Criminal Culpability Requirements.
Under the Washington State Criminal Code (Criminal Code), there are four general categories of mental states required for a person to be found guilty of committing a crime: intent, knowledge, recklessness, and criminal negligence.
Intentional. A person acts with intent or intentionally when the person acts with the objective or purpose to accomplish a result which constitutes a crime.
Knowingly. A person acts knowingly or with knowledge when the person is aware of a fact, facts, or circumstances or result described by a statute defining an offense, or the person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by a statute defining an offense. A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless there is a clear purpose to impose further requirements.
Reckless. A person is reckless or acts recklessly when the person knows of and disregards a substantial risk that a wrongful act may occur and the person's disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Criminally Negligent. A person is criminally negligent or acts with criminal negligence when the person fails to be aware of a substantial risk that a wrongful act may occur and the person's failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.
Entity Liability.
Under the Criminal Code, a corporation is guilty of an offense when the conduct constituting the offense:
An individual is criminally liable for conduct constituting an offense that the individual performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in the individual's own name or on the individual's behalf.
Whenever a duty to act is legally imposed upon a corporation, any agent who knowingly shares primary responsibility for the duty is criminally liable for a reckless, or if a high managerial agent, a criminally negligent omission to perform the required act to the same extent as if the duty were imposed directly upon the agent. Every corporation convicted of criminal conspiracy to commit any offense forfeits the right to do business in Washington.
Crimes are classified as misdemeanors, gross misdemeanors, or felonies. The classification of a crime generally determines the maximum term of confinement or fine imposed, or both, for an offense. For each classification, the maximum terms of confinement and maximum fines are as follows:
| Classification | Maximum Confinement | Maximum Fine |
| Misdemeanor | 90 days | $1,000 |
| Gross Misdemeanor | 364 days | $5,000 |
| Class C Felony | 5 years | $10,000 |
| Class B Felony | 10 years | $20,000 |
| Class A Felony | Life | $50,000 |
When a person is convicted of a felony, the Sentencing Reform Act (SRA) applies and determines a sentence range within the statutory maximum. Sentence ranges are determined by reference to a sentencing grid that provides a standard range of months for the sentence based on both the severity, or "seriousness level," of the offense and the convicted person's "offender score," which is based on the offender's criminal history. Seriousness levels range from I to XVI. Offender scores can range from zero to nine or more points. A higher seriousness level or offender score results in a longer sentence. If an offense does not have a designated serious level, also referred to as an unranked offense, then the maximum sentence is one year.
For entities, unless a special fine is specified for an offense, the maximum fines are as follows:
| Classification | Maximum Fine |
| Misdemeanor | $50,000 |
| Gross Misdemeanor | $250,000 |
| Class C Felony | $500,000 |
| Class B Felony | $750,000 |
| Class A Felony | $1,000,000 |
Water Pollution Control Act.
The Water Pollution Control Act (WPCA) grants the Department of Ecology (Ecology) authority to control and prevent the pollution of certain waters of Washington, including lakes, rivers, ponds, streams, salt waters, and other waters within the state. Under this authority, Ecology establishes water quality standards for regulated waters and issues permits relating to the discharge of pollutants into such waters.
Penalties. The WPCA contains both civil and criminal penalties. A person found guilty of willfully violating any provisions of the WPCA or the Oil and Hazardous Substance Spill Prevention and Response Act, or any final written orders or directive of Ecology or a court is guilty of a gross misdemeanor. If convicted, the person may be punished by a fine of up to $10,000, imprisonment for up to 364 days, or both. Each day of a willful violation may be deemed as a separate and additional violation.
Clean Air Act.
The state Clean Air Act (CAA) grants Ecology, clean air agencies, and tribal governments authority to regulate outdoor air pollution in Washington. Under this authority, the relevant regulating entity issues air quality permits, sets emission standards for certain sources of air pollution, declares air pollution episodes, and requires greenhouse gas reporting.
Penalties. The CAA contains both civil and criminal penalties. A person who knowingly violates any provisions of the CAA or other specified statutes relating to motor vehicle emission control; hydrofluorocarbons; the Clean Fuels Program; or any ordinance, resolution, or regulations implementing those provisions is guilty of a gross misdemeanor. If convicted, the person may be punished by a fine of up to $10,000, imprisonment for up to 364 days, or both.
