Environmental Administrative Decisions

In re Morton L. Friedman and Schmitt Construction Company

CAA Appeal No. 02-07

Final Decision

Decided February 18, 2004

Regulated Asbestos Containing Material (RACM) in the Calderwood Apartments:

Issues of Fair Notice

Evidence that Linoleum was RACM

Pleading of the Complaint

Before leaving the question of applicability, we also must consider whether evidence concerning Friedman & Schmitt’s renovation activities at the Calderwood Apartments is an independent basis for finding that the Asbestos NESHAP’s notice and work practice standards apply in this case.

Specifically, in addition to the 1,600 square feet of RACM that was removed from Building #2 in August 1997, the evidence in the record also shows that Mr. Schmitt removed a total of 264 square feet of linoleum from three of the Calderwood Apartments in June 1997.

In essence, Friedman & Schmitt argue, and the ALJ held, that the removal of this linoleum from the Calderwood Apartments should not be looked to as satisfying the applicability threshold under the federal Asbestos NESHAP for three independent reasons:

Friedman & Schmitt argue that each building must be viewed as a separate facility and, since the amount of linoleum removed from each building was less than 160 square feet, that their activities did not exceed the threshold at any one facility. Friedman & Schmitt’s Brief at 12-16.

Friedman & Schmitt argue that the record does not show that the linoleum removed from the Calderwood Apartments was RACM.

They argue that the Region’s Complaint did not effectively charge violations based on the activity at the Calderwood Apartments. We reject each of these arguments for the following reasons.