*1 America, UNITED STATES
Appellee-Cross-Appellant, HEALTH LABORATORIES,
PLAZA
INC., Defendant, Villegas,
Geronimo Defendant-
Appellant-Cross-Appellee.
Nos. Dockets 92-1091. Appeals,
United States Court
Second Circuit.
Argued Sept. Sept.
Dеcided Shevitz, (Jane Vivian City New York Sim- Smith, Georgia Hinde,
kin counsel), J. for defendant-appellant. Greenwald,
Robin Atty., L. Asst. U.S. E.D.N.Y., (Andrew Brooklyn, NY J. Malo- ney, Atty., Robert Begleiter, L. Debo- Zwany, rah Ginsberg, counsel), Peter R. appellee. OAKES, KEARSE, PRATT, Before: Judges. Circuit PRATT, GEORGE C. Judge: Circuit Defendant Gerónimo appeals from judgment entered in the United States District Court for the Eastern District of York, Korman, New Judge, Edward R. con- victing him of knowingly two counts dis- charging pollutants into the Hudson River in (“CWA”). violation of the Clean Act 1319(c)(2). §§ See 33 U.S.C. 1311 and government cross-appeals, claiming the dis- post-verdict trict court erred in grant its judgment acquittal on two counts of violat- ing the knowing-endangerment provisions of 1319(c)(3). the act. See 33 U.S.C. AND FACTS BACKGROUND Villegas was president co-owner and vice Laboratories, Inc., of Plaza Health a blood- testing laboratory Brooklyn, New York. at least two April On occasions between *2 Villegas against trial proceeded to then ment 1988, Villegas loaded containers September only. generated blood of human vials numerous of ear, and personal his his business from in- superseding of the II and IV Counts the Admirals Walk at residence to his knowingly drove Villegas with charged dictment Jersey. Edgewater, New in Condominium a pollutants from discharging Villegas complex, 1311(a), condominium §§ at his Once permit. See 33 U.S.C. a without car and from his containers alleged the 1319(e)(2). III that removed I and Counts edge of the Hudson the knowing them discharged pollutants, carried Villegas had two con- he carried danger of On one occasion “imminent placed River. others in that he bulkhead that to the injury”. bodily the vials See tainers or serious death complex from the 1319(c)(3). January condominium separates his On U.S.C. a Korman, at low within them tide the river, placed Judge and following a trial before the below that was four counts. Villegas guilty on all jury in the bulkhead crevice found line. high-water trial, Villegas at Renewing a motion made all acquittal on judgment of 1988, grad- moved for group eighth May On Federal Rules 29 of the under rule House counts Alice Austin trip at the a field ers on granted Judge Korman Procedure. York, nu- Island, Criminal discovered New in Staten III, holding that counts the motion on containing blood human glass vials merous jury on the incorrectly instructed he had had the vials Some along the shore. provisions. “knowing endangerment” act’s shore; in many still were up on washed F.Supp. 13- at 784 ruling reported This cracked, although were Some the water. (E.D.N.Y.1991). judge de- district The stoppers in solid- with sealed remained most IV, reject- II and motion on counts nied the bags. Fortu- ziplock containers plastic envision a the act did not ing arguments that afternoon, injured. That nately, one was no “point source”. being as a human approxi- City workers recovered York New at 10-11. F.Supp. area. mately vials from Villegas on Judge Korman sentenced a maintenance September On concurrent terms II and IV to two counts Con- by the Admirals employed Walk worker year of imprisonment, one months’ twelve plastic container discovered dominium release, special assess- and a supervised $100 rocks wedged between holding blood vials stayed sentence was Execution ment. Jersey re- authorities the bulkhead. New appeal. pending this the bulk- vials from blood trieved numerous element Villegas contends that one day. head later crime, discharging pollu- knowingly CWA vials contained blood retrieved Ten of the source”, was not estab- tants from All of hepatitis-B virus. infected with the defini- argues that the in his case. He lished eventually traced to were vials recovered 1362(14), source”, U.S.C. tion Health Laboratories. Plaza from discharges that result include does not discovery of May 1988 upon the Based beings. Raising acts of human the individual Villegas vials, Laboratories Plaza Health legislative intent and questions of primarily on two counts May were indicted construction, Villegas argues that statutory 1319(c)(2) §§ violating each of ambiguous best, “point source” at seq. §§ et Act. 33 U.S.C. Clean Water lenity him, rule of applied charged de- both superseding indictment A his convictions. in reversal of result should counts CWA additional two fendants with from cross-appealed has government September found vials upon the based acquitting order post-verdict court’s district knowing-endangerment on the two counts. court 1990 the district In December all motion sever granted government’s DISCUSSION Laboratories, ap- Health against claims Plaza point source” “discharge ongo- Because participation
