U.S. v. Borowski

• Decision Date: 27 July 1992
• Docket Number: No. 90-2133,90-2133
• Citation: 977 F.2d 27
• Parties: , 23 Envtl. L. Rep. 20,102, 15 O.S.H. Cas. (BNA) 1929, 1992 O.S.H.D. (CCH) P 29,871 UNITED STATES, Appellee, v. John BOROWSKI, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 27

977 F.2d 27

35 ERC 1729, 23 Envtl. L. Rep. 20,102,

15 O.S.H. Cas. (BNA) 1929,

1992 O.S.H.D. (CCH) P 29,871

UNITED STATES, Appellee, v. John BOROWSKI, et al., Defendants, Appellants.

No. 90-2133.

United States Court of Appeals First Circuit.

Heard July 27, 1992.

Decided Oct. 7, 1992.

John Foskett with whom Steven J. Brooks, Daniel R. Deutsch and Deutsch Williams Brooks DeRensis Holland & Drachman, P.C., Boston, Mass., were on brief for defendants, appellants.

Richard E. Welch, III, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Peter W. Kenyon, Sp. Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before TORRUELLA and STAHL, Circuit Judges, and HORNBY, ^* District Judge.

HORNBY, District Judge.

Congress enacted the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251 (1988). As one means of improving water quality, Congress ordered the Environmental Protection Agency (EPA) to design pretreatment standards for industrial waste discharges into publicly-owned treatment works. 33 U.S.C. § 1317(b). Under the Act, someone who knowingly violates these standards and knows that he or she thereby places another person in imminent danger of death or serious injury commits a felony. 33 U.S.C. § 1319(c)(3) (1988 &amp Supp. II 1990). Does this criminal sanction apply when the imminent danger is not to people at the publicly-owned treatment works, municipal sewers or other downstream locations affected by the illegal discharge, but rather to employees handling the pollutants on the premises from which the illegal discharge originates? We hold that it does not.

Facts

The defendant John Borowski was the President and owner of Borjohn Optical Technology, Inc. and Galaxie Laboratory, Inc. ("Borjohn"). Borjohn operated a manufacturing facility in Burlington, Massachusetts, producing optical mirrors for use in aerospace guidance and sighting systems. ¹

Borjohn used various rinses, dips and nickel plating baths to plate nickel onto its mirrors. When a mirror was improperly plated, Borjohn used a nitric acid bath to strip the nickel off. From time to time the nickel plating solutions and nitric acid stripping baths had to be replaced.

Borjohn disposed of its spent nickel plating baths and nitric acid baths by crudely dumping them directly into plating room sinks, without any form of pretreatment. Those sinks drained immediately into Borjohn's underground pipes which, at the property border line, fed into the Burlington municipal sewer system and from there into the Massachusetts Water Resource Authority's treatment works. Because the pollutants were ultimately discharged into a publicly-owned treatment works, Borjohn was subject to the EPA's pretreatment regulations. The EPA regulations prohibited nickel discharges into the publicly-owned treatment works in amounts exceeding 3.98 milligrams per liter and also prohibited concentrations of nitric acid discharges into the publicly-owned treatment works if they had a pH balance of less than 5. See 40 C.F.R. §§ 433.17(a), § 403.5(b)(2) (1991). The nickel and nitric acid baths Borjohn discharged greatly exceeded these pretreatment standards.

According to medical experts, enormous health concerns are associated with exposure to nitric acid and nickel in the amounts involved here. Contact with the chemicals causes severe allergic reactions, chemical burns, serious skin disorders such as rashes and dermatitis, and cancer. Inhalation of nickel vapors and nitric acid fumes can cause breathing problems, nasal bleeding and serious damage to a person's respiratory tract. Various Borjohn employees testified to symptoms consistent with these health problems. Employees testified to having had "daily nose bleeds," headaches, chest pains, breathing difficulties, dizziness, rashes and blisters.

Repeated employee exposure to the chemicals was unavoidable. In discharging the spent nickel plating baths and nitric acid baths, for instance, Borjohn employees were told to bail out the harmful solutions by hand using a plastic bucket or a portable pump. Once a tank was nearly empty it was tipped over the edge of the sink and a scoop or small cup was used to scoop out any remaining solution. The employees were required to scrape the sides and bottom of nickel baths to extricate a layer of nickel byproduct called "extraneous plate out." Sometimes employees were told to dump "hot" nitric acid solutions into the sinks. This created an "alka seltzer" like appearance on the surface of the sink. Employees testified that the nickel and nitric acid solutions sometimes splashed and spilled directly onto their skins. Indeed, one employee complained that he was always "wet" with the solution and at times was scalded by the chemicals.

