# Reply Brief — W.R. Grace & Co. v. United States (No. 07-1287)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1347%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2007

## Text

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IN THE
Supreme Court of the United States

W.R. GRACE & Co.,

Petitioner,
v.

UNITED STATES OF AMERICA,

Responcent.

On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

REPLY TO BRIEF IN OPPOSITION

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

June 2, 2008
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES 3
Page(s)
Cases

A.B. Small Co. v. American Sugar Refining Co.,

i 2,3
Barapind v. Enomoto,

400 F.3d 744 (9th Cir. 2005) (en banc) ............ 8
Begay v. United States,

Be es Ne OD once caccnsassvocovcvccscscnncesse 10
Carter v. Carter Coal Co.,

Be oe so vcrocaviccnsneccscnvcsvacesechgecote 2
Chevron, U.S.A., Inc. v. NRDC, Inc.,

Oe te na ss ccce cio cndvecadecesoce 5
National Lime Ass’n v. EPA,

Zon fee Geo G).C, Cir. 2006)...........cccccciccececsee 5
New Jersey v. EPA,

Bhd Boe ore (OC, Cir; 2008).............ccccccococcssee 4
Sabri v. United States,

Re Be, IN CIID oo ca scniscnanccensecedscesecsseccacoccece 10
United States v. National Dairy Prods. Corp.,

I en I ons cvenhchaesaccsaceoncrvenrecece 2.3
United States v. W.R. Grace,

No. 06-30192,

__ F.3d __, 2008 WL 2052204

(9th Cir. May 15, 2008) (en banc)................... 11
Statutes and Regulations
46: U.S.C. § 3781 ..........:. Scabies beadiithaiuaieticaanin deca dais 9
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BETTS PAD inves secciccaenccecccncacccatecsneecteouns 1, 7

Other Authorities

Gressman, Eugene et al.,
Supreme Court Practice (9th ed. 2007).......... 10

Male mi

INTRODUCTION

The central theme of the Government’s opposition
brief is that there are two completely separate and
distinct definitions of “Asbestos” under the Clean Air
Act: the “statutory definition” in 42 U.S.C. § 7412(b),
and the “regulatory definition” in 40 C.F.R. § 61.141.
Opp. 3. That argument is manifestly incorrect.
There is no “statutory definition” of the term
“Asbestos” in the Clean Air Act, and the EPA has
defined that statutory term by regulation. As the
district court recognized, in a justice system that
recognizes the rule of lenity, it would be completely
anomalous and inappropriate to apply a broader
definition of “Asbestos” in a criminal prosecution
under the Clean Air Act than the EPA’s own
definition of that statutory term. Put simply, the
Government may not’ criminally prosecute
defendants under the Clean Air Act for releasing
substances that the Government itself has excluded
from the definition of a hazardous air pollutant
under the Clean Air Act. Because, as highlighted by
amici the National Association of Criminal Defense
Lawyers, the National Association of Manufacturers,
and the American Chemistry Council, the decision
below is. both indefensible and enormously
destabilizing, this Court’s review is warranted.

ARGUMENT

The Government concedes, as it must, that the
Clean Air Act’s “knowing endangerment” provision,
42 U.S.C. § 7413(c)(5)(A), neither lists nor defines
the substances within its scope, but instead cross-
references the list of substances subject to regulation
by the EPA under § 7412(b). See Opp. 15. The
Government insists, however, that § 7412() defines

|
the listed substances to the extent it identifies them
by reference to numbers assigned to them in a
Registry published by a private entity, the Chemical
Abstract Service (CAS). See id. Under this view,
“the straightforward text of the statute” defines the
substances listed in § 7412(b) in whatever manner
the CAS Registry defines those substances at any
given moment in time. Id.

With all due _ respect, that argument is
preposterous. Nothing in the text of § 7412(b)
purports to define any of the listed substances, or
suggests that the CAS Registry definition at any
given moment in time is the “statutory definition” of
any of those substances. The Government has cited
no case in the history of American law, and Grace is
aware of none, in which Congress gave a private
entity the power to define the scope of a criminal
statute.

Indeed, as Grace pointed out in its petition, such
a delegation would raise constitutional concerns of
the first order. See Pet. 14 (citing Carter v. Carter
Coal Co., 298 U.S. 238, 311-12 (1936)). The
Government responds that “there is no constitutional
problem in Congress’s definition of ‘asbestos’ by
reference to the CAS number” because “Congress and
federal agencies may adopt commercial standards,
like those in the CAS Registry, that are ‘accepted
and fairly stable.” Opp. 20 n.8 (quoting United
States v. National Dairy Prods. Corp., 372 U.S. 29,
36 - (1963)) (in turn quoting A.B. Small Co. v.
American Sugar Refining Co., 267 U.S. 233, 240-41
(1925)). But that response is a non sequitur. The
cases cited by the Government stand only for the
unremarkable proposition that a term employed by

3

Congress or a_ federal agency’ is_ not
unconstitutionally vague if it has an accepted
meaning. See National Dairy Prods., 372 US. at 36;
Small, 267 U.S. at 240-41. Those cases in no way
suggest that Congress or a federal agency may
delegate to a private party the authority to define
statutory terms (particularly in a statute with
criminal applications) at whim.

