reg on Kate Brown, Governor

January 12, 2017

CERTIFIED MAIL: 7014 2870 0001 3378 3969

Home Comfort Re-Construction, LLC c/o Reina De Letran Pelaez 15185 SW Chrisben Court Beavetton, OR 97007

Re: Notice of Civil Penalty Assessment and Order Case No. AQ/AB-NWR-2016-185

Department of Environmental Quality Office of Compliance and Enforcement

700 NE Multnomah St Ste 600 Por tland, OR 97232-4100

(503) 229-5696 FAX (503) 229-5100

ITY: 711

This letter is to inform you that the Oregon Department of Environmental Quality (DEQ) has issued you a civil penalty of$32,000 for performing unlicensed friable asbestos abatement and open accumulation of friable asbestos-containing waste material (ACWM) at a residence in P01tland, as well as for failing to notify a landfill of the type and volume of ACWM before disposal. Furthermore, DEQ has cited- without penalty- the failure to submit notification of a nonfriable asbestos abatement project to DEQ.

DEQ issued this penalty because the violation described in the attached Notice could have released asbestos fibers into the air and exposed workers and the public to asbestos. Asbestos fibers are a respiratory hazard proven to cause lung cancer, mesothelioma, and asbestosis . Asbestos is a danger to public health and a hazardous air contaminant for which there is no known safe level of exposure. To protect the public from asbestos exposure, DEQ requires that only licensed asbestos abatement contractors handle asbestos-containing materials, and that the materials be adequately enclosed to prevent the release of asbestos fibers. The failure to do so was a significant risk to public health and the environment.

If you wish to appeal this matter, DEQ must receive a request for a contested case hearing within 20 calendar days from your receipt of this letter. The hearing request must be in writing. Send your hearing request to DEQ Office of Compliance and Enforcement - Appeals:

Via mail - 700 NE Multnomah Street, Suite #600, Portland, OR 97232 Via fax - 503-229-5100

Once DEQ receives your request, we will arrange to meet with you to discuss this matter. If DEQ does not receive a timely written hearing request, the penalty will become due. Alternatively, you can pay the penalty by sending a check or money order to the above address.

The attached Notice fmther details DEQ' s reasons for issuing the penalty and provides fmther instructions for appealing the penalty. Please review it and refer to it when discussing this case with DEQ.

HOME COMFORT RE-CONSTRUCTION, LLC Case No. AQ/AB-NWR-2016-185 Page 2

DEQ may allow you to resolve part of your penalty through the completion of a Supplemental Environmental Project (SEP). SEPs are environmental improvement projects that you sponsor in lieu of paying your penalty. Enclosed is more detail on how to pursue a SEP. SEP documents are available on the intemet at http://www.deq.state.or.us/programs/enforcement/SEP.htm, or by calling the number below to request a paper copy.

DEQ's rules are available on the internet at http://www.deq.state.or.us/regulations/rules.htm, or by calling the number below to request a paper copy.

If you have any questions, please contact DEQ Environmental Law Specialist Rick Grise! at (503) 229-5422. You may call toll-fi·ee within Oregon at 1-800-452-4011, extension 5422.

Sincerely,

Sarah G. Wheeler, Acting Manager Office of Compliance and Enforcement

Enclosures

cc: Zeb Bates, Northwest Region, DEQ

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BEFORE THE ENVIRONMENTAL QUALITY COMMISSION

OF THE STATE OF OREGON

IN THE MATTER OF: ) HOME COMFORT )

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER

RE-CONSTRUCTION, LLC, ) ) CASE NO. AQ/AB-NWR-2016-185

Respondent. )

7 I. AUTHORITY

8 The Department of Environmental Quality (DEQ) issues this Notice of Civil Penalty Assessment

9 and Order (Notice) pursuant to Oregon Revised Statutes (ORS) 468.100 and 468.126 through 468.140,

10 ORS 468A, ORS Chapter 183 and Oregon Administrative Rules (OAR) Chapter 340, Divisions 011,012,

II and 248.

