## Facts

- Borowski was the president and owner of Borjohn, Inc., a mirror manufacturer.
- Borjohn used nickel plating solutions and nitric-acid stripping baths in its manufacturing process.
- When the nickel and nitric-acid baths were spent, Borjohn disposed of them by dumping them into sinks without pretreatment.
- The sinks drained through underground piping into the municipal sewer system and then to publicly owned treatment works (POTWs).
- Because Borjohn discharged to a POTW, it was required to comply with EPA pretreatment regulations that limited discharges of nickel and nitric acid to specified levels.
- Evidence at trial showed Borjohn’s nickel and nitric-acid discharges exceeded the EPA pretreatment standards.
- Borjohn employees handled and disposed of the solutions manually: they bailed out baths by hand, scraped the sides and bottoms of baths, and poured the wastes into sinks.
- The manual process often caused splashing and spills onto employees’ skin, resulting in direct exposure to nitric acid and nickel.
- Testimony indicated that exposure to high levels of nitric acid and nickel can cause serious health problems, and the government presented evidence that Borowski and Borjohn knew employees were repeatedly exposed and knew the health risks of such exposure.
- The indictment charged that defendants knowingly violated pretreatment standards by discharging the wastes into the sewer system and POTWs and “thereby” placed employees in imminent danger of death or serious bodily injury under the Clean Water Act’s knowing-endangerment felony provision, 33 U.S.C. § 1319(c)(3).
- A jury convicted Borjohn and Borowski on the knowing-endangerment counts, and defendants moved for judgments of acquittal, arguing the provision did not cover danger occurring at the plant before the wastes reached public sewers or POTWs. The district court denied relief, and defendants appealed.

## Issues

1. Does 33 U.S.C. § 1319(c)(3) apply when the alleged imminent danger of death or serious bodily injury is confined to employees at the point of discharge, before pollutants reach the public sewer system or POTWs?
2. Does the statute’s requirement that the defendant “thereby” place another person in imminent danger require proof that the pretreatment-standard violation itself caused the danger, rather than workplace exposure that occurs during handling and dumping?
3. If the statute is unclear about whether on-site worker exposure is covered, must a court adopt the narrower reading under the rule of lenity?

## Decision

- The First Circuit vacated the knowing-endangerment convictions under 33 U.S.C. § 1319(c)(3).
- The court concluded that § 1319(c)(3) did not clearly apply where the alleged imminent danger was limited to employees handling pollutants at the plant before the wastes entered the public sewer system or reached a POTW.
- The court read the “and thereby” language as requiring a direct causal connection between the Clean Water Act violation (the pretreatment-standard violation governing discharges to POTWs) and the imminent-danger finding.
- Because the alleged danger stemmed from on-site handling and exposure at the source, rather than from harm arising through the sewer/POTW pathway regulated by the pretreatment program, the court found the government’s reading too broad for a criminal case.
- Given ambiguity in the statute’s reach on these facts, the court applied the rule of lenity and resolved the uncertainty in the defendants’ favor.

## Legal Principles

- Under 33 U.S.C. § 1319(c)(3), the government must prove a knowing Clean Water Act violation and that the defendant knowingly placed another person in imminent danger of death or serious bodily injury; the “thereby” requirement demands a causal link between the violation and the danger.
- EPA pretreatment standards regulate industrial discharges to POTWs as part of a water-pollution control scheme; they are not a general criminal tool for workplace exposure that occurs before wastes enter the sewer system.
- When statutory text and context do not clearly cover the charged conduct in a criminal prosecution, courts apply the rule of lenity and construe the statute narrowly in favor of the defendant.

## Conclusion

United States v. Borowski held that the Clean Water Act’s knowing-endangerment felony could not be used on these facts where the government’s imminent-danger theory focused on employee exposure at the plant during manual handling and dumping, before the discharge reached the public sewer system or POTWs; because the statute did not clearly extend to that type of workplace danger and the “thereby” link between the pretreatment violation and the danger was not clearly established, the First Circuit vacated the knowing-endangerment convictions under the rule of lenity.


United States v. Borowski, 977 F.2d 27 (1992)