Petition for Writ of Certiorari — Ho v. United States

Supreme @eurt, U.S.

FILED (i)

0 21308 F6B 2 8 2003

ESS

eR

In The

Supreme Court of the Anited States

2

Vv

ERIC KUNG-SHOU HO,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

,

v

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

&

Vv

PETITION FOR A WRIT OF CERTIORARI

r

v

C. LELAND HAMEL

Counsel of Record

WILLIAM L. BOWERS, JR.

MICHAEL E. CLARK

HAMEL BOWERS & CLARK LLP

5300 Memorial Drive, Suite 900

Houston, Texas 77007

(713) 869-0557

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

ee

QUESTIONS PRESENTED

Whether the court of appeals erred by holding that the

Clean Air Act’s preclusion and exclusivity provision, 42

U.S.C. § 7607(b)(1), foreclosed considering the validity of a

1990 EPA regulation that broadly amended the term

“facility” to include buildings that had once been subject to

the agency's jurisdiction, even when their current use no

longer substantially affected interstate commerce, when

the defendant had properly raised an as applied Com-

merce Clause challenge?

Whether the court of appeals erred by holding that de

minimus or potential local pollution activities could be

ageregated with unconnected activities to meet the re-

quired substantial effect on interstate commerce nexus to

defeat a properly raised as applied Commerce Clause

challenge to a federal Clean Air Act prosecution?

ii

TABLE OF CONTENTS

Page

CEOS BONO on secs inssvernroscinvevesccsesiessnnsnesbeshncsienteanat 1

SETI ocsscsvisritinnminnsinkindn tannin 1

Constitutional provisions, statutes, and regulatory

DEO VIR SITVEIUE siccesscessisescvinssnerictnsennisaeninnndoons

NINE csincicnssecinccensesscenscanicatepnensnsstuesacbinimenetbobennen 3

Reasons for granting the petition ................ccceeceeesees

CORI acs exvisocevescsnccviiebnssbideuninleteriptsaiianbeineeties 15

Appendix A (Court of appeal’s opinion) ..................00+ App. 1

Appendix B (Order denying rehearing petition)...... App. 45

Appendix C (Text of applicable constitutional,

statutory and regulatory provisionS)................06+ App. 46

TABLE OF AUTHORITIES

Page

CASES:

Adamo Wrecking Co. v. United States, 434 U.S. 275,

Lad sstidngsnbonatsobicnnneens 9,10

Chrysler v. Brown, 441 U.S. 281, 99 S.Ct. 1705

re cals oo seasieusinnennibenennatunenntegrens 11

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U.S. 568,

I OE OSs. .csnscccannionnsnanbocareveresebuesstesusen ee 12

Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395

Seattle CEST ESSE AE eae een ee a ae a 14

Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904

ERE. TEI SA Oe ne a 7,13

Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055 (1974).......... 11

Presley v. Etowah County Comm’n, 502 U.S. 491,

ca clalicniainappaniennne 14

Solid Waste Agency of Northern Cook County uv.

United States Army Corps of Eng’rs, 531 U.S.

BI, Fare Pees PO CA) wentsnscsanesecnsrassnsiyreccesoes 11, 14, 15

United States v. Alexander, 938 F.2d 942 (9th Cir.

a ka dcpbhdheminebenankennas 10

United States v. Ho, 311 F.3d 589 (5th Cir. 2002)........... 7,8

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624

a uecaanetudiietneaieapeinenberesa 12, 13

United States v. Morrison, 529 U.S. 598, 120 S.Ct.

a clas sana diabaidemavinienanienenebhe 12, 13

lv

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS

CONSTITUTIONAL PROVISIONS:

Art. I, Section 8, Clause 3 of the Constitution of the

SP NI siitshcpcchiadeiitasuidatecsneenaniiesiece radaadisosstibed 2,12

The Fifth Amendment to the Constitution of the

INN eis ciiiksiccnccisciseciceniehalchadancaiiaiddls Neibiinsinisthdaesiniidiiin’ 2

STATUTES:

a i i cicicaatth:cacincnidiidvsaiininchdcencistianaeisbudies aeeaiiteimetan 11

de Se RMON CEE REN OEE RON CTA 5

Bs Te i iiinisdniittetiadlinniphcidcaicsctennceianensaicbaianana 5

Se ie ae ED cris scesinincietinsddianinatinpnchadbibaniasioaatieddiabassls 1

BE 8 HERR ee CE AUN Tae eT rs MMS 13

ee ls Se I chara chacehinticenisigiotieiishiientscieat indecent 2

A Ne PI bine thin cApevicesaiaaiihieeita ao eter 2

Sa ae OD iene citeniaitiinidedtiintaaae ie 2

RR ee | A ee RTE Eee Fee, 2

Oe ees We Pt eickidanidscciieniiabsinmnccssbscsnchcenmiumabettten ce 2

Ae Te Ae Phi chtsumbiinitatintaiiadcininweaciein 3

Fe Sh Pe iiicctssoniipnniinionintinthiacionedbniaiecetaaitaanonce 5

GEORG EI irises hiiowessertincoeienpeamniananes 3

42 WB... § TOOT A) oanncsccnesssccccsnsacescaconncesecs 4, 8, 10, 11, 13

Ss FO sirertsicaricsniictchomeenictnanbiichibichaa i ibadtcadios 5

Vv

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS:

ee IE: EAE ciicinesnecenstcisatebacinndinnsescetiauns ances 3, 4, 10

ee BO stvieitnenniniciceristeceiacghinieniiatiangadtec asia ee ae 3

res Fe edie eile cic 3

MISCELLANEOUS:

a I, Wee ct siesiinnliceindoniddeceseiaiiat ce a ke etna 10

i NL MEME NE Ey St Ee 11

1

PETITION FOR A WRIT OF CERTIORARI

Eric Kung-Shou Ho respectfully petitions for a writ of

certiorari to issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

¢

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1la-

44a) is reported at 311 F.3d 589.

¢

JURISDICTION

The judgment of the court of appeals was entered on

October 31, 2002. A timely filed petition for rehearing was

denied on December 4, 2002 (App., infra, 45b). The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

¢

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATORY PROVISIONS INVOLVED

Petitioner was convicted of knowingly failing to report

the intended removal of asbestos in the course of renovat-

ing an abandoned hospital building and violating work

practice standards published by the Environmental

Protective Agency (EPA). The court of appeals’ decision

and the issues presented by this petition involve the

validity, application, and relationship of numerous consti-

tutional, statutory, and regulatory provisions. The full text

of the pertinent parts of the provisions involved are

reproduced in Appendix C. Because the statutes, regula-

tions, and related material are lengthy, only the citations

2

and a brief description of each is included here, pursuant

to the provisions of Rule 14(1Xf) of the Supreme Court

Rules. The relevant provisions follow.

Constitutional Provisions:

1.

2.

The Due Process Clause of the Fifth Amendment to

the Constitution of the United States.

Art. I, Section 8, Clause 3 of the Constitution of the

United States (the Commerce Clause).

Statutes:

3.

Section 112(b) of the Clean Air Act, 42 U.S.C.

§ 7412(b), which designates asbestos as a hazardous

substance.

Section 112(c) of the Clean Air Act, 42 U.S.C.

§ 7412(c), which authorizes the Administrator of EPA

to publish a list of major sources of air pollutants and

to establish emission standards for each.

Section 112(d) of the Clean Air Act, 42 U.S.C.

§ 7412(d), which authorizes the Administrator of the

EPA to publish regulations establishing emission

standards for sources of hazardous pollutants or al-

ternative management practices.

Section 112(hX1) of the Clean Air Act, 42- U.S.C.

§ 7412(1.\(1), which provides that the Administrator of

EPA may establish work practice standards in lieu of

emission standards under defined conditions.

Section 112(hX2) of the Clean Air Act, 42 U.S.C.

§ 7412(h\(2), which defines the circumstances under

which the Administrator of EPA may promulgate

work standards in lieu of emission standards.

6.

3

Section 113(c) of the Clean Air Act, 42 U.S.C.

§ 7413(c), which imposes criminal penalties for know-

ingly violating emission or work practice standards or

failing to make any notification required by the Clean

Air Act or its implementing regulations.

Section 114(a) of the Clean Air Act, 42 U.S.C.

§ 7414(a), which authorizes the Administrator of EPA

to require certain notices to be given.

Regulations:

1.

Title 40, Code of Federal Regulations, Section 61.141,

which defines the term “facility” to include any struc-

ture previously subject to the regulations, regardless

of its present use.

Title 40, Code of Federal Regulations, Section 61.145,

which defines which facilities come within the reno-

vation regulations and specifies the work practice

standards for asbestos removal.

Title 40, Code of Federal Regulations, Section 61.150,

which prohibits the discharzs of emissions and speci-

fies disposal procedures for hazardous materials re-

moved from a facility.

+

STATEMENT

This case raises an issue of first impression: Whether

the court of appeals erred by holding that although peti-

tioner had properly raised an as applied Commerce Clause

challenge to being federally prosecuted under the Clean

Air Act, his challenge (that the statutes and implementing

regulations were being unconstitutionally applied to his

conduct) was limited by a Clean Air Act preclusion and

4

exclusivity provision, 42 U.S.C. § 7607(b)(1), that fore-

closed considering the validity of a 1990 Clean Air Act

implementing regulation (40 C.F.R. § 61.141) that amended

the term “facility” in a way to give the EPA current jurisdic-

tion over buildings for which it once had jurisdiction, even

if their curren: use no longer substantially affects inter-

state commerce.

In addition, the case raises a related issue: Whether

the court of appeals erred by aggregating de minimus or

potential episodes of local pollution (or asbestos abate-

ment) with unconnected conduct to supply the requisite

Commerce Clause nexus needed to withstand petitioner’s

as applied constitutional challenge concerning the conduct

for which he was federally prosecuted.

This federal prosecution was based on clean up work

done in late 1997 and early 1998 by unskilled migrant

laborers inside a long-vacant and dilapidated former

hospital building in Houston, Texas. During a short part of

the cleanup, workers scraped asbestos-containing fire-

proofing from the building’s beams. When petitioner, a

naturalized citizen, bought this property in 1998 and

learned that the building had some asbestos-containing

materials, he didn’t know what use could be made of it

until after the extensive trash and debris were removed.

So, petitioner asked a handyman that he used in the past

to assemble a cleaning crew that would remove trash,

fallen sheetrock, and debris from the building. In turn, the

handyman recruited, supervised, and paid several Mexi-

can nationals to do this work. Petitioner, in turn, reim-

bursed him for the wages and the other expenses incurred

during the clean up.

5

By early Spring 1998, this work had unfortunately

moved beyond removing trash and debris, when the

workers began to scrape asbestos from the structural

beams, putting the scraped material inside plastic bags

kept within the building. While this improper conduct was

happening, a City of Houston building inspector discov-

ered it and issued a stop-work order. About this time, the

handyman was hospitalized; subsequently, petitioner hired

another handyman to transport the workmen and monitor

their work. As before, they put the scraped asbestos in

bags that remained within the building for later disposal.

When the work was virtually completed, the second

handyman caused an explosion by backing a truck into a

gas pipe located outside the building, injuring himself and

a few workers. This led state and federal agencies to

investigate what had happened. Subsequently, the Texas

Department of Health and the Occupational Safety and

Health Administration filed administrative actions against

petitioner, while the EPA sought criminal charges. When

the federal criminal investigation was pending, an Admin-

istrative Law Judge assessed over $1 million in penalties

against petitioner for the conduct that was later prose-

cuted criminally. A federal grand jury indicted petitioner

with violating the reporting and work practice standards

required by the Clean Air Act regulations, and other

charges, including violations of 18 U.S.C. § 371 (Conspir-

acy), 18 U.S.C. § 1001 (False Statements), 42 U.S.C.

§ 9603(b)(3) (CERCLA), and 42 U.S.C. § 7413(c)(5)(A) (the

Clean Air Act’s knowing endangerment provision).

A jury found petitioner guilty of two Clean Air Act

violations — the EPA’s reporting and work practice stan-

dards. As for the other charges, they were dismissed by the

district court or petitioner was acquitted by the jury.

6

Petitioner was sentenced to two months community

confinement, six months home detention, and a $20,000

fine. The district judge largely rejected the government’s

objections to the application of the contested Sentencing

Guideline provisions and his written findings in the

Judgment and Sentence detailed that the government

didn’t establish, even by a preponderance, that asbestos

was released into the environment.

Throughout this case, petitioner made an as applied

challenge to the validity of EPA regulations upon which

the government’s case necessarily rested (including the

validity of the amended regulation that expanded in

perpetuity the agency’s jurisdiction to all facilities ever

used at some time in commerce), arguing that the limits of

the Commerce Clause forbade federally prosecuting him

under the Clean Air Act for localized conduct that was

beyond the government’s Commerce Clause power. Peti-

tioner’s as applied constitutional challenge was based on

the inadequacy of the requisite Commerce Clause nexus to

support federal Clean Air Act charges because the local

clean up activities at the abandoned facility didn’t impact

the ambient air, nor did they substantially affect inter-

state commerce.

In contrast, the government repeatedly adjusted its

responses to petitioner’s arguments. During pretrial |

hearings on motions challenging this federal prosecution, :

the government first argued that federal jurisdiction in :

the case wholly depended on proof that friable asbestos

was released into the ambient air. Later, it claimed that

although the term “ambient air” as used in the Clean Air

Act ordinarily means outside air, under the NESHAP

(National Emission Standards for Hazardous Air Pollut-

ants) the term takes on the dictionary meaning, which

sili

7

includes inside air. Still later, the government claimed

that the work practice standards are a substitute for

emission standards, so it wasn’t required to prove that

asbestos was emitted into the ambient air. In its Reply

Brief on appeal, and for the first time in the case, the

government presented its novel aggregation argument

that it had proved a substantial effect on interstate com-

merce because of petitioner’s use of non-resident unskilled

workers to remove the asbestos and that this conduct, if

not federally prosecuted, would harm the ability of legiti-

mate asbestos companies to compete. Unfortunately, the

court of appeals accepted the government’s belated new

theory and supplied only footnote treatment in rejecting

petitioner’s arguments that the government shouldn’t be

allowed to untimely raise such novel arguments on appeal,

writing: “[iJt is true that the government defended the

asbestos work practice standard in the district court based

primarily on the effects of interstate pollution[,] [yet] ...

the record adequately supports the government’s theory

urged on appeal, and we may affirm for any reason sup-

ported by the record.” United States v. Ho, 311 F.3d 589,

602 n. 12 (5th Cir. 2002) (internal citation omitted). In

another footnote, the court of appeals said that petitioner

had an underlying commercial purpose in buying and

cleaning up the building, despite contrary evidence in the

record (which was not noted).

As concerns the use of the building at issue, the court

of appeals failed to properly evaluate and apply Jones v.

United States, 529 U.S. 848, 120 S.Ct. 1904 (2000), which

holds that a building’s present use must first be evaluated

before next determining whether that use substantially

affects interstate commerce. Moreover, the court of appeals

didn’t properly evaluate and apply other recent Commerce

8

Clause precedent that warns against aggregating remote

or negligible effects on commerce to reach the requisite

nexus when doing so would push the reach of the Com-

merce Clause beyond its logical limits — and particularly

as to statutes for which Congress hadn’t expressed an

intent to change the balance between state and federal

pcwers.

42

Vv

REASONS FOR GRANTING THE PETITION

The Court of Appeals Erred by Holding That an As

Applied Commerce Clause Challenge Could Not

Reach the Issue of Whether an Implementing

Regulation Was Invalid and Being Unlawfully

Applied

The court of appeals erred by interpreting the Clean

Air Act’s preclusion and exclusivity provisions that appear

in Section 307(b)(1), 42 U.S.C. § 7607(b)(1), as foreclosing

petitioner’s as applied constitutional challenge to being

federally prosecuted under the Clean Air Act from reach-

ing a core issue as to whether an implementing agency

regulation upon which the prosecution depended was

invalid and improperly applied to this localized conduct.

This error prevented petitioner from showing how the

prosecution was tied to an invalid 1990 EPA rule-making

that improperly enlarged the definition of “facility” and

effectively expanded the agency's jurisdiction over all

buildings if they had ever been used in interstate com-

merce, even when they no longer were being used in, or

otherwise substantially affected, interstate commerce.

United States v. Ho, 311 F.3d at 607.

This decision should be reviewed because even if a

statute requires challenges to an agency’s rule-making to

9

be filed within a narrow time frame and in a specific

forum, an as applied constitutional challenge presents

fundamental due process considerations that protect

defendants from being convicted under suspect laws and

regulations. As a general rule, due process is violated

whenever a practice or rule offends some principle of

justice that is so rooted in the traditions and conscience of

our people as to be ranked as fundamental. Fundamental

principles of fair play and due process are offended when a

defendant is held not to have a right to challenge an

invalid law that is being used to criminally punish him or

her. In Adamo Wrecking Co. v. United States, 434 U.S. 275,

98 S.Ct. 566 (1978), the Court recognized that a criminal

defendant’s untimely challenge to the validity of a regula-

tion upon which a prosecution was based had to be permit-

ted in some narrow circumstances, despite the very

preclusion and exclusivity provisions that are at issue in

this case.

