Then the FAA needs to revise the regs:

"Alcohol concentration. No covered employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No certificate holder having actual knowledge that an employee has an alcohol concentration of 0.04 or greater shall permit the employee to perform or continue to perform safety-sensitive functions."

As far as the FAA is concerned, as long as he hadn't consumed alcohol within 8 hrs. and was not impaired, he could've quite legally hopped in his RJ and gone along on his merry way. My airline (owned by SkyWest) doesn't add to the FAA limit-- our FOM says 8hrs and .04 are the limits. While it is stupid and reckless to duty-in so close to the legal limit, this could have been a non-event if he had been employed by another carrier.