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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
of Commerce Clause jurisprudence. We then
"For purposes of this section, if it is not feas-
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.
§ 61.145. The EPA adopted the work practice
3 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
under § 113(c)(1), (c)(2)(B) of the CAA, 42
Ho, of course, disputes that the work practice
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 It would be more accurate to speak of the
(...continued)
"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
n a v i g a b l e r i v e r s , a n d
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).
"Second, Congress is empowered to
6 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 See also Marbury v. Madison, 5 U.S.
8 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-
curring) (arguing that the substantial effect test
9(...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-
tire project occurred in a building that Ho re-
12 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-
not wanted to use the hospital for commercial
ernment defended the asbestos work practice stan-
purposes, he would not have paid such a hefty
dard in the district court based primarily on the ef-
sum, solicited the bids for asbestos removal, or
fects of interstate pollution. Yet, the record ade-
hired the workers to remove the asbestos on
quately supports the government's theory urged 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
Ltd., LLC v. Parish of Jefferson, 234 F.3d
As we have observed, however, a juris-
192, 203 (5th Cir. 2000).
dictional element is not decisive in Commerce
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
the Commerce Clause. Far from it, for our
16 "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).
might have detrimental environmental effects.
Lopez and Morrison do not challenge this prin-
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
by § 113(c)(2)(B), we see no reason to depart
18 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
Ho nevertheless ignored the order, sought
or fewer dwelling units); any ship; and any
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 the 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
conviction.
We also observe that the hospital satisfies the
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
dust tracks, which is more consistent with the
23 Ho incorrectly contends that the government
impermissibly relies on the presentence report
("PSR") for this argument. The government cites
the PSR, but only for the conclusion that asbestos
24 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-
charge" refers to the movement of hazardous or
26 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