Petition — Adamo Wrecking Co. v. United States
Supreme Court brief1978
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"Supreme Court, U. Seu
io PILE Doe
DEC 31 ¥
MICHAEL GODAK J*., CLER
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Supreme Court of the Anited States
OcToBer TERM, 1976.
we. 26-911
UNITED STATES OF AMERICA,
Respondent,
vs.
ADAMO WRECKING CO.,
Petitioner.
——_—_—_—
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.
ARTHUR L. KLEIN,
STANLEY M. LIPNICK,
75th Floor—Sears Tower,
Chicago, Illinois 60606,
Counsel for Petitioner.
ARNSTEIN, GLUCK, WEITZENFELD
& MINOw,
Of Counsel.
a ——
Gunthorp-Warren Printing Company. Chicago e Financial 6-6565
--—- CO
o-—
—»_ =
TABLE OF CONTENTS.
PAGE
Ss cccccowecescesseccapCasccccesscets 1
DS jinteeseungdebd weds Gabuss doegagece 1
ae ae 2
Statutes and Regulations Involved. ................+.. 2
I Es bo do obi éddeccdddccedceccess 2
Reasons Why the Writ Should Be Granted............ 6
I. The Sixth Circuit Improperly Decided an Impor-
tant Question of Federal Law Which Has Not Been
But Should Be Settled by This Court.......... 6
Il. The Decision Below Conflicts with Decisions of
This Court and of Other Circuits............ i.
(Aisi Save i as eS ay nan pea 9
REBEEER 2 cccccccccccecccceces WITTITITITITTT TT Al
Appendix A:
United States of America v. Adamo Wrecking
Co. (Opinion of United States Court of Ap-
peals for the Sixth Circuit)............. Al
Appendix B:
United States of America v. Adamo Wrecking
Company (Memorandum Opinion and Order
of United States District Court for the Eastern
District of Michigan, Southern Division). ... Al2
Appendix C:
Clean Air Act, Sections 112, 113(b) and
DD cabs secbédbovdededeendéesesoda A48
Appendix D:
Regulation of United States Environmental Pro-
GD ROME co ccccccccccccccccccccces AS2
TABLE OF CITATIONS.
Cases.
Breen v. Selective Service System, 396 U.S. 460 (1970).. 8
Deering Milliken, Inc. v. Johnston, 295 F. 2d 856 (4th
Eh SEED DSdatddevewsesddetectocescuscdestcd 8
Ethyl Corp. v. Environmental Protection Agency, 541
. 26 8 GA G GER Beecccccdccccccocckcccces 4,5
Leedom v. Kyne, 358 U. S. 184 (1958).............. 7
Manges v. Kamp, 474 F. 2d 97 (Sth Cir. 1973)........ 7
Oestereich v. Selective Service System, 393 U. S. 233
CERES oc cebeebbcccddeyeesesbcpewsncstscescees 8
Yakus v. United States, 321 U. S. 414 (1944)......... 7
Federal Statutes.
es OF Ee oc atekoceecctéccesecsosecees l
PL ns <os een eSauansecksdasecbas 2, 3, A48
es ae OF Ic occu cccdoccctdcceseces 2, 3, ASO
EG eG, © Pet cc ccccccccccceses 2, 4, 6, 7, 8, AS1
PP a Eo cdens duécesdatGncseseeteceessc 2
Sees ED acucecdeucdddestacsecdeevesbens 2
Federal Regulations.
GOCE. FB. BERGE OGD co cacevovcsccecectces 2, 3, AS2
Other Authorities.
S. Rep. No. 91-116, 91st Cong., 20 Sess. 17 (1970)... 4
5 BNA Environmental Reporter, Current Developments
SUD GD Wy ec cb she berececcctadbdswhesces 5
Supreme Court of the Gnited States
OcTOBER TERM, 1976.
UNITED STATES OF AMERICA,
Respondent,
vs.
ADAMO WRECKING CO.,
Petitioner.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.
OPINIONS BELOW.
The opinion of the Sixth Circuit is not yet officially reported.
It is unofficially reported at 9 E. R. C. 1443, and is reprinted
as Appendix A to the Petition, commencing at page Al.
The opinion of the District Court is unreported, and is re-
printed as Appendix B to the Petition, commencing at page
Al2.
JURISDICTION.
The judgment of the Sixth Circuit was filed November 1,
1976. By Order dated November 24, 1976 (No. A-426), Mr.
Justice Stewart extended the time for filing this Petition to and
including December 31, 1976. Jurisdiction is conferred upon
this Court by 28 U. S. C. § 1254(1).
QUESTIONS PRESENTED.
1. Whether the Federal courts are compelled to enforce the
illegal and unauthorized directives of a Federal Adminis-
trator?
2. Whether the Federal courts are compelled to convict citizens
for conduct which Congress has not made a crime?
STATUTES AND REGULATIONS INVOLVED.
This case involves Sections 112, 113(c), and 307(b) of the
Clean Air Act, as amended. These statutory provisions are
codified at 42 U. S. C. §§ 1857c-7, 1857c-8(c), and 1857h-
5(b), respectively, and are reprinted in full text in Appendix
C to the Petition, commencing at page A48.
This case also involves an administrative regulation promul-
gated by the United States Environmental Protection Agency on
April 6, 1973 (38 Fed. Reg. 8826), codified at 40 C. F. R.
§ 61.01, et seq., and reprinted as Appendix D to the Petition,
commencing at page AS2.
STATEMENT OF THE CASE.
On February 20, 1975, a United States Grand Jury for the
Eastern District of Michigan returned a 2-count superseding in-
dictment, charging Petitioner with violations of criminal pro-
visions of the Clean Air Act, as amended. The District Court
had jurisdiction pursuant to 28 U. S. C. § 1355. On Petitioner's
motion, the District Court dismissed the first count of the in-
dictment for failure to allege an offense against the laws of the
United States.’
Invoking the Court of Appeals’ jurisdiction under 18 U. S. C.
§ 3731, the United States appealed the dismissal. The Sixth
Circuit reversed and this Petition seeks review of The Sixth
Circuit’s decision.
1. As only the first count is involved in this Petition, it will
hereinafter for convenience be referred to as “the indictment”.
3
The indictment charged a violation of Section 112(c) of the
Clean Air Act as amended (42 U. S. C. § 1857-7(c)(1)(B)),
criminal penalties for which are provided by Section 113 (42
U. S. C. § 1857c-8(c)). Section 112(c), in pertinent part
provides:
“(1) After the effective date of any emission standard
under this section—
. . . * .
(B) no air pollutant to which such standard applies
may be emitted from any stationary source in violation of
such standard... .”
The theory of Petitioner's motion to dismiss, accepted by the
District Court, was that the indictment failed to allege an offense
because it charged violation of an EPA regulation which, while
denominated “Emission Standard,” was not in substance an
emission standard within the meaning of Section 112. This
regulation, as applied to Petitioner's business—demolition—
specifies a work practice or methodology to be followed in
demolishing buildings containing friable asbestos materials (see
40 C. F. R. § 61.22(d), Appendix, pp. A55-7).
It is undisputed that asbestos is a “hazardous air pollutant”
within the meaning of Section 112, and also undisputed that
the Act requires promulgation of an emission standard for its
control:
“ . . the Administrator shall prescribe an emission
standard for such ... ” Section 112(b)(1)(B)
(emphasis ).
The District Court analyzed the legislative history and the
Act as a whole (Appendix, pp. A36-A40), and concluded
(Appendix, p. A40) that Congress had clearly created a statu-
tory scheme by which emission standards were to be implemented
by techniques for controlling emissions. Accordingly, he held
that an emission standard cannot be the same thing as a
technique for controlling emissions which might be used to
4
implement an emission standard. Since Petitioner was accused
of violating a regulation which only mandated a technique for
emission control, the District Court ruled that Petitioner was
not charged with violating an “emission standard” within the
meaning of Section 112 of the Act and dismissed the indictment
for failure to charge an offense against the laws of the United
States.
The Sixth Circuit reversed, noting that the demolition work
practice rule could have been but was not brought before the
District of Columbia Circuit by petition for review filed within
30 days of promulgation, as provided by Section 307(b)(1).
The Court of Appeals held that jurisdiction to decide whether
the regulation was an emission standard within the meaning of
the statute making it a crime to violate an emission standard
(the charge against Petitioner) was withheld from the District
Court by Section 307(b)(2) of the Act (42 U. S. C. § 1857h-
5(b)(2)):
“Action of the Administrator with respect to which re-
view could have been obtained under paragraph (1) shall
not be subject to judicial review in civil or criminal pro-
ceedings for enforcement.”
The Court of Appeals did not comment upon Congress’
ments as to how stationary sources should be operated, but
rather should only specify the results to be achieved and let the
responsible business people determine how best to achieve them
—See, S. Rep. No. 91-116, at page 17 (91st Congress, 2d
Sess., Sept. 17, 1970). The Court did not acknowledge the
distinction between mandating an end product—quantitatively
result (Compare Ethyl Corp. v. Environmental Protection
Agency, 541 F. 2d 1, n. 14 at 11 (D. C. Cir., 1976), cert.
denied, .... U. S. —.., 96 S. Ct. 2662 (June 14, 1976)).
The Court ignored the fact that the Administrator is required
by Section 112 to prescribe an emission standard and has no
eg ce
5
statutory authority under any circumstance to substitute a
different kind of regulation, even though such alternative
authority is provided in other sections of the Act dealing with
other types of emission sources (See Ethyl Corp. v. E. P. A.,
supra).
Finally, the Court ignored the Administration's own admis-
sions that a work practice rule is not an “emission standard.”
Thus, the Administration itself unsuccessfully sought an amend-
went to the Clean Air Act which would have authorized design
or equipment standards under circumstances where limitations
upon measurement methodology make the use of an emission
standard “infeasible.” (Proposals submitted by the Ford Ad-
ministration January 30, 1975, to amend the Clean Air Act
5 BNA Environmental.Reporter, Current Developments 1572,
1574 (Feb. 7, 1975)).
In short, the Sixth Circuit held that, if the authority of Sec-
tion 112 is purportedly invoked to issue a ion titled
“Emission Standard” and if no petition to review is in the
District of Columbia Circuit within 30 days, the District Courts
have no choice but to enforce the regulation, regardless of its
substantive content.
The Sixth Circuit Improperly Decided an Important Ques-
tion of Federal Law Which Has Not Been but Should Be
Settled by This Court.
Since the Administrator is authorized to promulgate only
emission standards, he has violated not only his specific statutory
mandate but also the clear intent of Congress by promulgating
ministrator’s conduct is illegal and the work practice regulation
is invalid on its face.
The Sixth Circuit's mistaken view that § 307(b)(2) pro-
hibits a District Court from so holding results in nothing less
than tyranny. The effect of the decision below is that unless
the unauthorized regulation is challenged by a petition to review
filed in the District of Columbia Circuit within 30 days, a
District Court has no alternative but to make a private citizen
a criminal for conduct which is not a crime. Indeed, the Sixth
Circuit has held that Federal courts must make private citizens
criminals for failing to comply with directives of their own
Government which are themselves illegal. The EPA Admin-
istrator is himself in continuing violation of the Act for his
failure to promulgate an emission standard. Under the deci-
sion below, his illegal conduct now has the force of law and his
invalid regulation must be followed at the risk of criminal
conviction.
We respectfully submit that § 307(b)(2) is not meant to
and must not be construed to permit such a result. The Federal
Courts cannot be left with no choice but to enforce a regula-
tion which is invalid on its very face and punish those who have
not complied with an illegal directive. Clearly, this Court's
supervisory power should be invoked to review the Sixth Cir-
cuit’s decision.
7
I.
The Decision Below Conflicts With Decisions of This
Court and of Other Circuits.
The principal citation of authority contained in the Sixth
Circuit's opinion is Yakus v. United States, 321 U. S. 414
(1944) (Appendix, pp. A8-A9). But that case does not sup-
port the court below. Moreover, the court ignored later, con-
trolling decisions of this Court and other circuits.
As the Sixth Circuit noted, Yakus upheld the validity of a
so called “withdrawal” provision somewhat cimilar in import to
§ 307(b)(2). Yet the court either ignored or failed to com-
prehend the fact that Yakus did not decide and indeed specif-
ically exempted from the scope of its holding a situation where
the regulation is challenged as facially invalid (321 U. S., at pp.
446-7). Since this work practice regulation is similarly invalid
on its face, the Yakus decision not only fails to support the
Sixth Circuit's decision, it is indeed contrary authority.
In addition, the court below either ignored or failed to com-
prehend the import of this Court’s decision in Leedom v. Kyne,
358 U. S. 184 (1958) and the Fifth Circuit’s holding in
Manges v. Camp, 474 F. 2d 97 (Sth Cir., 1973). In Leedom
v. Kyne, this Court clearly recognized and held that an Admin-
istrator’s illegal conduct can be challenged, notwithstanding that
the challenge is prohibited by the relevant statute. As this Court
stated:
“ _ . This suit is not one to ‘review’, in the sense of that
term as used in the Act, a decision of the Board made with-
in its jurisdiction. Rather it is one to strike down an order
of the Board made in excess of its delegated powers and
contrary to a specific prohibition in the Act.” (358 U. S.
at 188, emphasis supplied. )
In Manges v. Camp, the Fifth Circuit reversed a trial court
holding that there was no jurisdiction to entertain an “out-of-
time” challenge to an unauthorized administrative order be-
cause the statute contained a withdrawal provision indistinguish-
able from, if not stronger than § 307(b)(2). Citing this Court's
decisions in Oestereich v. Selective Service System, 393 U. S.
