WASHINGTON - A jury in Rochester, N.Y., convicted Keith Gordon-Smith, and his Rochester-based asbestos abatement company, Gordon-Smith Contracting, Inc. (GSCI) of eight counts of knowing violations of the Clean Air Act asbestos work practice standards. The jury also convicted Gordon-Smith and GSCI of lying to hide the violations at a demolition site in Rochester.
“Gordon-Smith knowingly exposed workers and public areas to the toxic air pollutant asbestos,” said Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice. “The verdict should send a strong message to those in the asbestos abatement industry. We have zero tolerance for violations of the Clean Air Act asbestos work practice standards.”
After a three-week trial, the jury convicted Gordon-Smith of two counts of causing GSCI workers to violate asbestos work practice standards at the west wing of the Genesee Hospital complex located in Rochester. The west wing was scheduled to be demolished in summer 2009. The first violations took place between January and May 2007, when Gordon-Smith ordered GSCI workers to tear out copper pipes, ceiling tiles and scrap metal from the west wing, a six-story structure that contained over 70,000 square feet of asbestos. Gordon-Smith had a contract with the site owner that provided him with 50 percent of the salvage value of all copper pipe and scrap metal. When the workers removed the pipes and scrap metal, they were repeatedly exposed to asbestos, described to the jurors as falling on them “like snow.” The workers were not wearing any protective clothing and would often wear the asbestos-contaminated clothing back to their homes after work.
The jury convicted Gordon-Smith and the company of making false statements to an Occupational Safety and Health Administration (OSHA) inspector who had received complaints from GSCI workers. The OSHA inspector visited the site three times in September and October 2007, and on each occasion Gordon-Smith lied and told her that GSCI workers had not removed any copper pipes or other materials from the west wing.
The jury also convicted Gordon-Smith and his company of causing GSCI workers to illegally remove and dispose of asbestos during the actual asbestos abatement at the west wing, from May 2007 until February 2009. Francis Rowe, a former project manager for GSCI, had been charged with one count of causing illegal asbestos removal and disposal from March 2008 until February 2009, and was acquitted of that charge.
“Exposure to asbestos can be fatal and the government will not tolerate illegal activity that puts the public at risk of cancer or other serious respiratory diseases,” said William V. Lometti, Special Agent-in-Charge for EPA Office of Criminal Enforcement in the New York region. “The message is clear that those who endanger human health and the environment will be vigorously prosecuted.”
During the illegal removal, the asbestos was allowed to flow from upper floors through drains and holes in containment. Large amounts of asbestos were left hidden in the west wing and were never disposed off-site at an EPA-approved site. Gordon-Smith was fired from the site in February 2009. A special agent from EPA Criminal Investigation Division inspected the west wing in April 2009 and shut the site down immediately. The building was subsequently abated properly by another contractor and demolished in September 2010.
Gordon-Smith and the company were also convicted of six counts of failing to provide required notice to EPA prior to commencing asbestos abatement projects at six different sites in the Rochester area, between 2005 and June 2008. The sites included the west wing of the Genesee Hospital Complex, Cobbles Elementary School in Penfield, Bloomfield Elementary School in East Bloomfield, the Al Sigl Center in Rochester, and the Hillside Children’s Center in Varick.
Asbestos work practice standards under the Clean Air Act require that all asbestos be removed from any structure where it may be disturbed, such as the areas of the west wing where GSCI workers were ordered to remove pipes contaminated with asbestos. While asbestos is removed during abatement, it must be wetted and kept adequately wet at all times and disposed of as soon as practical at an EPA-approved site.
Gordon-Smith faces criminal penalties of up to five years imprisonment for each count and as well as criminal fines up to $250,000 per count. GSCI faces a criminal fine of up to $500,000 per count.
The case was prosecuted by the U.S. Attorney’s Office for the Western District of New York with the Environmental Crimes Section of the Environment and Natural Resources Division of the Department of Justice. The case was investigated by the U.S. EPA Criminal Investigation Division and the U.S. Department of Labor Office of the Inspector General. Criminal investigators were assisted by OSHA and the New York Department of Labor Asbestos Control Bureau.
Any person who was, at some time, present in the west wing of the former Genesee Hospital during the time period Jan. 1, 2007, to present may have been exposed to the asbestos therein. Affected persons have the right to attend any public court proceedings. For more information, please refer to the website of the U.S. Attorney's Office at www.usdoj.gov/usao/nyw or call 1-800-799-6033.