## F I L E D United States Court of Appeals Tenth Circuit 

### November 1, 2005

Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. DAVID ENRIQUE ORTIZ, Defendant-Appellee. No. 04-1228

Appeal from the United States District Court

for the District of Colorado (D.C. No. 03-CR-113-M)
Patricia W. Davies, Assistant U.S. Attorney, Denver , Colorado (William J. Leone, Acting United States Attorney, James C. Murphy, Ass istant U.S. Attorney, Denver, Colorado and Linda Kato, Regional Criminal Enforcement Counsel, U.S. EPA, Region 8, Denver, Colorado with her on the bri efs) for the PlaintiffAppellant. Virginia L. Grady, Assistant Federal Public Defende r, Denver, Colorado (Raymond P. Moore, Federal Public Defender, Denver, Colorado and John T. Carlson, Assistant Federal Public Defender, Denver, Colorado with her on the brief) for the Defendant-Appellee.

Before BRISCOE , BRORBY, and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.- 2 -

After a jury convicted David Ortiz of violating the Clean Water Act by negligently discharging a pollutant into the Colorado River, the district court entered a judgment of acquittal. The court ruled a s a matter of law that an individual is not guilty of negligently discharging a pollutant unless he knows that the pollutant’s path terminates in protected water. This conclusion is at odds with the plain language of the Clean Water Act, which cr iminalizes any act of ordinary negligence that leads to the discharge of a polluta nt into the navigable waters of the United States. We therefore REVERSE the district court’s judgment of acquittal.
I When reviewing a judgment of acquittal, this court must view the evidence in the light most favorable to the government. Uni ted States v. McClatchey , 217 F.3d 823, 829 (10th Cir. 2000). Construed in this manner, the evidence adduced at trial presents the following facts. Chemical Specialties, Inc. operates a propylene gly col distillation facility in Grand Junction, Colorado where David Ortiz served a s the Grand Junction facility’s operations manager and sole employee. T he process of distilling propylene glycol, an airplane wing de-icing fluid, produces significant amounts of wastewater. At the optimum mixture, the distillati on of 1,000 gallons of used propylene glycol generates 500 gallons of industria l wastewater. Propylene glycol- 3 -

distillation enterprises typically discharge such w astewater to a municipal waste treatment plant for processing. Chemical Specialti es, however, specifically declined to obtain a permit to discharge its indust rial wastewater to Grand Junction’s pretreatment plant and instead represent ed to city officials that it would ship all of its wastewater to a nearby busine ss. Grand Junction currently operates a bifurcated sewa ge system consisting of a wastewater treatment plant fed by numerous sanita ry sewer lines and a storm water drainage system that collects rain water and distributes it into the Colorado River. Prior to the early 1990s, the city maintain ed a combined sewer line directing both waste and rain water to the treatmen t plant. In segregating its combined line into sanitary sewer lines and storm d rains after the early 1990s, Grand Junction overlooked sewer service line connec tions in the area near Chemical Specialties, with the effect that since th e early 1990s all sanitary discharges from Chemical Specialties and surroundin g businesses flowed into a storm drain that discharged into the Colorado River

. In late April 2002, the city received a complaint o f a noxious odor near the Colorado River, and subsequent investigation reveal ed a black substance accompanied by a pungent odor described as being re miniscent of onions pouring from a storm drain outfall and seeping into the riv er. City employees traced the malodorous black substance upstream along the stormdrain and took samples en- 4 -

route. The samples were found to contain propylene glycol and propionaldehyde, a breakdown constituent of propylene glycol. On May 1st, a city official accompanied by an emplo yee of the Colorado Department of Public Health and Environment met wit h Ortiz at Chemical Specialties. After informing Ortiz that they were investigating the source of an unusual odor downstream from Chemical Specialties, Ortiz insisted that he sent all of his wastewater to a nearby business. Six days later, after discovering more of the black discharge downstream from Chemical Spe cialties and none upstream, the two officials returned and told Ortiz that the substance appeared to be coming from his facility. Specifically, they told Ortiz t hat black fine material reeking like onions was spilling into the Colorado River, that the officials had traced it through the storm drain, and that it seemed to be e manating from Chemical Specialties. They asked Ortiz if the facility had discharged any wastewater. Again, Ortiz said no. Dubious, the officials sought and received permission to inspect the facility, whereupon they observed signi ficant amounts of water on the bathroom floor and several hoses and pumps lying ne arby. On inspection of the grounds behind the facility, the officials detected the same onion odor. They also observed a large canvas bag containing a black gran ular substance, which Ortiz identified as carbon used in the distillation proce ss.- 5 -