12 II. FINDINGS OF FACT

13 I. At all material times, Home Comfort Re-Constmction, LLC operated as a construction

14 business with a principal place of business at 15185 SW Chris ben Court in Beaverton, Oregon.

15 2. Respondent has operated as a registered Oregon business under its current name since 20 I 0

16 (Business Entity Registry Number 675714-98) and has carried an active Constmction Contractor Board

17 license in the State of Oregon since 2010 (license number 190221).

18 3. Respondent was hired to work, for compensation, at a residential structure at 534 NE 6i11

19 Avenue in Pmtland, Oregon (Facility).

20 4. Respondent conducted demolition, renovation, repair, construction, or maintenance activities

21 at the Facility, including the removal of approximately 1,350 square feet of exterior siding (Siding)

22 fi·om the Facility on at least May 27,2016 and May 30, 2016.

23 5. Some of the Siding was fragmented by Respondent's removal and handling.

24 6. Neither Respondent nor Respondent's agent provided DEQ with an asbestos project

25 notification form or fee for the Facility prior to June 3, 2016.

26 7. The Siding was accumulated uncovered on the ground and comingled with other debris in

27 non-enclosed containers at the Facility.

NOTICE Of CIVIL PENALTY ASSESSMENT AND ORDER CASE NO AQ/AB-NWR-2016-185 Page I of 5

1 8. DEQ employee Zeb Bates (Inspector) conducted an inspection of the Facility and took

2 samples of the Siding on or about May 31, 2016.

3 9. The Siding contained 14% chrysotile asbestos by weight and could crumble, pulverize, or

4 reduce to powder under hand pressure.

5 10. At all material times, neither Respondent nor Respondent's agent(s) were licensed asbestos

6 abatement contractors and had not completed training or received accreditation under 40 CFR Pmi 7 63

7 Subpmi E, Appendix C, Section B, Subsection 3.

8 11. On or about May 28, 2016, Respondent or Respondent's agent transported an open,

9 uncovered trailer containing approximately 1.73 tons of Siding comingled with debris to the Tualatin

10 Valley Waste Recovery, Inc. landfill in Hillsboro and disposed of the contents of that trailer. No

11 notification was sent to this landfill operator before this transportation and disposal.

12 12. NotihStar CG, LP (NmihStar), a licensed asbestos abatement contractor, submitted an ASN

13 1 project notification form and fee for the Facility to DEQ on June 3, 2016, and received emergency

14 approval from DEQ on June 3, 2016.

15 13. NorthStar conducted and completed clean-up and packaging of Siding at the Facility on

16 June 6, 2016.

17 III. CONCLUSIONS

18 1. Respondent violated OAR 340-248-0260(1) by failing to send DEQ written notification,

19 with the proper form and fee, at least five days prior to removing exterior siding containing nonfriable

20 asbestos. This is a Class II violation according to OAR 340-012-0054(2)(1). DEQ is not assessing a civil

21 penalty for this violation.

22 2. Respondent violated OAR 340-248-0110(3) and 340-248-0120(1) by performing an asbestos

23 abatement project without being licensed by DEQ. Respondent's removal of the Siding constitutes

24 "renovation" under OAR 340-248-001 0(36) because it altered one or more Facility components. Because

25 the Siding contained more than 1% chrysotile asbestos and Respondent's removal and handling rendered

26 the Siding friable by fi·agmentation, Respondent's renovation activity was an "asbestos abatement project"

27 within the meaning of OAR 340-248-0010(6).

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO AQ/AB-NWR-20I6-I85 Page 2 of5

1 This is a Class I violation, according to OAR 340-012-0054(l)(n). DEQ hereby assesses a

2 $10,400 civil penalty for this violation.

