In a Middle District of Florida lawsuit, the defendants sought to dismiss an eight-count indictment alleging violations of various work practice standards involving regulated asbestos containing material (RACM). In their motion to dismiss, the defendants argued that the government failed to allege an essential element of the offense, that essential facts of the offense were missing, and that the criminal offense alleged did not exist.
Considering the essential elements and facts of the offense claims simultaneously, the court refused to dismiss the case and found that the allegations were sufficient. The defendants had taken issue with the government’s failure to allege the first sentence of the definition of “friable asbestos material” in its entirety, arguing that the first sentence laid out the only test method may be used in testing material for friable asbestos. The court disagreed, however, and held that the second sentence “clearly contemplates that more than one method may be used to determine the content of asbestos.
Finally, the court dealt with the failure to inspect claim, finding that the complaint sufficiently charged a criminal offense for failure to thoroughly inspect the facility to determine whether asbestos was present before beginning renovations. While the defendants argued that failure to “thoroughly inspect” is not subject to criminal penalties, the court responded by explaining that “the fact that the mandate to thoroughly inspect appears in the regulation prior to the RACM and quantity requirements does not change the notice that an owner or operator must inspect before renovations.”