During a follow-up investigation on May 29th, a city employee collected samples from the storm drain downstream from Chemic al Specialties and from a pool of water below the storm drain flapper gate. Analysis revealed propylene glycol in the samples. Because earlier investigati on had ruled out surrounding businesses as the likely source of the discharges, officials turned their attention exclusively to Chemical Specialties. On June 6th, a city employee conducted a test that conclusively demonstrated a connection be tween the toilet in Chemical Specialties and the storm sewer. The city employee informed Ortiz that the toilet was definitely connected to the storm drain and ins tructed Ortiz not to discharge anything down the toilet or sink. In their words, officials “shut the water off” at Chemical Specialties and arranged for a portable to ilet and handwash station to be delivered to the facility. On June 18th, two EPA special agents were dispatche d to Chemical Specialties where they discovered a tanker truck sp ewing a liquid with “a fermenting type of smell that comes off of [wet oni ons]” onto the ground at the facility. The agents then walked to the nearby sto rm drain outfall where yet again a black liquid with the stench of rotten onions was observed pouring into the Colorado River. Although the storm drain downstream from Chemical Specialties had the same smell, immediately upstream from the f acility the storm drain was dry and odorless. Returning to Chemical Specialtie s, the agents interviewed Ortiz- 6 -

who informed them that the leaking tanker contained propylene glycol that Ortiz intended to process. Ortiz stated that he was the sole employee of Chemical Specialties, and volunteered that he was the only p erson with a key to the facility. When asked if he had ever discharged pollutants thr ough the toilet, Ortiz refused to answer. City investigators again observed puddl es of water on the bathroom floor and hoses lying nearby, and noted that water supply to the toilet had been turned back on and the toilet was operational. On submission of the case to a federal grand jury, a superseding indictment was returned charging Ortiz with two violations of the Clean Water Act (“CWA”): (1) negligently discharging chemical poll utants from a point source (a storm drain) into waters of the United States (the Colorado River) without a permit on May 29, 2002 and (2) knowingly dischargin g chemical pollutants from a point source into waters of the United States without a permit on June 18, 2002. Having been convicted on both counts on trial to a jury, Ortiz filed a motion for judgment of acquittal. The district court denied t he motion as to Count Two but granted it as to Count One, finding: “There is no evidence that the defendant had any awareness that the toilet was not connected to a sanitary sewer line before June 6, 2002. While the first count of the Superse ding Indictment charges a negligent discharge, the defendant could not be gui lty on that discharge in the absence of his knowledge that using the toilet woul d result in the discharge . . . to- 7 -

the river.” At sentencing, the court declined to apply an enhancement for an “ongoing, continuous or repetitive discharge” pursu ant to U.S.S.G. § 2Q1.3(b)(1)(A), and also denied the government’s requested enhancement for a “discharge without a permit” under U.S.S.G. § 2Q1.3 (b)(4). Ortiz received a sentence of twelve months’ imprisonment. The government appeals the judgment of acquittal on Count One and the court’s decision denying the two requested enhancements.
II “This court gives no deference to a district court’ s decision to set aside a jury’s guilty verdict and grant a defendant’s post- verdict motion for judgment of acquittal.” McClatchey , 217 F.3d at 829. Rather, we review a defendant’s motion for judgment of acquittal de novo. In decid ing whether a district court erred in entering a judgment of acquittal, we revie w the evidence submitted at trial in the light most favorable to the governmentand “determine whether a reasonable jury could have found the defendant guil ty beyond a reasonable doubt.” Id. Because the district court misinterpreted the statute of conviction, and because sufficient evidence supports the jury’s guilty verdict, we reverse the judgment of acquittal and reinstate Ortiz’s convict ion for negligently discharging a pollutant in violation of the CWA, 33 U.S.C. §§ 1 311(a) and 1319(c)(1)(A).- 8 - A The CWA prohibits the discharge of any pollutant in to the navigable waters of the United States without a National Pollution D ischarge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a); see also Driscoll v. Adams , 181 F.3d 1285, 1289 (11th Cir. 1999) (“the amended CWA absol utely prohibits the discharge of any pollutant by any person, unless th e discharge is made according to the terms of [an NPDES] permit.”). To enforce s trict compliance with its terms, the CWA provides penalties not only for indi viduals who knowingly violate the statute, 33 U.S.C. § 1319(c)(2)(A), butalso for any person who negligently discharges a pollutant in derogation of the NPDES. 33 U.S.C. § 1319(c)(1)(A) (“any person who negligently violat es [section 1311] shall be punished”); see also United States v. Wilson , 133 F.3d 251, 262 (4th Cir. 1997) (discussing the legislative history of the CWA). A s the court below properly instructed the jury, an individual commits a crime by (1) negligently, (2) discharging, (3) a pollutant, (4) from a point sour ce, (5) into the navigable waters of the United States, (6) without a permit. In granting Ortiz’s motion for a judgment of acquittal of negligent discharge, the district court found that “the defen dant could not be guilty on that discharge in the absence of his knowledge that usin g the toilet would result in the discharge . . . to the river.” On appeal, the gove rnment argues that the court- 9 -

