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

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## Record

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

## Text

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Nos. 07-1286 and 07-1 je

W.k. GRACE & COMPANY, PETITIONER
Vv.
UNITED STATES OF AMERICA

HENRY A. ESCHENBACH, ET AL., PETITIONERS
Vv.
UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General

KEVIN M. CASSIDY
ALLEN M. BRABENDER
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Clean Air Act’s inclusion of “asbes-
tos” in its list of hazardous air pollutants, 42 U.S.C.
7412(b)(1), provides an independent definition and gives
fair notice of its scope in a criminal prosecution charging
defendants with “knowingly releas[ing] into the ambient
air [a] hazardous air pollutant listed pursuant to section
7412,” and knowing at the time of the release “that
[they] thereby place[] another person in imminent dan-
ger of death or serious bodily injury” in violation of 42
U.S.C. 7413(¢)(5)(A).

2. Whether the knowing endangerment object of the
Clean Air Act conspiracy count in the superseding in-
dictment was timely filed pursuant to 18 U.S.C. 3288,
which allows the government six months to reindict
whenever an indictment is dismissed for any reason
after the applicable statute of limitations has expired,
except “where the reason for the dismissal was the fail-
ure to file the indictment or information within the per-
iod prescribed by the applicable statute of limitations, or
some other reason that would bar a new prosecution.”

(I)

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TABLE OF CONTENTS

Page
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TABLE OF AUTHORITIES

Cases:

American Chem. Soc’y v. United States, 488 F.2d 597

ee ERs as 5 ye Suen eos oy nab aS Rok 4
Boyce Motor Lines v. United States, 342 U.S. 337.

SOU iy Sch b's Ske Pe ee dwch oe ee ee 19, 20, 21
Burgess v. United States, 128 S. Ct. 1572 (2008) ........ 21
Connally v. General Constr. Co., 269 U.S. 385 U.S.

(1926) ...... Se eae ww Ok ee eo ea VS Fev obs ba ws 18
Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 22
Hamulton-Brown Shoe Co. v. Wolf Bros. & Co., 240

RAM ok hie sc ce ceabes es ss Ye aaa ee 12
Hill v. Colorado, 530 U.S. 708 (2000) ..............202. 19
Hygrade Provision Co. v. Sherman, 266 U.S. 497

SUE ESI SSB a eet pi aren ey Renae pe enn 19
Major League Baseball Players Ass’n v. Garvey, 532

I a ee 13
Omaechevarria v. Idaho, 246 U.S. 343 (1918) .......... 19
Small Co. v. American Sugar Ref. Co., 267 U.S. 233 —

Rs kb He os ee Sn a Caen ios wk sees 20
United States v. Approximately 64,695 Pounds of

Shark Fins, 520 F.3d 976 (9th Cir. 2008) ............ 22
United States v. Lanier, 520 U.S. 259 (1997) .......... 19

(IIT)

IV

Cases—Continued: Page

United States v. National Dairy Prods. Corp., 372

Rie ED hee Si wins oak 6 ea Stele ed Wee Pecoca ns 20
United States v. W.R. Grace & Co., 429 F.3d 1224 (9th

SR vg oa ns os se ee eee as whcwks ces 13
Village of Hoffman Estates v. Flipside Hoffman

Estates, Inc., 455 U.S. 489 (1982) ............... 19, 20
VMI v. United States, 508 U.S. 946 (1993) ............ 12

Statutes and regulations:
Clean Air Act, 42 U.S.C. 7401 et seq.:

eR I in nics bv cos vce cndececbes 9, 16, 19

SE UAE, FRR) voc cc cece 3, 4, 7, 15, 17, 18, 20

42 U.S.C. 7412(b)(1)(B) (1988) ...............20000- 16

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GU As, FOOD 0 on coc i ccc cee cece passim
Clean Air Act Amendment of 1990, Pub. L. No. 101-

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Clean Water Act, 33 U.S.C. 1319(e)(8)(A) ............. 18
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Statute and regulations—Continued: Page
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40 C.F.R.:
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/ Miscellaneous:
38 Fed. Reg. (1973):
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39 Fed. Reg. (1974):
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44 Fed. Reg. 28,559-28,560 (1979) ............. cece eee 4
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Robert L. Stern et al., Supreme Court Practice (8th Se
2 Ea RN IR US NN Na ep er oer 12

United States EPA, Substance Registry System
(visited May 23, 2008):

http:/Aaspub.epa.gov/srs/srs_proc_qry.navigate?
Fe I Soa sc he dcvecccoceweuyes 4, 15, 20

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In the Supreme Court of the Gnited States

No. 07-1286
W.R. GRACE & COMPANY, PETITIONER
v.
UNITED STATES OF AMERICA

No. 07-1287
HENRY A. ESCHENBACH, ET AL., PETITIONERS
Vv.
UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS:
FOR THE NINTH CIRCUIT

BRIEF FOR THE UN ITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-42a)
is reported at 504 F.3d 745.’ The relevant orders of the
district court are reported at 455 F. Supp. 2d 1122 (Pet.
App. 45a-65a) and 455 F. Supp. 2d 1113 (Pet. App. 66a-
83a).

