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United States v. Weintraub

Citation: 32 ELR 20340
No. Nos. 99-1691(L) et al., 273 F.3d 139/(2d Cir., 11/19/2001)

The court upholds an individual's conviction under the Clean Air Act (CAA) for unlawfully removing and disposing of asbestos from a building in violation of the national emissions standards for hazardous air pollutants for asbestos and accompanying work-practice standards. The individual bought an abandoned building from a Connecticut city in order to renovate it for use as apartments. Before purchasing the building, the individual was made aware that the building contained a considerable amount of asbestos. The individual hired people who were not licensed to perform asbestos abatement to oversee the renovations, and when a state health inspector's investigation revealed these practices, the individual procured fake documents to show that the abatement had been completed. After a jury trial, the individual was imposed a sentence and a fine. The individual then appealed, arguing that the district court erred in instructing the jury on the level of scienter required to prove that he "knowingly violated" the asbestos work-practice standard.

The court first holds that district court's jury instructions were sufficient. CAA §§ 113(c)(1) does not require specific knowledge of the threshold elements of the work-practice standard—the friability and quantity of asbestos—that trigger the standard. Additionally, the phrase "knowingly violates" requires knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one's conduct is illegal. The presence of asbestos is easily sufficient to trigger a reasonable person's expectation of regulation and to distinguish in his or her mind innocent from wrongful conduct. As a general matter, asbestos is strictly regulated at the local, state, and federal levels, and no reasonable person, let alone a sophisticated real estate developer like the individual at issue here, could be unaware that asbestos in almost all of its applications is closely regulated. Therefore, in a criminal prosecution under CAA §§ 113 for a violation of the asbestos work-practice standard, the government need only prove that the defendant knew that the substance involved in the alleged violation was asbestos; it need not establish the defendant's knowledge that the conduct proscribed by the statute involved the kind and quantity of asbestos sufficient to trigger the asbestos work-practice standard. Here the jury instructions required that the jury find that the individual knew that material involved in the renovation contained asbestos.

Counsel for Appellee
Jeffrey A. Meyer, Ass't U.S. Attorney
U.S. Attorney's Office
157 Church St., New Haven CT 06510
(203) 821-3700

Counsel for Appellants
Barry A. Bohrer
Morvillo, Abramowitz, Grand, Iason & Silberberg
565 5th Ave., New York NY 10017
(212) 856-9600

Walker, J. Before Oakes and Pooler, JJ.