After San Diego Gas & Electric removed underground natural gas storage pipes that were covered with a multi-layer wrap, one layer of which contained asbestos felt, it was charged with violating asbestos work practice standards under the Clean Air Act. Although the jury returned convictions against defendants, the trial court granted a new trial on the ground that artificially inflated test results and the government’s closing argument to the jury were confusing, misleading, and unfairly prejudicial, resulting in a miscarriage of justice.
The Clean Air Act only regulates asbestos-containing material in demolition projects if it is “friable” (can be crumbled, pulverized or reduced to powder by hand) or has a high probability of becoming friable during removal, and contains more than 1% asbestos as determined under a test method established by the EPA. At trial, the government relied on samples and test methods of questionable validity that led to results nearly 30 times greater than the government’s own test results for a sample, urging the jury to convict defendants based solely on those inflated and non-representative test results.
On Nov. 4, 2008, the NAM joined in an amicus brief urging the Ninth Circuit to affirm the lower court’s decision, arguing that defendants were deprived of the fair notice that is required under the Due Process Clause as to how the government would interpret its regulations or how the government’s actual application of its test method would be used at trial. As our brief pointed out, “The EPA regulation at issue did not provide fair notice of how multi-layered asbestos-containing material must be averaged [i.e., whether by weight, volume or number of fibers] for the purpose of determining asbestos content.” Thus, no liability should be found when a regulated party acting in good faith is not “able to identify, with ascertainable certainty, the standards with which the agency expects parties to conform.”
On 3/17/09, the Ninth Circuit ruled that the trial court did not abuse its discretion in finding that the tested samples were not representative samples and were not tested properly. Appellate courts generally defer to trial court rulings except in egregious cases.