Although the court of appeals correctly noted in its

opinion below, 311 F.3d at 607, that Adamo Wrecking Co.,

“specifically forbade the lower courts, on remand, from

considering whether the agency had ‘complied with appro-

priate procedures in promulgating the regulation ... [or]

any of the other familiar inquiries which arise in the

course of an administrative review proceeding,’” it didn’t

consider how the Clean Air Act’s preclusion and exclusivity

provisions affected this as applied constitutional chal-

lenge. A brief review of the uncontested facts shows why

applying the preclusion provisions of the Clean Air Act

was impermissible (in this case). Years before petitioner

bought the property and engaged in the conduct that led to

this case, the EPA expanded the definition of the term

“facility” for purposes of the Clean Air Act to include “[a]ny

10

structure, installation or building that was previously

subject to this subpart... , regardless of its current use or

function.” 40 C.F.R. § 61.141. At the time when the imple-

menting regulation was broadly amended, and notwith-

standing the preclusion and exclusivity provisions of 42

U.S.C. § 7607(b)(1), petitioner, like most citizens, was not

in a position to appreciate or timely contest the EPA's

failure to properly promulgate its amended regulation.

“The 30-day limitation on judicial review ... afford([s]

precariously little time for many affected persons.... It

also is totally unrealistic to assume that more than a

fraction of the persons ... affected by a regulation ...

would have knowledge of its promulgation or familiarity

with or access to the Federal Register.” Adamo, 98 S.Ct. at

575-76 (Powell, J., concurring). See also United States v.

Alexander, 938 F.2d 942, 947 (9th Cir. 1991) (vacating

conviction for transporting salmon roe in interstate com-

merce) (“The image of these two defendants driving their

beat-up Dodge station wagon to.the Board of Fisheries to

argue that a small section of the regulations is inconsis-

tent with an obscure phrase in a massive federal statute is

a bit incongruous; they are fisherman, not legal scholars.

Their only meaningful opportunity to challenge the regu-

lations was at their trial.”).

As petitioner has contended throughout this case, the

current definition of “facility” was introduced in a Final

Rule five days after the major statutory revisions embod-

ied in the Clean Air Act Amendments of 1990, Pub. L. 101-

549, took effect. 55 Fed. Reg. 48406. Before the Final Rule

was issued, the EPA published a “Notice of proposed rule

revision,” indicating that it intended to amend the asbes-

tos NESHAP by making clarifying revisions to several

definitions and provisions. 54 Fed. Reg. 912. Although the

11

agency stated that it was revising the definition of facility

and supplied the revised definition, the Notice didn’t

include the problematic language that later appeared

without warning, i.e., “[aJny ... building ... previously

subject to this subpart is not excluded, regardless of its

current use or function.” Instead, the Notice only indicated

that “[t]he definition of ‘Facility’ is modified by adding the

terms ‘residential,’ ‘public,’ ‘ships,’ and ‘active and inactive

disposal sites ... .’” Id. at 921-22. As such, the proposed

revision didn’t properly alert the regulated community

about how the EPA would subsequently expand the defini-

tion; therefore, the agency violated the fair notice re-

quirement of 5 U.S.C. § 553.

As the Court has previously warned, when, as here, a

regulation is not promulgated in compliance with the

Administrative Procedures Act, it is ordinarily not “af-

forded the ‘force and effect of law.’” Chrysler v. Brown, 441

U.S. 281, 313, 99 S.Ct. 1705 (1979) (citing Morton v. Ruiz,

415 U.S. 199, 94 S.Ct. 1055 (1974)). In balancing the

tension between granting full effect to a rule designed to

ease agency and judicial administration, such as 42 U.S.C.

§ 7607(b)(1), with a criminal defendant's constitutional

right not to be convicted under an invalid law, constitu-

tional due process protections must prevail at least when,

as here, the issue has been timely raised and supported.

Moreover, the balancing test must weigh heavily in favor

of a criminal defendant’s constitutional rights when, as

here, “an administrative interpretation of a statute in-

vokes the outer limits of Congress’ power,” since the Court,

in such a situation, “expect[s] a clear indication that

Congress intended that result ... .” Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 681-83 (2001) (citing

12

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building

& Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct.

1392 (1988)).

The Conduct For Which Petitioner Was Convicted

Did Not Substantially Affect Interstate Commerce

Petitioner maintains that his federal convictions

cannot stand because his conduct did not substantially

affect interstate commerce and that, as applied to the facts

of this case, the interpretation of the statutes and regula-

tiors under which he was convicted violates Art. I, Section

8, Clause 3 of the Constitution of the United States. In the

leading cases of United States v. Morrison, 529 U.S. 598,

1201 S.Ct. 740 (2000), and United States v. Lopez, 514 U.S.

549, 115 S.Ct. 1624 (1995), this Court examined the outer

limits of federal jurisdiction under the modern interpreta-

tion of the Commerce Clause; these cases limit federal

criminal jurisdiction to activities that involve real and

substantial federal interests.

The court of appeals observed that the government

acknowledges that petitioner’s conviction can only be

sustained under the “substantial effect on interstate

commerce” prong required by Lopez and Morrison. (App.,

infra, 24-a). “The government does not seriously contend

that Ho’s isolated violation of the work practice standard

at a single renovation site could, by itself, have a substan-

tial effect on interstate commerce.” (App., infra, 25-a). The

court of appeals, however, misapplied Morrison and Lopez

by aggregating petitioner’s conduct with unrelated, hypo-

thetical activities that had attenuated support in the

record, and on a theory that wasn’t timely argued or

presented to the district court. Moreover, as previously

NE

13

explained, the court of appeals misapplied the holding in

Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904

(2000), by finding there was a “commercial use” in peti-

tioner’s conduct that permitted the aggregation necessary

to uphold the convictions.

The court of appeals’ ruling, if allowed, would mean

that most renovation projects fall within the ambit of

federal criminal jurisdiction, no matter how small or

insignificant a project may be, and notwithstanding

whether the project has any effect on interstate commerce.

The unrestrained use of the aggregation concept in this

case, even overlooking the government’s tardy and unsup-

ported asbestos removal industry argument, was likewise

improper because Congress, in crafting the Clean Air Act,

clearly expressed an intent to preserve the traditional

roles that states had under their police powers for combat-

ing air pollution (and not to give the federal government

the primary enforcement role). See 42 U.S.C. § 7401.

Congress likewise recognized that, in the main, states

would continue to bring most Clean Air Act enforcement

proceedings. Its careful balancing of state and federal

functions in crafting the Clean Air Act militates against

the type of unrestrained aggregation used below that

confused the line between state and federal jurisdiction

which Morrison, Jones, and Lopez did so much to clarify.

As this Court recognized in Jones, to hold otherwise would

mean that “hardly a building . . . would fall outside the .. .

statute’s domain.” 529 U.S. at 857. Accordingly, the former

use of the building as a hospital simply couldn’t be used to

bootstrap a finding of a present Commerce Clause nexus.

Moreover, the court of appeals shouldn’t have relied

upon 42 U.S.C. § 7607(b)(1) to summarily reject peti-

tioner’s as applied constitutional challenge since the

14

government’s new theory effectively pushed the reach of

the Commerce Clause far beyond its logical limits because

Congress hadn’t clearly expressed an intent for the statute

to be so construed. Any asbestos release that can arguably

be inferred from the facts in this case was so limited as to

be far beyond the Commerce Clause’s ambit. Therefore,

the court of appeals erred by not interpreting the EPA’s

regulations in a manner that would save them (and the

Clean Air Act) from constitutional challenge, since a

fundamental canon of statutory construction is that

constitutional questions must be avoided if possible. A

regulation that tests the Constitution’s limits must be

interpreted to avoid the issue, unless the underlying

statute evinces an intent to test those limits. Gregory v.

Ashcroft, 501 U.S. 453, 460, 111 S.Ct. 1392 (1988). See also

Presley v. Etowah County Comm’n, 502 U.S. 491, 508, 112

S.Ct. 820, 831 (1992) (courts should so defer “only if

Congress has not expressed its intent with respect to the

question, and then only if the administrative interpreta-

tion is reasonable”).

If petitioner’s as applied constitutional challenge is

examined within the Solid Waste Agency framework, as

the court of appeals was asked (but failed) to do, the

parallels between this case and Solid Waste are striking:

(1) in the Clean Air Act (as in the Clean Water Act),

Congress clearly expressed its intention that states retain

the primary role of preventing pollution at its source; (2)

in the Clean Air Act (unlike the Clean Water Act), Con-

gress did not expressly limit federal agencies’ powers to

regulate conduct by including a jurisdictional element;

instead, the Act focused on the emission of regulated

pollutants. into the ambient air; and, (3) while Congress

authorized the promulgation of regulations to implement

15

its expressed intent, it didn’t indicate that the EPA should

promulgate and apply a regulation that allowed the

agency to regulate, in perpetuity, a building if it ever had

touched commerce (even if that happened long ago, the

conduct is localized, and no ambient air pollution results),

thereby altering the state-federal balance of power. See

121 S.Ct. at 681-83. In this case, as in Solid Waste Agency,

because applying the statute and its regulations to the

facts raises significant constitutional questions, a proper

interpretation cannot permit the results reached by the

court of appeals, and therefore, this Court’s intervention is

warranted.

¢

CONCLUSION

For the foregoing reasons, the petitioner respectfully

prays that its petition for a writ of certiorari be granted.

Respectfully submitted,

C. LELAND HAMEL

Counsel of Record

WILLIAM L. BOWERS, JR.

MICHAEL E. CLARK

HAMEL BowErRS & CLARK LLP

5300 Memorial Drive, Suite 900

Houston, Texas 77007

(713) 869-0557

February 28, 2003

App. 1

APPENDIX A

311 F.3d 589

United States Court of Appeals,

Fifth Circuit.

UNITED STATES of America,

Plaintiff-Appellee-Cross-Appellant,

v. es

Eric Kung-Shou HO,

Defendant-Appellant-Cross-Appellee.

No. 01-20460.

Oct. 31, 2002.

Rehearing Denied Dec. 4, 2002.

Robert Harris Oakley (argued), Greer S. Goldman,

John Smeltzer, U.S. Dept. of Justice, Environment &

Natural Resources Div., Washington, DC, James Lee

Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Michael E. Clark (argued), Lee Hamel, Hamel, Bowers

& Clark, Houston, TX, Samuel J. Buffone, Ropes & Gray,

Washington, DC, for Ho.

Appeals from the United States District Court for the

Southern District of Texas.

Before DAVIS, JONES and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Eric Ho appeals his conviction under the Clean Air Act

(“CAA”), 42 U.S.C. § 7401 et seqg., and its regulations. The

government cross-appeals the refusal to impose two

sentencing enhancements. We affirm the conviction but

vacate the sentence and remand for re-sentencing.

App. 2

I.

Ho is a naturalized citizen who emigrated to Houston

from the Republic of China in the 1970’s. He owns and

operates a produce supply company, Houston Fruitland,

and a trucking company, Ho Ho Ho Express, Inc. He was

convicted of failure to comply with asbestos work practice

standards, 42 U.S.C. § 7413(c)(1), and failure to give notice

of intent to remove asbestos, 42 U.S.C. § 7413(c)(2)(B).

A.

In October 1997, Ho entered negotiations to purchase

the abandoned Alief General Hospital and Professional

Building in Houston. During negotiations, the owner’s

agent told Ho’s broker, who told Ho, that a 1994 environ-

mental site assessment had revealed extensive asbestos in

the hospital’s fireproofing; that asbestos abatement could

cost as much as $400,000; and that the owner was selling

the property “as is.” The owner‘and Ho ultimately agreed

to a price of $700,000 instead of the initial asking price of

$1.1 million. The contract included a Commercial Property

Condition Statement to the effect that the property con-

tained asbestos. Ho signed the statement, thereby ac-

knowledging the presence of asbestos.

Ho soon contacted a project manager at Laughlin

Environmental, a licensed asbestos abatement company, to

obtain a bid for asbestos removal. The manager prepared a

bid of $325,000 to remove and dispose of all asbestos in the

two buildings. Ho quickly rejected the bid as too high, so

the manager offered a second bid of cost plus ten percent;

Ho never responded.

Instead, Ho initiated his own hospital renovation

project in December 1997. He did not give advance notice

App. 3

to the Environmental Protection Agency (“EPA”) or the

Texas Department of Health (“TDH”) of his intent to

renovate a building that would involve the removal and

disposal of asbestos; this failure violated 40 C.FR.

§ 61.145(b). Ho hired Manuel Escobedo, his sometimes

handyman, to supervise the work, though Ho often visited

the hospital site himself. Ho also hired Corson Tate to

begin renovations in the professional building.

Escobedo, in turn, hired at least ten Mexican nation-

als — apparently in the United States illegally — to perform

the renovation and asbestos removal work. Escobedo paid

the workers by submitting their time sheets to Ho’s

accountant, receiving and cashing a check, anu paying the

workers in cash.

After removing sheetrock partitions and ceiling tiles

from the first floor of the hospital, the workers, who had

no experience or training in asbestos removal, began in

mid-January 1998 to remove the asbestos-containing

fireproofing. Neither Ho nor Escobedo told them that the

fireproofing contained asbestos or that asbestos is a

dangerous carcinogen, nor did they provide the workers

with adequate safety equipment.

Against customary asbestos abatement practices, the

workers used no water as they removed the fireproofing,

but only scraped off the fireproofing, which produced large

amounts of asbestos-containing dust inside the hospital.

As the workers removed the fireproofing, they placed it in

plastic bags. Although they generally left the bags open

and inside the hospital, on one occasion a worker placed

several bags in an outside dumpster, but Escobedo imme-

diately instructed him to retrieve the bags and leave them

inside the hospital. The hospital remained unsealed

App. 4

throughout, with several open doors and windows and a

large hole in the second floor exterior wall. None of these

practices complied with asbestos work practice standards.

See 40 C.F.R. § 61.145.

On February 2, 1998, Tim Stewart, a building inspec-

tor for the City of Houston, visited the hospital to investi-

gate a complaint of renovation work without a city permit.

Stewart observed the workers as they removed the fire-

proofing with putty knives without water or adequate

safety equipment. Stewart also noted that the hospital

was unsealed. He therefore issued a stop-work order and

placed a red tag on the main entrance to the hospital

indicating that work could not proceed without a city

building permit. The workers left shortly thereafter, and

Tate delivered the stop-work order to Ho.

Ho then contacted an operations manager at Alamo

Environmental, a licensed asbestos abatement company in

San Antonio, for an estimate to remove the remaining

asbestos-containing material. The manager met Ho at the

hospital on February 10 and sent him an estimate of

$159,876 on February 13. Ho decided not to hire Alamo

Environmental but, instead, to renew his own renovation

project.

To avoid the stop-work order and further inspections,

Ho re-hired the Mexican workers and instructed them to

work at night, asking one of the workers, Jaime Contreras,

to supervise. (Escobedo had fallen ill shortly after the stop-

work order was issued.) Ho also visited the hospital

frequently and on a few occasions personally supervised

the workers. The pace of the project soon dissatisfied Ho,

however, so he began to offer the workers performance

incentives to complete sections of the hospital. Ho also

App. 5

hired Tate to provide supplies to the workers and monitor

their hours; Ho and Tate reduced this agreement to a

written contract.

The workers completed the asbestos removal on

March 10, 1998. Ho told Tate to wash down the inside of

the hospital using a water line outside the hospital.

Unfortunately, the “water line” was in fact a pressurized

gas line.

After Tate removed the cap on the line, he started his

nearby van. The spark from the ignition and the open gas

line caused an explosion. The explosion burned Tate, three

workers, and the van and blew a hole in the exterior wall

of the hospital.

As a result of the explosion, TDH inspectors Tim

Hendrix and Gary Williams inspected the site on March

13, 1998. They found the hospital unsealed, with open

windows and doors and, now, two holes in the exterior

walls. Fireproofing dust covered floors and shelves, and

the building contained roughly 100 open bags of fireproof-

ing and sheetrock residue. Subsequent laboratory analysis

of the fireproofing indicated two to twenty percent chry-

solite asbestos; any material with more than one percent is

subject to federal and state regulations. The inspectors

noted several footprints leading from the hospital out-

doors, though they could not determine conclusively

whether the dust in the footprints was asbestos-containing

fireproofing or harmless sheetrock residue.

Over the next few months, Hendrix tried, with little

Success, to get Ho to seal the hospital and complete the

asbestos abatement. Ho initially had one of the Mexican

workers place plywood over the hospital’s doors and

windows, though this measure did not adequately seal the

App. 6

hospital. Ho also obtained multiple estimates for the

remaining abatement project. He apparently did not want

to pay the still-sizeable cost of abatement, though he

finally relented after much importuning by Hendrix.

The Occupational Safety and Health Administration

(“OSHA”) ultimately initiated an administrative enforce-

ment action against Ho and two of his companies, charg-

ing violations of the Occupational Safety and Health Act,

29 U.S.C. § 651 et seq., and its regulations. An administra-

tive law judge upheld the citations and assessed adminis-

trative penalties against Ho and his companies in excess of

$1 million.’

B.

In October 2000, the grand jury issued a nine-count

superseding indictment against Ho and Escobedo. Count 1

charged them with conspiracy to violate the CAA in

violation of 18 U.S.C. § 371. Count 2 charged Ho with a

failure to give notice of intent to renovate a facility i---lv-

ing the removal of asbestos material in violation of 42

U.S.C. § 7413(c)(2)(B). Count 3 charged Ho with failure to

comply with asbestos work practice standards in violation

of 42 U.S.C. § 7413(c)(1). Count 4 charged Ho with failure

to notify the appropriate agency of a release of asbestos in

a violation of 42 U.S.C. § 9603(b). Count 5 charged Ho

with a knowing release of asbestos into the ambient air,

which placed another person in imminent danger of death

or serious bodily injury in violation of 42 U.S.C.