Perhaps for that reason, not even the Ninth
Circuit held that the “statutory definition” of the
substances listed in § 7412(b) is the CAS Registry
definition at any given moment in time. To the
contrary, the Ninth Circuit invoked its own
definition of “asbestos.” After explaining that
“[w]hen Congress does not define a term in a statute,
we construe that term according to its ordinary,
contemporary, common meaning,” Pet. App. 16a
(internal quotation and brackets omitted), the Ninth
Circuit declared that “[i]t 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,”
id. at 16-17a (emphasis added). The Ninth Circuit
asserted that this definition “has been established
for decades,” although the court’s only support for
that assertion was a statement by a putative
Government expert that “asbestos was first defined
in 1920.” Id. at 17a. To be sure, the Ninth Circuit
further stated that this “well known ... common
meaning’ of “asbestos” was consistent with the CAS
definition, see Pet. App. 17a, but it is simply not true
that “the opinion clearly relied on the CAS registry
definition.” Opp. 15 n.6 (emphasis added). Indeed, if
that were so, the Ninth Circuit would have had to

pe |

4

confront the serious constitutional issues presented
by the Government’s interpretation of the statute.

For good reason, the Government conspicuously
declines to defend the Ninth Circuit's “well known ...
common meaning” of “asbestos”: that definition has —
no basis whatsoever in either science or law. Indeed,
that definition is not even limited to minerals, and
would sweep in such everyday substances as talc and
fiberglass. The Government does not deny this
point, but simply asserts that “whether the statute
could in some cases reach” substances such as talc
and fiberglass is “a question that is not implicated on
the facts alleged in this case.” Opp. 15 n.6. If ever
there were a tacit admission that a case has gone off
the rails, this is it. In a circuit covering nine States
in the western third of this Nation, the Government
now can prosecute someone for releasing talc into the
ambient air.

The Government insists, however, that the
definition of “Asbestos” in § 7412(b) has nothing to do
with the EPA’s definition of “Asbestos” in 40 C.F.R.
§ 61.141. See Opp. 16-18. That is most obviously so,
according to the Government, because the EPA’s
definition of “Asbestos” dates back to the 1970s,
whereas Congress did not add the word “Asbestos” to
§ 7412(b) until 1990. Opp. 17. That argument is
disingenuous at best.

Section 7412 has been part of the Clean Air Act
since the statute’s enactment in 1970, and has
always required the EPA to regulate “hazardous air
pollutants.” See New Jersey v. EPA, 517 F.3d 574,
578 (D.C. Cir. 2008). Originally, Congress did not
specify any hazardous air pollutants, but left it up to
the agency to devise the list. See id. After almost

5

twenty years, however, the agency had listed only
eight such pollutants. Accordingly, Congress grew
impatient, and amended the statute in 1990 by
listing almost two hundred hazardous air pollutants,
including “Asbestos,” that the agency was required to
regulate. See id.; see also National Lime Ass’n v.
EPA, 233 F.3d 625, 633-34 (D.C. Cir. 2000).

The key point here, which the Government
conveniently omits from its brief, is that “Asbestos”
is one of the eight hazardous air pollutants that the
EPA has regulated under § 7412 since the 1970s.
Thus, the Government’s suggestion that the EPA’s
definition of “Asbestos” has nothing to do with § 7412
because that definition “predated Congress’s addition
of [“Asbestos”] to the statute by more than fifteen
years, Opp. 17, makes no sense. Section 7412 is,
and always has been, a statutory source of authority
for the EPA to regulate hazardous air pollutants,
including asbestos. See 40 C.F.R. § 61.141 (citing
§ 7412 as a source of authority). Far from being
independent of the term “Asbestos” in § 7412, the
EPA’s definition gives meaning to that term.

Indeed, if the Government were correct that the
CAS Registry definition of “Asbestos” at any given
moment in time is the “statutory definition” of
“Asbestos” in § 7412(b), then the EPA’s definition
would be invalid. Under basic principles of
administrative law, after all, an agency has no
discretion where “Congress has directly spoken to
the precise question at issue.” Chevron, U.S.A., Inc.
vu. NRDC, Inc., 467 U.S. 837, 843-44 (1984). Thus,
where there is a “statutory definition” of a particular
statutory term, an agency may not define that term
differently. That simple point refutes the central

6

theme of both the Government’s brief and the
decision below that the “regulatory definition” of
“Asbestos” is separate and distinct from the
“statutory definition” of that term. As a matter of
law and logic, there cannot be a “regulatory
definition” of a statutory term different than, and
unmoored from, a “statutory definition” of that term.

