United States v. Ho ( 2002 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    
                               FOR THE FIFTH CIRCUIT
                                           _______________
    
                                             m 01-20460
                                           _______________
    
    
    
    
                                     UNITED STATES OF AMERICA,
    
                                                              Plaintiff-Appellee-
                                                              Cross-Appellant,
    
                                              VERSUS
    
                                        ERIC KUNG-SHOU HO,
    
                                                              Defendant-Appellant-
                                                              Cross-Appellee.
    
    
    
                                      _________________________
    
                            Appeals from the United States District Court
                                 for the Southern District of Texas
    
                                      _________________________
    
                                           October 31, 2002
    
    
    
    
    Before DAVIS, JONES, and SMITH,                   seq., and its regulations. The government
      Circuit Judges.                                 cross-appeals the refusal to impose two sen-
                                                      tencing enhancements. We affirm the convic-
    JERRY E. SMITH, Circuit Judge:                    tion but vacate the sentence and remand for re-
                                                      sentencing.
       Eric Ho appeals his conviction under the
    Clean Air Act (“CAA”), 42 U.S.C. § 7401 et                              I.
       Ho is a naturalized citizen who emigrated             tection Agency (“EPA”) or the Texas Depart-
    to Houston from the Republic of China in the             ment of Health (“TDH”) of his intent to reno-
    1970’s. He owns and operates a produce sup-              vate a building that would involve the removal
    ply company, Houston Fruitland, and a truck-             and disposal of asbestos; this failure violated
    ing company, Ho Ho Ho Express, Inc. He                   40 C.F.R. § 61.145(b). Ho hired Manuel Es-
    was convicted of failure to comply with asbes-           cobedo, his sometimes handyman, to supervise
    tos work practice standards, 42 U.S.C.                   the work, though Ho often visited the hospital
    § 7413(c)(1), and failure to give notice of in-          site himself. Ho also hired Corson Tate to
    tent to remove asbestos, 42 U.S.C. § 7413(c)-            begin renovations in the professional building.
    (2)(B).
                                                                 Escobedo, in turn, hired at least ten Mexi-
                           A.                                can nationalsSSapparently in the United States
        In October 1997, Ho entered negotiations             illegallySSto perform the renovation and asbes-
    to purchase the abandoned Alief General Hos-             tos removal work. Escobedo paid the workers
    pital and Professional Building in Houston.              by submitting their time sheets to Ho’s ac-
    During negotiations, the owner’s agent told              countant, receiving and cashing a check, and
    Ho’s broker, who told Ho, that a 1994 envi-              paying the workers in cash.
    ronmental site assessment had revealed exten-
    sive asbestos in the hospital’s fireproofing; that          After removing sheetrock partitions and
    asbestos abatement could cost as much as                 ceiling tiles from the first floor of the hospital,
    $400,000; and that the owner was selling the             the workers, who had no experience or train-
    property “as is.” The owner and Ho ultimately            ing in asbestos removal, began in mid-January
    agreed to a price of $700,000 instead of the             1998 to remove the asbestos-containing fire-
    initial asking price of $1.1 million. The con-           proofing. Neither Ho nor Escobedo told them
    tract included a Commercial Property Condi-              that the fireproofing contained asbestos or that
    tion Statement to the effect that the property           asbestos is a dangerous carcinogen, nor did
    contained asbestos. Ho signed the statement,             they provide the workers with adequate safety
    thereby acknowledging the presence of asbes-             equipment.
    tos.
                                                                 Against customary asbestos abatement
       Ho soon contacted a project manager at                practices, the workers used no water as they
    Laughlin Environmental, a licensed asbestos              removed the fireproofing, but only scraped off
    abatement company, to obtain a bid for asbes-            the fireproofing, which produced large
    tos removal. The manager prepared a bid of               amounts of asbestos-containing dust inside the
    $325,000 to remove and dispose of all asbes-             hospital. As the workers removed the fire-
    tos in the two buildings. Ho quickly rejected            proofing, they placed it in plastic bags. Al-
    the bid as too high, so the manager offered a            though they generally left the bags open and
    second bid of cost plus ten percent; Ho never            inside the hospital, on one occasion a worker
    responded.                                               placed several bags in an outside dumpster, but
                                                             Escobedo immediately instructed him to re-
       Instead, Ho initiated his own hospital reno-          trieve the bags and leave them inside the hos-
    vation project in December 1997. He did not              pital. The hospital remained unsealed through-
    give advance notice to the Environmental Pro-            out, with several open doors and windows and
    
    
                                                         2
    a large hole in the second floor exterior wall.        reduced this agreement to a written contract.
    None of these practices complied with asbes-
    tos work practice standards. See 40 C.F.R. §              The workers completed the asbestos re-
    61.145.                                                moval on March 10, 1998. Ho told Tate to
                                                           wash down the inside of the hospital using a
        On February 2, 1998, Tim Stewart, a build-         water line outside the hospital. Unfortunately,
    ing inspector for the City of Houston, visited         the “water line” was in fact a pressurized gas
    the hospital to investigate a complaint of reno-       line.
    vation work without a city permit. Stewart
    observed the workers as they removed the                   After Tate removed the cap on the line, he
    fireproofing with putty knives without water           started his nearby van. The spark from the ig-
    or adequate safety equipment. Stewart also             nition and the open gas line caused an explo-
    noted that the hospital was unsealed. He               sion. The explosion burned Tate, three work-
    therefore issued a stop-work order and placed          ers, and the van and blew a hole in the exterior
    a red tag on the main entrance to the hospital         wall of the hospital.
    indicating that work could not proceed with-
    out a city building permit. The workers left               As a result of the explosion, TDH inspec-
    shortly thereafter, and Tate delivered the stop-       tors Tim Hendrix and Gary Williams inspected
    work order to Ho.                                      the site on March 13, 1998. They found the
                                                           hospital unsealed, with open windows and
        Ho then contacted an operations manager            doors and, now, two holes in the exterior
    at Alamo Environmental, a licensed asbestos            walls. Fireproofing dust covered floors and
    abatement company in San Antonio, for an es-           shelves, and the building contained roughly
    timate to remove the remaining asbestos-con-           100 open bags of fireproofing and sheetrock
    taining material. The manager met Ho at the            residue. Subsequent laboratory analysis of the
    hospital on February 10 and sent him an esti-          fireproofing indicated two to twenty percent
    mate of $159,876 on February 13. Ho decided            chrysolite asbestos; any material with more
    not to hire Alamo Environmental but, instead,          than one percent is subject to federal and state
    to renew his own renovation project.                   regulations. The inspectors noted several
                                                           footprints leading from the hospital outdoors,
       To avoid the stop-work order and further            though they could not determine conclusively
    inspections, Ho re-hired the Mexican workers           whether the dust in the footprints was as-
    and instructed them to work at night, asking           bestos-containing fireproofing or harmless
    one of the workers, Jaime Contreras, to super-         sheetrock residue.
    vise. (Escobedo had fallen ill shortly after the
    stop-work order was issued.) Ho also visited               Over t he next few months, Hendrix tried,
    the hospital frequently and on a few occasions         with little success, to get Ho to seal the hospi-
    personally supervised the workers. The pace            tal and complete the asbestos abatement. Ho
    of the project soon dissatisfied Ho, however,          initially had one of the Mexican workers place
    so he began to offer the workers performance           plywood over the hospital’s doors and win-
    incentives to complete sections of the hospital.       dows, though this measure did not adequately
    Ho also hired Tate to provide supplies to the          seal the hospital. Ho also obtained multiple
    workers and monitor their hours; Ho and Tate           estimates for the remaining abatement project.
    