* The TDH initiated similar proceedings under state law. Ho

settled by paying $44,000 in civil penalties.

App. 7

In his presentence report, the probation officer rec-

ommended an offense level of 18. First, he grouped, as two

or more acts connected by a common criminal objective or

part of a common scheme or plan, the convictions for

failure to give notice of intent to remove asbestos and

failure to comply with asbestos work practice standards.

U.S.S.G. § 3D1.2(b). Second, he began with a base offense

level of 8. U.S.S.G. § 2Q1.2(a), Third, he recommended a

six-level enhancement for repetitive discharge of asbestos

into the environment. U.S.S.G. § 2Q1.2(b)(1)(A). Fourth,

he recommended a four-level enhancement for Ho’s role as

an organizer or leader of an extensive criminal scheme.

U.S.S.G. § 3B1.1(a). These enhancements resulted in a

recommended total offense level] of 18, for a sentencing

range of 27-33 months.

The government objected to the PSR’s failure to

include an upward enhancement based on the workers’

alleged status as “vulnerable victims.” U.S.S.G. § 3A1.1(b).

App. 8

Ho objected to the enhancements and requested a down-

ward departure on several grounds.

At the sentencing hearing, the district court calcu-

lated a total offense level of 10. The court accepted the

base offense level of 8. The court did not add the six-level

enhancement for repetitive discharge of asbestos into the

environment, because it concluded that the government

had not proven discharge by a preponderance of the

-evidence. The court also declined to add the four-level

enhancement, because it concluded that the criminal

activity was not “otherwise extensive” under § 3B1.1(a),

but the court added the two-level enhancement for leader-

ship of a small criminal activity under §3B1.1(c). The

court rejected all other requests for enhancements or

departures.

II.

Ho contends that the laws under which he was con-

victed exceed Congress’s authority under the Commerce

Clause, U.S. CONST. art. I, § 8, cl. 3. Guided by the recent

landmark cases of United States v. Lopez, 514 U.S. 549,

115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States

v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658

(2000), we disagree.

At the outset, we stress the limited holding of this

opinion. We do not confront a facial challenge to the Clean

Air Act, but only an as-applied challenge to the work

practice standard provision, 42 U.S.C. § 7412(h), and the

reporting provision, 42 U.S.C. § 7414(a), of the CAA and

their implementing regulations, 40 C.F.R. § 61.145. We

thus have neither occasion nor authority to rule on the

constitutionality of other provisions of the CAA or other

ee iii lie "

App. 9

implementing regulations, which we must leave for an-

other day when they are properly presented.

We begin by reviewing the relevant sections of the

CAA and their implementing regulations. Next, we exam-

ine some first principles of Commerce Clause jurispru-

dence. We then analyze the reasoning in Lopez and

Morrison. Finally, we explain why, under this reasoning,

Congress had the authority to enact the sections of the

CAA that Ho challenges.

A.

Section 112 of the CAA, 42 U.S.C. § 7412, authorizes

the Administrator of the EPA to publish a list of hazardous

air pollutants and to establish emission standards for

them. These standards are known as “national emission

standards for hazardous air pollutants,” or NESHAP’s.

Section 112(b), 42 U.S.C. § 7412(b), establishes an

initial statutory list of hazardous air pollutants, of which

asbestos is one, and directs the EPA to update the list

periodically. Section 112(c), 42 U.S.C. § 7412(c), directs the

EPA to identify each “source category” that emits a par-

ticular hazardous air pollutant. Section 112(d), 42 U.S.C.

§ 7412(d), directs the agency to promulgate NESHAP’s to

regulate the emission of hazardous air pollutants from

these source categories. These provisions are the primary

means to regulate emissions of hazardous air pollutants

under the CAA.

Section 112(h\(1), 42 U.S.C. § 7412(h)(1), however,

authorizes the EPA to adopt work practice standards

instead of emission standards “if it is not feasible in the

judgment of the Administrator to prescribe or enforce an

App. 10

emission standard for control of a hazardous air pollut-

ant.” Because asbestos often is not “emitted through a

conveyance designed and constructed to emit or capture

[it],” 42 U.S.C. § 7412(h)(1)(A), but rather through build-

ing demolition and renovation sites, the EPA adopted a

work practice standard for handling asbestos in these

sites, 40 C.FR. §§ 61.145, 61.150.° This work practice

standard does not apply generally to any building contain-

ing any asbestos, but only to buildings containing certain

specific kinds and large amounts of asbestos. 40 C.F.R.

§§ 61.145(a), 61.150. The parties do not dispute that the

hospital contained the regulated kind and amount of

asbestos or, therefore, that the work practice standard

covered the hospital.‘

The asbestos work practice standard regulates, in

minute detail, the handling of asbestos in building renova-

tion sites. 40 C.FR. § 61.145(c). For example, material

containing asbestos must be wetted during removal, kept

sufficiently wet after removal to prevent the release of

asbestos fibers, and stored in leak-tight containers until

properly disposed. A foreman or management-level officer,

* “For purposes of this section, if it is not feasible in the judgment

of the Administrator to prescribe or enforce an emission standard for

control of a hazardous air pollutant or pollutants, the Administrator

may, in lieu thereof, promulgate a ... work practice ... standard ...

which in the Administrator’s judgment is consistent with the provisions

of subsection (d) or (f) of this section.” 42 U.S.C. § 7412(h)(1).

* The asbestos NESHAP also contains § 112(d) emission standards

for source categories that emit asbestos. See, e.g., 40 C.F.R. § 61.142.

* Ho, of course, disputes that the work practice standard can cover

the hospital constitutionally, but that is a different question we address

infra part II.D.

App. 11

trained in complying with these work practice standards,

must be present at any site before workers may handle

material containing asbestos. We could give more details

of the numerous requirements, but it is enough to say that

Ho admits he did not comply with the asbestos work

practice standard. |

Section 114(a), 42 U.S.C. § 7414(a), also authorizes the

EPA to adopt reporting requirements to ensure compliance

with a work practice standard. Pursuant to § 114(a), the

asbestos work practice standard therefore imposes an

elaborate reporting requirement on owners or operators of

a building renovation site. 40 C.F.R. § 61.145(b). The heart

of this requirement is that the owner or operator must

give the EPA timely notice (usually ten days) of intent to

begin asbestos removal. Again, we could continue with the

details of this requirement, but Ho admits that he did not

give notice.

Section 113, 42 U.S.C. § 7413, contains administra-

tive, civil, and criminal enforcement mechanisms for the

asbestos work practice standard and the notice require-

ment. Ho was convicted under two of these criminal

enforcement provisions. Section 113(c\(1), 42 U.S.C.

§ 7413(c)(1), imposes criminal penalties on “[aJny person

who knowingly violates any ... requirement or prohibition

of ... section 7412 of this title, ... including a require-

ment of any rule... promulgated or approved under such

section[.]” Section 113(c)(2)(B), 42 U.S.C. § 7413(c)(2)\B),

imposes criminal penalties on “[aJny person who know-

ingly fails to notify or report as required under this chap-

ter.”

We now summarize this complicated statutory and

regulatory framework before addressing the Commerce

App. 12

Clause. The affirmative legal duties Ho violated —- (1)

failure to follow proper work practice standards while

removing asbestos and (2) failure to give notice of intent to

remove asbestos — appear in the asbestos work practice

standard, 40 C.F.R. § 61.145. The EPA adopted the work

practice standard under §§ 112(h) and 114(a) of the CAA,

42 U.S.C. §§ 7412(h), 7414(a). The government prosecuted

Ho for these violations under § 113(c\(1), (c)(2)(B) of the

CAA, 42 U.S.C. § 7413(c)(1), (c(2)(B). Ho now challenges

these sections as applied to him.

B.

As did the Court in Lopez, so too do “[w]e start with

first principles.” Lopez, 514 U.S. at 552, 115 S.Ct. 1624.

The Constitution creates a federal government of limited

and enumerated powers, id., and in particular a Congress

of limited and enumerated powers. The Article I Vesting

Clause confirms this proposition, vesting in Congress “[a]ll

legislative powers herein granted.” U.S. Const. art. I, § 1.

This clause necessarily implies that some legislative

powers are not “herein granted,” foremost among them

“the police power, which the Founders denied the National

Government and reposed in the states.” Morrison, 529

U.S. at 618 and n. 8, 120 S.Ct. 1740.

“This constitutionally mandated division of authority

‘was adopted by the Framers to ensure protection of our

fundamental liberties. Just as the separation and inde-

pendence of the coordinate branches of the Federal Gov-

ernment serve to prevent the accumulation of excessive

power in any one branch, a healthy balance of power

between the States and the Federal Government will

reduce the risk of tyranny and abuse from either frsii.’”

ie rs

App. 13

Lopez, 514 U.S. at 552, 115 S.Ct. 1624 (quoting Gregory v.

Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d

410 (1991) (citations omitted)).

Among the legislative powers the Constitution did

grant to Congress is the power “to regulate Commerce

with foreign Nations, and among the several States, and

with the Indian Tribes.” Art. I, § 8, cl. 3. Though seldom

used in the nineteenth century, the Commerce Clause °

became the chief engine for federal regulatory and crimi-

nal statutes in the latter two-thirds of the twentieth

century. See Lopez, 514 U.S. at 552-556, 115 S.Ct. 1624

(describing the doctrinal history of the Commerce Clause).

The Court explained in Lopez that NLRB v. Jones &

Laughlin Steel Corp., 301 U.S.. 1, 57 S.Ct. 615, 81 L.Ed.

893 (1937) (upholding the National Labor Relations Act),

United States v. Darby, 312 US. 100, 61 S.Ct. 451, 85

L.Ed. 609 (1941) (upholding the Fair Labor Standards

Act), and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87

L.Ed. 122 (1942) (upholding the Agricultural Adjustment

Act of 1938), “ushered in an era of Commerce Clause

jurisprudence that greatly expanded the previously de-

fined authority of Congress under that Clause.” Lopez, 514

U.S. at 556, 115 S.Ct. 1624.

Yet, “even these modern-era precedents which have

expanded congressional power under the Commerce

Clause confirm that this power is subject to outer limits.”

* It would be more accurate to speak of the “Interstate Commerce

Clause,” because the phrase “Commerce Clause” wrongly ignores the

distinction between interstate and intrastate commerce. See Lopez, 514

U.S. at 587 n. 2, 115 S.Ct. 1624 (Thomas, J., concurring). We defer to

convention, however.

App. 14

Id. at 556-57, 115 S.Ct. 1624. Indeed, even in Jones &

Laughlin Steel, 301 U.S. at 37, 57 S.Ct. 615, the Court

emphasized that the Commerce Clause “may not be

extended so as to embrace effects upon interstate com-

merce so indirect and remote that to embrace them, in

view of our complex society, would effectually obliterate

the distinction between what is national and what is local

and create a completely centralized government.”

This alarming and dangerous prospect, and the

concomitant need to identify judicially enforceable limits

on the Commerce Clause, seem to have been a motivating

force behind the Supreme Court’s recent jurisprudence.°

Without any judicially enforceable limits and with inevita-

ble political pressures, the Commerce Clause all too easily

would become the general police power denied to Congress

by the Constitution.

Morrison and Lopez therefore reaffirm our longstand-

ing duty to enforce the limits’ of the Commerce Clause.

Naturally, “[dJue respect for the decisions of a coordinate

branch of Government demands that we invalidate a

congressional enactment only upon a plain showing that

Congress has exceeded its constitutional bounds.” Morri-

son, 529 U.S. at 607, 120 S.Ct. 1740. At the same time,

however, the constitutionality of any statute, including a

statute enacted under the Commerce Clause, “is ulti-

mately a judicial rather than a legislative question, and

can be settled finally only by [the Supreme] Court,” and

* See Morrison, 529 U.S. at 615-18, 120 S.Ct. 1740; Lopez, 514 U.S.

at 565-68, 115 S.Ct. 1624; see also United States v. Bird, 124 F.3d 667,

676-78 (5th Cir.1997) (explaining the need for a “limiting principle” in

Commerce Clause jurisprudence).

App. 15

initially by the lower federal courts. Jd. at 614, 120 S.Ct.

1740.’

C.

The Supreme Court’s Commerce Clause jurisprudence

sometimes has yielded vague and uncertain legal stan-

dards. As the Court explained in Lopez, “[t]he Constitution

mandates this uncertainty by withholding from Congress

a plenary police power that would authorize enactment of

every type of legislation.” Lopez, 514 U.S. at 566, 115 S.Ct.

1624. Legal standards for the Commerce Clause “are not

precise formulations, and in the nature of things they

cannot be.” Jd. at 567, 115 S.Ct. 1624. In Lopez and Morri-

son, however, the Court helpfully clarified the legal stan-

dards to be applied in a constitutional challenge to a

statute under the Commerce Clause.

In Lopez, the Court restated the “three broad catego-

ries of activity that Congress may regulate under its

commerce power.” Jd. at 558, 115 S.Ct. 1624. “First,

Congress may regulate the use of the channels of inter-

state commerce.” Jd. (citing Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 256-67, 85 S.Ct. 348, 13

L.Ed.2d 258 (1964); United States v. Darby, 312 U.S. 100,

114-15, 61 S.Ct. 451, 85 L.Ed. 609 (1941)). This category

includes the regulation of highways, railroads, air routes,

navigable rivers, and telecommunications networks. See

United States v. Robinson, 119 F3d 1205, 1210 (5th

" See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed.

60 (1803) (“It is emphatically the province and duty of the judicial

department to say what the law is.”).

App. 16

Cir.1997). The category also “reaches the ‘misuse’ of the

channels of interstate commerce.” Bird, 124 F.3d at 673.

For example, within this category Congress has regulated

the interstate transport or shipment of stolen goods, 18

U.S.C. § 2314; kidnaped persons, 18 U.S.C. § 1201; prosti-

tutes, 18 U.S.C. § 2421 and illegal lottery tickets, The

Lottery Case (Champion v. Ames), 188 U.S. 321, 23 S.Ct.

321, 47 L.Ed. 492 (1903).

“Second, Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, even

though the threat may come only from intrastate activi-

ties.” When Congress regulates within this category, it

must “ensure that, in fact, a particular ‘threat’ - whether

posed by an interstate or intrastate activity -— actually

threatens persons or things with a plain and clear nexus

to interstate commerce.” Bird, 124 F.3d at 674. Character-

istic examples of regulation in this category include

destruction of an aircraft, 18 U.S.C. § 32, and theft from

interstate shipments, 18 U.S.C. § 659. See Lopez, 514 US.

at 558, 115 S.Ct. 1624 (citing Perez, 402 U.S. at 150, 91

S.Ct. 1357).

“Finally, Congress’ commerce authority includes the

power to regulate those activities having a substantial

relation to interstate commerce, i.e., those activities that

substantially affect interstate commerce.” Jd. at 558-59,

115 S.Ct. 1624 (citing Maryland v. Wirtz, 392 U.S. 183, 196

* Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (citing Perez v. United

States, 402 U.S. 146, 148-50, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); The

Shreveport Rate Cases (Houston Ry. Co. v. United States), 234 U.S. 342,

34 S.Ct. 833, 58 L.Ed. 1341 (1914); Southern Ry. v. United States, 222

U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911)).

App. 17

n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); Jones &

Laughlin Steel, 301 U.S. at 36-38, 57 S.Ct. 615 (1937)).

The Court acknowledged in Lopez that its “case law has

not been clear whether an activity must ‘affect’ or ‘sub-

stantially affect’ interstate commerce in order to be within

Congress’ power to regulate it under the Commerce

Clause.” Id. at 559, 115 S.Ct. 1624. The Court firmly

concluded, though, that “the proper test requires an

analysis of whether the regulated activity ‘substantially

affects’ interstate commerce.” Jd.

Thus, this third category is often known as the “sub-

stantial effect” test. Although it is the most expansive

category — or perhaps because it is the most expansive — it

has generated the most controversy and uncertainty.”

One fairly certain principle is that the substantial

effect test allows Congress to regulate purely intrastate

activities. The Supreme Court has “upheld a wide variety

of congressional Acts regulating intrastate economic

activity where [it has] concluded that the activity substan-

tially affected interstate comm >rce.” Id. The Court in

Lopez did not purport to disturb the settled rule that

“[w]here economic activity substantially affects interstate

commerce, legislation regulating that activity will be

sustained.” Jd. at 560, 115 S.Ct. 1624.

A regulation of intrastate commercial activity can

satisfy the substantial effect test in two ways. First, it can

* Compare id. at 584-602, 115 S.Ct. 1624 (Thomas, J., concurring)

(arguing that the substantial effect test lacks a constitutional basis)

with id. at 615-31, 115 S.Ct. 1624 (Breyer, J., dissenting) (arguing for a

more generous application of the substantial effect test).

App. 18

reach intrastate commercial activity that by itself sub-

stantially affects interstate commerce. Jones & Laughlin

Steel is a case in point. A steel company challenged an

order of the NLRB that it had engaged in unfair labor

practices at a steel mill. Jones & Laughlin, 301 US. at 22,

57 S.Ct. 615. The company contended that the NLRB’s

order violated the Commerce Clause because it amounted

to congressional regulation of a wholly intrastate economic

activity. Id. at 40-41, 57 S.Ct. 615. The Court rejected this

argument, because “the stoppage of those [steel manufac-

turing] operations by industrial strife would have a most

serious effect upon interstate commerce.... It is obvious

that it would be immediate and might be catastrophic.” Jd.

at 41, 57 S.Ct. 615. Thus, the Court upheld the order as a

valid regulation of intrastate commercial activity, i.e.,

labor relations at a steel mill, which alone substantially

affects interstate commerce.

