ELR Citation: ELR 20102
No(s). 90-2133 (1st Cir. Oct 7, 1992)

The court holds that the Federal Water Pollution Control Act (FWPCA) §309(c)(3)'s criminal sanction for knowingly violating FWPCA pretreatment standards and thereby placing another person in imminent danger of death or serious injury does not apply when the imminent danger is to employees handling pollutants on the premises from which illegal discharges originate. A manufacturer of optical mirrors was convicted of violating FWPCA's knowing endangerment felony provision by discharging nickel plating and nitric acid baths into a city sewer system and a publicly owned treatment works (POTW), and placing its employees in imminent danger of death or serious bodily injury. The court holds that although the defendant knew the employees were placed in imminent danger, that danger was not caused by the knowing violation of FWPCA pretreatment standards. Proper treatment of the chemicals under the Act would have presented the employees with the same hazards, since danger to the employees was inherent in their handling the chemical solutions. Turning to the purpose of the Act, the court concludes that the FWPCA is not designed to protect industrial employees who work with hazardous substances and is not directed at the handling of pollutants. In a footnote, the court observes that the Act and its regulations demonstrate concern only for the safety of POTW employees and provide no protective mechanism for industrial employees who work with wastes at the point of discharge. Instead, the Occupational Safety and Health Act deals with industrial employee health and safety, and the Resource Conservation and Recovery Act provides a full range of remedies designed to protect both health and the environment from threats caused by hazardous substances. Finally, the rule of lenity in applying criminal statutes applies; thus, the court concludes that any ambiguity in FWPCA's criminal sanction is to be construed in favor of the defendant. Although the defendant's conduct may have violated other criminal laws, the court holds that an FWPCA knowing endangerment prosecution cannot be premised on danger that occurs before the pollutant reaches a POTW.

Counsel for Appellee
Richard E. Welch III, Ass't U.S. Attorney
Economic Crime Unit
U.S. Department of Justice, District of Massachusetts
1107 J. W. McCormack Bldg., U.S. P.O. & Courthouse
Boston MA 02109
(617) 223-9400

Counsel for Defendants-Appellants
John Foskett, Steven J. Brooks
Deutsch, Williams, Brooks, DeRensis, Holland & Drachman
90 Summer St., Boston MA 02110
(617) 951-2300

(Before Torruella and Stahl, JJ.)