Lawyers who work in the environmental field are accustomed to statutes and regulations providing that each day a violation is present constitutes a separate offense. These provisions often lead to rapidly accumulating penalties that can overwhelm smaller contractors or owners. But a recent case in Maryland shows that it pays to focus on the exact wording of the law allegedly violated, to potentially limit the extent of liability in an apparent continuing violation situation.

State v. Shortall, 205 A.3d 985, 463 Md. 324 (Md. 2019) centered on whether the defendant was deprived of his constitutional right to the effective assistance of counsel in a criminal prosecution under Maryland environmental laws. Of more interesting to those involved in environmental compliance, however, is the nature of the mistake that the defendant’s counsel admittedly made at trial.

Shortall owned a commercial property on which a maintenance building was not connected to an approved septic system. Instead, the building’s restroom was connected to a PVF pipe that ultimately discharged onto open ground. The Maryland Department of the Environment (MDE) found evidence of discharge from the building’s toilet on the ground during an inspection. Shortall apparently stopped using the restroom but did not clean up the waste. MDE inspectors subsequently saw the original waste still on the ground during four follow-up inspections. MDE never directed Shortall to clean up the waste, only to stop discharging.

MDE prosecuted Shortall for five separate violations each of two Maryland regulations. The first regulation provided: “A person may not dispose of sewage, body, or industrial wastes in any manner which may cause pollution of the ground surface, the waters of the State, or create a nuisance.” The second regulation provided: “A person may only dispose of sewage, body, or industrial wastes in accordance with an approved on-site sewage disposal permit or other method of disposal approved by the Approving Authority.” A related Maryland statute states: “Each day on which a violation occurs is a separate violation under this subsection.” The trial judge instructed the jury that “every day on which a violation is still present constitutes a separate offense until the date the violation is corrected.” (Emphasis added). Shortall’s defense counsel did not object to the jury instructions.

Shortall was convicted on all ten counts and sentenced to two years in prison, all but 90 days suspended, plus probation and a fine and community service. He later sought post-conviction relief because his trial counsel failed to object to the judge’s erroneous jury instructions. At the Court of Appeals, even the State did not challenge that the jury instruction was incorrect. The Court agreed that Shortall’s trial counsel’s failure to object rose to the level of deprivation of Shortall’s constitutional right to effective assistance of counsel.

To find the error in the jury instructions, the Court parsed the language of the regulations Shortall allegedly violated. Quoting from the intermediate appellate decision, the Court noted:

The regulations Shortall was charged with having violated each use the word “dispose,” and impose a duty to avoid taking a specific action, with no mention of a duty to mitigate or remediate the harm to the environment that may have been caused by the disposal. Pursuant to this plain language, the State was required to prove that an act of disposal had “occurred” on “each day” the State charged as a separate violation of either [regulation].

The Court acknowledged that State law provided that “each day on which a violation occurs is a separate violation,” but found that violations only occur when one disposes of waste under the circumstances prohibited by the regulations, i.e. in a manner that may cause pollution or without an approved method of disposal.

The State had argued at the criminal trial that there was a “continuing violation” of the regulations, such that the waste observed during the initial MDE inspection was “disposed” each day until the PVC pipe was capped. This led to the instruction to the jury that each day the violation was present was a separate offense “until the date the violation is corrected.” The Court of Appeals found that this instruction improperly changed the unambiguous meaning of the regulations by adding new language, because the regulations only prohibited waste disposal and did not impose any duty to remediate the damage or dismantle the disposal system.

The Court found that Shortall’s counsel’s glaring failure to object to the erroneous instruction led to the jury convicting Shortall on eight additional counts (four under each regulation) based on the incorrect continuing violation theory, thereby depriving Shortall of his right to effective counsel. The Court ordered that Shortall be resentenced without the convictions on the eight additional counts, which presumably resulted in significant reductions of the jail time, fine amount, and other punishment originally imposed.

The takeaway from Shortall is to always look closely at the language of the law that allegedly has been violated. If the focus is on improper disposal or discharge, there may be an argument that there is not a continuing violation for each day until the cause or effect of the original disposal or discharge is remedied. Instead, the government may have to prove that a new discharge or disposal occurred on each additional day of alleged violation.

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