A person who knowingly releases into the ambient air any substance listed by Ecology as a hazardous air pollutant, other than in compliance with an applicable permit or emission limit, and who at the time knowingly places another person in imminent danger of death or substantial bodily harm is guilty of a class C Felony. If convicted, the person may be punished by a fine of up to $50,000, imprisonment for up to 5 years, or both.
A person who negligently commits the offense is guilty of a gross misdemeanor, which is punishable by a fine of up to $10,000, imprisonment for up to 364 days, or both. A separate gross misdemeanor offense exists for certain clean air agency members failing to disclose a conflict of interest.
At least 30 days prior to the commencement of any formal enforcement action under the criminal provisions of the CAA, Ecology must provide written notice to be served on the alleged violator or violators.
Hazardous Waste Management Act.
The Hazardous Waste Management Act (HWMA) grants Ecology authority to regulate the management of hazardous wastes and releases of hazardous substances. Under this authority, Ecology adopts regulations relating to properly designating and managing certain dangerous or hazardous wastes.
Penalties. The HWMA contains both civil and criminal penalties. A class B felony under this section is punishable by up to a $20,000 fine, 10 years of imprisonment, or both. A class C felony is punishable by up to a $10,000 fine, five years of imprisonment, or both.
A person who knowingly transports, treats, stores, handles, disposes of, or exports a hazardous substance in violation of the HWMA is guilty of a:
Imminent danger means there is a substantial likelihood that harm will be experienced within a reasonable period of time should the danger not be eliminated. Knowingly refers to an awareness of facts, not an awareness of the law.
A person who violates any provisions of the HWMA or any implementing rules, and a person who knowingly aids or abets another in conducting any such violation is guilty of a gross misdemeanor. If convicted, the person must be punished by a $100 to $10,000 fine, imprisonment for up to 364 days, or both, for each separate violation. Each violation is a separate and distinct offense.
Water Pollution Control Act Violations.
An entity is guilty of an offense committed by an agent of the entity if the agent commits the offense while acting within the scope of the agent's duties and on behalf of the entity. Each day that a violation occurs may be deemed a separate and additional violation. The WPCA violations do not apply to silt and sediment discharges permitted by a construction stormwater general permit.
First-Degree Violation. A person is guilty of a WPCA violation in the first degree if the person knowingly violates any provisions of the WPCA, the Oil and Hazardous Substance Prevention and Response Act, or any permit issued under the WPCA or the federal Clean Water Act, and the person knows at the time that the conduct constituting the violation places another person in imminent danger of death or serious bodily harm. A first-degree violation is punishable as a class B felony.
Second-Degree Violation. A person is guilty of a WPCA violation in the second degree if the person, under circumstances not amounting to a first-degree violation, knowingly violates any provisions of the WPCA, the Oil and Hazardous Substance Prevention and Response Act, any final written orders or directive of Ecology or a court, or any permit issued under the WPCA or the federal Clean Water Act. A second-degree violation is punishable as a class C felony.
Third-Degree Violation. A person is guilty of a WPCA violation in the third degree if the person, under circumstances not amounting to a first-degree or second-degree violation, acts with criminal negligence in violating any provisions of the WPCA, the Oil and Hazardous Substance Prevention and Response Act, or any final written orders or directive of Ecology or a court, any permit issued under the WPCA or the federal Clean Water Act. A third-degree violation is a gross misdemeanor punishable by a fine of up to $10,000 and costs of prosecution, by imprisonment for up to 364 days, or both, at the discretion of the court.
Clean Air Act Violations.
An entity is guilty of an offense if an agent of the entity commits the offense while acting within the scope of the agent's duties and on behalf of the entity. Each day that a violation occurs may be deemed a separate and additional violation. For the purposes of the CAA violations, air pollutant does not include an odorous substance unless it is adopted by rule by Ecology as hazardous or toxic. There is an exception from the criminal penalty provisions of the CAA for:
First-Degree Violation. A person is guilty of a CAA violation in the first degree if the person knowingly releases into the ambient air any substance adopted by rule by Ecology as a hazardous or toxic air pollutant, other than in compliance with the terms of an applicable permit or emission limit, and the person knows at the time that the person thereby places:
A first-degree violation is punishable as a class B felony.