233 (1968) and Breen v. Selective Service System, 396 UV. S.
460 (1970), the Fifth Circuit held that the Order could none-
theless be challenged, stating:
“. . . if the Comptroller was not acting within his authority
granted by Congress, then 12 U. S. C. § 1818(i) [the
withdrawal provision] could not withdraw jurisdiction.”
(474 F. 2d at p. 99, emphasis supplied).
As the Fourth Circuit has held:
“The courts have always been able to fashion remedies to
prohibit agency action in violation of a statutory require-
ment, if a failure of enforcement would occasion a defeat
of the apparent Congressional purpose.” (Deering Milli-
ken, Inc. v. Johnston, 295 F. 2d 856, 862-3 (4th Cir.
1961))
It is all but impossible to comprehend how the court below
could dismiss the foregoing cases as “inapposite” and “unper-
suasive” (Appendix, Al0, All). Obviously, they stand for
the proposition that Federal courts must not condone and en-
force unauthorized and illegal administrative action. Rather,
such conduct can and must be challenged, “withdrawal” provi-
sion notwithstanding, lest our government by law be replaced
by a government of men who ignore the law except to use it as
they alone see fit.
Petitioner was charged with conduct which is not a crime.
It was charged with violating a regulation which is titled an
“emission standard” but is not an emission standard. It was
charged with violating a regulation which exceeds the scope
of the Administrator's authority, which violates his statutory
mandate and which is in direct contravention to Congressional
intent. Petitioner was charged with violating a regulation which
is illegal and invalid on its very face.
9
Unless review is granted, Federal courts will be stripped of
their power to review the Administrator's lawless conduct and
will be compelled to enforce illegal directives and regulations
at the expense of justice and fair play. Thus, citizens will become
criminals because they do not follow illegal directives. We
respectfully submit that this cannot be allowed.
CONCLUSION.
For each and all of he foregoing reasons, Petitioner respect-
fully prays that its Petition for Writ of Certiorari be granted.
Respectfully submitted,
ARTHUR L. KLEIN,
STANLEY M. LIPNICK,
75th Floor—Sears Tower,
Chicago, Illinois 60606,
Counsel for Petitioner.
ARNSTEIN, GLUCK, WEITZENFELD
& MINow,
Of Counsel.
Al
APPENDIX A.
UNITED STATES COURT oF APPEALS
For the Sixth Circuit
No. 75-1967
UNITED STATES OF AMERICA,
Plaintiff-Appellan, | Appealfromthe
United States Dis-
, trict Court for the
Eastern District of
| Michigan, So
ADAMO WRECKING Co., Rickie uthern
Defendant-Appellee. ,
vs.
Decided and Filed November 1, 1976.
Before: Puituips, Chief Judge, E>warps and Peck, Circuit
Judges.
Epwarps, Circuit Judge. The United States appeals from
dismissal without trial of a criminal indictment against defend-
ant Adamo Wrecking Company. The first issue presented by this
case is whether or not either the District Court or this court had
or has jurisdiction to review an “emission standard” adopted
as a regulation under the Clean Air Act, 42 U. S. C. § 1857
(1970). The second issue (if it is reached) is whether or not
40 C. F. R. § 61.22 (1975), which is quoted below, is or is
not “an emission standard” within the meaning of 42 VU. S. C.
§ 1857c-7 (1970):
§ 61.22 Emission Standard...
(d) Demolition: Any owner or operator of a demolli-
tion operation who intends to demolish any institutional,
OOO EeeLE EE Sa
A2
commercial, or industrial building (including apartment
buildings having more than four dwelling units), struc-
ture, facility, installation, or portion thereof which con-
tains any boiler, pipe, or load-supporting structural mem-
ber that is insulated or fireproofed with friable asbestos
material shall comply with the requirements set forth in
this paragraph.
sees
(2) The following procedures shall be used to prevent
emissions of particulate asbestos material to outside air:
(i) Friable asbestos materials, used to insulate or fire-
proof any boiler, pipe, or load-supporting structural mem-
ber, shall be wetted and removed from any building,
structure, facility, or installation subject to this paragraph
before wrecking of load-supporting structural members is
commenced. Boilers, pipe, or load-supporting structural
members that are insulated or fireproofed with friable
asbestos materials may be removed as units or in sections
without stripping or wetting, except that where the boiler,
pipe, or load-supporting structural member is cut or dis-
jointed, the exposed friable asbestos materials shall be
wetted adequately to insure that such debris remains wet
during all stages of demolition and related handling
operations. 40 C. F. R. § 61.22(d)(2)(i) (1975).
A3
atd under “§ 1857c-7”" to be “filed only in the United States
Court of Appeals for the District of Columbia” within specified
time limits, and flatly prohibits “judicial review in . . . criminal
proceedings for enforcement. Section 307(b) of the Clean Air
Act, 42 U. S. C. § 1857h-5(b) (1970), provides in full:
(b)(1) A petition for review of action of the Admin-
istrator in promulgating any national primary or secondary
ambient air quality standard, any emission standard under
section 1857c-7 of this title, any standard of performance
under section 1857c-6 of the title, any standard under sec-
tion 1857f-1 of this title (other than a standard required to
be prescribed under section 1857f-1(b)(1) of this title),
any determination under section 1857f-1(b)(5) of this
title, any control or prohibition under section 1857f-6c of
this title, or any standard under section 1857f-9 of this
title may be filed only in the United States Court of Appeals
for the District of Columbia. A petition for review of the
Administrator’s action in approving or promulgating any
implementation plan under 1857c-5 of this title or section
1857c-6(d) of this title, or his action under section
1857c-10(c)(2) (A), (B), or (C) of this title or under
regulations thereunder, may be filed only in the United
States Court of Appeals for the appropriate circuit. Any
such petition shall be filed within 30 days from the date of
The importance of the emission standard question becomes such promulgation, approval, or action, or after such date
obvious when we consider three provisions of the Clean Air if such petition is based solely on grounds arising after such
Act. The first provision makes any violation of an emission 30th day.
standard a criminal act. See Section 113 (42 U.S. C. § 1857c- (2) eee te » pe on pea with sm : —
second provides: review could e been obtai er paragra
SUN). See ll , not be subject to judicial review in civil or po ad pro-
ns — the effective daic of any emission stand- ceedings for enforcement. (Emphasis added. )
We must consider stil] another portion of this record before
we can turn toward a reasoned decision. The dismissed first
count’ of the indictment read:
(B) no air pollutant to which such standard ap-
plies may be emitted from any stationary source in
violation of such standard. . . . Section 112(c)(1) COUNT ONE
(B) of the Act, 42 U. S. C. § 1857c-7(c)(1)(b) | On or about the 19th day of February, 1974, at 2612
(1970). Carter Street, also known as 8751 Linwood Street, in the
The third provision provides for petitions for “review of | a oo
, ae ; , , | 1. The second count of the indictment which alleges a false re-
action of the Administrator in promulgating” any emission stand- port is not involved in this appeal.
A4
City of Detroit, County of Wayne, within the Eastern Dis-
trict of Michigan, ADAMO WRECKING COMPANY, the
defendant herein did knowingly cause the emission of
asbestos from a four and one-half story commercial masonry
building at the aforementioned location by failing to wet
and remove firable [sic] [friable] asbestos material, used to
insulate and fireproof a boiler in the basement of said build-
ing, before demolition of the load-supporting structural
supports had begun; in violation of Title 42, United States
Code, Section 1857c-7(c)(1)(B), and the rules and reg-
ulations promulgated thereto, 38 F. R. 8829 (April 6,
1973), 40 C. F. R. § 61.22(d)(2)(i).
Appellee phrases the appellate question in this case as
follows:
Whether the trial court correctly dismissed Count | of
the superseding indictment for its incurable failure to allege
an essential element of the crime purportedly charged
therein.
Plainly, however, the indictment does charge that defendant
Adamo “did knowingly cause the emission of asbestos” by fail-
ing to wet friable asbestos before demolition. Hence appellee's
question only makes sense when its brief explains that it does
not consider the regulation, 40 C. F. R. § 61.22 to be “an
emission standard” within the meaning of the Act. And, indeed,
the District Judge found that 40 C. F. R. § 61.22 was not an
Before turning to his reasons for taking that point of view,
however, we note that preliminary thereto he rejected appellee's
argument that the indictment was facially defective in failing to
charge an essential element:
Inasmuch as there is no particular magic in the use of
verbatim statutory language, it is not a requisite for suffi-
ciency. As the Sixth Circuit explained in Rudin v. U. S.,
254 F. 2d 45, 48 (1958), cert. den. 357 U. S. 930:
“It is, of course, settled law that in order for an indict-
ment to be valid it must allege all the elements which
are necessary to constitute a violation of the statute.
AS
But it is not necessary that the indictment follow the
exact wording of the statute. (Emphasis added. )
The test is whether the language used “plainly describes
each element,” (Glenn v. U. S., 303 F.2d 536, 538 (Sth
Cir. 1962), cert. den. 372 U.S. 920) so that is apprises
defendant of what he must be prepared to meet (Rudin,
supra, at 48). In the words of one recognized commen-
tator:
“The fundamental purpose of the pleading is to in-
form the defendant of the charge so that he may
prepare his defense, and the test for sufficiency ought
to be whether it is fair to defendant to require him to
defend on the basis of the charge as stated in the par-
ticular indictment * * *. The stated requirement that
every ingredient or essential element of the offense
should be alleged must be read in the light of the fair-
ness test just suggested. (Wright, supra, § 125, at
233-4; see also U. S. v. Berlin, Richman and Den-
mon, supra, in support of that basic test.)”
The instant indictment fulfills that function. Rather than
simply adverting to the statute, it virtually quotes the reg-
ulation which embodies the standard. In so doing, it alleges
that the emission charged is traceable to a violation of the
standard, more specifically, to a failure to wet and remove
the material as a prelude to demolition.
The indictment charges that defendant:
“* * * did knowingly cause the emission of asbestos
from a four and one-half story commercial masonry
building at the aforementioned location by failing to
wet and remove firable [sic] [friable] asbestos material,
used to insulate and fireproof a boiler in the basement
of said building, before demolition of the load-sup-
porting structural supports had begun * * *” (Em-
phasis added).
The emission charged is directly attributable to the failure
to wet and remove the asbestos prior to demolition. The
indictment alleges that defendant caused the emission by
failing to wet and remove “before demolition had begun.”
Use of the tense “had begun” indicates that demolition was
commenced thereafter. Thus, the substance of the element
A6
is present, in some detail. Substitution of the more specific
language of a regulation intended to define a statutory
term, in the place of that term, is certainly adequate to
apprise defendant of the charge and the nature of the cause
against it. (Russell, supra, U. S. v. Marra, 481 F.2d 1197
(6th Cir. 1973)).
In reaching its decision, this Court does not perceive
any conflict with the analysis adopted by prior judicial
determinations.® In the cases relied upon by defendant,
the indictments not only failed to state the key statutory
terminology, but also failed to correct the omission with
other acceptable language. Thus, the courts felt confronted
by the need to presume one essential element from allega-
tions of another. Such a presumption is not required in the
instant case, inasmuch as the element may be found within
the four corners of the indictment. Accordingly, defend-
ant’s argument to the contrary must be rejected.
We agree with this reasoning and adopt it for the purposes
of this appeal.
The District Judge next turned to consideration of the
government's claim that Section 307(b) of the Act (42 U. S. C.
§ 1857h-5) deprived the District Court of jurisdiction to en-
tertain the present attack upon the regulation. Finding in Sec-
tion 307(b) an ambiguity which he resolved in favor of juris-
diction, the District Judge proceeded to examine the regulation
and to hold it invalid.
We disagree with the District Judge’s conclusion as to juris-
diction and hence we have no need to deal with validity of
the emission standard.
The District Judge rearoned that the word “promulgating”
may be read as applying more to procedure than to substance
and hence that the prohibition on review of an emission standard
under Section 307(b)(2) does not prohibit an attack on the
9. Similar challenges have been posed successfully in: U. S. v.
Nat. Wrecking Co., 74 CR 755 (N. D. Ill. 1975); U. S. v. Nardi
Wrecking Co., 74 CR 756 (N. D. Ill. 1975); U. S. v. Harvey Wreck-
ing Co., 74 CR 758 (N. D. Ill. 1975); U. S. v. Brandenberg Demoli-
tion Co., 74 CR 757 (N. D. Ill. 1975), hereinafter “Illinois cases.”
Al
validity of the standard as opposed to an attack upon the pro-
cedures by which it was enacted.
The construction adopted by the District Judge appears to
us to raise more questions than it answers. If review of the
substance of national emission standards is not provided for
in § 307(b)(1) where is it provided for? Would Congress
have intended to leave review of the validity of a national
emission standard to District Court enforcement proceedings
in fifty states with the high probability of many conflicting
interpretations? Why would Congress ban review of procedure
in District Court enforcement proceedings and allow District
Court review of substance when clearly the latter is more likely
to occasion a greater diversity of District Court opinions and a
consequent greater confusion concerning the meaning of the
standard and its enforcement? We find no satisfactory answer
to these questions under the District Judge's interpretation.