Second, the regulation can reach intrastate commer-

cial activity that by itself is too trivial to have a substan-

tial effect on interstate commerce but which, when

aggregated with similar and related activity, can substan-

tially affect interstate commerce. This rule has come to be

known as the “aggregation” principle, which reached its

zenith in Wickard, “perhaps the most far reaching example

of Commerce Clause authority over intrastate activity.”

Lopez, 514 U.S. at 560, 115 S.Ct. 1624. The farmer in

Wickard grew wheat on his small farm. Wickard, 317 U.S.

at 114, 63 S.Ct. 82. Under the Agricultural Adjustment Act

of 1938, he was entitled to a quota of about eleven acres of

wheat, but he grew about twenty-three acres, which he

used for seeding, feeding, selling, and home consumption.

Id. at 114-15, 63 S.Ct. 82. The Secretary of Agriculture

assessed a penalty against him for exceeding his quota. Id.

App. 19 .

at 115, 63 S.Ct. 82. The Court upheld the penalty because,

though the farmer’s “own contribution to the demand for

wheat may be trivial by itself ... his contribution, taken

together with that of many others similarly situated, is far

from trivial.” Id. at 127-28, 63 S.Ct. 82. Wickard thus

stands at the head of “cases upholding regulations of

activities that arise out of or are connected with a com-

mercial transaction, which viewed in the aggregate,

substantially affects interstate commerce.” Lopez, 514 U.S.

at 561, 115 S.Ct. 1624.

Whether and how Congress may apply the aggrega-

tion principle are controversial questions. The pitfalls are

apparent. For example, any imaginable activity of man-

kind can affect the alertness, energy, and mood of human

beings, which in turn can affect their productivity in the

workplace, which when aggregated together could reduce

national economic productivity. Such reasoning would

eliminate any judicially enforceable limit on the Com-

merce Clause, thereby turning that clause into what it

most certainly is not, a general police power. Thus, in

Lopez, 514 U.S. at 564, 115 S.Ct. 1624, the Court expressly

rejected such reasoning.

In fact, as we have observed, the need for some judi-

cially enforceable limit on the aggregation principle

seemed to motivate the analysis in Lopez and Morrison.

The Court therefore has identified four “significant consid-

erations” for Congress’s power to invoke the aggregation

principle to regulate wholly intrastate activities. Morrison,

529 U.S. at 609, 120 S.Ct. 1740.

The Court first identified these considerations in

Lopez, which held that the Gun-Free School Zones Act of

1990, 18 U.S.C. § 922(q)(1)A), which made it a federal

App. 20

crime knowingly to possess a firearm in a school zone,

exceeded Congress’s authority under the Commerce

Clause. The Court re-emphasized these considerations in

Morrison, which held that the civil remedy provision of the

Violence Against Women Act, 42 U.S.C. § 13981, which

created a federal civil remedy for victims of sex-based

violence, also exceeded Congress’s authority under the

Commerce Clause. We examine these four considerations

with a view to the scope of the aggregation principle.

The first consideration is the economic or commercial

nature of the regulated intrastate activity. In Lopez, the

Court seemed to restrict the aggregation principle to

economic activity, which did not include gun possession in

a school zone. Lopez, 514 U.S. at 559-61, 115 S.Ct. 1624.

Morrison clarified Lopez somewhat on this point, explain-

ing that “[wJhile we need not adopt a categorical rule

against aggregating the effects of any noneconomic activ-

ity in order to decide [Morrison ], thus far in our Nation’s

history our cases have upheld Commerce Clause regula-

tion of intrastate activity only where the activity is eco-

nomic in nature,” which sex-based violence most certainly

is not. Morrison, 529 U.S. at 613, 120 S.Ct. 17:0 (empha-

sis added). Thus, it remains an open question, as yet

unsettled by the Supreme Court, whether the aggregation

principle extends to non-economic activity.”

'° We recognize that Bird seems to contradict this conclusion.

“After Wickard — and its reaffirmance in Lopez — there can be no

question that Congress is able to regulate noncommercial, intrastate

activity that substantially affects interstate commerce.” Bird, 124 F.3d

at 676. Yet, we decided Bird before the Supreme Court decided Morri-

son.

App. 21

The second consideration is a jurisdictional element in

the challenged statute that “might limit its reach to a

discrete set of [regulated intrastate activities] that addi-

tionally have an explicit connection with or effect on

interstate commerce.” Lopez, 514 U.S. at 562, 115 S.Ct.

1624. A jurisdictional element may ensure that a statute,

as applied, substantially affects interstate commerce.”

To be sure, though, Morrison clarified that a

jurisdictional element is not sufficient to establish the

constitutionality of a challenged statute: “Such an element

may establish that the enactment is in pursuance of

Congress’ regulation of interstate commerce.” Morrison,

529 U.S. at 612, 120 S.Ct. 1740 (emphasis added). We

therefore have held that a “jurisdictional element is not

alone sufficient to render [a challenged statute]

constitutional. That argument... has no principled limit.”

United States v. Kallestad, 236 F3d 225, 229 (5th

Cir.2000).

Thus, Congress may not add the words “interstate

commerce” to every statute and expect the courts meekly

to comply. In any event, neither § 922(q)(1)(A) nor § 13981

contains a jurisdictional element to restrict its scope or

justify use of the aggregation principle.

The third consideration is congressional findings

regarding the regulated intrastate activity’s substantial

effects on interstate commerce. This consideration is the

least important when determining whether Congress may

" A jurisdictional element also may establish that a statute comes

within the firdt or second category of Commerce Clause regulation

identified in Lopez. Morrison, 529 at 613 n. 5, 120 S.Ct. 1740.

App. 22

invoke the aggregation principle. In Lopez, 514 U.S. at 557

n. 2, 115 S.Ct. 1624, the Court noted that “[slimply be-

cause Congress may conclude that a particular activity

substantially affects interstate commerce does not neces-

sarily make it so.” (Citation omitted.) By the same tcken,

the Court noted that “Congress normally is not required to

make formal findings as to the substantial burdens that

an activity has on interstate commerce.” Id. at 562, 115

S.Ct. 1624.

In other words, congressional findings are neither

necessary nor sufficient for Congress to invoke the aggre-

gation principle, but merely are helpful insofar as they aid

the courts in identifying a substantial effect on commerce

“even though no such substantial effect [is] visible to the

naked eye.” Id. at 563, 115 S.Ct. 1624. Although

§ 922(q)(1)(A) contained no findings, the Court’s deeds in

Morrison backed up its words in Lopez, because the Court

rejected reams of findings collected after years of legisla-

tive inquiry as insufficient to support § 13981. Morrison,

529 U.S. at 614-15, 120 S.Ct. 1740.

The fourth and final consideration is the degree of

attenuation between the regulated intrastate activity and

the substantial effect on interstate commerce. This consid-

eration especially is designed to impose some judicially

enforceable limit on the aggregation principle and to

prevent the Commerce Clause from becoming a general

police power.

In Lopez, the government argued that discrete in-

stances of gun possession in a school zone, when aggre-

gated, increased the costs of crime and reduced national

productivity. Lopez, 514 U.S. at 563-64, 115 S.Ct. 1624.

App. 23

The Court rejected the cost-of-crime rationale for aggrega-

tion, because it would allow Congress to regulate “all

activities that might lead to violent crime, regardless of

how tenuously they relate to interstate commerce.” Id. at

564, 115 S.Ct. 1624. Likewise, the Court rejected the

national productivity rationale, because it would allow

Congress to regulate any activity related to economic

productivity including, for example, “marriage, divorce,

and child custody.” Id. Such rationales left the Court “hard

pressed to posit any activity by an individual that Con-

gress is without power to regulate.” Jd.

In Morrison, the Court rejected similar arguments

about the alleged substantial effects of sex-based violence,

when aggregated, on employment, production, transit, and

consumption. Morrison, 529 U.S. at 614-16, 120 S.Ct.

1740. If Congress could regulate sex-based violence be-

cause of these effects on interstate commerce, it could

regulate all violence, because sex-based violence, as a

subset of all violence, certainly has a smaller effect than

does all violence. Jd. at 615, 120 S.Ct. 1740. This kind of

attenuated reasoning is “unworkable if we are to maintain

the Constitution’s enumeration of powers.” Jd. at 615, 120

S.Ct. 1740.

Lopez and Morrison, therefore, foreclose congressional

use of the aggregation principle where the alleged rela-

tionship between the regulated intrastate activity and the

substantial effect on interstate commerce is so attenuated

that it would justify all regulation, i.e., would turn the

Commerce Clause into a general police power. To do so

would erase “the distinction between what is truly na-

tional and what is truly local.” Lopez, 514 U.S. at 567-68,

115 S.Ct. 1624 (citing Jones & Laughlin Steel, 301 U.S. at

30, 57 S.Ct. 615).

App. 24

D.

With these standards in mind, we uphold, as a valid

exercise of Congress’s commerce power, the provisions of

the CAA under which Ho was convicted. We review the

constitutionality of a federal statute de novo. Kallestad,

236 F.3d at 227.

Ho feverishly insists that the government never

proved that asbestos was released from the hospital into

the ambient air, which necessarily means that no asbestos

from the hospital polluted interstate air. Yet, the govern-

ment did not need to prove that Ho polluted the ambient

air to convict him.

Indeed, we may assume arguendo, for purposes of the

Commerce Clause analysis, that no asbestos escaped the

hospital, because Ho was not convicted of releasing asbes-

tos into the ambient air; the district court dismissed this

count after a pre-trial hearing. Instead, Ho was convicted

of failure to comply with the asbestos work practice

standard and failure to give notice of intent to remove

asbestos. 42 U.S.C. §§ 7412(h), 7414(a); 40 C.F.R. § 61.145.

The conviction rest on purely intrastate activities, no

doubt, but Jones & Laughlin Steel and Wickard long ago

established, and Lopez and Morrison recently reaffirmed,

that Congress may regulate wholly intrastate activities

that substantially affect interstate commerce.

The government concedes that the application of the

asbestos work practice standard to Ho can be justified only

under the substantial effect test. The standard does not

regulate the channels of interstate commerce or prohibit

the interstate shipment of a good or commodity through

these channels. Nor does it seek to protect the instrumen-

talities of or a thing or person in interstate commerce.

ics |

App. 25

Thus, if the conviction is to be sustained, “it must be under

the third category as a regulation of an activity that

substantially affects interstate commerce.” Lopez, 514 U.S.

at 559, 115 S.Ct. 1624.

Furthermore, the government concedes that the

asbestos work practice standard can satisfy the substan-

tial effect test only through the aggregation principle. The

government does not seriously contend that Ho’s isolated

violation of the work practice standard at a single renova-

tion cite could, by itself, have a substantial effect on

interstate commerce. Instead, the government argues that

similar violations, when aggregated, could substantially

affect the interstate market for asbestos removal services

and the interstate market for commercial real estate.”

Thus, this case presents the limited question whether

the aggregation principle extends to violations of the

asbestos work practice standard. We apply the Lopez-

Morrison considerations to answer in the affirmative.

First, the regulated intrastate activity, asbestos

removal, is very much a commercial activity in today’s

economy. It is a booming industry, given the hazardous

nature of asbestos and its seeming ubiquity in older

buildings. There is nothing inherently criminal or disfa-

vored about asbestos removal; in fact, it might be

° Ho protests that the government did not adduce this argument

at trial. It is true that the government defended the asbestos work

practice standard in the district court based primarily on the effects of

interstate pollution. Yet, the record adequately supports the govern-

ment’s theory urged on appeal, and we may affirm for any reason

supported by the record. LLEH, Inc. v. Wichita County, 289 F.3d 358,

364 (5th Cir.2002).

App. 26

considered a public service, and many reputable and

certified businesses exist solely to remove asbestos from

contaminated buildings.

Both the state and federal governments license

businesses and individuals in the field. Most, if not all,

asbestos removal projects have a commercial purpose,

because handling toxic carcinogens is not something many

people enjoy for its own sake. Unless the owner of an

asbestos-containing building needs to renovate the build-

ing or demolish it for use of the land on which it sits, he is

very likely to let sleeping dogs lie and not incur the costs

or dangers of asbestos removal.

Moreover, Ho’s activities were driven by commercial

considerations. He voluntarily solicited bids from two such

businesses, which returned sizable six-figure bids for the

hospital project. Although Ho declined these bids as too

costly, he hired the Mexican workers to remove the asbes-

tos, which itself was a commercial transaction. Addition-

ally, the entire project occurred in a building that Ho

recently had purchased for $700,000. Had he not wanted

to use the hospital for commercial purposes, he would not

have paid such a hefty sum, solicited the bids for asbestos

removal, or hired the workers to remove the asbestos on

the sly. We can say with confidence, then, that asbestos

removal in this case, unlike gun possession in a school

zone or sex-based violence, is a commercial activity.

Second, the asbestos work practice standard does not

contain any kind of jurisdictional element. Neither

§ 112(h) nor § 114(a) of the CAA, 42 U.S.C. §§ 7412(h),

7414(a), restricts the EPA’s authority to promulgate work

practice standards with a jurisdictional element. Unsur-

prisingly, the EPA did not limit the scope of the asbestos

|

App. 27

work practice standard by means of any kind of jurisdic-

tional element. 40 C.F R. § 61.145."

Third, Congress included no congressional findings

regarding the substantial effects that asbestos removal

may have on interstate commerce. Section 101, 42 U.S.C.

§ 7401, speaks generally to the harmful effects of air

pollution and states the purposes of the CAA. A few

passages from § 101 refer cursorily to what might be

considered aspects of interstate commerce.“ These brief

passages, however, do not even begin to satisfy the strin-

gent standards of Morrison for the use of congressional

findings.

Likewise, the parties have not pointed us to any

relevant or helpful passages from the legislative histories

of the CAA, and we have not discovered any such passages

on our own review. As so often happens, Congress seems to

have assumed its power to regulate however it desires.

* As we have observed, however, a jurisdictional element is not

decisive in Commerce Clause analysis. Though a jurisdictional element

may limit the scope of a statute to intrastate activities substantially

affecting interstate commerce, the absence of such an element will not

undermine a statute where the regulated activity in fact substantially

affects interstate commerce, just as it will not save a statute where the

regulated activity does not substantially affect interstate commerce.

* See, eg., 42 U.S.C. § 7401(a\2) (stating that “the growth in

amount and complexity of air pollution brought about by . . . industrial

development . . . has resulted in mounting dangers to the public health

and welfare, including injury to agricultural crops and livestock,

damage to and the deterioration of property, and hazards to air and

ground transportation”); § 7401(b)1) (stating that a purpose of the CAA

is “to protect and enhance the quality of the Nation’s air resources so as

to promote the public health and welfare and the productive capacity of

its population”).

App. 28

Yet, congressional findings, as we have explained, are

neither necessary nor sufficient to sustain a regulation.

The same holds for a lack of congressional findings,

especially where the substantial effects on interstate

commerce are “visible to the naked eye.” Lopez, 514 U.S. at

563, 115 S.Ct. 1624.

Most importantly, the relationship between the

asbestos removal in violation of the work practice stan-

dard and interstate commerce is not attenuated, but direct

and apparent. Congress had a rational basis to find not

only that a national market exists for asbestos removal

services, but also that Ho’s activities would injure this

market. See Groome Res. Ltd., LLC v. Parish of Jefferson,

234 F.3d 192, 203 (5th Cir.2000).

By violating the asbestos work practice standard,

which imposes costly duties on persons and businesses

engaged in asbestos removal, Ho gained a commercial

advantage on licensed abatement companies. Whereas

these companies must spend hundreds of thousands of

dollars on projects like Ho’s, Ho was able to scrape by —

literally and figuratively — at a cut rate of barely more

than $20,000 plus supplies. His activities also deprived

licensed abatement companies of a promising business

opportunity. These substantial effects on the asbestos

removal market are direct, not attenuated, and they

justify use of the aggregation principle in the narrow

situation presented by this case.

Moreover, once aggregated, Ho’s activities posed an

threat to the interstate commercial real estate market. His

illicit asbestos removal project likely would reduce the

number of companies providing asbestos removal services.

Fewer companies means that conscientious property

a Re Te Te Ne erm

App. 29

owners would have more trouble locating licensed abate-

ment companies and likely would have to pay higher

prices for the services of remaining companies. Further-

more, Ho would gain a commercial advantage over consci-

entious property owners who must pay these higher prices

for asbestos removal.

By holding that Congress may aggregate violations of

the asbestos work practice standard to satisfy the substan-

tial effects test, we do not cede a general police power to

Congress or abdicate our responsibility to enforce limits on

the Commerce Clause. Far from it, for our holding today

has two important limiting principles.

First, it applies only to a commercial activity, not to

any activity whatsoever that might have detrimental

environmental effects. The Supreme Court has long

upheld the aggregation a class of commercial activity.

Morrison, 529 U.S. at 613, 120 S.Ct. 1740. Second, the

presence of a national market in the regulated activity

also serves as a limiting principle."

We therefore conclude the Commerce Clause analysis

by re-emphasizing the limited nature of our holding. We

uphold only the sections of the CAA authorizing the

asbestos work practice standard, 42 U.S.C. §§ 7412(h),

7414(a), and the work practice standard itself, 40 C.FR.

