Petition for Writ of Certiorari — W.R. Grace & Co. v. United States (No. 07-1287)
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OFFICE OF THE CLERK
No.
IN THE
Supreme Court of the United States
W.R. GRACE & Co.,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
LAURENCE A. URGENSON
CHRISTOPHER LANDAU, P.C.
Counsel of Record
TYLER D. MACE
MICHAEL D. SHUMSKY
KIRKLAND & ELLIS LLP
655 Fifteenth St., N.W.
Washington, DC 20005
(202) 879-5000
April 14, 2008
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
QUESTION PRESENTED
Whether the Clean Air Act’s criminal provision
prohibits the release of substances not covered by the
Act’s civil provision, where the statute defines the
substances covered by the criminal provision by
cross-reference to the substances covered by the civil
provision.
li
CORPORATE DISCLOSURE STATEMENT
Pursuant to this Court’s Rule 29.6, petitioner
W.R. Grace & Co. hereby certifies that it has no
parent corporation, and that no publicly held
corporation owns 10% or more of its stock.
ili
TABLE OF CONTENTS
Page
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PERTINENT STATUTES AND REGULATIONS ..... 4
STATEMENT OF THE CASE. ..........cccccsccsscsectescessocces 6
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B. a TT a ae 7
REASON FOR GRANTING THE WRIT.................... 9
The Ninth Circuit Erred By Holding That The
Criminal Provision of the Clean Air Act Applies To
Alleged Pollutants Not Covered By The Cross-
Referenced Civil Provisions. ....0ccccseccccecveccvcccrsvcecssescscess 9
A. In Light Of The Statutory Cross-
Reierence, The Clean Air Act’s Criminal
Provision Covers The Same Pollutants
As The Act’s Civil Provision. ....................000.000- 9
B. By Decoupling The Clean Air Act’s Civil
And Criminal Provisions, The Ninth
Circuit Leaves The Scope Of The
Criminal Provision Indeterminate And
Potentially Boundless asi ioe kid caeobaagbceubieieicites 15
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APPENDIX CONTENTS
Ninth Circuit Opinion,
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Ninth Circuit Order Denying Petition for
Rehearing En Banc,
eo. scdivuae eneuwtbdus ceva vaenboseaceuk 43a
District Court Order,
August 8, 2006......... EMER cen ane ee NORE oN ee ee 45a
Vv
TABLE OF AUTHORITIES
Cases
Adamo Wrecking Co. v. United States,
434 U.S. 275 (1978)
Carter v. Carter Coal Co.,
298 U.S. 238 (1936)
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984)
In re Winship,
397 U.S. 358 (1970)
McBoyle v. United States, |
283 U.S. 25 (1931)
National Lime Ass’n v. EPA,
233 F.3d 625 (D.C. Cir. 2000)
New Jersey v. EPA,
517 F.3d 574 (D.C. Cir. 2008)
Ortiz v. Fibreboard Corp.,
ree Sin e1008)...............................---.. 21
TVA v. Hill,
437 U.S. 153 (1978)
United States v. Lanier,
520 U.S. 259 (1997)
Statutes and Kegulations
15 U.S.C. § 2642(3)
16 C.F.R. § 1304.3(b)
18 U.S.C. § 3731
28 U.S.C. § 1254(1)
29 C.F.R. § 1910.1001(b)
30 C.F.R. § 71.702(a)
38 Fed. Reg. 8820 (April 6, 1973)
40 C.F.R. § 61.141
40 C.F.R. § 61.51
40 C.F.R. § 63.1196
40 C.F.R. § 63.341
40 C.F.R. § 92.2
42 U.S.C. § 7412
42 U.S.C. § 7412(b)
42 U.S.C. § 7412(b)(1)
42 U.S.C. § 7412(b)(2)
42 U.S.C. § 7413(c)(5)(A)
Other Authorities
Carroll, Lewis,
The Complete Works of Lewis Carroll (1939) 16
INTRODUCTION
As the scope of the Nation’s environmental laws
has expanded over the past generation, so too has
the potential for governmental overreaching and
abuse. In this case, that potential has become a
reality. The Government here is trying to convict
defendants of violating the Clean Air Act by
releasing substances that the Government itself has
excluded from the list of substances covered by the
Act. This—under the Act’s plain terms, not to
mention fundamental norms of fair notice—the
Government may not do.
The Ninth Circuit held below, however, that the
substances covered by the Act’s criminal provision
are not limited to the substances covered by the Act’s
civil provision. According to the Ninth Circuit,
“Congress validly may create multiple enforcement
mechanisms that each draw on different definitions
for the same term or phrase.” App. 18a. The
problem with that approach is that the Clean Air
Act’s civil and criminal provisions do not “draw on
different definitions for the same term or phrase.”
Id. To the contrary, the Act’s civil and criminal
provisions draw on the same list of. pollutants: the
criminal provision defines the pollutants within its
reach by cross-reference to the list of pollutants
subject to civil regulation by the Environmental
‘Protection Agency (EPA). It necessarily follows, as a
matter of law and logic, that the civil and criminal
provisions cover the same pollutants. That approach
makes sense: if a particular substance is not even
subject to civil regulation under the Clean Air Act,
the Government should not be sending people to
prison for releasing it.
2
This case highlights the problem in the starkest
of terms: the Ninth Circuit held that the Government
may convict defendants of violating the Clean Air Act
by releasing “Asbestos” consisting of the minerals
winchite and richterite even though the EPA has
long defined “Asbestos” under tae Act in a way that
excludes those two minerals. Indeed, the Ninth
Circuit not only held that the EPA’s definition of
“Asbestos” under the Clean Air Act does not apply in
the criminal context, but proceeded to define that
term more broadly than any agency of the Federal
Government has ever done, and indeed so broadly as
to sweep in such everyday materials as talc and
fiberglass. There is surely a problem afoot if the
definition of “Asbestos” under the Clean Air Act is so
open-ended that the Government can send people to
prison for up to 15 years for releasing talc into the
ambient air.
But the problem is by no means limited to
“Asbestos”; rather, it extends to any pollutant listed
in the Clean Air Act that (like “Asbestos”) has been
defined by the EPA. To the extent that the EPA has
defined the pollutants on the statutory list,
individuals and businesses are entitled to rely on
those definitions, and to know that such reliance will
not later subject them to civil liability—much less
criminal prosecution.
And the Ninth Circuit only exacerbated the
problem by defending its broad definition of
“Asbestos” on the ground that the particular
defendants in this case “are all familiar with
asbestos.” App. 17a. Putting aside the fact that
there is absolutely no record support for that
assertion—indeed, there is no record in this criminal
3
case other than the allegations in the indictment—
the meaning of a criminal statute is not determined
by reference to a particular defendant’s identity or
subjective knowledge. By focusing on the alleged
(albeit unproven) knowledge of these particular
defendants, the Ninth Circuit essentially
transformed the rule of lenity into a rule of severity.
At bottom, by decoupling the substances covered
by the Clean Air Act’s criminal provision from the
substances covered by the Act’s civil provision, the
Ninth Circuit left she scope of the criminal provision
indeterminate and _ potentially boundless, and
deprived individuals and businesses of fair warning
about what substances they may, and may not,
release under the Act. Given the importance of the
Clean Air Act in the framework of the Nation’s
environmental laws, and the unprecedented and far-
reaching nature of the decision below, this Court’s
review is warranted.
OPINIONS BELOW
The Ninth Circuit’s decision is reported at 504
F.3d 745 and reprinted in the Appendix (“App.”) at 1-
42a. The district court’s relevant order is reported at
455 F. Supp. 2d 1122, and reprinted at App. 45-65a.
JURISDICTION
The Ninth Circuit rendered its decision on
September 20, 2007, App. la, and denied timely
petitions for rehearing en banc on December 5, 2U07,
App. 43a. On February 14, 2008, Justice Kennedy
granted petitioners’ application to extend the time
within which to petition for certiorari until April 14,
2008. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
4
PERTINENT STATUTES AND REGULATIONS
The criminal provision of the Clean Air Act
provides in relevant part:
Any person who knowingly releases into the
ambient air any hazardous air pollutant
listed pursuant to section 7412 of this title ...
and who knows at the time that he thereby
places another person in imminent danger of
death or serious bodily injury shall, upon
conviction, be punished by a fine under Title
18, or by imprisonment of not more than 15
years, or both. Any person committing such
violation which is an organization shall, upon
conviction under this paragraph, be subject
to a fine of not more than $1,000,000 for each
violation.
42 U.S.C. § 7413(c)(5){A).
The civil provision of the Clean Air Act provides
in relevant part:
(b) List of pollutants
(1) Initial list
The Congress establishes for purposes of this
section a list of hazardous air pollutants as
follows:
CAS number Chemical name
* * *
1332214 Asbestos
* * *
(2) Revision of the list
The Administrator shall periodically review
the list established by this subsection and
5
publish the results thereof and, where
appropriate, revise such list by rule, adding
pollutants which present, or may present,
through inhalation or other routes of
exposure, a threat of adverse human health
effects ... or adverse environmental effects
* * *
(c) 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 categories and
subcategories of major sources and area
sources (listed under paragraph (3)) of the air
pollutants listed pursuant to subsection (b) of
this section. ...
(2) Requirement for emissions standards
For the categories and subcategories the
Administrator lists, the Administrator shall
establish emissions standards under
subsection (d) of this section, according to the
schedule in this subsection and subsection (e)
of this section.
(3) Area sources
The Administrator shall list under this
subsection each category or subcategory of
area sources which the Administrator finds
presents a threat of adverse effects to human
6
health or the environment (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
categories 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 areas are subject to
regulation under this _ section. Such
regulations shall be promulgated ‘not later
than 10 years after November 15, 1990.
42 U.S.C. § 7412.
The EPA has defined “Asbestos” within the
meaning of § 7412(b) as follows:
Asbestos means the asbestiform varieties of
serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite,
anthophyllite, and actinolite-tremolite.
40 C.F.R. § 61.141.
STATEMENT OF THE CASE
A. Background
This case arises out of long-ceased vermiculite
mining activities conducted by petitioner W.R. Grace
& Co. in and around Libby, a small town in
northwestern Montana. App. 3a. By itself,
vermiculite is not hazardous; it is a form of mica that
expands when heated, and thus has a variety of
7
commercial uses. ‘Like most mineral ores, however,
vermiculite ore often contains other minerals not
wanted in the final, commercial product. Among the
other minerals found in the vermiculite ore mined
near Libby are the amphibole minerals tremolite,
winchite, and richterite. App. 46a. Tremolite (which
accounts for approximately 5% of the amphibole
impurities in Libby vermiculite) is a form of
“Asbestos” under EPA regulations, see 40 C.F.R.
§ 61.141; winchite and richterite (which account for
approximately 95% of the amphibole impurities in
Libby vermiculite) are not. App. 14a, 46-47a.
B. Proceedings Below
In February 2005, a federal grand jury in the
District of Montana returned a 10-count indictment
charging Grace and seven of its former employees
with crimes in connection with the mining,
processing, and marketing of Libby vermiculite.
App. 4a. Among other things, the original
indictment (and a superseding indictment) charged
defendants with knowingly endangering persons in
and around Libby by releasing “Asbestos” into the
ambient air, and conspiring not only to endanger
people but also to defraud the Government with
respect to the relevant health risks. App. 4-7a.
In August 2006, the district court (Molloy, C.J.)
granted defendants’ motion in limine to exclude
evidence based on the presence of fibers from.
winchite and richterite, given that these two
minerals are not encompassed by the EPA’s
regulation defining “Asbestos” under the Clean Air
Act. App. 45-65a. As the court explained, the Clean
Air Act’s criminal provision cross-references the list
of “hazardous air pollutants” regulated by the EPA,
8
and thus does not apply to pollutants that are not on
that lst. App. 54-638a. Because Ҥ 7413(c)(5)(A)
relies upon a civil regulatory statute (§ 7412(b)(1))
for its listing of hazardous air pollutantsj(,] ... [t]he
conundrum the government must explain is why
reliance on a civil statute is permissible but reliance
on a civil regulation is not.” App. 56a.
‘The Government appealed that order (as well as
several other pretrial orders) under 18 U.S.C. § 3731,
and (as relevant here) the Ninth Circuit reversed.
App. 1-42a. In particular, the Ninth Circuit held
that—notwithstanding the statutory cross-
reference—the criminal provision of the Clean Air
Act applies to alleged pollutants (like winchite and
richterite) that are not covered by the civil provision.
App. 13-20a. According to the Ninth Circuit, “the
Clean Air Act creates multiple enforcement
mechanisms: a civil regulatory structure and a
[criminal] direct enforcement mechanism,” and “the
directly enforceable [criminal] provision of the
statute ... pulls its definitions from a separate
provision than does the regulatory provision.” App.
19a. Thus, although the EPA has defined “Asbestos”
under the Clean Air Act in a way that concededly
does not include either winchite or richterite, see 40
C.F.R. § 61.141, the Ninth Circuit held as a matter of
law that defendants could be tried, convicted, and
fined and/or sent to prison for up to 15 years for
releasing those minerals. App. 19a (“[T]he district
court improperly limited the term ‘asbestos’ to the
six minerals covered by the civil regulations.”).
This petition follows.
9
REASON FOR GRANTING THE WRIT
The Ninth Circuit Erred By Holding That The
Criminal Provision of the Clean Air Act
Applies To Alleged Pollutants Not Covered
By The Cross-Referenced Civil Provision.
The Ninth Circuit in this case vastly expanded
the reach of the criminal provision of the Clean Air
Act by holding that the provision applies to releases
of alleged pollutants not covered by the Act’s civil
provision. According to the Ninth Circuit, “the Clean
Air Act creates multiple enforcement mechanisms: a
civil regulatory structure and a [criminal] direct
enforcement mechanism,” and the criminal provision
“pulls its definitions from a separate provision than
does the [civil] provision.” App. 19a. That holding is
both radical and indefensible as a matter of law and
policy, and warrants this Court’s review.
A. In Light Of The Statutory Cross-
Reference, The Clean Air Act’s Criminal
Provision Covers The Same Pollutants As
The Act’s Civil Provision.
The Ninth Circuit asserted that the “civil
regulatory system draws its definition[s]” from the
EPA’s regulations, whereas the criminal system
draws its definitions “from 42 U.S.C. § 7412(b).”
App. 19a. But § 7412(b) is not a list of pollutants
uniquely within the reach of the criminal provision;
rather, it is the very list of pollutants within the
reach of the civil provision (and brought within the
reach of the criminal provision by virtue of the
statutory cross-reference in the criminal provision,
§ 7413(c)(5)(A)). See, e.g., New Jersey v. EPA, 517
F.3d 574, 578 (D.C. Cir. 2008) (explaining that
§ 7412(b) “require[s] EPA to regulate more than one
10
hundred _ specific [hazardous air _ pollutants].”);
National Lime Ass’n v. EPA, 233 F.3d 625, 633-34
(D.C. Cir. 2000) (same). The EPA’s reguiations, in
other words, simply flesh out the definitions of the
pollutants listed in § 7412(b). Thus, the Ninth
Circuit’s assertion that the “civil regulatory system
draws its definition[s]” from the EPA’s regulations,
whereas the criminal system draws its definitions
“from 42 U.S.C. § 7412(b),” App. 19a, fundamentally
misperceives the statutory structure. Because the
criminal provision defines the pollutants within its
reach by cross-reference to the pollutants listed in
the civil provision, both provisions by definition
apply to the same pollutants.
