Enforcing the Asbestos NESHAP: The ALJ’s Ruling is Rejected

Finally, we must reject the ALJ’s reasons for departing from the Asbestos Penalty Policy’s gravity-based penalty chart. We find the ALJ’s reasons inadequate and unconvincing as they relate to the notice violation.

The ALJ’s explanation appears to focus exclusively on the recommended penalties for work practice violations, which include adjustments for the amount of asbestos in three broad categories.

Other than a single reference to Mr. Trotter’s testimony that the Asbestos Penalty Policy recommends no downward adjustment for notice violations, the ALJ did not consider or express any reason why the policy’s approach to notice violations fails to adequately take into account the seriousness of those violations. As discussed above, we conclude that notice violations are far from inconsequential.

For these reasons, we determine that Friedman & Schmitt’s failure to give the required notice in this case warrants the gravity-based penalty of $15,000 that the Asbestos Penalty Policy recommends. We adjust this amount upwards by 10%, or $1,500, to take inflation into account.