    
                                                       3
    He apparently did not want to pay the still-                                    C.
    sizeable cost of abatement, though he finally               The district court dismissed count 5 after a
    relented after much importuning by Hendrix.              pre-trial hearing. At the conclusion of the
                                                             government’s case at trial, the court dismissed
        The Occupational Safety and Health Ad-               Count 4 with prejudice and directed a verdict
    ministration (“OSHA”) ultimately initiated an            of not guilty on Count 1. The jury convicted
    administrative enforcement action against Ho             Ho on counts 2 and 3 and acquitted him on
    and two of his companies, charging violations            count 6.
    of the Occupational Safety and Health Act, 29
    U.S.C. § 651 et seq., and its regulations. An                                    D.
    administrative law judge upheld the citations               In his presentence report, the probation of-
    and assessed administrative penalties against            ficer recommended an offense level of 18.
    Ho and his companies in excess of $1 million.1           First, he grouped, as two or more acts
                                                             connected by a common criminal objective or
                            B.                               part of a common scheme or plan, the convic-
        In October 2000, the grand jury issued a             tions for failure to give notice of intent to re-
    nine-count superseding indictment against Ho             move asbestos and failure to comply with as-
    and Escobedo. Count 1 charged them with                  bestos work practice standards. U.S.S.G.
    conspiracy to violate the CAA in violation of            § 3D1.2(b). Second, he began with a base of-
    18 U.S.C. § 371. Count 2 charged Ho with a               fense level of 8. U.S.S.G. § 2Q1.2(a). Third,
    failure to give notice of intent to renovate a fa-       he recommended a six-level enhancement for
    cility involving the removal of asbestos mate-           repetitive discharge of asbestos into the envi-
    rial in violation of 42 U.S.C. § 7413(c)(2)(B).          ronment. U.S.S.G. § 2Q1.2(b)(1)(A). Fourth,
    Count 3 charged Ho with failure to comply                he recommended a four-level enhancement for
    with asbestos work practice standards in vio-            Ho’s role as an organizer or leader of an ex-
    lation of 42 U.S.C. § 7413(c)(1). Count 4                tensive criminal scheme. U.S.S.G. § 3B1.1(a).
    charged Ho with failure to notify the appropri-          These enhancements resulted in a recom-
    ate agency of a release of asbestos in a viola-          mended total offense level of 18, for a sentenc-
    tion of 42 U.S.C. § 9603(b). Count 5 charged             ing range of 27-33 months.
    Ho with a knowing release of asbestos into the
    ambient air, which placed another person in                 The government objected to the PSR’s fail-
    imminent danger of death or serious bodily in-           ure to include an upward enhancement based
    jury in violation of 42 U.S.C. § 7413(c)(5)(A).          on the workers’ alleged status as “vulnerable
    Count 6 charged Ho with making a false and               victims.” U.S.S.G. § 3A1.1(b). Ho objected
    material statement to OSHA and the Depart-               to the enhancements and requested a down-
    ment of Labor in violation of 18 U.S.C.                  ward departure on several grounds.
    § 1001. The remaining three counts charged
    Escobedo with various crimes.                               At the sentencing hearing, the district court
                                                             calculated a total offense level of 10. The
                                                             court accepted the base offense level of 8.
                                                             The court did not add the six-level enhance-
       1
         The TDH initiated similar proceedings under         ment for repetitive discharge of asbestos into
    state law. Ho settled by paying $44,000 in civil         the environment, because it concluded that the
    penalties.
    
                                                         4
    government had not proven discharge by a                  Section 112 of the CAA, 42 U.S.C. § 7412,
    preponderance of the evidence. The court also          authorizes the Administrator of the EPA to
    declined to add the four-level enhancement,            publish a list of hazardous air pollutants and to
    because it concluded that the criminal activity        establish emission standards for them. These
    was not “otherwise extensive” under§ 3B.1.1-           standards are known as “national emission
    (a), but the court added the two-level enhance-        standards for hazardous air pollutants,” or
    ment for leadership of a small criminal activity       NESHAP’s.
    under § 3B1.1(c). The court rejected all other
    requests for enhancements or departures.                   Section 112(b), 42 U.S.C. § 7412(b),
                                                           establishes an initial statutory list of hazardous
                          II.                              air pollutants, of which asbestos is one, and di-
        Ho contends that the laws under which he           rects the EPA to update the list periodically.
    was convicted exceed Congress’s authority              Section 112(c) , 42 U.S.C. § 7412(c), directs
    under the Commerce Clause, U.S. CONST. art.            the EPA to identify each “source category”
    I, § 8, cl. 3. Guided by the recent landmark           that emits a particular hazardous air pollutant.
    cases of United States v. Lopez, 
    514 U.S. 549
              Section 112(d), 42 U.S.C. § 7412(d), directs
    (1995), and United States v. Morrison, 529             the agency to promulgate NESHAP’s to
    U.S. 598 (2000), we disagree.                          regulate the emission of hazardous air pollut-
                                                           ants from these source categories. These
       At the outset, we stress the limited holding        provisions are the primary means to regulate
    of this opinion. We do not confront a facial           emissions of hazardous air pollutants under the
    challenge to the Clean Air Act, but only an as-        CAA.
    applied challenge to the work practice stan-
    dard provision, 42 U.S.C. § 7412(h), and the               Section 112(h)(1), 42 U.S.C. § 7412(h)(1),
    reporting provision, 42 U.S.C. § 7414(a), of           however, authorizes the EPA to adopt work
    the CAA and their implementing regulations,            practice standards instead of emission stan-
    40 C.F.R. § 61.145. We thus have neither               dards “if it is not feasible in the judgment of
    occasion nor authority to rule on the constitu-        the Administrator to prescribe or enforce an
    tionality of other provisions of the CAA or            emission standard for control of a hazardous
    other implementing regulations, which we               air pollutant.”2 Because asbestos often is not
    must leave for another day when they are               “emitted through a conveyance designed and
    properly presented.                                    constructed to emit or capture [it],” 42 U.S.C.
                                                           § 7412(h)(1)(A), but rather through building
       We begin by reviewing the relevant sections
    of the CAA and their implementing regula-
    tions. Next, we examine some first principles             2
                                                                “For purposes of this section, if it is not feas-
    of Commerce Clause jurisprudence. We then
                                                           ible in the judgment of the Administrator to pre-
    analyze the reasoning in Lopez and Morrison.           scribe or enforce an emission standard for control
    Finally, we explain why, under this reasoning,         of a hazardous air pollutant or pollutants, the Ad-
    Congress had the authority to enact the sec-           ministrator may, in lieu thereof, promulgate a . . .
    tions of the CAA that Ho challenges.                   work practice . . . standard . . . which in the
                                                           Administrator’s judgment is consistent with the
                          A.                               provisions of subsection (d) or (f) of this section.”
                                                           42 U.S.C. § 7412(h)(1).
    
                                                       5
    demolition and renovation sites, the EPA                  the asbestos work practice standard therefore
    adopted a work practice standard for handling             imposes an elaborate reporting requirement on
    asbestos in these sites, 40 C.F.R. §§ 61.145,             owners or operators of a building renovation
    61.150.3 This work practice standard does not             site. 40 C.F.R. § 61.145(b). The heart of this
    apply generally to any building containing any            requirement is that the owner or operator must
    asbestos, but only to buildings containing cer-           give the EPA timely notice (usually ten days)
    tain specific kinds and large amounts of asbes-           of intent to begin asbestos removal. Again, we
    tos. 40 C.F.R. §§ 61.145(a), 61.150. The                  could continue with the details of this
    parties do not dispute that the hospital con-             requirement, but Ho admits that he did not
    tained the regulated kind and amount of asbes-            give notice.
    tos or, therefore, that the work practice stan-
    dard covered the hospital.4                                   Section 113, 42 U.S.C. § 7413, contains
                                                              administrative, civil, and criminal enforcement
        The asbestos work practice standard regu-             mechanisms for the asbestos work practice
    lates, in minute detail, the handling of asbestos         standard and the notice requirement. Ho was
    in building renovation sites. 40 C.F.R.                   convicted under two of these criminal en-
    § 61.145(c). For example, material containing             forcement provisions. Section 113(c)(1), 42
    asbestos must be wetted during removal, kept              U.S.C. § 7413(c)(1), imposes criminal
    sufficiently wet after removal to prevent the             penalties on “[a]ny person who knowingly
    release of asbestos fibers, and stored in leak-           violates any . . . requirement or prohibition of
    tight containers until properly disposed. A               . . . section 7412 of this title, . . . including a
    foreman or management-level officer, trained              requirement of any rule . . . promulgated or
    in complying with these work practice                     approved under such section[.]” Section 113-
    standards, must be present at any site before             (c)(2)(B), 42 U.S.C. § 7413(c)(2)(B), imposes
    workers may handle material containing                    criminal penalties on [a]ny person who
    asbestos. We could give more details of the               knowingly fails to notify or report as required
    numerous requirements, but it is enough to say            under this chapter.”
    that Ho admits he did not comply with the
    asbestos work practice standard.                             We now summarize this complicated statu-
                                                              tory and regulatory framework before address-
       Section 114(a), 42 U.S.C. § 7414(a), also              ing the Commerce Clause. The affirmative le-
    authorizes the EPA to adopt reporting                     gal duties Ho violatedSS(1) failure to follow
    requirements to ensure compliance with a                  proper work practice standards while
    work practice standard. Pursuant to § 114(a),             removing asbestos and (2) failure to give
                                                              notice of intent to remove asbestosSSappear in
                                                              the asbestos work practice standard, 40 C.F.R.
       3
                                                              § 61.145. The EPA adopted the work practice
        The asbestos NESHAP also contains § 112(d)
                                                              standard under §§ 112(h) and 114(a) of the
    emission standards for source categories that emit
                                                              CAA, 42 U.S.C. §§ 7412(h), 7414(a). The
    asbestos. See, e.g., 40 C.F.R. § 61.142.
                                                              government prosecuted Ho for these violations
       4
         Ho, of course, disputes that the work practice       under § 113(c)(1), (c)(2)(B) of the CAA, 42
    standard can cover the hospital constitutionally,         U.S.C. § 7413(c)(1), (c)(2)(B). Ho now
    but that is a different question we address infra         challenges these sections as applied to him.
    part II.D.
    