improperly imposed a mens rea requirement, and effe ctively conflated the elements required for a negligent discharge convict ion under § 1319(c)(1)(A) and a knowing discharge conviction under § 1319(c)(2)(A ). It continues with the assertion that the CWA does not saddle the governme nt with the burden of proving that a defendant knew that waste traversed some boustrophedonic path and ended in a navigable stream. Ortiz does not di spute that ordinary negligence suffices to establish a negligent discharge violati on under § 1319(c)(1)(A). Rather, Ortiz characterizes the court’s judgment of acquittal as resting on the recognition “that one cannot be negligent, that is, flout a known risk, without being aware of what that risk is.” Appellee’s Br. at 12. Because Ortiz claims that he had no reason to suspect on May 29th that his to ilet was connected to the storm drain, he argues that he cannot have been negligentin flushing dangerous chemicals down his toilet. Even though the CWA does not define the term “negli gently,” we can easily determine what the government must prove to obtain a conviction under § 1319(c)(1)(A) by applying straightforward princip les of statutory interpretation. We begin with the plain language of the statute. D uncan v. Walker , 533 U.S. 167, 172 (2001). “When the meaning of the statute is cl ear, it is both unnecessary and improper to resort to legislative history to divine congressional intent.” Edwards v. Valdez , 789 F.2d 1477, 1481 (10th Cir. 1986). When confr onted with clear and- 10 -

unambiguous statutory language, our duty is simply to enforce the statute that Congress has drafted. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A. , 530 U.S. 1, 6 (2000) (“When the statute’s languag e is plain, the sole function of the courts – at least where the disposi tion required by the text is not absurd – is to enforce it according to its terms.”)

. Section 1319(c)(1)(A) imposes punishment upon “any person who negligently violates” certain enumerated sections o f the CWA. Those enumerated sections include § 1311(a), which states that “the discharge of any pollutant by any person shall be unlawful” except “as in complia nce with this section and sections 302, 306, 307, 318, 402, and 404 of this A ct.” To determine what “negligently” means in this statutory context, we “ start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Russello v. United States , 464 U.S. 16, 21 (1983). In its ordinary usage, “negligently” means a failure to exercise the degre e of care that someone of ordinary prudence would have exercised in the same circumstance. See Hodgson
v. Dexter , 5 U.S. (1 Cranch) 345 (1803) (“negligence means the want of ordinary care.”); Sinclair Prairie Oil Co. v. Thornley , 127 F.2d 128, 131 (10th Cir. 1942) (approving the following instruction: “A common def inition of negligence is that it consists of the failure to do what a person of o rdinary prudence and care would do under the circumstances of a particular or given situation, or in doing- 11 -

something which such a person would not have done u nder those circumstances.”). Under the statute’s plain langua ge, an individual violates the CWA by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance, and, in so doing, discharges any pollutant into United States waters without an NPDE S permit. Thus, contrary to the district court’s reading, the CWA does not requ ire proof that a defendant knew that a discharge would enter United States wat ers. See W. Page Keeton, Prosser and Keeton on Torts § 31 (5th ed. 1984) (“Negligence is conduct, and n ot a state of mind. In most instances, it is caused b y heedlessness or inadvertence, by which the negligent party is unaware of the resu lts which may follow from his act.”). Our decision accords with the Ninth Circuit’s rulin g in United States v. Hanousek , 176 F.3d 1116 (9th Cir. 1999), the only case to h ave previously addressed this issue. In Hanousek , the court upheld the conviction of a railroad project supervisor under § 1319(c)(1)(A) where he f ailed to cover an oil pipeline near the project site with protective materials and one of his workers accidently ruptured the pipeline with a backhoe, causing oil t o spill into a nearby river. On appeal, Hanousek argued that to establish a violati on under § 1319(c)(1)(A), the government had to prove that the defendant acted wi th criminal negligence rather than ordinary negligence. Viewing the plain langua ge of the statute, the court- 12 -

