ELR Citation: ELR 21526
No(s). s. 92-1090, -1091 (2d Cir. Sep 1, 1993)

The court holds that a human being is not a point source under §301 of the Federal Water Pollution Control Act (FWPCA), and overturns the conviction of a co-owner and vice president of a laboratory, who placed vials containing human blood into the Hudson River, for knowingly discharging pollutants into navigable waters in violation of FWPCA §§301(a) and 309(c)(2). Addressing the term "point source," the court finds nothing in the FWPCA or its legislative history to suggest that Congress intended the Act to impose criminal liability on an individual for the myriad acts of human waste disposal. The court states that the term point source is comprehensible only if it is held to the context of industrial and municipal discharges, and finds that the Act's legislative history confirms the Act's focus on industrial polluters. Moreover, the court finds that case law does not suggest that a human being remotely approximates any portion of the Act's definition of point source. Also, the U.S. Environmental Protection Agency's regulations do not support the broad assertion that a human being may be a point source. The court holds that the rule of lenity, which requires that statutory ambiguities be resolved in favor of criminal defendants, requires reversal of the conviction, because the defendant's action was not clearly within the ambit of the statute. The criminal provisions of the FWPCA did not clearly proscribe the defendant's conduct and did not accord him fair warning of the sanctions the law placed on that conduct.

A dissenting judge believes that the defendant's actions fell well within the bounds of activity proscribed by the FWPCA bar on the discharge of pollutants into navigable waters.

Counsel for Plaintiff
Robin L. Greenwald, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse., 225 Cadman Plaza E., Brooklyn NY 11201
(718) 330-7106

Counsel for Defendant
Vivian Shevitz
130 E. 35th St., New York NY 10016
(212) 889-4550

Before Oakes and Kearse, JJ.