A failed acquittal attempt, coupled with a separate charge of fraudulently claiming $400,000 in tax refunds from the City of Lawrence, made 2018 a very stressful year for Thomas Fritzel. Fritzel, a real estate developer in Lawrence, Kansas, was found guilty of three Clean Air Act violations because he “failed to report intent to demolish or renovate before regulated asbestos-containing material was removed, regulated asbestos-containing material (RACM) not appropriate.” wetted, and failure to contain RACM in a leak-proof package or container.” Faced with a possible multi-year prison sentence and a fine of hundreds of thousands of dollars after being denied an acquittal, Thomas Fritzel threw a legal Hail Mary and pleaded last September a new trial, which was rejected.
HISTORY OF THE COUNTRY CLUB
Ironically, the Alvamar Country Club that puts Thomas Fritzel at risk of going to jail was built by his father’s construction company, Gene Fritzel. Thomas Fritzel, a well-known developer in Lawrence, Kansas, began renovating the country club in Lawrence, Kansas after purchasing it in 2016. On March 4, 2016, Thomas Fritzel received an email from Richard Herries, the golf course superintendent, that would later cost him his career and possibly his freedom. “The roof of the CC clubhouse has asbestos.”
CLEAN AIR ACT AND REMOVE ASBESTOS
The Clean Air Act requires the Environmental Protection Agency (EPA) to identify hazardous air pollutants and set standards to limit their emissions into the atmosphere. The EPA has designated asbestos as a hazardous air pollutant and established working practice standards for demolition and renovation of facilities containing asbestos. Building demolitions and renovations require a thorough inspection of the site. As the owner or operator of the demolition project, Thomas Fritzel was required to notify the appropriate state agency, the Kansas Dept. of Health and Environment (KDHE) before the demolition or renovation of a building begins. The asbestos is disposed of very carefully by wetting the materials containing asbestos and sealing the material in leak-proof containers. As you can imagine, these process requirements are met to minimize the release and exposure of asbestos in the environment. These steps would make the removal of asbestos-containing materials slower and more expensive, but they also protect public health from the potential negative effects of asbestos exposure.
EVENTS RESULTING IN INJURY
Demolition and remediation of buildings containing asbestos can be expensive, but even more so if done improperly. Mr Fritzel tried to beat the system by arranging a sample of demolition material to be tested for asbestos, even though he knew the sample would not contain asbestos. A few months later, Thomas Fritzel sent the ACT (Asbestos Consulting and Testing) report of this sample to the Kansas Department of Health and Environment (KDHE) in hopes of continuing business as usual and avoiding the additional expensive regulatory process related to asbestos remove. This report was sent to KDHE a few days after inspectors received complaints about asbestos-containing materials being improperly removed from the site. Inspectors took photographs and samples of rubble from the site to make their own assessment of the presence of asbestos. The health department determined that the samples contained 75% chrysotile asbestos. The demolition work was put on hold that same day. Almost two weeks later, KDHE carried out an additional inspection which found that the asbestos debris had been removed and transported to the Hamm landfill, a site not authorized by RACM.
The government originally charged Fritzel along with three others – Casey Stewart, Wesley Lynch and Tucker Fritzel, Fritzel’s son. The prosecution alleged four counts against all of the defendants – the three counts on which Fritzel was ultimately convicted and one charge of conspiracy. Two days before the trial began, the government released Fritzel’s co-defendants along with the conspiracy charge. Fritzel alone went to trial on the remaining three counts. A federal jury convicted defendant Thomas Fritzel of three Clean Air Act violations after a brief five-day trial.
The court denied Thomas Fritzel’s motion for acquittal after the US government presented substantial evidence supporting the charges against Mr. Fritzel. The government produced testimonies from Philip Schlaman of the Kansas Department of Health and Environmental Protection, Adrian Turner, a certified asbestos inspector, and Scott Mesler, a roofer who originally reported the violation. All of their testimony showed that they took samples from the site, which tested positive for white asbestos. The government also provided evidence that Mr Fritzel knew about the asbestos on the roof. Jay Patterson testified that he presented positive asbestos test results from 2008 to the general manager of the Jayhawk Club. Richard Herries testified he emailed Fritzel in 2016 that the roof contained asbestos and Schlaman testified he emailed Mr Fritzel and left a phone message saying there was an “asbestos problem”. The government too cited United States v. Weintraub, 273 F.3d 139, 150 (2. Cir. 2001) In order to refute Mr Fritzel’s claim, the government had to prove that the asbestos found was specifically RACM, an asbestos containing more than 1% brittle asbestos. in the bunch of grapesthe US Circuit Court of Appeals ruled that the government’s only obligation is to show the defendant knowledge of the alleged asbestos injuries.
THE DEFENSE OF THOMAS FRITZEL
Unfortunately for Thomas Fritzel, his attempt to seek a second chance to defend himself against violating the Clean Air Act was unsuccessful. His defense argued that a new trial was necessary because the government had failed to prove every element of each charge, eliciting improper testimony from Mr Herries, the prosecutor, to pressure Mr Fritzel in an unrelated case, was involved in misconduct by the public prosecutor’s office and the court admitted false testimony. The court found none of Mr. Fritzel’s arguments persuasive and concluded that a new trial was not warranted.
DANGERS OF IMPROPER DISPOSAL OF ASBESTOS
Thomas Fritzel is awaiting sentencing in November while out on $50,000 bail. The penalties imposed on Mr. Fritzel are severe. However, there is a good reason why the EPA designates asbestos as a hazardous air pollutant and imposes such strict regulations and penalties. Exposure to asbestos can lead to significant health complications. Exposure to microscopic asbestos fibers can cause malignant mesothelioma, the chronic lung disease asbestosis, and many other diseases. In fact, a new report by several EPA officials and experts has advised the agency to ban all new uses of asbestos because of the extreme harm it can cause.
Asbestos is a hazardous substance that must be carefully removed to ensure public safety.