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
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
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.