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Contractor to appeal asbestos case

By: Denise M. Champagne//November 15, 2010

Contractor to appeal asbestos case

By: Denise M. Champagne//November 15, 2010//

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Chili contractor Keith Gordon-Smith plans to appeal several convictions in connection with a federal case involving Clean Air Act violations in asbestos removal at Genesee Hospital.

A jury Friday found Gordon-Smith and his company, Gordon-Smith Contracting, guilty of several counts involving the improper removal of asbestos and making false statements to the U.S. Department of Labor and Occupational Safety and Health Administration.

“This verdict is a tremendous victory not only for the citizens of Rochester, but also the workers who were exposed to the hazardous materials that were both illegally and improperly removed,” said U.S. Attorney William J. Hochul Jr. “This case sends a strong message that if you attempt to profit by cutting corners, you will be prosecuted.”

Prosecutors said Gordon-Smith was convicted of causing his employees to disturb asbestos during the partial demolition of a building on the site of the former Genesee Hospital complex and ordering workers to tear out copper pipes and scrap metal from the hospital’s West Wing building, a six-story structure that contained more than 70,000 square feet of asbestos.

Prosecuting the matter were Assistant U.S. Attorney Craig R. Gestring of the Rochester office and Senior Trial Attorney Daniel Dooher of the Department of Justice Environmental Crimes in Washington, D.C.

Gordon-Smith signed a contract with the owner of the site, Buckingham Properties LLC, that gave him 50 percent of the salvage value for all copper pipe and scrap metal. When  the pipes, ceiling tiles and scrap metal were removed, workers were reportedly exposed to asbestos, which they told jurors was falling on them “like snow.” Workers testified they were not wearing any masks or protective clothing at the time.

Prosecutors said Gordon-Smith also repeatedly lied to an OSHA inspector who went to the worksite after workers complained, that he failed to properly remove all the asbestos in the west wing once formal abatement began and left massive quantities of asbestos in the building which was scheduled to be demolished.

Seven counts charged Gordon-Smith with failing to notify the Environmental Protection Agency in writing before starting a renovation or demolition project involving an amount of asbestos regulated by law.

Gordon-Smith and his company are represented by Paul J. Vacca Jr. of the Law Office of Paul Vacca, who said Gordon-Smith filed notice with the U.S. Department of Labor and paid a fee. He said the department inspected and cleared each job and that the air was monitored by an independent contractor to ensure proper air quality.

“The statute requires that the prosecution prove that the defendant knowingly failed (to notify EPA),” Vacca said. “It’s our position that that was not proven.”

He intends to ask that the verdict be set aside.

Vacca’s client was acquitted of two failure to notify EPA charges in connection with work at Bloomfield Elementary School in East Bloomfield, Ontario County, and Roberts Wesleyan College in North Chili.

He said the jury was hung on another count that alleged Gordon-Smith failed to notify EPA in connection with work at Cobbles Elementary School in Penfield.

“We are happy that he was acquitted,” Vacca said, referring to the two not-guilty verdicts. “We respect any jury’s determination, but we do not feel that he was proven guilty of any of these counts beyond a reasonable doubt.”

Other counts alleged Gordon-Smith didn’t properly wet the material for safe removal. Vacca said he submitted water bills that showed water usage was up significantly during the asbestos abatement. Gordon-Smith was also convicted of lying to federal OSHA and labor representatives on three occasions about what was removed prior to abatement.

Vacca said Gordon-Smith only removed furniture and other moveable equipment prior to the abatement. He said the pre-abatement period began in December 2006 and that abatement started the following May and was in operation until January 2009 when Buckingham Properties terminated its contract with Gordon-Smith Contracting.

A co-defendant, Francis Rowe Jr. of Oswego County, was acquitted of a charge that he had directed and caused workers to illegally remove and dispose of asbestos during the Genesee Hospital complex demolition.

Rowe, who was represented by James A. Napier of the Napier & Napier law firm in Rochester, was a project manager who worked for Gordon-Smith Contracting from March 2008 until January 2009.

“I think that the evidence at trial showed that my client used his best efforts to make sure all asbestos was properly removed from the West Wing of the Genesee Hospital,” Napier said.

The trial began Oct. 25 before U.S. District Court, WDNY Judge Charles J. Siragusa. The jury began deliberating Wednesday, had Thursday off for the Veterans’ Day holiday and returned its verdicts late Friday afternoon.

Sentencing is scheduled for Feb. 25. Gordon-Smith faces up to five years in prison, up to $250,000 in fines and two to three years of supervised release on most counts. Vacca said he expects to file with the U.S. Court of Appeals for the Second Circuit within 14 days after the sentencing date.

The investigation was conducted by EPA special agents from its Criminal Investigation Division under the direction of William Lometti; Marjorie Franzman, U.S. Department of Labor, Office of Inspector General; Art Dube, OSHA’s Buffalo office: and Maureen Cox, New York State Department of Labor, Asbestos Control Bureau.

According to the U.S. attorney’s release, any person who was in the West Wing of the former Genesee Hospital going back to Jan. 1, 2007 may have been exposed to asbestos. Those affected 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 or call 1 (800) 799 6033.

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