CONTACT: Barbara Burns

PHONE: (716) 843-5817

FAX #: (716) 551-3051

BUFFALO, N.Y. - U.S. Attorney James P. Kennedy, Jr. announced today that a federal grand jury has returned an indictment charging James S. Marshall, 67, of Farmington, NY, with violation of the Clean Air Act, negligent endangerment under the Clean Air Act, and making a false statement. The charges carry a maximum penalty of five years in prison and a $250,000 fine. 

Assistant U.S. Attorney Aaron J. Mango, who is handling the case, stated that according to the indictment, the defendant was a Maintenance Supervisor with the Finger Lakes Office for People with Developmental Disabilities (OPWDD), Developmental Disabilities Services Office. As part of his duties, Marshall controlled and supervised facilities being demolished or renovated.

On October 7, 2014, the defendant requested that asbestos testing be conducted at the Hillcrest Building, a building owned by the OPWDD, located on E. Maple Avenue in Newark, NY. On October 8, 2014, Marshall directed an inspector for the asbestos testing company to take four samples from two locations within the 300,000 square foot Hillcrest Building. The results of the four samples came back negative for asbestos.

On November 10, 2014, the OPWDD began soliciting public bids for the cleanout of the Hillcrest building. The specifications for the project stated that swipe testing for asbestos and lead was conducted and the findings for the substances were within normal limits.

On December 2, 2014, the defendant led a mandatory walkthrough of the Hillcrest Building for any individuals seeking to bid on the project. On December 24, 2014, a third-party contractor was awarded the contract for the cleanout of the Hillcrest Building.

The contractor conducted the cleanout between April 6 and April 10, 2015. On April 16, 2015, Marshall sent an e-mail to the OPWDD business office stating that the cleanout of the Hillcrest Building had been completed to his satisfaction.

On April 30 and May 28, 2015, regulated asbestos was found at the Hillcrest Building in a dry condition and was not in any container.  According to the indictment, the defendant failed thoroughly to inspect the affected facility for the presence of asbestos prior to the commencement of a renovation activity; failed to ensure that regulated asbestos was adequately wetted during removal activity; failed to ensure that regulated asbestos remained wetted until placed in leak-tight containers; and failed to ensure that all regulated asbestos stripped and removed was disposed of timely. Marshall is also accused of negligently releasing into the ambient air a hazardous air pollutant, and placing another person in imminent danger of death and serious bodily injury during the cleanout of the Hillcrest Building. In addition, the defendant is accused of making a false statement by stating that the asbestos sampler walked through the entire building during testing, as it is alleged that the defendant knew that the asbestos sampler had not walked through the entire building.

The indictment is the result of an investigation by the U.S. Environmental Protection Agency, Criminal Investigation Division, under the direction of Special Agent-in-Charge Tyler Amon. Additional assistance was also provided by the New York State Department of Labor, Asbestos Control Bureau.

The fact that a defendant has been charged with a crime is merely an accusation and the defendant is presumed innocent until and unless proven guilty.  

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