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Sunday, Sept. 13, 2009 | Kyle Rheubottom almost changed his plea from not guilty.

He was two weeks away from ending three years of rollercoaster criminal court proceedings, but then a federal judge dismissed all the prosecution’s evidence against him on Aug. 31. The cards had turned in his favor once again.

Rheubottom supervised an excavation project contracted by San Diego Gas & Electric in 2000 that allegedly exposed some residents of the Lemon Grove area to toxic materials. Rheubottom, SDG&E and two of the utility’s employees involved in the excavation were first indicted by federal prosecutors in 2006 on charges of violating workplace asbestos standards.

The federal case — one of the first using a relatively new U.S. environmental law — has seen highs and lows for all parties. During the excavation, some complained about hazardous levels of dust and pointed to dead birds on the ground as signs of contamination. The county filed a lawsuit against the company in 2005 but dropped the case in lieu of the federal prosecution. Residents have also talked about filing civil litigation for health problems caused by airborne asbestos chemicals.

The federal case was initially dismissed due to a poor description of the asbestos-testing process in the indictment. In 2007, Rheubottom, SDG&E and one of the utility’s employees were convicted of violating workplace asbestos standards. Several months later, the convictions were overturned and a new trial was ordered. The utility has continued to call the allegations baseless.

It’s been almost nine years since Rheubottom worked on the excavation project. On Aug. 20, the prosecution filed a request to change Rheubottom’s plea of not guilty. The court scheduled him to appear before a judge on Friday and some residents of Lemon Grove received an e-mail through a government-run victim’s notification service. The e-mail said Rheubottom was going to plead guilty.

In the preliminary stages of its new trial against the accused parties, the prosecution resubmitted its samples of asbestos to be considered as evidence in the proceedings. On Aug. 31 — less than two weeks before Rheubottom was scheduled to change his plea — the federal judge ruled that none of the asbestos samples could be admitted as evidence. The ruling effectively killed the prosecution’s case for violations of workplace asbestos standards.

According to federal prosecutors, SDG&E and its contractor failed to consider hazardous levels of asbestos in the excavation of a 16-acre site in Lemon Grove. Federal officials say the excavation crews should have dampened the site and taken other actions to prevent asbestos from traveling through the air. Attorneys for the defense have disputed the amount of asbestos in the site’s materials.

“They don’t have an asbestos case without any asbestos,” said Michael Lipman, Rheubottom’s attorney. “I don’t think they have a case.”

U.S. District Court Judge Dana M. Sabraw ruled against admitting 27 pieces of evidence because the items were not collected and tested according to the guidelines provided by environmental law, he wrote in the court order. Specifically, Sabraw argued that the prosecution failed to prove its samples adequately tested every layer of piping that may have contained asbestos material, making them unrepresentative of the site. Other samples were not admissible because the state failed to prove who collected them or that they came from the excavation site.

“The reality is that the government, through skillful lawyering, has attempted to patch together a hodgepodge of evidence from what was once a virtually unlimited source: some nine miles of plastic wrap,” Sabraw wrote. “Yet today, the government seeks to offer test results from questionable samples that were either long ago destroyed or, if still extant, have been reduced to a small pile of rubble that would fit easily within a sandwich-size plastic bag.”

It sounds like Sabraw was writing his opinion during lunch because he continued with the food analogies. He said the government was taking an apple — a noncompliant sample — and calling it an orange — a representative and properly tested sample. “The government has no oranges,” he wrote in the court order.

Shortly after the ruling, Rheubottom’s change of plea hearing was removed from the court calendar. Lipman declined to comment on the action, except to say, “We’ll just wait and see what happens.”

On Friday, a train of defense attorneys and the prosecution met with Sabraw to discuss how the case would proceed forward in light of his ruling on the evidence. The parties agreed to reconvene in four weeks to give the prosecution more time to assess its options.

Assistant U.S. Attorney Melanie Pierson declined to comment on the case after the court hearing. Lipman said the prosecution will have to decide whether to appeal the ruling by Sabraw or dismiss the case entirely.

Please contact Keegan Kyle directly at keegan.kyle@voiceofsandiego.org and follow him on Twitter: twitter.com/keegankyle. And set the tone of the debate with a letter to the editor.

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