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Kansas Developer Improperly Removes Asbestos, Now Faces Jail

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A failed attempt for an acquittal, coupled with a separate indictment of federal charges of collecting $400,000 in fraudulent tax refunds from the City of Lawrence, made 2018 a very stressful year for Thomas Fritzel. Fritzel, a developer in Lawrence, Kansas was found guilty of three Clean Air Act violations for “failure to notify of intent to demolish or renovate prior to removing regulated asbestos-containing material, failure to adequately wet regulated asbestos-containing material (RACM), and failure to contain RACM in a leak tight wrapping or container.” Facing a possible multi-year prison sentence and hundreds of thousands of dollars in fines, after being denied an acquittal, Thomas Fritzel threw a legal Hail Mary and moved for a new trial last September, which was denied.

History of the Country Club

Ironically, the Alvamar Country Club that places Thomas Fritzel in danger of being sent to prison was built by his father's, Gene Fritzel, construction company. Thomas Fritzel, a well-known developer in Lawrence Kansas began renovations of the Lawrence, Kansas country club 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 freedom. “The roof of the C.C. Clubhouse has asbestos.”

Clean Air Act And Removing Asbestos

The Clean Air Act provides that the Environmental Protection Agency (EPA) identify hazardous air pollutants and established standards to limit their emission into the atmosphere. The EPA has designated asbestos as a hazardous air pollutant and established work practice standards for demolitions and renovations of facilities that contain asbestos. Demolitions and renovations of buildings require a thorough inspection of the site. Thomas Fritzel, as the owner or operator of the demolition project was required to notify the appropriate state agency, Kansas Dept. of Health and Environment (KDHE), before the beginning of the demolition or renovation of a building. The asbestos is disposed of very carefully by wetting the asbestos-containing materials and sealing the material in leak tight containers. As you might guess, these procedural requirements are done to minimize the release and exposure of the asbestos into the environment. These steps would make the removal of asbestos-containing materials slower and more costly, but they also protect the public health from potential ill effects of asbestos exposure.

Events Leading to Violations

The demolition and cleanup of buildings that contain asbestos can be expensive, but even more costly if done improperly. Mr. Fritzel attempted to beat the system by arranging a sample of demolition material to be tested for asbestos knowing 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) with the hope of continuing business as usual and not be required to undergo the additional expensive regulatory process of removing asbestos. This report was sent to KDHE a few days after inspectors received complaints about asbestos containing materials being improperly removed from the site. The inspectors took photos and samples of debris from the site to make their own assessment on the presence of asbestos. The health department found the samples contained 75% chrysotile asbestos. The demolition work was ordered on hold that same day. Nearly two weeks later, KDHE performed an additional inspection finding that the asbestos debris removed and hauled to Hamm Landfill, a site not approved from RACM.

The Trial

The government originally indicted Fritzel along with three others—Casey Stewart, Wesley Lynch, and Tucker Fritzel, Fritzel’s son. The indictment alleged four counts against all the defendants—the three counts that Fritzel was ultimately convicted of and a conspiracy charge. Two days before trial started, the government dismissed Fritzel’s co-defendants, along with the conspiracy charge. Fritzel alone proceeded to trial on the remaining three counts.A federal jury convicted Defendant Thomas Fritzel on three Clean Air Act violations following a short, five-day trial. 

A jury convicted Defendant Thomas Fritzel on three Clean Air Act violations following a five-day trial: failure to notify of intent to demolish or renovate prior to removing regulated asbestos-containing material (“RACM”), failure to adequately wet RACM, and failure to contain RACM in a leak-tight wrapping or container.1 Doc. 133. Fritzel now seeks a new trial under Federal Rule of Criminal Procedure 33. Doc. 137. For the reasons discussed below, the Court denies Fritzel’s motion.

United States v. Fritzel, No. 5:18-CR-40058-HLT, 2019 WL 4670204, at *1 (D. Kan. Sept. 25, 2019)
A jury convicted Defendant Thomas Fritzel on three Clean Air Act violations following a five-day trial: failure to notify of intent to demolish or renovate prior to removing regulated asbestos-containing material (“RACM”), failure to adequately wet RACM, and failure to contain RACM in a leak-tight wrapping or container.1 Doc. 133. Fritzel now seeks a new trial under Federal Rule of Criminal Procedure 33. Doc. 137. For the reasons discussed below, the Court denies Fritzel’s motion.