disagreed, and held that one commits a negligent di scharge violation by failing “to use such care as a reasonably prudent and caref ul person would use under similar circumstances.” Id. at 1120. Further, the court determined that “[i]f Congress intended to prescribe a heightened neglige nce standard, it could have done so explicitly, as it did in 33 U.S.C. § 1321(b )(7)(D),” a civil penalty provision of the CWA. Id. at 1121; see also Russello v. United States , 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). If Ortiz failed to exercise the degree of care thatsomeone of ordinary prudence would have exercised in the same circumstance and, in so doing, discharged a pollutant into the Colorado River with out a permit to do so, then he violated § 1319(c)(1)(A). Ortiz does not dispute o n appeal that on May 29, 2002 he discharged some amount of propylene glycol waste water down the toilet at Chemical Specialties. He does not deny that the wa stewater flowed into the Colorado River and does not claim to have a permit to discharge untreated propylene glycol wastewater into the river. He arg ues, however, that when dumping the propylene glycol wastewater down the to ilet, he was not acting negligently. We disagree.1 We do not imply that an individual commits a negli gent discharge

violation only upon prior notification from officia ls of a possible link between a point source and a navigable water. Here, however, the facts are more than sufficient to obtain a conviction under § 1319(c)(1 )(A). - 13 - In viewing the evidence in the light most favorable to the government, we have little trouble concluding that a reasonable ju ry could have found that Ortiz violated § 1319(c)(1)(A). Prior to May 29th, inves tigators told Ortiz that they had traced a black discharge with a strong onion odor f rom the Colorado River, up the storm drain, to the Chemical Specialties facility, and questioned him about how he was disposing of wastewater. The government pre sented evidence that prior to these conversations, Ortiz was dumping propylene gl ycol wastewater (a black substance with a strong onion odor) down the toilet . A reasonable jury could have well found that Ortiz acted negligently on May 29th when, after being alerted by investigators, he again dumped propylene glycol wastewater into the toilet. 1 Because a reasonable jury could have found beyond a reasonable doubt that Ortiz committed a violation of § 1319(c)(1)(A) on May 29, 2002, we reverse the district court’s judgment of acquittal on CountOne of the superceding indictment.
B Although the jury specifically found that Ortiz dis charged a pollutant without a permit, the district court nevertheless d eclined to apply a sentence enhancement for “discharge without a permit.” U.S. S.G. § 2Q1.3(b)(4) (“If the- 14 -

offense involved a discharge without a permit or in violation of a permit, increase by 4 levels.”). Central to the trial court’s rulin g was the determination that a § 2Q1.3(b)(4) enhancement can apply only where a pe rmit is available for the activity but the defendant failed to obtain one. W e review the district court’s legal determination de novo. United States v. Doe , 398 F.3d 1254, 1257 (10th Cir. 2005). Because we conclude that the factual i mpossibility of obtaining a permit is not a defense to a § 2Q1.3(b)(4) enhancem ent, we reverse the district court’s sentencing decision. One court has previously had occasion to address th is issue and has held that a § 2Q1.3(b)(4) enhancement may apply notwiths tanding the unavailability of a permit for the offense conduct. See United States v. Perez , 366 F.3d 1178, 1186 n.10 (11th Cir. 2004). Commentary to the enhanceme nt supports the Eleventh Circuit’s view: “Subsection (b)(4) applies . . . w here there was a failure to obtain a permit when one was required .” U.S.S.G. § 2Q1.3(b)(4), Application Note 7 (emphasis added); Stinson v. United States , 508 U.S. 36, 38 (1993) (an application note “is authoritative unless it violat es the Constitution or a federal statute, or is inconsistent with [the guideline].”) . With few non-relevant exceptions, a permit is always required before disc harging a pollutant into navigable waters. See, e.g. , E.P.A. v. California ex rel. State Water Resource s Control Bd. , 426 U.S. 200, 205 (1976) (“it is unlawful for anyperson to discharge- 15 -

