The RACM Applicability Standard

We also reject any suggestion that RACM may not be counted towards the applicability threshold under 40 C.F.R. § 61.145(a) (i) in circumstances in which the Region has not expressly identified such RACM as the basis for an upward adjustment of the proposed penalty.

The question of NESHAP applicability logically arises prior to, and independent of any penalty determination. Agency guidance provides the Region discretion to propose a penalty based on the amount of RACM handled improperly, rather than the total amount of RACM handled in the project.

The Agency’s penalty policy for violations of the Asbestos NESHAP provides the following guidance: "Where there is evidence indicating that only part of a demolition or renovation project involved improper stripping, removal, disposal or handling, the Region may calculate the number of [asbestos] units based upon the amount of asbestos reasonably related to such improper practice." See CAA Stationary Source Civil Penalty Policy, app. III at 3 (Rev. May 5, 1992) (hereinafter "Asbestos Penalty Policy").

Notably, the Asbestos Penalty Policy uses the concept of asbestos "unit" as a basis for increases in the amount of the penalty for work practice violations, but it does not employ this concept for notice violations. In the present case, the Region alleged both a notice violation and work practice violations, but since the work practice violations only related to work at Building #2, the Region did not include the RACM from the Calderwood Apartments when calculating the number of Asbestos Units in establishing the recommended penalty for the work practice violations. This approach was consistent with the guidance of the Agency’s Asbestos Penalty Policy, and explains why the Region’s penalty analysis did not focus on the RACM removed from the Calderwood Apartments, even though that RACM is relevant to its claims in this case.