' All references to “Pet. App.” are to the appendix filed in No.
07-1287.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on
September 20, 2007. A petition for rehearing was denied
on December 5, 2007 (Pet. App. 48a-44a). On February
14, 2007, Justice Kennedy extended the time within
which to file a petition for a writ of certiorari to and in-
cluding April 14, 2008, and the petition was filed on that
date. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

STATEMENT

Petitioners, W.R. Grace and six former company offi-
cials, are charged by superseding indictment with con-
spiring (1) knowingly to release asbestos, a hazardous
pollutant, into the ambient air, thereby knowingly plac-
ing persons in imminent danger of death or serious
bodily injury, in violation of the Clean Air Act, 42 U.S.C.
7413(c)(5)(A) (knowing endangerment object), and (2) to
defraud the United States by impairing, impeding, and
frustrating the government functions of its agencies, in
violation of 18 U.S.C. 371 (defrauding object). Pet. App.
104a-149a. Petitioner W.R. Grace and certain individual
petitioners also are charged, inter alia, in several counts
with knowing endangerment in violation of 42 U.S.C.
7413(c)(5)(A). The superseding indictment alleges that
petitioners distributed asbestos-contaminated vermicu-
lite from the company’s mining and processing opera-
tions for a variety of public and private uses by the peo-
ple of Libby, Montana, even though they knew the dev-
astating health effects that would result from exposure
to the asbestos, including asbestosis and mesothelioma.
Pet. App. 118a-149a.

On pretrial motions, the district court concluded that
“asbestos” for purposes of this criminal prosecution

3

should be defined in accordance with a regulatory defini-
tion promulgated by the Environmental Protection Ag-
ency (EPA), rather than its statutory definition, and
accordingly held that it would exclude evidence not lim-
ited to the narrower regulatory definition. Pet. App.
45a-65a. The district court also dismissed the knowing
endangerment object in the conspiracy count as time-
barred. Jd. at 66a-83a. The court of appeals reversed
those pretrial rulings and remanded to the district court
for further proceedings. /d. at la-42a.

1. The Clean Air Act makes it unlawful to knowingly
endanger another person through the release of listed
hazardous air pollutants. See 42 U.S.C. 7413(c)(5)(A).
This provision, added by Congress in the 1990 amend-
ments to the Act, states 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.

Ibid.

Section 7412(b)(1) provides a list of hazardous air
po ants by their chemical names and in most cases by
their corresponding Chemical Abstract Service (CAS)
numbers. 42 U.S.C. 7412(b)(1). In 1990, at the same
time Congress added the crime of knowing endanger-
ment to the Act, it amended Section 7412(b)(1) to add
192 hazardous air pollutants, referring to the pollutants
for the first time by their CAS number. Clean Air Act
Amendments of 1990, Pub. L. 101-549, § 301, 104 Stat.

|
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2532. One of those pollutants was the chemical “Asbes-
tos” with its CAS number 1332214. Jbid. The CAS reg-
istry defines “1332-21-4 Asbestos” as “[{a] grayish non-
combustible fibrous materia!. It consists primarily of
impure magnesium silicates.” See EPA, Substance Reg-
istry System (visited May 23, 2008) .”
While there are many varieties of asbestos—many with
their own unique CAS number, Further E.R.
(F.E.R.) 386—the general description in CAS number
1332214 captures all forms of asbestos that satisfy the
CAS Registry’s definition of asbestos. That general def-
inition has been established for decades. See Pet. App.
17a.

In addition to the criminal knowing endangerment
provision above, the Clean Air Act contains a variety of
provisions for controlling the release of listed hazardous
air pollutants into the ambient air. For example, for
major sources and area sources of listed hazardous

* The Chemical Abstract Service is a division of the American Chem-
ical Society, a non-profit scientific and educational organization. See
generally American Chem. Soc’y v. United States, 438 F.2d 597, 597-
600 (Ct. Cl. 1971). The Society’s CAS Registry assigns unique numeric
identifiers to chemical compounds. /bid. In addition to Congress’s use
of the CAS Registry in Section 7412(b)(1), federal agencies also fre-
quently use the CAS Registry for identifying chemical substances. See,
e.g., 15 C.F.R. 712.6; 21 C.F.R. 170.35; 40 C.F.R. 302.4. EPA maintains
on its website a free, searchable “Substance Registry System” con-
taining CAS Registry information, which includes the definition of
asbestos with CAS number 1332214. See EPA, Substance Registry
System (visited May 23, 2008) (search “as-
bestos”; follow link associated with 1332-21-4); see also 44 Fed. Reg.
28,559-28,560 (1979) (announcing public availability of the Initial Inven-
tory of Chemical Substances ‘compiled under section 8(a) and (b) of the
Toxie Substances Control Act and discussing importance of use of CAS
numbers to identify chemical substances in the inventory).

5

air pollutants, the Act directs EPA to “promulgate regu-
lations establishing emission standards.” 42 U.S.C.
7412(d). These emission standards are known as the
National Emission Standards for Hazardous Air Pollut-
iH ants (NESHAPs). The asbestos NESHAPs are found at
40 C.F.R. 61.140 et seg. In 40 C.F.R. 61.141, EPA de-
fined asbestos as limited to five commercially valuable
forms of asbestos: “the asbestiform varieties of serpen-
tinite (chrysotile), riebeckite (crocidolite), cummingto-
nite-grunerite, anthophyllite, and actinolite-tremolite.”
40 C.F.R. 61.141.7 But EPA expressly provided that
that definition applies only to the NESHAP regulatory
program. See 40 C.F.R. 61.140 (providing that “(t]he
provisions of this subpart are applicable to those sources
| specified”). It is undisputed that petitioners’ Libby op-
erations were not a regulated source of asbestos for
NESHAP purposes.‘

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* EPA’s original NESHAP definition of asbestos, enacted in 1973,
a included six varieties of asbestos minerals. See 38 Fed. Reg. 8829
| (1973) (defining “asbestos” to mean “actinolite, amosite, anthophyllite,
a chrysotile, crocidolite, [and] tremolite”). In 1984, EPA amended the
} NESHAP definition to its current form. See 49 Fed. Reg. 13,661 (1984)
(defining “asbestos” to mean “the asbestiform varieties of serpentinite
(chrysotile), riebeckite (crocidolite), cummingtonite-grunerite, antho-
phyllite, and actinolite-tremolite”). Although the current NESHAP
definition identifies only five varieties of asbestos minerals, it is often
still referred to as the “six-species” definition.