3 3. Respondent violated OAR 340-248-0205(1) by openly accumulating friable asbestos-

4 containing material or asbestos-containing waste material. "Open accumulation" means any

5 accumulation of friable asbestos-containing material or asbestos-containing waste material other than

6 material securely enclosed and stored as required by Division 248 of OAR Chapter 340. OAR 340-

7 248-0010(32). Per OAR 340-248-0010(8), "asbestos-containing material" (ACM) is any material

8 containing more than one-percent asbestos by weight, and under OAR 340-248-001 0(25) "friable

9 asbestos material" means any ACM that hand pressure can crumble, pulverize, or reduce to powder

10 whendry.

11 Here, the Siding was "friable asbestos material" because it contained more than one-percent

12 asbestos by weight and could crumble, pulverize, or reduce to powder under hand pressure. In

13 addition, Respondent rendered the Siding friable by fragmenting during removal and handling, and

14 unpackaged Siding was present at the Facility on the ground and in an uncovered trailer. Therefore,

15 Respondent engaged in "open accumulation" of friable asbestos material by storing fi·agmented Siding

16 at the Facility without secure enclosure. This is a Class I violation according to OAR 340-012-

17 0054(1 )(m). DEQ hereby assesses a $10,400 civil penalty for this violation.

18 4. Respondent violated OAR 340-248-0280(6) by failing to notifY the landfill operator of the

19 type and volume of the asbestos-containing waste material (ACWM) before bringing the ACWM to the

20 disposal site. This is a Class I violation according to OAR 340-248-0054(1 )( o ). DEQ hereby assesses

21 an $11,200 civil penalty for this violation.

22 IV. ORDER TO PAY CIVIL PENALTY

23 Based upon the foregoing FINDINGS OF FACTS and CONCLUSIONS, Respondent is hereby

24 ORDERED TO:

25 Pay a total civil penalty of $32,000. The detetminations of the civil penalty are attached as

26 Exhibits 1-3, and are incmporated as part of this Notice.

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NOTICE OP ClVlL PENALTY ASSESSMENT AND ORDER CASE NO AQ/AB-NWR-20l6-l85 Page 3 of5

1 If you do not file a request for hearing as set fotth in Section V below, your check or money

2 order must be made payable to "State Treasurer, State of Oregon" and sent to DEQ, Business Office,

3 700 NE Multnomah Street, Suite #600, Portland, Oregon 97232. Once you pay the penalty, the

4 Findings of Fact, Conclusions and Order become final.

5 V. NOTICE OF RIGHT TO REQUEST A CONTESTED CASE HEARING

6 You have a right to a contested case hearing on this Notice, if you request one in writing. You

7 must ensure that DEQ receives the request for hearing within 20 calendar days from the date you

8 receive this Notice. If you have any affirmative defenses or wish to dispute any allegations of fact in

9 this Notice or attached exhibits, you must include them in your request for hearing, as factual matters

10 not denied will be considered admitted, and failure to raise a defense will be a waiver of the defense.

11 (See OAR 340-011-0530 for further information about requests for hearing.) You must mail the

12 request for hearing to: DEQ, Office of Compliance and Enforcement- Appeals, 700 NE

13 Multnomah Street, Suite #600, Portland, Oregon 97232, or fax it to 503-229-5100. An

14 adminish·ative law judge employed by the Office of Administrative Hearings will conduct the hearing,

15 according to ORS Chapter 183, OAR Chapter 340, Division 011 and OAR 137-003-0501 to 0700. You

16 have a right to be represented by an attorney at the hearing, or you may represent yourself unless you

17 are a corporation, agency or association.

18 Active duty service-members have a right to stay proceedings under the federal Service

19 members Civil Relief Act. For more information, please call the Oregon State Bar at 1-800-

20 452-8260 or the Oregon Military Depmtment at 1-800-452-7500. Additional information can be found

21 online at the United States Armed Forces Legal Assistance (AFLA) Legal Services Locator website

22 http://legalassistance.law.af.mil/content/locator.php.

