U.S. v. Grace

• Decision Date: 08 August 2006
• Docket Number: No. CR 05-07-M-DWM.,CR 05-07-M-DWM.
• Citation: 455 F.Supp.2d 1122
• Parties: UNITED STATES of America, Plaintiff, v. 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.
• Court: U.S. District Court — District of Montana

455 F.Supp.2d 1122

UNITED STATES of America, Plaintiff, v. 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.

No. CR 05-07-M-DWM.

United States District Court, D. Montana, Missoula Division.

August 8, 2006.

COPYRIGHT MATERIAL OMITTED

Angelo J. Calfo, Harold Malkin, Michelle K. Peterson, Yarmuth Wilsdon Calfo, Seattle, WA, Michael F. Bailey, Bailey & Antenor, Missoula, MT, David S. Krakoff, Gary A. Winters, Mark Holscher, Mayer Brown Rowe Maw LLP, Washington, DC, Ronald F. Waterman, Gough Shanahan Johnson & Waterman, Palmer A. Hoovestal, Hoovestal Law Firm, Helena, MT, Jeremy Maltby, O'Melveny & Myers, Los Angeles, CA, William Adam Duerk, Michael J. Milodragovich, Milodragovich Dale Steinbrenner & Binney, Missoula, MT, Elizabeth Van Doren Gray, Sowell Gray Stepp & Lafitte, Columbia, SC, William A. Coates, Roe Cassidy Coates & Price, Greenville, SC, Stephen R. Spivack, Bradley. Arant Rose & White, Washington, D.C., for Defendants.

ORDER

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.

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.

II. 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. According to the Superseding Indictment, "[t]his amphibole asbestos has been commonly called tremolite! " Id. However, the United States Geological Survey (USGS), working in conjunction with the Environmental 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 II through IV of the Superseding Indictment with violating the Clean Air Act's knowing endangerment provision.² 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 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 sources³ for each of 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), cummingtonitegrunerite, anthophyllite, and actinolite-tremolite."⁴ Section 61.141 appears under 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 will 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 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.⁶ 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 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, commonsense 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....