* The NESHAP asbestos regulations exclude petitioners’ Libby op-
erations in two respects. First, they exclude mining operations as a
covered source. See 38 Fed. Reg. 8821 (1973). Second, they cover only
“commercial asbestos,” to “make it clear that materials that contain as-
bestos as a contaminant only are not covered.” 39 Fed. Reg. 15,397
(1974). Petitioners acknowledged below that the asbestos NESHAPs
do not apply to their Libby operations. Pet. App. 50a; E.R. 453 (“{Pe-
titioner] Grace’s Libby mine was not a regulated source under [40
C.F.R.] § 61.140 and was therefore not subject to the civil regulatory

6

2. On February 7, 2005, a federal grand jury re-
turned a ten-count indictment charging petitioners,
W.R. Grace and six of its officials, with criminal conduct
in the mining, processing, and marketing of vermiculite
contaminated with asbestos in and around Libby.
E.R. 1-49.° The indictment alleged that petitioners con-
spired from approximately 1976 to 2002: (1) knowingly
to release asbestos, a hazardous pollutant, into the ambi-
ent 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) to defraud the United
States by impairing, impeding, and frustrating the gov-
ernment functions of its agencies, in violation of 18
U.S.C. 371. E.R. 15. In addition to that two-object con-
spiracy count, the indictment contained three substan-
tive counts against W.R. Grace and certain individual
petitioners for knowing endangerment under the Clean
Air Act, 42 U.S.C. 7413(c)(5)(A); two counts of wire
fraud, 18 U.S.C. 1343 (later voluntarily dismissed); and
four counts of obstruction of justice, 18 U.S.C. 1505.
E.R. 43-49.

3. The district court set a “firm” trial date of Sep-
tember 11, 2006. E.R. 51. Before trial, petitioners filed
approximately 70 substantive motions seeking various
forms of relief from the district court.

a. As relevant here, petitioners moved to exclude all
evidence and testimony “that contains, is based on, or
relies on sample results that fail to distinguish between
fibers from minerals legally classified as ‘asbestos,’ and
those that are not.” CR-05-07-M-DWM Docket entry

emissions standards established under that subpart.”).

* The indictment charged a seventh company official who has since
died.

7

No. 474, at 19 (D. Mont. May 31, 2006). Petitioners con-
tended (zd. at 12-15) that the term “asbestos” included
only those minerals listed in the NESHAP regulatory
definition of asbestos for certain commercial sources of
asbestos emissions. See 40 C.F.R. 61.141. Petitioners’
motion cited an excerpt from a government expert’s
study that stated approximately 84% of the asbestos at
the Libby mine could be classified as winchite, 11%
richterite, and 6% tremolite. See CR-05-07-M-DWM
Docket entry No. 474, at 3 (D. Mont. May 31, 2006).

On August 7, 2006, the district court held that it
would instruct the jury using petitioners’ proposed nar-
row NESHAP regulatory definition of asbestos. Pet.
App. 45a-65a. In so doing, the district court rejected the
government’s argument that asbestos, in all of its forms,
is covered by the plain terms of 42 U.S.C. 7412(b)(1) as
a hazardous air pollutant, and as such its knowing re-
lease in a manner that would knowingly endanger anoth-
er person was a criminal act. Pet. App. 59a. The court
also rejected (id. at 56a-57a) the government’s argument
that the definition in the NESHAP regulations did not
apply because that definition only reaches regulated
sources of emissions (and the parties agree Libby is not
a regulated source, id. at 50a; see note 4, supra). The
court concluded that the statute was ambiguous, and it
resorted to the rule of lenity in limiting the definition of
asbestos to the species listed in the regulations. /d. at
6la-63a. As a result of its holding, the district court ex-
cluded “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.” Jd. at 63a.

b. Petitioners also moved to dismiss the knowing
endangerment object of the conspiracy count, arguing

8

that the government failed to allege an overt act in fur-
therance of that object that fell within the applicable
statute of limitations period. Pet. App. 4a-5a. The gov-
ernment disputed petitioners’ characterization of the
indictment, contending that certain of the alleged overt
acts falling within the limitations period pertained to
both the knowing endangerment and the defrauding
objects of the conspiracy. /d. at 5a. On June 8, 2006, the
district court, after examining those overt acts, con-
cluded those acts “more plausibly suggest[] a completed
operation than a conspiracy still at work,” id. at 101a,
and thus were done solely in furtherance of the defraud-
ing object. See zd. at 93a-103a. It therefore dismissed
“with prejudice” the knowing endangerment object as
time-barred. /d. at 103a.

