The Regulatory Text: "Adequate notice in plain and unambiguous language."

For determining both the appropriate application of the term "facility" in this case and whether Friedman & Schmitt received fair notice, we begin with the text of the regulations. The Asbestos NESHAP defines the term "facility" as including any "installation," which in turn is further defined as including "any group of buildings or structures at a single demolition or renovation site that are under the control of the same owner or operator (or owner or operators under common control)."

By including "installation" within the scope of "facility" and by defining an installation as "any group of buildings," the regulations specifically contemplated that a group of buildings may be a single facility. We therefore reject Friedman & Schmitt’s general argument that the term "facility" is limited to a single building or structure. We also reject Friedman & Schmitt’s argument that they did not have notice that a group of buildings may be treated as a single facility - the regulatory text provided adequate notice in plain and unambiguous language.

The regulations, however, do not allow the Agency to treat all groups of buildings as a single facility. Instead, they require that, in order to be an installation, the group of buildings must be both part of "a single renovation or demolition site" and "under the control of the same owner or operator (or owner or operators under common control)."

The ALJ stated that the phrase "single demolition or renovation site" is not defined in Agency regulations or policy statements and, "[a]s such it was reasonable for [Friedman & Schmitt] to conclude that such demolition or renovation sites were limited by the scope of the demolition permits they applied for, which were specific to each separately addressed structure." On this issue the ALJ erred. Agency statements regarding the meaning of the terms "facility" and "installation" contain examples showing the Agency’s intended application of those terms in contexts similar to this case.