Second-Degree Violation. A person is guilty of a CAA violation in the second degree if the person, under circumstances not amounting to a first-degree violation:
A second-degree violation of the CAA is punishable as a class C felony.
Third-Degree Violation. A person is guilty of a CAA violation in the third degree if the person, under circumstances not amounting to a first-degree or second-degree violation:
A third-degree violation is a gross misdemeanor, punishable by a fine of up to $10,000 and costs of prosecution, by imprisonment for up to 364 days, or both.
Hazardous Waste Management Violations.
An entity is guilty of an offense if an agent of the entity commits the offense while acting within the scope of the agent's duties and on behalf of the entity. Each day that a violation occurs may be deemed a separate and additional violation.
First-Degree Violation. A person is guilty of a HWMA violation in the first degree if the person knowingly transports, treats, stores, handles, disposes of, or exports a hazardous substance in violation of the HWMA and the person knows at the time that the conduct constituting the violation:
A first-degree violation is punishable as a class B felony.
Second-Degree Violation. A person is guilty of a HWMA violation in the second degree if the person, under circumstances not amounting to a first-degree violation, knowingly violates any provisions of the HWMA or the implementing rules. A second-degree violation of the HWMA is punishable as a class C felony.
Third-Degree Violation. A person is guilty of a HWMA violation in the third degree if the person, under circumstances not amounting to a first-degree or second-degree violation, acts with criminal negligence in violating any provisions of the HWMA or the implementing rules. A third-degree violation is a gross misdemeanor, punishable by a fine of up to $10,000 and costs of prosecution, by imprisonment for up to 364 days, or both.
Criminal Penalty Exceptions.
Conduct in compliance with a permit, including reporting or corrective actions taken pursuant to the permit, is not considered a violation of that permit for the purposes of the criminal provisions of the WPCA, the CAA, and the HWMA.
Other Provisions.
Employee Protections. It is contrary to public policy to terminate or discipline an employee for refusing to violate environmental laws, or for providing information about a violation of environmental laws to a supervisor or government agency.
Information on Criminal Penalties. The amended bill requires Ecology, within existing resources, to prepare information about the criminal penalty provisions in environmental laws, as well as the circumstances and conduct that could subject someone to those provisions, and make such information available on a website maintained by the department. Whenever Ecology issues a new permit or renews an existing permit under the environmental laws, Ecology would be required to provide the applicant with information about the criminal penalty provisions in environmental laws and the circumstances and conduct that could subject someone to those provisions.
Legislative Intent. A legislative intent is provided.
Terminology. References to the terms "knowledge" and "criminal negligence" in the Washington Criminal Code are provided in the amended bill. Where applicable, "imminent danger" is defined to mean that there is a substantial likelihood that harm will be experienced should the danger not be eliminated. "Substantial bodily harm" is defined to mean bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.
Sentencing Grid. First-degree violations are included in the sentencing grid as seriousness level V offenses. Second-degree violations are included in the sentencing grid as seriousness level III offenses.
Repealed Statutes. Certain provisions relating to criminal penalties in the WPCA, CAA, and HWMA are repealed.
Severability Clause. A severability clause is provided.
