FRIEDMAN & SCHMITT CO.
Construction company penalized for NESHAP asbestos violations

Friedman and Schmitt penalized for NESHAP asbestos violations

As Mr. Trotter noted, a failure to give notice significantly impairs the Agency’s and states’ ability to enforce the substantive requirements of the Asbestos NESHAP. Thus, a failure to provide notice represents harm to the regulatory scheme, and a significant penalty helps ensure that the regulated community has the proper incentive to avoid negligent or even merely mistaken notice violations.

Indeed, Friedman & Schmitt’s argument that they believed that they were not required to give notice highlights the need for a significant penalty for this type of violation in view of the fact that the evidence shows that Friedman & Schmitt formed their belief without seeking advice from SMAQMD or EPA, and their belief conflicted with advice given to them by their consultant, who advised them to hire a licensed asbestos abatement contractor for removal of the RACM from the Calderwood Apartments.

A downward departure from the Asbestos Penalty Policy’s recommended penalty for notice violations is, in our view, not warranted in circumstances such as these where Friedman & Schmitt have demonstrated no effort to ensure that their belief was correct.

Moreover, the allegedly small amount of RACM that Mr. Schmitt failed to remove from Building #2 does not justify a downward adjustment to the penalty under the Asbestos Penalty Policy’s guidance. Mr. Trotter testified that the inspectors were unable to determine whether there was compliance with the work practice standards during the demolition work at the Calderwood Apartments.

Thus, the lack of notice, in fact, impaired the inspector’s ability to monitor compliance with the work practice requirements for handling RACM removed from the Calderwood Apartments.

The inspectors also were not able to inspect Mr. Schmitt’s compliance with the work practice standards when he stripped RACM from Building #2. Indeed, the fact that the inspectors found dry, flaky RACM left behind at various locations in Building #2, apart from raising safety issues in its own right, also raises significant questions regarding Mr. Schmitt’s handling of the RACM in Building #2 during the renovation work. Accordingly, no downward adjustment is warranted on this ground.

Friedman & Schmitt’s cooperation and their lack of prior violations, however, may properly be considered as adjustments to the gravity component of all three violations. Accordingly, we will consider these issues as they bear upon the total gravity-based penalty, not as adjustments to the penalty for each violation. Our analysis of cooperation and history of violations is set forth below.

Courtesy of The EPA