ELR Citation: ELR 21092
No(s). 90-6202 (10th Cir. Apr 30, 1991)

The court affirms the conviction of a former public utilities director of Enid, Oklahoma, for 18 felony counts of falsely reporting a material fact to a government agency, under 18 U.S.C. §1001, and two misdemeanor counts of discharging pollutants into the waters of the United States in violation of Federal Water Pollution Control Act (FWPCA) §§301(a) and 309(c)(1). The defendant directed the supervisor of the city's wastewater treatment plant to falsify 18 monthly discharge monitoring reports and the supporting laboratory records by recording 25 to 30 mg/l of effluent for two specificpollutants, regardless of the actual measurements at the point of discharge. The court first holds that the defendant's false statements were a matter of material fact and an element of offense under 18 U.S.C. §1001. The court reviews de novo the issue of materiality, and holds that the evidence adequately demonstrates that the defendant's false statements were capable of influencing government action. The court holds that subjecting the issue of materiality to de novo review does not violate defendant's due process rights or disadvantage the defendant. The materiality element would be deemed established to the court's satisfaction whether it were treated as an issue of fact or as an issue of law. The court next holds that the defendant is a "person" subject to criminal liability under the FWPCA. The plain language of the statute includes "individuals" in the definition of "persons" subject to the Act. The addition of "responsible corporate officers" is an expansion of liability under the Act, and a "responsible corporate officer" does not have to willfully or negligently cause a permit violation to be criminally liable under the FWPCA. The court holds that a rational jury could find the defendant's conduct a willful and negligent cause of the illegal discharges. The jury considered more than evidence of the defendant's position of responsibility; the jury also considered evidence of specific conduct that allowed the discharges to occur.

A concurring opinion contends that the court's finding of materiality should not be construed as holding that influencing enforcement action is the only basis for finding materiality. Many fact patterns could be presented wherein a false statement could be capable of influencing a required agency determination that is not enforcement oriented.

Counsel for Plaintiff
Edward J. Shawaker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
William J. Skepnek
Stevens, Brand, Lungstrum, Golden & Winter
502 First National Bank Tower, P.O. Box 189, Lawrence KS 66044-8200
(913) 843-0811

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.