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Appeals court affirms conviction of rochester asbestos contractor violating clean act

FOR IMMEDIATE RELEASE
March 25, 2014

       ROCHESTER, N.Y. - U.S. Attorney William J. Hochul, Jr. announced today that the United States Court of Appeals for the Second Circuit affirmed the November 2010 conviction of asbestos contractor Keith Gordon-Smith, owner of Gordon-Smith Contracting. The defendant was convicted after a jury trial of multiple counts of violating the Clean Air Act and was sentenced in September 2011 to 72 months in prison and ordered to pay $300,000 in restitution by Judge Charles J. Siragusa. The company, also convicted at trial, was ordered to pay $44,000 in fines.

This is the second significant development involving environmental prosecutions and the Clean Air Act in the past several days. On March 19, 2014, the United States Attorney’s Office obtained a $24 million fine and restitution order against Tonawanda Coke for a decades long release of the poisonous gas Benzene from its production facilities which, a jury found after trial, also violated the Federal Clean Air Act.

“These cases show the commitment of this Office to protecting the community and environment, while also ensuring a level playing field for all who conduct business in this area,” U.S. Attorney Hochul said.    

According to Assistant U.S. Attorney Joseph J. Karaszewski, who handled the appeal on behalf of the Government, the Court of Appeals rejected Gordon-Smith’s argument that evidence presented at trial was insufficient and therefore his conviction should be overturned. The Court of Appeals ruled that the evidence presented by the Government was sufficient to support the jury’s verdict.

Specifically, the defendant argued that there was not enough evidence to support the claim that he violated the Clean Air Act by failing to notify the Environmental Protection Agency before beginning asbestos removal at Cobbles Elementary School in Penfield, N.Y. The Court ruled that the failure to notify the EPA was deliberate, and not the result of “carelessness or some other innocent reason,” as Gordon-Smith claimed.  

The jury convicted Gordon-Smith of multiple counts of failure to notify the EPA about asbestos related work done on several sites within the Western District of New York. Federal law requires that a contractor notify the EPA prior to performing any work which would disturb a jurisdictional amount of asbestos so that inspectors can ensure that proper safeguards are in place. Gordon-Smith performed major asbestos abatement or renovation work at several area projects, including schools, colleges, and the Genesee hospital complex, without ever notifying the appropriate federal agency. When EPA Criminal Investigators visited the sites, they found asbestos left behind on pipes, walls, in utility rooms and other places. Several of those locations required additional asbestos abatement to remove the material left behind.

The Gordon Smith case was investigated by Special Agents of the United States Environmental Protection Agency, Criminal Investigation Division, under the direction of William Lometti; the United States Department of Labor, Office of Inspector General, under the direction of Acting Special Agent in Charge Cheryl Garcia; Occupational Safety Health Administration, Buffalo Office, under the direction of Art Dube, and the New York State Department of Labor, Asbestos Control Bureau, under the direction of Maureen Cox.