On the other hand, we believe that the language “action of
the Administrator in promulgating” can more readily be taken
to apply to both the procedures by which it was adopted and
the substance of the regulation. This clearly is the view taken of
the matter by the D. C. Circuit in Oljato Chapter of the Navajo
Tribe v. Train, 515 F. 2d 654 (D. C. Cir. 1975), where that
court rejected a distinction between agency action and the
standard itself and held that an attack upon the standard itselt
“can be brought only in this court under Section 307(b)(1) of
the Clean Air Act. . . .” Oljato Chapter of Navajo Tribe v.
Train, supra at 656, 659.
The United States Court of Appeals for the D. C. Circuit
also said:
Unlike cases like Functional Music ee 8 ~— pd
challenge a specific application of an inv rule, this
case involves a general out-of-time challenge to the validi-
ty of an EPA standard, exactly what Congress intended
limiting appeals (absent new information) to
the rule's a. Section 307
A8
very common in judicial review statutes. See, e. g., 15
U.S.C. § 78y (1970) (Securities & Exchange Commis-
sion); id., §45(c) (Federal Trade Commission); 16
U.S.C. § 8251 (1970) (Federal Power Commission); 49
U.S.C. § 1486(a) (1970) (Federal Aviation Admin-
istration). Indeed, in the Clean Air Act the Congress was
particularly concerned with rapid review of the promul-
gated standards, and so imposed the especially short 30-
day filing period (the above cited statutes all allow 60
days) “[iJn order to maintain the integrity of the ti
sequences provided the Act * * *.” S.
No. 91-1196, 91st Cong., 2d Sess., at 41 (1970). Oljato
Chapter of Navaho Tribe v. Train, supra at 659 fn. 6.
Two other Circuits have also specifically applied the exclu-
sive review provision of 307(b)(2)—albeit not in the setting
of a criminal case: Getty Oil Company (Eastern Operations),
Inc. v. Ruckelshaus, 467 F. 2d 349 (3d Cir. 1972), cert.
denied, 409 U.S. 1125 (1973); Union Electric Co. v. Environ-
mental Protection Agency, 515 F. 2d 206, 220 (8th Cir. 1975),
_ U.S. ...... (1976) (44 U. S. L. W. 5060) (U. S.
June 25, 1976). See also City of Highland Park vy. Train, 519
F. 2d 681 (7th Cir. 1975), cert. denied, Ff
(1976).
More important still, the United States Supreme Court long
ago upheld the exact sort of exclusivity in review here involved,
although in the context of another regulatory act. In Yakus v.
United States, 321 U. S. 414 (1944), the Court said:
As we have seen, Congress, through its power to de-
fine the jurisdiction of inferior federal courts and to
create such courts for the exercise of the judicial power,
could, subject to other constitutional limitations, create
the Emergency Court of Appeals, give to it exclusive
equity jurisdiction to determine the validity of price regu-
lations prescribed by the Administrator, and foreclose any
further or other consideration of the validity of a regula-
tion as a defense to a prosecution for its violation.
Unlike most penal statutes and regulations whose validi-
ty can be determined only by running the risk of violation,
Nal
bak
HY
it
It should be noted that Yakus, like our instant appeal, was de-
cided in the context of a criminal prosecution and involved an
exclusive right of review statute. By its terms it is obvious that
the Administrator issued the disputed regulation under § 112(b)
of the Act. See 36 Fed. Reg. 23239 (1971); 38 Fed. Reg. 8820
(1973). Section 112(b) deals only with “National emission
standards.” Further, the disputed regulation is entitled an
“emission standard.”?
We do not believe that there is anything vague, ambiguous,
or difficult to interpret in the prohibition of Section 307(b):
2. We note, of course, that appelice claims that no matter wha
the Administrator called this regulation, it was a “work practice”
eS
Alo
A petition for review of action of the Administrator in
1857c-7 of this title . . . may be filed only in the United
States Court of Appeals for the District of Columbia. Sec-
tion 307(b) Clean Air Act, 42 U.S.C. § 1857h-5(b)
(1970).
Its intent could hardly be more obvious.
Legislative history of the Clean Air Act supports the inter-
pretation of Section 307(b) which we have set out above. The
question of judicial review was considered only in the Senate.
The Senate Report, S. Rep. No. 91-1196, 91st Cong., 2d. Sess:,
40-42 (1970), noted that review of emission standards was
placed in the D. C. Circuit to assure “even and consistent na-
tional application” of the standards. The 30-day time limit for
review was established “to maintain the integrity of the time
sequences provided throughout the Act... .”
As we see this record, there is no doubt that appellant could
have challenged the standard through the procedure outlined
in Section 307(b)(1) had it chosen to do so.
We recognize, of course, that appellee relies strongly upon
four District Court cases from the Northern District of Illinois:
United States v. National Wrecking Co., No. 74 CR 755 (N. D.
Ill., Dec. 20, 1974); United States v. Nardi Wrecking Co., No.
74 CR 756 (N. D. Ill. Jan. 2, 1975); United States v. Harvey
Wrecking Co., No. 74 CR 758 (N. D. Ill. Jan. 7, 1975);
United States vy. Brandenburg Demolition, Inc., No. 74 CR
757 (N. D. Til. Jan. 31, 1975). Although some of these cases
contain dicta which support the appellee’s point of view on
failure of the indictments to charge emission of a prohibited
pollutant. As noted above, the indictment in our instant case
clearly did charge such an emission; and we find the dicta
unpersuasive.
Leedom v. Kyne, 358 U. S. 184 (1958), relied upon by the
appellee is, we believe, inapposite. There was no similar
All
prompt, exclusive review procedure provided in that case;
and the facts showed that the NLRB “attempted an exercise
of power that had been specifically withheld.” Leedom v. Kyne,
supra at 189.
As to Manges v. Camp, 474 F. 2d 97 (Sth Cir. 1973), we
consider it distinguishable on its facts and unpersuasive in any
possible application to this appeal. We do not find in this
record any “clear departure from statutory authority.” Manges
v. Camp., supra at 99.
No constitutional issues were decided by the District Judge
or afe properly before us in this appeal. Under what we
have said above, we hold that the District Judge was in error
in finding that he had jurisdiction to determine the validity
of the disputed asbestos emission regulation and in dismissing
the indictment.
The judgment of the District Court is reversed and the
case is remanded to the District Court for further proceedings.
Al2
UNITED STATEs District Court.
Eastern District of Michigan,
Southern Division.
UNITED STATES OF AMERICA,
Plaintiff,
- . Criminal No. 5-80297
ADAMO WRECKING COMPANY,
Defendant.
4
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS COUNT I AND
HOLDING A DECISION AS TO COUNT II IN ABEY-
ANCE.
I,
Defendant, Adamo Wrecking Company, is charged in a
superseding indictment with violating the Clean Air Act of
1970,’ in connection with the demolition of a building at
2612 Carter, Detroit, Michigan. Count I alleges that defendant
did “knowingly cause the emission of asbestos” before demoli-
tion of the structure, in violation of 42 U. S. C. § 1857c-7(c)
(1)(B), and 40 C. F. R. § 61.22(d)(2)(i).? Count II alleges
1. The pertinent provision of that Act
provides:
“After the effective date of any emission standard under this
section—
(B) * * * no air pollutant to which such standard applies
—_ | be emitted from any stationary source in violation of
standard * * *”
2. 40C. F. R. § 61.22 provides:
“(d) Demolition: Any owner or operator of a demolition
operation who intends to demolish any institutional, commer-
(Continued on next page)
Al3
that defendant knowingly made false statements concerning the
existence of friable asbestos materials at the demolition site, in
violation of 42 U. S. C. § 1857c-8(c)(2) and 40 C. F. R.
§ 61.22(d) (1).
Defendant moves, pursuant to Federal Rule of Criminal Pro-
cedure 12(b), to dismiss both counts on the grounds:
1. That the indictment fails to allege an essential element
of the offense; to-wit, emission of pollutants in violation of an
emissions standard;
2. That even if the indictment is deemed facially sufficient
in that respect, it fails to allege an emission in violation of a
standard because 40 C. F. R. § 61.22(d) does not constitute
an “emission standard”;
3. That the indictment fails to charge an offense because
the government is unable to produce evidence of a prohibited
emission,
4. That the indictment is impermissibly vague and un-
specific in that it is premised on a “work practice” as opposed
to a standard, fails to specify a subsection of § 1857c-7, and is
based on an unconstitutionally vague regulation, namely, 40
C. F. R. § 61.22(d);
5. The indictment fails to charge an offense because the
Administrator exceeded his statutory authority;
(Continued from preceding page)
cial, or industrial building (including apartment buildings hav-
ing more than four dwelling units), structure, facility, installa-
tion, or portion thereof which contains or — P or
nsula or fire-
a gs structural member that is
proofed with friable asbestos material shall comply with the
requirements set forth in this paragraph.
(2) The following procedures shall be used to prevent emis-
sions of particulate asbestos material to outside air:
(i) Friable asbestos materials, used to insulate or fireproof
any boiler, pipe, or load-supporting structural member, shall
be wetted removed from any building, structure, facility,
or installation subject to this paragraph before wrecking of load-
supporting structural members is commenced.”
a eee
Al4
6. That it is defective because there is no “emissions stand-
ard” as required by 42 U. S. C. § 1857c-7c-7(b)(1)(B);
7. That it fails to charge an offense in that 40 C. F. R.
§ 61.22 is an unauthorized dictate of the method by which
buildings are to be demolished.
Defendant attacks the validity of Count II on the ground that
40 C. F. R. § 61.22 is unauthorized and that there can be no
knowing failure to report an activity which is described by
statute in an unconstitutionally vague manner.
The government responds, contesting both the merits of the
motion and the jurisdiction of this Court to entertain the motion
under 42 U. S. C. §1857h-5(b)(1) and (2). In view of the
jurisdictional assertions by the government, this Court must
consider its power to hear each of defendant's contentions. Thus,
the Court will first direct its attention to those arguments which
are clearly within its purview (Part I). It will then proceed to
evaluate, insofar as necessary, the remainder of the claims con-
cerning Count I in both a jurisdictional (Part ITI) and substan-
tive (Part IV) framework. Defendant's challenges to Count II
will be discussed, in a limited sense, in Part V.
The jurisdictional limitations of § 1857h-5 apply only to
judicial review of “actions of the Administrator in promulgating
an emissions standard.” Thus, § 1857h-5 does not, in any
sense, curtail this Court's jurisdiction to judge purely facial
challenges to an indictment. Consequently, the Court may
proceed to the merits of three of defendant's arguments: that
the indictment omits an allegation of violation of the standard;
that the indictment should be dismissed for insufficient evidence,
and that it fails to state a particular subsection of § 1857c-7.
It is perhaps prudent at the outset to note that the Court
cannot perceive the relevance of these arguments to Count II*
3. Count IT charges failure to file written notice of intention to
demolish a structure containing asbestos, in accordance with 42
(Continued on next page)
Als
of the indictment; and therefore, its discussion refers only to
Count IL.
A. Failure to Allege Violation of Standard.
Defendant argues that the indictment is fatally defective in
that it fails to allege an essential element of the offense, namely,
an emission in violation of a standard. Defendant is correct in
its insistence that such an allegation is necessary, for it is well-
settled that:
“An indictment is required to set forth the elements of the
Offense sought to be charged. ‘The true test of the suffi-
ciency of the indictment is * * * whether it contains the
elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be
to meet."” (U. S. v. Debrow, 346 U.S. 374,
376 (1953); U. S. v. Russell, 369 U.S. 749 (1961);
U. S. v. Levinson, 405 F.2d 971 (6th Cir. 1968).)
The instant offense consists of the emission of asbestos in
violation of an emission standard, as provided in § 1857c-7:
“(c)(1) After the effective date of any emission standard
under this section - - -
(B) No air pollutant to which such standard applied may
be emitted * * * in violation of such standard. * * *”
40 C. F. R. § 61.22(d)(2)(i) states the applicable standard:*
“Friable asbestos materials used to insulate or fireproof
* * * shall be wetted and removed from any * * * structure
(Continued from preceding page)
U. S. C. § 1857c-8(c)(2) and 40 C. F. R. § 61.22(d)(1). As such,
it is not related to a failure to emission in violation of a stand-
ard under 42 U. S. C. § 1857c-7, failure to state a subsection of
1857c-7, or insufficient evidence of prohibited emission. Even were
the Court to invalidate Count I on those grounds, the government
could still proceed on Count II.
a Defendant vigorously asserts that the within quoted regulation
is not a “standard.” However, that argument is not relevant to the
contention that the indictment fails to say “in violation of a standard”
and will be considered separately, infra.
Al6
* * * before wrecking of load-supporting structural
members is commenced.* * * ”
Thus, Count I of the indictment must allege both the element
of emission’ and violation of the standard. The latter allegation
is conspicuously absent, in those terms. However, the Court
does not view that omission as a fatal defect.
While an indictment must set forth each essential element
in an intelligible manner, the standard for judging its sufficien-
cy is governed by Federal Rule of Criminal Procedure 7(c),
which provides, inter alia:
“The indictment * * * shall be a plain, concise and def-
inite written statement of the essential facts constituting
the offense charged * * *. It need not contain * * * any
other matter not necessary to such statement. * * * ”
Thus, the measure of sufficiency is not overly technical:
“Although an indictment is subject to care:ul examination
* * * not all lapses from precision and correctness re-
quire that an indictment be quashed.” (U. S. v. Levinson,
supra, at 977.)