As compared to the engrossed substitute bill, the amended bill:
(In support) This bill has been developed in collaboration with the Environmental Protection Division of the Attorney General's Office and a local community-based organization. This bill provides sensible criminal enforcement tools to protect human health and the environment in Washington. This bill would bring Washington into line with federal law to ensure that there are stronger criminal penalties to make sure that the violators are held properly accountable and to serve as a deterrent. This bill establishes a sensible, consistent stair step system to environmental criminal enforcement that holds violators accountable for more serious crimes committed with knowledge. When violators put people or natural resources in imminent danger, it would establish first, second and third-degree violations of the WPCA. The more severe the violation, the more serious of the crime. The bill holds businesses accountable for serious environmental crimes committed by their employees during the scope of their duties, while acting on behalf of the company. The bill would also ensure that Washington is in compliance with federal Clean Water Act requirements for authority delegated to the state. The urgency of this bill is that the United States Environmental Protection Agency just announced that it would be redirecting enforcement resources as part of the biggest deregulatory action in United States history. This bill is making sure the criminal polluters who violate environmental laws pay the price of doing dirty business in Washington. Too often the criminal justice system has a double standard that comes down harder on low-income individuals who commit crimes, while businesses and corporate actors avoid meaningful accountability. There were two boat fires that happened in Tacoma, the results of which were devastating to the city and forced the city to shut down and undertake an expensive remediation process. The fire department had to call in special equipment and a lot of businesses were shut down. The second boat fire could have been prevented and should have been prevented, but the business was operating as if the penalties and fines from the first fire were just the cost of doing business. There was also a situation where toxic rubber and plastic field turf was released into the Puyallup River. There needs to be stronger accountability for polluters so that young people and future generations are not paying the price of people who are doing dirty business. There has been significant and constructive engagement with stakeholders and interested parties. This bill was delayed in the Senate in order to hear concerns from stakeholders and includes amendments to make clear that the bill doesn't criminalize accidents. This bill does not criminalize regular lawful businesses, farming or ranching operations, nor does it criminalize accidents. There is an agricultural exemption for actions that are considered good agricultural practices. There are still stakeholders that don't like the policy, but there needs to be consistency in criminal enforcement and if someone criminally pollutes then they need to be held accountable.
(Opposed) There are grievous concerns with language of the bill and the implications of what it does in contrast to federal regulation. There is a comprehensive analysis comparing the bill to federal law that will be provided to the committee, and it indicates where this bill exceeds federal regulation. There are concerns about how this bill also applies to employees and would impact the business industry. This bill is scaring workers. Businesses are not environmental criminals, but rather they are some of the best environmental stewards. Even with legislative intent and prosecutorial discretion, this bill criminalizes minor oversights and penalizes entities that are working to improve compliance through adaptive management practices. There has been a lot of progress made in improving conditions and this bill threatens to undo that progress and cooperation. The agricultural community is concerned with how this bill would be applied to regular agricultural practices and it is unclear what activities would be exempted from the bill. There are concerns that by lowering the threshold for a criminal violation and increasing penalties for violations, the permitted community would be discouraged from reaching out to the agencies for support, for rights to cure violations, and for remediation. A third-degree criminal violation would constitute a gross misdemeanor if a person was acting in a merely negligent manner. An incident that today is a potential monetary citation would be altered to a criminal violation with possible incarceration and since it would be a criminal matter, insurance coverage would also most likely deny coverage of the matter. This bill is creating substantially greater risk for businesses and will result in increasing project costs. If a land development is near wetlands, a shoreline, or a salmon-bearing stream, there is now a risk of criminal liability. These criminal penalties could be leveraged through threats of criminal prosecution unless a higher civil penalty is paid. There are circumstances in federal law that permit certain activities, and this bill would conflict with those federal discharge allowances. There is concern that the permit language is circular and needs additional clarification to protect permittees operating under a permit. There are also concerns about each day of a violation constituting a separate offense. Multiple days could elapse before there is even a realization that a violation occurred. There needs to be more clear language about harm or injury as it relates to the negligent or knowing conduct.
(Other) There are concerns regarding the criminal liability for workers. There is constant work and monitoring to ensure construction sites remain in compliance with permits relating to the National Pollution Discharge Elimination System, including monitoring water quality and discharge, managing erosion and settlement control, and implementing and maintaining stormwater pollution prevention plans. There has been engagement with the Attorney General's Office to address these concerns and it is important to develop language to protect workers from individual liability for performing their job while ensuring environmental standards are met. This bill will have a chilling effect on the workforce when they are working to manage water quality and many will be unwilling to take on the liability. Environmental stewardship is a part of the mission for ports, but there are concerns that permitted activities that have corrective actions could be viewed as environmental crimes. If a benchmark incident occurs and a corrective action process is followed under the permit this should not be an environmental crime.
(In support) Senator Yasmin Trudeau, prime sponsor; Bradley Roberts, Washington State Attorney General's Office; and Adam Eitmann, Attorney General's Office.