§ 61.141. We express no opinion on the constitutionality of

* See Perez, 402 U.S. at 154-57, 91 S.Ct. 1357 (national market for

commercial credit); Wickard, 317 U.S. at 127-28, 63 S.Ct. 82 (national

market for wheat); Bird, 124 F3d at 678 (national market for abortion

services).

App. 30

other sections of the CAA or their implementing regula-

tions, or, for that matter, of other environmental laws.”

ITl.

Ho challenges the refusal to include an interstate

commerce jurisdictional element in the jury instructions

for each count. He argues that the jurisdictional element is

necessary wherever a prosecution pushes the outer bounds

of the Commerce Clause. Reviewing the court’s jury

instructions for abuse of discretion, Cooper Indus., Inc. v.

Tarmac Roofing Sys., Inc., 276 F.3d 704, 714 (5th

Cir.2002), we disagree.

Ho cites United States v. Threadgill, 172 F.3d 357 (5th

Cir.1999), for the proposition that Lopez requires an

interstate commerce jurisdictional element because his

prosecution pushed the outer bounds of the Commerce

Clause. Unfortunately for Ho, we expressly rejected this

proposition in Threadgill. Id. (“[T]he defendants essen-

tially argue that Lopez has created a new jurisdictional

element in all federal prosecutions of individual con-

duct. ... We are not persuaded.”). Moreover, the text of the

CAA does not support Ho’s position, because, unlike many

* “The Commerce Clause [is] broad enough to permit congressional

regulation of activities causing air or water pollution, or other environ-

mental hazards that may have effects in more than one State.” Hodel v.

Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 282 (1981).

Lopez and Morrison do not challenge this principle, though they also do

not exempt environmental regulations from Commerce Clause scrutiny.

Though we note that the principle seems to require interstate effects

before Congress may regulate for environmental problems, we have no_

occasion to analyze the principle in this case, because the asbestos work

practice standard is a valid regulation of a commercial activity.

App. 31

other federal criminal statutes, it does not contain a

jurisdictional element that the government must plead

and prove. See, e.g., 18 U.S.C. § 2421. This omission is a

legislative choice, not a constitutional defect.

At best, Ho falls back on a more general passage from

Threadgill, 172 F.3d at 372: “Whether a defendant’s

conduct has a ‘substantial effect on interstate commerce’ is

a question that only becomes relevant when the statute at

issue, or the facts of the case, cast doubt on Congress’

ability to use the Commerce Clause to regulate the

charged conduct.” We held that this rule did not apply in

Threadgill because the crimes of gambling and unlawful

structuring of banking transactions were “purely commer-

cial activities.” Jd. Unlike the situation in Lopez and like

that in Threadgill, however, neither the asbestos work

practice standard nor the facts of this case cast doubt on

Congress's ability to regulate Ho’s conduct. The district

court therefore did not err in refusing Ho’s requested

instruction.

IV.

Ho challenges the jury instruction on the count for

failure to give notice of intent to remove asbestos.

In summary, he argues that § 113(c)(2)B), 42 U.S.C.

§ 7413(c)(2)(B), which imposes criminal penalties on “[a]ny

person who knowingly fails to notify or report as required

by under [the CAA],” requires not only knowledge of the

presence of asbestos, but also knowledge of the CAA’s

notice requirement. The government, on the other hand,

contends that it only needed to prove knowledge of the

presence of asbestos.

App. 32

The district court agreed with the government and

instructed the jury that “[i]t is not necessary that the

Government prove the Defendant actually knew of the

notice requirement.” Although we usually review failure to

give a requested jury instruction for abuse of discretion,

Cooper Indus., 276 F.3d at 714, we review this question of

statutory interpretation de novo, United States v. Adam,

296 F.3d 327, 330 (5th Cir.2002). The district court’s

instruction was correct, because § 113(c)(2)(B) does not

require knowledge of the notice requirement.

We need refer only to the venerable maxim that

“Ignorance of the law is no defense.” It is as much a part of

“our national culture” as are the Miranda warnings.

Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct.

2326, 147 L.Ed.2d 405 (2000). Our criminal laws typically

express this maxim with the “knowing” degree of scienter.

The Supreme Court recently has explained in more law-

yer-like fashion that “the term ‘knowingly’ does not neces-

sarily have any reference to a culpable state of mind or to

knowledge of the law.... [T]he knowledge requisite to

knowing violation of a statute is factual knowledge as

distinguished from knowledge of the law.’”” This maxim is

so strongly embedded in our legal system that “unless the

text of a statute dictates a different result, the term

‘knowingly’ merely requires proof of knowledge of the facts

Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141

L.Ed.2d 197 (1998) (quoting Boyce Motor Lines Inc. v. United States,

342 U.S. 337, 345, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (Jackson, J.,

dissenting)); see also United States v. Baytank (Houston), Inc., 934 F.2d

599, 613 (5th Cir.1991) (stating that “‘knowingly’ means no more than

that the defendant knows factually what he is doing”).

Sh echt Se eae eee

App. 33

that constitute the offense.” Bryan, 524 U.S. at 193, 118

S.Ct. 1939 (footnote omitted) (emphasis added).

This general rule applies with especial force to laws

regulating hazardous substances. In United States v. Int’

Minerals & Chem. Corp., 402 U.S. 558, 91 S.Ct. 1697, 29

L.Ed.2d 178 (1971), the Court upheld a conviction of a

knowing failure to show shipping papers of a corrosive

liquid. The government offered no proof that the defendant

knew of the shipping paper regulation. The Court rejected

the challenge, however, because the defendant had knowl-

edge of the factual elements of the offense, which was al]

the statutory scienter of a knowing violation required. Jd.

at 562-64, 91 S.Ct. 1697. The Court further stated that

where “dangerous or deleterious devices or products or

obnoxious waste materials are involved, the probability of

regulation is so great that anyone who is aware that he is

in possession of them or dealing with them must be

presumed to be aware of the regulation.” Jd. at 565, 91

S.Ct. 1697.

Although neither this court nor other circuit courts

have interpreted the scienter required by § 113(c)(2)(B), we

see no reason to depart from the longstanding principle

that “knowingly” means knowledge of underlying facts, not

law. To the contrary, we observe several] sound reasons to

apply the longstanding principle.

First, other circuits have trenchantly interpreted the

term “knowingly” in § 113(c)(1) to require knowledge of

facts, not law.” The phrasing of the two subsections is

"* See United States v. Weintraub, 273 F.3d 139 (2d Cir.2001);

United States v,. Tomlinson, No. 99-30020, 1999 WL 511496, 1999 U.S.

(Continued on following page)

App. 34

identical, and the same terms in a statute should be

interpreted in the same way. Sullivan v. Stroop, 496 U.S.

478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990). Second,

the text of § 113(c)(2)(B) does not “dictate” a contrary

result. Bryan, 524 U.S. at 193, 118 S.Ct. 1939. Third, this

and the other circuit courts have held that the term

“knowingly” in other environmental statutes means only a

knowledge of facts, not law.”

Fourth, though the notice requirement is somewhat

technical or administrative, the CAA as a whole is “a

public welfare statute, involving a heavily regulated area

with great ramifications for the public health and safety.”

Baytank, 934 F.2d at 613 (citation omitted). Consequently,

failure to give notice of asbestos removal is “a type of

conduct that a reasonable person should know is subject to

stringent public regulation.” Jd. (citing and distinguishing

Liparota v. United States, 471 U.S. 419, 433, 105 S.Ct.

2084, 85 L.Ed.2d 434 (1985)). In these circumstances,

because we decline Ho’s invitation to use ambiguous

legislative history to interpret the plain meaning of the

statutory text, see Sale v. Haitian Ctrs. Council, 509 U.S.

155, 169-70, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993), we

conclude that § 113(c)(2)(B) requires only knowledge of the

underlying factual elements and does not impose on the

government the legal duty to give notice.

App. Lexis 16758 (9th Cir. July 16, 1999) (unpublished); United States

v. Buckley, 934 F.2d 84 (6th Cir.1991).

* See, e.g., United States v. Kelley Tech. Coatings, Inc., 157 F.3d

432, 436 (6th Cir.1998) (RCRA); United States v. Ahmad, 101 F.3d 386,

390 (5th Cir.1996) (Clean Water Act); United States v. Laughlin, 10 F.3d

961, 966-67 (2d Cir.1993) (CERCLA); United States v. Buckley, 934 F.2d

84, 88-89 (6th Cir.1991) (CERCLA); Baytank, 934 F.2d at 613 (RCRA).

App. 35

Ho plainly had knowledge of the underlying factual

elements of § 113(c)(2)(B), and in particular of the pres-

ence of asbestos. The preceding owner of the hospital

informed Ho that it contained asbestos. Ho sought an

estimate for removal costs from a_ licensed asbestos

abatement company, then specifically tried to avoid those

costs by hiring untrained and unlicensed workers. Ho also

received a stop-work order, from the city, that should have

alerted him to the presence of asbestos even if he had not

already known that the hospital contained asbestos.

Ho nevertheless ignored the order, sought a second

estimate from a licensed asbestos abatement company, and

continued the removal project. In sum, the jury instruction

stated the correct legal standard of scienter, and the

evidence more than adequately supported a jury finding

that Ho acted with knowledge of the underlying factual

elements.

V.

Ho contends that his conviction is based on an im-

properly promulgated regulation. The asbestos work

practice standard applies to Ho’s activities only if the

hospital satisfies the regulatory definition of “facility,” 40

C.F.R. §61.141. The EPA amended this definition

in 1990,” and Ho argues that the amendment was

* Under the pre-1990 definition, “Facility means any institutional,

commercial, or industrial structure, installation, or building (excluding

apartment buildings having no more than four dwelling units).” 40

C.F.R. § 61.141 (1988). Under the current definition,

Facility means any institutional, commercial, public, indus-

trial, or residential structure, installation, or building

(Continued on following page)

App. 36

improperly promulgated. Applying the de novo standard of

review, we disagree.

The CAA bars Ho’s procedural challenge to the 1990

rulemaking that amended the definition of “facility.” First,

§ 307(b)(1), 42 U.S.C. § 7607(b)(1), requires any challenge

to a rulemaking under §§ 112 and 113 to be filed in the

District of Columbia Circuit. Title 40 C.F.R. § 61.141 is

such a rule, so venue is improper in the courts of this

circuit. Second, § 307(b)(1) also requires any challenge to

be filed within sixty days of a final agency rulemaking.

The amended definition became final on November 20,

1990, 55 Fed. Reg. 48406, years before Ho challenged its

validity. Thus, the amended definition is “not subject to

judicial review in civil or criminal proceedings.” 42 U.S.C.

§ 7607(b)(2).

(including any structure, installation, or building containing

condominiums or individual dwelling units operated as a

residential cooperative, but excluding apartment buildings

having four or fewer dwelling units); any ship; and any ac-

tive or inactive waste disposal site. For purposes of this

definition, any building, structure, or installation that con-

tains a loft used as a dwelling is not considered a residential

structure, installation, or building. Any structure, installa-

tion, or building that was previously subject to this subpart

is not excluded, regardless of its current use or function.

40 C.F.R. § 61.141 (2002). We need not, and do not, address whether

this regulation applies to an individual residence. See Jones v. United

States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).

* In a challenge to agency rulemaking, we usually look to the

Administrative Procedure Act, 5 U.S.C. § 551 et seq., for the standard of

review, but the CAA bars review of the regulation in this case, so we

apply the de novo standard of review, which is customary for questions

of law. Cox v. City of Dallas, 256 F.3d 281, 288 (5th Cir.2001).

Serene

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App. 37

The ruling in Adamo Wrecking Co. v. United States,

434 U.S. 275, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978), does not

aid Ho. There, the Court permitted an otherwise untimely

challenge under § 307(b)(1) on the question whether the

disputed regulation was in fact an “emission standard.” Jd.

at 285, 98 S.Ct. 566. The Court specifically forbade the

lower courts, on remand, from considering whether the

agency had “complied with appropriate procedures in

promulgating the regulation ... [or] any of the other

familiar inquiries which arise in the course of an adminis-

trative review proceeding.” Jd. Ho does not dispute that 40

C.F.R. § 61.141 was promulgated under §§ 112 and 113.

Adamo therefore does not apply.”

VI.

The government appeals the refusal to enhance Ho’s

sentence for (1) repetitive discharge of asbestos into the

environment and (2) leadership in an extensive criminal

activity. When reviewing a sentence, we review findings of

facts for clear error and interpretations of the sentencing

guidelines de novo. United States v. Roberts, 203 F.3d 867,

869 (5th Cir.2000).

A.

The government sought a six-level sentence enhance-

ment for an “ongoing, continuous, or repetitive discharge,

* We also observe that the hospital satisfies the pre-1990 defini-

tion of “facility” because Ho purchased it and removed the asbestos for

commercial purposes, and the definition did not exclude previously

abandoned buildings.

App. 38

release, or emission of a hazardous or toxic substance or

pesticide into the environment.” U.S.S.G. § 2Q1.2(b)(1)(A).

The court declined, holding that the phrase “into the

environment” required proof of a discharge outside the

hospital, which it held the government had not estab-

lished. The government argues on appeal, as in the district

court, that the phrase “into the environment” includes

indoor air and, in any event, that it proved a discharge of

asbestos outside the hospital. Because we conclude that

the government sufficiently proved, for purposes of sen-

tencing, a discharge outside the hospital regardless of the

meaning of “into the environment,” we reserve the inter-

pretive question and assume only arguendo that

§ 2Q1.2(b)(1)(A) requires proof of a discharge outside the

hospital.

The district court clearly erred by ruling that the

government did not prove that Ho’s activities resulted in a

discharge of asbestos outside the hospital. “A factual

finding is clearly erroneous ‘when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.’” United States v. Cooper,

274 F.3d 230, 238 (5th Cir.2001) (quoting United States v.

Hill, 42 F.3d 914, 918 (5th Cir.1995)). The record leaves us

with just this conviction.

The court based its ruling on three main factual

findings. First, the workers removed only one bag of

fireproofing from the hospital, and even then immediately

retrieved the bag. Second, the court concluded that the

government had not proven that wind had blown asbestos

out of the unsealed hospital. Third, the court concluded

that the government had not established that dust tracked

outside the hospital by workers was asbestos instead of

App. 39

innocuous sheetrock residue. Though the first finding is

correct, the overwhelming weight of contrary evidence

cannot support the second and third findings or the court’s

ultimate conclusion.

An avalanche of facts supports the government’s

modest argument: that asbestos must have escaped the

unsealed hospital during the asbestos removal.” This

conclusion intuitively stands to reason, because the

hospital was never sealed, much less properly sealed as

required by regulation, 40 C.FR. § 61.145, during seven

weeks of asbestos removal.

Yet, there is much more. Testimony at trial supports

this conclusion. Stewart, a building inspector for the city,

testified that he observed airborne fireproofing dust inside

the hospital when he inspected it on February 2, 1998. He

further stated that the hospital had no containment

system that day to prevent the dust from escaping.

Hendrix, a TDH inspector, recounted that he also observed

airborne fireproofing dust inside the hospital when he

inspected it on March 13, 1998.

Moreover, Hendrix testified that all the doors and

many of the windows to the hospital were open. At the

OSHA civil proceeding, Hendrix also said that the hospital

escaped the hospital; the facts behind this conclusion appear in the

record. And, in any event, a PSR is admissible as evidence for sentenc-

ing purposes, though it may not be used to support a conviction on

appeal! if the defendant objects to the PSR. Cooper, 274 F.3d at 239.

App. 40

was “open ... with the wind blowing through it.”” Wil-

liams, another TDH inspector, testified that he took a

sample of dust from the frame of an exterior door and that

the sample contained two percent chrysolite asbestos.

Finally, Wiest, a certified asbestos removal contractor,

inspected the hospital on April 3, 1998, and observed an

airflow through the unsealed doors and windows and

through the hole caused by the explosion.

Photographs of the scene show that the bags of re-

moved fireproofing, though inside the hospital, were open

and unsealed, allowing any breeze to blow the fireproofing

out of the bag. Another photo shows fireproofing dust on or

near an open exterior door. A third photo shows a large

hole in the second floor exterior wall, though [sic] which

workers frequently threw debris into a dumpster on the

ground below. A fourth photograph shows dusty footprints

just outside an exterior door of the hospital. Although the

court stated that this picture is as consistent with sheet-

rock residue tracks, this is no different from saying that

the photograph is as consistent with fireproofing dust

tracks, which is more consistent with the other evidence.

Finally, we come to the remarkable fact of the explo-

sion on March 10, 1998, which was strong enough to blow

a hole in the exterior wall of the hospital. Surely an

explosion strong enough to move mortared bricks was aiso

strong enough to move fine, loose fireproofing dust. And,

“ Ho objects to this testimony, but “sentencing proceedings do not

offer criminal defendants the same procedural safeguards as trials.”

United States v. Goldfaden, 959 F.2d 1324, 1330 (5th Cir.1992).

Furthermore, Ho gives no reason why Hendrix's testimony at the OSHA

proceeding should be deemed unreliable.

FEIN IN OBE iy: 70 wey f PAPO SIR:

App. 41

as with the other openings on the exterior wall, Ho’s

failure to seal this new hole after the explosion obviously

allowed more fireproofing dust to escape.