In judging the existence of essential elements, courts have
generally looked to the substance, rather than the form, of the
indictment. Quotation of statutory language suffices only if it
is clear and meaningful (U.S. v. Carll, 105 U. S. 611 (1881)).
An indictment must, therefore, compensate for imprecise, over-
broad, or generic aspects of the statute. (See, eg. U. S. v.
Cruikshank, 92 U. S. 542, 558 (1875); Morissette v. U. S.,
342 U. S. 246 (1951); U. S. v. Russell, supra). Thus, an alle-
gation that defendant was in violation of the standard, without
more, though taken from the statute, might well be inadequate
to apprise defendant of the nature of a necessary element.*
confines its argument to the failure to allege violation Foy ey
6. onl ye Wy that defendant was
“in violation of 40 C. F. R. § 61.22,” indictment would be a
subject of concern. (See U. S. v. Denmon, 483 F. 2d 1093 (8th
Cir. 1973).)
Al7
Inasmuch as there is no particular magic in the use of ver-
batim statutory language, it is not a requisite for sufficiency.
As the Sixth Circuit explained in Rudin v. U. S., 254 F. 2d 45,
48 (1958), cert. den. 357 U. S. 930:
“It is, of course, settled law that in order for an indict-
ment to be valid it must allege all the elements which are
necessary to constitute a violation of the statute. But it
is not necessary that the indictment follow the exact word-
ing of the statute." (Emphasis added).
The test is whether the language used “plainly describes each
element,” (Glenn v. U. S., 303 F. 2d 536, 538 (Sth Cir.
1962), cert. den. 372 U. S. 920) so that it apprises defendant
of what he must be prepared to meet (Rudin, supra, at 48).
In the words of one recognized commentator:
(Wright, supra, § 125, at 233-4; see also U. S. v. Berlin,
Richman and Denmon, supra, in support of that basic
test).”
The instant indictment fulfills that function. Rather than sim-
ply adverting to the statute, it virtually quotes the regulation
which embodies the standard. In so doing, it alleges that the
emission charged is traceable to a violation of the standard,
more specifically, to a failure to wet and remove the matertal
as a prelude to demolition.”
7. See also Dunbar v. U. S., 156 U. S. 185, 190 (1894); U. S.
v. Behrman, 258 U. S. 280 (1921); U. S. v. Richman, 369 F. 2d
465 (7th Cir. 1966); U. S. v. Berlin, 472 F. 2d 1002 (2nd Cir.
1973).
8. Importantly for these purposes, the validity of the
scheme is assumed. Therefore, the pertinent allegation is the
(Continued on next page)
Als
The indictment charges that defendant:
“* * * did knowingly cause the emission of asbestos from
a four and one-half story commercial masonry building
at the aforementioned location by failing to wet and re-
move friable asbestos material, used to insulate and fire-
proof a boiler in the basement of said building, before
demolition of the load-supporting structural supports had
begun. * * *” (Emphasis added).
The emission charged is directly attributable to the failure to
wet and remove the asbestos prior to demolition. The indict-
ment alleges that defendant caused the emission by failing to
wet and remove “before demolition had begun.” Use of the
tense “had begun” indicates that demolition was commenced
thereafter. Thus, the substance of the element is present, in
some detail. Substitution of the more specific language of a
regulation intended to define a statutory term, in the place of
that term, is certainly adequate to apprise defendant of the
charge and the nature of the cause against it. (Russell, supra,
U. S. v. Marra, 481 F. 2d 1197 (6th Cir. 1973).
In reaching its decision, this Court does not perceive any
conflict with the analysis adopted by prior judicial determina-
tions.* In the cases relied upon by defendant, the indictments not
only failed to state the key statutory terminology, but also failed
to correct the omission with other acceptable language. Thus, the
courts felt confronted by the need to presume one essential
element from allegations of another. Such a presumption is not
required in the instant case, inasmuch as the element may be
found within the four corners of the indictment. Accordingly,
defendant’s argument to the contrary must be rejected.
(Continued from preceding page)
eee we & nen So ae ee So gee
level or amount of emission is not required for purposes of
argument.
9. Similar gt yg gm U. S. v.
Nat. Wrecking Co., 74 CR 755 (N. D. Ill. 1975); U. S. v. Nardi
Wrecking Co., 74 CR 756 (N. D. Til. 1975); U. S. v. Harvey Wreck-
ing Co., 74 CR 758 (N. D. Ill. 1975); U. S. v Brandenberg Demo-
lition Co., 74 CR 757 (N. D. Til. 1975), hereinafter “Illinois cases.”
Al9
B. Insufficient Evidence.
Defendant argues that the indictment should be dismissed on
the ground that the government has insufficient evidence to
proceed to trial. In particular, it argues that since there has been
a failure to promulgate an “emissions standard,” there can be no
evidence of a prohibited emission. In addition, it simply asserts a
dearth of evidence. To the extent that the argument relies upon
the validity of the regulation it will be considered separately. To
the extent that it is premised upon insufficient evidence, it is
devuid of merit. It is well-settled that presentation of incompe-
tent, illegal, or insufficient evidence to the grand jury does not
constitute grounds for dismissal of an indictment. (Costello v.
U. S., 350 U. S. 359 (1955); Lawn v. U. S., 355 U. S. 339
(1957); U.S. v. Blue, 384 U.S. 251 (1965); U. S. v. Calandra,
414 U. S. 328 (1974).) Nor does a claim that evidence sought
to be used at trial is illegal suffice. (U. S. v. Blue, supra.) It
follows, then, that a defendant in a criminal case may not chal-
lenge an indictment on the ground that it is not supported by
adequate evidence. (U.S. v. Birmingham, 454 F. 2d 706 (10th
Cir. 1971), cert. den. sub nom, Chiles v. U. S., 406 U. S. 969;
U. S. v. Kysar, 459 F. 2d 422 (10th Cir. 1972).)
C. Failure to Sp cify Statutory Section.
Defendant contends that the indictment does not specify a
subsection of 42 U. S. C. § 1857c-7. However, Count I refers to
the section with as much particularity as possible: It alleges a
“violation of Title 42, United States Code, Section 1857c-7(c)
(1)(B).” Therefore, defendant's argument is without merit.
Il.
In light of the inability of this Court to resolve defendant's
motion on the foregoing contentions, it must address the re-
mainder of its challenges to the indictment. The first inquiry, of
A20
course, is as to the jurisdiction of this Court to consider the
balance of the claims.
Defendant's attack on Count I of the indictment is three-fold.’”
It argues:
1. That the indictment fails to allege the element of violation
of an emission standard because 42 C. F. R. § 61.22(d) is not
a viable standard within the meaning of the statute;
2. That the regulation (40 C. F. R. § 61.22(d)) is an illegal
usurpation of the statutory authority to promulgate an emission
standard under § 1857c-7; and
3. That the regulation is impermissibly vague.
The government contends that 42 U. S. C. § 1857h-5 deprives
this Court of jurisdiction to adjudicate those claims. Section
1857h-5, provides, insofar as pertinent:
“(b)(1) A petition for review of action of the Adminis-
trator in promulgating * * * any emission standard under
section 1857c-7 of this title, * * * may be filed only in the
United States Court of Appeals for the District of Colum-
bia, * * * Any such petition shall be filed within thirty days
from the date of such promulgation or approval, or after
such date if such petition is based solely on grounds arising
after such thirtieth day.
“(2) Action of the Administrator with respect to which
review could have been obtained under paragraph one shall
not be subject to judicial review in civil or criminal pro-
ceedings for enforcement.”
Thus, a petition for review of “action of the Administrator in
promulgating” an “emission standard” must be brought in the
District of Columbia Circuit within thirty days of promulgation,
or after that time if the challenge is asserted solely on new
grounds. Subsection (2) forecloses later litigation in criminal
enforcement proceedings,’ of matters for which review could
10. This Court fails to discern the relevance of these arguments,
with the exception of vagueness, to Count II.
11. The instant proceedings seck criminal enforcement. See 42
U. S. C. § 1857¢-7(c) (1).
A2l
have been obtained under (b)(1). (See Duquesne Light Co. v.
Environmental Protection Agency, 481 F. 2d 1 (3rd Cir. 1973);
Granite City Steel Co. v. EPA, 501 F. 2d 925 (7th Cir. 1974);
Buckeye Power, Inc. v. EPA, 481 F. 2d 162 (6th Cir. 1973),
for general elucidation of the statutory mechanics, in the context
of review of state implementation plans.)™
A. Failure to Allege Violation of Emission Standard.
Defendant's first, and primary, challenge focuses on the term
“emission standard,” as employed in § 1857c-7. More specifi-
cally, defendant asserts that § 1857c-7(c)(1)(B) prohibits
emission of asbestos in violation of an emission standard. Pur-
suant to Section 1857c-7(b)(1)(B), which authorizes the
Administrator to prescribe such a standard, the EPA promul-
gated 40 C. F. R. § 61.22(d), which directs the wetting and
removal of asbestos prior to demolition. Defendant argues urat
§ 61.22(d) is not an “emission standard” as contemplated by the
Act in that it does not quantify a permissible level of emissions.
Therefore, defendant reasons the statutory offense of emission in
violation of a standard has not been created and cannot be
alleged. Thus, the indictment is incurably defective, and must be
12. Under Section mgt any the Administrator of the
EPA is to (or reject) state plans. That is
subject to A+, ’y—p—tiat
covering promulgation of federal standards:
“A petition for review of an Administrator's action in approving
or any implementation plan under 1857c-5 of this
tile * * * may be filed in the United States Court of
Appeals for the appropriate Circu’s. * * *”
So pation oo Gaiety subject to We thirty-day ume restriction.
The only difference is in the designation of a reviewing court. Even
the “ . :
A22
dismissed. Decision of that issue would necessitate examination
of the text, operation, and history of the statute. This Court
concludes that such a task has not been withdrawn from its
jurisdiction.
In the first place, it is axiomatic that this Court retains juris-
diction to determine its own jurisdiction. Thus, even in a setting
in which jurisdiction to decide substantive questions concerning
agency action is apportioned among different courts, each court
is entitled to decide the “jurisdictional facts,” that is, those speci-
fications which place an action properly in one court as opposed
to another (Jaffe, Judicial Control of Administrative Action,
636 et seq. (1965)). In the instant case, the jurisdiction of the
District of Columbia Circuit extends only to “action of the
Administrator in promulgating * * * any emission standard * * *”
(§ 1857h-5(b)(1)(A)). If a regulation is not an emission
standard, the statutory preclusion is inapplicable. Consequently,
the question of whether § 61.22(d) constitutes an emission
standard, as posited by defendant, is a jurisdictional fact which
this Court is entitled to consider. If it is deemed a standard, that
line of inquiry terminates. If, on the other hand, it is not a
standard, then this Court may proceed to adjudicate defendant's
two remaining chalienges.
Secondly, the fact that this Court ordinarily has jurisdiction to
hear claims of this type is beyond dispute. Equally apparent is
the substantial prejudice defendant will suffer if denied an oppor-
tunity to raise its defenses to a criminal indictment."* Therefore,
this Court cannot, in good conscience, assent to a withdrawal of
its jurisdiction without a showing of “‘clear and convincing
evidence’ of a contrary legislative intent.” (Abbott Laboratories
v. Gardner, 387 U. S. 136, 141 (1966); Jeffe, supra, at 336-
359; Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402,
410 (1970); City of Chicago v. U. S., 396 U. S. 162, 164
(1969); Rosado v. Wyman, 397 U. S. 397, 420 (1969).) That
is, the statutory scheme must present a virtually unequivocal
13. Defendant will have no legal recourse, since the thirty days
from date of promulgation have long since elapsed.
A23
intent to reserve the very issues at bar to the District of Columbia
Circuit. It is in that respect that the statute, and its case law
progeny, are most noticeably deficient.
The threshold question, vigorously argued by the parties, is
the manner in which defendant's claim should properly be charac-
terized. Defendant views its argument strictly as a challenge to
the indictment, which does not require the Court to “review * * *
action in promulgating” and, therefore, does not invoke the
strictures of § 1857h-5. The government formulates the chal-
lenge as one to regulation, which would be precluded by
§ 1857h-S. The Court need not decide the question,"* since it
finds that under either theory, its jurisdiction has not been clearly
and convincingly withheld.
Were the Court to view the controversy solely as an attack on
the sufficiency of the indictment, as defendant urges, it would
clearly not be confronted with the problem of reviewing action
in promulgating, as provided in § 1857h-5. Rather, its attention
would be directed to scrutiny of the terms of the indictment, by
standards developed specifically for that purpose. Therefore, the
effect of § 1857h-5 would most certainly be avoided.
Alternatively, the Court may analyze the argument as
presenting interwoven challenges to the indictment and regula-
tion. That particular course acknowledges that in order to deter-
mine the validity of the indictment, there must be reference to the
regulation. However, it also refuses to overlook the fact
that defendant's challenge is, ultimately, one to the indictment.
Such a view is adjusted to the precise nature of defendant's
argument, which questions not only the vitality of the regulation
within the statutory framework, but also the ability of the
government to charge defendant with commission of a crime
based on the regulation."