parently due to Plaza’s “knowing” violation element govern- essential bankruptcy proceedings. The ing “knowing endangerment” as a applied well viola- As case, then, of this facts 1319(c)(2) (3) tion, §§ (human see 33 U.S.C. and dis- the defendant “pollutant” “added” a infra, vials) we need not gov- glass cussion address the blood “navigable waters” (the regarding River), ernment’s contentions the CWA’s Hudson and he did so without a *3 danger” definition of “imminent if permit. issue, we should therefore, The is whether his Villegas’s discharges conclude that were not conduct constituted a “discharge”, and that in “from a source”. We therеfore consid- depends turn on whether the addition of the “point er the source” first. issue blood to the Hudson River waters was “from
any point source”. Navigating A. the Clean Water Act. For adjustment this final course in' our prohibition basic discharge pollu- The on navigation, again we look to the statute. 1311(a), § tants is in 33 U.S.C. which states: “point The term any source” means Except in compliance with this section discernible, confined convey- and discrete 1312, 1316, 1317, 1328, 134-2, sections and ance, including but not any pipe, limited to title, discharge 1344 of this any and ditch, channel, tunnel', conduit, well, dis- pollutant by any person shall be unlawful. fissure, container, crete rolling stock, con- added). (emphasis Id. centrated feeding operation, animal or ves- largest exception craft, seemingly floating to this sel or other pol- from which § rule is may absolute found lutants are discharged. 33 U.S.C. be This which establishes the pollu- CWA’s national term agricultural does not include storm- tant discharge system, elimination discharges wаter and return flows from irrigated agriculture. NPDES: part, reference to two together, rhumb permit, tion, § any person” 33 U.S.C. We must then 1311(a). quirements 1316, 1317, 1318, and 1343 of this title charge this [*] after and * * * (a) (1) Except [aquaculture] and permit [*] “discharge”. Permits for [*] fill Reading § title, upon line to opportunity “the notwithstanding section we will meet “biological permits], § § for the 1342(a) 1342(a)(1), can under clean is unlawful. key identify provided adjust 1311(a), “Pollutant” discharge discharge condition 1344 of this title * * * (emphasis definitions— waters, materials sections public hearing, Administrator our rhumb line the basic the basic any all in sections 1328 that that, applicable any added). pollutant by pollutants 33 U.S.C. “pollutant” * * * defined, 1311(a) such dis- rule, absent a pollutant prohibi section, [dredge issue may, dis- our re- ever, Judge Korman “point 33 U.S.C. served source” Korman labored over how to As the produced in ing activity, ignated to include conduit — navigable body throwing stitutes a In Removing pollutants During jury: “conjured up” by congress’s vehicle is a ruling source”. source” that the parties to collect or source” and § including on this case. At one discharge 1362(14). any the course of a Villegas’s pollutant after (emphasis Ultimately, container, image have element discrete and identifiable reasonably Villegas’s held a human presented water from a from a discharge pollutants rule 29 into the water con- added). but he did parked next to a he never defined human waste-generat- container, define motion, be read the element trial, the issue to definition of being physically being source. he ob- charge —des- “point Judge how- and charged 1362(6) water.” 33 U.S.C. in their argument, us briefs and at oral added). (emphasis turn, “Discharge”, in question being is “whether a human can be a “any any pollutant addition source”. Both focus on the sides dis- * * (em- any point *.” trict court’s conclusion in its rule 29 memo- added). 1362(12). phasis that, 33 U.S.C. among randum things, the requi- other conveying from an industrial here could source”