This evidence, when considered as a whole, leaves no

doubt that asbestos escaped the unsealed hospital con-

tinuously and repeatedly throughout the removal project.”

We find support for this conclusion in United States

v. Chau, 293 F3d 96, 99-100 (3d Cir.2002), affirming

an enhancement for repetitive discharge under

§ 2Q1.2(b 1A). The record in Chau showed that the

defendant had disturbed asbestos inside a building and

moved open bags of asbestos outside the building. Chau,

293 F.3d at 100. Although the court was affirming a

finding of repetitive discharge, rather than reversing a

finding of no repetitive discharge, the facts in the instant

case are equally strong as those in Chau.

The government has proven an asbestos discharge by

a preponderance of the evidence, which is all that is

required at the sentencing phase. Because the district

environmental contamination.” This phrase comes from application

note 5 to U.S.S.G. § 2Q1.2. We held in Goldfaden that note 5 presumes

contamination if the government proves discharge. Goldfaden, 959 F 2d

App. 42

court clearly erred by holding otherwise, we vacate and

remand for re-sentencing.

'

B.

The government sought a four-level sentence en-

hancement for Ho’s status as “an organizer or leader of a

criminal activity that involved five or more participants or

was otherwise extensive.” U.S.S.G. § 3B1.1(a). The court

instead imposed a_ two-level enhancement under

§ 3B1.1(c), concluding that Ho’s criminal activity did not

involve five or more participants and was not otherwise

extensive.

The only question is the meaning of “otherwise exten-

sive.” The government must establish three elements for a

§ 3B1.1(a) enhancement: (1) Ho was an organizer or leader

of a criminal activity, (2) that involved at least one other

criminally responsible “participant™ and (3) that “in-

volved at least five participants or was otherwise exten-

sive.” Section 3B1.1(c) also requires the first two elements,

but not the third. Thus, when it imposed the two-level

enhancement under § 3B1.1(c), the court found that Ho

was an organizer and Escobedo was a criminally responsi-

ble “participant.” Ho does not appeal these findings, nor

does the government contend that the Mexican workers

were criminally responsible “participants.” Thus, we

* In United States v. Gross, 26 F.3d 552 (5th Cir.1994), we held

that §3B1.1 does not apply unless the criminal activity involved at

least two criminally responsible “participants.” Application note 1 to

§ 3B1.1 defines a “participant” as “a person who is criminally responsi-

ble for the commission of the offense, but need not have been convicted.”

App. 43

consider only whether the district court properly inter-

preted the phrase “otherwise extensive.”

We usually review determinations under § 3B1.1 for

clear error,” but we apply the de novo standard here

because the court misinterpreted the phrase “otherwise

extensive.” The parties do not dispute the factual matter of

Ho’s conduct, but rather the legal meaning of the phrase

“otherwise extensive.” Although the district court was

somewhat opaque, it apparently interpreted this phrase to

require an ongoing criminal organization of a kind that

would justify an upward departure (as distinguished from

an enhancement) under application note 2. We review this

legal interpretation of the guideline de novo. Roberts, 203

F.3d at 869.

This interpretation misreads application note 3 and

ignores settled Fifth Circuit precedent. Note 3 directs that

“lin assessing whether an organization is ‘otherwise

extensive,’ all persons involved during the course of the

entire offense are to be considered.” Note 3 is binding on

the federal courts, Stinson v. United States, 508 U.S. 36,

113 S.Ct. 1913, 123 L.Ed.2d 598 ( 1993), and instructs the

court to examine number of persons involved in the

activity, not the nature of the criminal organization.

Indeed, note 3 continues to state, by way of example,

that “a fraud that involved only three participants but

used the unknowing services of many outsiders could

be considered extensive.” Thus, a criminal activity is

” See, e.g., United States v. Davis, 226 F.3d 346, 360 (5th Cir.2000)

(reviewing for clear error); United States v. Glinsey, 209 F.3d 386, 396

(5th Cir.2000) (same).

App. 44

“otherwise extensive” if it involved five or more people who

“contributed to the success of the scheme.” Davis, 226 F.3d

at 360. Moreover, we repeatedly have held that “[iJn

deciding whether a scheme was otherwise extensive, the

district court must take into account all persons involved

during the course of the entire offense.” Jd. (emphasis

added) (citation omitted); Glinsey, 209 F.3d at 396.

The court erred by interpreting the phrase “otherwise

extensive” in §3Bl1.1(a) to refer to the nature of the

criminal organization, as distinguished from the number

of participants and persons involved.” We therefore vacate

and remand for new sentencing in light of the proper and

longstanding interpretation of that phrase.

For the foregoing reasons, the judgment of conviction

is AFFIRMED, and the judgment of sentence is VACATED

and REMANDED for proceedings consistent with this

opinion.

* Of course, Ho was convicted of failure to comply with the

asbestos work practice standard and failure to give notice of intent to

remove asbestos. Thus, he alone committed the specific unlawful acts.

Yet, these acts presuppose the unlawful asbestos removal activity,

which involved more than five persons.

a MeN See mee NRA RRS es Het a frp Pande senna needa Rist alee te See TARE TS PES

App. 45

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20460

UNITED STATES OF AMERICA

Plaintiff — Appellee-Cross-Appellant

v.

ERIC KUNG-SHOU HO

Defendant — Appellant-Cross-Appellee

Appeals from the United States District Court for the

Southern District of Texas, Houston

ON PETITION FOR REHEARING

(Filed Dec. 4, 2002)

Before DAVIS, JONES, and SMITH, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

ENTERED FOR THE COURT:

/s/ Jerry E. Smith

United States Circuit Judge

App. 46

APPENDIX C

C. CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULES, AND REGULATIONS

1. The Fifth Amendment to the U.S. Constitution pro-

vides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

2 Art. 1, Section 8, Clause 3 of the Constitution of the

United States provides:

8. Congress shall have power * * * to regulate

commerce with foreign nations, and among

the several states, and with the Indian

Tribes.

3. Section 112(b) of the Clean Air Act, 42 U.S.C. § 7412

(b), provides:

List of pollutants

(1) Initial list

The Congress establishes for purposes of this sec-

tion a list of hazardous air pollutants as follows

"SETS

App. 47

CAS number Chemical name

75070 Acetaldehyde

60355 Acetamide

75058 Acetonitrile

98862 Acetophenone

53963 2-Acetylaminofluorene

107028 Acrolein

79061 Acrylamide

79107 Acrylic acid

107131 Acrylonitrile

107051 Allyl chloride

92671 4-Aminobipheny]

62533 Aniline

90040 o-Anisidine

1332214 Asbestos

71432 Benzene (including benzene from gasoline)

92875 Benzidine

98077 Benzotrichloride

100447 Benzyl chloride

92524 Biphenyl

117817 Bis(2-ethylhexyl)phthalate (DEHP)

542881 Bis(chloromethyl)ether

75252 Bromoform

106990 1,3-Butadiene

156627 Calcium cyanamide

105602 Caprolactam

133062 Captan

63252 Carbaryl

75150 Carbon disulfide

56235 Carbon tetrachloride

463581 Carbony] sulfide

120809 Catechol

133904 Chloramben

57749 Chlordane

7782505 Chlorine

79118 Chloroacetic acid

532274 2-Chloroacetophenone

ee

App. 48

108907 Chlorobenzene

510156 Chlorobenzilate

67663 Chloroform

107302 Chloromethy]l methyl] ether

126998 Chloroprene

1319773 Cresols/Cresylic acid (isomers and mix-

ture)

95487 o-Cresol

108394 m-Cresol

106445 p-Cresol

98828 Cumene

94757 2,4-D, salts and esters

3547044 DDE

334883 Diazomethane

132649 Dibenzofurans

96128 1,2-Dibromo-3-chloropropane

84742 Dibutylphthalate

106467 1,4-Dichlorobenzene(p)

91941 3,3-Dichlorobenzidene

111444 Dichloroethy] ether (Bis(2- chloro-

ethyl)ether)

542756 1,3-Dichloropropene

62737 Dichlorvos

111422 Diethanolamine

121697 N,N-Diethy] aniline (N,N- Dimethylani-

line)

64675 Diethyl sulfate

119904 3,3-Dimethoxybenzidine

60117 Dimethyl aminoazobenzene

119937 3,3-Dimethyl] benzidine

79447 Dimethyl] carbamoy] chloride

68122 Dimethy] formamide

57147 1,1-Dimethyl hydrazine

131113 Dimethyl] phthalate

77781 Dimethy] sulfate

534521 4,6-Dinitro-o-cresol, and salts

51285 2,4-Dinitrophenol

App. 49

121142 2,4-Dinitrotoluene

123911 1,4-Dioxane (1,4-Diethyleneoxide)

122667 1,2-Diphenylhydrazine

106898 Epichlorohydrin (1-Chloro-2,3- epoxypro-

pane)

106887 1,2-Epoxybutane

140885 Ethyl acrylate

100414 Ethyl benzene

51796 Ethyl carbamate (Urethane)

75003 Ethyl chloride (Chloroethane)

106934 Ethylene dibromide (Dibromoethane)

107062 Ethylene dichloride (1,2- Dichloroethane)

107211 Ethylene glycol

151564 Ethylene imine (Aziridine)

75218 Ethylene oxide

96457 Ethylene thiourea

75343 Ethylidene dichloride (1,1- Dichloro-

ethane)

50000 Formaldehyde

76448 Heptachlor

118741 Hexachlorobenzene

87683 Hexachlorobutadiene

77474 Hexachlorocyclopentadiene

67721 Hexachloroethane

822060 Hexamethylene-1,6-diisocyanate

680319 Hexamethylphosphoramide

110543 Hexane

302012 Hydrazine

7647010 Hydrochloric acid

7664393 Hydrogen fluoride (Hydrofluoric acid)

123319 Hydroquinone

78591 Isophorone

58899 Lindane (all isomers)

108316 Maleic anhydride

67561 Methanol

72435 Methoxychlor

74839 Methyl bromide (Bromomethane)

App. 50

74873 Methyl chloride (Chloromethane)

71556 Methyl chloroform (1,1,1- Trichloroethane)

78933 Methy] ethyl ketone (2-Butanone)

60344 Methyl hydrazine

74884 Methyl iodide (lodomethane)

108101 Methyl isobutyl ketone (Hexone)

624839 Methyl] isocyanate

80626 Methyl] methacrylate

1634044 Methyl tert butyl ether

101144 4,4-Methylene bis(2- chloroaniline)

75092 Methylene chloride (Dichloromethane)

101688 Methylene diphenyl] diisocyanate (MDI)

101779 4,4-Methylenedianiline

91203 Naphthalene

98953 Nitrobenzene

92933 4-Nitrobiphenyl

100027 4-Nitrophenol

79469 2-Nitropropane

684935 N-Nitroso-N-methylurea

62759 N-Nitrosodimethylamine

59892 N-Nitrosomorpholine ©

56382 Parathion

82688 Pentachloronitrobenzene (Quintobenzene)

87865 Pentachlorophenol

108952 Phenol

106503 p-Phenylenediamine

75445 Phosgene

7803512 Phosphine

7723140 Phosphorus

85449 Phthalic anhydride

1336363 Polychlorinated biphenyls (Aroclors)

1120714 1,3-Propane sultone

57578 beta-Propiolactone

123386 Propionaldehyde

114261 Propoxur (Baygon)

78875 Propylene dichloride (1,2- Dichloropropane)

75569 Propylene oxide

App. 51

75558 1,2-Propylenimine (2-Methy] aziridine)

91225 Quinoline

106514 Quinone

100425 Styrene

96093 Styrene oxide

1746016 2,3,7 ,8-Tetrachlorodibenzo-p- dioxin

79345 1,1,2,2-Tetrachloroethane

127184 Tetrachloroethylene (Perchloroethylene)

7550450 Titanium tetrachloride

108883 Toluene

95807 2,4-Toluene diamine

584849 2,4-Toluene diisocyanate

95534 o-Toluidine

8001352 Toxaphene (chlorinated camphene)

120821 1,2,4-Trichlorobenzene

79005 1,1,2-Trichloroethane

79016 Trichloroethylene

95954 2,4,5-Trichlorophenol

88062 2,4,6-Trichlorophenol

121448 Triethylamine

1582098 Trifluralin

540841 2,2,4-Trimethylpentane

108054 Vinyl acetate

593602 Vinyl bromide

75014 Vinyl chloride

75354 Vinylidene chloride ( 1,1- Dichloroethylene)

1330207 Xylenes (isomers and mixture)

95476 o-Xylenes

108383 m-Xylenes

106423 p-Xylenes

0 Antimony Compounds

0 Arsenic Compounds (inorganic including arsine)

0 Beryllium Compounds

0 Cadmium Compounds

0 Chromium Compounds

0 Cobalt Compounds

0 Coke Oven Emissions

App. 52

0 Cyanide Compounds (FOOTNOTE 1)

0 Glycol ethers (FOOTNOTE 2)

0 Lead Compounds

0 Manganese Compounds

0 Mercury Compounds

0 Fine mineral fibers (FOOTNOTE 3)

0 Nickel Compounds

0 Polycylic Organic Matter (FOOTNOTE 4)

0 Radionuclides (including radon) (FOOTNOTE

5)

0 Selenium Compounds

NOTE: For all listings above which contain the

word “compounds” and for glycol ethers, the fol-

lowing applies: Unless otherwise specified, these

listings are defined as including any unique

chemical substance that contains the named

chemical (i.e., antimony, arsenic, etc.) as part of

that chemical’s infrastructure. [1] X CN where X

= H or any other group where a formal dissocia-

tion may occur. For example KCN or Ca(CN)2.

(FOOTNOTE 2) Includes mono- and di- ethers of

ethylene glycol, diethylene glycol, and triethylene

glycol R--COCH2CH2)n-OR where n = 1, 2, or3 R

= alkyl or aryl groups R = R, H, or groups which,

when removed, yield glycol ethers with the struc-

ture: R-(OCH2CH)n-OH. Polymers are excluded

from the glycol category. (FOOTNOTE 3) In-

cludes mineral fiber emissions from facilities

manufacturing or processing glass, rock, or slag

fibers (or other mineral derived fibers) of average

diameter 1 micrometer or less. (FOOTNOTE 4)

Includes organic compounds with more than one

benzene ring, and which have a boiling point

greater than or equal to 100 degrees C. (FOOT-

NOTE 5) A type of atom which spontaneously

undergoes radioactive decay.

App. 53

(2) Revision of the list

The Administrator shall periodically review the

list established by this subsection and publish

the results thereof and, where appropriate, re-

vise such list by rule, adding pollutants which

present, or may present, through inhalation or

other routes of exposure, a threat of adverse hu-

man health effects (including, but not limited to,

substances which are known to be, or may rea-

sonably be anticipated to be, carcinogenic,

mutagenic, teratogenic, neurotoxic, which cause

reproductive dysfunction, or which are acutely or

chronically toxic) or adverse environmental ef-

fects whether through ambient concentrations,

bioaccumulation, deposition, or otherwise, but

not including releases subject to regulation under

subsection (r) of this section as a result of emis-

sions to the air. No air pollutant which is listed

under section 7408(a) of this title may be added

to the list under this section, except that the

prohibition of this sentence shall not apply to any

pollutant which independently meets the listing

criteria of this paragraph and is a precursor to a

pollutant which is listed under section 7408(a) of

this title or to any pollutant which is in a class of

pollutants listed under such section. No sub-

stance, practice, process or activity regulated un-

der subchapter VI of this chapter shall be subject

to regulation under this section solely due to its

adverse effects on the environment.

(3) Petitions to modify the list

(A) Beginning at any time after 6 months after

November 15, 1990, any person may petition the

Administrator to modify the list of hazardous air

pollutants under this subsection by adding or de-

leting a substance or, in case of listed pollutants

App. 54

without CAS numbers (other than coke oven

emissions, mineral fibers, or polycyclic organic

matter) removing certain unique substances.

Within 18 months after receipt of a petition, the

Administrator shall either grant or deny the pe-

tition by publishing a written explanation of the

reasons for the Administrator’s decision. Any

such petition shall include a showing by the peti-

tioner that there is adequate data on the health

or environmental defects [2] of the pollutant or

other evidence adequate to support the petition.

The Administrator may not deny a petition solely

on the basis of inadequate resources or time for

review.

(B) The Administrator shall add a substance to

the list upon a showing by the petitioner or on

the Administrator’s own determination that the

substance is an air pollutant and that emissions,

ambient concentrations, bioaccumulation or depo-

sition of the substance are known to cause or

may reasonably be anticipated to cause adverse

effects to human health or adverse environ-

mental effects.

(C) The Administrator shall delete a substance

from the list upon a showing by the petitioner or

on the Administrator’s own determination that

there is adequate data on the health and envi-

ronmental effects of the substance to determine

that emissions, ambient concentrations, bioac-

cumulation or deposition of the substance may

not reasonably be anticipated to cause any ad-

verse effects to the human health or adverse en-

vironmental effects.

(D) The Administrator shall delete one or more

unique chemical substances that contain a listed

hazardous air pollutant not having a CAS number

el

App. 55

(other than coke oven emissions, mineral

fibers, or polycyclic organic matter) upon a show-

ing by the petitioner or on the Administrator’s

own determination that such unique chemical

substances that contain the named chemical of

such listed hazardous air pollutant meet the de-

letion requirements of subparagraph (C). The

Administrator must grant or deny a deletion

petition prior to promulgating any emission

standards pursuant to subsection (d) of this sec-

tion applicable to any source category or sub-

category of a listed hazardous air pollutant

without a CAS number listed under subsection

(b) of this section for which a deletion petition

has been filed within 12 months of November 15,

1990.

