Sixth Circuit Affirms Clean Air Act Convictions in Asbestos Case

  • Jan 29, 2014
  • Christopher Placitella
  • Defective & Dangerous Products

Many old buildings in United States contain asbestos.  When these buildings are demolished to make way for new development, federal law requires that workers handle asbestos in a safe manner to prevent asbestos particles from becoming airborne. 

A recent decision from the United States Court of Appeals for the Sixth Circuit, U.S. v. James Mathis and Donald Fillers, demonstrates the importance of handling asbestos in such a way that workers and residents in the surrounding area are not exposed to the toxic substance. The case involves developer Donald Fillers, who formed a company named the Watkins Street Project in 2003 to develop an unused factory site in Chattanooga, Tennessee.

Mr. Fillers intended to demolish the factory and sell the salvageable materials. Fillers was aware that the factory contained asbestos, which the Clean Air Act lists as a hazardous pollutant. The Environmental Protection Agency has developed work-practice standards for the demolition of buildings that contain asbestos.  In general, these standards require the removal of all asbestos before any demolition work can commence that could dislodge any asbestos.

Mr. Fillers originally hired a certified asbestos surveying company to estimate the amount of asbestos in the abandoned factory and the cost of removal. The survey revealed a large amount of duct, pipe, and equipment insulation containing asbestos.  The company estimated that it would cost $214,650 to safely remove the contaminated material.

Fillers then hired Mathis Companies, a demolition company owned by James Mathis, to tear down the factory. Mr. Mathis solicited bids from subcontractors to remove the asbestos and received two bids of $129,250 and $126,542.  Mr. Fillers then contacted another asbestos removal company and neglected to tell this company that an asbestos survey had been prepared.  Based on an “initial walk through,” this asbestos removal firm estimated the cost of removal at $28,900. Mr. Fillers accepted the bid.

During trial, testimony revealed that this company removed “maybe, like, 1/100th” of the asbestos listed in the original asbestos survey. Fillers and Mathis then hired temporary day laborers to remove debris and salvageable materials from the factory. These workers were not equipped with protective gear or trained to remove asbestos. In violation of federal environmental laws and regulations, “the workers used power tools to cut through pipes that were wrapped in insulation, threw debris out of windows so that it fell to the ground, removed insulation by hand, and otherwise disposed of insulation without wetting, containerizing, or labeling it.”

Because the asbestos was not handled properly, asbestos dust was dispersed through much of the worksite and into the surrounding neighborhood, which contained a daycare center, residential homes, and various small businesses. As noted in the Sixth Circuit’s decision, “an employee of a nearby daycare facility later testified that the air in the area was so contaminated that the children at the daycare were unable to play outside.”

An investigator from the Air Pollution Control Bureau stopped by the demolition site during a routine patrol. He testified that it “looked like a bomb had gone off” and that there were “debris piles over the entire city block.” Furthermore, there were no signs, fences, or security guards to keep the public off the site. Following the investigator’s visit, the EPA sent an emergency response coordinator to the site, who declared the site to be an imminent threat to human health and the environment and ordered Fillers to clean up the debris using a certified asbestos-removal company.

The United States government charged Fillers and Mathis with conspiracy to defraud the United States, multiple violations of the Clean Air Act, and obstruction of justice. The jury convicted Fillers of conspiracy, six substantive violations of the Clean Air Act, making false statements, and obstruction of justice. The judge sentenced Fillers to 44 months imprisonment. The jury convicted Mathis of conspiracy and two substantive violations of the Clean Air Act and the judge sentenced him to 18 months imprisonment. 

Mathis and Fillers appealed their convictions and sentences on several grounds including that the search of the site by the Air Pollution Control Bureau investigator was a warrantless search and seizure, in violation of the Fourth Amendment of the U.S. Constitution. The Court of Appeals affirmed the convictions, and ruled that the searches did not violate the Fourth Amendment because the defendants did not have “a legitimate expectation of privacy in the property.” The Sixth Circuit cited the Supreme Court in stating that, “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

Mathis and Fillers also argued that the lower court erred in finding that any exposure to asbestos, no mater how small, is unsafe. The lower court ruled that, “no exposure to asbestos is proven safe” and “members of the salvage crew were not only exposed to asbestos fibers, but inhaled them.” The Sixth Circuit affirmed these findings of the lower court and found they were supported by the substantial weight of the evidence contained in the record.

Mathis and Fillers also challenged the district court’s admission of testimony regarding the presence of a daycare center directly next to the demolition cite, arguing that this testimony was unfairly prejudicial, irrelevant, and “needlessly cumulative.” The Sixth Circuit held that the lower court did not abuse its discretion in allowing a daycare center employee to testify that she “had to bring the children inside because of dust from the demolition activities.”

Although the dangers of asbestos have been known for decades, not all companies handle the hazardous material properly when demolishing or renovating older buildings. As this case illustrates, the Clean Air Act has teeth. It contains criminal provisions that can result in jail time for individuals who fail to minimize the risk that asbestos will be inhaled by workers or residents in the surrounding area.

Author Bio: Christopher Placitella is a founding partner of the law firm Cohen Placitella & Roth, P.C. Mr. Placitella has established a national asbestos litigation group dedicated to effectively representing individuals who suffer from mesothelioma and other asbestos-related diseases. An experienced litigator, Mr. Placitella served as trial counsel in the largest consolidated asbestos trial in New York City history. 

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