U.S. v. FARLEY

ORDER

RICHARD A. LAZZARA, District Judge.

BEFORE THE COURT is Defendants' Joint Motion to Dismiss the Superseding Indictment and Joint Memorandum with attachments (Dkt. 68), the Government's Response to Defendants' Joint Motion to Dismiss the Superseding Indictment (Dkt. 69), and Defendants' Joint Reply Memorandum (Dkt. 75). After careful consideration of the allegations of the superseding indictment (Dkt. 49), the submissions of counsel, and the applicable law, the Court concludes that the motion should be denied.

Defendants seek to dismiss the eight-count superseding indictment alleging violations of various work practice standards associated with a renovation involving "regulated asbestos containing material" (RACM).1 They allege the following grounds: (1) the absence of an essential element of the offense, specifically the Government's failure to allege the particular testing method used; (2) the absence of essential facts of the offense based on the Government's failure to allege the particular building materials that constitute RACM; and (3) the nonexistence of a criminal offense described as failure to conduct a thorough inspection prior to renovation in Count Two. For the reasons set forth below, the Court finds the superseding indictment sets forth the essential elements of 42 U.S.C. § 7413(c)(1), which makes it a crime for failure to comply with the National Emission Standards for Hazardous Air Pollutants (NESHAP) work practice standards.2

An indictment must set forth the essential elements of the offense. See United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). Alleging the elements puts the defendant on notice of the "nature and cause of the accusation as required by the Sixth Amendment" and "fulfills the Fifth Amendment's indictment requirement, ensuring that a grand jury will only return an indictment when it finds probable cause to support all the necessary elements of the crime." Fern, 155 F.3d at 1325 (quoting United States v. Gayle, 967 F.2d 483, 485 (11th Cir. 1992) (en banc), cert. denied, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993)). "The law does not, however, require that an indictment track the statutory language." Fern, 155 F.3d at 1325 (citing United States v. Stefan, 784 F.2d 1093, 1101 (11th Cir.), cert. denied, 479 U.S. 855, 107 S.Ct. 193, 93 L.Ed.2d 125, and cert. denied, 479 U.S. 1009, 107, S.Ct. 650, 93 L.Ed.2d 706 (1986)).3 The "court may not look beyond the four corners of the indictment, nor may it properly dismiss an indictment for insufficient evidence." United States v. Baxter, 579 F. App'x 703, 705-06 (11th Cir. 2014) (unpublished opinion) (citing United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) and United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)); United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (stating that the district court "is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.") (emphasis in original).

Essential Elements and Facts of the Offense

Under the definitions listed in 40 C.F.R. § 61.141, "friable asbestos material" means:

The challenged language of the indictment is paragraph 8, which provides:

Defendants take issue with the Government's failure to allege compliance with Appendix E and failure to identify the type of testing method used to determine that the material at issue is in fact RACM. They argue that the entire first sentence of the definition of "friable asbestos material" must be alleged in order to include an essential element of the offense — that RACM must contain more than one percent asbestos "as determined using the method specified in Appendix E, . . . section 1, [PLM]." According to Defendants, only one test method may be used in testing material for friable asbestos, and that method is found in Appendix E.

Looking at the regulatory definition, the first sentence refers to the "method specified in Appendix E."5 The second sentence of the definition, however, clearly contemplates that more than one method may be used to determine the content of asbestos. It states that if the asbestos content is determined by "a method other than" PLM that renders a content of less than 10 percent, then the material must be verified by PLM. The definition, at the very least, gives pause to a determination that one exclusive testing method exists to determine RACM.6 Moreover, there is no requirement that the language of a statute, or even a regulation, be tracked, much less only partially which would leave out the second half of the definition.

In addition to the definition of "friable asbestos material" in the regulations, Defendants rely heavily on United States v. San Diego Gas & Electric Company, WL 3913457 (S.D. Cal. Nov. 21, 2006).7 In San Diego Gas, the district court found the indictment, alleging work practice violations that stemmed from the removal of RACM, insufficient because it did not allege "the elements of RACM" but simply that the material was RACM. Id. at *2. The court declared that two elements of RACM were required to be alleged in the indictment: first, the material contained "more than one percent asbestos as determined by the specified test method;" and second, the particular category of RACM such as friable asbestos material. In a lengthy discussion of rule-making procedures, the court found that the government's application of the "single-layer test" as opposed to the "multi-layer test" method was flawed, and the indictment would be dismissed because the government failed to use the "specified 1990 NESHPA test method." Finally, the district court found that the credible evidence rule did not excuse the Government from alleging the specific test method in the indictment.