(4) Further information

If the Administrator determines that information

on the health or environmental effects of a sub-

stance is not sufficient to make a determination

required by this subsection, the Administrator

may use any authority available to the Adminis-

trator to acquire such information.

(5) Test methods

The Administrator may establish, by rule, test

measures and other analytic procedures for moni-

toring and measuring emissions, ambient con-

centrations, deposition, and bioaccumulation of

hazardous air pollutants.

(6) Prevention of significant deterioration

The provisions of part C of this subchapter (pre-

vention of significant deterioration) shall not ap-

ply to pollutants listed under this section.

App. 56

(7) Lead

The Administrator may not list elemental lead as

a hazardous air pollutant under this subsection.

4. Section 112(c) of the Clean Air Act, 42 U.S.C. § 7412

(c), provides:

List of source categories

(1) In general

Not later than 12 months after November 15,

1990, the Administrator shall publish, and shall

from time to time, but no less often than every 8

years, revise, if appropriate, in response to public

comment or new information, a list of all catego-

ries and subcategories of major sources and area

sources (listed under paragraph (3)) of the air

pollutants listed pursuant to subsection (b) of

this section. To the extent practicable, the cate-

gories and subcategories listed under this sub-

section shall be consistent with the list of source

categories established pursuant to section 7411

of this title and part C of this subchapter. Noth-

ing in the preceding sentence limits the Adminis-

trator’s authority to establish subcategories under

this section, as appropriate.

(2) Requirement for emissions standards

For the categories and subcategories the Admin-

istrator lists, the Administrator shall establish

emissions standards under subsection (d) of this

section, according to the schedule in this subsec-

tion and subsection (e) of this section.

(3) Area sources

The Administrator shall list under this subsec-

tion each category or subcategory of area sources

———————

_ App. 57

which the Administrator finds presents a threat

of adverse effects to human health or the envi-

ronment (by such sources individually or in the

aggregate) warranting regulation under this

section. The Administrator shall, not later than 5

years after November 15, 1990, and pursuant to

subsection (k\(3)B) of this section, list, based on

actual or estimated aggregate emissions of a

listed pollutant or pollutants, sufficient catego-

ries or subcategories of area sources to ensure

that area sources representing 90 percent of the

area source emissions of the 30 hazardous air

pollutants that present the greatest threat to

public health in the largest number of urban ar-

eas are subject to regulation under this section.

Such regulations shall be promulgated not later

than 10 years after November 15, 1990.

(4) Previously regulated categories

The Administrator may, in the Administrator’s

discretion, list any category or subcategory of

sources previously regulated under this section

as in effect before November 15, 1990.

(5) Additional categories

In addition to those categories and subcategories

of sources listed for regulation pursuant to para-

graphs (1) and (3), the Administrator may at any

time list additional categories and subcategories

of sources of hazardous air pollutants according

to the same criteria for listing applicable under

such paragraphs. In the case of source categories

and subcategories listed after publication of the

initial list required under paragraph (1) or (3),

emission standards under subsection (d) of this

section for the category or subcategory shall be

promulgated within 10 years after November 15,

ee

App. 58

1990, or within 2 years after the date on which

such category or subcategory is listed, whichever

is later.

(6) Specific pollutants

With respect to alkylated lead compounds,

polycyclic organic matter, hexachlorobenzene,

mercury, polychlorinated biphenyls, 2,3,7,8-tetra-

chiorodibenzofurans and 2,3,7,8-tetrachlorodi-

benzo-p-dioxin, the Administrator shall, not later

than 5 years after November 15, 1990, list cate-

gories and subcategories of sources assuring that

sources accounting for not less than 90 per cen-

tum of the aggregate emissions of each such pol-

lutant are subject to standards under subsection

(d(2) or (d)(4) of this section. Such standards

shall be promulgated not later than 10 years af-

ter November 15, 1990. This paragraph shall not

be construed to require the Administrator to

promulgate standards for such pollutants emit-

ted by electric utility steam generating units.

(7) Research facilities

The Administrator shall establish a separate

category covering research or laboratory facili-

ties, as necessary to assure the equitable treat-

ment of such facilities. For purposes of this

section, “research or laboratory facility” means

any stationary source whose primary purpose is

to conduct research and development into new

processes and products, where such source is op-

erated under the close supervision of technically

trained personnel and is not engaged in the

manufacture of products for commercial sale in

commerce, except in a de minimis manner.

App. 59

(8) Boat manufacturing

When establishing emissions standards for

styrene, the Administrator shall list boat

manufacturing as a separate subcategory unless

the Administrator finds that such listing would

be inconsistent with the goals and requirements

of this chapter.

(9) Deletions from the list

(A) Where the sole reason for the inclusion of a

source category on the list required under this

subsection is the emission of a unique chemical

substance, the Administrator shall delete the

source category from the list if it is appropriate

because of action taken under either subpara-

graphs (C) or (D) of subsection (b)\(3) of this sec-

tion.

(B) The Administrator may delete any source

category from the list under this subsection, on

petition of any person or on the Administrator’s

own motion, whenever the Administrator makes

the following determination or determinations,

as applicable:

(i) In the case of hazardous air pollutants emit-

ted by sources in the category that may result

in cancer in humans, a determination that no

source in the category (or group of sources in the

case of area sources) emits such hazardous air

pollutants in quantities which may cause a life-

time risk of cancer greater than one in one mil-

lion to the individual in the population who is

most exposed to emissions of such pollutants

from the source (or group of sources in the case of

area sources).

App. 60

(ii) In the case of hazardous air pollutants that

may result in adverse health effects in humans

other than cancer or adverse environmental ef-

fects, a determination that emissions from no

source in the category or subcategory concerned

(or group of sources in the case of area sources)

exceed a level which is adequate to protect public

health with an ample margin of safety and no

adverse environmental effect will result from

emissions from any source (or from a group of

sources in the case of area sources).

The Administrator shall grant or deny a petition

under this paragraph within 1 year after the pe-

tition is filed.

5. Section 112(d) of the Clean Air Act, 42 U.S.C. § 7412

(d), provides:

Emission standards

(1) In general

The Administrator shall promulgate regulations

establishing emission standards for each cate-

gory or subcategory of major sources and area

sources of hazardous air pollutants listed for

regulation pursuant to subsection (c) of this sec-

tion in accordance with the schedules provided in

subsections (c) and (e) of this section. The Admin-

istrator may distinguish among classes, types,

and sizes of sources within a category or sub-

category in establishing such standards except

that, there shall be no delay in the compliance

date for any standard applicable to any source

under subsection (i) of this section as the result

of the authority provided by this sentence.

App. 61

(2) Standards and methods

Emissions standards promulgated under this

subsection and applicable to new or existing

sources of hazardous air pollutants shall] require

the maximum degree of reduction in emissions of

the hazardous air pollutants subject to this sec-

tion (including a prohibition on such emissions,

where achievable) that the Administrator, taking

into consideration the cost of achieving such

emission reduction, and any non-air quality

health and environmental impacts and energy

requirements, determines is achievable for new

or existing sources in the category or subcategory

to which such emission standard applies, through

application of measures, processes, methods, sys-

tems or techniques including, but not limited to,

measures which —

(A) reduce the volume of, or eliminate emissions

of, such pollutants through process changes, sub-

stitution of materials or other modifications,

(B) enclose systems or processes to eliminate

emissions,

(C) collect, capture or treat such pollutants

when released from a process, stack, storage or

fugitive emissions point,

(D) are design, equipment, work practice, or op-

erational standards (including requirements for

operator training or certification) as provided in

subsection (h) of this section, or |

(E) are a combination of the above.

None of the measures described in subpara-

graphs (A) through (D) shall, consistent with the

provisions of section 7414(c) of this title, in any

way compromise any United States patent or

App. 62

United States trademark right, or any confiden-

tial business information, or any trade secret or

any other intellectual property right.

(3) New and existing sources

The maximum degree of reduction in emissions

that is deemed achievable for new sources in a

category or subcategory shall not be less strin-

gent than the emission control that is achieved in

practice by the best controlled similar source, as

determined by the Administrator. Emission

standards promulgated under this subsection for

existing sources in a category or subcategory may

be less stringent than standards for new sources

in the same category or subcategory but shall not

be less stringent, and may be more stringent

than —

(A) the average emission limitation achieved by

the best performing 12 percent of the existing

sources (for which the Administrator has emis-

sions information), excluding those sources that

have, within 18 months before the emission

standard is proposed or within 30 months before

such standard is promulgated, whichever is later,

first achieved a level of emission rate or emission

reduction which complies, or would comply if the

source is not subject to such standard, with the

lowest achievable emission rate (as defined by

section 7501 of this title) applicable to the source

category and prevailing at the time, in the cate-

gory or subcategory for categories and subcatego-

ries with 30 or more sources, or

(B) the average emission limitation achieved by

the best performing 5 sources (for which the Ad-

ministrator has or could reasonably obtain emis-

sions information) in the category or subcategory

App. 63

for categories or subcategories with fewer than

30 sources.

(4) Health threshold

With respect to pollutants for which a health

threshold has been established, the Administra-

tor may consider such threshold level, with an

ample margin of safety, when establishing emis-

sion standards under this subsection.

(5) Alternative standard for area sources

With respect only to categories and subcategories

of area sources listed pursuant to subsection (c)

of this section, the Administrator may, in lieu of

the authorities provided in paragraph (2) and

subsection (f) of this section, elect to promulgate

standards or requirements applicable to sources

in such categories or subcategories which provide

for the use of generally available control tech-

nologies or management practices by such

sources to reduce emissions of hazardous air pol-

lutants.

(6) Review and revision

The Administrator shall review, and revise as

necessary (taking into account developments in

practices, processes, and control technologies),

emission standards promulgated under this sec-

tion no less often than every 8 years.

(7) Other requirements preserved

No emission standard or other requirement

promulgated under this section shall be inter-

preted, construed or applied to diminish or re-

place the requirements of a more stringent

emission limitation or other applicable require-

ment established pursuant to section 7411 of this

App. 64

title, part C or D of this subchapter, or other au-

thority of this chapter or a standard issued under

State authority.

(8) Coke ovens

(A) Not later than December 31, 1992, the

Administrator shall promulgate regulations

establishing emission standards under para-

graphs (2) and (3) of this subsection for coke oven

batteries. In establishing such standards, the

Administrator shall evaluate —

(i) the use of sodium silicate (or equivalent)

luting compounds to prevent door leaks, and

other operating practices and technologies for

their effectiveness in reducing coke oven emis-

sions, and their suitability for use on new and ex-

isting coke oven batteries, taking into account

costs and reasonable commercial door warran-

ties; and

(ii) as a basis for emission standards under this

subsection for new coke oven batteries that begin

construction after the date of proposal of such

standards, the Jewell design Thompson non-

recovery coke oven batteries and other non-

recovery coke oven technologies, and other ap-

propriate emission control and coke production

technologies, as to their effectiveness in reducing

coke oven emissions and their capability for pro-

duction of steel quality coke.

Such regulations shall require at a minimum

that coke oven batteries will not exceed 8 per

centum leaking doors, 1 per centum leaking lids, 5

per centum leaking offtakes, and 16 seconds visible

emissions per charge, with no exclusion for emis-

sions during the period after the dosing of self-

sealing oven doors. Notwithstanding subsection (i)

App. 65

of this section, the compliance date for such

emission standards for 2xisting coke oven batter-

ies shall be December 31, 1995.

(B) The Administrator shall promulgate work

practice regulations under this subsection for

coke oven batteries requiring, as appropriate —

(i) the use of sodium silicate (or equivalent)

luting compounds, if the Administrator deter-

mines that use of sodium silicate is an effective

means of emissions control and is achievable,

taking into account costs and reasonable com-

mercial warranties for doors and related equip-

ment; and

(ii) door and jam cleaning practices.

Notwithstanding subsection (i) of this section,

the compliance date for such work practice regu-

lations for coke oven batteries shall be not later

than the date 3 years after November 15, 1990.

(C) For coke oven batteries electing to qualify

for an extension of the compliance date for stan-

dards promulgated under subsection (f) of this

section in accordance with subsection (iX8) of

this section, the emission standards under this

subsection for coke oven batteries shal] require

that coke oven batteries not exceed 8 per centum

leaking doors, 1 per centum leaking lids, 5 per

centum leaking offtakes, and 16 seconds visible

emissions per charge, with no exclusion for emis-

sions during the period after the closing of self-

sealing doors. Notwithstanding subsection (i) of

this section, the compliance date for such emis-

sion standards for existing coke oven batteries

seeking an extension shall be not later than the

date 3 years after November 15, 1990.

App. 66

(9) Sources licensed by the Nuclear Regulatory

Commission

No standard for radionuclide emissions from any

category or subcategory of facilities licensed by

the Nuclear Regulatory Commission (or an

Agreement State) is required to be promulgated

under this section if the Administrator deter-

mines, by rule, and after consultation with the

Nuclear Regulatory Commission, that the regu-

latory program established by the Nuclear Regu-

latory Commission pursuant to the Atomic

Energy Act (42 U.S.C. 2011 et seq.) for such cate-

gory or subcategory provides an ample margin of

safety to protect the public health. Nothing in

this subsection shall preclude or deny the right of

any State or political subdivision thereof to adopt

or enforce any standard or limitation respecting

emissions of radionuclides which is more strin-

gent than the standard or limitation in effect un-

der section 7411 of this title or this section.

(10) Effective date

Emission standards or other regulations promul-

gated under this subsection shall be effective

upon promulgation.

6. Section 112(h) of the Clean Air Act, 42 U.S.C. § 7412

(h), provides:

Work practice standards and other re-

quirements

(1) In general

For purposes of this section, if it is not feasible in

the judgment of the Administrator to prescribe or

enforce an emission standard for control of a

App. 67

hazardous air pollutant or pollutants, the Admin-

istrator may, in lieu thereof, promulgate a de-

sign, equipment, work practice, or operational

standard, or combination thereof, which in the

Administrator’s judgment is consistent with the

provisions of subsection (d) or (f) of this section.

In the event the Administrator promulgates a

design or equipment standard under this subsec-

tion, the Administrator shall include as part of

such standard such requirements as will assure

the proper operation and maintenance of any

such element of design or equipment.

(2) Definition

For the purpose of this subsection, the phrase

“not feasible to prescribe or enforce an emission

standard” means any situation in which the Ad-

ministrator determines that —

(A) a hazardous air pollutant or pollutants can-

not be emitted through a conveyance designed

and constructed to emit or capture such pollut-

ant, or that any requirement for, or use of, such a

conveyance would be inconsistent with any Fed-

eral, State or local law, or

(B) the application of measurement methodol-

ogy to a particular class of sources is not practi-

cable due to technological and economic

limitations.

(3) Alternative standard

If after notice and opportunity for comment, the

owner or operator of any source establishes to

the satisfaction of the Administrator that an al-

ternative means of emission limitation wil]

achieve a reduction in emissions of any air pol-

lutant at least equivalent to the reduction in

App. 68

emissions of such pollutant achieved under the

requirements of paragraph (1), the Administrator

shall permit the use of such alternative by the

source for purposes of compliance with this sec-

tion with respect to such pollutant.

(4) Numerical standard required

Any standard promulgated under paragraph (1)

shall be promulgated in terms of an emission

standard whenever it is feasible to promulgate

and enforce a standard in such terms.

7. Section 113(c) of the Clean Air Act, 42 U.S.C. § 7413

(c), provides in part:

Criminal penalties

(1) Any person who knowingly violates any re-

quirement or prohibition of an applicable imple-

mentation plan (during any period of federally

assumed enforcement or more than 30 days after

having been notified under subsection (a1) of

this section by the Administrator that such per-

son is violating such requirement or prohibition),

any order under subsection (a) of this section, re-

quirement or prohibition of section 7411(e) of this

title (relating to new source performance stan-

dards), section 7412 of this title, section 7414 of

this title (relating to inspections, etc.), section

7429 of this title (relating to solid waste combus-

. tion), section 7475(a) of this title (relating to pre-

construction requirements), an order under

section 7477 of this title (relating to preconstruc-

tion requirements), an order under section 7603

of this title (relating to emergency orders), sec-

tion 7661la(a) or 7661b(c) of this title (relating to

permits), or any requirement or prohibition of

subchapter IV-A of this chapter (relating to acid

App. 69

deposition control), or subchapter VI of this chap-

ter (relating to stratospheric ozone control), in-

cluding a requirement of any rule, order, waiver,

or permit promulgated or approved under such

sections or subchapters, and including any re-

quirement for the payment of any fee owed the

United States under this chapter (other than

subchapter II of this chapter) shall, upon convic-

tion, be punished by a fine pursuant to title 18 or

by imprisonment for not to exceed 5 years, or

both. If a conviction of any person under this

paragraph is for a violation committed after a

first conviction of such person under this para-

graph, the maximum punishment shail be dou-

bled with respect to both the fine and

imprisonment.

(2) Any person who knowingly —

(A) makes any false material statement, repre-

sentation, or certification in, or omits material

information from, or knowingly alters, conceals,

or fails to file or maintain any notice, application,

record, report, plan, or other document required

pursuant to this chapter to be either filed or

maintained (whether with respect to the re-

quirements imposed by the Administrator or bya

State);

(B) fails to notify or report as required under

this chapter; or

(C) falsifies, tampers with, renders inaccurate,

or fails to install any monitoring device or

method required to be maintained or followed

under this chapter [2] shall, upon conviction, be

punished by a fine pursuant to title 18 or by im-

prisonment for not more than 2 years, or both. If

a conviction of any person under this paragraph

App. 70

is for a violation committed after a first convic-

tion of such person under this paragraph, the

maximum punishment shall be doubled with re-

spect to both the fine and imprisonment.