On June 26, 2006, less than three weeks after the dis-
trict court’s order, the grand jury returned a supersed-
ing indictment. Pet. App. 104a-154a. The superseding
indictment included a conspiracy count alleging the
same objects and overt acts in furtherance of those ob-
jects as included in the original indictment, but it clari-
fied that certain overt acts falling within the applicable
statute of limitations period were alleged to have fur-
thered both the defrauding and the knowing endanger-
ment objects of the conspiracy. Pet. App. 6a; see id. at
69a-71la & n. 5 (describing changes).

Petitioners moved to dismiss the superseding indict-
ment. The district court agreed with the government
that the superseding indictment cured the deficiency the
court had perceived in the original indictment because
the superseding indictment, “while alleging the same
facts, places them in a different context, making clear
the government’s theory that the acts in Paragraphs
173-183 were done in part in furtherance of the knowing

9

endangerment object.” Pet. App. 73a. It thus concluded
that the superseding indictment would have survived
petitioners’ original motion to dismiss. Jd. at 7la-77a.
The district court nevertheless rejected (7d. at 77a-83a)
the government’s contention that the superseding indict-
ment was timely under 18 U.S.C. 3288. Section 3288's
savings clause generally provides the government six
months to file a new indictment after a previous indict-
ment is dismissed for any reason after the applicable ©
statute of limitations has expired. See 18 U.S.C. 3288.
The exception is that the statute “does not permit the
filing of a new indictment * * * where the reason for
the dismissal [of the previous indictment] was the failure
to file the indictment * * * within the period pre-
scribed by the applicable statute of limitations, or some
other reason that would bar a new prosecution.” Jbid.
The court reasoned that Section 3288 did not save the
superseding indictment because the original indictment
“failed to allege an overt act in furtherance of the know-
ing endangerment object within the limitations period.”
Pet. App. 81a.

ec. The government appealed those rulings, among
others, pursuant to 18 U.S.C. 3731, and sought a writ of ©
mandamus with respect to another order. The district
court postponed trial pending appellate review.
E.R. 472-473, 524-525.

4. The court of appeals affirmed in part, reversed in
part, remanded in part, and granted a writ of mandamus
on one issue. Pet. App. la-42a.

a. As relevant here, the court of appeals held that
the statutory description of asbestos in 42 U.S.C.
7412(b), 2.e., “CAS number * * * 1332214 Asbestos,”
controls for purposes of the Clean Air Act’s knowing
endangerment crime. Pet. App. 15a-16a. The court re-

Se A ay ae a eae
. “ BTA ier gts

10

jected the district court’s conclusion that that statutory
description failed to provide petitioners with fair notice
of their criminal conduct. /d. at 16a-19a. The court rea-
soned that, “[w]hen Congress does not define a term in
a statute,” the term should be construed “according to
its ordinary, contemporary, common meaning.” /d. at
16a (citation omitted). The court noted that the term
“asbestos” has a common meaning, and that the statute
incorporated by reference the CAS Registry definition,
which “has been established for decades.” Jd. at 16a-
17a. The court of appeals concluded that because the
statute adequately defined “asbestos,” the statute “need
not include mineral-by-mineral classifications to provide
notice of its hazardous nature, particularly to these
knowledgeable defendants.” Jd. at 19a-20a.

The court further concluded that the district court
erred in applying the rule of lenity “simply because of
the existence of two oversight structures.” Pet. App.
18a. The court observed that the NESHAP regulatory
system “regulates major sources of hazardous air pollut-
ants, 42 U.S.C. § 7412(c)-(g), and therefore understand-
ably focuses on a subset of asbestifo[r]m minerals
deemed to have commercial potential,” whereas “[t]he
direct enforcement mechanism created in 42 U.S.C.
§ 7413 focuses on risks to health” and therefore “pro-
vides oversight of release of hazardous pollutants whe-
ther or not they come from major sources of pollution.”
Pet. App. 19a. It therefore concluded that the district
court erred in conflating the two enforcement mecha-
nisms by importing into the knowing endangerment pro-
vision the definition of asbestos from the NESHAP reg-
ulations that, even in the context of the NESHAP re-
gime itself, applies only to very limited and specifically

11

enumerated regulated sources of asbestos emissions.
Id. at 19a-20a.

b. The court also reversed the district court’s order
dismissing as “time-barred” the knowing endangerment
object of the conspiracy count, concluding that the dis-
trict court misapprehended the savings clause of 18
U.S.C. 3288. Pet. App. 13a. While Section 3288 “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 pre-
scribed by the applicable statute of limitations,” 18
U.S.C. 3288, the court observed that, “there is no dis-
pute that the government filed its [original] indictment
within the statute of limitations period.” Pet. App. 8a-
9a. Instead, “[t]he district court dismissed the knowing
endangerment object in the original indictment as ‘time-
barred,’ because [the government] failed to allege an
overt act within the statute of limitations, not because
the indictment was untimely filed.” Jd. at 9a. The court
of appeals concluded that the “failure to allege the nec-
essary overt acts in the original indictment” was “a flaw
that can be cured through re-indictment under § 3288.”
Id. at 1la. The court rejected the notion that this result
was unfair because it extended the statute of limitations,
reasoning that that “is exactly what § 3288 does”: “[i]t
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.” Jd. at 12a-13a.

ARGUMENT

Petitioners seek review of the court of appeals’ con-
clusions that: the statutory term “asbestos” in the Clean
Air Act, rather than an EPA regulatory definition, gov-

>

12

erns prosecutions for knowingly releasing asbestos with
knowledge that the release will endanger other persons;
the statutory definition provides fair notice and avoids
rule-of-lenity concerns; and the superseding indictment
tying the originally alleged overt acts more explicitly to

the knowing endangerment object of the conspiracy was —

timely under 18 U.S.C. 3288, following the dismissal of
the original indictment for failing to draw that connec-
tion. None of those claims has merit or implicates a cir-
cuit conflict; and all arise in the posture of an interlocu-
tory appeal. Further review is unwarranted.