United States v. Fritzel, No. 5:18-CR-40058-HLT, 2019 WL 4670204, at *1 (D. Kan. Sept. 25, 2019)The court denied Thomas Fritzels’ motion for judgment of acquittal after the U.S. government presented substantial evidence to indict Mr. Fritzel. The government presented testimony by Philip Schlaman of the Kansas Department of Health and Environment, Adrian Turner, an accredited asbestos inspector, and Scott Mesler, a roofer who originally reported the violation. All their testimonies indicated they took samples from the site that was tested positive as white asbestos. The Court also presented testimony that Mr. Fritzel was aware of the asbestos on the roof. Jay Patterson testified he presented a 2008 positive test results for asbestos to the general manager of the Jayhawk Club. Richard Herries testified he emailed Fritzel the roof contained asbestos in 2016, and Schlaman testified he emailed and left Mr. Fritzel a phone message indicating there was an “asbestos problem.” The government also cited United States v. Weintraub, 273 F.3d 139, 150 (2d Cir. 2001) to disprove Mr. Fritzel’s contention the government was required to prove the asbestos found was specifically RACM, an asbestos containing more than 1% friable asbestos. In Weintraub, the U.S. Court of Appeals held the government is only required to prove the defendant knowledge the alleged violations involved asbestos.

The court denied Thomas Fritzels’ motion for judgment of acquittal after the U.S. government presented substantial evidence to indict Mr. Fritzel.  The government presented testimony by Philip Schlaman of the Kansas Department of Health and Environment, Adrian Turner, an accredited asbestos inspector, and Scott Mesler, a roofer who originally reported the violation.  All their testimonies indicated they took samples from the site that was tested positive as white asbestos.  The government also presented testimony that Mr. Fritzel was aware of the asbestos on the roof.  Jay Patterson testified he presented a 2008 positive test results for asbestos to the general manager of the Jayhawk Club.  Richard Herries testified he emailed Fritzel the roof contained asbestos in 2016, and Schlaman testified he emailed and left Mr. Fritzel a phone message indicating there was an “asbestos problem.”  The government also cited United States v. Weintraub, 273 F.3d 139, 150 (2d Cir. 2001) to disprove Mr. Fritzel’s contention the government was required to prove the asbestos found was specifically RACM, an asbestos containing more than 1% friable asbestos.  In Weintraub, the U.S. Court of Appeals held the government is only required to prove the defendant knowledge the alleged violations involved asbestos. 

Thomas Fritzel’s Defense

Unfortunately for Thomas Fritzel, his attempt at seeking a second chance at defending himself of the violating the Clean Air Act was unsuccessful. His defense argued a new trial was necessary because the government failed to prove each element of each count, elicited improper testimony from Mr. Herries, filed the indictment to pressure Mr. Fritzel in an unrelated case, engaged in prosecutorial misconduct, and the Court allowed improper testimony. The Court found none of Mr. Fritzel’s arguments convincing and concluded a new trial was not warranted.

Dangers of Improperly Disposing of Asbestos

Thomas Fritzel is waiting to be sentenced in November while out on a $50,000 bond. The penalties assessed to Mr. Fritzel are severe. However, there is a good reason the EPA designates asbestos as a hazardous air pollutant and imposes such strict regulations and penalties. Asbestos exposure can lead to significant health complications. Exposure to microscopic asbestos fibers can cause malignant mesothelioma, the chronic lung disease asbestosis, as well as many other diseases. In fact, a new report by several officials and experts at the EPA have advised the agency to ban all new uses of asbestos because of the extreme harm it can cause.

Asbestos is a dangerous substance that needs to be carefully removed to ensure the safety of the general public. If you would like more information on the proper ways to dispose of asbestos or renovate buildings that may have asbestos, please call Whitcomb Selinsky PC at 866) 476-4558.

 

 

 

About the AuthorRaymundo Ribota

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