(3) Any person who knowingly fails to pay any

fee owed the United States under this subchap-

ter, subchapter III, IV-A, V, or VI of this chapter

shall, upon conviction, be punished by a fine pur-

suant to title 18 or by imprisonment for not more

than 1 year, or both. If a conviction of any person

under this paragraph is for a violation committed

after a first conviction of such person under this

paragraph, the maximum punishment shall be

doubled with respect to both the fine and impris-

onment.

(4) Any person who negligently releases into

the ambient air any hazardous air pollutant

listed pursuant to section 7412 of this title or any

extremely hazardous substance listed pursuant

to section 11002(a)(2) of this title that is not

listed in section 7412 of this title, and who at the

time negligently places another person in immi-

nent danger of death or serious bodily injury

shall, upon conviction, be punished by a fine un-

der title 18 or by imprisonment for not more than

1 year, or both. If a conviction of any person un-

der this paragraph is for a violation committed

after a first conviction of such person under this

paragraph, the maximum punishment shall be

doubled with respect to both the fine and impris-

onment.

(5A) Any person who knowingly releases into

the ambient air any hazardous air pollutant

listed pursuant to section 7412 of this title or any

extremely hazardous substance listed pursuant

to section 11002(a)(2) of this title that is not

Ee

App. 71

listed in section 7412 of this title, and who knows

at the time that he thereby places another per-

son in imminent danger of death or serious bod-

ily injury shall, upon conviction, be punished by

a fine under title 18 or by imprisonment of not

more than 15 years, or both. Any person commit-

ting such violation which is an organization

shall, upon conviction under this paragraph, be

subject to a fine of not more than $1,000,000 for

each violation. If a conviction of any person un-

der this paragraph is for a violation committed

after a first conviction of such person under this

paragraph, the maximum punishment shall be

doubled with respect to both the fine and impris-

onment. For any air pollutant for which the Ad-

ministrator has set an emissions standard or for

any source for which a permit has been issued

under subchapter V of this chapter, a release of

such pollutant in accordance with that standard

or permit shall not constitute a violation of this

paragraph or paragraph (4).

(B) In determining whether a defendant who is

an individual knew that the violation placed an-

other person in imminent danger of death or se-

rious bodily injury — |

(i) the defendant is responsible only for actual

awareness or actual belief possessed; and

(ii) knowledge possessed by a person other than

the defendant, but not by the defendant, may not

be attributed to the defendant;

except that in proving a defendant’s possession of

actual knowledge, circumstantial evidence may

be used, including evidence that the defendant

took affirmative steps to be shielded from rele-

vant information.

App. 72

(C) It is an affirmative defense to a prosecution

that the conduct charged was freely consented to

by the person endangered and that the danger

and conduct charged were reasonably foreseeable

hazards of —

(i) an occupation, a business, or a profession; or

(ii) medical treatment or medical or scientific

experimentation conducted by professionally ap-

proved methods and such other person had been

made aware of the risks involved prior to giving

consent.

The defendant may establish an affirmative de-

fense under this subparagraph by a preponder-

ance of the evidence.

(D) All general defenses, affirmative defenses,

and bars to prosecution that may apply with re-

spect to other Federal criminal offenses may ap-

ply under subparagraph (A) of this paragraph

and shall be determined by the courts of the

United States according to the principles of

common law as they may be interpreted in the

light of reason and experience. Concepts of justi-

fication and excuse applicable under this section

may be developed in the light of reason and ex-

perience.

(E) The term “organization” means a legal en-

tity, other than a government, established or or-

ganized for any purpose, and such term includes

a corporation, company, association, firm, part-

nership, joint stock company, foundation, institu-

tion, trust, society, union, or any other

association of persons.

(F) The term “serious bodily injury” means bod-

ily injury which involves a substantial risk of

App. 73

death, unconsciousness, extreme physical pain,

protracted and obvious disfigurement or pro-

tracted loss or impairment of the function of a

bodily member, organ, or mental faculty.

(6) For the purpose of this subsection, the term

“person” includes, in addition to the entities re-

ferred to in section 7602(e) of this title, any re-

sponsible corporate officer.

8. Section 114(a) of the Clean Air Act, 42 U.S.C.

§ 7414(a), provides:

(a) Authority of Administrator or authorized

representative

For the purpose

(i) of developing or assisting in the development

of any implementation plan under section 7410

or section 7411(d) of this title, any standard of

performance under section 7411 of this title, any

emission standard under section 7412 of this ti-

tle, or any regulation of solid waste combustion

under section 7429 of this title, or any regulation

under section 7429 of this title (relating to solid

waste combustion),

(11) of determining whether any person is in vio-

lation of any such standard or any requirement

of such a plan, or

(iii) carrying out any provision of this chapter

(except a provision of subchapter II of this chap-

ter with respect to a manufacturer of new motor

vehicles or new motor vehicle engines) —

(1) the Administrator may require any person

who owns or operates any emission source, who

manufactures emission control equipment or proc-

ess equipment, who the Administrator believes

App. 74

may have information necessary for the purposes

set forth in this subsection, or who is subject to

any requirement of this chapter (other than a

manufacturer subject to the provisions of section

7525(c) or 7542 of this title with respect to a pro-

vision of subchapter II of this chapter) on a one-

time, periodic or continuous basis to —

(A) establish and maintain such records;

(B) make such reports;

(C) install, use, and maintain such monitoring

equipment, and use such audit procedures, or

methods;

(D) sample such emissions (in accordance with

such procedures or methods, at such locations, at

such intervals, during such periods and in such

manner as the Administrator shall prescribe);

(E) keep records on control equipment parame-

ters, production variables or other indirect data

when direct monitoring of emissions is impracti-

cal;

-

(F) submit compliance certifications in accor-

dance with subsection (a)(3) of this section; and

(G) provide such other information as the Admin-

istrator may reasonably require; and

(2) the Administrator or his authorized represen-

tative, upon presentation of his credentials —

(A) shall have a right of entry to, upon, or

through any premises of such person or in which

any records required to be maintained under

paragraph (1) of this section are located, and

App. 75

(B) may at reasonable times have access to and

copy any records, inspect any monitoring equip-

ment or method required under paragraph (1),

and sample any emissions which such person is

required to sample under paragraph (1).

(3) The Administrator shall in the case of any

person which is the owner or operator of a major

stationary source, and may, in the case of any

other person, require enhanced monitoring and

submission of compliance certifications. Compli-

ance certifications shall include

(A) identification of the applicable requirement

that is the basis of the certification,

(B) the method used for determining the compli-

ance status of the source,

(C) the compliance status,

(D) whether compliance is continuous or inter-

mittent,

(E) such other facts as the Administrator may

require. Compliance certifications and monitor-

ing data shall be subject to subsection (c) of this

section. Submission of a compliance certification

shall in no way limit the Administrator’s authori-

ties to investigate or otherwise implement this

chapter. The Administrator shall promulgate

rules to provide guidance and to implement this

paragraph within 2 years after November 15,

1990.

9. Title 40, Code of Federal Regulations, Section 61.141

provides:

App. 76

Definitions.

All terms that are used in this subpart and are

not defined below are given the same meaning as

in the Act and in subpart A of this part.

Active waste disposal site means any dis-

posal site other than an inactive site.

Adequately wet means sufficiently mix or

penetrate with liquid to prevent the release of

particulates. If visible emissions are observed

coming from asbestos-containing material, then

that material has not been adequately wetted.

However, the absence of visible emissions is not

sufficient evidence of being adequately wet.

Asbestos means the asbestiform varieties of

serpentinite (chrysotile), riebeckite (crocidolite),

cummingtonite-grunerite, anthophyllite, and ac-

tinolite-tremolite.

Asbestos-containing waste materials means

mill tailings or any waste that contains commer-

cial asbestos and is generated by a source subject

to the provisions of this subpart. This term in-

cludes filters from control devices, friable asbes-

tos waste material, and bags or other similar

packaging contaminated with commercial asbes-

tos. As applied to demolition and renovation op-

erations, this term also includes regulated

asbestos-containing material waste and materi-

als contaminated with asbestos including dispos-

able equipment and clothing.

Asbestos mill means any facility engaged in

converting, or in any intermediate step in convert-

ing, asbestos ore into commercial asbestos.

Outside storage of asbestos material is not con-

sidered a part of the asbestos mill.

App. 77

Asbestos tailings means any solid waste that

contains asbestos and is a product of asbestos

mining or milling operations.

Asbestos waste from control devices means

any waste material that contains asbestos and is

collected by a pollution control device.

Category I nonfriable asbestos-containing

material (ACM) means asbestos-containing pack-

ings, gaskets, resilient floor covering, and as-

phalt roofing products containing more than 1

percent asbestos as determined using the method

specified in appendix E, subpart E, 40 CFR part

763, section 1, Polarized Light Microscopy.

Category II nonfriable ACM means any ma-

terial, excluding Category I nonfriable ACM, con-

taining more than 1 percent asbestos as

determined using the methods specified in ap-

pendix E, subpart E, 40 CFR part 763, section 1,

Polarized Light Microscopy that, when dry, can-

not be crumbled, pulverized, or reduced to pow-

der by hand pressure.

Commercial asbestos means any material

containing asbestos that is extracted from ore

and has value because of its asbestos content.

Cutting means to penetrate with a sharp-

edged instrument and includes sawing, but does

not include shearing, slicing, or punching.

Demolition means the wrecking or taking

out of any load-supporting structural member of

a facility together with any related handling op-

erations or the intentional burning of any facility.

Emergency renovation operation means a

renovation operation that was not planned but

results from a sudden, unexpected event that, if

App. 78

not immediately attended to, presents a safety or

public health hazard, is necessary to protect

equipment from damage, or is necessary to avoid

imposing an unreasonable financial burden. This

term includes operations necessitated by non-

routine failures of equipment.

Fabricating means any processing (e.g., cut-

ting, sawing, drilling) of a manufactured product

that contains commercial asbestos, with the ex-

ception of processing at temporary sites (field

fabricating) for the construction or restoration of

facilities. In the case of friction products, fabri-

cating includes bonding, debonding, grinding,

sawing, drilling, or other similar operations per-

formed as part of fabricating.

Facility means any institutional,, commer-

cial, public, industrial, or residential structure,

installation, or building (including any structure,

installation, or building containing condomini-

ums or individual dwelling units operated as a

residential cooperative, but excluding residential

buildings having four or fewer dwelling units);

any ship; and any active or inactive waste dis-

posal site. For purposes of this definition, any

building, structure, [Page 92] or installation that

contains a loft used as a dwelling is not consid-

ered a residential structure, installation, or

building. Any structure, installation or building

that was previously subject to this subpart is not

excluded, regardless of its current use or func-

tion.

Facility component means any part of a facil-

ity including equipment.

Friable asbestos material means any mate-

rial containing more than 1 percent asbestos as

App. 79

determined using the method specified in appen-

dix E, subpart E, 40 CFR part 763, section 1,

Polarized Light Microscopy, that, when dry, can

be crumbled, pulverized, or reduced to powder by

hand pressure. If the asbestos content is less

than 10 percent as determined by a method other

than point counting by polarized light microscopy

(PLM), verify the asbestos content by point

counting using PLM.

Fugitive source means any source of emis-

sions not controlled by an air pollution control

device.

Glove bag means a sealed compartment with

attached inner gloves used for the handling of

asbestos-containing materials. Properly installed

and used, glove bags provide a small work area

enclosure typically used for small-scale asbestos

stripping operations. Information on glove-bag

installation, equipment and supplies, and work

practices is contained in the Occupational Safety

and Health Administration’s (OSHA’s) final rule

on occupational exposure to asbestos (appendix G

to 29 CFR 1926.58).

Grinding means to reduce to powder or small

fragments and includes mechanical chipping or

drilling.

In poor condition means the binding of the

material is losing its integrity as indicated by

peeling, cracking, or crumbling of the material.

Inactive waste disposal site means any dis-

posal site or portion of it where additional asbes-

tos-containing waste material has not been

deposited within the past year.

App. 80

Installation means any building or structure

or any group of buildings or structures at a single

demolition or renovation site that are under the

control of the same owner or operator (or owner

or operator under common control).

Leak-tight means that solids or liquids can-

not escape or spill out. It also means dust-tight.

Malfunction means any sudden and un-

avoidable failure of air pollution control equip-

ment or process equipment or of a process to

operate in a normal or usual manner so that

emissions of asbestos are increased. Failures of

equipment shall not be considered malfunctions

if they are caused in any way by poor mainte-

nance, careless operation, or any other prevent-

able upset conditions, equipment breakdown, or

process failure.

Manufacturing means the combining of

commercial asbestos — or, jn the case of woven

friction products, the combining of textiles con-

taining commercial asbestos — with any other

material(s), including commercial asbestos, and

the processing of this combination into a product.

Chlorine production is considered a part of

manufacturing.

Natural barrier means a natural object that

effectively precludes or deters access. Natural

barriers include physical obstacles such as cliffs,

lakes or other large bodies of water, deep and

wide ravines, and mountains. Remoteness by it-

self is not a natural barrier.

Nonfriable asbestos-containing material

means any material containing more than 1 per-

cent asbestos as determined using the method

specified in appendix E, subpart E, 40 CFR part

App. 81

763, section 1, Polarized Light Microscopy, that,

when dry, cannot be crumbled, pulverized, or re-

duced to powder by hand pressure.

Nonscheduled renovation operation means a

enovation operation necessitated by the routine

failure of equipment, which is expected to occur

within a given period based on past operating

experience, but for which an exact date cannot be

predicted.

Outside air means the air outside buildings

and structures, including, but not limited to, the

air under a bridge or in an open air ferry dock.

Owner or operator of a demolition or renova-

tion activity means any person who owns, leases,

operates, controls, or supervises the facility being

demolished or renovated or any person who

owns, leases, operates, controls, or supervises the

demolition or renovation operation, or both.

[Page 93]

Particulate asbestos material means finely

divided particles of asbestos or material contain-

ing asbestos.

Planned renovation operations means a

renovation operation, or a number of such opera-

tions, in which some RACM will be removed or

stripped within a given period of time and that

can be predicted. Individual nonscheduled opera-

tions are included if a number of such operations

can be predicted to occur during a given period of

time based on operating experience.

Regulated asbestos-containing material

(RACM) means (a) Friable asbestos material, (b)

Category I nonfriable ACM that has become fri-

able, (c) Category I nonfriable ACM that will be

App. 82

or has been subjected to sanding, grinding, cut-

ting, or abrading, or (d) Category II nonfriable

ACM that has a high probability of becoming or

has become crumbled, pulverized, or reduced to

powder by the forces expected to act on the mate-

rial in the course of demolition or renovation op-

erations regulated by this subpart.

Remove means to take out RACM or facility

components that contain or are covered with

RACM from any facility.

Renovation means altering a facility or one

or more facility components in any way, including

the stripping or removal of RACM from a facility

component. Operations in which load-supporting

structural members are wrecked or taken out are

demolitions.

Resilient floor covering means asbestos-

containing floor tile, including asphalt and vinyl

floor tile, and sheet vinyl floor covering contain-

ing more than 1 percent asbestos as determined

using polarized light microscopy according to the

method specified in appendix E, subpart E, 40

CFR part 763, section 1, Polarized Light Micros-

copy.

Roadways means surfaces on which vehicles

travel. This term includes public and private

highways, roads, streets, parking areas, and

driveways.

Strip means to take off RACM from any part

of a facility or facility components.

Structural member means any load-support-

ing member of a facility, such as beams and load

supporting walls; or any nonload-supporting

App. 83

member, such as ceilings and nonload-supporting

walls.

Visible emissions means any emissions,

which are visually detectable without the aid of

instruments, coming from RACM or asbestos-

containing waste material, or from any asbestos

milling, manufacturing, or fabricating operation.

This does not include condensed, uncombined

water vapor.

Waste generator means any owner or opera-

tor of a source covered by this subpart whose act

or process produces asbestos-containing waste

material.

Waste shipment record means the shipping

document, required to be originated and signed

by the waste generator, used to track and sub-

stantiate the disposition of asbestos-containing

waste material.

Working day means Monday through Friday

and includes holidays that fall on any of the days

Monday through Friday.

[49 FR 13661, Apr. 5, 1984; 49 FR 25453, June

21, 1984, as amended by 55 FR 48414, Nov. 20,

1990; 56 FR 1669, Jan. 16, 1991; 60 FR 31920,

June 19, 1995]

10. Title 40, Code of Federal Regulations, Section 61.145

provides:

Standard for demolition and renovation.

(a) Applicability. To determine which require-

ments of paragraphs (a), (b), and (c) of this sec-

tion apply to the owner or operator of a

demolition or renovation activity and prior to the

commencement of the demolition or renovation,

App. 84

thoroughly inspect the affected facility or part of

the facility where the demolition or renovation

operation will occur for the presence of asbestos,

including Category I and Category II nonfriable

ACM. The requirements of paragraphs (b) and (c)

of this section apply to each owner or operator of

a demolition or renovation activity, including the

removal of RACM as follows:

(1) In a facility being demol

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