On April 31, the U.S. Attorney General's office re-indicted San Diego Gas & Electric (SDG&E) and two workers on charges that their 2000 pipe insulation removal violated Clean Air Act rules by exposing residents to potentially cancer-causing asbestos.
On August 31, four months into the new trial, U.S. Federal Judge Dana Sabraw - who threw out a previous conviction - ruled that prosecutors can't use key evidence acquired between 2000 and 2007 to further their contention that SDG&E and two workers acted in an unsafe manner during a 2000 excavation in Lemon Grove, a California city located about 17 miles north of the Mexican border.
Judge Sabraw's recent decision also engendered a postponement of the current trial, until October 9, as prosecutors decide how to proceed now that the essential portion of their evidence has been ruled inadmissible.
Assistant U.S. Attorney Melanie Pierson had no comment on the ruling, as did attorneys for SDG&E. Kyle Rheubottom, one of two workers also facing charges, said he was pleased with the ruling, and his attorney, Michael Lipman, added that he felt the judge had made precisely the right decision.
The case began in 1997, when SDG&E found a buyer for its Encanto Gas Holder facility in Lemon Grove. This necessitated an asbestos survey, which was delivered in January of 1998, revealing the presence of regulated, asbestos-containing material on coatings applied to underground piping.
In June of 2000, SDG&E began soliciting bids from contractors for removal of piping. It also started the process itself, removing more than 40,000 feet of pipe wrapping without any of the paperwork required by state and federal agencies which regulate asbestos handling, removal and disposal. The move was presumably an effort to save time and/or money.
The removal came to the attention of officials in San Diego County and the U.S. Environmental Protection Agency after Lemon Grove residents engaged in a whistleblower campaign against the utility's removal efforts. San Diego County filed a civil suit against the utility, and a federal indictment in January of 2006 instigated a lawsuit.
The case was based on 27 asbestos-containing samples from the 16-acre site where SDG&E, through its Encanto facility, maintained almost 10 miles of underground gas pipeline. At the time of the conviction, Granta Nakayama, the U.S. Environmental Protection Agency's assistant administrator for Enforcement and Compliance Assurance, noted that the conviction sent a clear message from the federal government that financial gain would not be allowed to come before any obligation to obey the law.
In the initial case, the jury found SDG&E, Rhuebottom (an employee working for SDG&E site contractor, IT Corporation) and David Williamson, SDG&E environmental specialist, all in violation of Clean Air Act standards. Each was convicted on one count for: failing to give adequate notice in advance of the asbestos removal, for failing to properly wet the asbestos during removal, for leaving the Encanto facility without properly insuring that the asbestos-containing material was put in a leak-proof container, and for falsely stating that an SDG&E employee was a certified asbestos consultant.
The conviction came down in July of 2007. A third worker, SDG&E employee Jacquelyn McHugh, was acquitted. The conviction resulted in fines, to SDG&E, of up to $2 million, and each of the workers faced up to five years in prison and $250,000 in fines.
Those convictions were dismissed by Federal Judge Sabraw, who said prosecutors used the wrong testing method to determine the amounts and quality of the asbestos found in the pipe insulations. Those tests, which showed asbestos levels between 37 percent and 42 percent, were later called into question by further tests that showed only 1.55 to 3.66 percent, and a final test by defense experts which showed asbestos levels below one percent, which is well under the 1989 EPA mandate.
This is the evidence that Judge Sabraw is now refusing to have admitted, a move that effectively kills the prosecution's case and makes Rheubottom's change of plea offering moot. According to Lipman, the prosecution will now have to decide whether to appeal the ruling or drop the case entirely.
Asbestos, a fibrous mineral widely used in insulating materials during most of the last century, can - when inhaled or ingested - cause mesothelioma, a particularly lethal cancer of the mesothelial lining of the lungs and abdomen. Occurring as either pleural mesothelioma (lungs), peritoneal mesothelioma (abdomen), or pericardial mesothelioma (heart), though most commonly as the pleural form, the cancer commonly lies dormant for decades before producing symptoms definitive enough to permit diagnosis. By then, the prognosis is generally poor, with most victims given between a year and 18 months to live.
In October of 2008, the Lemon Grove City Council approved the former asbestos site for use as a 78-home complex called Citrus Heights. The only stipulation is that the developer, Carter Reese and Associates, will fund monitoring during construction, via an independent asbestos remediation contractor, to determine the presence of asbestos, especially airborne asbestos. Construction has yet to begin.