Friedman, Schmitt challenge gravity-based penalty

Friedman & Schmitt’s challenge to gravity-based penalty. The arguement that they are somehow not responsible for any continuing violation by virtue of their asking SMAQMD for advice on how to come into compliance is not supported by the evidence. Although the evidence does show that Friedman & Schmitt sought the advice of SMAQMD and that they were not satisfied with SMAQMD’s response, the evidence also shows that Mr. Singleton advised Friedman & Schmitt that Building #2 needed to be decontaminated.

Ultimately, Friedman & Schmitt followed this advice and hired a certified asbestos contractor to decontaminate the building. As noted above, the Region viewed the commencement of decontamination as ending the continuing violation.

Accordingly, applying the presumption CAA § 113(e)(2) establishes, the wetting violation in this case continued for 17 days from August 25, 1997, the date of notice, to September 10, 1997, the date on which Mr. Singleton observed the certified asbestos abatement contractor decontaminating Building #2.

The Asbestos Penalty Policy (as adjusted for inflation) suggests a multi-day penalty of $550 per day in these circumstances. The ALJ, however, expressed concern that application of this penalty amount failed to adequately account for the relatively small quantity of RACM involved in the wetting violation.

While, as we have noted, even small amounts of dry, friable asbestos can present substantial risks, we nonetheless tend to agree with the ALJ that the multi-day penalty recommended by the policy produces a higher aggregate gravity number for this violation than may be appropriate under the circumstances.

In particular, we conclude that a multi-day penalty of $100 per day will, when added to the $5,500 penalty for the first day, produce an overall gravity-based penalty for this violation that is both reflective of the seriousness of the violation and provides a meaningful deterrent.

Accordingly, we add $100 for each of the 16 days that the violation continued after the first day that SMAQMD gave notice to Friedman & Schmitt of the violation (totaling $1,600), and assess an initial gravity-based penalty of $7,100 for the continuing wetting violation.

Courtesy of The EPA