Summary: On November 4, 2008 the Atlantic Legal Foundation filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit on behalf of the National Association of Manufacturers and the National Federation of Independent Business opposing the Governments appeal from an order for a new trial in a criminal prosecution for violation of EPA regulations. The case involves novel issues under the Clean Air Act and an important regulatory fair notice issue. San Diego Gas & Electric Company (SDG&E) sold a decommissioned natural gas storage facility to a real estate developer. As part of the transaction, SDG&E removed all of its equipment from the site, including miles of underground pipes covered with multi-layered coating; one of these layers contained asbestos. Licensed asbestos removal contractors and experts retained by SDG&E concluded that the coating material using in the pipes were not subject to federal regulation. Local, state and federal government inspectors were on site more than 20 times throughout the removal process. Nevertheless, the federal government criminally charged SDG&E and three individual defendants involved with violating federal regulations. At the jury trial, SDG&E introduced air and soil samples showing that not a single fiber of asbestos was released from the site. The Foundations brief supports the defendants argument that they did not have fair notice of EPAs change in testing standards because the asbestos National Emissions Standard for Hazardous Air Pollutants (NESHAP) does not specify how test results are to be combined, nothing in the regulation addresses multi-layered materials and the government argued for the first time in this criminal case that the regulation permits only one method of calculating the amount of asbestos in the material being removed. The Foundation participated in this case because the issue of regulatory fair notice requiring that a regulation provides sufficient notice of prohibited conduct, is of increasing importance in a legal environment in which more activities are affected by often intricate, highly technical and sometimes obscure regulations and in which government agencies often do not provide clear interpretations or guidelines. The problem is aggravated when a violation of a regulation carries criminal, as well as civil, penalties. On March 17, 2009, the Ninth Circuit affirmed the December 7, 2007 order for a new trial.
On November 4, 2008 the Atlantic Legal Foundation filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit on behalf of the National Association of Manufacturers and the National Federation of Independent Business opposing the Governments appeal from an order for a new trial in a criminal prosecution for violation of EPA regulations.
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