A dirty persecution under the Clean Water Act

Diverting sewage from a backed up sewage system earns a criminal record for a Washington DC facilities engineer.

The Wall Street Journal reports,

Lawrence Lewis was raised in the projects of Washington, D.C. By the time he was 20, all three of his older brothers had been murdered and his father was dead of a heart attack.

Lawrence Lewis: ‘I got a criminal record from my job—when I thought I was doing the right thing?’

Seeking an escape, he took night classes while working as a janitor for the D.C. school system. He rose to become chief engineer at a military retirement home. He raised his two youngest daughters alone, determined to show them how to lead a crime-free life.

That goal was derailed by blocked toilets.

In 2007, Mr. Lewis and his staff diverted a backed-up sewage system into an outside storm drain—one they long believed was connected to the city’s sewage-treatment system—to prevent flooding in an area where the sickest residents lived. In fact, the storm drain emptied into a creek that ultimately reaches the Potomac River.

Eight months later, Mr. Lewis pleaded guilty in federal court to violating the Clean Water Act. He was given one year’s probation and placed under court-ordered supervision.

“I got a criminal record from my job—when I thought I was doing the right thing?” says Mr. Lewis, 60 years old.

Mr. Lewis was caught in Washington’s four-decade expansion of federal criminal law. Today, there are an estimated 4,500 federal crimes on the books, a significant increase from the three in the Constitution (treason, piracy and counterfeiting). There is an additional, and much larger, number of regulations written to enforce the laws. One of those regulations ensnared Mr. Lewis.

Many of these federal infractions are now easier to prosecute than in the past because of a weakening in a bedrock doctrine of Anglo-American jurisprudence: the principle of mens rea, or “guilty mind,” which holds that a person shouldn’t be convicted if he hasn’t shown an intent to do something wrong. A law without a mens rea requirement tripped up Mr. Lewis…

Oddly enough — and we are not advocating this — but no one has yet even been charged with anything in the 2010 BP oil spill.

8 thoughts on “A dirty persecution under the Clean Water Act”

  1. There are exceptions for criminal prosecution.
    1) If you do what you believe is correct, then you are exempt from criminal prosecution (though your company will still have to pay cleanup costs and clean air act fines). The judge must have found that he knew or should have known where that Storm Sewer went. Outside of New York City (and possibly other ancient systems), I have never heard of a storm sewer going to a sewage system. Doing that is asking for overflows. In fact, a large part of sewer maintenance is preventing rainwater from getting into the sewage system (look up Inflow and Infiltration). Given the age of the DC sewer system, it’s possible that they do have a number of storm stewers that go to sewer treatment and it is even possible that that one used to go to the treatment plant and was recently changed.

    2) There is a procedure for diverting a sewage system. You have to get permission from the agency, typically for an impending hurricane, and then divert. Alternatively, you can show that there was legally no other possible choice.

    For this to go to criminal prosecution (a very rare instance in environmental law), they had to show that he was willfully negligent in his actions. In this case, proper procedure would include confirming that the sewer went to the treatment plant rather than the drain before making the diversion.

    I could see revoking his wastewater license over this, but I agree the criminal prosecution is extreme. I’m glad that I have the TCEQ on my back rather than the EPA. They can be overbearing at times, but I’ve never heard of something like this.

    As an ending aside, the reason the BP oil spill hasn’t gone criminal is because there isn’t one culprit. There is no person that can claim responsibility. In fact, most environmental stuff is like this. One lecturer at the agency actually told me that the worst thing you can say in an investigation is “I take responsibility” because that is the only phrase that can initiate criminal action. Most likely, he didn’t realize the consequences when he acted like a man and stood behind his actions. If he had acted like a weasel, he’d probably still have his job.

  2. Ben’s right.
    I’m not sure why he elected to do the job himself, since he lacked the proper equipment to do it, rather than call a plumbing firm with pump trucks and the other equipment needed. Sad story about a guy who took initiative to solve a problem and believed he was doing the right thing only to get pounded by the weight of the Federal Government. However, his problem would not happen if he had picked up the phone and called a number from the yellow pages.

