32 ELR 20533 -- United States v. Hunter

United States v. Hunter

No. 00-1532 (UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT February 22, 2002)

ELR Digest

The court affirms a district court conviction and sentencing of an individual for six counts of violating the Clean Air Act's (CAA's) asbestos national emissions standard for hazardous air pollutants. The individual argued that the CAA requires proof of specific knowledge of the regulations violated and that the district court improperly increased his sentence under the U.S. Sentencing Guidelines (USSG) § 2Q1.2(b)(4). The court first holds that the government satisfies the knowledge element for purposes of a CAA conviction if it proves that the defendant knew that the substance involved in the alleged violations was asbestos. The government sufficiently established that the individual knew the substance involved was asbestos. The court also holds that the individual failed to raise before the district court the argument that USSG § 2Q1.2(b)(4) does not apply to the CAA asbestos requirements because § 2Q1.2(b)(4) only applies to permits required by a federal statute or a state regulatory scheme to which a federal statute has expressly delegated permit authority. The CAA neither requires a permit for asbestos removal nor expressly delegates to the states such authority. Nevertheless, issues not raised before a district court are generally forfeited on appeal unless there is a showing of plain error on the part of the lower court. The error, if any, in this case was not plain.

The full text of this decision is available from ELR (2 pp., ELR Order No. L-465).

Counsel for Appellee
Craig Benedict, Ass't U.S. Attorney
U.S. Attorney's Office
100 S. Clinton St., Syracuse NY 13261
(315) 448-0672

Counsel for Appellant
David G. Secular
Federal Public Defender's Office
445 Broadway, Albany NY 12207
(518) 257-1800

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]