                                                          6
                            B.                             engine for federal regulatory and criminal
       As did the Court in Lopez, so too do “[w]e          statutes in the latter two-thirds of the
    start with first principles.” Lopez, 514 U.S. at       twentieth century. See Lopez, 514 U.S. at
    552. The Constitution creates a federal                552-556 (describing the doctrinal history of
    government of limited and enumerated                   the Commerce Clause). The Court explained
    powers, id., and in particular a Congress of           in Lopez that NLRB v. Jones & Laughlin Steel
    limited and enumerated powers. The Article I           Corp., 
    301 U.S. 1
     (1937) (upholding the
    Vesting Clause confirms this proposition,              National Labor Relations Act), United States
    vesting in Congress “[a]ll legislative powers          v. Darby, 
    312 U.S. 100
     (1941) (upholding the
    herein granted.” U.S. CONST. art. I, § 1. This         Fair Labor Standards Act), and Wickard v.
    clause necessarily implies that some legislative       Filburn, 
    317 U.S. 111
     (1942) (upholding the
    powers are not “herein granted,” foremost              Agricultural Adjustment Act of 1938),
    among them “the police power, which the                “ushered in an era of Commerce Clause
    Founders denied the National Government and            jurisprudence that greatly expanded the
    reposed in the states.” Morrison, 529 U.S. at          previously defined authority of Congress under
    618 and n.8.                                           that Clause.” Lopez, 514 U.S. at 556.
    
       “This constitutionally mandated division of            Yet, “even these modern-era precedents
    authority ‘was adopted by the Framers to en-           which have expanded congressional power un-
    sure protection of our fundamental liberties.          der the Commerce Clause confirm that this
    Just as the separation and independence of the         power is subject to outer limits.” Id. at 556-
    coordinate branches of the Federal                     57. Indeed, even in Jones & Laughlin Steel,
    Government serve to prevent the accumulation           301 U.S. at 37, the Court emphasized that the
    of excessive power in any one branch, a                Commerce Clause “may not be extended so as
    healthy balance of power between the States            to embrace effects upon interstate commerce
    and the Federal Government will reduce the             so indirect and remote that to embrace them,
    risk of tyranny and abuse from either front.’”         in view of our complex society, would
    Lopez, 514 U.S. at 552 (quoting Gregory v.             effectually obliterate the distinction between
    Ashcroft, 
    501 U.S. 452
    , 458 (1991) (citations          what is national and what is local and create a
    omitted)).                                             completely centralized government.”
    
       Among the legislative powers the                       This alarming and dangerous prospect, and
    Constitution did grant to Congress is the              the concomitant need to identify judicially en-
    power “to regulate Commerce with foreign               forceable limits on the Commerce Clause,
    Nations, and among the several States, and             seem to have been a motivating force behind
    with the Indian Tribes.” Art. I, § 8, cl. 3.
    Though seldom used in the nineteenth century,
    the Commerce Clause5 became the chief
    
    
       5                                                   (...continued)
         It would be more accurate to speak of the
    “Interstate Commerce Clause,” because the phrase       tion between interstate and intrastate commerce.
    “Commerce Clause” wrongly ignores the distinc-         See Lopez, 514 U.S. at 587 n.2 (Thomas, J.,
                             (continued...)                concurring). We defer to convention, however.
    
                                                       7
    the Supreme Court’s recent jurisprudence.6                precise formulations, and in the nature of
    Without any judicially enforceable limits and             things they cannot be.” Id. at 567. In Lopez
    with inevitable political pressures, the                  and Morrison, however, the Court helpfully
    Commerce Clause all too easily would become               clarified the legal standards to be applied in a
    the general police power denied to Congress               constitutional challenge to a statute under the
    by the Constitution.                                      Commerce Clause.
    
        Morrison and Lopez therefore reaffirm our                1.   In Lopez, the Court restated the “three
    longstanding duty to enforce the limits of the                    broad categories of activity that
    Commerce Clause. Naturally, “[d]ue respect                        Congress may regulate under its
    for the decisions of a coordinate branch of                       commerce power.” Id. at 558. “First,
    Government demands that we invalidate a con-                      Congress may regulate the use of the
    gressional enactment only upon a plain show-                      channels of interstate commerce.” Id.
    ing that Congress has exceeded its                                (citing Heart of Atlanta Motel, Inc. v.
    constitutional bounds.” Morrison, 529 U.S. at                     United States, 
    379 U.S. 241
    , 256-67
    607. At the same time, however, the                               (1964); United States v. Darby, 312
    constitutionality of any statute, including a                     U.S. 100, 114-15 (1941)). This
    statute enacted under the Commerce Clause,                        category includes the regulation of
    “is ultimately a judicial rather than a legislative               highways, railroads, air routes,
    question, and can be settled finally only by [the                 navigable            rivers,       and
    Supreme] Court,” and initially by the lower                       telecommunications networks. See
    federal courts. Id. at 614.7                                      United States v. Robinson, 
    119 F.3d 1205
    , 1210 (5th Cir. 1997). The
                          C.                                          category also “reaches the ‘misuse’ of
       The Supreme Court’s Commerce Clause                            the channels of interstate commerce.”
    jurisprudence sometimes has yielded vague                         Bird, 124 F.3d at 673. For example,
    and uncertain legal standards. As the Court                       within this category Congress has
    explained in Lopez, “[t]he Constitution                           regulated the interstate transport or
    mandates this uncertainty by withholding from                     shipment of stolen goods, 18 U.S.C. §
    Congress a plenary police power that would                        2314; kidnaped persons, 18 U.S.C. §
    authorize enactment of every type of                              1201; prostitutes, 18 U.S.C. § 2421
    legislation.” Lopez, 514 U.S. at 566. Legal                       and illegal lottery tickets, The Lottery
    standards for the Commerce Clause “are not                        Case, 
    188 U.S. 321
     (1903).
    
       6
                                                                 “Second, Congress is empowered to
         See Morrison, 529 U.S. at 615-18; Lopez,             regulate and protect the instrumentalities of
    514 U.S. at 565-68; see also United States v. Bird,       interstate commerce, even though the threat
    
    124 F.3d 667
    , 676-78 (5th Cir. 1997) (explaining
                                                              may come only from intrastate activities.”8
    the need for a “limiting principle” in Commerce
    Clause jurisprudence).
       7                                                         8
          See also Marbury v. Madison, 5 U.S.                      Lopez, 514 U.S. at 558 (citing Perez v. United
    (1 Cranch) 137, 177 (1803) (“It is emphatically the       States, 
    402 U.S. 146
    , 148-50 (1971); The Shreve-
    province and duty of the judicial department to say       port Rate Cases, 
    234 U.S. 342
     (1914); Southern
    what the law is.”).                                                                            (continued...)
    
                                                          8
    When Congress regulates within this category,               One fairly certain principle is that the sub-
    it must “ensure that, in fact, a particular              stantial effect test allows Congress to regulate
    ‘threat’SSwhether posed by an interstate or in-          purely intrastate activities. The Supreme
    trastate activitySSactually threatens persons or         Court has “upheld a wide variety of
    things with a plain and clear nexus to interstate        congressional Acts regulating intrastate
    commerce.” Bird, 124 F.3d at 674. Char-                  economic activity where [it has] concluded
    acteristic examples of regulation in this                that the activity substantially affected interstate
    category include destruction of an aircraft, 18          commerce.” Id.. The Court in Lopez did not
    U.S.C. § 32, and theft from interstate                   purport to disturb the settled rule that
    shipments, 18 U.S.C. § 659. See Lopez, 514               “[w]here economic activity substantially
    U.S. at 558 (citing Perez, 402 U.S. at 150).             affects interstate commerce, legislation
                                                             regulating that activity will be sustained.” Id.
        “Finally, Congress’ commerce authority in-           at 560.
    cludes the power to regulate those activities
    having a substantial relation to interstate com-             A regulation of intrastate commercial activ-
    merce, i.e., those activities that substantially         ity can satisfy the substantial effect test in two
    affect interstate commerce.” Id. at 558-59               ways. First, it can reach intrastate commercial
    (citing Maryland v. Wirtz, 
    392 U.S. 183
    , 196             activity that by itself substantially affects inter-
    n.27 (1968); Jones & Laughlin Steel, 301 U.S.            state commerce. Jones & Laughlin Steel is a
    at 36-38 (1937)). The Court acknowledged in              case in point. A steel company challenged an
    Lopez that its “case law has not been clear              order of the NLRB that it had engaged in un-
    whether an activity must ‘affect’ or                     fair labor practices at a steel mill. Jones &
    ‘substantially affect” interstate commerce in            Laughlin, 301 U.S. at 22. The company con-
    order to be within Congress’ power to                    tended that the NLRB’s order violated the
    regulate it under the Commerce Clause.” Id.              Commerce Clause because it amounted to
    at 559. The Court firmly concluded, though,              congressional regulation of a wholly intrastate
    that “the proper test requires an analysis of            economic activity. Id. at 40-41. The Court
    whether the regulated activity ‘substantially            rejected this argument, because “the stoppage
    affects’ interstate commerce.” Id.                       of those [steel manufacturing] operations by
                                                             industrial strife would have a most serious
        Thus, this third category is often known as          effect upon interstate commerce . . . . It is
    the “substantial effect” test. Although it is the        obvious that it would be immediate and might
    most expansive categorySSor perhaps because              be catastrophic.” Id. at 41. Thus, the Court
    it is the most expansiveSSit has generated the           upheld the order as a valid regulation of
    most controversy and uncertainty.9                       intrastate commercial activity, i.e., labor
                                                             relations at a steel mill, which alone
                                                             substantially affects interstate commerce.
       8
        (...continued)
                                                                Second, the regulation can reach intrastate
    Ry. v. United States, 
    222 U.S. 20
     (1911)).
       9
         Compare id. at 584-602 (Thomas, J., con-
                                                                9
    curring) (arguing that the substantial effect test           (...continued)
    lacks a constitutional basis) with id. at 615-31         (Breyer, J., dissenting) (arguing for a more gener-
                                        (continued...)       ous application of the substantial effect test).
    
