Friedman, Schmitt cited for asbestos wetting violation

We also reject Friedman & Schmitt’s contention that there should be no additional penalty for the subsequent days of the continuing wetting violation. The Clean Air Act contains a specific presumption that augurs in favor of a finding of continuing violation in this case. The CAA states as follows:

For purposes of determining the number of days of violation for which a penalty may be assessed under [section 113(d)(1)], where the Administrator or an air pollution control agency has notified the source of the violation, and the plaintiff makes a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the date of notice, the days of violation shall be presumed to include the date of such notice and each and every day thereafter until the violator establishes that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature.

This statute places the burden of achieving compliance fully and as promptly as possible on the owner or operator of the source.

The evidence in the record shows that SMAQMD acting through its inspector, Mr. Singleton, delivered two notices of violation to Mr. Schmitt on August 25, 1997 (one concerning the work at the Calderwood Apartments and one concerning Building #2).

The record also shows that the Region established a prima facie case that Friedman & Schmitt did not correct the wetting violation until September 10, 1997, when Mr. Singleton observed a certified asbestos abatement contractor decontaminating Building #2.

Friedman & Schmitt did not attempt to prove by a preponderance of the evidence that they adequately wetted RACM remaining in Building #2 prior to September 10, 1997.