Criminal charges against Des Moines developer Bob Knapp should be dropped because the federal government failed to follow its own legally mandated testing procedures on material removed from the Equitable Building during its renovation in 2007, court documents say.
Lawyers for Knapp and Russell Coco, the supervisor of the renovation project at the Des Moines landmark building, also contend that the federal government's case has been weakened because the material removed from the building and tested for asbestos by investigators can't be found and likely has been destroyed.
"This is a big deal," William Kutmus, attorney for Knapp, said Tuesday of the motion.
Knapp and Coco were indicted by a federal grand jury in February on 11 counts each of violating the U.S. Clean Air Act for their roles in the renovation of the building.
Both men have pleaded not guilty.
Prosecutors allege that Knapp, 60, and Coco, 50, knowingly had asbestos removed, placed into open Dumpsters and improperly disposed of in a landfill as part of the building was renovated into high-end condominiums. Several floors of the Equitable Building were gutted while still containing excessive levels of asbestos, prosecutors say.
The indictment charges the defendants with conspiracy to violate the Clean Air Act's work-practice standards, intended to prevent releases of asbestos, and with failing to give notice before renovation and demolition.
Each count of the indictment carries a maximum penalty of five years in prison and a fine of $250,000.
But defense lawyers argued in a 15-page brief filed last week that the federal government's case is flawed because investigators failed to use a specific test cited in the criminal statutes to measure asbestos content.
Instead, defense lawyers say, the federal government's case is based on a different test not allowed under the criminal statute.
"There is no evidence to establish whether or not the material removed from the Equitable Building contained a sufficient amount of asbestos to be subject to the regulation under the Clean Air Act," the motion says. "Without such evidence, no violation can be established."
In addition, defense lawyers said that no retesting of the same material can be conducted because discovery has disclosed "in 2009 the laboratory reported that the samples could not be located and most likely were destroyed."
Court document show the testing of the material was conducted by the Hygienic Laboratory at the University of Iowa in 2007. Those tests of floor tiles and insulation around pipes revealed two different types of asbestos in amounts requiring Knapp and Coco to take additional precautionary steps.
Asbestos fibers, even in small amounts, can cause lung illnesses and cancer that sometimes show up several decades after someone inhales the material, according to the National Cancer Institute.
Last year, Iowa's Occupational Safety and Health Bureau fined Oakmoor Management Co. and Equitable LP, two limited partnerships owned by Knapp, for failing to have a trained supervisor to handle the asbestos removal and for failing to properly equip and train workers. Knapp's partnerships were fined $10,175. Jacobson Staffing Co. LC of Des Moines, which also provided workers, was fined $11,250 for similar offenses.
In April, a Polk County judge approved bank foreclosure on the building after Knapp defaulted on $8.9 million in loans on the building. The 19-story building at 604 Locust St. is to be sold at a sheriff's sale.
Bob Knapp's business is not affiliated with Knapp Properties, founded by developer William Knapp.
Prosecutors have until Sept. 20 to respond to the motion. Trial on the charges is scheduled for January.
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