Court rejects Friedman Schmitt fair notice argument

These conclusions flow fairly and proximately from the plain language of the regulatory definition, as supported by the examples EPA provided in the 1990 Preamble. Thus, we reject Friedman & Schmitt’s argument that they did not have fair notice that the term "facility" may be applied to the Town & Country Village development project.

Further, Friedman & Schmitt have not identified any inconsistent interpretation or contradictory statements by the EPA or its Regional offices regarding the scope of "facility." See Sekula v. Fed. Deposit Ins. Corp., 39 F.3d 448, 457 (3rd Cir. 1994) (concluding that agency’s long-standing, consistent, public interpretation of regulation provided fair notice); Fed. Election Comm’n v. Arlen Specter ‘96, 150 F. Supp. 2d 797, 814 (E.D. Pa. 2001) (reasoning that although actual language of regulation was ambiguous, numerous public statements that clearly and consistently stated agency’s interpretation provided fair notice).

Accordingly, for all of the foregoing reasons, we reject Friedman & Schmitt’s argument that they lacked fair notice that the Calderwood Apartments and Building #2, along with the other buildings in the Town & Country Village development project, were a single "facility" within the meaning of the Asbestos NESHAP.