  3. @Ben: Hundreds of American cities had what are known as “combined sewer systems” in which the storm and sanitary sewers are intimately connected. Many still do, and not all are “ancient.” You sound reasonably intelligent, so perhaps you know that it dates back to a time when there were no sewage treatment plants whatsoever. Many readers here may not know this, so I’ll continue: Such facilities only started to come on line in late 1950’s and early 1960’s, and they were far cry from today’s “water reclamation” plants. The sewers were initially designed or constructed to get “it” away from the population. Period. End of story. The treatment plants were an “afterthought.” Most communities just connected the main lines to a trunk or other major sewer that took the sewage (and stormwater when it rained) to the treatment works. But sewage treatment plants in the earlier years were small, unable by design or intent, to treat everything (I’d hazard an educated guess that most still are), and so to assure that the plant and the piping would not be damaged, overflow points were installed or allowed to remain, providing a route for surges in the system to be directly discharged to streams, rivers and lakes. Those surges can place portions of the system under pressures they were not designed/intended to withstand (keep in mind that many cities have sewers that work fine, primarily by gravity, despite having been built more than a century ago). EPA has taken an exceptional hard line with such systems in the past decade, assessing HUGE fines and demanding VAST public works projects (well into the billions of dollars, for individual cities or systems). Some of the original “modern” treatment works were constructed with federal grant funds, grant funds that have not been available for more than 30 years now. The end result is a collection of sewage systems that continue to function as “combined” systems, leaving them vulnerable to EPA mandates and environmentalist lawsuits, and leaving the communities to foot the entire bill. Confusion is not uncommon within the general population, and I suspect Mr Lewis was suckered in as a result.

    With the long history of combined sewer systems in operation in this nation, and the lack of public awareness about it, why else do you think we now have so many communities marking their storm drains with signage that tells to which water course the system drains. If someone did a good, unbiased scientific poll of the general public (including NON-environmental professionals and politicians), I’d expect more than 60% to not understand this.

    Not to say that what Mr Lewis should have been overlooked, but at the same point, it does seem a bit “over the top.” But, when it comes right down to it, many lawyers at EPA have always seemed far more interested than anything else in: “making examples” through litigation and court action; showing an ever-increasing trend of enforcement (fines); trying to get items outside their Congressional authority slipped into Consent Orders and court orders against an entity they drag through the mire of federal court litigation; why the Agency lawyers have a propensity to create new interpretations of agency rules (even if it’s convoluted and against the intent of those who WROTE the rules); and why EPA even over-files when a state agency has already essentially settled a case.

  4. “Outside of New York City (and possibly other ancient systems), I have never heard of a storm sewer going to a sewage system.”
    Actually it’s common in old city sewer systems, for instance in Boston, MA, “Not all sewer systems are created equal. While modern systems transport rainwater and sewage from homes and businesses through separate pipes, some older systems like Boston’s have “combined” sewers that carry both flows together.”
    http://www.mwra.state.ma.us/03sewer/html/sewcso.htm
    Similarly in Pittsburgh, PA: “portions of the area use more primitive combined sewers, where sewage and storm water are mixed and flow through the same pipe to Alcosan’s plant. . . After heavy rainfall, however, combined sewers commonly dump untreated sewage into area rivers and tributaries without treatment, in an event called a combined sewer overflow.”
    http://en.wikipedia.org/wiki/Allegheny_County_Sanitary_Authority

  5. Gene, you have a good point. When I got my license (in Texas, obviously), I was told that you would never see a combined system. We converted long ago, so I’ll defer to your experience on how common they are. This supports the idea that some of DC is still combined.

    However, this man was a licensed and experienced wastewater operator, the “general knowledge” argument doesn’t hold. He should have have checked where the storm sewer went before making a sewage diversion. If he didn’t have time, he should have diverted to a downstream manhole of the sanitary sewer.

  6. I wonder if WSJ is using the term “Engineer” without meaning “licensed Professional Engineer”. I read the story looking for an explanation, but the story did not provide that detail. As a licensed PE, I would particularly like the journalist writing the story to be aware of the distinction between a qualified licensed PE competent to offer services to the public and that of a private employer’s job title “Chief Engineer” for a building facility –which may or may not be required to be a licensed professional. Note: I practice in Texas, and although we don’t have any combined sewer systems in my area, I HAVE heard of them!

  7. Many, many areas of the Northeast and Midwest have combined sewer systems.
    Actually, parts of DC still have a combined sewer system while in other areas the storm drainage and sanitary sewer are separate. My city has separate storm drainage and sanitary sewer, but many people (possibly from other areas of the country) assume – INCORRECTLY – when dumping something in a storm drain that it will go to a treatment plant. Extensive efforts to educate people (TV, radio, mailers) have not worked thus far.
    DC drains to polluted streams. I suspect what is happening to Mr Lewis is intended to educate the citizens of DC.

  8. Ben – the lack of mens rea was referring to the point you made in #1. There’s no longer a “knew or should have known” requirement, nor a willfully negligent requirement (those are all mens rea categories – intentional, reckless, negligent). Rather, this was a strict liability offense – even if you did not intend to do anything wrong, you are guilty. An analogous offense is statutory rape. Even if you thought the individual was over 18, it doesn’t matter – if they were under 18, you are guilty.

    This is the fundamental point that the article is making – we’ve weakened a fundamental protection that has existed for centuries.

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