Unlike San Diego Gas, which is not binding precedent on this court, the instant case does not involve an agreement between the Government and the Defendants that a single-layer test was used.8 There is no published opinion that relies on, follows, or adopts San Diego Gas in the criminal context.9 This Court is also mindful that the credible evidence rule,10 which is part of the NESHAP regulations, does not replace the Federal Rules of Evidence. On this motion to dismiss an indictment, however, the Court will not engage in a premature resolution of the merits of the allegations. If arguably more than one testing method is permitted to test asbestos containing material, then alleging the specific method used for asbestos testing in the indictment is not required by the statute or the regulations. Viewing the facts alleged in the indictment in the light most favorable to the Government, the Court will not dismiss the case under Rule 12(b) and finds that the allegations are sufficient to charge violations of § 7412.11

Failure to Inspect

Count Two alleges that Defendant Farley "did knowingly fail and cause others to fail to thoroughly inspect the facility where renovation would occur for the presence of asbestos prior to the commencement of renovation in violation of the requirement found at Title 40, Code of Federal Regulations, section 61.145(a) and incorporated by Pinellas County Code . . . ."12 Defendants argue that failure to "thoroughly inspect" is not subject to criminal penalties under §§ 7412(h) and 7413(c)(1), because § 61.145(a) is both unconstitutionally vague on its face and as applied to the facts of this case. For the following reasons, the Court finds Count Two sufficient to charge a criminal offense for failure to thoroughly inspect the facility to determine whether asbestos was present before beginning renovations.

Section 7413(c)(1) of the CAA makes it a crime for any person to "knowingly violate[] any requirement or prohibition of . . . section 7412 of this title, . . ., including a requirement of any rule, order, waiver, or permit promulgated or approved under such section." Section 7412(h), which is titled "Work practice standards and other requirements," permits the EPA administrator to "promulgate a design, equipment, work practice, or operational standard, or combination thereof" to control hazardous air pollutants such as asbestos. The National Emission Standards for Asbestos were promulgated in 40 C.F.R. Part 61, Subpart M. Section 61.145, titled "Standard for demolition and renovation," in subparagraph (a) makes the standard applicable to certain requirements of the owner or operator of a renovation activity, and "prior to the commencement of the demolition or renovation," requires that the owner or operator "thoroughly inspect the affected facility or part of the facility where the demolition or renovation operation will occur for the presence of asbestos."

According to the plain reading of this statutory and regulatory framework,13 any "requirement" of § 7412, including a requirement of a rule promulgated thereunder, if knowingly violated, forms the basis of a criminal offense. The fact that the mandate to thoroughly inspect appears in the regulation prior to the RACM and quantity requirements does not change the notice that an owner or operator must inspect before renovations. While the language is placed before the listing in the regulation of work practice standards under paragraph (c), the introductory portion of § 61.145(a) — "[t]o determine which requirements of paragraphs (a), (b), and (c), of this section apply to the owner or operator" — alerts the reader that requirements are contained in paragraph (a). Requirements of § 61.145 are subject to criminal liability pursuant to § 7413, and the Court finds the language sufficient to give fair warning under the rule of lenity. See United States v. Izurieta, 710 F.3d 1176, 1182 (11th Cir. 2013) (noting the rule of lenity in the case of ambiguity is premised on fair warning and the legislature's province of defining criminal activity).

The case cited to the Court both to substantiate and to discredit the claim that Congress did not authorize criminal liability for failure to thoroughly inspect is Fried v. Sungard Recovery Servs., Inc., 925 F.Supp. 364 (E.D. Pa. 1996). Fried is a civil case decided on a motion for summary judgment. The court determined that because a renovation "is not limited to an activity that involves asbestos[,]" the defendant had a duty to inspect its facility regardless of the amount of asbestos. Fried, 925 F. Supp. at 372. This finding bolsters the Government's reasoning that the duty to thoroughly inspect exists before renovation commences, independent of an owner or operator's prior knowledge of the amount of asbestos in the facility to be renovated. In any event, the Fried case did not resolve the issue of whether failure to thoroughly inspect is a criminal offense.

ACCORDINGLY, it is therefore ORDERED AND ADJUDGED that Defendants' Joint Motion to Dismiss the Superseding Indictment (Dkt. 68) is DENIED.

DONE AND ORDERED.