The Ninth Circuit thus missed the point by
insisting that “Congress validly may create multiple
enforcement mechanisms that each draw on different
definitions for the same term or phrase.” App. 18a.
Here, Congress did not “draw on different definitions
for the same term or phrase.” Jd. To the contrary,
Congress expressly defined the pollutants within the
reach of the criminal provision by cross-reference to
the pollutants within the reach of the civil provision.
If a given substance is not within the reach of the
Clean Air Act’s civil provision, then it is not within
the reach of the Act’s criminal provision.
Ironically, thus, in purporting to “defer to
Congress’s decision to create two enforcement
structures,” App. 19a, the Ninth Circuit actually
overrode Congress’ decision to apply both those
structures to the same pollutants. The district court
here did not “conflatfe]” two distinct lists of
pollutants, id., but simply recognized that Congress
enacted a single list of pollutants in the Clean Air
11
Act’s civil provision, § 7412(b), and then cross-
referenced that list in the Act’s criminal provision,
§ 7413(c)(5)(A). If the pollutants on that statutory
list are to be changed, as the Act makes clear, it
must be through agency rulemaking under the
Administrative Procedure Act. See 42 U.S.C.
§ 7412(b)(2); see also National Lime, 233 F.3d at 628.
By declaring that the Clean Air Act “creates
multiple enforcement mechanisms,” App. 19a, in
short, the Ninth Circuit substituted its own
definition of a pollutant listed in § 7412(b) for the
EPA’s definition of that very same pollutant under
that very same provision. Thus, the court declared
that “[i]Jt is well known that asbestos has a common
meaning; it is a fibrous, non-combustible compound
that can be composed of several substances, typically
including magnesium.” App. 16-17a. But that
allegedly “well known” definition—/for which the
Ninth Circuit provided no citation whatsoever—is far
broader than the definition adopted by the EPA
under § 7412(b), which does not include either
winchite or richterite, see 40 C.F.R. § 61.141
(defining “Asbestos” as “the asbestiform varieties of
[1] serpentite (chrysotile), [2] riebeckite (crocidolite),
[3] cummingtonite-grunerite, [4] anthophyllite, and
[5] actinolite- [6] tremolite”).
Similarly, the Ninth Circuit’s allegedly “well
known” definition of “Asbestos” is far broader than
the definition adopted by Congress itself in the’
Asbestos siazard and Emergency Response Act of
1986, which (like the EPA’s definition) also excludes
both winchite and richterite. See 15 U.S.C. § 2642(3)
(“The term ‘asbestos’ means asbestiform varieties
of—(A) chrysotile (serpentine), (B) crocidolite
12
(riebeckite), (C) amosite (cummingtonite-grunerite),
(D) anthophyllite, (E) tremolite, or (F) actinolite.”).
And the Ninth Circuit’s allegedly “well known”
definition is far broader than the definitions adopted
by any other federal administrative agency, none of
which defines “Asbestos” to include either winchite
or richterite. See, eg., 29 C.F.R. § 1910.1001(b)
(Occupational Safety and Health Administration)
(“Asbestos includes chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite
asbestos, and any of these minerals that have been
chemically treated and/or altered.”); 30 C.F.R.
§ 71.702(a) (Mine Safety and Health Administration)
(“As used in this subpart, the term asbestos means
chrysotile, amosite, crocidolite, | anthophylite
asbestos, tremolite asbestos, and actinolite asbestos
but does not include nonfibrous or nonasbestiform
minerals.”); 16 C.F.R. §1304.3(b) (Consumer
Products Safety Commission) (“Asbestos means a
group of mineral fibers composed of hydrated
silicates, oxygen, hydrogen, and other elements such
as sodium, iron, magnesium, and calcium in diverse
combinations and are: Amosite, chrysotile,
crocidolite, anthophyllite asbestos, actinolite
asbestos, and tremolite asbestos.”). Indeed, the
Ninth Circuit’s definition of “Asbestos” is so broad
that it is not even limited to minerals, and sweeps in
everyday substances like tale and fiberglass, both of
which are “fibrous, non-combustible compound{s]
that can be composed of several substances, typically
including magnesium.” App. 16-17a. It is no
accident that neither Congress nor the EPA nor any
other federal agency has ever defined “Asbestos”
nearly as broadly as has the Ninth Circuit.
13
While courts are good at many things, defining
hazardous air pollutants is not one of them. And |
that is especially true where, as here, Congress has
delegated authority to an administrative agency to
define hazardous air pollutants in the first instance.
Needless to say, courts are not free to substitute
their own interpretation of statutory language for an
interpretation adopted by the agency to which
Congress duly delegated authority to administer the
statute. See generally Chevron, U.S.A., Inc. v.
NRDC, Inc., 467 U.S. 837, 843-44 (1984). That point
is particularly compelling here, because the Ninth
Circuit in no way suggested that the EPA’s definition
of “Asbestos” under § 7412(b) is invalid. To the
contrary, the Ninth Circuit acknowledged that the
EPA’s definition is entirely appropriate in the civil
context. See App. 19a. The Ninth Circuit simply
held that the EPA’s definition has no bearing in the
criminal context, see id., and thereby allowed the
Government to prosecute defendants under the
Clean Air Act for releasing minerals that are not
“Asbestos” under § 7412(b) as defined by the EPA,
notwithstanding the explicit statutory cross-
reference.
Indeed, not even the Government argued below
that the Ninth Circuit was free to devise its own
definition of “Asbestos” within the meaning of
§ 7412(b) as 2 matter of law. Rather, the
Government argued that the “statutory definition” of
the pollutants listed in § 7412(b) is the definition
provided at any given moment in time by the
Chemical Abstract Service (CAS), a private entity, in
a private database that can be accessed only by paid
subscribers. That is so, the Government asserted,
because the pollutants listed in § 7412(b) are
14
identified in the statute by reference to their CAS
numbers. Under this view, the definition of the
pollutants listed in the statute changes whenever
CAS changes its definition of a particular substance
on the statutory list.
Putting aside the fundamental anomaly (and
dubious constitutionality) of supposing that Congress
delegated the authority to define a statutory term to
an unaccountable private party to change at will, see,
e.g., Carter v. Carter Coal Co., 298 U.S. 238, 311-12
(1936), the Government cannot have it both ways. If
indeed the CAS numbers in the statute are more
than just a convenient shorthand to identify
particular substances, but instead provide binding
“statutory definitions” of the pollutants listed in
§ 7412(b), then the EPA has no authority to deviate
from those definitions (as it has done for “Asbestos”
and other listed pollutants). Because’ the
Government has never suggested that the EPA’s
longstanding regulatory definition of “Asbestos”
under § 7412(b) is invalid, its approach cannot be
right. Either the EPA is bound by the CAS
definitions of the pollutants listed in § 7412(b) or it is
not, and if it is not, then its reasonable definitions of
those pollutants are as valid in the criminal context
as in the civil context. By holding that the criminal
provision applies to alleged pollutants concededly not
covered by the civil provision, the Ninth Circuit
destroyed the clear statutory congruence established
by the cross-reference in § 7413(c)(5)(A).
15
B. By Decoupling The Clean Air Act’s Civil
And Criminal Provisions, The Ninth
Circuit Leaves The Scope Of The
Criminal Provision Indeterminate And
Potentially Boundless.
The Ninth Circuit’s decision not only flouts the
Clean Air Act’s plain language, but also leaves the
scope of the Act’s criminal provision indeterminate
and potentially boundless. This case perfectly
illustrates the point. As noted above, the EPA
defines “Asbestos” within the meaning of § 7412(b) in
a way that does not include the minerals winchite
and richterite. See 40 C.F.R. §61.141. That
definition has been on the books, essentially
unchanged, for the past thirty-five years. See 38
Fed. Reg. 8820, 8829 (April 6, 1973). Indeed, that
definition was on the books at the time of the 1990
amendments that added the criminal provision to the
Clean Air Act (and the cross-reference to the list of
pollutants subject to civil regulation). Nonetheless,
the Ninth Circuit has now held that the Government
may prosecute defendants for releasing “Asbestos”
within the meaning of § 7412(b) consisting of
winchite and richterite. Simply to state that holding
is to refute it.
A basic tenet of our criminal law, after all, is that
a defendant must have “fair warning” of the conduct
that may result in criminal liability. See, e.g., United
States v. Lanier, 520 U.S. 259, 266 (1997). Needless
to say, a defendant cannot have had “fair warning”
that winchite and richterite are “Asbestos” within
the meaning of § 7412(b) when (as the district court
noted) neither winchite nor richterite falls within the
definition of “asbestos” as that/term “has historically
16
been used by every governmental regulatory agency
to address. the issue,” App. 45a—including the EPA,
which has specifically defined “Asbestos” within the
meaning of the Clean Air Act. Given that the EPA
has specified what minerals are, and are not,
encompassed by the term “Asbestos” in § 7412(b), the
Government cannot’ possibly establish that
individuals and businesses had “fair warning” that
other minerals, like winchite and richterite, are
encompassed by that term. The American criminal
justice system is not Wonderland, where a prosecutor
(like Humpty Dumpty) can choose a word to mean
6665
just what J choose-it to mean—no more and no
less.” TVA v. Hill, 487 U.S. 153, 173 n.18 (1978)
(quoting Lewis Carroll, Through the Looking Glass,
in The Complete Works of Lewis Carroll 196 (1939))
(emphasis in original).
Under these circumstances, the Ninth Circuit had
no basis for holding as a matter of law that winchite
and richterite are “Asbestos” for purposes of the
Clean Air Act’s criminal provision but not its civil
provision. Indeed, not even the Government took
that position below; instead, the Government argued
that whether winchite and richterite are “Asbestos”
within the meaning of § 7412(b) is a matter for a jury
to determine based on expert scientific testimony.
As the district court explained, “[a] defendant on
trial for releasing ‘asbestos’ would be apprehensive
about the prospect of his fate turning on which
expert the jury found most persuasive in describing
which minerals fall within the scope of the criminal
offense.” App. 55a.
The Ninth Circuit insisted, however, that a broad
definition of “Asbestos” within the meaning of
17
§ 7412(b) is appropriate because the particular
defendants in this case had “actual notice” of the
hazards posed by winchite and richterite. App. 17a.
According to the Ninth Circuit, “[djefendants are an
industrial chemical’ company and seven of its top
executives,” who “are all familiar with asbestos,” and
“(s]ince at least 1976, ... have known of the health
risks posed by the asbestiform minerals in their
products.” Id.; see also id. (“It is clear that
defendants knew or should have known that their
mining, milling, and distribution activities risked the
release of asbestos into the ambient air.”).
As an initial matter, the Ninth Circuit had no
basis whatsoever for making these assertions with
respect to defendants’ knowledge. There is no
factual record in this case; there is only an
indictment. The indictment consists of allegations,
and in our legal system, defendants—no matter how
unpopular—are presumed innocent, not guilty, of the
allegations in the indictment unless and until they
are convicted by a jury after the Government proves
those allegations beyond a reasonable doubt. See,
e.g., In re Winship, 397 U.S. 358, 364 (1970). The
Ninth Circuit never explained how any of the
defendants here possibly could have had “actual
notice” that both winchite and richterite are
“Asbestos” under § 7412(b) when the EPA itself
excludes both winchite and richterite from the
definition of “Asbestos” under § 7412(b).
In any event, a particular defendant’s knowledge
is irrelevant to a statute’s meaning. A statute means
what it means; a basic tenet of the rule of law is that
the meaning of the law does not change depending on
the identity of the person to whom the law is applied.
18
Thus, either winchite and richterite are “Asbestos”
within the meaning of § 7412(b) or they are not.
Those minerals do not either become, or cease to be,
“Asbestos” based on the identity of any particular
defendant charged with releasing those minerals in
any particular case. The criminal provision of the
Clean Air Act proscribes the knowing release of the
specific pollutants listed in §7412(b), not the
knowing release of any substance that a particular
defendant knows or has reason to know is hazardous.
See 42 U.S.C. § 7413(c)(5)(A).
The Ninth Circuit thus turned the law upside
down by declaring that “the district court erred ... in
invoking the rule of lenity” in part because of
“defendants’ knowledge of the industrial chemicals
field.” App. 17a. The rule of lenity “ensures fair
warning by so resolving ambiguity in a criminal
statute as to apply it only to conduct clearly covered.”
Lanier, 520 U.S. at 266; see also Adamo Wrecking Co.
v. United States, 434 U.S. 275, 284-85 (1978)
(applying the rule of lenity in a criminal prosecution
under the Clean Air Act). Contrary to the Ninth
Circuit’s suggestion, application of the rule of lenity
does not turn on any particular defendant’s
subjective knowledge. Rather, application of the rule
of lenity turns on whether a statute, as an objective
matter, provides “fair warning ... in language that
the common world will understand, of what the law
intends to do if a certain line is passed.” Lanier, 520
U.S. at 266 (quoting McBoyle v. United States, 283
U.S. 25, 27 (1931) (emphasis added)). If a statute
does not provide “fair warning” to the “common
world,” then the rule of lenity applies regardless of
any particular defendant’s identity or subjective
knowledge.
19
The practical implications of the Ninth Circuit’s
decision are staggering. The Clean Air Act by its
plain terms applies only to the pollutants listed in
§ 7412(b). To the extent that the EPA has validly
defined those pollutants (which is not contested here
with respect to the EPA’s definition of “Asbestos”),
individuals and businesses are entitled to rely on
those definitions, and arrange their conduct
accordingly. By holding that the EPA’s definitions of
the pollutants listed in § 7412(b) apply only in the
civil context, as opposed to the criminal context, the
Ninth Circuit has_ stripped individuals and
businesses of any ability to arrange their conduct by
reference to the definition established by the agency
to which Congress expressly delegated authority to
administer § 7412(b).
If anything, the Government’s actions in this very
case only highlight the problem. From the
beginning, the Government was aware that the bulk
of amphibole impurities in Libby vermiculite
consisted of winchite and richterite, which do not fall
within the EPA’s definition of “Asbestos” under
§ 7412(b). See, e.g., CA9 Supp. Excerpts of R. 268-71;
see also id. at 278 (Testimony of Kathleen Rest,
Acting Director of the National Institute for
Occupational Safety & Health, Centers for Disease
Control & Prevention, to U.S. Senate Committee on
Health, Education, Labor, & Pensions) (7/31/01) (“A
much higher proportion—80 to 90%—of the fiber
contaminant in [Libby] vermiculite has _ been
characterized as several other similar fibers that are
not currently regulated as asbestos, such as richterite
and winchite.”) (emphasis added). Although analysts
working with the EPA initially distinguished those
two minerals from tremolite (which does fall within
20
the agency’s definition of “Asbestos,” but accounts for
only about 5% of the amphibole impurities in Libby
veruuculitée), the agency imstrwoted thom to Jewry
winchite, richterite, and tremolite together under the
term “Libby-type amphibole” so that no one would
“be able to differentiate among them.” Id. at 268-69.
