Thomas Pearson was convicted for criminal violations of sections 112(f)(4),[1] 112(h),[2] and 113 (c)(1)[3] of the Clean Air Act (CAA).[4] Pearson appealed, contending that the district court gave improper jury instructions concerning the charged offense elements, the district court improperly sustained objections to Pearson's testimony during direct examination, and the United States Sentencing Guidelines[5] were misapplied. The Ninth Circuit affirmed the district court's decision.

In 1995 the Navy contracted with Metcalf Grimm, who in turn subcontracted with Environmental Maintenance Service (EMS), to remove asbestos from the central heating plant at the Whidbey Island Naval Air Station. The removal occurred in three phases, the last of which was the subject of the litigation. Pearson was hired as a certified asbestos supervisor by EMS to oversee this third phase. The third phase involved removal of asbestos from boilers and other equipment. During this phase plastic sheeting was used around the clean-up area to contain the asbestos, machines were used to lower the air pressure in the containment area thereby preventing off site asbestos diffusion, and workers wore respiratory protection.

Under the CAA regulations, asbestos also must be wetted before removal.[6] However, according to witness testimony, dry asbestos was "all over the place," some of the air machines were clogged, and bags of asbestos were outside the containment area.[7] As a result, Pearson was charged with two counts of knowingly causing asbestos removal in violation of the CAA. The maximum penalty under the statute for each count is five years imprisonment.[8]

Pearson argued that he was not involved with the asbestos removal and was only involved with the demolition phase of the project. The district court acquitted Pearson of Count 1, but convicted Pearson of Count 2 and instructed the jury to find that Pearson was acting as a supervisor. At the sentencing hearing, the district court set the base offense level at eight for Pearson's conviction under section 7413 of the CAA.[9] The base level was enhanced by four for discharge of hazardous waste[10] and enhanced by nine for causing risk of serious bodily injury or death.[11] The district court further enhanced the base level by two for Pearson's leadership role in the offense,[12] refusing to reduce the sentence in exchange for Pearson's acknowledgment of responsibility.[13] At this point, the base level offense had been adjusted to a level twenty-three. Next, the district court applied downward factors, reducing the base level by two for the degree of harm,[14] by five levels based on the degree of risk,[15] and by four levels based on aberrant behavior. Ultimately, the base level offense was adjusted to twelve, resulting in a potential sentence of ten to sixteen months. Pearson was sentenced to the minimum of ten months and a subsequent three-year supervised release.

On appeal, Pearson argued that the district court applied the wrong definition of "supervisor" and that "he did not have enough authority to be liable as a 'supervisor' under the CAA."[16] Both the district court and the Ninth Circuit applied the "substantial control" standard, which requires a defendant to have the "ability to direct the manner in which work is performed and the authority to correct problems."[17] Thus, because a "supervisor" is not necessarily the individual with the highest authority, the Ninth Circuit held that the district court did not abuse its discretion in instructing the jury to apply the "substantial control" standard in determining Pearson's liability as a supervisor.

Pearson also argued that a jury could find that while acting as a supervisor he also acted under orders from his employer. Pearson contended that because he was an employee carrying out orders, he could not be held liable as an operator under the CAA's criminal provisions unless he was in knowing and willful violation of the Act.[18] Although the Ninth Circuit agreed that a jury could reasonably find that an individual who qualifies as a supervisor under section 7412 also could qualify as an employee under section 7413(h), Pearson failed to raise and meet his burden of establishing that he was an employee because he contended no involvement in the asbestos clean-up. Thus, the district court did not err in excluding instructions to the jury on the issue of whether Pearson acted as an employee.

Pearson also claimed that the district court erred by not properly defining "owner or operator" for the jury.[19] In the jury instructions, the district court emphasized the supervisory aspect of the owner/operator definition. The Ninth Circuit held that the jury instructions were sufficient, particularly in light of the "supervisory aspect of the charged offense."[20]

Pearson's second claim alleged that the district court prevented him from answering the charges against him when the court sustained several objections raised by his counsel during Pearson's direct examination. The Ninth Circuit examined the questions at issue and the defense Pearson raised. Finding that the questions and the defense were unrelated, the Ninth Circuit determined that the district court had not prevented Pearson from receiving a fair trial.[21]

Finally, Pearson argued that the district court improperly enhanced his sentence because the facts did not support a determination that hazardous substances had been discharged. Pearson also alleged that the district court abused its discretion in denying him an evidentiary hearing. In its de novo review, the Ninth Circuit determined first that the district court had not abused its discretion under Rule 32 (c)(1) of the Federal Rules of Criminal Procedure when it denied Pearson's request. As the Ninth Circuit noted, the district court allowed Pearson's counsel to present objections in a pre-sentence report, and the district court made findings with respect to each objection. The Ninth Circuit then determined that the district court's inference that hazardous waste had been released into the outside air was not clearly erroneous because witnesses had testified that bags had asbestos dust on their exterior and drains had been clogged with asbestos fibers. Accordingly, the Ninth Circuit held that district court's enhancement under U.S.S.G. section 2Q1.2(b)(1)(B) was proper. Similarly, because Pearson's non-compliance with work practice standards resulted in improper storage and removal of asbestos as well as potential worker exposure to asbestos-related health risks,[22] the Ninth Circuit held that the district court's enhancement under U.S.S.G. section 2Q1.2(b)(2) was proper.