The Government argues, however, that the EPA’s
definition of “Asbestos” in § 7412(b) is irrelevant here
because the Grace operations in Libby were not a
regulated source of asbestos. See Opp. 16-17. That
argument misses the point. The issue here is the
meaning of the term “Asbestos” in § 7412(b).
Needless to say, the EPA’s definition of “Asbestos” in
§ 7412(b) provides the most obvious source of that
meaning. Certainly, in a legal regime that still
purports to follow the rule of lenity, the Government
should not be allowed to prosecute defendants for
releasing “Asbestos” under the Clean Air Act when
the Government itself has excluded the substances at
issue from the definition of “Asbestos” under the
Clean Air Act. Whether the EPA has chosen to
regulate a particular source of “Asbestos” is
immaterial; what matters is that individuals and
businesses are entitled to rely on the EPA’s
definition of “Asbestos” in § 7412 in ordering their
conduct. And that point is particularly compelling
where, as here, Congress itself and every other
governmental agency to define asbestos has done so
in a way that excludes winchite and richterite (which
account for approximately 95% of the amphibole
impurities in Libby vermiculite). See Pet. 11-12.

The Government tellingly makes no effort to
defend the Ninth Circuit’s conclusion that the

7

“knowing endangerment” provision of the Clean Air
Act, 42 U.S.C. § 7413(c)(5)(A), “pulls its definitions
from a separate provision than does the regulatory
provision.” Pet. App. 19a (emphasis added). Both
the knowing endangerment provision and the EPA’s
regulations draw on the same list of hazardous air
pollutants in § 7412(b). There is not one “criminal”
definition .of “Asbestos” and another distinct
“regulatory” definition. Indeed, the Government
concedes that the Ninth Circuit misunderstood the
statutory scheme by characterizing the EPA’s
regulatory program as “civil” in nature, because
that “regulatory program may be enforced either
civilly or criminally.” Opp. 17 n.7 (emphasis added;
quoting Pet. App. 19a). In other words, the
Government disavows the very premise of the Ninth
Circuit’s decision that the Clean Air Act establishes
“two oversight structures—a civil regulatory
structure and a criminal enforcement provision—
that use different definitions of the term ‘asbestos.”
Pet. App. 18a (emphasis added).

The Government also disavows the Ninth
Circuit's reliance on “defendants’ knowledge of the
industrial chemicals field,” Pet. App. 17a, as a
justification for holding they either knew or should
have known of the “well known ... common meaning”
of “asbestos” announced by the Ninth Circuit, id. at
16-17a. As the Government acknowledges, there is
not a shred of evidence to support the Ninth Circuit’s
assertion that “defendants had actual knowledge in
this case of the risks from the fibrous content of the
asbestiform minerals in their products” because
“[t]hey are all familiar with asbestos.” Jd. at 17a.
Rather, there are only “allegations in the indictment
about petitioners’ knowledge,” and “[w]hether the

8

government can prove petitioners’ knowledge of the
risks from the fibrous content of asbestiform
minerals in their products beyond a reasonable doubt
is, of course, plainly a matter for proof at the trial.”
Opp. 21 & n.10 (internal quotation omitted).

The Government nonetheless tries to dismiss the
Ninth Circuit’s reasoning with respect to petitioners’
alleged knowledge as a mere “passing reference” that
“was at most dictum.” Opp. 22. But the Ninth
Circuit itself treats such reasoning as binding circuit
law “regardless of whether it was in some technical
sense ‘necessary to our disposition of the case.”
Barapind v. Enomoto, 400 F.3d 744, 750-51 & n.8
(9th Cir. 2005) (en banc). Thus, unless reviewed by
this Court, the law in nine States in the western
third of this Nation is that the rule of lenity does not
apply where a criminal indictment makes allegations
about a defendant’s knowledge, see Pet App. 17a—a
proposition that not even the Government can or will
defend.

The Government, however, insists that this
Court’s review is unwarranted on the theory that it
does not matter whether the term “Asbestos” in
§ 7412(b) is defined by reference to the CAS Registry
definition or the EPA regulatory definition. See Opp.
14-15. According to the Government, “even if the
[regulatory] definition governed, the asbestiform
minerals found in Libby that geologists identify as
winchite and richterite would be classified as forms
of tremolite or actinolite-tremolite that fall squarely
within the ... regulatory definition.” Jd. at 14. That
statement is manifestly incorrect, as the Government
itself underscored by certifying, in order to take this
interlocutory criminal appeal, that the district

9
court's order excluded evidence that was “a
substantial proof of a fact material in the
proceeding.” 18 U.S.C. § 3731. Because the district
_ court here only excluded evidence relating to releases
of minerals that are not covered by the EPA’s
definition of “Asbestos,” see Pet. App. 64a, the
Government is essentially arguing that its
certification was false, and that it was never entitled
to appeal in the first place.