As an official from the Agency for Toxic Substances
and Disease Registry made clear in recounting a
conversation with an official from the EPA, this was
done precisely to thwart the argument that the
substances at issue here are not “Asbestos” within
the meaning of the Clean Air Act: “EPA is now
calling the Libby stuff ‘fibrous amphibole or Libby
amphibole.” ... My understanding of this issues [sic]
is that labeling the Libby materials as tremolite
asbestos then leaves the [defendants’] lawyers open
to say that the material is not regulated. If we call it
asbestos then the lawyers still can say it is not one of
the 6 regulated asbestos types. So calling the
material another name and saying that it is
hazardous to health gets around that loophole in the
law.” Jd. at 271. Of course, the EPA’s definition of
the statutory term “Asbestos” in § 7412(b) is not a
“loophole”; it is what gives individuals and
businesses fair notice about what substances are,
and are not, encompassed by that term.
As anyone familiar with the American legal
landscape over the past generation can attest, the
proper definition of “Asbestos,” in and of itself,
presents an issue of the first importance. For many
years, asbestos was widely used across the Nation.
The resulting massive exposure, as this Court has
recognized, has bedeviled our legal system, resulting
in an “elephantine mass of asbestos cases [that]
defies customary judicial administration.” Ortiz uv.
21
Fibreboard Corp., 527 U.S. 815, 821 (1999). In light
of this ongoing situation (which has driven petitioner
Grace as well as many other companies into
bankruptcy), it is probably an understatement to say
that it is important for individuals and businesses to
know what “Asbestos” means within the meaning of
the Clean Air Act, and to know that they can rely on
the EPA’s definition of that statutory term in both
the civil and criminal contexts.
And even putting aside the singular importance
of asbestos, the issue here is by no means limited to
asbestos. Rather, the issue presented here applies to
any pollutant listed in § 7412(b) that has been
defined by the EPA. See, eg., 40 C.F.R. § 63.341
(“Chromium compounds”); 40 C.F.R. § 63.1196
(“Formaldehyde”); 40 C.F.R. § 61.51 (“Mercury
compounds’); 40 C.F.R. § 92.2 (“Methanol”). To the
extent that the EPA has defined these statutory
terms, individuals and businesses are entitled to rely
on those definitions, and to know that such reliance
will not later subject them to civil liability—much
less criminal prosecution.
The bottom line is that nothing in the Clean Air
Act remotely suggests that the Government may
prosecute individuals or businesses for releasing
substances that the EPA has excluded from its
definitions of pollutants listed in § 7412(b). To the
contrary, the cross-reference to that list in the Act’s
criminal provision, § 7413(c)(5)(A), affirmatively
establishes a congruence between the Act’s civil and
criminal provisions. By decoupling those provisions,
the Ninth Circuit thus undermined the entire
statutory structure, fundamentally destabilized an
important area of the law, and exposed individuals
22
and businesses to indeterminate and potentially
boundless criminal liability.
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for writ of certiorari.
April 14, 2008 Respectfully submitted,
LAURENCE A. URGENSON
CHRISTOPHER LANDAU, P.C.
_ Counsel of Record
TYLER D. MACE
MICHAEL D. SHUMSKY
KIRKLAND & ELLIS LLP
655 Fifteenth St., N.W.
Washington, DC 20005
(202) 879-5009
APPENDIX
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appeliant,
Vv.
No. 06-30472
W.R. GRACE; ALAN R. STRINGER; D.C. No. CR-05-00007-DWM
HENRY A. ESCHENBACH; JACK W.
WOLTER; J. MCCAIG; ROBERT J.
BETTACCHI; O. MARIO FAVORITO;
ROBERT C. WALSH,
Defendants-Appellees.
ed ee ee ee
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Vv.
No. 06-30524
W.R. GRACE; ALAN R. STRINGER; D.C. No. CR-05-00007-DWM
HENRY A. ESCHENBACH; JACK W.
WOLTER; WILLIAM MCCAIG;
ROBERT J. BETTACCHI; O. MARIO
FAVORITO; ROBERT C. WALSH,
Defendants-Appellees.
OPINION
Nes Nee “ee Nee? Nee Ne Nee Ne ee ee ee ee”
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
June 4, 2007 — Seattle, Washington
Filed September 20, 2007
Before: Betty B. Fletcher, Harry Pregerson, and
Warren J. Ferguson, Circuit Judges.
Opinion by Judge B. Fletcher
2a.
COUNSEL
Todd S. Aagaard, Dept. of Justice Environment
and Natural Resources Division, Washington, D.C.,
and Kris A. McLean, Assistant United States
Attorney, Missoula, Montana, argued for the
government. With them on the briefs were Sue
Ellen Wooldridge, Assistant Attorney General;
William W. Mercer, United States Attorney; Eric E.
Nelson, Linda Kato, Special Assistant United States
Attorneys; Kevin M. Cassidy, and Allen M.
Brabender, Attorneys, United States Dept. of Justice
Environment and Natural Resources Division.
Christopher Landau, Washington, D.C., argued
for defendant-appellee W.R. Grace & Co. With him
. on the brief were Laurence A. Urgenso: , Tyler D.
Mace, Michael D. Shumsky, Washington, D.C.;
Stephen R. Brown, Charles E. McNeil, Kathleen L.
DeSoto, Missoula, Montana, for defendant-appellee
W.R. Grace & Co.; Angelo J. Calfo, Seattle,
Washington; Michael F. Bailey, Missoula, Montana,
for defendant-appellee Alan R. Stringer; Ronald F.
Waterman, Helena, Montana; David S. Krakoff,
Gary A. Winters, Washington, D.C., for defendant-
appellee Henry A. Eschenbach; Mike Milodragovich,
W. Adam ODuerk, Missoula, Montana; Mark
Holscher, Jeremy Maltby, Los Angeles, California,
for defendant-appellee Jack W. Wolter; Palmer
Hoovestal, Helena, Montana, Elizabeth Van Doren
Gray, Columbia, South Carolina, William A. Coates,
Greenville, South Carolina, for defendant-appellee
William J. McCaig; Brian Gallik, Bozeman,
Montana, Thomas C. Frongillo, Boston,
Massachusetts, Vernon S. Broderick, New York,
New York, for defendant-appellee Robert J.
Bettacchi; C.J. Johnson, Missoula, Montana,
3a
Stephen <A. Jonas, Robert Keefe, Boston,
Massachusetts, for defendant-appellee O. Mario
Favorito; Catherine A. Laughner, Aimee M.
Grmoljez, Helena, Montana, Stephen R. Spivack,
’ Washington, D.C., David E. Roth, Birmingham,
Alabama, for defendant-appellee Robert C. Walsh.
OPINION
B. FLETCHER, Circuit Judge:
From 1963 until the early 1990s, W.R. Grace
(“W.R. Grace” or “Grace”) mined and processed a rich
supply of vermiculite ore outside of Libby, Montana.
In response to ongoing serious health problems
suffered by Libby residents, the government
obtained an indictment charging W.R. Grace and
seven of its executives (together “Grace”’) with
criminal conduct arising from Grace’s vermiculite
operation in Libby. The superseding indictment
charges defendants-appellees with (1) conspiring
knowingly to release asbestos, a hazardous air
pollutant, into the ambient air, thereby knowingly
placing persons in imminent danger of death or
serious bodily injury in violation of 42 U.S.C.
§ 7413(c)(5)(A) and (2) conspiring to defraud the
United States in violation of 18 U.S.C. § 371. In
addition to the dual-object conspiracy alleged in
Count I, the indictment charged defendants-
appellees with three counts of knowing
endangerment under the Clean Air Act, 42 U.S.C.
§ 7413(c)(5)(A), and four counts of obstruction of
justice in violation of 18 U.S.C. §§ 1505 and 1515(b).
This interlocutory appeal brought by the
government concerns six orders grouped into four
sections: the first order dismissed the knowing
endangerment object of Count I’s conspiracy charge;
the second adopted a particular definition of asbestos
4a
and excluded evidence inconsistent with that
definition; the third denied a motion to exclude
evidence related to an affirmative defense and relied
on an emission standard for asbestos contained in
certain Environmental Protection Agency (“EPA”)
regulations, see, e.g., 40 C.F.R. §§ 61.142-61.149; and
the fourth through sixth orders excluded certain
evidence and expert testimony. In addition, we rule
on defendants-appellees’ motion to strike documents
attached to the government’s reply brief. We have
jurisdiction to hear this appeal pursuant to 18
U.S.C. § 3131, and we reverse in part, affirm in part,
and remand.
I. Dismissal of the Knowing Endangerment
Object
1. Background
In the original indictment, filed February 7, 2005,
the government charged defendants with
participating in a dual-object conspiracy. According
to Count I of the indictment, which details the scope
of the conspiracy, defendants conspired (1) to
knowingly release asbestos, a hazardous air
pollutant, and thus knowingly to endanger both EPA
employees and members of the Libby community in
violation of 42 U.S.C. § 7413(c)(5)(A) (“knowing
endangerment object”); and (2) to defraud the United
States by impairing, impeding, and frustrating
government agency investigations and cleanup
operations in violation of 18 US.C. § 371
(“defrauding object”). On March 20, 2006,
defendants moved to dismiss the knowing
endangerment object of the conspiracy, arguing that
the government had failed to allege an overt act in
furtherance of the alleged conspiracy within the
5a
statute of limitations period. United States v. W.R.
Grace, 434 F. Supp. 2d 879, 883 (D. Mont. 2006).
Defendants’ argument relied primarily on Yates
v. United States, 354 U.S. 298 (1957) (holding that
the statute of limitations must be satisfied as to each
object of the conspiracy when the government
charges a multi-object conspiracy), overruled on
other grounds by Burks v. United States, 437 U.S. 1,
2 (1978). Because the government supposedly had
failed to allege a requisite overt act before the
statute of limitations ran on November 3, 2004,
defendants asserted that the knowing endangerment
object was time-barred.
The government disputed defendants’
characterization of the indictment, claiming that
certain overt acts alleged in the indictment could
support both the fraud object and the knowing
endangerment object of Count I’s conspiracy charge.
Towards this end, the government directed the
district court’s attention to paragraphs 143, 149, and
173-184 of the indictment. W.R. Grace, 434
F. Supp. 2d at 885-87. The paragraphs cited by the
government alleged that defendants had failed to
remove asbestos-contaminated material from sites in
the Libby community, had misled various
individuals regarding current asbestos
contamination, and had failed to disclose the
existence of numerous asbestos-contaminated sites.
What the paragraphs purportedly failed to allege
was that defendants released, or conspired to
release, asbestos during the relevant time period.
Analyzing both the text of the specified
paragraphs and the structure of the indictment, in
which the cited paragraphs were listed under the
sub-heading “Obstruction of EPA’s Superfund Clean-
6a
Up,” the district court concluded that the indictment
“more plausibly suggests a completed operation than
a conspiracy still at work.” Jd. at 887. To the extent
that overt acts were alleged, the district court found
that they were acts of obstruction, not acts of
wrongful endangerment. Jd. Thus, the district court
dismissed as time-barred _—itthe knowing
endangerment object of the Count I conspiracy. Jd.
at 888.
Two weeks after the district court’s first order,
dismissing a _ portion of the indictment, the
government obtained a superseding indictment. The
new indictment was substantially similar to the
original indictment, amending only paragraphs
1731-83, which had been the focus of the district
court’s previous. order. In the _ superseding
indictment, the government changed the section
heading under which the disputed paragraphs had
been listed from “Obstruction of Superfund Clean-
Up” te “Knowing Endangerment of EPA Employees
and the Libby Community and Obstruction of the
EPA’s Superfund Clean-Up.” It also changed
paragraphs 173, 174, 176-80, 182 and 183, by adding
at the end of each original paragraph the phrase,
“thereby concealing the true hazardous nature of the
asbestos contamination, delaying EPA’s
investigation and causing releases of asbestos into
the air in the Libby Community.”!
Defendants then moved to dismiss the “knowing
endangerment” object of the superseding indictment,
arguing that the government had failed to fix the
! Paragraph 175 was changed significantly.
“Sa
Ta
original indictment because the new indictment
alleged no new overt acts, was barred by the
previous dismissal “with prejudice,” and was time-
barred because the statute of limitations had run.
The district court rejected the first two arguments,
but agreed with defendants that the new indictment
was time-barred. Under the district court’s reading,
the superseding indictment was not protected by the
savings clause of 18 U.S.C. § 3288. Order at 17,
United States v. W.R. Grace, 9:05-cr-00007-DWM
(“Order Dismissing Indictment’) (July 27, 2006)
(Docket # 690). The government now appeals that
determination. 3
2. Standard of Review
We review de novo a district court’s decision to
dismiss part of an indictment, United States v.
Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991),
as we review, also de novo, the district court’s
interpretation of 18 U.S.C. § 3288. United States v.
Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002).
3. Analysis
If a district court dismisses an indictment (or
portion thereof), the savings clause of 18 U.S.C.
§ 3288 permits the government to return a new
indictment after the statute of limitations has
expired, as long as it is done within six months of the
dismissal. The statute reads as follows:
Whenever an indictment or information
charging a felony is dismissed for any reason
after the period prescribed by the applicable
statute of limitatio:r.; has expired, a new
indictment may be returned in_ the
appropriate jurisdiction within six calendar
months of the date of the dismissal of the
Pes ee
8a
indictment or information ..., which new
indictment shall not be barred by any statute
of limitations. This section does not permit
the filing of a new indictment or information
where the reason for the dismissal was the
failure to file the indictment or information
within the period prescribed by the
applicable statute of limitations, or some
other reason that would bar a new
prosecution.
The dispute in the instant case stems from the
parties’ divergent interpretations of the final
sentence of § 3288. This sentence explains that the
savings clause does not extend to indictments
initially filed outside of the statute of limitations.
The government takes the position that this does not
bar the return of the new indictment because the
original indictment was obtained before the statute
of limitations expired. Thus, the government argues,
§ 3288 permits amendment by a _ superseding
indictment. Defendants disagree, arguing that the
government failed to allege an overt act for the
knowing endangerment object of the conspiracy
before the statute of limitations expired. The district
court agreed with defendants and dismissed the
knowing endangerment object as time-barred.
Defendants’ argument is premised on a conflation
of the terms “time-barred” and “not timely filed.”
The last sentence of § 3288 refers to indictments that
were not timely filed, i.e., indictments that were not
filed within the statute of limitations. Here, there is
no dispute that the government filed its indictment
within the statute of limitations period. The district
court dismissed the knowing endangerment object in
the original indictment as “time-barred” because it
9a
failed to allege an overt act within the statute of
limitations, not because the indictment was
untimely filed. The district court erred. If the
indictment is filed within six months of the dismissal
order, § 3288 does not bar the government from
filing a superseding indictment: the savings clause of
§ 3288 permits amendment when the original was
structurally flawed but timely filed. United States v.
Clawson, 104 F.3d 250 (9th Cir. 1996).