site navigable waterways. source to himself. clearly jury was never Significantly, addition, every dischargе involv if theory, the in legal instructed ing were a “dis humans to be considered actually given on an im bordered struction source”, charge from a the statute’s of the determination of proper removal would lengthy definition of jury’s crime from the essential element unnecessary. It is have been elemental problems might be Serious consideration. unnecessary congress does add words government’s attempt by the presented congress punish statutes. Had intended to post-verdict justify Judge Korman’s defini being polluted navigational human who *4 theory upon an as alternate tional efforts waters, “any per readily it could have said: Villegas’s uphold convictions. which to places pollutants in navigable son who waters States, Chiarella United guilty of a without crime.” L.Ed.2d 348 100 63 S.Ct. generally targets Water Act Clean (court may affirm criminal conviction on not municipal pollu- industrial and sources of jury). to theory presented basis of tants, perusal as is evident from a of its However, any far more fundamental than focus, many sections. with this Consistent problem is the jury instructions error “point throughout used source” is analytical by the district court’s highlighted statute, invariably in the but sentences refer- struggle to find somewhere municipal discharges. encing industrial or “discernible, confined and dis- transaction See, e.g., (referring § to “own- U.S.C. 1311 conveyance”. Simply put, problem crete 1311(e) source); operator” point § er or designed to statute was never is that this (requiring that effluent limitations estab- random, polluter individual like the address applied point lished under Act “be to all Villegas. (allows § discharge”); 1311(g)(2) sources of scope of the CWA’s operator point To determine an or to “owner source” definition, first “point we consider apply EPA for limita- to modification of its 1342(f) of the language (referring § and structure act itself. requirements); to tions plain, classes, categories, If the excursion types, and sizes of history may prove 1314(b)(4)(B) legislative sources); and context (denoting § “best interpretations of the term pollutant technology fruitful. Judicial control conventional well, may as as inter practices” applicable any can be instructive measures to agency charge pretive by the particular category statements within or source * * * implementing the If we conclude class); § statute. (“any point analysis ambigu after that the statute applicable this which is as to meet all constructed 1318(a) (ad- Villegas, § to then the rule of applied performance”); ous as standards States, lenity may apply. Moskal v. require operator United shall owner ministrator 461, 465, 112 install, any point source to use and main- (1990); Concep methods); monitoring United States equipment L.Ed.2d tain (2d Cir.1992). cion, 1318(c) (states may develop procedures F.2d entry re-
inspection, monitoring, and
with
state).
spect
to
sources located in
and Structure
Act.
Language
sensible,
“[ijndustri-
beings
emphasis
among
are not
This
Human
municipal
al
items that
be a
sources were
enumerated
Although
terms
and most obvious offenders of surface
by its
the defini worst
source”.
nonexclusive,
quality. They
were also the easiest to
tion of
source” is
water
loadings emerge from
term and the exam
address because their
words used to define the
channel, tunnel,
ditch,
pipe.”
such as the end of a
ples given (“pipe,
con
discrete
etc.)
Letson,
duit, well,
fissure”,
Point/Nonpoint
im David
Pollu-
evoke
Source
discrete
Trading:
Interpretive
An
ages
physical
and instrumental-
tion Reduction
structures
systematically
Survey,
ities
32 Nat.Resources J.
act as means
Finally
point,
subject
on this
we assume that con-
report
waters. The senate
for the
gress
meaning
did not
explains:
intend
awkward
1972 amendments
if
to
that would result we
read “human
were
In order to
clarify
scope
further
being”
into the definition of
source”.
regulatory procedures in the Act the Com-
1362(12)(A)
“discharge
defines
Section
mittee had added a definition of point
pollutant”
“any
any pollutant
addition of
distinguish
sourсe to
between control re-
navigable
any point
waters from
source”.
quirements
specific
where there are
con-
definition,
1311(a)
Enhanced
this
reads
conveyances, such
pipes,
and con-
fined
any
pollutant
effect “the addition of
requirements
trol
imposed
which are
navigable
any point
control runoff. The
from
control of
any person
(emphasis
shall be unlawful”
add-
applied pursuant
runoff is
to section
ed).
