Scope of Facility

Friedman & Schmitt argue that the threshold of 160 square feet of RACM was not disturbed at the Calderwood Apartments because each apartment building must be viewed as a separate "facility." They note that the 264 square feet of linoleum was removed from three separate, free-standing buildings - 80 square feet was removed from 2901 Calderwood Lane, 94 square feet was removed from 2911 Calderwood Lane, and 90 square feet was removed from 2931 Calderwood Lane. Id. at 12.

Friedman & Schmitt argue that they were entitled to rely on SMAQMD’s demolition permitting process in determining the scope of "facility" for purposes of the asbestos renovation notice requirements. Specifically, they argue that, under the local SMAQMD rules "[i]ndividual demolition permits were required for each [building], and separate permit fees required as well."

Further, Friedman & Schmitt argue that "[b]y imposing distinct fees for each unit, SMAQMD has recognized that each unit should be regarded separately for reporting purposes." Friedman & Schmitt maintain that treating each building as a separate facility is a more reasonable application of the regulations and that they did not have fair notice of the Region’s interpretation that multiple buildings may be treated as a single facility. Friedman & Schmitt submit that "[t]here is nothing in the definition [of facility] that indicates or suggests in any way the government may combine buildings, structures or installations when determining the amount of RACM subject to the regulation." Friedman & Schmitt’s argument, however, must fail.