In Clawson, the defendant was indicted for mail
fraud on June 10, 1993. Jd. at 251. Defendant.
immediately moved to dismiss the indictment for
failure to allege an overt act within the five-year
statute of limitations. Jd. The indictment alleged
overt acts that occurred before the limitation period
began on June 10, 1988, or after defendant's
withdrawal from the conspiracy on July 5, 1988. Jd.
The district court granted defendant’s motion to
dismiss the indictment and the government
responded by obtaining a First Superseding
Indictment, which alleged overt acts occurring in the
window between June 10, 1988, and July 5, 1988.
Id. Defendant then moved to dismiss the new
indictment, arguing that the statute had run before
the government obtained the First Superseding
Indictment and that § 3288 did not extend to
indictments dismissed for failure to comply with the
statute of limitations. Jd. The district court denied
his motion and we affirmed. Jd. at 251-52.
Clawson noted ‘that when “{rjead in its entirety,
th[e] last sentence [of § 3288] cuts off the six-month
grace period only where the defect—whether it’s a
limitations problem ‘or some other’ problem—is not
capable of being cured.” J/d. at 252. In the instant
case, the district court held (and defendants now
10a
argue) that the defect in the original indictment
obtained by the government is not capable of being
cured because the original indictment did not allege
an overt act for the knowing endangerment object
before the statute of limitations expired. This
position, however, is precluded by Clawson.
In Clawson we distinguished between a timely
filed, but flawed, indictment, to which the savings
clause of § 3288 does apply, and an untimely filed
indictment, to which it does not.
“(I]f the original indictment was brought
after the limitations period ran on all the
alleged criminal] conduct, allowing
reindictment under section 3288 would
obliterate the statute of limitations: A
defendant could be indicted two years after
the statute had run and, when the court
dismissed, the prosecution could simply
reindict within six months, free from. the
limitations bar.” Id.
For obvious reasons, reindictment is prohibited
by § 3288 in such circumstances. Id.
“The matter is much different where the
original indictment is brought within the
limitations period, but is dismissed for
failure to allege the exact elements of the
crime, or some other technical reason. In the
latter circumstance, a valid indictment could
have been brought in a timely fashion; the
six-month grace period merely allows the
government to do what it had a right to do in
the first place.” Jd.
The latter circumstance describes the facts of
both Clawson and the instant case. In both cases,
lla
the government timely indicted defendants for a
particular crime, but originally failed to allege a
valid overt act. The government then obtained
superseding indictments charging defendants with
the exact same crimes, but adding the necessary
overt act allegations. Thus, each defendant was
charged “with the exact crime for which he could
have been prosecuted had there not been a defect in
the indictment. Section 3288 was designed to apply
in this situation.” Id.; see also United States v.
Charnay, 537 F.2d 341, 354 (9th Cir. 1976) (“[The]
underlying concept of § 3288 is that if the defendant
was indicted within time, then approximately the
same facts may be used for the basis of any new
indictment [obtained after the statute has run] ..., if
the earlier indictment runs into legal pitfalls.”).
When discussing “timeliness,” both Clawson and
Charnay refer to the time of the original filing of the
indictment. They do not consider whether the
original indictment included all of the relevant acts
or elements necessary to charge defendants with the
crime. - As long as the original indictment is filed
within the statute of lmitations and charges the
same crime, based upon approximately the same
facts charged in the superseding indictment, § 3288
allows the government to file a superseding
indictment within six months. See 18 U.S.C. § 3288;
Clawson, 104 F.3d at 251-52; Charnay, 537 F.2d at
354. Here, the parties do not dispute that the
original indictment was timely filed. The district
court’s holding that the indictment was time-barred
referred only to its failure to allege the necessary
overt acts in the original indictment—a flaw that can
be cured through re-indictment under § 3288.
12a
The district court attempted to distinguish
Clawson, stating that in Clawson the government
alleged overt acts in the original indictment, which
was filed within the limitations period. This
distinction is irrelevant. While the government did
allege overt acts before the limitations period
expired in Clawson, it failed to allege an overt act
sufficient to support the conspiracy charge since the
only overt acts alleged occurred outside the statute
of limitations or subsequent to Clawson’s withdrawal
from the _ conspiracy. Thus, the government
originally failed to allege any relevant overt acts in
Clawson, just as in the instant case.
Moreover, Clawson did not turn on_ the
distinction advanced by the district court: as we have
explained, § 3288 applies when an _ indictment
(though defective) is brought within the limitations
period, and the superseding indictment charges
defendant with the same exact crime with which he
was initially charged, based on approximately the
same facts. The only addition in the new indictment
considered in Clawson was the inclusion of new
overt acts that the government could have used in
the original indictment. The fact that the
government had timely alleged inapplicable overt
acts was wholly extraneous to the Clawson court’s
decision.
The district court's misapprehension of both
Clawson and § 3288 is also clear from its statement
that “[t]o allow the government a six-month grace
period in this case would extend the statute of
limitations for the improper purpose of affording the
prosecution a second opportunity to do what it failed
to do in the beginning.” Order Dismissing
Indictment at 16. Yet this is exactly what § 3288
- 13a
does. It extends the statute of limitations by six
months to allow the prosecution a_ second
opportunity to do what it failed to do in the
beginning: namely, file an indictment free of legal
defects.
This reading of § 3288 does not, as the district
court suggests, “require a defendant to remain
subject to an indefinite threat of prosecution, held
open beyond the statute of limitations period, while
he and the court wait for the government to finish
tinkering with the indictment.” Jd. What § 3288
does is twofold: First, it eliminates the incentive for
criminal defendants to move for dismissal of an
indictment at the end of the statute of limitations,
thereby winning dismissal at a time when the
government cannot re-indict. And second, it subjects
defendants to the threat of prosecution for six
months after the dismissal of the _ original
indictment-—not an indefinite threat of prosecution
as the district court suggests—and only if the
government has timely filed an indictment charging
the exact same crimes based on approximately the
same facts.
For the reasons articulated herein, we reverse
the district court's dismissal of the knowing
endangerment object of Count I in the superseding
indictment and reinstate that portion of the count.
II. Definition of Asbestos
1. Backgsound
We now turn to the question of whether
Congress’: se of the term “asbestos” to identify a
hazardous air pollutant created ambiguity as to
what substance was meant by that term. The
parties filed cross motions in limine to exclude
l4a
evidence that fell outside’ their respective
interpretations of the term. Govt. Mot. in Limine #2
Re: Definition of Asbestos (Docket # 462); Defs’ Mot.
in Limine Re: Definition of Asbestos (Docket # 474).
The district court held that the term “asbestos” has
no inherent meaning and therefore its use in the
criminal provisions of the Clean Air Act violated the
rule of lenity and the Due Process Clause of the
Fourteenth Amendment. It interpreted asbestos for
purposes of the Clean Air dAct’s’ knowing.
endangerment provision to mean the six minerals
covered by EPA’s civil regulatory scheme. Order at 2
& 20, United States v. W.R. Grace, 9:05-cr-00007-
DWM (“Order Defining Asbestos”) (Aug. 8, 2006)
(Docket # 791). That regulation defines the civilly
regulated species of asbestos as “the asbestiform
varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite,
anthophyilite, and actinolite-tremolite.” Definitions
for Nation«! Emission Standards for Hazardous Air
Pollutants (““NESHAPs’”), 40 C.F.R. § 61.141 (2007).
The district court imported the civil regulatory
definition of “asbestos” into the criminal provisions
of the Clean Air Act, and then ruled that evidence of
asbestos releases offered at trial would be limited to
those relevant to proving releases of the six minerals
included in the regulatory definition; evidence of
releases of other asbestiform minerals would be
excluded. Order Defining Asbestos at 22. This
ruling eliminated from trial evidence of releases of
95% of the contaminents in the Libby vermiculite—
which are asbestiform minerals but fall outside of
the six mineral!s in the civil regulatory definition—as
well as excluding government data that did not
differentiate between the six regulated minerals and
unregulated asbestiform minerals. The government
15a
appeals, asserting that the definition contained in
the criminal portion of the statute is the applicable
definition.
2. Standards of Review
We review de novo the. district court’s
construction of the Clean Air Act, as we do rulings
on the admissibility of evidence in which issues of
law predominate. See United States v. Mateo-
Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000).
3. Analysis
The Clean Air Act’s knowing endangerment
provision prohibits the knowing and dangerous
release into the ambient air of “any hazardous air
pollutant listed pursuant to § 7412.” 42 U.S.C.
§ 7413(c)(5)(A).2 Section 7412(b) lists “asbestos,” also
2 42 U.S.C. § 7413(c)(5)(A) reads in relevant part:
Any person who knowingly releases into the ambient air
any hazardous air pollutant listed pursuant to section
7412 of this title ..., and who knows at, the time that he
thereby places another person in imminent danger of
death or serious bodily injury shall, upon conviction, be
punished by a fine under Title 18, or by imprisonment of
not more than 15 years, or both. Any person committing
such violation which is an organization shall, upon
conviction under this paragraph, be subject to a fine of
not more than $1,000,000 for each violation. If a
conviction of any person under this paragraph is for a
violation committed after a first conviction of such person
under this paragraph, the maximum punishment shall
be doubled with respect to both the fine and
imprisonment. For any air pollutant for which the
Administrator has set an emissions standard or for any
source for which a permit has been issued under
subchapter V of this cnapter, a release of such pollutant
in accordance with that standard or permit shall not
constitute a violation of this paragraph or paragraph (4).
16a
identified by 1s Chemical Abstracts Service (“CAS”) 3
Registry number. 1332-21-4, as a hazardous air
pollutant. 42 U.S.C. § 7412(b). Thus, § 7412(b)
identifies asbestos by name and defines it through
reference to CAS Registry # 1332-21-4.
The government contends that a statute may
have two definitions for one term, one definition civil
and one criminal. Further, it argues that the
definition of asbestos applicable to the Clean Air
Act’s criminal knowing endangerment provision
covers the minerals involved in this case. We agree
on both points.
The district court found § 7412(b)’s “one-word
definition” to be “unsatisfactory” as a matter of law.
However, Congress need not define every word in a
criminal statute for the statute to pass
Constitutional muster. When Congress does not
define a term in a statute, we construe that term
“according to [its] ordinary, contemporary, common
meaning[].” United States v. Cabaccang, 332 F.3d
622, 626 (9th Cir. 2003) (en banc) (internal quotation
marks omitted). It is well known that asbestos has a
common meaning; it is a fibrous, non-combustible
3 The Chemical Abstracts Service Registry, maintained by the
American Chemical Society, is an authoritative database of
chemical information. The Registry assigns each chemical
substance a unique numeric identifier. Searches in the
Registry require subscription. However, EPA maintains on its
website a free “Substance Registry System” containing CAS
Registry information, including the CAS definition of asbestos.
http:// www.epa.gov/srs/ (search “asbestos”; follow link
associated with 1332-21-4) (last visited Aug. 3, 2007).
4 T.e., “1332214 Asbestos”
17a
compound that can be composed of _ several
substances, typically including magnesium. Or, as
defined by the CAS Registry, and incorporated by
reference into § 7412(b), it is a “grayish non-
combustible material” that “consists primarily of
impure magnesium silicates.” CAS Registry number
1332-21-4, available at
http:/haspub.epa.gov/srs/srs_proc_
qry.navigate?P_SUB_ID=85282. This definition nde
been established for decades, as was elucidated in
the motions in limine. See Defs’ Mot. in Limine Re:
Definition of Asbestos n.4 (Expert Witness
Disclosure of Gregory P. Meeker, Appendix A) (May
31, 2006) (noting that asbestos was first defined in
1920).
In addition, defendants had actual notice in this
case of the risks from the fibrous content of the
asbestiform minerals in their products. Defendants
are an industrial chemical company and seven of its
top executives. They are all familiar with asbestos.
Since at least 1976, defendants have known of the
health risks posed by the asbestiform minerals in
their products. It is clear that defendants knew or
should have known that their mining, milling, and
distribution activities risked the release of asbestos
into the ambient air. In lhght of the clear statutory
language, including § 7412(b)’s incorporation by
reference of the CAS Registry asbestos definition,
and defendants’ knowledge of the _ industrial
chemicals field, the district court erred in
misdefining “asbestos” as used in the criminal
statute and in invoking the rule of lenity. See
Muscarello v. United States, 524 U.S. 125, 138 (1998)
(“The rule of lenity applies only if, after seizing
everything from which aid can be derived, ... we can
18a
‘make no more than a guess as to what Congress
intended.”) (alteration in original) (internal
quotation marks omitted); United States v. Lanier,
520 U.S. 259, 266 (1997) (The “rule of lenity{]
ensures fair warning by so resolving ambiguity in a
criminal statute as to apply [the statute] only to
conduct clearly covered.”).
The district court’s conclusion that ambiguity
exists simply because of the existence of two
oversight structures—a civil regulatory structure
and .a criminal enforcement provision—that use
different definitions of the term “asbestos” is
erroneous. As we determined in United States uv.
Hagberg, 207 F.3d 569, 573 (9th Cir. 2000), Congress
validly may _ create multiple enforcement
mechanisms that each draw on different definitions
for the same term or phrase.
In Hagberg, defendant was indicted for allegedly
dumping sewage along a public road in violation of
the Clean Water Act, 33 U.S.C. §§ 13819(c)(2),
1345(e). Hagberg at 570. Moving to dismiss the
indictment, Hagberg argued that his actions did not
fit within the statutory definition of the crime
because the material he dumped was not “sewage
sludge” as defined by the regulations for permitting
waste disposal. Jd. at 571. Accepting Hagberg’s
argument, the _ district court dismissed the
indictment. The government appealed. Jd. We
reversed because the district court improperly had
conflated the regulatory and direct enforcement
provisions of the Clean Water Act, and the relevant
definition—supplied by the direct enforcement
provision—covered the material dumped by
defendant. Jd. at 571-72, 575. We explained that
“some terms found in the [direct enforcement
19a
provision] are defined differently when used in the
context of [the civil permitting] regulations.” Jd. at
572.
Like the Clean Water Act provisions at issue in
Hagberg, the Clean Air Act creates multiple
enforcement mechanisms: a civil regulatory
structure and a direct enforcement mechanism. In
the instant case, as in Hagberg, defendants are
charged with violating the directly enforceable
provision of the statute that pulls its definitions from
a separate provision than does the regulatory
provision. The civil regulatory system draws its
definition of asbestos from 40 C.F.R. § 61.141, the
knowing endangerment provision from 42° U.S.C.
§ 7412(b). See 42 U.S.C. §§ 7412(a)(6); 7413(c)(5)(A).
The civil regulatory system regulates major sources
of hazardous air pollutants, 42 U.S.C. § 7412(c)-(g),
and therefore understandably focuses on a subset of
asbestifom minerals deemed to have commercial
potential; market forces preclude commercially non-
viable species of asbestes from becoming major
sources of pollution from asbestos mills and mines
and other covered sources. The direct enforcement
mechanism created in 42 U.S.C. § 7413 focuses on
risks to health. Therefore it provides oversight of
release of hazardous pollutants whether or not they
come from major sources of pollution. We defer to
Congress’s decision to create two enforcement
structures and hold the district court’s conflation of
the two to be error.
