Changing the Rules During Closing Arguments: EPA Abandons Consistency to Raise Conviction Rate

This appeal arises from the government’s application of asbestos work practice standards under the Clean Air Act. The pipe removal operation at issue was monitored by enforcement agencies. There was no evidence that asbestos fibers were released into the air or soil; in fact, the evidence shows that no emissions occurred. After most of the pipe wrap sakes underlying the prosecution had been destroyed, the government secured an indictment.

Following a lengthy trial a jury returned convictions against appellees, SDGE, Williamson, and Rheubottom. After extensive briefings the district court granted a new trial under Fed. Crim. P. 33. Relying on Fed. R. Evid. 403 and its own observations during the trial, the district court concluded that the convictions cannot stand. The government on this appeal asks this Court to reverse the well-reasoned opinion below.

This case originates with SDGE’s sale of a plot of land, and its removal of storage pipes therefrom which included a layer of asbestos material. The Clean Air Act regulates asbestos-containing material in demolition or renovation projects only if it is friable or may become friable during removal; and if it contains more than 1% asbestos as determined under a specified test method. The EPA has promulgated guidelines specifying the testing methods, two aspects of their test are at issue; the taking and preparation of a “representative sample” and the method for performing a quantitative analysis of the representative sample to determine asbestos content.

At trial the government’s principal analyst conceded that the use of a plastic ruler (perhaps a better fit in a 1st grade arts and crafts class than in a government agency that has electronic laser alternatives that would massively reduce error) in determining the thickness of a less than 1 millimeter asbestos layer could inflate the results of the measurement by as much as 100%. Despite this the government urged the jury to accept the inflated results.

Issue Areas:

Limited Government, Sound Science

Read the Amicus Brief:
Question(s) Presented:

Whether the government has shown that the district court clearly and manifestly abused its discretion by ordering a new trial on Clean Air Act charges 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.

ALF’s Amicus Brief:

Amici argue that Judge Sabraw was correct in holding that prosecutor’s misled the jury in exaggerating the accuracy of their testing methods, causing undue prejudice and confusion of issues and ultimately a miscarriage of justice, however this Court is free to affirm the granting of trial on any grounds in the record. Alternative grounds exist because the EPA did not give defendants fair notice, that is clear warning about what was expected of them. General Electric Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995). Fair notice is required by due process and common sense. EPA issued “clarifications” of its testing methods that were inconsistent with each other, and changed resulting outcomes of the iterative testing methods as applied to the same samples, however an ambiguity exists in the method used to combine each layer of multi-layered material. The EPA argued before the trial that only volumetric averaging of the layers was permissible, and the court below allowed the trial to continue under that theory, however in their closing arguments the government disavowed this theory. If the government does not know what testing method should be used, then how is any member of the public supposed to conform their behavior according to the results that this unknowable standard would render? The government also failed to preserve their test samples, so the defense was denied the opportunity to test the samples themselves after indictment.

Because the government failed to render fair notice to the public about how to test their pipes before demolition to determine asbestos content, this Court is free to affirm the court below’s order for trial on alternative grounds.


On March 17, 2009, the 9th Circuit issued a favorable opinion.

Date Originally Posted: November 4, 2008

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