14. However, defendant’s characterization as a challenge to the
indictment, if accepted, would effectively circumvent the statute.
15. In that sense, this 1s different from Dore
Wrecking Co. v. Fri, 73-1 (D. C. Cir. 1973), which the govern-
(Continued on next page)
Administrator in promulgating” shall be “reviewed” in the
District of Columbia Circuit within thirty days. Furthermore,
actions susceptible to District of Columbia Circuit review “shall
not be subject to judicial review in * * * criminal proceedings
for enforcement.” The Act nowhere delimits “action in promul-
gating.” “review,” or “proceedings.” Therefore, it is impossible
to ascertain, with any degree of certainty, the operative scope
of the statute. If, for instance, “proceedings” applies only to the
trial, the section would only foreclose selected defenses on the
fai
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A25
Furthermore, defendant's claim involves scrutiny not only of
what might arguably be considered “action in promulgating an
emission standard,”** but also of the indictment. It not only
entails application of a standard of review which might be
available to the District of Columbia Circuit,"* but also one
which clearly was not. Defendant was not charged with viola-
tion of the statute until well after the thirty-day time period
had elapsed. Therefore, the type of review it now seeks, an
analysis to determine whether the regulation constitutes a crime,
was not obtainable in the District of Columbia Circuit, and
remains open to this Court (Granite City Steel Co. v. EPA,
501 F. 2d 925, 928 (7th Cir. 1974)). Thus, viewing defend-
ant’s claim as intermingling challenges to the indictment and
regulation necessitates the conclusion, in light of the undefined
statutory ambit, that this Court must retain jurisdiction.
However, even were this Court to adopt the government's
view that the defendant presents only a challenge to the regula-
tion, it does not find sufficient indication in § 1857h-5 to pre-
clude its consideration of the claim. According to the govern-
ment’s hypothesis, the proper analysis requires isolation of
defendant's challege to the regulation from its challenge to the
indictment. Thus, it urges consideration only of defendant's
argument that § 61.22(d) is not a standard within the meaning
of § 1857c-7, in determining whether the jurisdictional limits
of § 1857h-5 pertain. The government asserts that the defend-
ant’s “no standard” argument involves review of the Admin-
istrator’s action in promulgating 40 C. F. R. § 61.22(d), as
identified by § 1857h-5. Therefore, it concludes that this Court
lacks jurisdiction to entertain the argument, despite the fact
that it is raised in the context of the sufficiency of the indictment.
This Court has attempted, without success, to define the
scope of § 1857h-5. The statute, by its terms, restricts review
in the District of Columbia Circuit to “action of the Admin-
18. Although in the opinion of this Court, it does not.
19. That position is tenuous at best. See discussion, infra.
A26
istrator in promulgating * * * any emission standard under
Section 1857c-7 of this title.” Yet, nowhere does the statute or
legislative history outline the meaning of “action in promul-
gating.” The term itself connotes procedural action, although
cases have, without explanation of the question, simply assumed
review of substantive decisions of the agency.” If Congress
intended only that agency procedures be reviewed within thirty
days, the instant claim may clearly proceed.
In addition, “action in promulgating’ appears to be distinct
from, and precedent to, the promulgated regulations.’ Yet there
are no articulated guidelines which the Court may use to
employ the distinction. Thus, in the instant case, it is difficult to
understand whether defendant's initial challenge to the regula-
tion, which does not directly attack the efficacy of the Admin-
istrator’s action,” should be deemed a challenge to “action in
promulgating.” It is more nearly an attack on the “promulgated
regulation,” which requires the Court to evalu’te that regulation
in light of the statutory scheme.
Furthermore, there is no elucidation of the scope of “review”
envisioned by § 1857h-5, which provides, inter alia:
“(b)(1) A petition for review * * * may be filed only in
the District of Columbia Circuit * * *”
Subsection (b)(2) continues:
“Action of the Administrator with respect to which review
could have been obtained under paragraph one shall not
subject to judicial review in civil or criminal proceedings
for enforcement.” (Emphasis added).
20. See, e.g., Granite City Steel, supra, Commonwealth Pa.
v. EPA, 500 F'2d 246 (3rd Cir. 1974) for review of substantive
considerations; Appalachia Power Co. v. EPA, 481 F. 2d 1 (3rd
Cir. 1973) for review of hearing procedures.
21. It is instructive to note that the Senate version of the Bill
was geared to review of “the ulgated ion.” Senate Bill
was 4350, Sec. 308, at 116 Rec. 15 (Sept. 17, 1970).
22. As does, for instance, defendant's next argument dealing
with the scope of the Administrator’s authority.
— ee
A27
Thus, only the type of review available in the District of
Columbia Circuit is now foreclosed to defendant. The critical
question is whether the review sought herein could have been
obtained under (b)(1). Specifically, the Court must define the
applicable scope of review under § 1857h-5. If the District of
Columbia Circuit inquiry is restricted to questions other than
those at bar, then defendant was never afforded an opportunity
for judicial review. Consequently, it may seek that review in
the instant proceeding. (Granite City Steel Co. v. EPA, supra,
at 928. [sic]
Unhappily, the statute fails to set forth the standard of re-
view which the District of Columbia Circuit is to utilize. A
review of case authority not only illustrates, but compounds
the problems generated by statutory omission.” In the absence
of statutory direction as to the scope of review, courts have
looked to Citizens to Preserve Overton Park v. Volpe, supra.
(See, e.g. State of Texas v. EPA, 499 F. 2d 289, 296 (Sth Cir.
1974); Appalachia Power, supra, at 505).
In Overton Park, the Supreme Court was confronted with
a claim that the Secretary of Transportation had violated
statutes which permitted authorization of federal funds to fi-
nance highway construction through public parks if a “feasible
and prudent” alternative route did not exist, in which case he
was directed to engage in “all possible planning to minimize
harm.” The petitioners challenged the construction of a high-
way, asserting that feasible and prudent routes did in fact
exist, and that the plan did not, in any event, minimize harm. In
the absence of statutory statement on the scope of review,
the Court turned to § 706 of the APA, which provides that “a
reviewing court shall * * * hold unlawful and set aside agency
23. The discussion which follows is not intended to delineate
what this court sees as the scope of review. Rather, it is
intended to yr the ion attendant upon the operation of
§ 1857h-S. It is that confusion which this court finds determinative,
in light of the fact that jurisdiction must be clearly and convincingly
withdrawn.
A28
action, findings, and conclusions found not to meet six sepa-
rate standards,” (at 413) namely:
“To the extent necessary to decision and when presented,
the reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and
determine the meaning of applicability of the terms of an
agency action. The reviewing court shall - -
“(2) hold unlawful and set aside agency action, findings,
and conclusions found to be - -
“(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
“(B) contrary to constitutional right, power, privilege,
or immunity;
“(C) in excess of statutory jurisdiction, authority, or limi-
tations, or short of statutory right;
“(D) without observance of procedure required by law;
“(E) unsupported by substantial evidence in a case sub-
ject to sections 556 and 557 of this title or otherwise re-
viewed on the record of an agency hearing provided by
statute; or
“(F) unwarranted by the facts to the extent that the facts
are subject to trial de novo by the reviewing court.”
The Court continued:
“In all cases, agency action must be set aside if the ac-
tion was ‘arbitrary and capricious’ * * * or if the action
failed to meet statutory, procedural, or constitutional re-
quirement. 5 U.S.C. § 706(2)(A), (B), (C), (D). (at
414). * * * In certain narrow, specifically limited situa-
tions, the agency action is to be set aside if the action was
not supported by ‘substantial evidence.’
“And, in other equally narrow circumstances, the review-
ing court is to engage in a de novo review * * * 5 U.S.C.
§ 706(2)(E)(F) * * *
“Review under the substantial evidence test is authorized
only when the agency action is taken pursuant to a rule-
A29
7 provision of the APA itself, 5 U.S.C. § 553. (at
* ” . > a
“De novo review * * * is authorized when the action is
adjudicatory in nature * * * (or) when issues were not
before the agency (at 415).”
Concluding that there was no exercise of a rule-making func-
tion and that de novo review was unwarranted, the Court pro-
ceeded to consider three of the remaining standards: |
“* * * the generally applicable standards of § 706 require
the reviewing court to engage in a substantial inquiry * * *
“The court is first required to decide whether the Secretary
acted within the scope of his authority * * *
“Section 706(2)(A) requires a finding that the actual
choice made was not arbitrary * * *. The final inquiry is
whether the Secretary's action followed the necessary pro-
cedural requirements. (415-17).”
Thus, the Court surveyed the entire spectrum of potential stand-
ards of review, eliminated those which were inapposite, and
applied the remainder, that is, the latter three, i.e., scope of
authority, arbitrary and capricious, and procedure.
Some courts have adverted to the three Overton standards of
review within the context of the Clean Air Act and, specifically,
§ 1857h-5. (State of Texas, supra, at 296; Appalachia Power
Co., supra, at 505). However, their analyses are not altogether
helpful. In the first place, the statute in Overton Park, unlike
the statute at bar, does not provide a bifurcated system of re-
view. Therefore, the Overton approach offers only analogous
guidance as to the proper scope of review when one form of
review is temporarily restricted, and the othér consists of crimi-
nal enforcement. Secondly, the Court in Overton Park did
not decide, as courts seem to have subsequently presumed, that
only three types of review are available when a statute is silent
on the subject. Rather, Overton simply scanned the panoply
of review and selected the three it found appropriate to the
A30
case then under consideration. For instance, Overton Park ex-
plicitly stated that unconstitutionality was a potential standard,
but did not discuss it further because the claim did not so re-
quire.
The confusion is exacerbated when comparing the analyses
on standards of review of State of Texas, Appalachia Power,
Buckeye Power, and Getty Oil with Delaware Citizens for
Clean Air v. EPA, 480 F. 2d 972, 975-6 (3rd Cir. 1973);
Commonwealth of Pa. v. EPA, 500 F. 2d 246, 250 (3rd Cir.
1974); Friends of the Earth v. USEPA, 499 F. 2d 1118, 1123
(2nd Cir. 1974); Nat. Res. Def. C. v. EPA, 478 F. 2d 875,
881 (1st Cir. 1973); Buckeye Power, supra, at 171.
Thus, the only definite conclusion which this Court can draw
from an analysis of the case law is that the operative scope of
the statute is undefined. The language itself provides no guid-
ance; the ensuing case law reflects and intensifies, rather than
clarifies, the statutory ambiguity. That portion of the precedent
which indicates that review in the District of Columbia Circuit
is limited to the question of whether the agency action is “ar-
bitrary and capricious” would tend to support this Court's
jurisdiction. However, even if this Court were to ignore those
decisions, it would be persuaded by the great uncertainty and
inconsistency resulting from judicial attempts to define § 1857h-
5 that Congress has not evinced a clear purpose to bar the
instant judicial review.
Furthermore, Congress has not clearly and convincingly with-
drawn jurisdiction of the type of issue here presented. Defend-
ant’s argument questions the existence of a viable regulation; it
seeks a determination that the regulation in question does not
comply with the legal requirements envisioned by Congress
and embodied by the Act. That type of inquiry is quite different
from that engaged in by the courts under § 1857h-5, as illus-
trated by several of the cases cited by the government. In
Getty Oil Co. v. Ruckelshaus, 467 F. 2d 349 (3rd Cir. 1972),
plaintiff challenged a regulation as unnecessary because the
A31
national primary standard had been met, and as burdensome in
that it imposed undue economic hardship. In Granite City Steel,
supra, the regulation was challenged on the ground that it con-
tained an unreasonable attainment date.** Thus, the challenges
in the cases relied upon by the government have questioned the
judgmental aspects of the Administrator’s decisions: the fea-
sibility, cost, or adequacy of a given regulation,™ or in other
terms, those courts were asked to assess the wisdom, rather
than the legality of regulations.** The inquiry was, therefore,
24. For treatment of similar issues see Delaware Citizens for
Clean “iy v. fe wp 480 F. 2d 972 (3rd Cir. 1972), (adequacy
of plan t level); International Harvester Co. Vv.
Tun todhone, “478 . 2d 615 (D. C. Cir. 1973) (availability of
technology); State of Texas, supra (cost factors, wisdom of meth-
ods); Friends of the Earth v. USEPA, 499 F. 2d 1118 (2nd Cir.
1974) (impact of mass transit and parking); Duquesne Light Co.,
supra (reasonableness of plan); Commonwealth of Pa. v. EPA,
supra (whether air bleed retrofit is practicable method for
standard); Nat. Res. ~- .. Inc. Vv. —a 483 F. 2d
690 (8th Cir. 1973) (degree of intergovernmental cooperation
required); Portland Cement Assoc. V. wRathelshaus, 486 F. 2d 375
(D. C. Cir. 1973) (cost, ae Wg Essex Chemical Corp. Vv.
Ruckelshaus, 486 F. 2d 427 (D. C. Cir. 1973) (achievability,
adequate demonstration of standard).
The bulks of the remainder of cases deal with review of ministerial
closely approximates the one at bar is Nat Res. Def. Co., Inc. v.