In sum, the district court improperly limited the
term “asbestos” to the six minerals covered by the
civil regulations. Asbestos is adequately defined as a
term and need not include mineral-by-mineral
classifications to provide notice of its hazardous
20a
nature, particularly to these knowledgeable
defendants. Accordingly, we reverse the order
limiting evidence to that fitting within the civil
regulations.
III. Mandamus
1. Background
The knowing endangerment provision of the
Clean Air Act establishes an affirmative defense for
hazardous air pollutants released “in accordance
with” an applicable National Emissions Standards
for Hazardous Air Pollutants (“NESHAP”). See 42 —
U.S.C. § 7413(c)(5)(A). In the proceedings before the
district court, the government argued _ that
defendants could not avail themselves of this
affirmative defense because no NESHAP applied to
W.R. Grace’s operations in Libby; thus, compliance
with an “applicable’ NESHAP was impossible. The
district court rejected this argument, finding that
the regulations created an emissions standard of “no
visible emissions” for asbestos. Accordingly, the
district court ruled that it would allow defendants to
introduce evidence at trial to try to prove their
affirmative defense. Because the district court did
not exclude any of the government’s emissions
evidence as a result of this ruling, the government
cannot appeal the district court’s decision. Instead,
it now seeks a writ of mandamus to overturn the .
decision.
2. Standard of Review
The writ of mandamus is codified at 28 U.S.C.
§ 1651(a): “The Supreme Court and all courts
established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and
2la
principles of law.” This court has developed a five-
factor test for determining whether a writ may issue.
We must consider whether:
(1) The party seeking the writ has no other
adequate means, such as direct appeal, to attain the
relief he or she desires.
(2) The petitioner will be damaged or prejudiced
in a way not correctable on appeal.
(3) The district court’s order is clearly erroneous
as a matter of law.
(4) The district court’s order is an oft-repeated
error, or manifests a persistent disregard of the
federal rules.
(5) The district court’s order raises new and
important problems, or issues of law of first
impression.
Clemens v. U. S. Dist. Ct., 428 F.3d 1175, 1177-78
(9th Cir. 2005) (quoting Bauman v. United States
Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977)). Not
every factor must be present to warrant mandamus
relief, see id. at 1178, and in this case the only
disputed issue is whether the district court made a
clear error as a matter of law.
3. Analysis
Where, as here, the district court’s order involves
issues of statutory interpretation, the order is clearly
erroneous as a matter of law if the reviewing court is
left with “a definite and firm conviction that the
district court’s interpretation of the statute was
incorrect.” DeGeorge v. United States Dist. Court,
219 F.3d 930, 936 (9th Cir. 2000) (citing Jn re
Cement Antitrust Litig., 688 F.2d 1297, 1306 (9th
Cir. 1982)); see also United States v. Ye, 436 F.3d
22a
1117, 1123 (9th Cir. 2006). Here, the plain language
of the statute makes clear that the affirmative
defense is not applicable to defendants’ actions.
In relevant part, § 7413(c)(5)(A) states, “[flor any
air pollutant for which the Administrator has set an
emissions standard ..., a release of such pollutant in
accordance with that standard ... shall not constitute
a violation of this paragraph.” The first clause of the
affirmative defense makes it inapplicable to Grace’s
alleged asbestos releases. Quite simply, asbestos is
not an “air pollutant for which the Administrator
has set an emissions standard.” § 7413(c)(5)(A)
(emphasis added). Rather, the Administrator has
set several emissions standards, each of which is
source dependent. Some asbestos emissions
standards make no reference at all to “visible
emissions.” See 40 C.F.R. §§ 61.143, 61.145, &
61.148. Others include additional procedural
requirements, above and beyond. the “no visible
emissions” requirement. See 40 C.F.R. §§ 61.142,
61.144, 61.146, 61.149, & 61.150. In short, there is
simply no trans-categorical emissions standard for
asbestos; neither is there an emissions standard for
asbestos releases from mining’ operations.®
Therefore, it is inconceivable that the alleged Grace
releases were “in accordance with that standard.”
§ 7413(c)(5)(A). The plain language of the statute
makes clear that the affirmative defense simply
5 A perusal of the table of contents for 40 C.F.R. § 61 shows
that most hazardous pollutants do in fact have a single
emissions standard, enumerated in a single code section. See,
e.g., §§ 61.22, 61.32, 61.42, 61.52. Asbestos, however, doves not.
See §§ 61.142-.151.
23a
doesn’t apply in this case. The district court’s order
to the contrary leaves us with a “a definite and firm
conviction” that it got the law wrong. DeGeorge, 219
F.3d at 936. Consequently, we grant the
government’s petition for writ of mandamus, and
hold that W.R. Grace can not avail itself at trial of
the affirmative defense articulated in 42 U.S.C.
§ 7413(c)(5)(A).
IV. Evidentiary Rulings
1. Introduction
As stated above, Counts II-IV of the superseding
indictment allege violations of 42 U.S.C.
§ 7413(c)(5)(A), the Clean Air Act's knowing
endangerment provision, which creates criminal
penalties for a person who “knowingly releases into
the ambient air any hazardous air pollutant listed
pursuant to section 7412 of this title ... and who
knows at the time that he thereby places another
person in imminent danger of death or serious bodily
injury.” Defendants filed motions in limine seeking
to exclude evidence related to, or testimony based on,
certain studies—EPA indoor air studies (“Indoor Air
studies”), Grace’s historic testing of its vermiculite
products (“Historic Testing”), a report of the Agency
for Toxic Substances and Disease Registry based on
a medical screening study of residents of Libby,
Montana (“ATSDR Report”), and the results of the
screening study published as an article in a peer-
reviewed journal (“Peipins Publication”). Ruling
that these studies were unreliable, irrelevant, or
unduly prejudicial, the district court barred
government experts from relying on them in forming
opinions regarding the knowing endangerment
charges, and, as to the indoor air studies, the
ATSDR Report, and the Peipins’§ Publication,
24a
excluding the studies, report, and _ publication
themselves for most or all purposes. Order, United
States v. W.R. Grace, 9:05-cr-O0007DWM (Aug. 21,
2006) (“Indoor Air Order”); Order, United States v.
W.R. Grace, 9:05-cr-00007-DWM (Aug. 28, 2006)
(“Historical Testing Order”); Order, United States v.
W.R. Grace, 9:05-cr-00007-DWM (Aug. 31, 2006)
(“ATSDR and Peipins Order”). The government
appeals.
2. Standard of Review
This court reviews de novo the district court’s
interpretation of the Federal Rules of Evidence.
United States v. Sioux, 362 F.3d 1241, 1244 n.5 (9th
Cir. 2004). In general, this court reviews for abuse
of discretion a district court’s decision to admit or
exclude scientific evidence and expert testimony.
United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.
2002). “{A] trial court has ‘broad discretion’ in
assessing the relevance and reliability of expert
testimony.” Jd. (quoting United States v Murillo,
255 F.3d 1169, 1178 (9th Cir. 2001)).
3. Relevant Rules
Federal Rule of Evidence 401 defines “relevant
evidence” as that which has “any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.”
Rule 402 provides that relevant evidence is
admissible, except as limited by the Constitution,
statutes, or other rules of evidence. Rule 403
provides a balancing test for the exclusion of
relevant evidence on the grounds of prejudice:
relevant evidence may be excluded if “probative
value is substantially outweighed by the danger of
25a
unfair prejudice, confusion of the issues, or
misleading the jury....”6
Several rules apply specifically to testimony by
experts. Under Rule 702, an expert witness may
provide opinion testimony if “the-testimony is based
upon sufficient facts or data” and “is the product of
reliable principles and methods,” which have been
“applied ... reliably to the facts of the case.” The rule
“affirms the court’s role as gatekeeper and provides
some general standards that the trial court must use
to assess the reliability and helpfulness of proffered
expert testimony.” Advisory Comm. Notes, Rule 702
(2000).
Under Rule 703, the “facts or data ... upon which
an expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence in order for
the opinion or inference to be admitted.” However, if
the expert relies on facts or data that are otherwise
inadmissible, then those facts “shall not be disclosed
to the jury by the proponent of the opinion or
inference unless the court determines that their
probative value in assisting the jury to evaluate the
6 Advisory committee notes from 1972 discuss the meaning of
unfair prejudice—the “undue tendency to suggest decision on
an improper basis, commonly ... an emotional one”—and
observe that the “availability of other means of proof may also
be an appropriate factor” of determining when there is unfair
prejudice.
26a
expert’s opinion substantially outweighs their
prejudicial effect.”?
4. Analysis
A. Indoor Air Releases
t. Background
On May 31, 2006, Defendants filed a motion in .
limine to exclude evidence of or derived from indoor
asbestos releases. Defendants sought to exclude
documents and studies, including EPA’s Phase II air
‘sampling charts, as well as expert testimony that
relied upon these studies. See Defs’ Mot. in Limine
Re: Indoor Air Releases at 4-6 (Docket # 473).
On August 28, 2006, the district court granted
defendants’ motion “with respect to evidence of or
derived from indoor releases offered for the purpose
of proving an ‘ambient air’ release in violation of 42
U.S.C. § 7413(c)(5)(A).” Indoor Air Order at 11. The
district court held that “[iJndoor sampling performed
by EPA in the course of its CERCLA activities, and
testimony based upon this sampling, is not relevant
funder Fed. R. Evid. 402] to whether Defendants
committed a release in violation of the Clean Air Act,
and is not admissible for the purpose of proving such
a release.” Jd. at 8. The court stated that, under
7 To the extent that inadmissible evidence is reasonably relied
upon by an expert, a limiting instruction typically is needed—
i.e., the evidence is admitted only to help the jury evaluate the
expert’s evidence. E.g., United States v. 0.59 Acres of Land, 109
F.3d 1493, 1496 (9th Cir. 1997) (error to admit hearsay offered
as the basis of an expert opinion without a_ limiting
instruction). There is a presumption against disclosure to the
jury of inadmissible information used as the basis for expert’s
opinion. See Advisory Comm. Notes, Rule 703 (2000).
27a
Federal Rules of Evidence 403, “[e]vidence derived
from EPA testing and sample collection performed as
part of its CERCLA analysis has the potential to be
highly confusing and prejudicial,” id. at 10, and
barred the evidence for most purposes related to the
Clean Air Act counts. However, the court held that
the evidence had probative value with respect to
defendants’ “knowledge of the dangerousness of the
asbestos contaminated vermiculite,” td. at 8,
relevant to the governments argument that
defendants knowingly “place[d] another person in
imminent danger of death or serious bodily injury,”
42 U.S.C. § 7413(c)(5)(A), by releasing vermiculite
into the community. In addition, the district court
held the evidence relevant to the defrauding object of
Count I’s conspiracy charge and to the four counts of
obstruction of justice in the superseding indictment.
The district court thus denied the motion with
respect to establishing knowledge of risk for the
Clean Air Act charges and with respect to proving
the obstruction and conspiracy counts. The
government appeals the exclusion of the Indoor Air
studies and expert testimony based upon them with
regard to the knowing endangerment counts.
it. Analysis
The government argues that EPA’s Phase II tests
show the propensity of the Libby asbestos to release
fibers whenever it was disturbed and regardless of
the form the vermiculite took and therefore should .-
be admitted to form the basis of expert testimony.
The government also makes an argument that the
Indoor Air studies should themselves be admitted as
relevant. However, although the government makes
a valid argument about the friability of Libby
asbestos being the same whether indoors or
28a
outdoors, t..© probative value of the EPA studies is
possibly outweighed by the danger of unfair
prejudice. First, the studies’ overall probative value
is low because they largely concern the asbestos
releases at various indocr locations in Grace’s Libby
mining and milling operation. There is some
information in the studies regarding the friable
character of Libby asbestos, but not much. There is
a risk of unfair prejudice because the indoor releases
may not reflect the level of releases into the ambient
air, and there is some language in the studies
regarding asbestos-related diseases in Libby that
may mislead or confuse the jury into believing that
releases into indoor air proves releases into ambient
air. Finally, even if this court disagreed with the
district court’s Rule 403 balancing, “[a]n appellate
court will not reengage in a balancing of the
probative value and prejudicial effect.” Rogers v.
Raymark Industries, Inc., 922 F.2d 1426, 1430 (9th
Cir. 1991). The district court’s decision to bar the
use of documents and studies derived from indoor air
releases for the purpose of proving a release into the
ambient air was within its discretion.
It is a separate question, however, whether the
district court abused its discretion in excluding
expert testimony based on documents and studies
derived from indoor air releases. The district court
did not conduct an inquiry under Rule 702° or
8 Fed. R. Evid. 702 provides, “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experence, training, or
education, may testify thereto in the form of an opinion or
otherwise.”
29a
7039 in its August 28th order. Rule 703 provides, “If
of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences
upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or
inference to be admitted.” (Emphasis added.) The
government persuasively argues that the proper
remedy for the problems associated with the indoor
air studies is to prevent an expert from disclosing
the prejudicial facts instead of preventing the expert
from relying on them altogether. Allowing expert
testimony based on the EPA studies “will assist the
trier of fact to understand the evidence or to
determine a fact in issue” under Rule 702 because
the studies may show the propensity of the asbestos-
contaminated vermiculite to release asbestos fibers
into the ambient air. While the specific’ asbestos
concentration levels discussed in the studies are not
relevant because the studies largely measured
indoor air releases and gathered data under
conditions different from the ambient air releases
9 Fed. R. Evid. 703 provides, “The facts or data in the
particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to
be admitted. Facts or data that are otherwise inadmissible
shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert’s
opinien substantially outweighs their prejudicial effect.”
30a
relevant to the statute, the government’s experts
should be permitted to opine generally about the
friability of Libby asbestos based in part on the data
in the studies. The data from the indoor sampling is
relevant to the propensity of Libby asbestos to
release fibers upon disturbance. Based on these
data, an expert could testify about friability and
whether a release of asbestos would occur if
asbestos-contaminated vermiculite were exposed or
disturbed. Because the district court did not inquire
into whether the data provided by the indoor air
tests is of the type reasonably relied upon by experts
‘in the field, see Fed. R. Evid. 703. or whether the
data fits under Rule 702, we remand so that the
district court can conduct these inquiries in the first
instance.
B. W.R. Grace’s Historic Product Testing
tl. Background
On May 31, 2006, defendants filed a motion in
limine to exclude expert opinions regarding Grace’s
historical, non-ambient air product and commercial
testing. Defendants sought to exclude the testimony
of Dr. Richard Lemen,!© Dr. Vernon Rose,!! Paul
Peronard,!2 Dr. Aubrey Miller,13 Dr. Chris Weis,!4
10 Docket # 287.
11 Docket # 283.
12 Docket # 281.
13 Docket # 279.
14 Docket # 286.
3la
and other government witnesses who might “attempt _
to draw unsupportable correlations between Grace’s
historical product and commercial tests and expected
ambient air exposures from disturbances of
vermiculite materials found in the town of Libby.”
Defs’ Mot. in Limine Re: Historic Testing at 4
(Docket # 496). On August 29, 2006, the district
court granted defendants’ motion to exclude expert
testimony based on historic testing offered to prove a
release in violation of 42 U.S.C. § 7413(c)(5)(A).