1. This Court’s review is unwarranted for the thres-
hold reason that the interlocutory posture of the case
“alone furnishe[s] sufficient ground for the denial” of the
petitions. See Hamilton-Brown Shoe Co. v. Wolf Bros.
& Co., 240 U.S. 251, 258 (1916); VMI v. United States,
508 U.S. 946 (1993) (Sealia, J., concurring). This Court
routinely denies petitions by criminal defendants chal-
lenging interlocutory determinations that may be re-
viewed at the conclusion of the criminal proceedings.
See Robert L. Stern et al., Supreme Court Practice
§ 4.18, at 258 n.59 (8th ed. 2002). That general practice
enables the Court to examine any legal issues presented
on a full trial record, and it also prevents unnecessary
delays in the trial process.

That procedure should be followed here. The court
of appeals’ decision places petitioners in the same posi-
tion that they would have occupied if the district court
had denied their pretrial motions. If, after trial, they
are acquitted of the relevant counts, there will be no
occasion or need for review of the court of appeals’ deci-
sion. And if they are convicted on those counts, petition-
ers may appeal the cistrict court’s final judgment, rais-
ing any issues available to them and preserving the is-

me
a

13

sues raised in these petitions. If the court of appeals
affirms, they may then present to this Court any re-
maining claims in the full context of the evidence pre-
sented at trial, the instructions submitted to the jury,
and the sentence ultimately imposed. See Major League
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1
(2001) (“we have authority to consider questions deter-
mined in earlier stages of the litigation where certiorari
is sought from the most recent of the judgments of the
Court of Appeals”). The benefit of that course is high-
lighted by the fact that unresolved factual issues could
bear on the issues presented in these petitions. See pp.
13-14, infra. Thus, even if this Court’s review were war-
ranted (which it is not), such review would be aided by
the additional factual development that would occur at
petitioners’ criminal trial. |

There also is a strong concomitant need to prevent
any additional, unnecessary delay of the.trial. Some
witnesses and many victims of petitioners’ alleged mis-
conduct are dying from mesothelioma, asbestosis, and
other asbestos-related diseases. See United States v.
W.R. Grace & Co., 429 F.3d 1224, 1226-1227 (9th Cir.
2005) (“We cannot escape the fact that people are sick
and dying as a result of this continuing exposure.”). As
time passes, more witnesses will be unavailable to tes-
tify, and fewer victims will be able to attend the trial.
Interlocutory review would therefore be prejudicial to
the trial process and is not justified by any overriding
need.

2. Even apart from its interlocutory posture, this
case does not warrant review. Petitioners contend
(07-1286 Pet. 9-22; 07-1287 Pet. 19-30) that the court of
appeals erred in using the statutory definition of asbes-
tos, instead of a regulatory definition of that term pro-

14

mulgated by the EPA for specific and limited purposes,
and that the statutory definition fails to provide fair no-
tice. Those claims are incorrect and review by this
Court is not warranted.

a. As an initial matter, petitioners cannot establish
on this pretrial record that the court of appeals’ adop-
tion of the statutory definition of asbestos causes them
any prejudice. Petitioners assert that it does so on the
ground that winchite and richterite, two primary compo-
nents of the Libby asbestos, are not asbestos within the
NESHAP regulatory definition. See 07-1286 Pet. 7, 12,
15-17, 19-20; 07-1287 Pet. 10, 16. But, as the govern-
ment informed the court of appeals (Gov’t C.A. Br. 33-
34; Gov’t Reply Br. 10-12), even if the NESHAP defini-
tion 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 NESHAP regulatory defini-
tion. See 40 C.F.R. 61.141 (defining asbestos to include
“the asbestiform varieties of * * * actinolite-tremo-
lite”). As the government’s expert geologist has ex-
plained, the Libby asbestos “could, for purposes of regu-
lation only, be considered equivalent to tremolite or
soda-tremolite asbestos in accordance with current and
past industrial terminology.” E.R. 693. In fact, petition-
ers themselves referred to the asbestos from their mine
as “tremolite” and “tremolite asbestos.” See, e.g.,
F.E.R. 5-6, 85, 397-411. They even organized a “tremo-
lite committee” to deal with asbestos exposure issues
and developed guidelines titled “Guidelines for Handling
Tremolite Contamination in our Mines, Plants, and Prod-
ucts.” CR-05-07-M-DWM Docket entry No. 213, Exhs.
89, 90 (D. Mont. Sept. 30, 2005). Thus, even under peti-
tioners’ preferred NESHAP definition, the Libby asbes-

15

tos is accurately classified as tremolite asbestos. That
alone provides sufficient reason to deny review at this
time.

b. In any event, the cour* of appeals’ decision is cor-
rect. The plain text of the Clean Air Act criminal-
izes knowing releases of all “listed” hazardous air pollut-
ants, where the release is knowingly made in a manner
that endangers others. 42 U.S.C. 7413(c)(5)(A). The
Act, in turn, lists “Asbestos,” identified by CAS number
1332214, as a hazardous air pollutant. 42 U.S.C.
7412(b)(1). As the court of appeals recognized, Congress
“incorporated by reference into § 7412(b)” the CAS defi-
nition of asbestos, which has been “established for de-
cades.” Pet. App. 17a. The CAS Registry defines asbes-
tos number 1332214 as “{a] grayish non-combustible
fibrous material. It consists primarily of impure magne-
sium silicates.” EPA, Substance Registry System (vis-
ited May 23, 2008) . In view of the
straightforward text of the statute, the court of appeals
correctly held that the Act criminalizes knowing re-
leases of all forms of asbestos that fall within the defini-
tion of CAS number 1332214. Pet. App. 15a-16a, 19a.°

