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If you think the only people or companies that suffer criminal penalty under environmental laws are big-time operators that cause terrible pollution, you should consider what happened to a contractor and subcontractor that were demolishing a building and constructing a new grocery store. After commencing work, the demolition subcontractor found two yellow canisters designed to hold gases under pressure. They had labels bearing crossbones and marked “poison.” They also were stamped “Property of Reddick Fumigants.” Mr. Case, superintendent for the contractor and Mr. Jerkins, the owner of the subcontractor, knew that the site owner had conducted an environmental site assessment which did not indicate the presence of any hazardous wastes or containers. They proceeded to remove the canisters from the building and set them in an open on-site area with the intent to have an environmental company remove them from the work site. Apparently, a few weeks after they moved the containers, an employee of the project owner stole them from the site and took them home to his cousin who connected them to her propane stove and died from breathing the methyl bromide that leaked from the canisters.

Both construction companies and their employees, Case and Jerkins, were indicted by a grand jury and charged with illegal storage of hazardous waste in violation of the Resource Conservation and Recovery Act (RCRA). They were found guilty and sentenced to five years probation and fines of up to $100,000. Throughout their trial, and on appeal, the defendants argued that they were “small quantity generators” exempt from permit requirements for the storage of hazardous waste. They also argued that the canisters were not waste at all but that they were usable products that could be returned to their manufacturer for use for their intended purpose. The gas in the canisters weighed less than 100 kilograms.

The court held that the defendants could not qualify for “small generator” status because they did not “generate” the waste — they merely disposed of wastes that were already in existence.  They were not “generators” since the canisters were “already waste when” the project owner for whom they worked bought the property. The parties submitted that they had no knowledge that they would not be considered generators who were exempt from the permit requirements. They also argued that they had no idea that “merely finding the cylinders on a jobsite or placing them on the ground without further containment constituted a felony.” And they argued that even if the canisters were waste, they had no such knowledge, and that this negated an essential element of the criminal offense.

In rejecting all these arguments by the defendants, the appellate court held that the canisters were clearly discarded or abandoned and that “whether it was done intentionally is of no moment.” The court affirmed the criminal judgments under RCRA, concluding that “the factual basis was sufficient to support the crime charged.” United States v. Sims Brothers Construction, 277 F.3d 734 (5th Cir., 2001).

NOTE: This case should serve as a warning to anyone working of a jobsite not to remove containers filled with hazardous materials (no matter how small they are) without obtaining professional advice concerning compliance with environmental laws. In this case the canisters were not even moved off-site. They were merely moved from one location to another at the same site. Had there not been an intervening theft of the canisters, it is possible that they would have been properly returned to their manufacturer or disposed of by an environmental firm since the contractors had discussed both of these possibilities. It does not appear that the parties involved had any intent to mishandle the materials, harm the environment or people, or violate any law. But the court held that none of that is relevant to the issue of criminal culpability under the RCRA environmental law. CONTRACTOR BEWARE.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 4, No. 7 (Jul/Aug 2002).

Copyright 2001, ConstructionRIsk.com, LLC