Historic Testing Order at 7. The district court
denied defendants’ motion with respect to expert
testimony based on historic testing offered for the
purpose of showing defendants’ knowledge of the
dangerousness of the asbestos contaminated
vermiculite. Id.
i. Analysis
Rule 702 authorizes expert testimony that “will
assist the trier of fact” when the testimony “is based
upon sufficient facts or data,” the testimony is
produced through “reliable principles and methods,”
and the expert witness “has applied the principles
and methods reliably to the facts of the case.”
Generally, an inquiry under Rule 702 examines the
expert’s testimony as a whole. The 702 inquiry
typically does not examine the reliability or
relevance of particular data sets that underlie the
expert testimony, although this approach does no
harm where the expert testifies on only one study or
where no combination or addition of data could make
the data in question a proper, reliable basis for
making a given claim. In contrast to Rule 702’s
holistic focus on an expert’s testimony, Rule 703
governs the inquiry into the reliability of particular
data underlying expert testimony. Fed. R. Evid. 703;
32a
see also Claar v. Burlington Northern R. Co., 29 F.3d
499, 501 (9th Cir. 1994).
Here, the district court excluded the historic
testing data under Rule 702. This document-based
approach creates the problem that one cannot know
fully whether or in what ways other information
sources are meant to, in combination with the
challenged data sources, form the premise for the
expert testimony. Each document must be
dispositive under the district court’s ‘approach, a
requirement we do not impose under Rule 702. On
remand, the district court shall conduct the Rule 702
. analysis in light of the expert’s reasoning and
methodology as a whole.
Faced with this new 702 analysis, defendants
presumably will argue, as they do on appeal, that
the historic testing evidence fails the “fit” test under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993).15 In response, the government argues that its
experts do not plan to rely on the historic testing
data to estimate the fiber concentrations from the
charged releases, but only to opine generally on the
hazardous’ characteristics!® of Libby asbestos
contaminated vermiculite. This limited use of the
study to inform experts’ opinions is permissible,
because the propensity of Libby asbestos to release
fibers fits the release element of the knowing
15 This phrasing of the argument improperly focuses the 702
inquiry on a document-by-document approach that we
disapproved supra.
16 ].e., the propensity of Libby asbestos to break down and
release fibers into the ambient air.
33a
endangerment provision. The district court did not
consider this propensity-to-release inquiry, thus
abusing its discretion by excluding this evidence
under 702.
Defendants make two additional, ultimately
unsupportable arguments. First, they argue that
the testimony’s exclusion under Rule 702 was proper
because the government’s experts “do not need” the
-evidence on historic air releases to testify about the
friability of Libby asbestos. This argument
misconceives Rule 702’s inquiry, which focuses on
fitness, relevance, and reliability, not on whether an
expert potentially has other evidence on which to
base an opinion. Second, defendants argue that the
district court properly excluded the testimony under
Rule 403 in addition to Rule 702. Contrary to
defendants’ assertion, however, the district court did
not rely on Rule 403 in its historic testing order but
discussed the admissibility of expert testimony only
under Rule 702. Moreover, an expert reasonably
may rely on inadmissible evidence in forming an
opinion or delivering testimony. See Fed. R. Evid.
703.
The question remains whether data concerning
indoor air quality are of the type reasonably relied
on by other experts in the field. See Fed. R. Evid.
703. Although it appears that the district court
never conducted this 703 inquiry, the second step of
the Rule 702 analysis—that the study was “the
product of reliable principles and methods’—
presumably answers this question in the affirmative.
See Rule 702; see also Claar, 29 F.3d at 501 (“Rule
703 merely relaxes, for experts, the requirement that
witnesses have personal knowledge of the matter to
which they testify,” not whether the requirements of
34a
702 are properly met). Although not stated
explicitly, the order implicitly found the historic
testing reliable in finding it admissible under 702 to
show knowledge. Historic Testing Order at 3-4.
Thus, the historic testing is admissible for purposes
of expert opinion formation and testimony regarding
the propensity of Libby vermiculite to release
asbestos as relevant to 42 U.S.C. § 7413(c)(5)(A).
Accordingly, we reverse the district court order
excluding such testimony.
C. Medical Screening Study: ATSDR and Peipins
Publication
t. Background
In 2000-2001, the Agency for Toxic Substances
and Disease Registry (“ATSDR”) conducted a
medical screening study in Libby (the “ATSDR
Report”) to detect pleural abnormalities in Libby
residents and to inform priority-setting in EPA’s
asbestos clean-up operation. The study entailed
interviewing and medically testing individuals who.
had lived, worked, attended school, or participated in
other activities in Libby for at least six months
before 1990. Questions were asked to identify
individuals who had accessed potential “exposure
pathways” to asbestos and vermiculite prior to
December 31, 1990. For example, “pathways”
included employment at W.R. Grace, living with
W.R. Grace workers, using’ vermiculite for
gardening, and engaging in recreational activities in
certain locations known to contain vermiculite.
Information about other basic demographic variables
and risk factors was also gathered, e.g., age, sex,
smoking status, history of pulmonary disease and
various other self-reported health conditions.
35a
ATSDR published an initial report of the study’s
findings in February 2001. The complete results of
the study (the “Peipins Publication”) were published
in November 2003 in Environmental Medicine, a
peer-reviewed journal. The Peipins Publication
analysis used regression modeling to estimate the
risk of respiratory abnormalities for each of the
exposure pathways while controlling for all other
pathways and other established and suggested risk
factors.
The study showed that certain factors—including
exposure to particular pathways—were associated
with respiratory illness and abnormalities. The
factors most strongly associated with abnormalities
were: being a former W.R. Grace employee, being
older, having had household contact with a former
W.R. Grace worker, and being male. (The study also
demonstrated “a statistically significant increase in
the prevalence of pleural abnormalities with an_
increasing number of exposure pathways.” While
“participants reporting more pathways might be
expected to have more cumulative exposure than
would those reporting fewer pathways,” this was not
data gathered by the study; the study identified
avenues for exposure but did not quantify the
duration or intensity of individuals’ exposures.
Both the intersm ATSDR Report and the final
Peipins Publication noted that the study had no
control group and “no directly comparable Montana
or U.S. population studies [were] available.” The
researchers were able to compare the data gathered
with studies of other groups with substantive work-
related asbestos exposure. The levels of pleural
abnormalities were higher in Libby than in studies
36a
of other groups, but the study did not engage in any
direct quantitative comparison.!7
On May 31, 2006, defendants filed a motion in
limine “to exclude expert evidence relating to the
ATSDR Medical Testing Program.” Defs’ Mot. in
Limine Re: ATSDR (Docket # 500, 502). The district
court characterized the motion as one to exclude
“any evidence or expert testimony relating to” the
medical screening study conducted in Libby by the
Agency for Toxic Substances and Disease Registry.
ATSDR Order at 1. The government did not object
_ to the court’s characterization of defendants’ motion.
On August 31, 2006, the district court granted
defendants’ motion. The court ruled that the ATSDR
Report and Peipins Publication, and any expert
testimony based thereon, were excluded under Rules
403 and 702 for any purpose relating to the Clean
Air Act knowing endangerment counts. Jd. at 31.
ti. Analysis
The district court acted within its discretion in
excluding the ATSDR Report and _ ~Peipins
Publication themselves under Rule 403 for purposes
of the knowing endangerment counts. There are
limits to the probative value!® of the particular
17 The results of the ATSDR Report were also compared with
“control groups or general populations found in other studies.”
That comparison showed that the levels of pleural
abnormalities were also higher in Libby for those who claimed
“no apparent exposure” to particular pathways than subjects in
other studies. This supported the study’s conclusion that it was
unlikely that there were individuals in Libby who had not been
exposed to some degree.
18 The study demonstrated an association between negative
health outcomes and an individual’s unquantified exposure to
37a
correlations the ATSDR Report revealed and
potentially prejudicial aspects to the data.
Moreover, the government. failed to contest the
district court’s undue prejudice conclusion. Because
Rule 403 requires the district court to balance the
-probative value and the prejudicial effects of a piece
of evidence, failure to raise and argue prejudice
generally waives the argument. See United States v.
Wilson, 966 F.2d 243, 245-46 (7th Cir. 1992).
However, in excluding this evidence from
informing expert opinion and testimony, the district
court erred. The expert is, in the first instance, the
judge of what resources would help him to form an
opinion, and he can filter out as_ irrelevant
prejudicial information. The trial judge is to assure
the reliability of evidence by vetting under Rule 703
the bases underlying the expert’s testimony and by
examining under Rule 702 the expert’s methodology.
Here, however, the trial judge misapplied Rule 702
and replaced inappropriately the Rule 703 analysis
with one under Rule 403.
vermiculite via particular “pathways” prior to the statutory
period. The existence of association—and not causation—goes
to the probative value of the evidence. The reported findings
did not indicate that all exposure pathways were significantly
associated with lung abnormalities (for example, gardening
with vermiculite is not one of the factors mentioned as one
being associated with such abnormalities). Because the data
were gathered before the statutory period, it is questionable
how reliable a basis they provide for drawing conclusions about
the extent of the dangers posed by ambient releases during the
statutory period, i.e., concentration or duration of releases.
However, this is more an issue for the expert than the court.
38a
To begin, the district court concluded that the
ATSDR medical screening program and resulting
analyses did not establish a causal link between
exposure to Libby’s vermiculite and the development
of asbestos-related disease. The ATSDR Report
acknowledged repeatedly that the testing program
was not designed as an epidemiological study to
show causality. Notably, there was no internal
control group and the participants were self-selected,
rather than randomly selected. In light of this, the
district court concluded that the data could not
provide experts with a reliable basis for opining as to
causality (i.e., the danger posed by the releases from
Libby vermiculite). |
Nonetheless, one of the main objectives of the
ATSDR Report was to examine the association
between pleural and interstitial abnormalities and
participants’ exposure histories—measured in broad
terms by the participants’ overall contact with
exposure pathways. As the _ district court
acknowledged, the government’s experts did not
claim that they intended to use the study to show
causation, but rather indicatedthat they would rely
on the evidence to show that there were some
associations or correlations between exposure to
vermiculite in Libby and pleural abnormalities.
The district court took the view that the jury
would be unlikely to distinguish between evidence of
an association and evidence of causation and
therefore would likely be misled, and would -place
undue reliance on the evidence. In this respect, the
court substantially underestimated the capacity of
jury instructions to distinguish these relationships,
and the potential efficacy of a limiting instruction.
39a
Further, the fact that a study is associational—
rather than an epidemiological study intended to
show causation—does not bar it from being used to
inform an expert’s opinion about the dangers of
asbestos releases, assuming the study is “of the type
typically relied upon” by experts in the field. Fed. R.
Evid. 703. Of course, the expert’s opinion testimony
must satisfy the requirements of Rule 702—but that
requires consideration of the overall sufficiency of
the underlying facts and data, and the reliability of
the methods, as well as the fit of the methods to the
facts of the case. Fed. R. Evid. 702.
Here, the district court failed to consider the Rule
702 requirements with regard to causation. Instead,
as with the historical testing, the court conducted a
document-by-document Rule 702 analysis that
deconstructed the experts’ testimony in a manner
not contemplated by Rule 702. Moreover, the study,
which was published in a peer-reviewed journal and
relevant to association, is adequate under 702. The
study’s failure to establish causation goes to the
weight it should be accorded, but does not mean that
an expert could not rely on it in forming an opinion.
Nor did the district court consider the possibility
of expert reliance on the ATSDR Report without
disclosure of the study itself to the jury, as provided
for by Rule 703 (“If of a type reasonably relied upon
by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need
not be admissible in evidence in order for the opinion
or inference to be admitted.”). In fact, the district
court generally failed to conduct a 703 analysis, such
as considering whether this study was “of the type”
relied upon by experts in the field, or whether the
40a
ATSDR Report’s “probative value ... substantially
outweighs [its] prejudicial effect.” Fed. R. Evid. 703.
Instead, the district court excluded expert
testimony regarding the ATSDR Report under Rule
403. This ruling improperly replaced 703 balancing
with 403 balancing, cf. Fed. R. Evid. 703 (providing
balancing test applicable to expert testimony), and
the exclusion of the ATSDR Report and Peipins
Publication as bases for expert testimony or opinion
formation was error. While Rule 403 supplies a
basis for holding the underlying ATSDR Report
inadmissible, it does not contemplate barring an
expert from relying on it. Cf. Fed. R. Evid. 403. The
exclusion of the ATSDR Report and the Peipins
Publication from expert consideration and testimony
was error, and thus we reverse that part of the
ATSDR Order.
V. Motion to Strike
In its reply brief to this court, the government
submitted six documents not included in the record
below—two excerpts of the federal register (addenda
1 and 3), a report of the National Research Council
(addendum 2), published scientific articles (addenda
5 and 6), and search results presumably from the
CAS Registry (addendum 4). Defendants moved to
strike four of the documents (addenda 2, 4, 5, and 6)
on the grounds that they were not part of the record
below, were misleading, and, by virtue of their
submission in the reply brief, were presented
without giving defendants an opportunity to
respond.
In general, we consider only the record that was
before the district court. We have made exceptions
to this general rule in three situations: (1) to “correct
inadvertent omissions from the record,” (2) to “take
4la
judicial notice,” and (3) to “exercise inherent
authority ... in extraordinary cases.” Lowry uv.
Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).
Considerations of institutional expertise and notice
support our limitation of these exceptions to
“unusual circumstances.” Id.
The search results in addendum item 4 fit none of
these exceptions. Addendum items 2, 5, and 6 fit
within the second exception—-we have discretion to
take judicial notice under Rule 201 of the existence
and content of published articles. See Bell Atlantic
Corn. 'v. Twombly, Us... ... 2.43, 187-8. Ct.
1955, 1973 n.13 (2007); United States v. Rutgard,
116 F.3d 1270, 1278 (9th Cir. 1997). However, as we
have stated before, the appropriate manner to
supplement the record on appeal is “by motion or
formal request so that the court and opposing
counsel are properly apprised of the status of the
documents in question.” Lowry, 329 F.3d at 1025.
The government failed to so move, and thus we grant
defendants’ motion to strike. However, due to the
reversa! and remand on certain issues, our ruling
here does not preclude application to the district
court for inclusion in the district court’s record for
whatever use is appropriate.
CONCLUSION
We reverse the order dismissing the knowing
endangerment object of Count I of the superseding
indictment. We xeverse the order adopting the
regulatory definition of asbestos used for civil
regulation and direct that the definition in the
criminal statute, i.e., the definition provided in 42
U.S.C. § 7412(b), applies. We grant the
government’s request for a writ of mandate. We
affirm the exclusion of the indoor air studies, the
42a
ATSDR Report, and the Peipins Publication
themselves. However we reverse their exclusion—
and the exclusion of the historic testing—as bases
underlying an expert's opinion or _ testimony.
Finally, we grant defendants’ motion to strike the
documents included with the government’s reply
brief to this court.
AFFIRMED in part, REVERSED in part, and
REMANDED.
WRIT OF MANDAMUS GRANTED on one
issue.
