If you give your word, keep it!

In December 2005, a Virginia court of appeals upheld the criminal conviction of Teddy Lawless for illegally storing, dumping, speculatively accumulating or otherwise placing 500 or more waste tires on his property without a permit. The interesting note to this decision is that the appellate court rejected a claim that the state Department of Environmental Quality (DEQ) had entered in to an agreement with Lawless that allowed him to keep the excessive number of waste tires on his property as long as he was removing them.

The chain of events that led to the Virginia court decision began in 1994, when a state inspector observed a large number of waste tires stored on Lawless’s property and informed him that he could not store more than 100 tires on his property without first obtaining a permit. Subsequent inspections in 1997 and 1999 noted a substantial increase in the number of tires on site to around 300. Lawless admitted to the inspector that he was bringing in waste tires to store temporarily until they were taken to a proper disposal site. The DEQ followed the 1999 inspection with a violation notice requiring Lawless to remove all the tires by the end of the year.

In June 2000, the inspector discovered that the number of tires on site had grown to approximately 15,000. This time, when questioned about the existence of the waste tires, Lawless claimed that he was going to use the tires to build a privacy fence. The DEQ issued another violation notice and Lawless orally agreed to remove all the tires within three months. Three months later another violation notice was issued as the tires remained on the property.

At the beginning of June 2001, Lawless signed a written consent order where he agreed to remove more than 3,000 tires per quarter, and to have all the tires removed by the end of April 2002. The DEQ also included a specific provision that prohibited Lawless from bringing any additional waste tires onto the site. However, an inspection at the end of June found that the number of waste tires had grown to an estimated 20,500. The DEQ agreed to extend the removal deadline a year and increased the number of tires that were required to be removed each quarter to 5,000. As might be surmised from the emerging pattern, an inspection in May 2003 found that, rather than a property clear of waste tires, the DEQ found the number of tires on the site had grown to approximately 40,000.

At the trial, Lawless admitted that he didn’t have a permit and that he had approximately 40,000 waste tires on his property. He also admitted that he knew that he was not allowed to store more than 100 tires, but he denied that he ever placed additional tires on his property. Lawless instead claimed that the number of tires on his property had never increased from the first day, but that the DEQ simply became more accurate in how they were estimating the number of tires on site.

While the implausible claims raised by Lawless were rapidly dismissed by the trial court, they did figure prominently in the subsequent rejection of his claim to the appellate court that he could not be prosecuted for storing waste tires on his property because the DEQ had entered into an agreement providing a period of time in which he was to remove the tires. While stating that the basic premise of his argument was correct, i.e. that a criminal statute could not be constitutionally applied to a defendant where government officials misled him into believing that his conduct was not prohibited, the appellate court rejected the argument as applied to the defendant because it was based on the proposition that he was complying with the consent order he had signed with the DEQ. The court pointed out that the order prohibited Lawless from placing any additional tires on site. Inexplicably, at least to Lawless, the appellate court rejected the factual premise that the number of tires on site had not actually increased in the time frame between 1994 and 2003, apparently believing that the DEQ inspectors were capable of telling the difference between 300 and 40,000 waste tires.

There are several lessons to be gleaned from this unfortunate chain of events:

•The ultimate prosecution by the state could have been avoided had Lawless engaged in good faith efforts to live up to his word. A government agency does not always have a knee-jerk reaction to initiating a criminal prosecution. In this instance, the state DEQ tried unsuccessfully to work with Lawless for a period of years to resolve the problems at his site.

•The problems that beset Lawless may have been lessened to a great extent had he engaged knowledgeable legal assistance at the first sign of interest by the DEQ.

•Permit requirements and the procedures required to obtain permits are generally well-defined in most regulatory schemes. Apply for and obtain permits that allow the type of activity in which you wish to engage.

•If a waste material can be recycled for use as a productive material, as in the claim by Lawless that he intended to use the waste tires to construct a privacy fence, work with your legal representation and appropriate agency officials to determine whether the proposed use is acceptable and, if so, what permitting requirements accompany the proposed beneficial use.

These observations provide an important starting point to any analysis of the possible criminal or civil legal liability a company or individual may face when handling waste materials.