TROTTER ON FRIEDMAN SCHMITT ASBESTOS CASE
Calculating penalties

Mr. Trotter calculated a recommended gravity-based penalty of $13,500 for Friedman & Schmitt’s failure to keep RACM wet until collected for disposal. He calculated this penalty based on $5,000 for the first day of the violation for less than 10 asbestos units, plus $500 for each of 17 additional days that the violation allegedly continued.

Friedman & Schmitt argue that the $5,000 initial gravity-based penalty for the first day of the wetting violation does not take into account the small amount of RACM remaining in Building #2 and that “no one from the government ever told [them] that they had to wet the material.”

Friedman & Schmitt also argue that the $8,500 initial gravity-based penalty for the subsequent 17 days of the continuing wetting violation fails to take into account that this is Friedman & Schmitt’s first violation and that they sought guidance from SMAQMD on how to come into compliance and were told to wait for a subsequent meeting.

We reject Friedman & Schmitt’s contention that the allegedly small amount of dry RACM the inspector found warrants a downward departure from the guidance for the initial gravity-based penalty for the first day of the wetting violation.

Numerous courts have recognized the seriousness of exposure to asbestos fibers. See, e.g., Envtl. Encapsulating Corp. v. City of New York, 855 F.2d 48 (2d Cir. 1988) (“Exposure to airborne asbestos fibers - often one thousand times thinner than a human hair - may induce several deadly diseases: asbestosis, a nonmalignant scarring of the lungs that causes extreme shortness of breath and often death; lung cancer; gastrointestinal cancer; and mesothelioma, a cancer of the lung lining or abdomen lining that develops 30 years after the first exposure to asbestos and that, once developed, invariably and rapidly causes death.”); Reserve Mining Co. v. EPA, 514 F.2d 492, 508-09 n.26 (8th Cir. 1975); United States v. PM Contractors, Inc., 767 F. Supp. 231 (D. Kan. 1990); United States v. Tzavah Urban Renewal Corp., 696 F. Supp. 1013 (D. N.J. 1988).

We have held that “Because exposure to airborne asbestos poses such a serious risk to human health, violations of the regulations set forth in the Asbestos NESHAP, which are intended to reduce the potential for such exposure, must be considered potentially serious violations of the Clean Air Act, which can warrant a substantial penalty.” We have also noted that “[w]etting to prevent the release of particulates is the primary method of controlling asbestos emissions during demolition or renovation work.”

Courtesy of The EPA