43a
Filed
Dec 05, 2007
Cathy A. Catterson,
Clerk
US. Court of
Appeals
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
)
UNITED STATES OF AMERICA, )
Plaintiff-Appe.lant, )
Vv. )
) No. 06-30472
W.R. GRACE; ALAN R.STRINGER; ) D.C. No. CR-05-00007-DWM
HENRY A. ESCHENBACH; JACK W. )
WOLTER; J. MCCAIG; ROBERT J. +)
BETTACCHI; O. MARIO FAVORITO; )
ROBERT C. WALSH, )
Defendants-Appellees. )
)
)
UNITED STATES OF AMERICA, )
Plaintiff-Appellant, )
Vv. )
) No. 06-30524
W.R. GRACE; ALAN R. STRINGER; ) D.C. No. CR-05-00007-DWM
HENRY A. ESCHENBACH; JACK W. )
WOLTER; WILLIAM MCCAIG; )
ROBERT J. BETTACCHI; O. MARIO )
FAVORITO; ROBERT C. WALSH, )
Defendants-Appellees. )
)
Before: B. FLETCHER, PREGERSON, and
FERGUSON, Circuit Judges.
Judge Pregerson has voted to deny the petitions
for rehearing en banc and Judges B. Fletcher and
Ferguson so recommend.
The full court has been advised of the petitions
for rehearing en banc and no judge has requested a
ees,
44a
_ vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.
The petitions for rehearing en banc are denied.
45a
Filed
Missoula, MT
2006 Aug 7 AM 10:54
PATRICK E. DUFFY
By
: Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
UNITED STATES OF AMERICA, CR 05-07-M-DWM
Plaintiff 3
vs.
W.R. GRACE, ALAN R. STRINGER,
HENRY A. ESCHENBACH, JACK W.
WOLTER, WILLIAM J. MCCAIG;
ROBERT J. BETTACCHI; 0. MARIO
FAVORITO, ROBERT C. WALSH,
Defendants.
ORDER
i i i i i
I. Introduction
The difficult question presented now is what the
Congress meant when it used the term “asbestos.”
How the word is defined has significant legal
ramifications in this criminal case. The definition of
“asbestos” sets the parameters of the Clean Air Act’s
criminal prohibitions and affects the likelihood that
alleged conduct in this case will be deemed criminal.
If the word “asbestos” as applied in the criminal law
includes varieties of winchite and richterite the
criminal case involved here is dramatically different
than if “asbestos” is defined as the phrase has
historically been used by every governmental
regulatory agency to address the issue.
46a
The issue gets resolved through motions in limine
filed by all parties seeking a ruling on the definition
of the term “asbestos” as it appears in the Clean Air
Act, 42 U.S.C. § 7412(b)(1).!1_ The government urges
the Court to adopt a broad reading of the term to
include all of the minerals comprising what the
government calls “Libby amphibole.” The
Defendants argue that the proper definition is the
narrower one set forth in the regulations
implementing the Clean Air Act, which excludes the
minerals that comprise .the majority of the
amphibole found in Libby. For the reasons that
follow, I find that the limited definition advocated by
the Defendants applies to the Clean Air Act offenses
charged in this case.
If. Background
The Superseding Indictment alleges that the
vermiculite mined in Libby was contaminated with
amphibole asbestos “composed of a family of closely
related minerals including tremolite, winchite,
richterite, actinolite and others.” Superseding
Indictment (Doc. No. 590) at 4/4. According to the
Superseding Indictment, “[tJhis amphibole asbestos
has been commonly called ‘tremolite.” Jd. However,
the United States Geological Survey (USGS),
working in conjunction with the Environmental
1 The motions at issue are the government’s Motion in limine
#2 to Exclude Evidence and Argument that Defendants Were
Regulated by the Clean Air Act's NESHAPs Program (Doc. No.
462) and the Defendants’ Joint Motion in limine to Exclude
Evidence Based on Sample Results Indicating the Presence of
Fibers from Minerals that do not Constitute “Asbestos” Under
the Clean Air Act (Doc. No. 474, filed by Defendant Bettacchi
on behalf of all Defendants).
A7a
Protection Agency (EPA) on the Libby clean-up,
analyzed the amphibole at the Libby mine and
concluded that “approximately 84% of the
amphiboles can be classified as winchite, 11% as
richterite, and 6% as tremolite.” Exhibit C to
Supplemental Expert Witness Disclosure of Gregory
P. Meeker, p. 1959.
The EPA acknowledged the reality on the ground
in Libby when its Office of Air Quality Planning and
Standards issued a report titled Action Plan: Air
Emission from Sources of Contaminant Asbestos.
The report states on page 2: “The asbestiform
minerals found at the Libby, MT site were originally
thought to be tremolite asbestos, but more
specifically may be the asbestiform varieties. of
winchite and richterite, neither of which is regulated
explicitly by any EPA regulation.”
The Defendants are charged in Counts IJ through
IV of the Superseding Indictment with violating the
Clean Air Act’s knowing endangerment provision.?
The knowing endangerment offense is codified at 42
U.S.C. § 7413(c)(5)(A), which provides in part:
Any person who knowingly releases into the
ambient air any hazardous air pollutant
listed pursuant to section 7412 of this title or
any extremely hazardous substance listed
pursuant to section 11002(a)(2) of this title
that is not listed in section 7412 of this title,
and who knows at the time that he thereby
2 Defendant Grace is charged alone in Count II; Counts III and
IV name Defendants Grace, Stringer, Wolter and Bettacchi.
Superseding Indictment at 44 185-190.
48a
places another person in imminent danger of
death or serious bodily injury shall, upon
conviction, be punished by a fine under Title
18, or by imprisonment of not more than 15
years, or both.
Section 7412(a)(6) defines “hazardous air
pollutant” as “any air pollutant listed in [Section
7412(b)].” Section 7412(b)(1) provides a compendium
of hazardous air pollutants listed by their chemical
names and in most cases accompanied by the
corresponding Chemical Abstract Services (CAS)
number. Included on the list is “Asbestos,” along
with its CAS number 1332214.
Although the criminal knowing endangerment
provision of 42 U.S.C. § 7413(c)(5)(A) refers to § 7412
for its list of proscribed pollutants, § 7412 is not a
criminal statute. It is part of a civil regulatory
scheme intended to set emissions standards for
certain regulated sources of pollution. Following the
1990 Amendments to the Clean Air Act, EPA was
required to identify categories of sources? for each of
3 There are two types of sources relevant to this discussion. A
“major source” is
any stationary source or group of stationary
sources lccated within a contiguous area and
under common control that emits or has the
potential to emit considering controls, in the
aggregate, 10 tons per year or more of any
hazardous air pollutant or 25 tons per year or
more of any combination of hazardous air
pollutants.
42 U.S.C. § 7412(a)(1).
An “area source” is “any stationary source of hazardous
air pollutants that is not a major source.” 42 U.S.C.
§ 7412(a)(2).
49a
the pollutants listed in § 7412(b)(1). Congress then
directed EPA to promulgate regulatory emissions
standards for all major sources and for those selected
area sources which EPA determines present a threat
of adverse health effects. 42 U.S.C. § 7412(a)(1)-(3),
(c)(1)-(3), (d)(1). These standards are known as
National Emissions Standards for Hazardous Air
Pollutants, or NESHAPs. This statutory command
was accompanied by a savings provision at 42 U.S.C.
§ 7412(q)(1), which clarified that pre-existing
regulatory standards in effect under the prior
version of the section would remain in effect
following the 1990 Amendments.
One such pre-existing standard was set forth in
regulations established in response to the enactment
of the Clean Air Act of 1970. The regulations,
established in 1973, set emissions standards for
asbestos. 38 Fed. Reg. 8820, 8826 (April 6, 1973).
The regulations include a definition of asbestos for
purposes of § 7412 of the Clean Air Act that has been
substantially unchanged since 1973 and was in effect
at the time of the 1990 Amendments to the Act. The
definition is codified at 40 C.F.R. § 61.141 and
states: “Asbestos means the asbestiform varieties of
serpentinite (chrysotile), riebeckite (crocidolite),
cummingtonite-grunerite, anthophyllite, and
actinolite-tremolite.”4 Section 61.141 appears under
4 Similar definitions of “asbestos” appear elsewhere in the
regulatory state, including: 29 C.F.R. § 1910.1001 (adopted by
OSHA); 30 C.F.R. § 71.702(a) (adopted by MSHA); 16 C.F.R. §
1304.3(b) (adopted by CPSC); and 40 C.F.R. § 763.163 (adopted
by EPA). Also, Congress similarly defined “asbestos” in the
Asbestos Hazard and Emergency Response Act (““AHERA”), 15
U.S.C. § 2642(3), enacted in 1986.
50a
the heading “Subpart M-National Emission
Standard for Asbestos.” Also under that heading is
40 C.F.R. § 61.140, which states: “The provisions of
this subpart are applicable to those sources specified
in §§ 61.142 through 61.151, 61.154, and 61.155.”
The parties agree that Defendant Grace’s Libby
mine was not a regulated source under § 61.140 and
was therefore not subject to the civil regulatory
emissions standards established under that subpart.
The Defendants argue that § 61.141’s six-species
definition of asbestos is nonetheless applicable in
this case because that regulation § interprets
§ 7412(b)(1), which in_ turn supplies’ the
identification of hazardous air pollutants for
§ 7413(c)(5)(A), the section defining the criminal
offense. The United States argues that the six-
species definition should not apply because it
appears in a civil regulation and therefore cannot be
relied upon to define the content of a criminal
offense. The parties have attempted to force a
resolution of this dispute once before, but the Court
deferred consideration of the matter until trial. See
United States v. W.R. Grace, 429 F. Supp. 2d 1207,
1238 (D. Mont. 2006).
Since then, the parties’ expert disclosures have
revealed that each side intends to present expert
testimony that assumes that the legal definition of
“asbestos” for purposes of the Clean Air Act wil) be
the one it favors. The government’s witnesses intend
to give opinions on the dangers of “Libby amphibole,”
the composite of all minerals found in Libby
5la
including winchite and richterite.5 The Defendants
have retained expert witnesses who intend to testify
that winchite and richterite are not regulated by any
federal agency.® If the legal dispute is left
unresolved, the jurors will hear lengthy and
potentially confusing testimony from two distinct
sets of experts offering opinions based on different
standards which cannot both be correct. How
asbestos is defined is a legal question that when
answered will dictate the nature and kind of proof
that can be presented to the jury.
III. Analysis
A. Legal standard
The pending motions present a question of
statutory construction. Because this is an issue of
statutory construction, the parties’ extensive citation
to one another’s historical positions on the
interpretation and applicability of the emissions
regulations is not helpful. Evidence of a party’s
previously adopted interpretation, whether it be the
government or the Defendants, is no use in
determining what Congress intended in enacting 42
U.S.C. § 7413(c)(5)(A). In this regard, allegations
that a party is attempting to “have it both ways” are
5 See for example expert witness disclosures for government
witnesses Gregory P. Meeker, James Millette, Christopher
Weis and Aubrey Miller.
6 See for example expert witness disclosures for defense
witnesses Charles Blake, Arthur Langer, Elizabeth Anderson,
Joseph Rodricks, Mickey Gunter, Richard Lee, Fred Pooley and
John Addison.
52a
particularly inapposite, as the canons of statutory
construction do not employ principles of estoppel.
In interpreting a criminal statute to determine
what it means, courts must look first to the language
of the statute, and second to the legislative history of
the law. United States v. Weitzenhoff, 35 F.3d 1275,
1283 (9th Cir. 1994). A court should seek to “give
effect to the plain, common-sense meaning of the
enactment without resorting to an interpretation
that defies common sense.” United States v. Bonilla-
Montenegro, 331 F.3d 1047, 1051 (9th Cir. 2003)
(internal quotation marks omitted). The plain
language of the statute is to be ignored only when a
literal interpretation of the statute would thwart the
purpose of the statutory scheme and lead to an
absurd result. County of Santa Cruz v. Cervantes,
219 F.3d 955, 960 (9th Cir. 2000). Courts should
also reject any interpretation that would render
another statutory provision surplusage or a nullity.
Id. at 961. Resort to the legislative history for aid in
interpreting a statute is only appropriate when the
terms of the statute are ambiguous. Burlington N.
R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 454,
461 (1987) (“Unless exceptional circumstances
dictate otherwise, when we find the terms of a
statute unambiguous, judicial inquiry is complete.”
~~ (internal quotation marks omitted)).
When a criminal statute’s. meaning remains
ambiguous after application of the rules of statutory
construction, the rule of lenity requires that the law
be interpreted to cover only conduct that clearly falls
within its scope. United States v. Lanier, 520 U.S.
259, 266 (1997); United States v. Shabani, 513 U.S.
10, 17 (1994).
53a
B. Discussion
1. The Court’s prior CERCLA Order
The government first argues that this Court has
already decided the matter at issue during the EPA’s
civil enforcement action against Grace. The
government cites the March 9, 2001 Order in which
the Court wrote, “The Action Memorandum
demonstrates a ‘reasonable basis’ to believe that
asbestos contamination is a problem in Libby. The
conclusion is as plain to see as the East Front of the
Rocky Mountains.” United States v. Grace, 134
F. Supp. 2d 1182, 1188 (D. Mont. 2001). The
government argues that because this finding was
“not limited to one of the six commercial types of
asbestos,” Govt.’s Br. (Doc. No. 462) at p. 5, it
constitutes a finding that all of the “Libby
amphibole,” including winchite and richterite, is
asbestos for purposes of the Clean Air Act.
The flaws in the government’s argument are self-
evident. The 2001 Order was issued in the context of
a civil clean-up action under the Comprehensive
Environmental Response, oompensation and
Liability Act (CERCLA). It did not consider or rule
upon any provision of the Clean Air Act, particularly
the criminal part of that law. Moreover, the
language of the opinion is an analysis of whether the
EPA had a reasonable basis to believe there may
have been at the time a “release or threat of release
of a hazardous’ substance or pollutant’ or
contaminant” under CERCLA, 42 U.S.C.
§ 9604(e)(5)(B). CERCLA defines “pollutant or
contaminant” very broadly to include, but not be
limited to:
[A]Jny element, substance, compound, or
mixture, including disease-causing agents,
54a
which after release into the environment and
upon exposure, ingestion, inhalation, or
assimilation into any organism, either
directly from the environment or indirectly
by ingestion through food chains, will or may
reasonably be anticipated to cause death,
disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions
(including malfunctions in reproduction) or
physical deformations, in such organisms or
their offspring ....
42 U.S.C. § 9601(33). Given this broad definition, it
is clear that the Court could have found that EPA
had a rational basis for its belief that there was a
present threat of a release of a hazardous pollutant
or contaminant without necessarily finding that
winchite and richterite are “asbestos” for purposes of
the Clean Air Act. The CERCLA statute strives to
clean and restore the environment. The criminal
part of the Clean Air Act seeks to establish
culpability for harmful events in the environment
that cause serious risks to the well being of humans.