                                                         9
    commercial activity that by itself is too trivial         police power. Thus, in Lopez, 514 U.S. at
    to have a substantial effect on interstate                564, the Court expressly rejected such
    commerce but which, when aggregated with                  reasoning.
    similar and related activity, can substantially
    affect interstate commerce. This rule has                    In fact, as we have observed, the need for
    come to be known as the “aggregation”                     some judicially enforceable limit on the
    principle, which reached its zenith in Wickard,           aggregation principle seemed to motivate the
    “perhaps the most far reaching example of                 analysis in Lopez and Morrison. The Court
    Commerce Clause authority over intrastate                 therefore has identified four “significant
    activity.” Lopez, 514 U.S. at 560. The farmer             considerations” for Congress’s power to
    in Wickard grew wheat on his small farm.                  invoke the aggregation principle to regulate
    Wickard, 317 U.S. at 114. Under the                       wholly intrastate activities. Morrison, 529
    Agricultural Adjustment Act of 1938, he was               U.S. at 609.
    entitled to a quota of about eleven acres of
    wheat, but he grew about twenty-three acres,                 The Court first identified these
    which he used for seeding, feeding, selling, and          considerations in Lopez, which held that the
    home consumption. Id. at 114-15. The                      Gun-Free School Zones Act of 1990, 18
    Secretary of Agriculture assessed a penalty               U.S.C. § 922(q)(1)(A), which made it a federal
    against him for exceeding his quota. Id. at               crime knowingly to possess a firearm in a
    115. The Court upheld the penalty because,                school zone, exceeded Congress’s authority
    though the farmer’s “own contribution to the              under the Commerce Clause. The Court re-
    demand for wheat may be trivial by itself . . .           emphasized these considerations in Morrison,
    his contribution, taken together with that of             which held that the civil remedy provision of
    many others similarly situated, is far from               the Violence Against Women Act, 42 U.S.C.
    trivial.” Id. at 127-28. Wickard thus stands at           § 13981, which created a federal civil remedy
    the head of “cases upholding regulations of               for victims of sex-based violence, also
    activities that arise out of or are connected             exceeded Congress’s authority under the
    with a commercial transaction, which viewed               Commerce Clause. We examine these four
    in the aggregate, substantially affects interstate        considerations with a view to the scope of the
    commerce.” Lopez, 514 U.S. at 561.                        aggregation principle.
    
       Whether and how Congress may apply the                     The first consideration is the economic or
    aggregation principl e are controversial                  commercial nature of the regulated intrastate
    questions. The pitfalls are apparent. For                 activity. In Lopez, the Court seemed to re-
    example, any imaginable activity of mankind               strict the aggregation principle to economic
    can affect the alertness, energy, and mood of             activity, which did not include gun possession
    human beings, which in turn can affect their              in a school zone. Lopez, 514 U.S. at 559-61.
    productivity in the workplace, which when                 Morrison clarified Lopez somewhat on this
    aggregated together could reduce national                 point, explaining that “[w]hile we need not
    economic productivity. Such reasoning would               adopt a categorical rule against aggregating
    eliminate any judicially enforceable limit on the         the effects of any noneconomic activity in or-
    Commerce Clause, thereby turning that clause              der to decide [Morrison], thus far in our
    into what it most certainly is not, a general             Nation’s history our cases have upheld
    
    
                                                         10
    Commerce Clause regulation of intrastate                       States v. Kallestad, 
    236 F.3d 225
    , 229 (5th
    activity only where the activity is economic in                Cir. 2000).
    nature,” which sex-based violence most
    certainly is not. Morrison, 529 U.S. at 613                       Thus, Congress may not add the words “in-
    (emphasis added). Thus, it remains an open                     terstate commerce” to every statute and expect
    question, as yet unsettled by the Supreme                      the courts meekly to comply. In any event,
    Court, whether the aggregation principle                       neither § 922(q)(1)(A) nor § 13981 contains a
    extends to non-economic activity.10                            jurisdictional element to restrict its scope or
                                                                   justify use of the aggregation principle.
        The second consideration is a jurisdictional
    element in the challenged statute that “might                      The third consideration is congressional
    limit its reach to a discrete set of [regulated in-            findings regarding the regulated intrastate ac-
    trastate activities] that additionally have an ex-             tivity’s substantial effects on interstate
    plicit connection with or effect on interstate                 commerce. This consideration is the least
    commerce.” Lopez, 514 U.S. at 562. A                           important when determining whether Congress
    jurisdictional element may ensure that a                       may invoke the aggregation principle. In
    statute, as applied, substantially affects                     Lopez, 514 U.S. at 557 n.2, the Court noted
    interstate commerce.11                                         that “[s]imply because Congress may conclude
                                                                   that a particular activity substantially affects
       To be sure, though, Morrison clarified that                 interstate commerce does not necessarily make
    a jurisdictional element is not sufficient to es-              it so.” (Citation omitted.) By the same token,
    tablish the constitutionality of a challenged                  the Court noted that “Congress normally is not
    statute: “Such an element may establish that                   required to make fo rmal findings as to the
    the enactment is in pursuance of Congress’                     substantial burdens that an activity has on
    regulation of interstate commerce.” Morrison,                  interstate commerce.” Id. at 562.
    529 U.S. at 612 (emphasis added). We
    therefore have held that a “jurisdictional                         In other words, congressional findings are
    element is not alone sufficient to render [a                   neither necessary nor sufficient for Congress
    challenged statute] constitutional.         That               to invoke the aggregation principle, but merely
    argument . . . has no principled limit.” United                are helpful insofar as they aid the courts in
                                                                   identifying a substantial effect on commerce
                                                                   “even though no such substantial effect [is]
       10
          We recognize that Bird seems to contradict               visible to the naked eye.” Id. at 563.
    this conclusion. “After WickardSSand its reaffirm-             Although § 922(q)(1)(A) contained no
    ance in LopezSSthere can be no question that                   findings, the Court’s deeds in Morrison
    Congress is able to regulate noncommercial, in-                backed up its words in Lopez, because the
    trastate activity that substantially affects interstate        Court rejected reams of findings collected after
    commerce.” Bird, 124 F.3d at 676. Yet, we de-
                                                                   years of legislative inquiry as insufficient to
    cided Bird before the Supreme Court decided
                                                                   support § 13981. Morrison, 529 U.S. at 614-
    Morrison.
                                                                   15.
       11
          A jurisdictional element also may establish
    that a statute comes within the first or second cat-              The fourth and final consideration is the de-
    egory of Commerce Clause regulation identified in              gree of attenuation between the regulated in-
    Lopez. Morrison, 529 at 613 n.5.
    
