Definition of the Crime
It is incredibly dangerous to work with underground tanks or asbestos. The work has the potential to cause serious property damage and injuries if it is not conducted by an individual who knows how to adhere to safety protocols. Individuals must receive proper certification before they can engage in work related to asbestos or the removal, installation, or maintenance of an underground storage tank. Doing this type of work without proper certification is a crime according to California Business and Professions Code Section 7028.1 BPC, even if the individual has a valid contracting license.
To convict an individual of this crime, prosecutors must prove the following circumstances:
- The defendant engaged in work related to asbestos without a valid certification
- Alternatively, the defendant participated in a remedial action or removal of asbestos without a valid certification
- Alternatively, the defendant removed or installed an underground storage tank and did not have proper certification or a certification exemption
The statute defines an underground storage tank as any storage tank along with the underground piping connected to it, as long as at least ninety percent of the tank’s volume is underground. Oftentimes, these tanks are used for the storage of petroleum and other potentially hazardous material.
Examples of the Crime
An individual has a valid contracting license and deals with construction removal projects. The individual contracts to tear down an entire historic property. While he surveys the scene, he notices that the amount of asbestos that needs to be removed is unusually high. Even though the man does not have a certification for asbestos removal, he agrees to remove it. This individual could be convicted of removing asbestos without certification.
An individual has a valid contracting license and is contracted to complete a large renovation of a property’s entire foundation. When the foundation is dug up, the contractor notices that underneath the foundation is a damaged septic tank. The man takes the septic tank out and repairs it as part of his contract. This man would not be guilty of a Section 7028.1 violation, because septic tanks are not defined as underground storage tanks. The statute lists them as an exemption to the underground storage tank definition.
Defenses for Non-Certified Asbestos or Underground Storage Tank Work
To be criminally liable under this statute, the defendant must have knowingly engaged in asbestos related work. If the defendant was not knowledgeable about the work, they wouldn’t be liable. This type of defense might occur if the defendant receives a contract for a job and is midway through the project before they discover that large quantities of asbestos are present.
