L. Neil Smith's

Number 15, October 1, 1996.

What is 'Hazardous Waste'?

By Vin Suprynowicz

Special to The Libertarian Enterprise

         Rudy and Linda Sjobakken had been in the plating business for years when they decided to relocate within the Las Vegas city limits in 1986.
         Sjob Plating was a small firm. "If you were restoring a car and you brought them an old, corroded bumper, they'd strip it and chrome plate it for you. People would come in who had baby shoes they wanted bronzed," recalls the Sjobakkens' public defender, Lew Wolfbrandt.
         But at the same time the Sjobakkens were getting their city business license in 1987, a new law was being approved up in Carson City, making it a crime for any person to "intentionally or with criminal negligence, ... treat, store or dispose of hazardous waste unless he has previously acquired a permit from the state Division of Environmental Protection."
         The acids and caustic solvents used in the plating business are potentially hazardous -- no dispute about that.
         When business went badly and the Sjobakkens fell behind in their rent in 1991, they were evicted and locked out. Left behind were drums of chemicals.
         It was at that point that the Sjobakkens violated the new state law, according to Deputy District Attorney Frank Ponticello. The Sjobakkens had just "disposed of their waste by abandonment."
         "This conclusion was only the result of their mismanagement of their waste, and their business," contends the deputy district attorney. "What they should have been doing was shipping it off to a treatment facility. Instead they were dumping it down the drain. Then the city came in and plugged up their sewer, so they started storing it up on their property. They eventually went out of business. Obviously they weren't very good business people, the city and state didn't take any affirmative action to put them out of business."
         Stopping up the sewer, evidently, was just a "Welcome Wagon" kind of thing.
         "So it became a Superfund cleanup site, and the cleanup costs were in excess of $500,000. There were more than 140 containers," says prosecutor Ponticello.
         The stage was set for what would become the first felony prosecution in Southern Nevada under the state's new hazardous waste statute.
         "Really what it was, it was a company that didn't have a lot of money, never made a lot of money, and then the rules changed on them," says public defender Wolfbrandt.
         Mention "illegal dumping of hazardous wastes" to the average citizen, and we picture neckless thugs emptying tankers full of pesticides into the reservoir at midnight.
         "It certainly would have been more appropriate" to wait for a case like that to test the new statute, argues attorney Wolfbrandt. "Our contention was they were never dumping, they always disposed of the waste in a conscientious fashion. But they came up with alternative ways of doing things. ..."
         It took five years to bring the Sjobakkens to trial. Finally, Sept. 20, as the prosecution was concluding its case, District Court Judge Stephen Huffaker notified counsel that he intended to advise jurors to acquit.
         "His rationale was that ... they were risking 30 years each," explains attorney Wolfbrandt. "But while the language of the 1986 statute says, 'If you do this, this and this and you don't have a permit, you're committing a crime,' once you get into the regulations of the enforcing agency, they show that you could in fact do business without a permit."
         On Sept. 20, Deputy District Attorney Ponticello agreed to plead out the case. The charges against Linda Sjobakken were dismissed. Rudolph Sjobakken pleaded "no contest" to a misdemeanor. He faces no penalty.
         "They need to go to the Legislature and re-draft some of the criminal laws to be a little more specific in setting forth what activity subjects someone to criminal exposure," recommends Mr. Wolfbrandt.
         This one is not cut and dried. Modern sewage treatment plants depend on cultures of beneficial bacteria to digest the sludge. Those bacteria can be killed off by uncontrolled releases of caustic chemicals. City workers were right to pay attention.
         But these struggling grandparents were no midnight haulers. Did city and state bureaucrats -- once they'd collected all the protection money for their various "permits" -- seek ways to help the Sjobakkens meet the ever-more-expensive new rules and still stay in business? Or did they follow the dictum of Miss Hillary, when our modern Marie Antoinette famously said: "I can't be responsible for the survival of every under-funded business in America"?
         Thirty years in prison? When Nevada statute currently defines as "hazardous waste" any material that "may pose a substantial hazard or potential hazard to human health, public safety or the environment when it is given improper treatment, storage, transportation, disposal or other management"?
         I asked attorney Wolfbrandt if, in his opinion, that could include chicken manure. He agreed it could.
         His clients reached the point in their final months of operation, he says, "where in one day they'd see people from the FBI, the EPA, the building department, the fire department, public works, wastewater treatment. There was one day when they saw 14 different officials, coming in in teams of two. While one of the guys from Public Works was talking to Rudy And Linda, a second guy was standing on a barrel out back, leaning over the fence and taking pictures."
         It sounds like enough to frighten anyone -- other than a huge corporation -- out of entering such a business.
         "That's the whole purpose of the statute," says Mr. Wolfbrandt.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. The web site for the Suprynowicz column is at http://www.nguworld.com/vindex/. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.

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