EPA, F. 2d 390 (Sth Cir. 1974) rev'd. 43 LW 4467. One of the
in that case was the meaning of the language in § 1857c-S(a)
(2)(B). The court, on a petition under § 1857h-5, found, after re-
view of pertinent statutory sections, that “emission limitations and
26. The offers Dore Wrecking Co. v. Fri, 73-1686
(D. C. Cir. 1 73), for the proposition that the instant issue is within
One, [ecetece fled 2 mation for stay ponding seviow expuing tat
A32
into areas of agency discretion and expertise on the subject of
pollution. In contrast, the question at bar, which concerns the
legal definition of “standard,” may not be classified as requir-
ing a judgment peculiarly within the agency’s competence. It
is fundamentally legislative and judicial in nature, does not
involve the agency’s expertise, and does not require merely an
exercise of administrative discretion. Therefore, it does not
appear to be the type of issue which Congress reserved to the
District of Columbia Circuit.
That conclusion finds support in both the judicial and legisla-
tive arenas. Courts, although in disagreement in the apposite
standards of review, have been unanimous in defining their role
in the application of those standards:
“In subjecting the Administrator’s actions to judicial review,
we apply a test of reasonableness, wherein we are not
empowered to substitute (our) judgment for that of the
agency.” (Emphasis added). (Essex Chemical, supra, at
431. See also Portland Cement, supra, at 426; Friends of
the Earth, supra, at 1123; Del. Cit. for Cl. A., supra,
at 976.
(Continued from preceding page)
which was dismissed as moot. uapenennes motion to the
petition for review was granted, oon aang Gant was
“No exigent circumstances * * * excusing petitioner’s failure to file
a timely petition for review.” Aside from cryptic nature onan te
order, ~ 2S ee Se De rcie holding and it
tial value, issue is distinguish in it
tha
the authority of the Administrator. This Court is not reachin
issue, basing its conclusion instead on defendant’s “no standard
theory. Thus, the instant issue does not involve scrutiny of the
certain regulation is within the authority of the Administrator to
server ell ‘achievable systems (see Essex Chemical, supra), it is
ability” wy ot Saye
pertise and discretion. it then makes lite difercace which ruttic «
A33
Review which simply tests the reasonableness of the agency's
action and accords it a high degree of deference is clearly appro-
priate to judge the wisdom of a regulation. It is not, however,
effective in analyzing issues such as the one at bar. Thus, it is
fair to conclude that the operation of § 1857h-5, as reflected in
the review methodology of the Circuit Courts, is tailored to ques-
tions involving the expertise and discretion of the agency.”*
In addition, there is no definitive legislative pronouncement
which clarifies the scope of § 1857h-5. This Court has searched
the history of the statute for such indicators without success.
The paucity of explicit congressional elaboration, in combination
with the observation that the vast preponderance of the chal-
lenges under § 1857h-5 have been to the wisdom of the regula-
tion, underscores the failure of Congress to consider the possi-
bility of issues such as the one at bar. Congressional failure to
define the term “emission standard” further evidences the lack of
conscious consideration afforded the instant issue.* Simply,
Congress, in enacting the section, contemplated only the ques-
tions exemplified by Getty Oil and Granite City Steel; it did not
anticipate problems such as those involved in defining “emission
standard.” Therefore, Congress, cognizant only of former types
of litigation, quite sensibly restricted access to the courts on
those issues. It did not, however, explicitly preclude review of
the issue at bar.
An examination of § 1857h-5 to determine whether it pre-
empts defendant’s challenge has convinced this Court that its
scope is, at best, highly ambiguous.*® In view of the lack of
28. Thus, even were the court to adopt the full range of review
suggested in Overton Park, supra, it wouid not eliminate the instant
case from its jurisdiction, since those standards of review have not
being geared to the instant type of inquiry.
29. Thus, although the legislative history is replete with reference
to control of pollution, it nowhere explains the exact mechanism for
control. See 3 U. S. Code Cong. & Adm. News, 5356 (91st Cong.
21 Sess. 1970).
30. This court is aware of its responsibility to interpret the
statute, but it is unable to do so with any degree of ease. Therefore,
it chooses to resolve doubts in favor of jurisdiction.
A34
clarity which reflects the Congressional failure to explicitly incor-
porate the instant issue within the ambit of § 1857h-5, this Court
is compelled to conclude that the present claim has not been
clearly and convincingly removed from its jurisdiction. Accord-
ingly, this Court will retain jurisdiction over defendant's con-
tention that 40 C. F. R. § 61.22(d) is not a standard, and will
proceed to the merits of that argument.
IV.
Defendant, Adamo Wrecking Company, is charged in an
indictment with violating 42 U. S. C. § 1857c-7, which provides,
inter alia:
“(C)(1) after the effective date of any emission standard
under this section - -
* 2 e ° @
“(B) no air pollutant to which such standard applies may
be emitted from any stationary source in violation of such
standard * * *” (Emphasis added).
Thus, the crime consists of a prohibited emission of asbestos, in
violation of an emission standard.
Section 1857(b)(1)(B) authorizes the promulgation of an
emission standard:
“(b)(1)(B) * * * the Administrator shall prescribe an
emission standard for such pollutant * * *”
Pursuant to that mandate, the Administrator promulgated the
regulation codified in 40 C, F. R. § 61.22(d), subdivision (2) (i)
of which specifically provides:
“Friable asbestos materials, used to insulate or fireproof
wy boiler, pipe, or load-supporting structural member, shall
be wetted and removed from any building * * * before
wrecking of a load-supporting structural member is
commenced.”
The indictment alleges emission in violation of the regulation,
by alleging that defendant “did knowingly cause the emission of
A35
asbestos * * * by failing to wet and remove * * * asbestos
material * * * before demolition had begun.” Defendant con-
tests the sufficiency of both counts of the indictment, contending
that it fails to charge an essential element of the offense, to-wit:
an emission in violation of a standard. More specifically,
defendant argues that the allegation in the indictment charging
defendant with a failure to wet and remc”’e asbestos, though a
paraphrase of the promulgated regulation, fails to state that
defendant violated a standard because the regulation is not a
“standard” within the contemplation of the Act. An “emission
standard,” defendant argues, must establish a set, measurable
level of emission. Since the instant regulation merely prescribes
a methodology for emission control, namely, the “wet and
remove” procedure, it is not a “standard,” and cannot furnish
the basis upon which to allege violation of a standard. Thus, it is
asserted, the indictment is incurably defective, and must fall.
Careful consideration of defendant's argument prompts this
Court to adopt its analysis." The regulation provides a procedure
for the reduction of emissions; it requires that “friable asbestos
materials” be “wetted and removed” prior to demolition. A
review of the administrative history reveals that the Adminis-
trator published a proposed emission standard for asbestos,
which prohibited visible emissions (36 FR 23931). In response
to criticism of that proposal, and with the awareness of the
difficulty of measuring airborne asbestos,"* the EPA promulgated
what it classifies as a “work practice”:
“The proposed standard would have prohibited visible
emissions of asbestos * * *. Comments indicated that the no
visible emissions requirement would prohibit repair and
demolition in many situations * * *. Accordingly, the
promulgated standard specifies certain work practices which
31. However, this court discerns it as a challenge only to Count
I, and can see no bearing on Count II.
2. 38 FR 8821 et seq; see also Background Information on the
: of National Emissions, Standards for Hazardous Air
Pollutants, pp. 23-26.
A36
must be followed when demolishing certain buildings and
structures.” (38 FR 8821 (1973)).*
The question before this Court, then, is whether the statutory
term “emissions standard” is intended to encompass a “work
practice,” or whether it refers only to specification of a level of
emission. The statute, unhappily, does not define the term. How-
ever, a review of the legislation convinces this Court that the
narrower construction must prevail.
The plain meaning of the words, which the Court should not
overlook (Bouie v. City of Columbia, 378 U. S. 347 (1964))
connotes a rate or quantity,* and at least several courts have
been of that opinion.* In addition, § 1857c-7(b)(1)(B) directs
that the “Adminisirator shall prescribe an emission standard
* * * at the level at which in his judgment provides an ample
margin of safety.” (Emphasis supplied). Thus, the implication
that a standard is to specify a level is unmistakable. It is rein-
margin of safety to assure public health protection” (3 U. S.
Code Cong. & Adm. News 5379 (Emphasis supplied)). The
an ee ee SS Be © Cals Peek, ee
35. In the Illinois cases, cited in footnote 9, supra, the courts
gpa that they felt SS oa A a standard.
government's assertions to contrary conclusions
of Judge Decker, in National Wrecking at 3 and 4, wherein he
states: “The Administrator promulgated of control without
specifying emission standards * * *.” Similarly, Judge Bauer, in
Harvey Wrecking, supports that conclusion at p. 4 of that opinion
A37
strated.” (Emphasis added). +
A “standard of performance” is an emission standard which
reflects a feasible degree of limitation. Thus, it is clear that one
type of emission standard must express a degree of limitation,
that is, a measurable level. Importantly, § 1857c-6 does not
require a standard of performance to reflect the best system
demonstrated, but to reflect the degree of limitation which that
system permits. A review of the standards promulgated pursuant
to § 1857c-7 confirms that interpretation. (40 C. F. R. § 60.1
et seq.).
Furthermore, the high degree of identity between a “standard
of performance” (§ 1857c-6) and an “emission standard”
(§ 1857c-7), suggests that both must be expressed in terms of
levels. An emission standard generally applies to ultra-hazardous
pollutants from new or existing sources, whereas a standard of
performance applies to new stationary sources. However, under
§ 1857c-6(d)(1) an “emission standard” is to be promulgated
for existing sources which would require a “standard of per-
formance” if new. The sources are identical; the only difference
is their age. Therefore, the two types of regulations are also
intended to be identical, in the manner in which they specify
control. The identity is also indicated in the legislative history.
which explains that emission standards are to be developed
in both instances:
“The legislation, therefore, grants authority * * * to
establish emission standards for any (new or ultra-hazard-
ous) sources * * * which constitute new sources of sub-
stantially increased pollution.” (3 U. S. Code Cong.
& Adm. News 5361, 91st Cong. 2d Sess. 1970).
Thus, it appears that an “emission standard,” like a “standard
of performance” must reflect a level of emission.
Furthermore, the intent to require a level is apparent from
the development of the Act. The Senate version completely
prohibited emissions of hazardous pollutants, unless the Admin-
A38
istrator could determine that limited amounts of such pollutants
did not present a danger,” in which case he was directed to
promulgate an “emission standard.” The provision was explained
as follows:
“The Secretary establishes emission controls through the
ee eee ieee
such prohibitions unless he determines that a
from a zero emission * * * will not jeopardize health * * *
whereupon he promulgates an emission standard prescribing
the permissible level of emission for such pollution agents.”
(116 Cong. Rec. 16256). (Emphasis added).
Thus, it is clear that from the inception of the Act, the term
“emission standard” was intended to connote a level of emission.
In addition, since both emission standards and standards of
performance are means of “reflecting degree of emission limita-
tion,” an emission standard is a type of emission limitation.
The Supreme Court describes an emission limitation as:
“regulation(s) of the composition of substances emitted
into the ambient air from sources * * *.” (Train v. Nat.
Res. Def. Council, Inc., 43 LW 4467, 4472 (1975)).
In a letter of March 22, 1974, the Administrator of the EPA,
Russell Train, suggested, with direct reference to the regulation
in issue, that “emission limitation” does indeed refer to quanti-
fication:
“We are requesting Congressional affirmation of our
authority to set design, equipment, or practice standards
under those sections where the limitations of measurement
technology make an emission limitation approach infeasible
or impractical.”
That is an obvious acknowledgment that the disputed regulation
does not follow the emission limitation approach because it is
unfeasible to promulgate a numerical standard. Nat. Res. Def.
Council, Inc. v. EPA, 489 F. 2d 390 (8th Cir. 1974), revd
36. See S. Bill 4358, Sec. 115, at 116 yy 15000 (Sept.
17, 1970), and explanation at 3 U. S. Code & Adm. News
5378-9.
A39
other grounds, 43 LW 4467, equates “emission limitation” with
“emission standard.” There, the court considered the meaning
of § 1857c-5(a)(2)(B), which requires, “emission limitations
and such other measures as may be necessary.” The court con-
cluded that § 1857c-5(a)(2)(B) required emission standards
unless such standards are unfeasible.*’ Thus, the conclusion that
an emission limitation, of which a standard is a subcategory,
requires a level is not unreasonable. The EPA has admitted that
it has proven impracticable to follow the emission limitation
approach. This is tantamount to an admission that the mandate
of the statute was not followed.
Furthermore, § 1857c-5(a)(2)(B) is instructive in that it
illustrates an instance in which Congress, intending to provide
for options other than emission standards, in exigent circum-
stances, did so explicitly. The negative inference as applied
to § 1857c-7 is certainly proper.
Support for this Court’s construction of “emission standard”
may be found in other sections of the Act. Thus, § 1857c-4
directs promulgation of “national primary and secondary am-
bient air quality standards.” Section 1857c-4(b)(1) provides:
“National primary * * * standards * * * shall be ambient
air quality standards * * * allowing an adequate margin of
public health.”