                                                              11
    trastate activity and the substantial effect on          where the alleged relationship between the
    interstate commerce. This consideration espe-            regulated intrastate activity and the substantial
    cially is designed to impose some judicially en-         effect on interstate commerce is so attenuated
    forceable limit on the aggregation principle             that it would justify all regulation, i.e., would
    and to prevent the Commerce Clause from be-              turn the Commerce Clause into a general po-
    coming a general police power.                           lice power. To do so would erase “the
                                                             distinction between what is truly national and
        In Lopez, the government argued that dis-            what is truly local.” Lopez, 514 U.S. at 567-
    crete instances of gun possession in a school            68 (citing Jones & Laughlin Steel, 301 U.S. at
    zone, when aggregated, increased the costs of            30).
    crime and reduced national productivity. Lo-
    pez, 514 U.S. at 563-64. The Court rejected                                    D.
    the cost-of-crime rationale for aggregation,                 With these standards in mind, we uphold, as
    because it would allow Congress to regulate              a valid exercise of Congress’s commerce
    “all activities that might lead to violent crime,        power, the provisions of the CAA under which
    regardless of how tenuously they relate to in-           Ho was convicted. We review the con-
    terstate commerce.” Id. at 564. Likewise, the            stitutionality of a federal statute de novo.
    Court rejected the national productivity                 Kallestad, 236 F.3d at 227.
    rationale, because it would allow Congress to
    regulate any activity related to economic pro-              Ho feverishly insists that the government
    ductivity including, for example, “marriage, di-         never proved that asbestos was released from
    vorce, and child custody.” Id. Such rationales           the hospital into the ambient air, which
    left the Court “hard pressed to posit any                necessarily means that no asbestos from the
    activity by an individual that Congress is               hospital polluted interstate air. Yet, the
    without power to regulate.” Id.                          government did not need to prove that Ho
                                                             polluted the ambient air to convict him.
       In Morrison, the Court rejected similar ar-
    guments about the alleged substantial effects               Indeed, we may assume arguendo, for pur-
    of sex-based violence, when aggregated, on               poses of the Commerce Clause analysis, that
    employment, production, transit, and con-                no asbestos escaped the hospital, because Ho
    sumption. Morrison, 529 U.S. at 614-16. If               was not convicted of releasing asbestos into
    Congress could regulate sex-based violence               the ambient air; the district court dismissed this
    because of these effects on interstate                   count after a pre-trial hearing. Instead, Ho
    commerce, it could regulate all violence,                was convicted of failure to comply with the
    because sex-based violence, as a subset of all           asbestos work practice standard and failure to
    violence, certainly has a smaller effect than            give notice of intent to remove asbestos. 42
    does all violence. Id. at 615. This kind of              U.S.C. §§ 7412(h), 7414(a); 40 C.F.R.
    attenuated reasoning is “unworkable if we are            § 61.145. The conviction rest on purely
    to maintain the Constitution’s enumeration of            intrastate activities, no doubt, but Jones &
    powers.” Id. at 615.                                     Laughlin Steel and Wickard long ago
                                                             established, and Lopez and Morrison recently
       Lopez and Morrison, therefore, foreclose              reaffirmed, that Congress may regulate wholly
    congressional use of the aggregation principle           intrastate activities that substantially affect in-
    
    
                                                        12
    terstate commerce.                                           dard. We apply the Lopez-Morrison con-
                                                                 siderations to answer in the affirmative.
        The government concedes that the
    application of the asbestos work practice                        First, the regulated intrastate activity, as-
    standard to Ho can be justified only under the               bestos removal, is very much a commercial ac-
    substantial effect test. The standard does not               tivity in today’s economy. It is a booming
    regulate the channels of interstate commerce                 industry, given the hazardous nature of
    or prohibit the interstate shipment of a good or             asbestos and its seeming ubiquity in older
    commodity through these channels. Nor does                   buildings. There is nothing inherently criminal
    it seek to protect the instrumentalities of or a             or disfavored about asbestos removal; in fact,
    thing or person in interstate commerce. Thus,                it might be considered a public service, and
    if the conviction is to be sustained, “it must be            many reputable and certified businesses exist
    under the third category as a regulation of an               solely to remove asbestos from contaminated
    activity that substantially affects interstate               buildings.
    commerce.” Lopez, 514 U.S. at 559.
                                                                    Both the state and federal governments li-
       Furthermore, the government concedes that                 cense businesses and individuals in the field.
    the asbestos work practice standard can satisfy              Most, if not all, asbestos removal projects have
    the substantial effect test only through the ag-             a commercial purpose, because handling toxic
    gregation principle. The government does not                 carcinogens is not something many people
    seriously contend that Ho’s isolated violation               enjoy for its own sake. Unless the owner of an
    of the work practice standard at a single                    asbestos-containing building needs to renovate
    renovation site could, by itself, have a                     the building or demolish it for use of the land
    substantial effect on interstate commerce.                   on which it sits, he is very likely to let sleeping
    Instead, the government argues that similar                  dogs lie and not incur the costs or dangers of
    violations, when aggregated, could                           asbestos removal.
    substantially affect the interstate market for
    asbestos removal services and the interstate                     Moreover, Ho’s activities were driven by
    market for commercial real estate.12                         commercial considerations. He voluntarily so-
                                                                 licited bids from two such businesses, which
       Thus, this case presents the limited question             returned sizable six-figure bids for the hospital
    whether the aggregation principle extends to                 project. Although Ho declined these bids as
    violations of the asbestos work practice stan-               too costly, he hired the Mexican workers to
                                                                 remove the asbestos, which itself was a
                                                                 commercial transaction. Additionally, the en-
       12
                                                                 tire project occurred in a building that Ho re-
          Ho protests that the government did not ad-
                                                                 cently had purchased for $700,000. Had he
    duce this argument at trial. It is true that the gov-
    ernment defended the asbestos work practice stan-
                                                                 not wanted to use the hospital for commercial
    dard in the district court based primarily on the ef-        purposes, he would not have paid such a hefty
    fects of interstate pollution. Yet, the record ade-          sum, solicited the bids for asbestos removal, or
    quately supports the government’s theory urged on            hired the workers to remove the asbestos on
    appeal, and we may affirm for any reason sup-                the sly. We can say with confidence, then, that
    ported by the record. LLEH, Inc. v. Wichita Coun-            asbestos removal in this case, unlike gun
    ty, 
    289 F.3d 358
    , 364 (5th Cir. 2002).
    
                                                            13
    possession in a school zone or sex-based vio-                do not even begin to satisfy the stringent stan-
    lence, is a commercial activity.                             dards of Morrison for the use of congressional
                                                                 findings.
       Second, the asbestos work practice
    standard does not contain any kind of                            Likewise, the parties have not pointed us to
    jurisdictional element. Neither § 112(h) nor §               any relevant or helpful passages from the leg-
    114(a) of the CAA, 42 U.S.C. §§ 7412(h),                     islative histories of the CAA, and we have not
    7414(a), restricts the EPA’s authority to                    discovered any such passages on our own re-
    promulgate work practice standards with a                    view. As so often happens, Congress seems to
    jurisdictional element. Unsurprisingly, the                  have assumed its power to regulate however it
    EPA did not limit the scope of the asbestos                  desires. Yet, congressional findings, as we
    work pract ice standard by means of any kind                 have explained, are neither necessary nor suf-
    of jurisdictional element.      40 C.F.R. §                  ficient to sustain a regulation. The same holds
    61.145.13                                                    for a lack of congressional findings, especially
                                                                 where the substantial effects on interstate com-
       Third, Congress included no congressional                 merce are “visible to the naked eye.” Lopez,
    findings regarding the substantial effects that              514 U.S. at 563.
    asbestos removal may have on interstate com-
    merce. Section 101, 42 U.S.C. § 7401, speaks                    Most importantly, the relationship between
    generally to the harmful effects of air pollution            the asbestos removal in violation of the work
    and states the purposes of the CAA. A few                    practice standard and interstate commerce is
    passages from § 101 refer cursorily to what                  not attenuated, but direct and apparent.
    might be considered aspects of interstate                    Congress had a rational basis to find not only
    commerce.14 These brief passages, however,                   that a national market exists for asbestos
                                                                 removal services, but also that Ho’s activities
                                                                 would injure this market. See Groome Res.
       13
            As we have observed, however, a juris-               Ltd., LLC v. Parish of Jefferson, 234 F.3d
    dictional element is not decisive in Commerce                192, 203 (5th Cir. 2000).
    Clause analysis. Though a jurisdictional element
    may limit the scope of a statute to intrastate ac-               By violating the asbestos work practice
    tivities substantially affecting interstate commerce,        standard, which imposes costly duties on per-
    the absence of such an element will not undermine            sons and businesses engaged in asbestos re-
    a statute where the regulated activity in fact               moval, Ho gained a commercial advantage on
    substantially affects interstate commerce, just as it        licensed abatement companies. Whereas these
    will not save a statute where the regulated activity         companies must spend hundreds of thousands
    does not substantially affect interstate commerce.           of dollars on projects like Ho’s, Ho was able
       14
          See, e.g., 42 U.S.C. § 7401(a)(2) (stating
    that“the growth in amount and complexity of air
    pollution brought about by . . . industrial de-              (...continued)
    velopment . . . has resulted in mounting dangers to          ground transportation); § 7401(b)(1) (stating that
    the public health and welfare, including injury to           a purpose of the CAA is “to protect and enhance
    agricultural crops and livestock, damage to and the          the quality of the Nation’s air resources so as to
    deterioration of property, and hazards to air and            promote the public health and welfare and the
                                (continued...)                   productive capacity of its population”).
    