® Contrary to petitioners’ suggestion, the court of appeals did not
“devise its own definition of ‘Asbestos,’” 07-1286 Pet. 13, but rather
recognized that the statute incorporated the CAS number 1332214
definition. While the court also offered a shorthand “common mean-
ing,” Pet. App. 16a, the opinion clearly relied on the CAS registry
definition, 7d. at 17a. Thus, whether the statute could in some cases
reach “tale” or “fiberglass” (07-1286 Pet. 12)—a question that is not
implicated on the facts alleged in this case—would turn on the CAS
definition, not different language in the court’s opinion. In any event,
if the district court were to instruct the jury using a definition other
than the CAS definition, and petitioners were convicted, they could
raise that argument on appeal after final judgment.

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16

Petitioners nevertheless contend (07-1286 Pet. 1, 9-
11, 19; 07-1287 Pet. 20) that this Court’s review is war-
ranted because the court of appeals purportedly
“decoupl[ed],” (07-1286 Pet. 3), the Act’s criminal and
civil provisions. Petitioners claim that, because the
criminal provision in Section 7413(c)(5)(A) cross-refer-
ences the list of hazardous air pollutants in Section
7412(b), any substance that is not within the reach of the
Clean “ir Act’s civil provision is “not within the reach of
the Clean Air Act’s criminal provision.” Jd. at 10. To
the contrary, as explained below, the court of appeals
correctly distinguished the Clean Air Act’s statutory
provisions from cone distinct, but not exclusive, regula-
tory program developed by EPA under the Act.

The NESHAP regulatory program, which was devel-
oped in the early 1970s, applies only to certain major
sources and area sources of hazardous air pollutants for
which it is feasible for EPA to set emission standards.
See 42 U.S.C. 7412(d)(1);see also 42 U.S.C. 7412(b)(1)(B)
(1988) (former provision granting EPA authority to
promulgate emissions standards before the 1990 amend-
ments). As the court of appeals recognized (Pet. App.
19a), EPA chose to regulate certain commercial sources
involved in the production or handling of commercial
asbestos and, as applied to those specific sources, de-
fined asbestos to include the commercially valuable vari-
eties of asbestos out of the broader universe of
asbestiform varieties listed as hazardous air pollutants
under the Act. See 40 C.F.R. 61.140 et seg. (National
Emission Standard for Asbestos); 39 Fed. Reg. 15,397

17

(1974). But EPA did so only for purposes of the
NESHAP regulatory regime, See 40 C.F.R. 61.140.’

By contrast, the Act’s separate criminal knowing
endangerment provision applies broadly to any release
of a hazardous air pollutant—regardless of whether the
release originates from a source covered under the
NESHAP. See 42 U.S.C. 7413(c)(5)(A). Congress clear-
ly intended for that provision to criminalize more than
the commercially valuable varieties of asbestos regu-
lated under EPA’s NESHAP program. In 1990, when
Congress added the knowing endangerment provision
and made its prohibitions applicable to “hazardous air
pollutants listed pursuant to section 7412,” 42 U.S.C.
7413(c)(5)(A), it also amended Section 7412(b)(1) to add
192 hazardous air pollutants, including asbestos and its
CAS Number 1332214.

Petitioners are thus wrong to suggest (07-1286 Pet.
10) that EPA’s NESHAP definition of asbestos “simply
flesh[es] out the definition[]” of asbestos provided by
Congress in Section 7412(b)(1). The NESHAP regula-
tory definition predated Congress’s addition of “CAS
number * * * 1332214 Asbestos” to the statute by
more than fifteen years. See 38 Fed. Reg. 8829 (1973).
If Congress had desired to limit the knowing endanger-
ment crime to regulated sources or to use regulatory
definitions, it could easily have done so by either:
(1) making the crime subject to an underlying regula-
tory violation as it did in the Clean Water Act, see 33

" Although the court of appeals characterized the NESHAP program
as a “civil regulatory system,” Pet. App. 19a, and petitioners base their
argument on a civil/criminal dichotomy supposedly created by the court
of appeals’ opinion, the NESHAP regulatory program may be enforced
either civilly or criminally. See 42 U.S.C. 7413(c)(1) (criminal provision
for knowing violations of NESHAP program).

ee aS oa

RT Pes ee ee eee, ee ee eee See

18

U.S.C. 1819(c)(3)(A) (requiring violation of “permit con-
dition or limitation”); or (2) listing the individual CAS
numbers of each of the commercial types of asbestos,
instead of the general CAS number for asbestos, as Con-
gress did for specific types of xylenes in Section
7412(b)(1). Indeed, it could have simply set forth the
NESHAP asbestos definition in the Act. Congress
chose none of those alternatives.

