Description: Spokane, Washington criminal defense lawyer represented Defendant charged with criminal violation of the Clean Air Act in connection with asbestos contamination at a site in Spokane in 2018.
in October 2017, Mischenko and his company, Buck Creek Sales, signed a contract to dismantle a legacy industrial building located on Magnesium Road in North Spokane and known as “Building 5.” Mischenko’s contract included funding to commission an asbestos survey to determine whether and to what extent Building 5 contained asbestos.
Asbestos is a naturally-occurring mineral that, due to its insulating and fire-resistant properties, was a commonly-used material in buildings constructed prior to 1980, such as Building 5. Because inhalation of asbestos fibers has been linked to various dangerous lung conditions, including mesothelioma, asbestosis, and lung cancer, asbestos-containing material is regulated by the Environmental Protection Agency (EPA) and, in Spokane County, by the Spokane Regional Clean Air Agency (SRCAA).
According to court documents and information discussed in court, in late 2017, a certified asbestos inspector did perform an asbestos survey of Building 5. The survey showed significant quantities of asbestos-containing material in Building 5, including approximately 2,600 linear feet of asbestos-containing material known as thermal systems insulation (TSI). The survey noted that the asbestos-containing TSI was “friable” (that is, easily crumbled with hand pressure), and, therefore, “will require removal by a licensed asbestos contractor prior to any renovation or demolition activity that would directly impact these materials.” Mischenko was provided a copy of the survey report on or about December 4, 2017.
Subsequent to receiving the survey results, Mischenko, who was not a licensed asbestos contractor, and at least one employee, cut the asbestos-containing TSI off of the pipe and disposed of the pipe. Mischenko then placed the asbestos-containing TSI into 14 unsealed sacks and one open-top wooden crate, and moved the sacks and the crate to a nearby building, where they remained until they were found by inspectors from SRCAA and, later, EPA. Mischenko did not notify SRCAA or EPA prior to engaging in the work, which, due to the work methods employed by Mischenko, released significant quantities of asbestos fibers into the air as well as scattered on the floor of Building 5.
In September 2022, U.S. Attorney Waldref, who previously served as Trial Attorney with DOJ’s Environment and Natural Resources Division and an environmental law professor at Gonzaga University’s School of Law, was selected to lead the Environmental Justice & Environmental Issues Subcommittee for the Attorney General’s Advisory Committee. As the subcommittee chair, U.S. Attorney Waldref plays a key role in leading and coordinating DOJ’s criminal and civil environmental enforcement efforts.
“Environmental Justice is a critical public health priority,” said U.S. Attorney Waldref. “When businesses or individuals cut corners to save money, and fail to take seriously the public health risk posed by dangerous contaminants like asbestos, the entire community is harmed, but the harm falls disproportionately on marginalized and disadvantaged members of our community who are more likely to be affected and less likely to have access to health care and other services.”
“The defendant was responsible for the safe – and legal – removal of material containing asbestos,” said Acting Special Agent in Charge Benjamin Carr of EPA’s criminal enforcement program in Washington. “The defendant has been sentenced for doing just the opposite and put workers and the general public at risk.”
Senior District Judge Peterson sentenced Mischenko to 3 years of federal probation, during which time he will be supervised by the court and is prohibited from engaging in, performing, or supervising any asbestos-related work as well as other salvage work. Judge Peterson also imposed a $12,060 fine to ensure that Mischenko did not financially profit from his misconduct.
“I commend the exceptional work by SRCAA in uncovering this dangerous situation and quickly working to protect our community, as well as the stellar investigative work by EPA’s Criminal Investigation Division,” continued U.S. Attorney Waldref. “We will continue to work with our state and federal law enforcement partners to protect public health and our precious natural resources.”
This case was investigated by EPA’s Criminal Investigation Division. Assistant United States Attorneys Dan Fruchter and Tyler H.L. Tornabene and Special Assistant United States Attorney Gwendolyn Russell prosecuted this case on behalf of the United States.
42 U.S.C. § 7413(c)(2)(B) - CLEAN AIR ACT FAILURE TO NOTIFY
Outcome: Probation: 36 months; Special Penalty Assessment: $100; Fine: $12,060