Effective Pleading of Calderwood Claims

Friedman & Schmitt argue that the Region’s Complaint is limited to events arising from Building #2 and that they had thus objected to the introduction of any evidence concerning the Calderwood Apartments in the proceeding below.

The ALJ held that "EPA did not effectively charge nor pursue its Calderwood claims." In a footnote, the ALJ explained further that "Although, at the hearing, Respondents’ objection to receiving evidence concerning Calderwood, on the grounds that it was not part of the Complaint, was overruled, the Court advised that if EPA based its penalty only on [Building #2], [the Court] would only consider that site. Upon review of the record, the Court now agrees that EPA’s penalty was derived from [Building #2] alone." By these rulings, the ALJ dismissed from further consideration evidence concerning RACM removed from the Calderwood Apartments. Thus, the ALJ did not look to whether such RACM factored into the applicability of the Asbestos NESHAP.

We, however, conclude that the ALJ erred in holding that the Region failed to "charge or pursue" its contention that Friedman & Schmitt’s removal of RACM (in the form of linoleum) from the Calderwood Apartments exceeded the 160-square-foot threshold under 40 C.F.R. § 61.145(a) (i), thereby triggering the notice and work practice requirements of the Asbestos NESHAP for Friedman & Schmitt’s activities at the facility (i.e., the Town & Country Village redevelopment project).

The Region’s Complaint was in our view more than adequate to provide notice to Friedman & Schmitt that the Region intended to introduce evidence regarding the Calderwood Apartments, and the record shows that Friedman & Schmitt were not surprised at trial by the Region’s effort to introduce this evidence. We also reject the ALJ’s suggestion that the admissibility of evidence for determining applicability should turn on whether that evidence is also key to the proposed penalty analysis.