                                                            14
    scrape bySSliterally and figurativelySSat a cut           activity also serves as a limiting principle.15
    rate of barely more than $20,000 plus supplies.
    His activities also deprived licensed abatement              We therefore conclude the Commerce
    companies of a promising business                         Clause analysis by re-emphasizing the limited
    opportunity. These substantial effects on the             nature of our holding. We uphold only the
    asbestos removal market are direct, not                   sections of the CAA authorizing the asbestos
    attenuated, and they justify use of the                   work practice standard, 42 U.S.C. §§ 7412(h),
    aggregation principle in the narrow situation             7414(a), and the work practice standard itself,
    presented by this case.                                   40 C.F.R. § 61.141. We express no opinion
                                                              on the constitutionality of other sections of the
       Moreover, once aggregated, Ho’s activities             CAA or their implementing regulations, or, for
    posed an threat to the interstate commercial              that matter, of other environmental laws.16
    real estate market. His illicit asbestos removal
    project likely would reduce the number of                                       III.
    companies providing asbestos removal servic-                 Ho challenges the refusal to include an in-
    es. Fewer companies means that conscientious              terstate commerce jurisdictional element in the
    property owners would have more trouble                   jury instructions for each count. He argues
    locating licensed abatement companies and                 that the jurisdictional element is necessary
    likely would have to pay higher prices for the            wherever a prosecution pushes the outer
    services o f remaining companies.                         bounds of the Commerce Clause. Reviewing
    Furthermore, Ho would gain a commercial                   the court’s jury instructions for abuse of dis-
    advantage over conscientious property owners              cretion, Cooper Indus., Inc. v. Tarmac
    who must pay these higher prices for asbestos             Roofing Sys., Inc., 
    276 F.3d 704
    , 714 (5th Cir.
    removal.
    
        By holding that Congress may aggregate vi-               15
                                                                    See Perez, 402 U.S. at 154-57 (national
    olations of the asbestos work practice standard           market for commercial credit); Wickard, 317 U.S.
    to satisfy the substantial effects test, we do not        at 127-28 (national market for wheat); Bird, 124
    cede a general police power to Congress or                F.3d at 678 (national market for abortion services).
    abdicate our responsibility to enforce limits on
                                                                 16
    the Commerce Clause. Far from it, for our                       “The Commerce Clause [is] broad enough to
    holding today has two important limiting                  permit congressional regulation of activities caus-
    principles.                                               ing air or water pollution, or other environmental
                                                              hazards that may have effects in more than one
       First, it applies only to a commercial                 State.” Hodel v. Va. Surface Mining & Re-
    activity, not to any activity whatsoever that             clamation Ass’n, Inc., 
    452 U.S. 264
    , 282 (1981).
                                                              Lopez and Morrison do not challenge this prin-
    might have detrimental environmental effects.
                                                              ciple, though they also do not exempt environmen-
    The Supreme Court has long upheld the                     tal regulations from Commerce Clause scrutiny.
    aggregation a class of commercial activity.               Though we note that the principle seems to require
    Morrison, 529 U.S. at 613. Second, the                    interstate effects before Congress may regulate for
    presence of a national market in the regulated            environmental problems, we have no occasion to
                                                              analyze the principle in this case, because the
                                                              asbestos work practice standard is a valid
                                                              regulation of a commercial activity.
    
                                                         15
    2002), we disagree.                                                            IV.
                                                               Ho challenges the jury instruction on the
       Ho cites United States v. Threadgill, 172            count for failure to give notice of intent to re-
    F.3d 357 (5th Cir. 1999), for the proposition           move asbestos. In summary, he argues that
    that Lopez requires an interstate commerce              § 113(c)(2)(B), 42 U.S.C. § 7413(c)(2)(B),
    jurisdictional element because his prosecution          which imposes criminal penalties on “[a]ny
    pushed the outer bounds of the Commerce                 person who knowingly fails to notify or report
    Clause. Unfortunately for Ho, we expressly              as required by under [the CAA],” requires not
    rejected this proposition in Threadgill. Id.            only knowledge of the presence of asbestos,
    (“[T]he defendants essentially argue that Lopez         but also knowledge of the CAA’s notice re-
    has created a new jurisdictional element in all         quirement. The government, on the other
    federal prosecutions of individual conduct. . .         hand, contends that it only needed to prove
    . We are not persuaded.”). Moreover, the                knowledge of the presence of asbestos.
    text of the CAA does not support Ho’s
    position, because, unlike many other federal                The district court agreed with the
    criminal statutes, it does not contain a                government and instructed the jury that “[i]t is
    jurisdictional element that the government              not necessary that the Government prove the
    must plead and prove. See, e.g., 18 U.S.C. §            Defendant actually knew of the notice
    2421. This omission is a legislative choice, not        requirement.” Although we usually review
    a constitutional defect.                                failure to give a requested jury instruction for
                                                            abuse of discretion, Cooper Indus., 276 F.3d
       At best, Ho falls back on a more general             at 714, we review this question of statutory
    passage from Threadgill, 172 F.3d at 372:               interpretation de novo, United States v. Adam,
    “Whether a defendant’s conduct has a                    
    296 F.3d 327
    , 330 (5th Cir. 2002). The
    ‘substantial effect on interstate commerce’ is a        district court’s instruction was correct, be-
    question that only becomes relevant when the            cause § 113(c)(2)(B) does not require knowl-
    statute at issue, or the facts of the case, cast        edge of the notice requirement.
    doubt on Congress’ ability to use the
    Commerce Clause to regulate the charged                    We need refer only to the venerable maxim
    conduct.” We held that this rule did not apply          that “Ignorance of the law is no defense.” It is
    in Threadgill because the crimes of gambling            as much a part of “our national culture” as are
    and unlawful structuring of banking                     the Miranda warnings. Dickerson v. United
    transactions were “purely commercial                    States, 
    530 U.S. 428
    , 443 (2000). Our
    activities.” Id. Unlike the situation in Lopez          criminal laws typically express this maxim with
    and like that in Threadgill, however, neither           the “knowing” degree of scienter. The
    the asbestos work practice standard nor the             Supreme Court recently has explained in more
    facts of this case cast doubt on Congress’s             lawyer-like fashion that “the term ‘knowingly’
    ability to regulate Ho’s conduct. The district          does not necessarily have any reference to a
    court therefore did not err in refusing Ho’s            culpable state of mind or to knowledge of the
    requested instruction.                                  law . . . . ‘[T]he knowledge requisite to
                                                            knowing violation of a statute is factual
                                                            knowledge as distinguished from knowledge of
    
    
    
                                                       16
    the law.’”17 This maxim is so strongly                     several sound reasons to apply the long-
    embedded in our legal system that “unless the              standing principle.
    text of a statute dictates a different result, the
    term ‘knowingly’ merely requires proof of                     First, other circuits have trenchantly
    knowledge of the facts that constitute the                 interpreted the term “knowingly” in §
    offense.” Bryan, 524 U.S. at 193 (footnote                 113(c)(1) to require knowledge of facts, not
    omitted) (emphasis added).                                 law.18 The phrasing of the two subsections is
                                                               identical, and t he same terms in a statute
       This general rule applies with especial force           should be interpreted in the same way.
    to laws regulating hazardous substances. In                Sullivan v. Stroop, 
    496 U.S. 476
    , 484 (1990).
    United States v. Int’l Minerals & Chem.                    Second, the text of § 113(c)(2)(B) does not
    Corp., 
    402 U.S. 558
     (1971), the Court upheld               “dictate” a contrary result. Bryan, 524 U.S. at
    a conviction of a knowing failure to show                  193. Third, this and the other circuit courts
    shipping papers of a corrosive liquid. The                 have held that the term “knowingly” in other
    government offered no proof that the                       environmental statutes means only a
    defendant knew of the shipping paper                       knowledge of facts, not law.19
    regulation. The Court rejected the challenge,
    however, because the defendant had                             Fourth, though the notice requirement is
    knowledge of the factual elements of the                   somewhat technical or administrative, the
    offense, which was all the statutory scienter of           CAA as a whole is “a public welfare statute,
    a knowing violation required. Id. at 562-64.               involving a heavily regulated area with great
    The Court further stated that where                        ramifications for the public health and safety.”
    “dangerous or deleterious devices or products              Baytank, 934 F.2d at 613 (citation omitted).
    or obnoxious waste materials are involved, the             Consequently, failure to give notice of
    probability of regulation is so great that                 asbestos removal is “a type of conduct that a
    anyone who is aware that he is in possession of            reasonable person should know is subject to
    them or dealing with them must be presumed                 stringent public regulation.” Id. (citing and
    to be aware of the regulation.” Id. at 565.                distinguishing Liparota v. United States, 
    471 U.S. 419
    , 433 (1985)). In these circumstanc-
       Although neither this court nor other circuit
    courts have interpreted the scienter required
                                                                  18
    by § 113(c)(2)(B), we see no reason to depart                    See United States v. Weintraub, 273 F.3d
    from the longstanding principle that                       139 (2d Cir. 2001); United States v. Tomlinson,
    “knowingly” means knowledge of underlying                  No. 99-30020, 1999 U.S. APP. LEXIS 16758 (9th
    facts, not law. To the contrary, we observe                Cir. July 16, 1999) (unpublished); United States v.
                                                               Buckley, 
    934 F.2d 84
     (6th Cir. 1991).
                                                                  19
                                                                    See, e.g., United States v. Kelley Tech. Coat-
       17
           Bryan v. United States, 
    524 U.S. 184
    , 192           ings, Inc., 
    157 F.3d 432
    , 436 (6th Cir. 1998)
    (1998) (quoting Boyce Motor Lines Inc. v. United           (RCRA); United States v. Ahmad, 
    101 F.3d 386
    ,
    States, 
    342 U.S. 337
    , 345 (1952) (Jackson, J., dis-        390 (5th Cir. 1996) (Clean Water Act); United
    senting)); see also United States v. Baytank               States v. Laughlin, 
    10 F.3d 961
    , 966-67 (2d Cir.
    (Houston), Inc., 
    934 F.2d 599
    , 613 (5th Cir. 1991)         1993) (CERCLA); United States v. Buckley, 934
    (stating that “‘knowingly’ means no more than that         F.2d 84, 88-89 (6th Cir. 1991) (CERCLA);
    the defendant knows factually what he is doing”).          Baytank, 934 F.2d at 613 (RCRA).
    