In any event, it is all fine and good for “the
government's expert geologist,” Opp. 14 (emphasis
added), to opine that winchite and richterite are
forms of tremolite or actinolite-tremolite, but that
does not make it so. Defendants vigorously dispute
that point, and neither the district court nor the
Ninth Circuit accepted it. Certainly, the
Government cannot avoid this Court’s review of the
Ninth Circuit’s erroneous and open-ended definition
of “Asbestos” in § 7412(b) by simply asking this
Court to accept on faith that the result here would be
the same under the EPA’s narrower definition of
“Asbestos” in § 7412(b). Indeed, if the Government
really believed this argument, then the Government
should not care if this Court summarily reversed the
Ninth Circuit’s decision, since (as noted above) the
district court did not exclude any evidence relating to
releases of “Asbestos” as defined by the EPA. See
Pet. App. 64a.

Finally, the Government cannot avoid this
Court’s review by arguing that this case is in an
“interlocutory posture,” Opp. 12, and noting that
defendants may be acquitted on remand even under
the Ninth Circuit’s definition of “Asbestos,” see id.
As the Government itself has explained, this Court

10

often has granted certiorari “in federal criminal
cases where a court of appeals has remanded for
further proceedings, but where a controlling legal
issue that will govern further proceedings warrants
the Court’s attention.” Reply Br. for the U.S. in
Support of Pet. fer Cert., United States v. Ressam,
No. 07-455, 2007 WL 4142601, at *7-8 (filed Nov. 20,
2007) (citing cases); see generally Eugene Gressman
et al., Supreme Court Practice § 4.18, at 281 (9th ed.
2007); Begay v. United States, 128 S. Ct. 1581 (2008)
(deciding criminal case in this posture over the
Government's opposition); Sabri v. United States,
541 U.S. 600 (2004) (same). Because the
Government does not explain how “a full trial
record,” Opp. 12, would shed any light on the
correctness of the Ninth Circuit’s definition of
“Asbestos,” or what “unresolved factual issues” on
this score remain for trial, id. at 13, there is no
reason for this Court to postpone its review until
after the Government has put Grace and the six
individual defendants through a criminal trial under
the Ninth Circuit’s erroneous definition.

And the Government’s further suggestion that
this Court’s review of the Ninth Circuit’s decision
would foster “unnecessary delays in the trial
process,” Opp. 12, is the epitome of irony. The
Government itself delayed the trial by filing this
interlocutory appeal in the first place. Having taken
that step, the Government cannot now invoke trial
delay as a reason to immunize the Ninth Circuit's
decision from this Court’s review. Indeed, as three
Judges of the Ninth Circuit recently noted in yet
another interlocutory appeal by the Government
arising out of this prosecution, the trial in this case
has been delayed by the Government’s indict-first-

1]

investigate-later approach. See United States w. W.R.
Grace, No. 06-30192, __ F.3d __, 2008 WL 2052204,
at “23 (9th Cir. May 15, 2008) (en banc) (opinion
concurring in the judgment) (“The Government’s
litigation strategy has effectively derailed the
criminal trial, while it no doubt continues its search
for more witnesses and victims. The trial date
remains in limbo, and the defendants’ right to a
speedy trial has been completely frustrated.”).

In the final analysis, the Government is trying to
rewrite, not defenc, the decision below. The
Government does not defend the Ninth Circuit’s
conclusion that the Clean Air Act establishes “two
oversight structures—a civil regulatory structure
and a criminal enforcement provision.” Pet. App.
18a; see Opp. 17 n.7. The Government does not
defend the Ninth Circuit’s conclusion that “[i]t 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.” Pet. App. 16-17a; see Opp. 15 & n.6.
The Government does not defend the Ninth Circuit’s
_ conclusion that “defendants had actual notice in this
case of the risks from the fibrous content of the
asbestiform minerals in their products.” Pet. App.
17a; see Opp. 21-22 & n.10. Stripped of these
undefended (and indefensible) points, there is really
nothing left of the decision below. Because that
decision leaves the scope of the Clean Air Act’s
knowing endangerment provision indeterminate and
potentially boundless, and (as amici have
underscored) deprives individuals and businesses of
fair warning about what substances they may and
may not release under the Act, this Court should
grant review.

12

CONCLUSION

For the foregoing reasons, this Court should
either summarily reverse the decision below or set
the case for plenary review.

June 2, 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) 879-5000

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1347%3A4. Public record. Not legal advice.