Court rules on preliminary deterrence amount of penalty

In the present case, the ALJ expressly followed the guidance of an example set forth in the Asbestos Penalty Policy to explain his decision to use the size of Mr. Schmitt’s business in assessing the penalty in this case. The Region has not shown why that decision is an abuse of discretion or clear error.

We also note that the ALJ’s conclusion that Mr. Schmitt, not Mr. Friedman, made the decision to strip the RACM without hiring a certified asbestos abatement contractor is supported by the testimony at trial.

Accordingly, we decline to overturn the ALJ’s conclusion that the size-of-business penalty factor in this case should be based on the size of Mr. Schmitt’s business. Since the evidence shows that the value of Mr. Schmitt’s business was approximately $150,000, and the General CAA Penalty Policy at page 14 recommends a $5,000 penalty increase for businesses of this size, we assess a $5,000 increase in the penalty to take into account the size of Mr. Schmitt’s business.

The preliminary deterrence amount of the penalty, therefore, is $35,600 (consisting of $2,200 for the record-keeping violation, $16,500 for the notice violation, $7,100 for the wetting violation, $4,800 for economic benefit, and $5,000 for the size-of-business penalty factor).