                                                          17
    es, because we decline Ho’s invitation to use             was improperly promulgated. Applying the de
    ambiguous legislative history to interpret the            novo standard of review,21 we disagree.
    plain meaning of the statutory text, see Sale v.
    Haitian Ctrs. Council, 
    509 U.S. 155
    , 169-70                   The CAA bars Ho’s procedural challenge
    (1993), we conclude that § 113(c)(2)(B) re-               to the 1990 rulemaking that amended the defi-
    quires only knowledge of the underlying fac-              nition of “facility.” First, § 307(b)(1), 42
    tual elements and does not impose on the gov-             U.S.C. § 7607(b)(1), requires any challenge to
    ernment the legal duty to give notice.
    
        Ho plainly had knowledge of the underlying
                                                              (...continued)
    factual elements of § 113(c)(2)(B), and in
                                                              means any institutional, commercial, or industrial
    particular of the presence of asbestos. The               structure, installation, or building (excluding apart-
    preceding owner of the hospital informed Ho               ment buildings having no more than four dwelling
    that it contained asbestos. Ho sought an esti-            units).” 40 C.F.R. § 61.141 (1988). Under the
    mate for removal costs from a licensed                    current definition,
    asbestos abatement company, then specifically
    tried to avoid those costs by hiring untrained               Facility means any institutional, commer-
    and unlicensed workers. Ho also received a                   cial, public, industrial, or residential struc-
    stop-work order, from the city, that should                  ture, installation, or building (including any
    have alerted him to the presence of asbestos                 structure, installation, or building containing
    even if he had not already known that the                    condominiums or individual dwelling units
    hospital contained asbestos.                                 operated as a residential cooperative, but
                                                                 excluding apartment buildings having four
                                                                 or fewer dwelling units); any ship; and any
       Ho nevertheless ignored the order, sought
                                                                 active or inactive waste disposal site. For
    a second estimate from a licensed asbestos
                                                                 purposes of this definition, any building,
    abatement company, and continued the remov-                  structure, or installation that contains a loft
    al project. In sum, the jury instruction stated              used as a dwelling is not considered a
    the correct legal standard of scienter, and the              residential structure, installation, or build-
    evidence more than adequately supported a                    ing. Any structure, installation, or building
    jury finding that Ho acted with knowledge of                 that was previously subject to this subpart is
    the underlying factual elements.                             not excluded, regardless of its current use or
                                                                 function.
                           V.
       Ho contends that his conviction is based on            40 C.F.R. § 61.141 (2002). We need not, and do
    an improperly promulgated regulation. The                 not, address whether this regulation applies to an
    asbestos work practice standard applies to                individual residence. See Jones v. United States,
    Ho’s activities only if the hospital satisfies the        
    529 U.S. 848
     (2000).
    regulatory definition of “facility,” 40 C.F.R.               21
                                                                    In a challenge to agency rulemaking, we usu-
    § 61.141. The EPA amended this definition in              ally look to the Administrative Procedure Act, 5
    1990,20 and Ho argues that the amendment                  U.S.C. § 551 et seq., for the standard of review,
                                                              but the CAA bars review of the regulation in this
                                                              case, so we apply the de novo standard of review,
       20
            Under the pre-1990 definition, “Facility          which is customary for questions of law. Cox v.
                              (continued...)                  City of Dallas, 
    256 F.3d 281
    , 288 (5th Cir. 2001).
    
                                                         18
    a rulemaking under §§ 112 and 113 to be filed               interpretations of the sentencing guidelines de
    in the District of Columbia Circuit. Title 40               novo. United States v. Roberts, 
    203 F.3d 867
    ,
    C.F.R. § 61.141 is such a rule, so venue is im-             869 (5th Cir. 2000).
    proper in the courts of this circuit. Second,
    § 307(b)(1) also requires any challenge to be                                      A.
    filed within sixty days of a final agency rule-                The government sought a six-level sentence
    making. The amended definition became final                 enhancement for an “ongoing, continuous, or
    on November 20, 1990, 55 Fed. Reg. 48406,                   repetitive discharge, release, or emission of a
    years before Ho challenged its validity. Thus,              hazardous or toxic substance or pesticide into
    the amended definition is “not subject to ju-               the environment.” U.S.S.G. § 2Q1.2-
    dicial review in civil or criminal proceedings.”            (b)(1)(A). The court declined, holding that the
    42 U.S.C. § 7607(b)(2).                                     phrase “into the environment” required proof
                                                                of a discharge outside t he hospital, which it
       The ruling in Adamo Wrecking Co. v.                      held the government had not established. The
    United States, 
    434 U.S. 275
     (1978), does not                government argues on appeal, as in the district
    aid Ho. There, the Court permitted an other-                court, that the phrase “into the environment”
    wise untimely challenge under § 307(b)(1) on                includes indoor air and, in any event, that it
    the question whether the disputed regulation                proved a discharge of asbestos outside the
    was in fact an “emission standard.” Id. at 285.             hospital. Because we conclude that the
    The Court specifically forbade the lower                    government sufficiently proved, for purposes
    courts, on remand, from considering whether                 of sentencing, a discharge outside the hospital
    the agency had “complied with appropriate                   regardless of the meaning of “into the
    procedures in promulgating the regulation . . .             environment,” we reserve the interpretive
    [or] any of the other familiar inquiries which              question and assume only arguendo that
    arise in the course of an administrative review             § 2Q1.2(b)(1)(A) requires proof of a discharge
    proceeding.” Id. Ho does not dispute that 40                outside the hospital.
    C.F.R. § 61.141 was promulgated under
    §§ 112 and 113. Adamo therefore does not                       The district court clearly erred by ruling
    apply.22                                                    that the government did not prove that Ho’s
                                                                activities resulted in a discharge of asbestos
                           VI.                                  outside the hospital. “A factual finding is
       The government appeals the refusal to en-                clearly erroneous ‘when although there is evi-
    hance Ho’s sentence for (1) repetitive dis-                 dence to support it, the reviewing court on the
    charge of asbestos into the environment and                 entire evidence is left with the definite and firm
    (2) leadership in an extensive criminal activity.           conviction that a mistake has been
    When reviewing a sentence, we review                        committed.’” United States v. Cooper, 274
    findings of facts for clear error and                       F.3d 230, 238 (5th Cir. 2001) (quoting United
                                                                States v. Hill, 
    42 F.3d 914
    , 918 (5th Cir.
                                                                1995)). The record leaves us with just this
       22
         We also observe that the hospital satisfies the        conviction.
    pre-1990 definition of “facility” because Ho
    purchased it and removed the asbestos for com-                 The court based its ruling on three main
    mercial purposes, and the definition did not exclude        factual findings. First, the workers removed
    previously abandoned buildings.
    
