Court Upholds Penalty for the Notice Violation

Mr. Trotter testified that a $15,000 initial gravity-based penalty should be assessed for Friedman & Schmitt’s violation of the requirement to give notice 10 days prior to beginning a renovation that would disturb the threshold amount of RACM.

Mr. Trotter testified that the Asbestos Penalty Policy recommends a high penalty for this type of violation because lack of notice “really makes it difficult for an inspector to make a determination if there was compliance” with the work practice standards.

The Asbestos Penalty Policy explains further, however, that a reduced penalty may be appropriate “only if the Agency can conclude, from its own inspection, a State inspection, or other reliable information, that the source probably achieved compliance with all substantive requirements.”

Mr. Trotter testified that, in the present case, it was impossible for the inspector to determine whether RACM in the Calderwood Apartments was fully and correctly removed prior to the demolition.

Friedman & Schmitt argue that the initial gravity-based penalty for the notice violation should be adjusted to take into account:

Friedman & Schmitt’s belief that they did not have to give notice and their contentions that they fully cooperated with the government investigators;

That the amount of asbestos left in Building #2 was small;

That Friedman & Schmitt had no prior violations; and,

That the case did not involve a “significant environmental problem.”

We reject Friedman & Schmitt’s contention that the initial gravity-based penalty for the notice violation should be reduced on these grounds at this stage of our analysis.