Clean Air Act Battles
Background by Janet Harrison
The Clean Air Act, 42 U.S.C. § 7401 et. seq. has been a part of United States federal environmental law since 1970. In 1990, Congress added a criminal provision to the Act allowing the government to prosecute corporations and individuals for the “knowing release of pollutants which place persons in danger of bodily harm or death.” Historical Notes to 1990 Amendments, Pub.L. 101-549. United States v. W.R. Grace is the first case brought by the federal government to prosecute someone under this provision.
Federal Government’s Case
In February 2005, the U.S. Attorney’s Office filed an indictment against W.R. Grace and seven corporate executives associated with the Grace vermiculite mine in Libby, Montana. A superseding indictment was filed in June 2006. The superseding indictment charges Grace and the individual defendants with conspiracy to violate the Clean Air Act, violation of the Clean Air Act, and obstruction of justice.
The government’s authority to prosecute Grace’s actions comes from Congress, which enacted the criminal provision: “Any person who knowingly releases into the ambient air any hazardous air pollutant listed pursuant to § 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).
Any person is defined in § 7413(c)(6) as a corporation, an individual or “any responsible corporate officer.” Here the government has charged W.R. Grace and seven former executives as individuals, in their capacity as responsible corporate officers. Responsible corporate officer is not defined in the Act.
What constitutes a release was not defined by Congress. The parties in Grace have sought to define release through pretrial motions of this case.
Asbestos is a hazardous air pollutant listed pursuant to § 7412(b)(1) of the Act. However, that listing defines asbestos as six substances. 40 C.F.R. § 61.141. Two of the primary asbestos compounds found in Libby vermiculite, winchite and richterite, are not listed in that regulatory definition. In a 2006 pretrial order, the district court ruled that “asbestos” for purposes of the Clean Air Act criminal provision means only those six compounds. U.S. v. W.R. Grace, 455 F. Supp.2d 1122, 1132 (D. Mont. 2006). The 9th Circuit Court reversed that decision in U.S. v. W.R. Grace, 504 F.3d 745, 756 (9th Cir. 2007) and determined that the general definition of asbestos should be used when prosecuting under the criminal provisions of the Clean Air Act.
Imminent danger is not defined in the Act, and its definition has not been addressed by the parties in pre-trial motions or court orders. However, in U.S. v. W.R. Grace, 455 F.Supp.2d 1203 (D. Mont. 2006) the court ruled that evidence of non-ambient releases, results from product testing conducted by Grace, and evidence from soil sampling are not admissible to prove imminent danger as requirement in § 7413(c)(5)(A).
Serious bodily injury is defined in the Act as “bodily injury which involves a substantial risk of death, extreme physical pain, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” 42 U.S.C. § 7413(c)(5)(F).
Definition of Asbestos
by Robert Lishman
The federal government and Grace have both argued to the District Court that a differing definitions of the term “asbestos” should apply and that based on the definition the district court adopted evidence that fell outside of it should be excluded.
The term “asbestos” is not defined within the criminal provisions of the Clean Air Act, but is defined in its civil provisions. The district court determined that the term “asbestos” had no inherent meaning and thus its use in the criminal provisions of the Clean Air Act violated the rule of lenity[1] and the Due Process Clause of the Fourteenth Amendment. The district court imported the definition of “asbestos” from the civil provisions of the Clean Air Act into the criminal provisions and ruled that evidence of asbestos releases at trial would be limited to that definition. This definition limited evidence to six minerals defined as “asbestos” and had the effect of eliminating from evidence releases of 95% of the contaminants at Libby because they fell outside of these six minerals. The government appealed this ruling to the Ninth Circuit arguing that the definition in the criminal portion of the statue is applicable.
On appeal, the Ninth Circuit applied the general rule that when Congress does not define a term in a statute that term is to be construed “according to its ordinary, contemporary, common meaning.”[2] In this case the Ninth Circuit rejected the district court’s definition as being too limited and concluded that “asbestos” has a common meaning. It is a “fibrous, non-combustible compound that can be composed of several substances, typically including magnesium.”[3] The court concluded that it was appropriate to define “asbestos” differently for the civil and criminal provisions of the Clean Air Act because the civil and criminal provisions have different purposes.  The civil provisions focus on regulating major sources of hazardous air pollutants, which necessarily are those that have commercial potential. The criminal provisions focus on risk to health regardless of whether they come from major sources of pollution. The court stated that the rule of lenity was inapplicable to this case because it applies only when “we can make no more than a guess as to what Congress intended.”[4] The Ninth Circuit reversed the district court’s use of the civil definition of asbestos and the order limiting evidence to that definition.
More Information:
[1] Under the rule of lenity in construing a criminal statute the court should resolve any ambiguity in favor of the defendant.[2] U.S. v. W.R. Grace, 504 F.3d 745, 755 (9th Cir. 2007).
[3] Id.
[4] Id.