely that he was aware of the conduct that resulted in the permit's violation.

This interpretation comports not only with our legal system's general recognition that ignorance of the law is no excuse, see Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1991), but also with Supreme Court interpretations of statutes containing similar language and structure. In United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971), for example, the Court analyzed a statute that punished anyone who "knowingly violate[d]" certain regulations pertaining to the interstate shipment of hazardous materials. In holding that a conviction under the statute at issue did not require knowledge of the pertinent law, the Court reasoned that the statute's language was merely a shorthand designation for punishing anyone who knowingly committed the specific acts or omissions contemplated by the regulations at issue, and that the statute therefore required knowledge of the material facts but not the relevant...