VIOLATIONS IN THE KIENAST-EPA ASBESTOS COMPLAINT

Specifically, the Complaint alleges 11 violations of the asbestos NESHAP regulations by Respondents:

1) Respondents violated 40 C.F.R. § 61.145(a) by failing to inspect the facility for the presence of asbestos prior to commencing demolition or renovation;

2) Respondents violated 40 C.F.R. § 61.145(b) by failing to notify the Administrator of intent to demolish the facility at least ten days prior to the Respondents commencing the demolition activity;

3) Respondents violated 40 C.F.R. § 61.145(b) by failing to provide an accurate demolition notice on September 2, 1998;

4) Respondents violated 40 C.F.R. § 61.145(b) by failing to provide an accurate demolition notice on December 15, 1998;

5) Respondents violated 40 C.F.R. § 61.145(b) by failing to remove all regulated asbestos-containing material ("RACM") prior to the commencement of demolition activity;

6) Respondents violated 40 C.F.R. § 61.145(c)(6)(i) by failing to adequately wet the RACM at the facility during asbestos removal or demolition activities and to ensure that it remained wet until collected and contained or treated in preparation for disposal according to § 61.150;

7) Respondents violated 40 C.F.R. § 61.145(c)(2) by failing to adequately wet all RACM exposed during cutting or disjoining operations and damaging or disturbing asbestos during the removal of the oven(s) from the Hudson facility;

8) Respondents violated 40 C.F.R. § 61.150(b) by failing to properly dispose of asbestos-containing waste material obtained from the facility;

9) Respondents violated 40 C.F.R. § 61.150(b) by failing to maintain waste shipment records for all asbestos-containing waste material transported off the Hudson facility site;

10) Respondents violated 40 C.F.R. § 61.145(c)(8) by failing to have a foreman or authorized representative, trained in the provisions of the asbestos NESHAP and with the asbestos NESHAP available on-site during the stripping, removing, handling or disturbing of RACM, or to have the training information posted at the demolition and /or renovation site;

11) Respondents violated Section 114 of the Act, 42 U.S.C. § 7414, by failing to provide accurate information about the demolition activities at the site, in response to the Section 114 request for information.

Respondents answered the Complaint and requested a hearing on June 22, 2001. As part of their Answer, Respondents requested that the Complaint be dismissed with prejudice. By Order issued August 15, 2001, Respondents’ request for dismissal with prejudice was denied.

An evidentiary hearing was held in Oshkosh, Wisconsin on November 5 and 6, 2002, on the issues of Respondents’ liability and the proposed penalty assessment. EPA offered into evidence forty-two exhibits, Complainant’s Ex. 1 through 42, and called five fact witnesses. Respondent introduced thirty-three exhibits, Respondent’s Ex. A through AG, and called one fact witness.