2. Interpretation of 42 U.S.C. §§ 7413(c)(5)(A)
and 7412(b)(1)
Section 7413(c)(5)(A) poses a difficult
interpretative challenge because it draws its
definition of “hazardous air pollutant” from § 7412,
which is a civil regulatory statute. The matter is
complicated by the existence of a NESHAP Program
regulation promulgated under § 7412 that defines
“asbestos.” Normally, an implementing regulation is
a legitimate place to search for clarification of the
meaning of a statute. On the other hand, the
language of § 7412(b)(1) includes not just the word
asbestos but also a corresponding CAS number,
55a
suggesting that Congress felt the proper path to an
interpretation runs through the CAS registry.
Regardless of which path one follows, the conclusion
is an ambiguous statute that must be construed so
that it criminalizes only conduct that is clearly
prohibited. ’
If reading the Clean Air Act’s criminal knowing
endangerment provision is confined to the text’ of the
statute, the reader is left with a general description
of “asbestos” as one of the prohibited hazardous air
pollutants. The government urges the Court to
confine its reading of the statute to that single word
definition, which would make the jury’s finding
regarding this element dependent entirely on expert
testimony as to what minerals constitute asbestos.
But as is clear from reading the CAS registry
(discussed in greater detail below), the Code of
Federal Regulations, and the many _ expert
disclosures filed in this case, there is not a consensus
on the definition of asbestos. A defendant on trial
for releasing “asbestos” would be apprehensive about
the prospect of his fate turning on which expert the
jury found most persuasive in describing which
minerals fall within the scope of the criminal offense.
More problematic is that disputed expert testimony
would define an element of the offense, a matter that
is the province of the court. Thus, § 7412(b)(1)’s use
of the term “asbestos” fails to provide the requisite
fair warning about what conduct is considered
criminal. See Lanier, 520 U.S. at 266-267.
But the text of the statute is not all there is to go
on in determining what conduct has been prescribed.
The regulations implementing § 7412 provide the
six-species definition of asbestos advocated by the
Defendants. The government argues that reference
56a
to the regulations is inappropriate because “this is
not a NESHAPs case.” Govt.’ s Reply Br. at p. 2.
The argument is correct-on that point, and the
Defendants have not argued otherwise. Even so.
this is not a civil case either, yet -§ 7413(c)(5)(A)
relies upon a civil regulatory statute (§ 7412(b)(1))
for its listing of hazardous air pollutants. The
conundrum the government must explain is why
reliance on a civil statute is permissible but reliance
on a civil regulation is not.
The answer from the government is that the
regulatory definition does not apply because it is
part of a regulatory scheme that did not govern
Grace’s . Libby operation. Because the Libby
amphibole is a contaminant in the vermiculite mined
by Grace, the Libby mine was not a regulated source
under the NESHAPs Program. 40 C.F.R. § 61.140.
As a result, the government argues, the definition of
asbestos supplied in the NESHAPs regulations does
not apply to this case. The Defendants point out
that the government’s position would give the word
“asbestos” two different meanings within the same
statute. If the release comes from a regulated source
under 40 C.F.R. § 61.140, then the substance
released is asbestos only if it is one of the six species
listed in 40 C.F.R. § 61.141. If on the other hand the
same substance is released from an unregulated
source such as the Libby mine, then, according to the
government, the definition of asbestos is broader.
The government does not clarify the boundaries of
this “broader” definition, except to say that it
includes winchite and richterite.
To bolster its argument the government notes
that Congress, in enacting AHERA in 1986, included
the six-species definition within the text of the
57a
statute. According to the government, AHERA
shows that when Congress means for the six-species
definition of asbestos to apply, it is capable of saying
so in the statutory text. This argument fails to
account for the fact that there were Clean Air Act
regulations adopting the six-species definition of
“asbestos” in place at the time of the 1990
Amendments to the Act. That regulatory definition
remained in effect after the 1990 Amendments
pursuant to the savings provision in § 7412(q)(1).’
So while Congress did not expressly define
“asbestos” in the text of the statute as it did in
AHERA, Congress did expressly adopt the existing
regulatory standards, including the definition of
“asbestos” found at 40 C.F.R. § 61.141. Congress
also adopted the regulatory language limiting the
-applicability of the NESHAPs Program to a list of
sources that does not include Grace’s’ Libby
operation. See 40 C.F.R. § 61.140.
Statutory ambiguity exists when a single-word
definition of a hazardous air pollutant can have two
different meanings depending on the manner of the
release. The government wants to ignore the
NESHAPs regulations because they are not part of
the statute. The problem with that argument is that
§ 7412 contemplates and in fact requires that
regulations be promulgated to establish national
emissions standards. 42 U.S.C. § 7412(a)(1)-(3),
7 42 U.S.C. § 7412(qg)(1) provides in part: “Any standard under
this section in effect before the date of enactment of the Clean
Air Act Amendments of 1990 [Nov. 15, 1990] shall remain in
force and effect after such date unless modified as provided in
this section before the date of enactment of such Amendments
or under such Amendments.”
58a
(c)(1)-(3), (d)(1). Without the _ regulations
§ 7412(b)(1)’ s listing of hazardous air pollutants is
meaningless. Absent reference to the regulations a
citizen is left with no guidance about prohibited
conduct except the unsatisfactory one-word
definition of asbestos in § 7412(b)(1). The statute
creates an ambiguity. Section 7412’s reference to
“asbestos” does not provide fair notice as to which
minerals are hazardous air pollutants; the statute’s
implementing NESHAPs regulations provide a
definition, but the civil regulatory nature of the
NESHAPs Program renders the applicability of the
regulations questionable in the criminal context.
Reliance upon the CAS number for asbestos
provides no greater clarity. Section 7412(b)(1)
includes CAS numbers for nearly every pollutant
listed in that section. Of the few pollutants lacking
CAS numbers, the statute provides definitions for all
but one. This leads to an inference that the CAS
number is intended to serve a definitional function’
in § 7412(b)(1).
The Chemical Abstract Service is a division of the
American Chemical Society. The CAS registry itself
is a privately maintained database that cannot be
directly accessed unless a fee is paid. The United
States points out much of the database’s content
appears to be available on the EPA’s website. Each
CAS registry entry consists of a list of information
fields for each entry. Information fields include
“CAS Registry Number,” “Chemical Name,”
“Molecular Formula,” “Heading Parent,”
“Definition,” and many others.
The “Definition” field for the entry found at the
CAS registry number for asbestos (1332214) gives
the following definition for asbestos: “A grayish,
59a
noncombustible fibrous material. It consists
primarily of impure magnesium silicate minerals.”
The government argues that this is where the
inquiry should end because the definition is
sufficient to put the Defendants on notice as to what
conduct is prohibited. The government is correct
that the written definition provided in the CAS entry
is more detailed than § 7412(b)(1)’ s simple reference
to “asbestos,” but it does not follow that the more
detailed definition provides fair notice in the sense
that it clearly encompasses the minerals winchite
and richterite. To the contrary, further examination
of the CAS classification system suggests that
winchite and richterite do not fall within the
registry’s definition of asbestos.
Each of the six minerals included in the
regulatory definition of asbestos has a separate
entry in the CAS registry under its own unique CAS
number. In each of those entries, the “heading
parent” is listed as “asbestos,” followed by a listing of
the name of the individual mineral. The CAS
8 See Attachment 2 to Govt.’s Reply Br. (Doc. No. 631). This
document belies the Defendants’ contention that the CAS entry
for asbestos does not include a definition.
9 The following are excerpts from the relevant listings (the field
“NM” stands for “Name Modification”):
For chrysotile: For grunerite:
MOLECULAR FORMULA: Unknown MOLECULAR FORMULA: Unknown
CA NAME(S): CA NAME(S):
HP=Asbestos HP=Asbestos
NM=chrysotile NM=grunerite
OTHER CA NAMES: OTHER CA NAMES:
HP=Chrysotile asbestos HP=Amosite asbestos
For crocidolite/rniebeckite: For tremolite:
60a
registry includes several separate listings that
contain the terms “winchite” and “richterite.” Unlike
the CAS entries for the six species listed in the
NESHAPs regulations, none of the entries for
winchite and richterite lists asbestos as the heading
parent, nor does the term “asbestos” appear
elsewhere in the entries relating to those two
minerals. Instead, the heading parent for each entry
is listed as “winchite” or “richterite.” See
Attachments 11-15 to Exhibit 1 to Defs.’ Resp. Br.
(Doc. No. 581).
A thorough examination of the CAS registry
provides strong clues that winchite and richterite
are not included in the CAS definition of asbesto-.
The government argues that any CAS entry other
than the one for “asbestos” under the number listed
in § 7412(b)(1) is irrelevant. I disagree. The issue
here is what the statute tells an actor about the
MOLECULAR FORMULA: Unknown MOLECULAR FORMULA: Unknown
CA NAME(S): CA NAME(S):
HP=Asbestos HP=Asbestos
NM2<=crocidolite NM=tremolite
OTHER CA NAMES: QTHER CA NAMES:
HP=Crocidolite asbestos HP=Tremolite asbestos
HP=Crocidolite
HP=Asbestos
NM2=riebeckite
HP=Asbestos
=magnesioriebeckite
HP=Riebeckite
For anthophyllite: For actinolite:
MOLECULAR FORMULA: Unknown MOLECULAR FORMULA: Unknown
CA NAME(S): CA NAME(S):
HP=Asbestos HP=Asbestos
NM=anthophyllite NM=actinolite
OTHER CA NAMES: OTHER CA NAMES:
HP=Anthophyllite asbestos HP=Actinolite asbestos
Attachments 2-7 to Exhibit 1 to Defs.' Resp. Br. (Doc. No. 581).
6la
scope of illegal conduct. It is a question of fair
notice. Here the statute refers to a private registry
that is not likely to be discovered or examined except
by a sophisticated actor. Upon finding the entry for
asbestos there is a general definition but no
clarification with respect to which minerals are
included within that definition. It is a fair inference
that such a_ sophisticated actor might then
investigate further within the registry in hopes of
learning more about the scope of the criminal
offense. When he does so, he finds information
suggesting that the six species listed in 40 C.F.R.
§ 61.141 are considered asbestos, while winchite and
richterite are not.
What matters is that this reading of § 7412(b)(1)
is not implausible. From the guidance that Congress
has given, a person could reasonably conclude that
releases of winchite and richterite are not illegal
under the Clean Air Act’s knowing endangerment
provision. That conclusion would appear even more
reasonable to an actor who seeks clarification in the
implementing regulations and finds a definition of
“asbestos” that coincides with the six species having
the heading parent “asbestos” in the CAS registry.
From this finding follows the inescapable conclusion
that §§ 7413(c)(5)(A) and 7412(b)(1) do not clearly
place interested parties on notice of the illegality of
releases of winchite and richterite. A court violates
due process when it attempts to apply “a novel
construction of a criminal statute to conduct that
neither the statute nor any prior judicial decision
has fairly disclosed to be within its scope.” Lanier,
520 U.S. at 266.
The Defendants ask the Court to invoke the rule
of lenity. The Supreme Court applied the rule of
62a
lenity in a case involving an earlier version of the
Clean Air Act. Addressing a question of statutory
interpretation, the Court wrote:
At the very least, it may be said that the
issue is subject to some doubt. Under these
circumstances, we adhere to the familiar rule
that, where there is ambiguity in a criminal
statute, doubts are resolved in favor of the
defendant.
Adamo Wrecking v. United States, 434 U.S. 275, 284-
285 (1978) (citations, internal quotation omitted).
The Supreme Court’s language describes the
situation in this.case. The Clean Air Act’s knowing
endangerment provision sends an actor in two
different directions in search of a definition of the
hazardous air pollutant asbestos. One leads to a
highly technical, privately maintained chemical
database that fails to clarify what minerals are
covered. The other requires reference to a civil
regulatory scheme that does not apply to all releases
and has never governed releases from the Libby
mine. A reasonable person who searches both the
CAS registry and the NESHAPs regulations could
fairly conclude that winchite and richterite are not
covered by § 7412(b)(1); neither the statute, the
regulations, or the CAS registry explicitly includes
those minerals in the definition of “asbestos.” It
must then be said that the definition of “asbestos”
for purposes of the Clean Air <Act’s' knowing
endangerment offense is subject to some doubt.
That doubt must be resolved in favor of the
Defendants, which means that the statute must be
construed to apply “only to conduct clearly covered.”
Lanier, 520 U.S. at 266. The conduct clearly covered
by § 7413(c)(5)(A) is the knowing release of any of
ay — ae
63a
the six species of asbestos listed in 40 C.F.R.
§ 61.141 and appearing under the heading parent
“asbestos” in the CAS registry, i.e., the asbestiform
varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite,
anthophyllite, and actinolite-tremolite. This is the
definition upon which the jury will be instructed at |
trial.
3. Admissibility of the government’s sampling
data and expert testimony
The Defendants request sweeping evidentiary
rulings based on the Court’s construction of
§§ 7413(c)(5)(A) and 7412(b)(1). It is my sense that
specific rulings are best delayed until the Court has
an opportunity to consider the foundation for each
piece of evidence or opinion testimony. This may
occur through the consideration of other pending
motions in limine or through the attempted
introduction of evidence at trial. It is clear from the
record, however, that some _ portion of the
government’s sampling data and expert testimony is
inadmissible. At a minimum, any sampling data
that commingles the minerals making up what the
government calls “Libby amphibole,” without
differentiating between minerals covered by the
Clean Air Act and minerals not covered, is
inadmissible under Fed. R. Evid. 403. -
There is an intolerable risk of unfair prejudice
should the government be allowed to put on expert
after expert testifying that the Defendants
endangered others through the release of a deadly
composite of minerals without stating with any
certainty what percentage of the minerals released
are covered by the criminal] statute under which the
Defendants are charged. The Defendants in that
64a
case would be left in the position of having to argue
to the jury that although the proof shows that people
were endangered by a release of the potentially
deadly minerals winchite and richterite, no crime
results because the statute does not cover the
minerals released. In light of the comparatively low
percentage of covered minerals present in the “Libby
amphibole,” the probative value of such
undifferentiated sampling is far outweighed by the
prejudicial effect of the evidence. Expert testimony
based on undifferentiated samples is _ probably
inadmissible under Fed. R. Evid. 702 and the
relevance prong of Daubert because it does not “fit”
the facts of the case. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 591-593 (1993).
IV. Order
Based on the foregoing, IT IS HEREBY
ORDERED that the government’s Motion in limine #
2 to Exclude Evidence and Argument that
Defendants Were Regulated by the Clean Air Act’s
NESHAPs Program (Doc. No. 462) is DENIED.
IT IS FURTHER ORDERED that the
Defendants’ Joint Motion in limine to Exclude
Evidence Based on Sample Results Indicating the
Presence of Fibers from Minerals that do not
Constitute “Asbestos” Under the Clean Air Act (Doc.
No. 474) is GRANTED insofar as the definition of
“asbestos” for purposes of the Clean Air Act Counts
(Counts II through IV) is limited to the asbestiform
varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite,
anthophyllite, and actinolite-tremolite.
IT IS FURTHER ORDERED that evidentiary
rulings based on this Order will be made on a case-
65a
by-case basis in subsequent orders resolving pending
motions in limine, or at trial.
DATED: this 7th day of August, 2006.
/s/
DONALD W. MOLLOY, Chief Judge
United States District Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.