The protective gear available to Borjohn employees was grossly inadequate to protect them against exposure. Moreover, the nickel waste discharges produced "nickel mists or vapors" and the nitric acid disposal gave off "reddish-brown fumes." Ventilation at the plating room was seriously deficient and no suitable respirator was provided to the employees.

Borjohn and Borowski knew that their practices created serious health risks to the employees. Borowski was in charge of the plating room, participated in the disposal practices and personally ordered Borjohn employees to do likewise. The original containers carrying the nickel and nitric acid had warning labels about the dangers of contact with the substances. The defendants routinely received Material Safety Data Sheets from the chemical suppliers warning of the dangers associated with exposure. Borowski and Borjohn were also aware that their disposal practices violated the EPA's pretreatment regulations. Borjohn employees complained to Borowski about the dangers of their disposal practices and about the numerous health problems they were experiencing.

On April 4, 1990, Borjohn and Borowski were indicted on two counts (one for nickel and one for nitric acid) of violating the Federal Clean Water Act's knowing endangerment felony provision, 33 U.S.C. § 1319(c)(3). The indictment alleged that from February 5, 1987, to July, 1988, Borjohn and Borowski knowingly discharged the contents of nickel plating baths and nitric acid baths into Burlington's sewer system and the Massachusetts Water Resource Authority's publicly-owned treatment works; that these baths contained nickel and nitric acid in amounts exceeding the EPA's pretreatment standards, 40 C.F.R. §§ 433.17(a), 403.5(b)(2); and that Borjohn and Borowski knew at the time that they were thereby placing Borjohn employees in imminent danger of death or serious bodily injury. Borjohn and Borowski moved to dismiss the indictment on the same ground as is at issue here. That motion, along with a later motion for acquittal, was denied. On May 23, 1990, after 18 days of trial, a jury returned guilty verdicts against both defendants on both counts. The United States Attorney presented no evidence of danger to anyone other than Borjohn employees.

Discussion

Section 1317(b) of the Clean Water Act directs the EPA to promulgate pretreatment standards for pollutants going into publicly-owned treatment works. ² Subsection (d) prohibits the owner or operator of any source (a term that includes Borjohn and Borowski) from violating these standards. Section 1319(c)(3)(A) provides that anyone who "knowingly violates section ... 1317 ..., and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury" is guilty of a felony. ³

We assume for purposes of this appeal that both defendants knowingly violated § 1317 and knew of the dangers to the Borjohn employees. ⁴ It is undisputed that Borjohn employees were placed in imminent danger of serious bodily injury during their employment and that some of this danger occurred at the time of dumping chemical solutions into sinks that ultimately led to a publicly-owned treatment works. The question is whether the defendants, in knowingly violating § 1317, knew that they "thereby" placed the employees in imminent danger.

There is no single correct answer to this semantic puzzle. In one sense, it can be said that the knowing violation "thereby" placed the employees in danger. After all, the defendants knew that the sinks were connected to the publicly-owned sewer and treatment works and that the wastes would therefore illegally proceed without interruption to the publicly-owned treatment works. They also knew that the employees' actions in performing the dumping as instructed placed them in imminent danger. Arguably, therefore, through the knowing violation the defendants "thereby" endangered the employees. On the other hand, there could be no violation unless the wastes ultimately ended up in a publicly-owned sewer and treatment works. ⁵ But the risks and dangers to these employees would have been the same if the plugs had always remained in the sinks so that no discharge to the publicly-owned treatment works (and therefore no § 1317 violation) ever occurred. The danger to the employees was inherent in their handling of the various chemical solutions, solutions that were part of the defendant's manufacturing process. They would have been subject to the identical hazards had they been dumping the chemicals into drums or other containers for appropriate treatment under the Act. In that respect, therefore, although the defendants knew that their employees were placed in imminent danger, that danger was not caused by the knowing violation of § 1317.

Since semantic analysis alone is insufficient, how is this puzzle to be resolved? Several factors assist us. First, the purpose of the statute is clear. The Clean Water Act is not a statute designed to provide protection to industrial employees who work with hazardous substances. Instead, section 1251(a) states: "The objective of this Act is to...