being
But were a human
to be included
authority
209 and the
resides in the State
source”,
within the definition of
agency.
other local
prohibition would then read: “the addition of
S.Rep. No.
reprinted
in 1972
any pollutant
waters from
U.S.C.C.A.N.
person by any person
unlawful”,
shall be
Senator Robert Dole added his comments
simply
makes no sense. As the statute
*5
report:
committee
today,
stands
source” is com-
problems
Most of the
agricultural pollu-
of
prehensible only if it is held to the context of
non-point
tion deal with
Very
sources.
municipal dischаrges.
industrial and
simply,
non-point
a
pollution
source of
one that does not
polluting
confine its
dis-
Legislative History
and Context.
charge
fairly
outlet,
specific
to one
such as
a
pipe, drainage
conduit;
sewer
ditch or a
purpose
The broad remedial
of the CWA is
thus, a feedlot would be considered to be a
chemical,
physi
“restore and maintain the
non-point source
pesticides
as would
and
cal,
biological integrity
and
of the Nation’s
fertilizers.
1251(a).
§
waters”. 33 U.S.C.
The narrow
case,
questions posed by
however,
views).
Id. at
(supplemental
3760
See also
merely by simple
Fed’n,
be resolved
reference National
648 (3d 1123, Bros., Inc., 1125 602 F.2d Frezzo “point v. via the navigable waters lutants Cir.1979) discharged from materials (compost departure represented source” mechanism denied, creek), tributary cert. pipe into approach: general more RHA’s from the 62 L.Ed.2d throw, discharge, lawful to not be It shall * * * Hamel, F.2d (1980); States United any any refuse matter deposit Cir.1977) (6th pumped into (gasoline other than description whatever kind tank); United underground lake and sewers cf. streets flowing from that Products, Royal Mushroom States state, liquid into in a Oxford therefrom passing (E.D.Pa.1980) Inc., F.Supp. States of the United navigable water (overflow system dis spray-irrigation nearby stream charging water waste § 407. 33 U.S.C. discharge). “point source” 1319(c)(2) CWA, §§ 1311 Unlike provision, 33 criminal relevant the RHA’s Royal Mush- exception of theWith Oxford provide for been hеld has interpreted U.S.C. room, supra, the cases that have severe criminal the most liability, and strict civil-penalty done so “point source” have United States v. a misdemeanor. penalty is flexibility settings, greater licensing where (1st F.2d Corp., 498 White Fuel legisla- further interpretation to remedial Cir.1974). skepti view with Accordingly, we the rule of permitted, and purposes tive we that contention government’s against cism protect a defendant lenity does not magni greatly broadly construe the See, should e.g., Avoyelles statutory ambiguities. upon based CWA provisions penal Marsh, fied League, Inc. v. Sportsmen’s the context of did so Cir.1983) RHA cases in- (“point source” penalties. strict-liability misdemeanor discharged bulldozing equipment cludes *6 Co., Oil See, v. Standard States e.g., wetland). United dredged materials onto 1427, 1429-30, 229-30, 86 S.Ct. 384 U.S. in recently held our circuit example, For (1966) (holding “refuse mat 492 16 L.Ed.2d civil-penalty Burlington, a Dague City v. commercially valuable § 407 includes in ter” case, pollutant-laden discharge of that a nаviga discharged into accidentally gasoline leading to a culvert leachate into Cyan river); American States v. ble United “point source”. 935 through a waters was (S.D.N.Y. Co., F.Supp. 354 amid (2d Cir.1991), in rev’d F.2d 1354-55 1973) broadly, court held (construing RHA — -, 112 grounds, part on other U.S. tributary into satisfied discharged that refuse But in L.Ed.2d S.Ct. also requirement); see “navigable waters” case, city’s dis in this Dague, unlike Corp., 362 Republic Steel United States culvert, specifi one of the charge involved a 884, 888-90, 4 80 S.Ct. “point examples of a cally enumerated (RHA broadly (1960) construed L.Ed.2d 903 1362(14). Dague, in set source” forth context; in “obstruction” injunction RHA in presented a clas Dague thus F.2d at 1354. discharged from mills matter liquid cluded discharge. “point sic source” settling in bot navigation impaired which channel). tom of dicta relies on broad government The case, v. Earth United States another civil 3. Caselaw. Sciences, Inc., Cir. 599 F.2d meaning “point for the Our search 1979), concept “[t]he held the court judicial construc- brings us next source” designed to further this was term. tions of the embracing the regulatory] scheme [permit any identifi possible definition of clearly broadest element source” “point might pollutants conveyance from which deci- able criminal the few CWA established We States.” 1319(e) United reported. enter See that are sions under persua dicta Earth Sciences Boldt, do not find this F.2d 37-38 United States v. however, found here, court because that (1st Cir.1991) sive (discharge partially untreat- mining in a ditch “point used storage tank ed wastewater industrial leap when far operation certainly sewer); States directly municipal United into expressly example effectively is an listed “point “ditch” also would read the source” ele- cannot, however, “point statute, source”. We make ment of the crime out of the and not leap writing being” the further “human even the EPA has extended the term statutory language doing urged into the without source” as far as is here.
