May 2006


Legally Speaking with Brad Tamarro

When dealing with The Clean Air Act – knowledge does not mean you know it is a crime

Proving what a person knows or should have known is often the keystone in most criminal prosecutions that the government must establish in order to convince a jury to return a verdict of guilty. The question will then revolve around arguments about just what the government must prove the target of the prosecution knew of should have known. With that in mind, a recent federal court of appeals decision in the New York case of US v. Rubenstein, 403 F.3d 93 (2005) served to highlight the fact that a criminal conviction under the Clean Air Act does not require the government to prove that a person knew the action he was taking was illegal.

The problems for the Rubenstein family revolved around a commercial building they owned for 30 years in Brooklyn, New York. Marvin Rubenstein was the president of the company that owned the building and Isaac Rubenstein, Marvin’s son, assisted Marvin in managing the building. In April of 2000, a real estate developer who wanted to buy the building saw what he thought was asbestos on exposed pipes in the building.

The developer hired a consultant to inspect the property and Isaac went with the consultant during the inspection. The consultant took a sample of the material he told Isaac was asbestos and the $50 million lease agreed to between Marvin and the developer included an oral agreement by Marvin to remove the asbestos.

Marvin then hired men he had previously employed in another business to remove all pipe insulation. However, while Marvin told the men to remove the material with a knife or scissors and put it into boxes, he did not tell them the material was asbestos. When the developer’s contractor began the demolition of the building in early December, dry asbestos was discovered in unsealed boxes in the building. After the developer’s contractor observed Marvin order his workers to put the unsealed boxes into a garbage truck, the contractor told the employees that they were handling asbestos and he gave them dust masks to use.

The developer subsequently told Marvin that asbestos could not be removed in the manner he was telling his employees to remove it. Marvin simply told him that it was all being blown out of proportion and it was not any big deal. That same day, inspectors from the New York Department of Environmental Quality [DEQ] inspected the building. Marvin told the inspectors that he had simply hired some men off the street to remove the insulation and didn’t know it contained asbestos. Isaac also told the inspectors the men had been hired off the street and denied that he knew the nature of the insulation.

The DEP told the Rubenstein’s the building was contaminated and that they needed to hire a contractor to remove the asbestos. In addition, a scope of work would have to be submitted to and approved by the DEP before the removal work could begin. Ignoring the DEP orders, Isaac hired a contractor that was not approved by DEP, told the contractor he did not have to submit a scope of work, and told the contractor to lock the door should the DEP come around. After a DEP inspector discovered the contractor preparing to remove the asbestos, a different contractor then submitted a scope of work that was then approved by DEP and the removal of the asbestos was accomplished by that contractor.

Marvin and Isaac challenged their convictions under the Clean Air Act claiming that they did not “knowingly” violate any requirements or prohibitions established in the law. They relied upon the fact that they belonged to an insular religious community of Hasidic Jews where asbestos was not a subject of interest. Thus, they claimed, as demonstrated by their insulated lives, the government failed to prove they appreciated the dangers presented by asbestos.

The appellate court rejected the claim for several reasons not the least of which was the improbable nature of the Rubenstein’s claim of ignorance. The Rubenstein’s knew enough to negotiate the removal of the asbestos as a condition of the $50 million dollar lease. They were also told the material was asbestos several times before they attempted the improper removal and even after they were directly confronted by the DEP they lied about their activities and still tried to circumvent the requirements for proper removal.

With the factual claims dispensed of, the court pointed to the CAA itself and reinforced that the law presupposed knowledge that asbestos was a regulated material and that this was not a rebuttable presumption. The court’s examination of the law found that the “knowledge” that was required was only knowledge of the facts and circumstances that made up the violation and not specific knowledge that the conduct itself was illegal. In other words, you know what you are doing at the time and you mean to do what you did.

The tragic circumstances surrounding Marvin and Isaac Rubenstein highlight several basic lessons:

* Rely on individuals with legal and technical expertise when handling waste materials;
* Identify and comply with applicable handling, licensing and permitting requirements;
* Do not ignore requirements, directions or orders from regulatory agencies;
* Do not misrepresent facts to regulatory agency. In many instances, false statements made to an inspector or investigator during the course of an inspection or investigation may form the basis for a prosecution that is independent of any environmental irregularity. The better course of action is to seek legal representation at an appropriate point in time. While the Rubensteins were not prosecuted for making false statements, what appear to be misrepresentations also appear to be an aggravating factor.

Had Marvin and Isaac heeded these basic lessons at an early stage, they would have ultimately reduced or eliminated their potential for criminal liability.



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