The language is highly reminiscent of § 1857c-7: all standards
promulgated thereunder contain levels. (See 40 C. F. R. 50.4,
50.6, 50.8, 50.9, 50.10, 50.11).*
37. See also EPA Staff Paper, 119 Cong. Rec. 10955-56 to the
same
38. The government contended, on oral argument, that an
mS ., b.,—~ BAF. -— BF -
latter mrsasusee eldbomne concenteations while Go faunas ie, Geustes
A40
Similarly, § 1857c-5(b)(2) requires that national secondary
standards “shall specify a level of air quality.” The regulations
do so specify (40 C. F. R. 50.5, 50.7). Emission standards for
moving sources, under § 1857f-1, must also specify a level
which requires “a reduction of at least 90% per centum from
emissions * * *.” All promulgated regulations under that section
also contain levels. (40 C. F. R. 85.1 et seq.).
Finally, the statutory pattern appears to approach the problem
of emissions via two avenues: measureable standards, and pro-
cedures for implementing them. Each approach is distinct. In
§ 1857c-7, in addition to prescribing a standard, the Admin-
istrator must also issue “information on pollution control
techniques.” (§ 1857c-7(b)(1)(B)(2)). The President may
exempt a source “if he finds that the technology to implement
such standards is not available.” Section 1857c-6(b) (1) (B) (3)
directs publication of information on control techniques for
sources subject to standards of performance. Under Section
1857c-6(d)(1), the Administrator “establishes emission stand-
ards,” and “provides for the implementation” thereof. Under
§ 1857f-1(b)(1)(B)(4), the Administrator is to report to
Congress “with respect to the development of systems necessary
to implement the emission standards established pursuant to
this section.” Thus, Congress was clearly separating standards
from methods of control. That separation supports the conclu-
sion that the instant regulation is not a standard.
Importantly, there appear to be no persuasive arguments in
support of the government’s position. It claims that the regula-
tion is an emission standard because, emissions from asbestos
are harmful, measurement of such emissions is impractical, and
therefore a work practice is in order. (See 38 FR 8820,
(April 6, 1973); Background Information, supra).
It butiresses that argument” with reference to 42 USC
§$1857(b) (1) which announces that the purpose of the Act is to
39. The government relies also upon Dore Wrecking v. Fri,
= However, the holding there — = be only that, a
ing no exigent circumstances presented in case excusing peti-
tioner’s failure to file a timely petition for review.”
A4l
“protect and enhance the quality of the nation’s air * * *;” and
to 42 USC § 1857g(a) which provides:
“The Administrator is authorized to prescribe such regula-
tions as are necessary to carry out his functions under this
chapter.”
The government argues that the general purpose of the Act as
well as the broad power delegated to the Administrator justify
an expansive reading of the term “emission standard.” This
Court finds the contentions to be untenable. Congress did indeed
propose to protect the environment. However, it chose to effec-
tuate its purpose by means of standards which set permissible
levels of emission. Furthermore, acceptance of the suggested
impact of § 1857(g)(a) upon promulgation of a standard
would effectively bypass the parameters set forth by Congress by
affording the agency an opportunity to redefine them.“
Thus, the government's argument essentially asks this Court
to uphold § 61.22(d) because it has found that asbestos is harm-
ful and not easily susceptible to measurement. While this Court
is fully convinced that the Administrator has appropriately
characterized asbestos emissions, it cannot allow subsequently
discovered exigencies to modify the statutory framework. There
is absolutely no indication that Congress knew or anticipated
the type of problem which prompted promulgation of the work
practice.** Nor is there any statutory language or history to
support a broad interpretation.*® Therefore, the proper corrective
is an amendment to the Act.”
40. Therefore, this Court concludes that § 1857(g) refers to
auxiliary regulations, and does not authorize expansion of existing
guidelines. Accordingly, § 61.22(d) may be duly authorized, but it
is not a standard.
41. Those findings first appear in the Administrative hearings.
42. All such evidence is to the contrary.
43. Importantly, such an amendment has been suggested. 42
USC § 1857c-7(b)(1)(B) would read: “If the Administrator
determines that technological or economic limitations on applica-
tion of measurement methodology to particular class of sources
(Continued on next page)
A42
The government seeks to reinforce its position by application
of two principles of construction: deference to agency interpre-
tation and liberal construction of criminal .zgulatory statutes.
Specifically, the government asks this Court to defer to the EPA
interpretation of emission standard,** and to accord the term a
“liberal” construction.” This Court cannot, however, abide by
either principle.
Deference to this administrative interpretation would re-
quire the Court to accede to the view that “standard” incor-
porates “work practice” simply because the EPA says it does.
In attempting to substitute its judgment for that of Congress,
it is asking the Court to do by indirection what the Court has
declined to do forthrightly.**
Further, am agency interpretation is not deserving of auto-
matic deference; it must be reasonable, supportable and con-
sistent.’ Otherwise, deference becomes obedience to adminis-
trative fiat.
Finally, the cases cited by the government are distinguishable
from the one at bar in two important particulars. First, none
are in a criminal setting. Therefore, none can be said to stand
(Continued from preceding page)
would make the tion of emission standard infeasible, he
instead prescribe a ett ee
ment is requested by the EPA.
44. The government cites Udall v. Fullman, 380 U. S. 16
(1965); Northway Lanes v. Hackley Union Nat. Bank & ©.
Co., 464 F. 2d 855 (6th Cir. 1972).
45. The government cites U. S. v. Kordell, 164 F. 2d 913 (7th
Cir. 1947), aff'd. 335 U. S. 345 (1948).
defines the contours of gency action, the agency merely suppl
defines the contours of merely supplies
the details. See, e.g. U.S v" Shreveport Grain & Elevator, 287
U. S. 77 (1932); Kent v. 357 U. S. 116, 128 (1957),
Yakus v. U. S., 321 U. §. 414, 423, 426.
47. even the Administrator's pronounce-
pee Soe tee Saeeee, Se tS kee & lem 22, 1974,
A43
for the proposition that an agency definition of an element of
a crime is to receive deference. Such definitions are manifestly
judicial in nature; agencies have no special expertise in the area
which would require deference. Secondly, none deal with a sta-
tute in which the agency interpretation, in effect, defines its
own authority to act. Deference to an agency in that area would
encourage and shield enlargement of agency functions beyond
their statutory scope. Therefore, the principle of deference is
not compelling.
With regard to plaintiffs argument for a liberal construc-
tion of the term “emission standard,” to include “work prac-
tice” the Court is equally unimpressed. In the first place, this
Court remains skeptical of plaintiff's assertion that a “liberal
construction” is appropriate.** However, even assuming its ap-
plicability for the sake of argument, it would be tantamount to
ignoring the Congressional intent in favor of the agency view-
point. Such a result is clearly not required by the policies of
liberal construction.
Furthermore, even a liberal statutory construction must be
within the parameters envisioned by Congress and dictated by
common sense. As the Supreme Court opined in Kordel v.
U. S., 335 U. S. 345, 349 (1948):
“A criminal law is not to be read expansively to include
what is not plainly embraced within the language of the
statute * * *. But there is no canon against using common
sense in reading a criminal law, so that strained and tech-
nical constructions do not defeat its purpose by creating
exceptions from or loopholes to it.”
Since the rule of reasonableness must always temper statutory
construction, this Court cannot permit expansion of the term
“emission standard” beyond its statutory and sensible meaning.
The statute seeks to control pollution by means of emission
standards. As one court has explained:
delegations islative authority are generall
My ty -y A Ss eandd be eine Oo Samant
them narrowly.
A44
“* * © we find that * * * Congress intended * * * to re-
quire maximum use of emission standards. Some sections
show a general preference on the part of Congress for emis-
sion standards; * * *.
The sections exhibiting Congress’ preference for emission
standards are sections 1857c-6(a)(1) and 1857c-7(b)
(1) (B). Those sections provide, respectively, for the estab-
lishment of federal emission standards for new sources (sec-
tion 1857c-6(a)(1)) and for emission of hazardous air
pollutants (section 1857c-7(b)(1)(B)). Both sections
make clear that the Administrator is to establish emission
standards; they do not contemplate control of pollution
from new sources or of hazardous pollutants by dispersion
techniques, or by any other techniques besides emission
limitation.” (National Resources Def. Council, Inc. v.
EPA, 489 F.2d 390, 408-9 (Sth Cir. 1974), emphasis in
the original, reversed other grounds, 43 LW 4467; See
also EPA Staff Paper, supra, 119 Cong. Rec. at 10955
(daily ed, June 12, 1973).
It is clear, then, that the statutory approach to pollution control
requires an emission standard. That requirement cannot be al-
tered by general consideration of statutory objectives and prac-
tical obstacles. This Court is persuaded, in that regard, by the
reflections of the Supreme Court in U. S. v. Standard Oil Co.,
348 U. S. 224 (1965):
“This case comes to us at a time in the nation’s history
when there is greater concern than ever over pollution - -
* * * . The crisis that we face in this respect would not,
of course, warrant us in manufacturing offenses where
Congress has not acted or in stretching statutory language
in a criminal field to meet strange conditions.”
Accordingly, the Court finds, on the basis of defendant's first
argument, that Count I of the indictment must be dismissed.
V.
Defendant is charged in Count II of the indictment with
knowingly making a false statement, to wit: a representation
that a building did not contain friable asbestos, when it did; in
A45
violation of 42 U. S. C. 1857c-8(c)(2) and 40 C. F. R. § 61.22
(d)(1). Those sections provide, insofar as pertinent:
“Any person who knowingly makes any false statement in
any * * * document filed or required to be maintained
under this chapter, shall upon conviction be punished * * *.”
40 C. F. R. § 61.22(d) requires:
“Any Jwiier or operator * * * who intends to demolish anv
* * * building * * * which contains * * * friable asbestos
shall comply with the requirements set forth in this
paragraph.
(1) Written notice of intention to demolish shall be
provided * * *. Such notice shall include the following
information:
(i) name of owner or operator.
(ii) address of owner or operator.
(iii) description of the building, * * *.
(iv) address of building * * *.
(v) scheduled * * * dates of demolition * * *.
(vi) method of demolition * * *.
(vii) procedures to be employed * * *.”
Defendant challenges the indictment on two grounds: (1) that
§ 61.22(d) is improper; and (2) that the term “friable asbestos”
is impermissibly vague and therefore defendant could not have
knowingly perpetrated a falsehood.
Defendant first argues that the report in issue is not a report
“under this chapter” within the meaning of § 1857c-8(c)(2) in
that it is required by regulation rather than statute. That argu-
ment is without merit inasmuch as a regulation promulgated
pursuant to statutory authority is “under this chapter.”
Defendant next argues that § 61.22(d)(1) is not “under this
chapter” in that it is not properly promulgated pursuant to
§ 1859c-9, which provides:
“(a) For the purpose (i) of developing or assisting in the
development of * * * any emission standard under section
A46
1857c-7 of this title, (ii) of determining whether any
person is in violation of any such standard - -
(1) The Administrator may require the owner or operator
of any emission source to (A) establish and maintain such
records, (B) make such reports, (C) install, use, and main-
tain such monitoring equipment or methods, (D) sample
such emissions (in accordance with such methods, at such
locations, at such intervals, and in such manner as the
Administrator shall prescribe), and (E) provide such other
information as he may reasonably require; * * *.”
Defendant contends that since there is no “emission standard,”
the regulation in issue is not promulgated for the purposes
authorized, and that therefore it is inoperative. The argument
has undeniable appeal, especially as it relates to “determining
whether any person is in violation of any such standard,” which
assumes the existence of a standard. However, the regulation may
also have been promulgated “for the purpose of developing” a
standard, in which case, the existence of a viable standard is not
necessary. In the absence of any argument by the government on
that issue, this Court declines to reach a determination. It does
note, with some degree of concern, the inconsistency that results
from claiming the existence of a standard, and the simultaneous
need for a regulation to aid in the development of one.
Defendant also contends that the term “friable asbestos” is
vague, and that therefore there can be no knowingly false state-
ment. The government counters, quite appropriately, that vague-
ness is to be measured by practice within the trade. Since the
Court has been presented with no evidence as to its meaning, it
will defer its decision as to jurisdiction and substance pending
presentation of the facts. Ac a threshold matter, it would seek
clarification of the precise charge against defendant. The nature
of defendant’s purported misstatement is unclear. If it simply did
not report the existence of friable asbestos, there appears to be
no violation of the statute, since § 61.22(d)(1) does not require
such information. If, as the indictment charges, defendant
affirmatively stated that there was no friable asbestos, there is a
A47
question as to whether the report was filed under § 61.22(d), as
the indictment charges. Section 61.22(d) requires notice by
owners of the demolition operation which involves friable
asbestos. The fact that defendant said that there was none indi-
cates that it may not have filed the report pursuant to that
section. In any event, the Court should inquire as to the precise
circumstances and statement involved.
Accordingly, this Court’s decision as to Count II is held in
abeyance, pending appropriate presentation of facts and legal
arguments.
IT IS SO ORDERED.
/s/ Purip PRATT
Philip Pratt
United States District Judge
Dated: June 6, 1975
Detroit, Michigan
A48
APPENDIX C.
Sec. 112.(a) For purposes of this section:
(1) The term ‘hazardous air pollutant’ means an air pollut-
ant to which no ambient air quality standard is applicable and
which in the judgment of the Administrator may cause, or con-
tribute to, an increase in mortality or an increase in serious ir-
reversible, or incapacitating reversible, illness.
(2) The term ‘new source’ means a stationary source the con-
struction or modification of which is commenced after the Ad-
ministrator proposes regulations under this section establishing
an emission standard which will be applicable to such source.
