A recent federal court ruling against government prosecutors appears to be unconstitutional, potentially re-exposing San Diego Gas and Electric Company (SDG&E) to criminal liability under the Clean Air Act's National Emission Standards for Hazardous Air Pollutants (NESHAP).

According to the Clean Air Act (at paragraph (d)(7) of section 7412, United States Code Title 42), all NESHAP prosecutions must incorporate state standards if they are “more stringent” than standards contained in any federal NESHAP regulation. The United States Constitution plainly requires all judges to obey the United States Constitution and all laws properly passed by Congress. To date, there are no federal appellate court rulings that have invalidated 42 USC 7412 at (d)(7).

The 2009 District Court ruling stated that asbestos bulk sample analysis reports were not admissible in the federal environmental re-trial of United States of America v. SDG&E. Defendants SDG&E, Kyle Rhuebottom and David “Willy” Williamson were initially found guilty in 2007 of illegal asbestos removal and handling at the Encanto Gas Holder demolition in Lemon Grove, but the convicted defendants had successfully petitioned for a new trial that was dismissed in 2009, after the previously-admitted tested samples were ruled inadmissible.

SDG&E is the principle local holding of Sempra Energy and is the electric franchisee in the City of San Diego. Jacquelyn McHugh, a Sempra Energy environmental compliance manager over the gas holder site, was found not guilty when it could not be determined that she was ever actually at the site during the demolition, despite McHugh's post-trial claims of “first-hand knowledge” of all site activities as manager.

The federal indictments for both the original and new trials cited SDG&E violations of the 42 USC 7412 NESHAP section, brought as 42 USC 7413 criminal charges of those NESHAP violations.

Under federal NESHAP regulations, asbestos is a regulated material if it is present in concentrations at or greater than 1%, especially if high speed grinding of the material produces friable asbestos-containing dust and debris. Inspectors judge any asbestos-containing material to be friable if it can be crumbled by hand pressure. California Code of Regulations Title 8 specifies a more stringent 0.1% asbestos content standard on medium and large projects, where such projects must be reported to state agencies and on-site employees must be informed of the risk to asbestos exposure.

The Encanto Gas Holder site was demolished in late 2000 and early 2001, where 9 miles of 30-inch underground pipe was unearthed and stripped of its asbestos-containing coating. A 1998 SDG&E test of the pipe wrap material showed that it contained 50-60% asbestos, and a second set of two additional samples tested for SDG&E contractor Ninyo & Moore in 1999 returned asbestos content values of 5-10% and 40-50%. The demolition contractor IT Corporation proceeded with the site demolition under “minimal containment” after its own tests showed the asbestos above 1% content to be not friable, although the high speed grinding in the pipe wrap removal process produced massive amounts of friable asbestos dust and debris. Federal prosecutors argued that the lack of proper containment was motivated by a desire to avoid the costs of lawful asbestos removal and debris handling.

In post-conviction hearings, the lead federal prosecutor argued that a ruling to exclude the previously-admitted test samples essentially gave a green light to asbestos demolition jobs without proper containment because all evidence of waste material would be inadmissible under the federal standard no matter how much asbestos it contained.

In a related civil lawsuit, a deposed San Diego County Department of Environmental Health inspector testified as a first responder to reported asbestos releases that the high speed grinding and lack of proper containment had exposed nearby residents of Encanto and Lemon Grove to the effects of the SDG&E-generated asbestos dust and debris. Residents along the downstream portion of the Encanto Branch of Chollas Creek next to Imperial Avenue have seen the white storm runoff residue of presumed asbestos debris at the bottom of the concrete-lined storm runoff collector for years, as recently as March 2009. The senior environmental counsel for Sempra Energy characterized the civil suit in state court as “frivolous” after plaintiffs without attorney were unable to successfully introduce the tested sample evidence to oppose the SDG&E/Sempra Energy motion for summary judgment.

So far since early 2001, McHugh has failed to account to the City of Lemon Grove for five or more roll-off dumpsters of asbestos-containing debris, leading to neighborhood suspicions of asbestos in the Chollas Creek storm runoff material from the demolition site. The Lemon Grove City Council has approved the site for residential construction.

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