23 If you fail to file a request for hearing in writing within 20 calendar days of receipt of the

24 Notice, the Notice will become a final order by default without fmther action by DEQ, as per OAR

25 340-011-0535(1). If you do request a hearing but later withdraw your request, fail to attend the hearing

26 or notify DEQ that you will not be attending the hearing, DEQ will issue a final order by default

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO AQ/AB-NWR-2016-185 Page 4 of5

1 pursuant to OAR 340-011-0535(3). DEQ designates the relevant portions of its files, including

2 information submitted by you, as the record for purposes of proving a prima facie case.

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~ /2-1 )AJ/1 Date Sarah G. Wheeler, Acting Manager

Office of Compliance and Enforcement Oregon Department of Environmental Quality

NOTICE OF CIYI L PENALTY ASSESSMENT AND ORDER CASE NO AQ/AB-NWR-2016-185 Page 5 of5

EXHIBIT 1

FINDINGS AND DETERMINATION OF RESPONDENT'S CNIL PENALTY PURSUANT TO OREGON ADMINISTRATNE RULE (OAR) 340-012-0045

VIOLATION:

CLASSIFICATION:

MAGNITUDE:

Respondent violated OAR 340-248-0110(3), 340-248-0120(1), and ORS 468A.710(1) by performing an asbestos abatement project without being licensed by DEQ.

Tbis is a Class I violation, according to OAR 340-012-0054(l)(n).

The magnitude of the violation is major pursuant to OAR 340-012-0135(1)(h)(A) because there was more than 260 linear feet or more than 160 square feet of asbestos-containing material or asbestos­containing waste material.

CNIL PENALTY FORMULA: The formula for detetmining the amount of penalty of each violation is: BP + [(0.1 x BP) x (P + H + 0 + M +C)]+ EB

"BP" is the base penalty, which is $8,000 for a Class I, major magnitude violation in the matrix listed in OAR 340-012-0140(3)(b)(A)(i) and applicable pursuant to OAR 340-012-0140(3)(a)(B).

"P" is whether Respondent has any prior significant actions, as defmed in OAR 340-012-0030(19), in the same media as the violation at issue that occUlTed at a facility owned or operated by the same Respondent, and receives a value ofO according to OAR 340-012-0145(2)(a)(A) because there are no prior significant actions.

"H" is Respondent's history of correcting prior significant actions, and receives a value of 0 according to OAR 340-012-0145(3)(c) because there is no prior history.

"0" is whether the violation was repeated or ongoing, and receives a value of 2 according to OAR 340-012-0145(4)(b) because there was more than one but less than seven occurrences of the violation. Respondent removed siding on at least May 27,2016 and May 30,2016. Per ORS 468.140(2) and OAR 340-012-0145(4), each day of a violation is a separate occunence. Therefore, there were two occurrences of the violation.

"M" is the mental state of the Respondent, and receives a value of 4 according to OAR 340-012-0145(5)(b) because Respondent was negligent. Respondent is an experienced residential renovation and demolition company that has operated as a registered Oregon business under its current name since 2010 (Business Entity Registry NUlllber 67 5714-98). Moreover, Respondent has can1ed an active Oregon Construction Contractor Board license since 2010 (license number 190221 ), for which training and testing regarding potentially asbestos­containing materials, asbestos rules, and asbestos practices are an armual requirement. Thus, Respondent's unlicensed perfmmance of friable asbestos abatement constitutes a failure to

Case No. AQ/AB-NWR-2016-185 Exhibit 1 Page I

take reasonable care to avoid a foreseeable risk of conduct constituting or resulting in a violation.

"C" is Respondent's efforts to correct or mitigate the violation, and receives a value of -3 according to OAR 340-012-0145(6)(d) because Respondent took reasonable affirmative efforts to minimize the effects of the violation. The Facility was inspected on May 31, 2016, and Respondent immediately stopped work and provided photographic evidence that evening ofthe trailer containing friable asbestos-containing material covered with a tarp. Respondent also retained NorthStar CG, LP, a licensed asbestos abatement contractor, on or aboutJune 3, 2016.