violence to the
and structure of the
accordingly
We
conclude that
CWA.
аpplied
source” as
being
to a human
ambiguous.
at best
Regulatory
Structure.
Finally,
regulations
not even the EPA’s
Lenity.
B. Rule of
support
government’s
broad assertion
prosecutions
criminal
the rule of
being may
that a human
abe
source”.
lenity requires
ambiguities
in the statute
Fed’n,
National
at
166-
Cf.
Wildlife
be resolved in the defendant’s favor. Cran
(as
power
67 & 173 n. 54
EPA has
to define
States,
152, 168,
don v. United
494 U.S.
CWA,
nonpoint
courts
997, 1006,
(1990) (am
S.Ct.
This definition includes additions of.
provide.
punished
a man can
“[BJefore
be
lutants
waters of the United States
a criminal under the Federal
law his case
from: surface runoff which is collected
‘plainly
must
unmistakably’
within the
man;
discharges
channelled
provisions of some statute.”
United States
sewers,
through pipes,
convey-
or other
*7
Gradwell,
243 U.S.
37 S.Ct.
State,
municipality,
a
ances owned
(1917).
411,
651
obvious,
begin
hopes
despite
in
portions
with the
that it
the fact that
of the Clean
will illuminate the less obvious: the classic
protect
Water Act
these industries to some
something
pipe.
point source is
like a
This
1276;
Rybachek,
extent. See
904 F.2d
Con
is,
part,
pipes
at least
because
and similar
Costle,
239,
solidation Coal Co. v.
604 F.2d
carry large quantities
to
(4th
conduits are needed
Cir.1979) (EPA
251
has no discretion to
water,
represents
large
of waste
exempt mining point
regula
sources from
proportion
point
pollution prob-
tion),
part
grounds
rev’d in
on other
sub
Thus,
designed
convey large
lem.
devices
Ass’n,
nom. National Crushed Stone
449
quantities
factory
of waste
from a
water
295,
(1980);
U.S.
S.Ct.
cott Cir.1979) Congress United States. (noting that (10th 1243 broadly it so source” “point defined contem to thousands applicable be
would
the intent
it contravenes
We believe
sources,
could
not all of which
plated
of the statute
and
structure
FWPCA
enumerated); Appalachian Pow
be
possibly
any activity that
regulation
exempt from
(EPA
1351,
Train,
1373
F.2d
545
v.
er Co.
point.
pollution from identifiable
emits
runoff,
not un-
but
channeled
may regulate
runoff).
why a
explaining
In
Sciences,
368,
channeled
F.2d
373.
599
Earth
needed, the Kennecott
was
definition
broad
Nonetheless,
sets
term
source”
Petroleum
court,
American
quoting
Copper
the reach of
limits on
significant definitional
Cir.1976),
(10th
Inst.
EPA
Fifty percent more
Act.
the Clean Water
922,
denied,
430
rt.
ce
1340,
thought
from
to come
pollution is
of all water
(1977), noted that the
L.Ed.2d 601
51
Cong.,
S.Rep.
