4S Ranch Allied Gardens Alpine Baja Balboa Park Bankers Hill Barrio Logan Bay Ho Bay Park Black Mountain Ranch Blossom Valley Bonita Bonsall Borrego Springs Boulevard Campo Cardiff-by-the-Sea Carlsbad Carmel Mountain Carmel Valley Chollas View Chula Vista City College City Heights Clairemont College Area Coronado CSU San Marcos Cuyamaca College Del Cerro Del Mar Descanso Downtown San Diego Eastlake East Village El Cajon Emerald Hills Encanto Encinitas Escondido Fallbrook Fletcher Hills Golden Hill Grant Hill Grantville Grossmont College Guatay Harbor Island Hillcrest Imperial Beach Imperial Valley Jacumba Jamacha-Lomita Jamul Julian Kearny Mesa Kensington La Jolla Lakeside La Mesa Lemon Grove Leucadia Liberty Station Lincoln Acres Lincoln Park Linda Vista Little Italy Logan Heights Mesa College Midway District MiraCosta College Miramar Miramar College Mira Mesa Mission Beach Mission Hills Mission Valley Mountain View Mount Hope Mount Laguna National City Nestor Normal Heights North Park Oak Park Ocean Beach Oceanside Old Town Otay Mesa Pacific Beach Pala Palomar College Palomar Mountain Paradise Hills Pauma Valley Pine Valley Point Loma Point Loma Nazarene Potrero Poway Rainbow Ramona Rancho Bernardo Rancho Penasquitos Rancho San Diego Rancho Santa Fe Rolando San Carlos San Marcos San Onofre Santa Ysabel Santee San Ysidro Scripps Ranch SDSU Serra Mesa Shelltown Shelter Island Sherman Heights Skyline Solana Beach Sorrento Valley Southcrest South Park Southwestern College Spring Valley Stockton Talmadge Temecula Tierrasanta Tijuana UCSD University City University Heights USD Valencia Park Valley Center Vista Warner Springs

Court's Failure to Take Notice of Law Unconstitutional in US v. SDG&E?

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.

Here's something you might be interested in.
Submit a free classified
or view all

Previous article

How Black Friday worked for Tijuana shoppers

The border re-opening seemed to help both sides
Next Article

Short boards easier to manuever

Wetsuit gets stuck to my body

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.

Sponsored
Here's something you might be interested in.
Submit a free classified
or view all
Comments
0

Be the first to leave a comment.

Sign in to comment

Sign in

Ask a Hipster — Advice you didn't know you needed Big Screen — Movie commentary Blurt — Music's inside track Booze News — San Diego spirits Classical Music — Immortal beauty Classifieds — Free and easy Cover Stories — Front-page features Drinks All Around — Bartenders' drink recipes Excerpts — Literary and spiritual excerpts Feast! — Food & drink reviews Feature Stories — Local news & stories Fishing Report — What’s getting hooked from ship and shore From the Archives — Spotlight on the past Golden Dreams — Talk of the town Letters — Our inbox [email protected] — Local movie buffs share favorites Movie Reviews — Our critics' picks and pans Musician Interviews — Up close with local artists Neighborhood News from Stringers — Hyperlocal news News Ticker — News & politics Obermeyer — San Diego politics illustrated Outdoors — Weekly changes in flora and fauna Overheard in San Diego — Eavesdropping illustrated Poetry — The old and the new Reader Travel — Travel section built by travelers Reading — The hunt for intellectuals Roam-O-Rama — SoCal's best hiking/biking trails San Diego Beer — Inside San Diego suds SD on the QT — Almost factual news Sheep and Goats — Places of worship Special Issues — The best of Street Style — San Diego streets have style Surf Diego — Real stories from those braving the waves Tin Fork — Silver spoon alternative Under the Radar — Matt Potter's undercover work Unforgettable — Long-ago San Diego Unreal Estate — San Diego's priciest pads Your Week — Daily event picks
4S Ranch Allied Gardens Alpine Baja Balboa Park Bankers Hill Barrio Logan Bay Ho Bay Park Black Mountain Ranch Blossom Valley Bonita Bonsall Borrego Springs Boulevard Campo Cardiff-by-the-Sea Carlsbad Carmel Mountain Carmel Valley Chollas View Chula Vista City College City Heights Clairemont College Area Coronado CSU San Marcos Cuyamaca College Del Cerro Del Mar Descanso Downtown San Diego Eastlake East Village El Cajon Emerald Hills Encanto Encinitas Escondido Fallbrook Fletcher Hills Golden Hill Grant Hill Grantville Grossmont College Guatay Harbor Island Hillcrest Imperial Beach Imperial Valley Jacumba Jamacha-Lomita Jamul Julian Kearny Mesa Kensington La Jolla Lakeside La Mesa Lemon Grove Leucadia Liberty Station Lincoln Acres Lincoln Park Linda Vista Little Italy Logan Heights Mesa College Midway District MiraCosta College Miramar Miramar College Mira Mesa Mission Beach Mission Hills Mission Valley Mountain View Mount Hope Mount Laguna National City Nestor Normal Heights North Park Oak Park Ocean Beach Oceanside Old Town Otay Mesa Pacific Beach Pala Palomar College Palomar Mountain Paradise Hills Pauma Valley Pine Valley Point Loma Point Loma Nazarene Potrero Poway Rainbow Ramona Rancho Bernardo Rancho Penasquitos Rancho San Diego Rancho Santa Fe Rolando San Carlos San Marcos San Onofre Santa Ysabel Santee San Ysidro Scripps Ranch SDSU Serra Mesa Shelltown Shelter Island Sherman Heights Skyline Solana Beach Sorrento Valley Southcrest South Park Southwestern College Spring Valley Stockton Talmadge Temecula Tierrasanta Tijuana UCSD University City University Heights USD Valencia Park Valley Center Vista Warner Springs
Close