To the extent that petitioners suggest (07-1286 Pet.
11) that the NESHAP regulatory definition is an exer-
cise of the EPA’s power under Section 7412(b)(2) to re-
vise the definition of “asbestos” listed by Congress in
Section 7412(b)(1), they are incorrect. Although the
EPA has exercised its authority under that subsection
with respect to other substances, see 40 C.F.R. 63.60-
63.63, it has not done so with respect to asbestos. To the
contrary, the NESHAP definition is explicitly limited to
the NESHAP program promulgated under EPA’s au-
thority to establish emissions standards in Section
7412(d), 40 C.F.R. 61.140, which petitioners acknowl-
edge does not apply to the Libby operations. See note
4, supra. The court of appeals correctly declined to en-
graft the NESHAP limitation onto the statute.

c. Petitioners renew their argument (07-1286 Pet.
15; 07-1297 Pet. 20-26) that the Act’s prohibition against
knowingly releasing “CAS number * * * 1332214 As-
bestos” was insufficient to provide them with fair notice
that the winchite and richterite forms of asbestos could
not be released. The fair warning requirement pre-
cludes enforcement of “a statute which either forbids, or
requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally v.
General Constr. Co., 269 U.S. 385, 391 (1926). But a law

19

need not spell cut every possible application in the most
precise possible language. See United States v. Lanier,
520 U.S. 259, 271 (1997) (“general statements of the law
are not inherently incapable of giving fair and clear
warning”); Boyce Motor Lines v. United States, 342 U.S.
337, 340 (1952) (“no more than a reasonable degree of
certainty can be demanded”).

The question is thus whether the statutory term “As-
bestes,” including Congress’s explicit incorporation by
reference of the CAS Registry identification number
1332214, “provide[s] a person of ordinary intelligence
fair notice of what is prohibited,” 7.¢., of what substances
fall within Section 7412(b)’s list of hazardous air pollut-
ants. United States v. Williams, No. 06-694 (May 19,
2008), slip op. 18; see Hill v. Colorado, 530 U.S. 703, 722.
(2000). The court of appeals correctly concluded (Pet.
App. 15a-20a) that it does so, and that the statute “need
not include mineral-by-mineral classifications to provide
notice of its hazardous nature.” /d. at 19a-20a. That is

‘particularly true because asbestos as defined by refer-
ence to the CAS Registry has a sufficiently clear mean-
ing in the relevant industry. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
501 n.18 (1982) (rejecting vagueness challenge to the
term “roach clip” because “that technica! term has suffi-
ciently clear meaning in the drug paraphernalia indus-
try”); Hygrade Provision Co. v. Sherman, 266 U.S. 497,
502 (1925) (“[T}he term ‘kosher’ has a meaning well
enough defined to enable one engaged in the trade to
correctly apply it, at least as a general thing.”);
Omaechevarria v. Idaho, 246 U.S. 348, 348 (1918) (re-
jecting vagueness challenge regulating grazing on a
“range” because “[mjen familiar with range conditions
and desirous of observing the law will have little diffi-

20

culty in determining what is prohibited by it”). Petition-
ers’ claimed reliance (07-1286 Pet. 21) on EPA’s regula-
tory definition, rather than the statutory reference to
the CAS, is particularly misplaced given that EPA de-
fined the term asbestos only for the NESHAP program,
and petitioners concede that the Libby mine was not
subject to that program. See note 4, supra.

If there were any fair notice concerns here, the pres-
ence of a culpable intent as a necessary element of the
offense would eliminate them. See Village of Hoffman
Estates, 455 U.S. at 499; Boyce Motor Lines, 342 U.S. at
342-343. The government will be required to prove at
trial not only that petitioners knowingly released asbes-
tos, but also that they knew that the releases would be
placing others “in imminent danger of death or serious
bodily injury.” 42 U.S.C. 7413(¢c)(5)(A). These addi-
tional mental state requirements “do[]} much to destroy
any force in the argument that application of the [stat-
ute] would be so unfair that it must be held invalid.”
Boyce Motor Lines, 342 U.S. at 342; see Williams, No.
06-694, supra, slip op. 20 (the problem of “{c]lose cases”

8 While petitioners assert (07-1286 Pet. 13; 07-1287 Pet. 11) that
CAS Registry information “can be accessed only by paid subscribers,”
EPA maintains on its website (as the court of appeals noted, Pet.
App. 16a n.3), a free “Substance Registry System” containing CAS
Registry information, including the CAS definition of “CAS number
* * * 1332214 Asbestos” listed in Section 7412(b)(1). See (visited
May 23, 2008). And, contrary to petitioners’ suggestion (e.g., 07-1286
Pet. 14), there is no constitutional problem in Congress’s definition of
“asbestos” by reference to its CAS number. Congress and federal
agencies may adopt commercial standards, like those in the CAS Regis-
try, that are “accepted and fairly stable.” See United States v.
National Dairy Prods. Corp.,372 U.S. 29, 36 (1963) (qucting Small Co.
v. American Sugar Ref. Co., 267 U.S. 233, 240-241 (1925)).

21

is “addressed, not by the doctrine of vagueness, but by
the requirement of proof beyond a reasonable doubt”).
Accordingly, the fact that a jury cannot find petitioners
guilty of knowing endangerment under the Act unless
they knew they were releasing asbestos in a manner that
would endanger others eradicates any fair notice con-
cern petitioners might have here. Petitioners point to no
conflict on the fair notice question, and the court of ap-
peals’ application of settled law does not warrant this
Court’s review.”

d. Contrary to petitioners’ argument (07-1286 Pet.
17-18; 07-1287 Pet. 7), the court of appeals did not im-
properly rely on petitioners’ subjective knowledge in
rejecting their fair notice challenge. The court did refer
to the allegations in the indictment about petitioners’
knowledge of asbestos and its associated health risks.
See Pet. App. 17a." But the court’s conclusion of fair
notice did not depend on petitioners’ knowledge gleaned
from their longstanding position in the industry.
Rather, the court made that observation “[iJn addition”
to its earlier conclusion that the statute alone provided

* For the same reasons, petitioners’ reliance (07-1286 Pet. 18;
07-1287 Pet. 20-22) on the rule of lenity fails; the statute is not ambigu-
ous. As the court of appeals noted (Pet. App. 17a), its decision rested
on the “clear statutory language.” See Burgess v. United States, 128
S. Ct. 1572, 1580 (2008).

