DA’s Office Fails to Follow-up on Asbestos-Dumping Landlord?

Prosecution Against Asbestos-Dumping Landlord Never Went to Court By David Downs – Staff Writer Wednesday February 7, 2001 Daily Nexus > Feature > Volume 81, Issue Number 73 A Daily Nexus investigation has discovered that the Santa Barbara County district attorney’s office failed to properly follow up on county reports indicating that KAMAP Property Management willfully and illegally removed asbestos from 6512 Segovia Rd., the Aladdin apartment complex. On Aug. 8, 2000, Allan Kaplan, Santa Barbara County’s environmental protection prosecutor, received a call from the Air Pollution Control District. The APCD had acted on a tip from a local painter and conducted a small investigation that uncovered a number of criminal violations by KAMAP, which manages over 300 units in Isla Vista. The APCD wanted to prosecute KAMAP owner John Warkentin for breaking multiple air-pollution, public-health and fair-business laws. The APCD’s three-day investigation found Warkentin “had extensive conversations” with the building’s previous owner Dr. Ralph Steiter about asbestos in the Aladdin building. The reports also say these conversations were held a year before the removal during Spring Break 2000. Painters Dave Oldfield and Mike Trotter, KAMAP contractor Mike Pinter and a driver comprised the crew of the five-day project. During the first two days, the toxic insulation – later tested by the APCD to be 15 times over the legal limit for proper asbestos disposal – was dry-scraped from pipes and walls, falling onto cars and filling the garage with carcinogenic dust. The APCD report states that approximately 100 plastic trash bags of asbestos were thrown into KAMAP dumpsters all over Isla Vista, and the remaining toxic dust in the parking garage was swept into its storm drains. The APCD reports also state that Pinter told APCD investigators he had no knowledge of asbestos cleanup laws despite having a contractor’s license, which requires such knowledge, and many years of experience working in Isla Vista – a town riddled with asbestos due its pre-1970s housing stock. County Fire Dept. Senior Hazardous Materials Specialist Larry Bishop conducted the hazardous-materials aspect of the KAMAP investigation. He said a contractor like Pinter, who works with I.V.’s pre-1970 housing stock, is expected to know about asbestos laws. “We would’ve expected someone who’s been in the business for so long and dealing with the industry for so long would know about this kind of stuff,” he said. Further details of the APCD report state the painter, Oldfield, began having respiratory problems and contacted the APCD after Warkentin denied him medical assistance. Oldfield told APCD investigators that he asked Pinter for proper asbestos gear on the first day of the job and was given an uncertified respirator. Oldfield also told the APCD he was being threatened and harassed by KAMAP employees for discussing the illegal cleanup. KAMAP attorney John Richards denies any allegations that Warkentin or Pinter knew it was carcinogenic waste they were removing from the Aladdin. Because asbestos can take so many forms, Richards said, there was no way Pinter could have known it was asbestos. “There isn’t an expert on the earth that could visually look at it and know. It’s absolutely impossible to tell without looking under a microscope at the insulation. Asbestos experts can come out and look at it and have no idea,” he said. What Happened to the APCD’s Case Kaplan said the case against KAMAP was incomplete when he received it on Aug. 9, 2000, and ordered the APCD to do extended investigation “seeking further details to find out what happened.” “There were a lot of things that needed to be cleared up,” Kaplan said. “They did a follow-up investigation. Every case that anyone does, investigators file a report, and they give you the information, and then you go, ‘Oh, what about this, what about that, what about the next thing?’ ” Although Kaplan claims he instructed the APCD to do more investigating, APCD Director Mike Broughton called that claim “interesting.” “The DA did all the follow up,” Broughton said. “There may have been some things he asked us to do, but for the most part, he said that it was in his area now.” Warkentin bought the Aladdin from Steiter in April of 1999. Many times, Broughton said, when a large property like the 54-unit, $3.4 million Aladdin complex changes hands, the bank negotiating the sale requires an independent inspection. Broughton said the APCD asked for any pre-purchase inspection documents, but the Santa Barbara Bank and Trust denied these requests. According to Broughton, he asked Kaplan to subpoena the bank for the documents, but Kaplan did not. Broughton said Kaplan asked for little more during his investigation than the typed transcriptions of interviews with painters Oldfield and Trotter. Oldfield claims in the APCD report that