As former U.S. Attorney General Janet Reno has stated, “Knowingly removing asbestos improperly is criminal.” It is this potential for criminal penalties that may invoke a client’s Fifth Amendment privilege against self-incrimination in related civil litigation involving allegations of improper asbestos removal.
While there is a myriad of civil laws regulating asbestos, criminal penalties also exist to punish improper asbestos removal. The Clean Air Act classifies asbestos as a “hazardous air pollutant” and establishes criminal penalties for any person who knowingly violates Section 112 of the Act, or any rule promulgated under that Section. The Clean Air Act also establishes criminal penalties for any person who knowingly fails to notify or report as required under the Act. Recognizing that the renovation or demolition of buildings containing asbestos is a major source of airborne asbestos, the Environmental Protection Agency has sought to control emissions by promulgating work practice standards that govern demolition or renovation activities. The regulations require that asbestos-containing materials be wetted during removal; that the removed or stripped asbestos-containing materials be kept adequately wet to prevent the release of fibers; and that the asbestos-containing materials be sealed in leak-tight containers while wet and stored in such containers until collected for proper disposal. Additionally, asbestos-containing material cannot be removed, disturbed, or otherwise handled unless a foreman or management-level individual who has been trained in complying with the standards is present on-site.
Law enforcement agencies have been recently prosecuting companies and employees suspected of improperly removing asbestos. In July 2007, a jury convicted a San Diego utility company in federal court of three counts of improperly removing asbestos by using a cheaper machine to scrape chunks of coating containing asbestos off pipes that stored natural gas. The utility company faces fines up to $2 million. Three workers face up to five years in prison and a $250,000 fine for each conviction. In June 2007, a hotel management corporation in Missouri pled guilty for leaving debris containing asbestos in a lower garage during a remodeling project and agreed to pay $300,000 when it would have only cost $35,000 to properly clean up the asbestos. On October 26, 2007, an asbestos abatement project supervisor pleaded guilty for violating the Clean Air Act when he directed employees to remove transite panels containing asbestos at a naval air station in Maryland by smashing them with hammers and allowing the transite to fall to the ground and break, thereby causing a release of asbestos fibers into the environment. The prosecutor warned “that those who choose to ignore asbestos abatement regulations will be prosecuted.”
The Fifth Amendment of the U.S. Constitution is part of the Bill of Rights and protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is a refusal to answer a question because the response could form self incriminating evidence. Although the Constitution states that no person “shall be compelled in any criminal case to be a witness against himself (italics added),” Fifth Amendment protections apply whenever an individual is compelled to testify, whether the proceeding is criminal or civil. Unlike a criminal case where a defendant either testifies or remains silent, the Fifth Amendment is asserted selectively in civil cases. That is, a civil litigator may only assert the privilege for specific discovery or deposition questions where the response may incriminate the client.
In conclusion, an environmental lawyer must determine whether and when to advise a client to invoke the Fifth Amendment privilege against self incrimination in civil asbestos litigation. If the client’s methods of removing asbestos were employed to save costs or not used at all, the lawyer should consider whether such actions or inactions could be criminal. If the answer is yes, then the lawyer may want to advise the client of his Fifth Amendment rights and/or instruct the client not to answer. Of course, this begs the question of whether “pleading the Fifth” could serve as an umbrella of protection or become a detriment to the outcome of the civil asbestos litigation. That is an issue for another day.
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