© The superseding indictment is replete with allegations of petition-
ers’ actual notice of the risks from the fibrous content of asbestiform
minerals in their products, and the superseding indictment alleges, as
part of the conspiracy, that petitioners knew of that risk since at least
1976. Pet. App. 118a-149a. Whether the government can prove peti-
tioners’ 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.” Boyce Motor Lines, 342 U.S.
at 343.

22

fair notice. J/bid.; see id. at 19a-20a (concluding that
asbestos was adequately defined, “particularly to these
knowledgeable [petitioners]”). Because the court of ap-
peals’ decision turned on the “clear statutory language,”
id. at 17a, its passing reference to petitioners’ actual
knowledge was at most dictum.”

3. The individual petitioners contend (07-1287 Pet.
31-38) that the court of appeals erred in concluding that
the superseding indictment was timely filed pursuant 18
U.S.C. 3288 after the district court dismissed the know-
ing endangerment object of the conspiracy in the origi-
nal indictment. The court of appeals’ decision is correct,
and petitioners’ factbound claim of error does not war-
rant this Court’s interlocutory review.

Section 3288 provides that “[w]henever an indictment
or information charging a felony is dismissed for any
reason after the period prescribed by the applicable
statute of limitations has expired, a new indictment may
be returned in the appropriate jurisdiction within six
calendar months of the date of the dismissal of the in-

"' The individual petitioners (07-1287 Pet. 26-30), but not the company
petitioner, claim that the court of appeals’ consideration of petitioners’
subjective knowledge is “at odds” with decisions in other circuits.
There is no conflict. As in the cases cited by petitioners from other cir-
cuits, the court below recognized that the statute had to be interpreted
according to its “ordinary, contemporary, common meaning.” Pet. App.
16a-17a. In addition, other decisions from the Ninth Circuit apply the
approach advocated by the individual petitioners, making clear that
there is no conflict in the circuits that requires this Court’s resolution.
See, e.g., United States v. Approximately 64,695 Pounds of Shark Fins,
520 F.3d 976, 980 (2008) (observing that “[t]o provide sufficient notice,
a statute or regulation must ‘give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he may act
accordingly ”) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108
(1972)).

B
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:

23

dictment or information.” 18 U.S.C. 3288. Any such
“new indictment shall not be barred by any statute of
limitations.” Jbid. That savings clause, however, does
not perinit 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 pre-
scribed by the applicable statute of limitations, or some
other reason that would bar a new prosecution.” /bid.
Here, the government returned a new indictment within
three weeks of the dismissal of the original indict-
ment—well within the six-month time-frame provided by
statute. Pet. App. 6a, 13a.

The individual petitioners nevertheless argue
(07-1287 Pet. 31-38) that the superseding indictment was
not authorized by the savings clause because (they as-
sert) the government untimely filed the original indict-
ment and therefore the last sentence of Section 3288
barred reindictment. As both the district court and the
court of appeals recognized, however, the original indict-
ment was timely filed. See F.E.R. 549 (district court:
“the entire indictment was brought within the statute of
limitations”); Pet. App. 8a-9a (court of appeals: “there
is no dispute that the government filed its indictment
within the statute of limitations period”).

Contrary to the individual petitioners’ suggestion,
the flaw that the district court identified in the original
indictment was not untimeliness, but a perceived plead-
ing deficiency, namely, the failure to sufficiently link the
overt acts alleged in the indictment to the knowing en-
dangerment object. Pet. App. 100a-103a. Tellingly, pe-
titioners omit the district court’s subsequent conclusion
that the superseding indictment “would have survived
[petitioners’] first motion to dismiss” because, “while
alleging the same facts, [it] places them in a different

24

context.” /d. at 73a. Under the circumstances here, the
court of appeals correctly held that the superseding in-
dictment was timely under Section 3288’s plain terms,
because the reason for the dismissal was not “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.”
18 U.S.C. 3288. Petitioners point to no circuit decision
holding otherwise, and the government is aware of none.
This conclusion does not, as the individual petitioners
contend, “destroy[] statutory repose for criminal defen-
dants.” See 07-1287 Pet. 36 (capitalization removed).
Rather, the very purpose of Section 3288 is to allow
what the government did here. As the court of appeals
concluded, its interpretation of Section 3288: (1) “elimin-
ates 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 (2) “subjects de-
fendants to the threat of prosecution for six months af-
ter the dismissal of the original indictment—not an in-
definite threat of prosecution as [petitioners] sug-
gest({]—and only if the government has timely filed an
indictment charging the exact same crimes based on
approximately the same facts.” Pet. App. 13a.

ca Seereepen eee ernrrinen ane teen rere rime rae

25

CONCLUSION
The petitions for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General
RONALD J. TENPAS

Assistant Attorney General
KEVIN M. CASSIDY

ALLEN M. BRABENDER
Attorneys

MAY 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1347%3A5. Public record. Not legal advice.