99th
nonpoint sources.
of the
goal the “attainment
as its
sets
statute
Pedersen, Jr.,
(1985);
F.
8
William
1st Sess.
objec
objective,” and that
discharge
no
Quality,
Ecol.
15
Turning the Tide on Water
if the term
not be achieved
tive could
(1988). So,
69,
further refine
L.Q.
n. 10
at
narrowly. 612 F.2d
read
were
source”
source,” I
consider
the definition
1243.
not cover: non-
the Act does
what it is that
discharges.2
point source
of the term
reading
broad
This
the mandate of
fulfill
essential to
is, generally,
pollution
Nonpoint source
Act, in that
Water
the Clean
roads,
chemi-
agricultural
runoff: salt from
lots,
farmlands,
parking
oil from
regulatory
cals from
scheme
of the
touchstone
[t]he
rain,
in dif-
washed
and other substances
the waters
needing to use
those
is that
naviga-
and into
over the land
patterns,
fuse
and obtain
seek
must
waste distribution
many,
are
difficult
waste,
The sources
ble waters.3
with the
discharge that
Indeed,
to control.
identify and difficult
discharge regu-
quality of
quantity and
nonpoint source
greatly reduce
an effort to
point source
concept of a
was
lated.
changes in
require radical
pollution could
this scheme
em-
further
designed to
evidently
Congress
patterns which
land use
possible definition
bracing the broadest
further
unwilling to mandate without
conveyance from which
any identifiable
Fentress,
Nonpoint
Pol-
Source
ert D.
Comment:
seem to
all
as
and
The cases
commentators
Groundwater,
lution,
Quality
pollution is either
and the 1987
all water
sume that
pollution.
Revisited?,
nonpoint source
pollution or
811
19 Envtl.L.
source
208
Act: Section
See,
Council v.
Oregon
Lazarus,
Resources
e.g.,
(1989);
Natural
J.
Comment:
n. 16
Richard
Service,
F.2d
849
Forest
States
Pollution,
United
Nonpoint
2 Harv.Envtl.L.Rev.
Source
Dutra,
1987);
Sakonnet
Cir.
Friends
176, 176-77,
177 n. 2
(D.R.I.1990);
F.Supp.
and n.
al.,
Plater,
Environmental Law
Zygmunt J.B.
et
EPA,
pollu-
nonpoint
According
(1992);
Nature,
Society 830
Policy:
and
Law
and
tion
Mandelker,
Anderson, Daniel R.
Frederick R.
Tarlock,
Protection:
Environmental
and A. Dan
regu-
are
sources that
is caused
diffuse
1990);
(2d
Policy
William H.
ed.
and
Law
normally
and
associat-
lated as
sources
Jr.,
Air Water
Rodgers,
Law:
Environmental
urban
agricultural, silvicultural and
ed with
runoff,
(but noting
§ 4.10 at 146
4.9 at 125-26
activities,
etc.
constructiоn
runoff from
nonpoint
from
distinguishing
in the
pollution results
human-made
Such
difficult,
listing as an
exam
sources can
chemical,
alteration
human-induced
question “the fellow
truck
ple of a difficult
integrity
biological,
radiological
physical,
stream,”
126) (1986);
id. at
edge
at the
terms, nonpoint practical
of water.
Grad,
Environmental
on
(7/92)
Law
Treatise
Frank P.
from a
at
pollution does not result
(looseleaf);
n. 366.6
Esth
3-215
3.03[4][n]
(such
single pipe)
specific, single
as a
location
Bartfeld,
Trading:
Point-Nonpoint Source
er
runoff, precip-
generally
land
but
results
Savings,
Beyond
23 Envtl.
Looking
Potential Cost
itation,
percolation.
deposition,
atmospheric
(1993);
John H.
n.
David
Law
Water,
Regulations
of Water
Of
Office
EPA Office
*10
son, Commentary:
Special
Using
Water Districts
Standards,
Pollution,
Nonpoint
Source Guidance
Nonpoint
Water
Source
to Control
(1987).
