East Chattanooga asbestos case takes pauper twist

photo Donald Fillers, right, and his wife emerge from the Joel W. Solomon Federal Building and Courthouse at the lunch break during his sentencing for knowingly exposing a community to airborne asbestos in 2004 and 2005.

A man who chose the cheap way to tear down an old textile mill in East Chattanooga and exposed a neighborhood to asbestos will be allowed to appeal his four-year sentence on the taxpayers' dime - at least for now.

Don Fillers, while awaiting trial on federal charges of violating asbestos regulations, transferred his Missionary Ridge home and 40 other properties to his wife, court documents show.

Now Fillers claims he can't afford to pay for an attorney, so the lawyer that he still owes more than $20,000 now has become his court-appointed lawyer, according to documents.

On Nov. 13, Fillers filed an affidavit seeking pauper status and an appointed attorney.

He said his 2009 income of $4,000 a month from Chattanooga Hardwood Co. stopped that year, and properties purchased for nearly $2.5 million and assessed for taxes at $742,534 have outstanding loans totaling $18.5 million.

The properties were transferred from Don Fillers to his wife, Jackie Fillers, on May 19, 2010.

On Nov. 19, U.S. District Court Magistrate William Carter granted Fillers pauper status with this caveat:

"[The] defendant could at a later date be required to repay any cost to the government for providing counsel, filing fees or expenses for the appeal of the case if it was later determined he had the funds to hire his own lawyer."

Carter's order notes that "The Guide to Judiciary Policy" dictates that doubts as to a person's eligibility for pauper status "should be resolved in the person's favor" and erroneous determinations of eligibility "may be corrected at a later time."

Fillers' attorney, Leslie Cory, could not be reached for comment.

Assistant U.S. Attorney Matthew Morris, the prosecutor in the case, declined to comment.

But in court documents he wrote in response to Fillers' request: "Upon information and belief, the United States avers that defendant Fillers has substantial assets, including rental properties, with which to continue to retain his counsel."

The ruling, even if temporary, has raised questions.

Former state environmental regulator April Eidson was critical this week of Fillers' request.

"He's trying to portray himself as in need of public assistance," she said. "But there also is the question of this property and others being cleaned up" at least in part with public money.

"It needs to be looked at further," said Eidson, a member of a watchdog group known as Little Chicago Watch.

When asbestos was discovered lying on the ground around the former Standard-Coosa-Thatcher plant on Watkins Street in East Chattanooga, local and federal regulators ordered emergency procedures for cleanup, including a tanker to spray water continuously around the site.

At sentencing, Judge Curtis Collier assessed fines and restitution against Fillers and two co-defendants.

Collier ordered each defendant and Fillers' Watkins Street Co., which managed the site, to pay $27,899 in restitution to the Environmental Protection Agency, Chattanooga Department of Public Works and Chattanooga-Hamilton County Air Pollution Control Bureau.

Collier also fined Fillers $20,000 and fined the Watkins Street Co. $30,000.

Collier ordered Fillers' demolition contractor, James Mathis, to serve 20 months in federal prison and gave employee David Wood 18 months in prison.

He denied Fillers' bid to remain free on bond pending the appeal. The three men began serving their sentences Nov. 16.

Once a common material used for insulation and pipe wraps, asbestos is a substance the U.S. EPA says causes lung cancer, mesothelioma and asbestosis when its fibers are crumbled or pulverized. EPA has determined there is no safe level of exposure to the airborne fibers.

Between August 2004 and December 2005, demolition created asbestos-containing dust that blew throughout the area of 17th Street between Watkins and Dodds avenues, across the street from homes and businesses and near a day care center.