a pollutant without obtaining a permit and complyin g with its terms”); Natural Resources Defense Council, Inc. v. Costle , 568 F.2d 1369, 1375-76 (D.C.Cir.1977) (“There are innumerable references i n the legislative history to the effect that the Act is founded on the ‘basic premis e that a discharge of pollutants without a permit is unlawful and that discharges no t in compliance with the limitations and conditions for a permit are unlawfu l.’ Even when infeasibility arguments were squarely raised, the legislature dec lined to abandon the permit requirement.”) (quoting 118 Cong. Rec. 10215 (1972) ); Driscoll v. Adams , 181 F.3d 1285, 1289 (11th Cir. 1999) (“the amended CWA absolutely prohibits the discharge of any pollutant by any person, unless th e discharge is made according to the terms of [an NPDES] permit”); Sierra Club, L one Star Chapter v. Cedar Point Oil Co. , 73 F.3d 546, 559 (5th Cir. 1996) (“the discharge of any pollutant without a NPDES permit is an unlawful act”). The CWA’s plain language clearly provides that a pe rmit is always required to discharge any pollutant: “Except as in complian ce with this section and sections [including the permit requirement], the di scharge of any pollutantby any person shall be unlawful.” 33 U.S.C. § 1311(a) (emphasis added). Moreover, adopting the district court’s view would create perverse incentives that the Sentencing Commission cannot have intended. If a § 2Q1.3(b)(4) enhancement applies only when a defendant could have received apermit for the offense2 We emphasize that it was only factually impossible , not legally

impossible, for Ortiz to have obtained an NPDES permit for the offense conduct. Compare United States v. Dalton , 960 F.2d 121 (10th Cir. 1992) (reversing a conviction for possession of an unregistered machin e gun for legal impossibility, because a separate statute prohibited the registrat ion of machine guns) with United States v. Eaton , 260 F.3d 1232, 1236 (10th Cir. 2001) (upholding a conviction for possession of unregistered pipe bomb s, because “[t]here is no similar statute criminalizing the possession of a d estructive device such as a pipe bomb. . . . Whether the ATF would have accepted the pipe bomb for registration does not bear on the issue of legal impossibility.” ). See also M/G Transp. Servs. , 173 F.3d at 588 (“the issuance of permits for the d ischarge of pollutants is an integral part of the regulatory scheme of the Clean Water Act. . . . Such a scenario is qualitatively different from that presented in D alton .”).

- 16 - conduct, “businesses would have an incentive not to obtain permits prior to discharging pollutants; and businesses that dischar ge pollutants would have an incentive to make those discharges so egregious in magnitude, duration, and toxicity that no permitting authority would ever al low them.” United States v. M/G Transp. Servs., Inc. , 173 F.3d 584, 588 (6th Cir. 1999). 2 Because the ability to obtain an NPDES permit is not a prerequisite to the application of § 2Q1.3(b)(4), the district court erred as a matterof law in declining to apply the enhancement for discharging without a permit.
C At sentencing, the district court declined to apply an enhancement for “ongoing, continuous, or repetitive discharge” unde r U.S.S.G. § 2Q1.3(b)(1)(A), finding that the government failed to prove that Ortiz discharged pollutants on a repetitive basis. Because we reverse the judgment of acquittal on Count One,- 17 -

Ortiz stands convicted of discharging pollutants incontravention of the CWA on two dates: May 29, 2002 and June 18, 2002. These two convictions suffice for application of the § 2Q1.3(b)(1)(A) enhancement. S ee, e.g. , United States v. Strandquist , 993 F.2d 395, 400-401 (4th Cir. 1993) (convictionon two counts of illegal discharge on two separate days amounts to “ repetitive discharge”); United States v. Catucci , 55 F.3d 15, 18 (1st Cir. 1995) (“the two PCB-lade n transformers were dumped on separate occasions. No thing more need be shown to activate the repetitive discharge adjustment.”). Based upon commentary to the enhancement provision, Ortiz argues that § 2Q1.3(b)(1)(A) applies only in cases of two or mo re knowing discharge violations, and asserts that the enhancement may no t be applied to sentences for negligently discharging pollutants. Application No te 3 provides: “The specific offense characteristics in this section assume know ing conduct. In cases involving negligent conduct, a downward departure m ay be warranted.” Plainly, the commentary contemplates application of a § 2Q1. 3(b)(1)(A) enhancement to sentences for negligent discharge violations, but a uthorizes a downward departure in such circumstances. Conviction for knowing discharge under 33 U.S.C. § 1319(c)(2)(A) and a separate conviction for negligent discharge under 3 3 U.S.C. § 1319(c)(1)(A) justify application of the § 2Q1.3(b)(1)(A) enhance ment. The finding that Ortiz’s- 18 -

offense did not result in an ongoing, continuous, o r repetitive discharge of a pollutant is clearly erroneous.
III
We REVERSE the judgment of acquittal entered on Count One of the superseding indictment and reinstate the jury’s ver dict convicting Ortiz of negligently discharging a pollutant in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(1)(A). We REMAND this matter to the district court with instruction s to VACATE Ortiz’s sentence and resentence him in accordance with this opinion.