"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a result of the Respondent's noncompliance. It is designed to "level the playing field" by taking away any economic advantage the entity gained and to deter potential violators from deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In this case, "EB" receives a value of$0. Because Respondent's non-compliance resulted in greater expenditure for emergency cmTective action than the delayed and avoided costs of compliance, Respondent received no economic benefit from non-compliance.

PENALTY CALCULATION: Penalty= BP + [(0.1 x BP) x (P + H + 0 + M +C)] +$0 = $8,000 + [(0.1 X $8,000) X (0 + 0 + 2 + 4- 3)] + $0 = $8,000 + [($800) X (3)] + $0 = $8,000 + $2,400 + $0 = $10,400

Case No. AQ/AB-NWR-2016-185 Exhibit 1 Pagel

EXHIBIT2

FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045

VIOLATION:

CLASSIFICATION:

MAGNITUDE:

Respondent violated OAR 340-248-0205(1) by openly accumulating fi'iable asbestos-containing materiaL

This is a Class I violation, according to OAR 340-012-0054(l)(m).

The magnitude of the violation is major pursuant to OAR 340-012-0135(l)(h)(A) because there was more than 260 linear feet or more than 160 square feet of asbestos-containing material or asbestos­containing waste material.

CIVIL PENALTY FORMULA: The formula for detennining the amount of penalty of each violation is: BP +[(OJ x BP) x (P + H + 0 + M +C)]+ EB

"BP" is the base penalty, which is $8,000 for a Class I, major magnitude violation in the matrix listed in OAR 340-012-0140(3)(b)(A)(i) and applicable pursuantto OAR 340-012-0140(3)(a)(B).

"P" is whether Respondent has any prior significant actions, as defined in OAR 340-012-0030(19), in the same media as the violation at issue that occurred at a facility owned or operated by the same Respondent, and receives a value ofO according to OAR 340-012-0145(2)(a)(A) because there are no prior significant actions.

"H" is Respondent's history of correcting p1ior significant actions, and receives a value of 0 according to OAR 340-012-0145(3)(c) because there is no prior history.

"0" is whether the violation was repeated or ongoing, and receives a value of2 according to OAR 340-012-0145(4)(b) because there were more than one but less than seven occunences of the violation. Respondent's open accumulation of asbestos-containing material was verified beginning on May 31, 2016 and continued until a licensed asbestos abatement contractor commenced asbestos abatement on June 6, 2016. Per ORS 468J40(2) and OAR 340-012-0145( 4), each day of a violation with a duration of more than one day is a separate occunence. Therefore, there were six occunences of the violation.

"M" is the mental state of the Respondent, and receives a value of 4 according to OAR 340-012-0145(5)(b) because Respondent was negligent Respondent is an experienced residential renovation and demolition company that has operated as a registered Oregon business under its current name since 2010 (Business Entity Registry Number 675714-98). Moreover, Respondent has canied an active Oregon Construction Contractor Board license since 20 I 0 (license number 190221 ), for which training and testing regarding potentially asbestos­containing materials, asbestos rules, and asbestos practices are an annual requirement Thus, Respondent's unlicensed performance of fiiable asbestos abatement constitutes a failure to

Case No. AQ/ AB-NWR-2016-185 Exhibit 2 Page I

take reasonable care to avoid a foreseeable risk of conduct constituting or resulting in a violation.

"C" is Respondent's efforts to correct or mitigate the violation, and receives a value of -3 according to OAR 340-012-0145(6)(d) because Respondent eventually made some efforts to minimize the effects of the violation. The Facility was inspected on May 31, 2016, and Respondent provided photographic evidence that evening of the trailer containing friable asbestos-containing material covered with a tarp. Respondent also retained NmthStar CG, LP, a licensed asbestos abatement contractor, on or about June 3, 2016.

"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a result of the Respondent's noncompliance. It is designed to "level the playing field" by taking away any economic advantage the entity gained and to deter potential violators from deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In this case, "EB" receives a value of$0. Because Respondent's non-compliance resulted in greater expenditure for emergency co!Tective action than the delayed and avoided costs of compliance, Respondent received no economic benefit fi·om non-compliance.