(3) The terms ‘stationary source’, ‘modification’, ‘owner or
operator’ and ‘existing source’ shall have the same meaning as
such terms have under section 111(a).
(b)(1)(A) The Administrator shall, within 90 days after the
date of enactment of the Clean Air Amendments of 1970, pub-
lish (and shall from time to time thereafter revise) a list which
includes each hazardous air pollutant for which he intends to
establish an emission standard under this section.
(B) Within 180 days after the inclusion of any air pollutant
in such list, the Administrator shall publish proposed regulations
establishing emission standards for such pollutant together with
a notice of a public hearing within thirty days. Not later than
180 days after such publication, the Administrator shall pre-
scribe an emission standard for such pollutant, unless he finds,
on the basis of information presented at such hearings, that such
pollutant clearly is not a hazardous air pollutant. The Adminis-
trator shall establish any such standard at the level which in his
judgment provides an ample margin of safety to protect the pub-
lic health from such hazardous air pollutant.
(C) Any emission standard established pursuant to this sec-
tion shall become effective upon promulgation.
A49
(2) The Administrator shall, from time to time, issue infor-
mation on pollution control techniques for air pollutants subject
to the provisions of this section.
(c)(1) After the effective date of any emission standard
under this section—
(A) no person may construct any new source or modify any
existing source which, in the Administrator's judgment, will emit
an air pollutant to which such standard applies unless the Ad-
ministrator finds that such source if properly operated will not
cause emissions in violation of such standard, and
(B) no air pollutant to which such standard applies may be
emitted from any stationary source in violation of such standard,
except that in the case of an existing source—
(i) such standard shal] not apply until 90 days after its effec-
tive date, and ;
(ii) the Administrator may grant a waiver permitting such
source a period of up to two years after the effective date of a
standard to comply with the standard, if he finds that such period
is necessary for the installation of controls and that steps will be
taken during the period of the waiver to assure that the health
of persons will be protected from imminent endangerment.
(2) The President may exempt any stationary source from
compliance with paragraphs (1) for a period of not more than
two years if he finds that the technology to implement such
standards is not available and the operation of such source is
required for reasons of national security. An exemption under
this paragraph may be extended for one or more additional peri-
ods, each period not to exceed two years. The President shall
make a report to Congress with respect to each exemption (or
extension thereof) made under this paragraph.
(d)(1) Each State may develop and submit to the Adminis-
trator a procedure for implementing and enforcing emission
standards for hazardous air pollutants for stationary sources
located in such State. If the Administrator finds the State pro-
ASO
cedure is adequate, he shall delegate to such State any authority
he has under this Act to implement and enforce such standards
(except with respect to stationary sources owned or operated by
the United States).
(2) Nothing in this subsection shall prohibit the Administra-
section.
Sec. 113(c)(1) Any person who knowingly—
(A) violates any requirement of an applicable implementa-
tion plan (i) during any period of Federally assumed enforce-
ment, (ii) more than 30 days after having been notified by the
Administrator under subsection (a)(1) that such person is
violating such requirement, or
(B) violates or fails or refuses to comply with any order
issued by the Administrator under subsection (a), or
(C) violates section 111(e), section 112(c) or section 119
(g) shall be punished by a fine of not more than $25,000 per
day of violation, or by imprisonment for not more than one
year, or by both. If the conviction is for a violation committed
after the first conviction of such person under this paragraph,
punishment shall be a fine of not more than $50,000 per day
of violation, or by imprisonment for not more than two years,
or by both.
[PL 93-319, June 24, 1974]
(2) Any person who knowingly makes any false statement,
representation, or certification in any application, record, re-
port, plan, or other document filed or required to be maintained
under this Act or who falsifies, tampers with, or knowingly ren-
ders inaccurate any monitoring device or method required to be
maintained under this Act, shall upon conviction, be punished
by a fine of not more than $10,000, or by imprisonment for not
more than six months, or by both.
AS1
Sec. 307(b)(1) A petition for review of action of the Ad-
ministrator in promulgating any national primary or secondary
ambient air quality standard, any emission standard under sec-
tion 112, any standard of performance under section 111; any
standard under section 202 (other than a standard required to be
prescribed under section 202(b)(1)), any determination under
section 202(b)(5), any control or prohibition under section
211, or any standard under section 231 may be filed only in
the United States Court of Appeals for the District of Columbia.
A petition for review of the Administrator's action in approving
or promulgating any implementation plan under section 110 or
section 111(d), or his action under section 119(c)(2)(A),
(B), or (C) or under regulations thereunder, may be filed only
in the United States Court of Appeals for the appropriate cir-
cuit. Any such petition shall be filed within 30 days from the
date of such promulgation, approval, or action or after such
date if such petition is vased solely on grounds arising after such
30th day.
[PL 93-319, June 24, 1974]
(2) Action of the Administrator with respect to which re-
~view could have been obtained under paragraph (1) shall not
be subject to judicial review in civil or criminal proceedings for
enforcement.
AS2
Subpart A—General Provisions
§ 61.01 Applicabitity.
The provisions of this part apply to the owner or operator of
any stationary source for which a standard is prescribed under
this part.
§ 61.02 Definitions.
As used in this part, all terms not defined herein shall have the
meaning given them in the act:
(a) “Act” means the Clean Air Act (42 U. S. C. 1857 et
seq.).
(b) “Administrator” means the Administrator of the En-
vironmental Protection Agency or his authorized representative.
(c) “Alternative method” means any method of sampling and
analyzing for an air pollutant which does not meet all of the
criteria for equivalency but which has been demonstrated to the
Administrator’s satisfaction to, in specific cases, produce results
adequate for his determination of compliance.
(d) “Commenced” means that an owner or operator has
undertaken a continuous program of construction or modifica-
tion or that an owner or operator has entered into a contractual
obligation to undertake and complete, within a reasonable time,
a continuous program of construction or modification.
(e) “Compliance schedule” means the date or dates by which
a source or category of sources is required to comply with the
standards of this part and with any steps toward such compli-
ance which are set forth in a waiver of compliance under
§ 61.11.
AS3
(f) “Construction” means fabrication, erection, or installa-
tion of a stationary source.
(g) “Effective date” is the date of promulgation in the FEep-
ERAL REGISTER of an applicable standard or other regulation
under this part.
(h) “Equivalent method” means any method of sampling and
analyzing for an air pollutant which has been demonstrated to
the Administrator’s satisfaction to have a consistent and quanti-
tatively known relationship to the reference method, under spe-
(i) “Existing source” means any stationary source which is
not a new source.
(j) “Modification” means any physical change in, or change
in the method of operation of, a stationary source which in-
creases the amount of any hazardous air pollutant emitted by
such source or which results in the emission of any hazardous
air pollutant not previously emitted, except that:
(1) Routine maintenance, repair, and replacement shall not
be considered physical changes, and
(2) The following shall not be considered a change in the
method of operation:
(i) An increase in the production rate, if such increase does
not exceed the operating design capacity of the stationary source;
(ii) An increase in hours of operation.
(k) “New source” means any stationary source, the construc-
tion or modification of which is commenced after the publication
in the FEDERAL REGISTER of proposed national emission stand-
ards for hazardous air pollutants which will be applicable to such
source.
(1) “Owner or operator” means any person who owns, leases,
operates, controls, or supervises a stationary source.
(m) “Reference method” means any method of sampling and
analyzing for an air pollutant, as described in appendix B to
this part.
A5S4
(n) “Startup” means the setting in operation of a stationary
source for any purpose.
(o) “Standard” means a national emission standard for a
hazardous air pollutant proposed or promulgated under this part.
(p) “Stationary source” means any building, structure, facil-
ity, or installation which emits or may emit any air pollutant
which has been designated as hazardous by the Administrator.
& e - s 6
Subpart B—National Emission Standard for Asbestos
§ 61.20 Applicability.
The provisions of this subpart are applicable to those sources
specified in § 61.22.
§ 61.21 Definitions.
Terms used in this subpart are defined in the act, in subpart
A of this part, or in this section as follows:
(a) “Asbestos” means actinolite, amosite, anthophyllite,
chrysotile, crocidolite, tremolite.
(b) “Asbestos material” means asbestos or any material con-
taining asbestos.
(c) “Particulate asbestos material” means finely divided
particles of asbestos material.
(d) “Asbestos tailings” means any solid waste product of
asbestos mining or milling operations which contains asbestos.
(e) “Outside air” means the air outside buildings and
structures.
(f) “Visible emissions” means any emissions which are
visually detectable without the aid of instruments and which
contain particulate asbestos material.
A5S5
§ 61.22 Emission standard.
(a) Asbestos mills: There shall be no visible emissions to
the outside air from any asbestos mill except as provided in
paragraph (f) of this section. Outside storage of asbestos
materials is not considered a part of an asbestos mill.
(b) Roadways: The surfacing of roadways with asbestos
tailings is prohibited, except for temporary roadways on an area
of asbestos ore deposits. The deposition of asbestos tailings on
roadways covered with snow or ice is considered “surfacing.”
(c) Manufacturing: There shall be no visible emissions to
the outside air, except as provided in paragraph (f) of this
section, from any building or structure in which the following
operations are conducted or directly from any of the following
operations if they are conducted outside of buildings or structures.
(1) The manufacture of cloth, cord, wicks, tubing, tape,
twine, rope, thread, yarn, roving, lap, or other textile materials.
(2) The manufacture of cement products.
(3) The manufacture of fireproofing and insulating materials.
(4) The manufacture of friction products.
(5) The manufacture of paper, millboard, and felt.
(6) The manufacture of floor tile.
(7) The manufacture of paints, coatings, caulks, adhesives,
sealants.
(8) The manufacture of plastics and rubber materials.
(9) The manufacture of chlorine.
(d) Demolition: Any owner or operator of a demolition
operation who intends to demolish any institutional, commer-
cial, or industrial building (including apartment buildings having
more than four dwelling units), structure, facility, installation,
or portion thereof which contains any boiler, pipe, or load-
supporting structural member that is insulated or fireproofed
with friable asbestos material shall comply with the requirements
set forth in this paragraph.
AS6
(1) Notice of intention to demolish shall be provided to the
Administrator at least 20 days prior to commencement of such
demolition or anytime prior to commencement of demolition
subject to paragraph (d)(4) of this section.
Such notice shall include the following information:
(i) Name of owner or operator.
(ii) Address of owner or operator.
(iii) Description of the building, structure, facility, or instal-
lation to be demolished.
(iv) Address or location of the building, structure, facility
or installation.
(v) Scheduled starting and completion dates of demolition.
(vi) Method of demolition to be employed.
(vii) Procedures to be employed to meet the requirements of
this paragraph.
(2) The following procedures shall be used to prevent emis-
sions of particulate asbestos material to outside air:
(i) Friable asbestos materials, used to insulate or fireproof
any boiler, pipe, or load-supporting structural member, shall
be wetted and removed from any building, structure, facility, or
installation subject to this paragraph before wrecking of load-
supporting structural members is commenced. The friable
asbestos debris shall be wetted adequately to insure that such
debris remains wet during all stages of demolition and related
handling operations.
(ii) No pipe or load-supporting structural member that is
covered with friable asbestos insulating or fireproofing material
shall be dropped or thrown to the ground from any building,
structure, facility, or installation subject to this paragraph, but
shall be carefully lowered or taken to ground level.
(iii) No friable asbestos debris shall be dropped or thrown
to the ground from any building, structure, facility, or installa-
tion subject to this paragraph or from any floor to any floor be-
AS7
low. For buildings, structures, facilities, or installations, 50 feet
or greater in height, friable asbestos debris shall be transported
to the ground via dust-tight chutes or containers.
(3) Sources subject to this paragraph are exempt from the
requirements of §§ 61.05(a), 61.07, and 61.09.
(4) Any owner or operator of a demolition operation who
intends to demolish a building, structure, facility, or installa-
tion to which the provisions of this paragraph would be ap-
plicable but which has been declared by proper State or local
authority to be structurally unsound and which is in danger of
imminent collapse is exempt from the requirements of this
paragraph other than the reporting requirements specified by
paragraph (d)(1) of this section and the wetting of friable
asbestos debris as specified by paragraph (d)(3)(i) of this
section. ;
(e) Spraying: There shall be no visible emissions to the out-
side air from the spray-on application of materials containing
more than 1 percent asbestos, on a dry weight basis, used to in-
sulate or fireproof equipment and machinery, except as provided
in paragraph (f) of this section. Spray-on materials used to in-
sulate or fireproof buildings, structures, pipes, and conduits shall
contain less than 1 percent asbestos on a dry weight basis.
(1) Sources subject to this paragraph are exempt from the
requirements of § 61.05(a), § 61.07, and § 61.09.
(2) Any owner or operator who intends to spray asbestos
materials to insulate or fireproof buildings, structures, pipes,
conduits, equipment, and machinery shall report such intention
to the administrator at least 20 days prior to the commencement
of the spraying operation. Such report shall include the follow-
ing information:
(i) Name of owner or operator.
(ii) Address of owner or operator.
(iii) Location of spraying operation.
AS58
(iv) Procedures to be followed to meet the requirements of
this paragraph.
(f) Rather than meet the no-visible-emission requirements of
paragraphs (a), (c), and (e) of this section, an owner or
operator may elect to use the methods specified by § 61.23 to
clean emissions containing particulate asbestos material before
such emissions escape to, or are vented to, the outside air.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.