ANCHORAGE -- A federal appeals court on Dec. 23 upheld the convictions of the owner of an asbestos removal company who flushed chemicals, asbestos and antifreeze down drains that emptied into Silver Bay in Sitka.
The 9th U.S. Circuit Court of Appeals upheld Rick Rushing's convictions for violating the federal Clean Air Act and the Clean Water Act during the cleanup of a pulp mill, as well as various other sentences imposed.
But it vacated Rushing's almost five-year prison sentence and sent it back to federal District Court to be reconsidered. Rushing is in a federal prison in the Lower 48.
The appeals court found that the lower court was correct to convict Rushing of exposing his employees to cancer-causing asbestos during the 1996 cleanup, and improperly disposing of the material. And the court upheld the conviction that Rushing falsified the results of personal air monitors showing how much asbestos cleanup workers were being exposed to.
But it questioned U.S. District Judge H. Russel Holland's sentence, particularly if the enhancement under federal sentencing guidelines resulted from him finding that Rushing had violated the public trust.
"We hold that Rushing did not violate a position of public trust," the court said. "An obligation to follow important laws that further the public health and safety cannot, merely by its own force, create a position of public trust."
The sentencing enhancement could also apply if Rushing was found to have violated the private trust of his employees. The court said the facts more easily support this position, but more information is needed.
Rushing's company, Technic Services Inc., of Anchorage, was hired to remove asbestos from the Japanese-owned Alaska Pulp Co. mill in 1996, two years after the mill closed, leaving 400 people without jobs.
Assistant U.S. Attorney Tim Burgess argued during the trial in Anchorage that Technic Services took advantage of people in Sitka who were desperate for work after the mill closed. He said Dec. 23 part of the argument was that Rushing had abused his position of trust.
Rushing's attorney, Paul Nangle of Anchorage, was on vacation and not available for comment.
Former pulp mill employee Florian Sever said Rushing got exactly what he deserved back in January 2001 when he received 57 months in prison and a $520,000 fine. Rushing's company also was fined $600,000. The appeals court upheld the fines.
