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United States v. TGR Corp.

ELR Citation: 29 ELR 21059
Nos. No. 98-1451, 171 F.3d 762/(2d Cir., 03/26/1999)

The court upholds the conviction of an asbestos removal and disposal company for knowingly discharging asbestos into navigable waters of the United States in violation of Federal Water Pollution Control Act (FWPCA) §309(c)(2). The court first holds that the waterway into which the company discharged waste slurry from an asbestos removal project is a "water of the United States" within the meaning of the FWPCA. Several circuit courts have held that non-navigable tributaries of navigable waterways qualify as waters of the United States. Moreover, the company's assertion that the waterway is part of a municipal storm sewer and, thus, excluded from the FWPCA, is without merit because the waterway is not owned or operated by a public body. Likewise, the waterway clearly cannot be considered a waste treatment system because the exclusion for waste treatment systems applies only to man-made bodies of water, but the waterway at issue is natural. Therefore, the court then holds that the company's conduct was a violation of the FWPCA and that its conviction must be affirmed.

Counsel for Appellee
Joseph C. Hutchison, Ass't U.S. Attorney
U.S. Attorney's Office
157 Church St., New Haven CT 06510
(203) 773-2108

Counsel for Appellant
Jeffrey D. Ullman
Ullman, Furhman, Platt & Koy
89 Headquarters Plaza
N. Tower. 12th Fl., Morristown NJ 07960
(973) 993-1744

Before Oakes, Calabresi, and Gibson,* JJ.