Construction company argues over asbestos penalty policy

Friedman & Schmitt argue that the $62,500 size-of-violator component fails to recognize that the Asbestos Penalty Policy contains an example suggesting that the size of the contractor -- not the size of the property owner -- should be used in circumstances similar to the present case.

Friedman & Schmitt specifically request that we follow the Asbestos Penalty Policy’s guidance with respect to this example and use the size of Mr. Schmitt’s business, rather than the size of Mr. Friedman’s business, in setting this component of the penalty in this case. The ALJ agreed with Friedman & Schmitt and, although he generally rejected the Asbestos Penalty Policy, he specifically followed the Asbestos Penalty Policy’s guidance in using the size of Mr. Schmitt’s business in calculating this penalty component. The ALJ also stated that he believed Mr. Schmitt was the more culpable respondent since Mr. Schmitt made the decision to strip the asbestos himself.

The Region has requested that we reverse the ALJ’s decision on this issue. This request, however, must fail. We have frequently stated that in cases where the ALJ assessed a penalty that “falls within the range of penalties provided in the penalty guidelines, the Board will generally not substitute its judgment for that of the [ALJ] absent a showing that the [ALJ] has committed an abuse of discretion or a clear error in assessing the penalty.”