# Petition for Writ of Certiorari — Ho v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1253%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 539 U.S. 914 ## Text 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 STOLE GLARE ERD NT RA ie Psi te so “4 % & 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1253%3A1. Public record. Not legal advice.