Pinter knew of the asbestos, and KAMAP was seeking extortion charges to silence his claims. Broughton said Kaplan did not ask for further investigation into Oldfield’s statements. “I didn’t interview the prime complainant because that’s the job of the investigators; that’s what investigators do,” Kaplan said. “[Oldfield’s] claims were investigated. They were taken into consideration.” Broughton said the district attorney held the case for another four days, and then “unfortunately” took a two-week vacation. The Settlement Civil charges were filed against KAMAP, Warkentin and Pinter on Nov. 13, 2000, and a settlement was reached two weeks later. No judge saw the case. Kaplan charged KAMAP with “negligent violations of Hazardous Waste Control Act” and “unfair competition in violation of Business and Professions Code.” Warkentin was fined approximately $60,000 for his negligence and ordered to pay $40,000 for the proper cleanup of remaining asbestos. Pinter was ordered to attend asbestos training, and KAMAP was ordered to post asbestos information ads in local newspapers, although the Daily Nexus was not one of them. Steve VonDohlen, Environmental and Consumer Protection Crimes prosecutor for San Luis Obispo County, said there is a spectrum of responsibility in these types of cases that starts with straight liability, then moves to negligence, then willful misconduct. Being found guilty of “willful misconduct,” as opposed to “negligence,” carries much higher fines, VonDohlen said. “If he intentionally told his workers, ‘we’re supposed to bag that asbestos up, and we’re supposed to handle it in the proper way, but I don’t want you to, I want you to do it this other way instead.’ If someone was that irresponsible that could be a willful violation,” VonDohlen said. “It’s kind of like the difference between first-degree murder, second-degree murder, and manslaughter,” VonDohlen said. “The question is what makes the difference between first degree, second degree and manslaughter? Well, it depends on the kind of mental state or intent and the viciousness used by the person who did the killing.” VonDohler said Kaplan’s lack of evidence might have factored into charging KAMAP with negligence instead of seeking harsher, more punitive charges of willful misconduct. “Ultimately making the decision between, ‘Do we go after him to prove willful misconduct, or do we go after him to prove negligent misconduct,’ is a case-by-case decision depending on how solid your proof is,” Vandohler said. According to APCD documents, the cost of the original asbestos cleanup, if done properly, would have been around $120,000. Kaplan fined KAMAP $60,000, plus $40,000 to cover proper re-cleanup costs. If KAMAP had been found guilty of willful misconduct instead of negligence, the fines would have be in excess of $25,000 per day per violation – totaling over $250,000 and possibly calling for the arrest of Pinter. Richards said Warkentin’s original reason for removing the insulation was to locate and stop a water leak and prevent car antennas from scraping the low-lying ceiling. “It was done in an effort to make the building safer, and also so he wouldn’t have to worry about students slipping and falling and, of course, landlords worrying about students suing,” he said. Richards also said, “There was virtually no one in the building over Spring Break. Not only were there no students there, but after that we had certain sample units tested microscopically for any problems with asbestos at all and, no. There’s no evidence to suggest that any of the residents of that building were ever exposed to any harmful level of asbestos.” Senior sociology major and Aladdin tenant Lindsey Biren said water still floods the underground garage and many tenants of the Aladdin got sick during the removal. “I got really sick at that time,” she said. “Almost everyone on the floor I lived on had some type of respiratory complaint. They didn’t seem to care about the safety of the people in the entire area. There were crazy-looking tubes spraying things onto campus. I tried to stay away from here at that time.” Oldfield hasn’t found a doctor to verify his medical complaints, and Richards said he questions the credibility of both Oldfield and Trotter due to their backgrounds. “What you need to understand about those two guys is you should check first of all about their criminal record. Trotter claims to be CIA and just crazy stuff,” he said. Richards maintains that Warkentin’s original intent was good, and tenants are better off for it. “The place is cleaner and safer today because of what John’s done. There’s no water down there, no leaking,” he said. “My client wants you to understand it’s really important that it was done in order to make it cleaner and safer, and it’s cleaner and safer now. It should’ve been checked, it wasn’t, and he’s had to pay the cleanup costs.” :nav Source: http://www.ucsbdailynexus.com/feature/2001/343.html