                                                           19
    only one bag of fireproofing from the hospital,           inspector, recounted that he also observed
    and even then immediately retrieved the bag.              airborne fireproofing dust inside the hospital
    Second, the court concluded that the                      when he inspected it on March 13, 1998.
    government had not proven that wind had
    blown asbestos out of the unsealed hospital.                   Moreover, Hendrix testified that all the
    Third, the court concluded that the                       doors and many of the windows to the hospital
    government had not established that dust                  were o pen. At the OSHA civil proceeding,
    tracked outside the hospital by workers was               Hendrix also said that the hospital was “open
    asbestos instead of innocuous sheetrock                   . . . with the wind blowing through it.”24 Wil-
    residue. Though the first finding is correct,             liams, another TDH inspector, testified that he
    the overwhelming weight of contrary evidence              took a sample of dust from the frame of an ex-
    cannot support the second and third findings              terior door and that the sample contained two
    or the court’s ultimate conclusion.                       percent chrysolite asbestos. Finally, Wiest, a
                                                              certified asbestos removal contractor, inspect-
       An avalanche of facts supports the                     ed the hospital on April 3, 1998, and observed
    government’s modest argument: that asbestos               an airflow through the unsealed doors and
    must have escaped the unsealed hospital                   windows and through the hole caused by the
    during the asbestos removal.23 This conclusion            explosion.
    intuitively stands to reason, because the
    hospital was never sealed, much less properly                 Photographs of the scene show that the
    sealed as required by regulation, 40 C.F.R. §             bags of removed fireproofing, though inside
    61.145, during seven weeks of asbestos                    the hospital, were open and unsealed, allowing
    removal.                                                  any breeze to blow the fireproofing out of the
                                                              bag. Another photo shows fireproofing dust
       Yet, there is much more. Testimony at trial            on or near an open exterior door. A third pho-
    supports this conclusion. Stewart, a building             to shows a large hole in the second floor ex-
    inspector for the city, testified that he observed        terior wall, though which workers frequently
    airborne fireproofing dust inside the hospital            threw debris into a dumpster on the ground
    when he inspected it on February 2, 1998. He              below. A fourth photograph shows dusty
    further stated that the hospital had no                   footprints just outside an exterior door of the
    containment system that day to prevent the                hospital. Although the court stated that this
    dust from escaping.           Hendrix, a TDH              picture is as consistent with sheetrock residue
                                                              tracks, this is no different from saying that the
                                                              photograph is as consistent with fireproofing
       23
                                                              dust tracks, which is more consistent with the
          Ho incorrectly contends that the government
    impermissibly relies on the presentence report
    (“PSR”) for this argument. The government cites
                                                                 24
    the PSR, but only for the conclusion that asbestos              Ho objects to this testimony, but “sentencing
    escaped the hospital; the facts behind this con-          proceedings do not offer criminal defendants the
    clusion appear in the record. And, in any event, a        same procedural safeguards as trials.” United
    PSR is admissible as evidence for sentencing pur-         States v. Goldfaden, 
    959 F.2d 1324
    , 1330 (5th
    poses, though it may not be used to support a con-        Cir. 1992). Furthermore, Ho gives no reason why
    viction on appeal if the defendant objects to the         Hendrix’s testimony at the OSHA proceeding
    PSR. Cooper, 274 F.3d at 239.                             should be deemed unreliable.
    
                                                         20
    other evidence.                                             discharge, the facts in the instant case are
                                                                equally strong as those in Chau.
        Finally, we come to the remarkable fact of
    the explosion on March 10, 1998, which was                     The government has proven an asbestos
    strong enough to blow a hole in the exterior                discharge by a preponderance of the evidence,
    wall of the hospital. Surely an explosion                   which is all that is required at the sentencing
    strong enough to move mortared bricks was                   phase. Because the district court clearly erred
    also strong enough to move fine, loose                      by holding otherwise, we vacate and remand
    fireproofing dust. And, as with the other                   for re-sentencing.
    openings on the exterior wall, Ho’s failure to
    seal this new hole after the explosion obviously                                  B.
    allowed more fireproofing dust to escape.                      The government sought a four-level
                                                                sentence enhancement for Ho’s status as “an
        This evidence, when considered as a whole,              organizer or leader of a criminal activity that
    leaves no doubt that asbestos escaped the                   involved five or more participants or was
    unsealed hospital continuously and repeatedly               otherwise extensive.” U.S.S.G. § 3B1.1(a).
    throughout the removal project.25 We find                   The court instead imposed a two-level
    support for this conclusion in United States v.             enhancement under § 3B1.1(c), concluding
    Chau, 
    293 F.3d 96
    , 99-100 (3d Cir. 2002),                   that Ho’s criminal activity did not involve five
    affirming an enhancement for repetitive                     or more participants and was not otherwise
    discharge under § 2Q1.2(b)(1)(A). The record                extensive.
    in Chau showed that the defendant had
    disturbed asbestos inside a building and moved                 The only question is the meaning of
    open bags of asbestos outside the building.                 “otherwise extensive.” The government must
    Chau, 293 F.3d at 100. Although the court                   establish three elements for a § 3B1.1(a)
    was affirming a finding of repetitive discharge,            enhancement: (1) Ho was an organizer or
    rather than reversing a finding of no repetitive            leader of a criminal activity, (2) that involved
                                                                at least one other criminally responsible
                                                                “participant”26 and (3) that ‘involved at least
       25
         Ho mistakenly argues that the government               five participants or was otherwise extensive.’
    must prove “actual environmental contamination.”            Section 3B1.1(c) also requires the first two
    This phrase comes from application note 5 to                elements, but not the third. Thus, when it
    U.S.S.G. § 2Q1.2. We held in Goldfaden that note            imposed the two-level enhancement under §
    5 presumes contamination if the government                  3B1.1(c), the court found that Ho was an
    proves discharge. Goldfaden, 959 F.2d at 1331.
    
        These terms are not synonymous. A “dis-
                                                                   26
    charge” refers to the movement of hazardous or                    In United States v. Gross, 
    26 F.3d 552
     (5th
    toxic substances, whereas “contamination” refers            Cir. 1994), we held that § 3B1.1 does not apply
    to the environmental effect of a discharge. Ho and          unless the criminal activity involved at least two
    the government disagree only on the discharge               criminally responsible “participants.” Application
    question. The record supports the government, not           note 1 to § 3B1.1 defines a “participant” as “a per-
    Ho or the district court, on the discharge question,        son who is criminally responsible for the com-
    so contamination is presumed according to note 5            mission of the offense, but need not have been con-
    and Goldfaden.                                              victed.”
    
                                                           21
    organizer and Escobedo was a criminally                  example, that “a fraud that involved only three
    responsible “participant.” Ho does not appeal            participants but used the unknowing services
    these findings, nor does the government                  of many outsiders could be considered
    contend that the Mexican workers were                    extensive.” Thus, a criminal activity is
    criminally responsible “participants.” Thus,             “otherwise extensive” if it involved five or
    we consider only whether the district court              more people who “contributed to the success
    properly interpreted the phrase “otherwise               of the scheme.” Davis, 226 F.3d at 360.
    extensive.”                                              Moreover, we repeatedly have held that “[i]n
                                                             deciding whether a scheme was otherwise
       We usually review determinations under                extensive, the district court must take into
    § 3B1.1 for clear error,27 but we apply the de           account all persons involved during the course
    novo standard here because the court                     of the entire offense.” Id. (emphasis added)
    misinterpreted the phrase “otherwise                     (citation omitted); Glinsey, 209 F.3d at 396.
    extensive.” The parties do not dispute the
    factual matter of Ho’s conduct, but rather the              The court erred by interpreting the phrase
    legal meaning of the phrase “otherwise                   “otherwise extensive” in § 3B1.1(a) to refer to
    extensive.” Although the district court was              the nature of the criminal organization, as dis-
    somewhat opaque, it apparently interpreted               tinguished from the number of participants and
    this phrase to require an ongoing criminal               persons involved.28 We therefore vacate and
    organization of a kind that would justify an             remand for new sentencing in light of the
    upward departure (as distinguished from an               proper and longstanding interpretation of that
    enhancement) under application note 2. We                phrase.
    review this legal interpretation of the guideline
    de novo. Roberts, 203 F.3d at 869.                          For the foregoing reasons, the judgment of
                                                             conviction is AFFIRMED, and the judgment
       This interpretation misreads application              of sentence is VACATED and REMANDED
    note 3 and ignores settled Fifth Circuit                 for proceedings consistent with this opinion.
    precedent. Note 3 directs that “[i]n assessing
    whether an organization is ‘otherwise
    extensive,’ all persons involved during the
    course of the entire offense are to be
    considered.” Note 3 is binding on the federal
    courts, Stinson v. United States, 
    508 U.S. 36
    (1993), and instructs the court to examine
    number of persons involved in the activity, not
    the nature of the criminal organization.
    
       Indeed, note 3 continues to state, by way of             28
                                                                   Of course, Ho was convicted of failure to
                                                             comply with the asbestos work practice standard
                                                             and failure to give notice of intent to remove as-
       27
          See, e.g., United States v. Davis, 226 F.3d        bestos. Thus, he alone committed the specific
    346, 360 (5th Cir. 2000) (reviewing for clear er-        unlawful acts. Yet, these acts presuppose the un-
    ror); United States v. Glinsey, 
    209 F.3d 386
    , 396        lawful asbestos removal activity, which involved
    (5th Cir. 2000) (same).                                  more than five persons.
    
                                                        22