Environmental Crimes—James Todd Sentencing

A couple of months ago, we mentioned that Lambert’s Asbestos Removal Service, Inc. had been charged with conspiracy to violate the Clean Air and Clean Water Acts, and that the company’s general manager, James Todd, had pleaded guilty to a similar conspiracy charge in May. On Tuesday, Mr. Todd was sentenced to 18 months in prison and ordered to pay a $7,500 fine.^[1]

Mr. Todd’s case is an interesting look at the nature of the court system, because his sentencing was not reported in any news outlets, and the facts of the case were not widely known. This is an opportunity for us to shed a little more light on the case.

For instance, while it is true that Mr. Todd pleaded guilty to conspiracy, generally, he only admitted to three of the charges contained in the criminal Information. Furthermore, as the Assistant US Attorney for the Northern District of New York acknowledges, the plea is “a somewhat unusual agreement[;] Mr. Todd will plead guilty to the conspiracy, but he will advise the Court that he does not believe he committed all of the overt acts set forth in the Information.”^[2] While the US contends that Mr. Todd is responsible for all 11 overt acts, it need only allege or prove the commission of a single overt act for the purpose of the plea.^[3] Furthermore, there is no plea agreement per se; Mr. Todd is merely pleading to the Information.^[4] He will also surrender his asbestos licenses and end work in the field of asbestos removal for a period of two full years following the imposition of the sentence.^[5]

The overt acts to which Mr. Todd pleaded guilty (charges 1, 6, and 7 of the Information) are:

• that around the end of March 2002, “one or more of the conspirators directed and engaged in a renovation or demolition project involving a jurisdictional amount of RACM [regulated asbestos containing material] … without first having provided notification” to the EPA.
• that around the end of February 2003, “one or more of the conspirators directed and engaged in a renovation or demolition project involving a jurisdictional amount of RACM … and as part of that project failed to maintain true and accurate waste shipment records.”
• that around the same time, Mr. Todd, “in connection with a renovation or demolition project … forged the signature of another person on waste shipment records that were thereafter placed into and delivered to others via the United States mails.”^[6]

The charges to which Mr. Todd did not plead guilty to include:

• that around the end of March 2002, “one or more of the conspirators directed and engaged in a renovation or demolition project without causing the RACM to be adequately wet and ensuring that it remained wet until placed in leak tight containers.”^[7]
• that at some time in the middle of August 2002, “one or more of the conspirators directed and engaged in a renovation or demolition project involving a jurisdictional amount of RACM at Alfred University … without first having provided notification” to the EPA.^[8] It should be noted that Mr. Todd disputes his presence at this particular site, as well as knowledge of any alleged discharge.^[9] He furthermore questioned federal jurisdiction over the particular “waterways.”^[10]
• that at the same time, “one or more of the conspirators directed and engaged in a renovation or demolition project at Alfred University … without depositing all RACM as soon as practical in an approved landfill.”^[11]
• that at the same time, “one or more of the conspirators directed and engaged in a renovation or demolition project at Alfred University … where friable asbestos … was discharged into floor pipes, a point source, and therefrom into a navigable water of the United States.”^[12]
• that some time in February or March of 2002, “one or more of the conspirators directed and engaged in a renovation or demolition project involving a jurisdictional amount of … RACM … without first having provided notification” to the EPA.^[13]
• that some time in mid-October of 2002, “one or more of the conspirators directed and engaged in a renovation or demolition project involving a jurisdictional amount of RACM … without first having provided notification” to the EPA.^[14]
• that at the same time, “one or more of the conspirators directed and engaged in a renovation or demolition project … without adequately wetting the RACM and ensuring it remained wet until placed in a leak tight container.”^[15]
• that at the same time, “one or more of the conspirators directed and engaged in a renovation or demolition project … without removing all RACM from the facility before commencing work that would break up or dislodge or similarly disturb the material.”^[16]

The government, for its part, claimed that Mr. Todd has “far more knowledge and involvement than he admits.”^[17] Unfortunately, what Judge McAvoy believed is unknown, as there is no readily available transcript of the sentencing hearing, and no apparent record of it available in the news.

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[1] Sentencing Order, US v. Todd, No. 3:05-cr-239 (N.D.N.Y. 2005), on file with author, and available through ECM/ECF for the Northern District of New York.
[2] See Craig A. Benedict, Letter to Hon. Thomas J. McAvoy, May 26,2005, on file with author, and available through ECM/ECF for the Northern District of New York.
[3] Id.
[4] Id.
[5] Id.
[6] Defendant’s Second Sentencing Memorandum, US v. Todd, 3:05-cr-239 at 12 (N.D.N.Y. 2005), on file with author, and available through ECM/ECF for the Northern District of New York [hereinafter DSM].
[7] Information, US v. Todd,, 3:05-cr-239 (N.D.N.Y. 2005), on file with author, and available through ECM/ECF for the Northern District of New York [hereinafter Information].
[8] Id.
[9] DSM, supra note 6, at 5.
[10] Id.
[11] Information, supra note 7.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Government Sentencing Memorandum, US v. Todd, 3:05-cr-239 at 12 (N.D.N.Y. 2005), on file with author, and available through ECM/ECF for the Northern District of New York (emphasis in original).