Water, water, everywhere. (Legal Briefs).

Public water supplies are generally regulated under the Federal Safe Drinking Water Act (42 U.S.C. [section] 300f, et seq). Usually, a state also regulates public drinking water, either by delegation from the U.S. Environmental Protection Agency (U.S. EPA) or independently. If a state has primacy from U.S. EPA for drinking-water regulation and management, and discovers falsification of records, how is that falsification criminally prosecuted? Though Case 1 this month concerns drinking water, the legal concepts may be applicable to other state and local environmental health programs that have substantive federal legislation (e.g., water quality, solid waste disposal, air pollution, hazardous waste).

Case 2 also concerns drinking water. In this case, a Florida resident questioned whether fluoridation was constitutional.

Finally, Case 3 involves an extension of an existing on-site sewage disposal system. A neighbor wanted to challenge a health department's permit and was denied the opportunity to contest the permit.

Case #1: Falsification of Records at a Water Treatment plant (1)

Under federal and state law, a public water district in Kentucky had to prepare and submit monthly operations reports to the Kentucky Department of Environmental Protection (KDEP). One item on the report was daily turbidity measurements.

During a surprise inspection, it was noted that on the daily logs, four consecutive spaces for turbidity results were blank. The water plant employee who made the turbidity records told the inspector that the spaces had been intentionally left blank because the results had exceeded the allowed amount. The next month, however, the operations report was filed with KDEP, and all turbidity results were completed and within limits.

Thereafter, KDEP seized the plant's daily logbooks and the data sheets from the turbidimeters. All plant employees were interviewed.

Through the investigation, KDEP discovered that other results had been falsified. Criminal charges were brought against the general superintendent of the Ohio County Water District's drinking-water treatment plant and his assistant. The charges were not brought under the federal Safe Drinking Water Act (SDWA) or under Kentucky law. Instead, both defendants were charged with violating federal law 18 U.S.C. [section] 1001, which provides that

whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

In the trial, both defendants were convicted. The general superintendent was sentenced to two years' probation, including six months' home detention, and a $5,000 fine. His assistant was sentenced to two years' probation, including three months' home detention, and a $1,000 fine. On appeal, the defendants challenged the jurisdiction of the court, challenged the admissibility of statements made to investigators, argued that the statements on the reports were not materially false, and argued that the sentence was too harsh. The United States challenged the sentences as too lenient.

First, the assistant superintendent argued that any false statements had been made to a state agency, not to a federal agency, and that therefore no federal crime had occurred. The statute under which the defendants were convicted "Covers all matters confided to the authority of any agency or department.... A department or agency has jurisdiction, in this sense, when it has the power to exercise authority in a particular situation." The test is whether the entity to which the statements were made received federal support, was subject to federal regulation, or both. Since KDEP has primacy under the federal Safe Drinking Water Act, received federal funds, was audited by U.S. EPA, and had requested U.S. EPA enforcement against other water suppliers, a false statement to KDEP was a false statement to U.S. EPA.

For any false statements to constitute a crime, they had to be material. A statement is material if it has a natural tendency to influence or is capable of influencing a federal agency. Actual influence or agency reliance is unnecessary. Since the falsification of the turbidity measurements may have affected U.S. EPA's enforcement of the drinking-water regulations, it was material.

As part of the investigation, two FBI agents interviewed the assistant superintendent at her home. The agents introduced themselves, showed identification, and represented that they were conducting an investigation into records falsification at the water plant. The assistant superintendent consented to the interview. Since she was not under arrest, had complete freedom of movement, and was not subject to any restraint or restriction, she did not have to be advised of her Miranda rights, and her statements to the investigators did not violate her Fifth Amendment rights.

Finally, the Court of Appeals reviewed the sentencing of the two defendants. For federal crimes, the court first sets a base sentence based upon the U.S. Sentencing Guidelines Manual and then considers certain factors to enhance or mitigate the length of the sentence. The government believed the sentences should have been harsher because the defendants' actions reflected an effort to conceal a "substantive environmental offense," and the superintendent had abused a position of public trust. The assistant superintendent believed her sentence was too harsh because she possessed no "special skill" that facilitated the crime.

The criminal provisions of the federal Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act are substantially different from those of the federal Safe Drinking Water Act. The SDWA seeks enforcement mainly through administrative orders and civil actions. It contains no criminal sanctions for allowing water of lesser quality into a public drinking-water system. Therefore, falsification of records as to the water quality did not cover up a "substantive environmental offense."

On the other hand, the Ohio County Water District had a high degree of responsibility to the public to provide safe drinking water. That responsibility was a quasi-fiduciary public trust. Since the superintendent had substantial discretion as to how to provide the water service with little or no administrative oversight, he had imputed to him the public-trust responsibility of the district. Because he had abused that trust by falsifying records, his sentence should have been enhanced.

The assistant superintendent was not in a position of public trust, but held a Kentucky 4A Water Treatment Plant Operator's License. That license gave her "a skill not possessed by members of the general public and usually requiring substantial education, training, or licensing." Her training and experience made it significantly easier for her to falsify the records and conceal it from regulators. Therefore, the District Court judge enhanced her sentence.

Case #2: Constitutionality of Fluoridation (2)

In January 2000, the city commission of Boynton Beach, Florida, unanimously voted to fluoridate the city's water supply. A resident sued the city, claiming that fluoridation violated his right to refuse medical treatment under the Florida and U.S. constitutions.

Historically, the provision of drinking water has always been a valid municipal function. Adding fluoride to the water supply is an exercise of the municipality's police power. As long as a municipality acts within its constitutional and statutory limitations, the wisdom of the exercise of police power is left to the city commission.

In Florida, a competent person has a constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health. Does fluoridation constitute a compulsory "medical procedure"?

The court found that fluoridation of water before it reaches a person's home is not the direct introduction of a medicine or mineral into an individual's bloodstream. The individual is not compelled to drink the water. The freedom to choose fluoridated water or unfluoridated water remains. Therefore, the individual's constitutional rights remain intact.

Case #3: Intervention in Administrative Decision Making (3)

Does a neighbor of an applicant for an onsite sewage disposal system have a right to intervene in a health department's administrative process? In Connecticut, the answer is no.

The occupants of a Connecticut residence wanted to build an addition to their home and submitted to the local health director an application for approval of a proposed subsurface sewage-disposal system. The local director submitted the application to the Connecticut Department of Public Health for review. The department recommended approval of the application.

The neighbor requested an administrative review from the department or an appeal of its approval. The department denied the request because it had only given an advisory opinion and had no procedure for a review. Then the neighbor requested to be an intervenor in the permit process. Again, the department denied the request. The neighbor sued, and the trial court dismissed the lawsuit.

On appeal, the plaintiffs claimed that they were "aggrieved" neighbors and should have been allowed to intervene in the administrative proceedings. The plaintiffs did not, however, meet any of the statutory qualifications required for intervening or for bringing the lawsuit. Since they were not aggrieved, they lacked standing. When a party has no standing, a court lacks jurisdiction over the dispute, and the case must be dismissed.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at <[e-mail]>.

References

(1.) U.S. v White,__ F.3d__, No. 98-6635 (6th Cir. 2001).

(2.) Quiles v. City of Boynton Beach, No. 4D01-71 (Fla. App. 2001).

(3.) Pinchbeck v. Department of Pub. Health, 65 Conn. App. 201 (2001).