(1991);
Rob-
Land Use & Envtl.L.Rev.
study.4
Congress
of the statute —which President
structure
and to the
the United
regulates point
pollution closely,
source
while States 64
leaving nonpоint
regulation
source
Villegas’
proto-
While
activities were not
program
states under the Section 208
—indi-
point
typical
discharges
source
part be-
—in
cates that
source” was in-
disposing
cause he was
of waste that could
discharge
cluded in the definition of
so as to
land,
disposed
have been
of on
and so did not
nonpoint
pollution
ensure that
source
would
permit
pipe they
need
or a
much more
Instead,
—
Congress
be
covered.
chose
closely
point
resembled a
discharge
source
regulate
easily
regu-
first that which could
First,
nonpoint
discharge.
than a
source
Vil-
discharges by
par-
lated: direct
identifiable
legas
perfectly capable
and his lab were
ties,
point
or
sources.
avoiding discharging their waste into water:
regulating point
This rationale for
and they were,
terms,
Rodgers’
Professor
nonpoint
differently
point
sources
—that
“controllable” source.
readily
may
be controlled and are
source,
Furthеrmore,
easily
particular
discharge
directly
attributable to a
was
water,
nonpoint
while
sources are more difficult to
came from an identifiable
change,
point,
control without radical
Villegas. Villegas
and less easi
dispose
did not
attributable,
water,
ly
they
land,
once
reach
they
the materials on
where
could be
particular’ responsible party helps define
nonpoint
washed into water
pollu-
as
source
Thus,
category.
within each
what fits
Pro
Rather,
them,
tion.
he carried
from his
Rodgers
suggested,
fessor
has
“[t]he statuto
car,
laboratory,
firm’s
apartment
his
to his
‘discernible,
ry
convey
confined and discrete
complex,
placed
where he
them a bulkhead
singling
ance’ ... can be understood as
out
high
below
tide line.
do not think it is
those candidates suitable for control-at-the- necessary to determine whether it was Mr.
Jr.,
Rodgers,
source.” 2
H.
William
Envi Villegas
source,
point
himself who was the
ronmental Law: Air and
4.10 at
car,
vials,
whether it was his
or the
(1986). And,
Rodgers
as Professor
sense,
bulkhead:
the entire stream of
notes,
controllability
“[c]ase law confirms the
Villegas’ activity
Mr.
functioned as a “dis-
theory, adding
responsibility compo
to it a
conveyance”
crete
source. The
nent,
‘point
so that
are
sources’
understood
pollution
is that the source of the
up
both as sources
can be cleaned
clear,
easy
and would have been
to control.
suggests
as sources where fairness
Indeed, Villegas was well aware that there
parties
cleaning.”
named
should do the
Id.
controlling
were methods of
see, e.g.,
And
National Resources Defense
(and
dangerous
that the materials were too
Council,
EPA,
Inc. v.
disposal):
laboratory
for casual
his
had hired
Cir.1990) (“The
Act focused on
professional
medical waste handler. He
polluters presumably
they
source
because
simply
appropriate
chose not to use an
waste
regulated
easily
could be identified and
more
disрosal mechanism.
nonpoint
polluters.”);
than
Earth Sci
ences,
(“[b]eeause
Villegas’
method
have been an unusu-
nonpoint
which
language.
day’s
everyday
throwing one
one man
not see
ocean differs
into the
medical waste
worth
disappears when
apparent oddness
pollution, it
(and indeed,
type of
with
“person” in the
first teim
grasps that
one
the
days’ violations
only
fewa
might be that
person acting as
means “a
peculiar sentence
laboratory regu-
if the
proven even
could be
second term
and that the
point
a
source”6
dispose of its
Villegas to
waste
larly
on
relied
defined, typically for stat-
“person” has been
ocean). A different
throwing
into
by
it
the
variety
a
responsibility on
imposing
utes
per-
encourage corporations
reading would
ordinary speech,
typically for
parties, but not
abiding
the Clean Water
fectly
capable
linguistic hint
As the
responsible party.
as a
employees
their
to
to ask
requirements
Act’s
“person” and
“any” before both
and the
company trucks
the
between
stand
con-
suggests, the terms are to be
transforming point
pollu-
sea,
source
thereby
Thus,
one
example,
for
broadly.
strued
trucks)
nonpoint
into
(dumping from
tion
linguistic variablеs as follows:
fill in the
could
hand).
a
(dumping
Such
pollution
any pollutant to
the Act bars the addition
identifiable,
controllable, easily
method
throwing
employee’s
by an
navigable waters
nonpoint
To call it
and inexcusable.
