A federal appeals court has upheld the conviction of a contractor for asbestos-related environmental crimes at several school and hospital projects in Western New York.
The three-judge panel of the 2nd Circuit U.S. Court of Appeals rejected the challenge by Keith Gordon-Smith, who was sentenced to six years in prison for violating the Clean Air Act and making false statements to an Occupational Safety and Health Administration inspector.
He was also ordered to pay more than $300,000 in restitution.
Gordon-Smith, now 56, was the sole owner of a now-defunct asbestos abatement contracting company that operated in the Rochester, N.Y., area.
The charges stemmed from the mishandling of asbestos at a series of projects at school, college and hospital sites between 2005 and 2008.
At the 14-day jury trial, witnesses testified that Gordon-Smith ordered employees to rip out copper pipes and scrap metal without telling them that they were being exposed to asbestos, which is linked to serious health risks including lung cancer, mesothelioma and asbestosis.
The workers wore no protective clothing or respirators, according to court documents, nor did they wet down the asbestos to reduce the amount of dust before disposing of the material.
According to the U.S. Attorney’s office in Buffalo, Gordon-Smith’s employees “had little formal education or English comprehension. A number of the workers had no training in asbestos removal and did not know they were being exposed to the asbestos while removing the copper pipes.”
Other evidence showed that he failed to notify the Environmental Protection Agency in advance about some of the projects.
Two project managers were indicted but cleared.
On appeal, Gordon-Smith argued that there was insufficient evidence to support the guilty verdict. For example, he claimed there wasn’t enough proof that he intentionally failed to notify the EPA before starting asbestos abatement work at an elementary school.
Under federal law, contractors must notify the EPA in advance so inspectors can verify that proper safeguards are in place.
But in its unanimous decision, the appeals court said, “A rational juror could have concluded that Gordon-Smiths’ failure to notify the EPA was deliberate, not the result of ignorance, mistake, accident, carelessness or some other innocent reason.
The court also found no validity to his objection to some testimony by a supervisory foreman whom he had fired. The ex-employee had testified about other workers complaints about asbestos exposure.
At one point in his testimony, the ex-employee described how his crew used a saw to cut down copper pipe from the ceiling, a process that created dust and little flakes coming down from the ceiling just like snow.
Finally, the court ruled that the prosecutor’s closing arguments to the jury didn’t deprive Gordon-Smith of a fair trial.
U.S. Attorney William Hochul Jr.
In a statement after the appellate court decision was announced, U.S. Attorney William Hochul Jr. said the case shows his office’s commitment “to protecting the community
and environment, while also ensuring a level playing field for all who conduct business in this area.
Gordon-Smith is scheduled for release in December 2016, according to the U.S. Bureau of Prisons.