PENALTY CALCULATION: Penalty= $8,000 + [(0.1 x $8,000) x (P + H + 0 + M +C)] + $0 = $8,000 + [(0.1 X $8,000) X (0 + 0 + 2 + 4 - 3)] + $0 = $8,000 + [($800) X (3)] + $0 = $8,000 + $2,400 + $0 = $10,400

Case No. AQ/AB-NWR-2016-185 Exhibit 2 Page2

EXHIBIT3

FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045

VIOLATION:

CLASSIFICATION:

MAGNITUDE:

Respondent violated OAR 340-248-0280(6) by failing to notify the landfill operator of the type and volume of asbestos-containing waste material before bringing the waste to the disposal site.

This is a Class I violation, according to OAR 340-012-0054(1)(o).

The magnitude of the violation is major pursuant to OAR 340-012-0135(l)(h)(A) because there was more than 260 linear feet or more than 160 square feet of asbestos-containing material or asbestos­containing waste material.

CIVIL PENALTY FORMULA: The formula for detennining the amount of penalty of each violation is: BP + [(0.1 x BP) x (P + H + 0 + M +C)] + EB

"BP" is the base penalty, which is $8,000 for a Class I, major magnitude violation in the matrix listed in OAR 340-012-0140(3)(b)(A)(i) and applicable pursuant to OAR 340-012-0140(3)(a)(B).

"P" is whether Respondent has any prior significant actions, as defmed in OAR 340-012-0030(19), in the same media as the violation at issue that occuned at a facility owned or operated by the same Respondent, and receives a value ofO according to OAR 340-012-0145(2)(a)(A) because there are no prior significant actions.

"I-I" is Respondent's history of correcting prior significant actions, and receives a value of 0 according to OAR 340-012-0145(3)(c) because there is no prior history.

"0" is whether the violation was repeated or ongoing, and receives a value of 0 according to OAR 340-012-0145(4)(a) because there was only one occurrence of the violation. Respondent's failure to notify the landfill operator of the type and volume of the waste material before bringing the waste to the disposal occurred on any one day prior to the disposal of the waste at the landfill on or around May 28,2016. Therefore, there was one occurrence of the violation.

"M" is the mental state of the Respondent, and receives a value of 4 according to OAR 340-012-0145(5)(b) because Respondent was negligent. Respondent is an experienced residential renovation and demolition company that has operated as a registered Oregon business under its current name since 2010 (Business Entity Registry Number 675714~98). Moreover, Respondent has canied an active Oregon Constmction Contractor Board license since 2010 (license number 190221 ), for which training and testing regarding potentially asbestos­containing materials, asbestos mles, and asbestos practices are an armual requirement. Thus, Respondent's failure to properly notify the landfill operator of the type and volume of the

Case No. AQ/AB-NWR-2016-185 Exhibit 3 Page I

waste material constitutes a failure to take reasonable care to avoid a foreseeable risk of conduct constituting or resulting in a violation.

"C" is Respondent's effmts to correct or mitigate the violation, and receives a value of 0 according to OAR 340-012-0145(6)(f) because the violation could not be corrected or minimized.

"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a result of the Respondent's noncompliance. It is designed to "level the playing field" by taking away any economic advantage the entity gained and to deter potential violators from deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In this case, "EB" receives a value of$0. Because Respondent's non-compliance resulted in greater expenditure for emergency cmTective action than the delayed and avoided costs of compliance, Respondent received no economic benefit fi·om non-compliance.

PENALTY CALCULATION: Penalty= $8,000 + [(0.1 x $8,000) x (P + H + 0 + M +C)]+ $0 = $8,000 + [(0.1 X $8,000) X (0 + 0 + 0 + 4 + 0)] + $0 = $8,000 + [($800) X (4)] + $0 = $8,000 + $3,200 + $0 = $11,200

Case No. AQ/AB-NWR-2016-185 Exhibit 3 Page2