(a
point
person acting as
there
them
exception into
read a technical
pollution is to
source)
em-
of his or her
at the instruction
in
attempts to define
broad
a statute which
(a
person capable of
corporation, or
ployer
may
conducted in
activity
be
an
terms
particular
being
responsible) and
held
ways.
many different
(also person capable
supervisor
his or her
specifically,
More
being
responsible).
held
my
of what a
own view
Having explained
refer
to
individual
is,
the sentence could
why Villegas, or his
“point source”
hand,
corpora-
convey, by
all of a
to
his lab
hired
carrying
from
to
waste
activities
company’s
the
back
source,
from
ocean,
attempt
tion’s toxic wastes
point
I will
awas
River,
feet
Mississippi
three
counterarguments.
door to the
majority’s
confront
(the
source), by that
away
point
individual
person
suggest
that a
can
colleagues
My
corporation which authorized the
source,
heavily
relying
abe
never
defendants).
(the
potential
do not
disposal
redundancy produced when the
supposed
arguments about whether
“discharge
think technical
barring
Act’s
ambitions,
particular by setting
grand
defini-
dangers
"pa[ying] too much
recognize
I5.
(only pollution,
purposes of
limits on what it covers
stated
tional
to the broad
attention
sources),
goals
only point
Fed'n v.
its ambitious
are none-
Act.”
Water]
National
[Clean
Wildlife
(re-
(D.C.Cir.1982)
Gorsuch,
guides: they
interpretive
indicate
theless useful
that,
ruling
being
generous
decision
versing
things
equal,
that EPA
court
district
all other
regulate
sources
im-
cramped interpretation
dams as
stat-
not to
of the
rather than
holding
goals,
light
proper
Congress
of these broad
likely
to be what
intended.
utе is more
reasonably conclude that
could
that the EPA
covered,
they
view,
where
do
at least
were not
my
persons
dams
can be both
ordinary "pollutants,” but either move
They may
"add”
pollution.
be
nonpoint
sources
polluted water
one side
dam
already
directly
they deposit
waste
sources when
change
"conditions” such
water
water;
to the other
they may
nonpoint
when
sources
into
content,
heat,
oxygen
and saturation
dissolved
ground
they,
spread
example,
fertilizer on
levels).
driveway, leaving
to be
deposit
it
oil in
Thus,
say
nearby
that the
However,
rivers.
washed
dangers
paying too
there are also
persons polluting, rather
Water Act bars
goals.
Clean
While
to such
stated
little attention
broad
broad.
polluting, would be too
always
up
than
live
Act
its
the Clean Water
*12
Villegas
place pol
containers
concluded that
did in fact
in discrete
substances were
toxic
discrete,
activity
brought
he
the
is
lutants —the materials
from the
fruitful when
are
clear,
waters;
laboratory
navigable
only
and is confined to a
conveys pollutants,
—into
company
question
activity
a
for us is whether this
single source. When
traceable
dump-
point
pollution.
a
source
nation’s waters as
United States v.
to use the
chooses
Cf.
(misde
Law,
Cir.1992)
gathered in
has created and
979 F.2d
for waste it
site
place,7 it should ask for a
finition of
source
criminal case harm
manageable
a
less,
action,
all,
if
where
it occurred at
prosecution.
or face
—
denied,
discharge),
source
cert.
however,
given pause,
I am of course
-,
Turkette,
n.
452 U.S.
246 in turn
69 L.Ed.2d
n.
States,
quoting
United
Callanan
321, 326,
dealing with runoff thereby from non- transformed
neled and rather, an pollution; his whether
attorney asked to advise might say that there
activity permissible was indicating that such yet ease law
was as no pollution under the
activity Act, a view was but such
Clean Water Act and that
certainly with the consistent pro- certainly be
behavior would almost other.
scribed that Act or some