Petition for Writ of Certiorari — National Gypsum Co. v. United States Environmental Protection Agency

Supreme Court brief1988

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No. 88-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

NATIONAL GYPSUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

LAWRENCE T. HOYLE, JR.

(Counsel of Record)

ARLENE FICKLER

RICHARD M. BERNSTEIN

Hoyle, Morris & Kerr

1650 Market Street

Suite 4900

Philadelphia, PA 19103

(215) 981-5710

Attorneys for Petitioner

National Gypsum Company

Dated: August 8, 1988

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000

a ern en —

QUESTION PRESENTED FOR REVIEW

Dissatisfied with the failure of the United States Environ-

mental Protection Agency (“EPA”) to provide any scientific

standards to determine whether asbestos in school buildings was

hazardous, Congress passed the Asbestos Hazard Emergency

Response Act of 1986 (“AHERA”) and directed the agency to

promulgate objective criteria for assessing the extent of any.

asbestos hazard, to identify appropriate “response actions,” and

to select response actions using “the least burdensome me-

thods.” The EPA’s response was to reprint its earlier “gui-

dance,” embellished by a paraphrase of certain portions of

AHERA. Nevertheless, the lower court blessed the EPA’s

performance, even though the agency failed to do what was

required, reasoning that the EPA had demonstrated “good faith”

in taking a first step toward the objective identified by Congress.

The question presented for review is whether, in an area of

far-reaching public importance requiring the expenditure of vast

amounts of resources, this Court should intervene to correct a

lower court decision which fails to hold the agency to well-

established administrative law precedents of this Court and

which, in approving a “good faith” but inadequate effort to

comply with the congressional mandate, countenances agency

failure to comply with the clear congressional direction to

develop a scientific approach to the problems of asbestos in

school buildings.

PARTIES TO THE PROCEEDING

The proceeding below was a consolidated action. The

respective parties, intervenors, and docket numbers in the court

below are as follows:

1. Safe Buildings Alliance, petitioner in No. 87-1669.

2. National Gypsum Company, petitioner in No. 87-

1670.

3. United States Gypsum Company, petitioner in No.

87-1676.

4. John F. Welch, individually and as parent and next

friend of John F. Welch, Jr. and Daniel J. Welch, petitioner

in No. 88-1016.

5. United States Environmental Protection Agency,

respondent in all of the above-described cases.

6. Intervenors include:

(a) The Attorneys General of the various states and

the Corporation Counsel of the District of Columbia;

(b) The GAF Corporation;

and Municipal Employees; the American Federation of

Teachers; the Laborers International Union of North

America and the Laborers AGC Education and Train-

ing Fund; the National Education Association; the

National Parent Teacher Association; the Service Em-

ployees International Union; and the Sheet Metal

Workers International Association;

(d) The American Association of School Adminis-

trators; and

(e) The National School Boards Association and

Barnwell School District No. 45 of South Carolina.

RULE 28.1 LISTING

Pursuant to Rule 28.1 of the Rules of the Supreme Court,

the petitioner hereby makes the following statement disclosing

parents, non-wholly-owned subsidiaries and affiliates:

Aancor Holdings, Inc.

Valley Office & Industrial Park, Inc.

LaFarge Coppée S.A.

iil

_ TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............

PARTIES TO THE PROCEEDING ..................

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pr a ss errr rrr rrr rrr rrr

Se bin eandneddebacancanewadens

STATEMENT OF JURISDICTION ...................

STATUTE AND REGULATIONS INVOLVED.........

PRE GE Be SE No evcceveecdestsaceces

REASONS FOR GRANTING THE WRIT.............

I. THIS COURT SHOULD CORRECT THE DECI-

SION OF THE LOWER COURT BECAUSE IT

FAILED TO DIRECT EPA TO OBEY THE

CLEAR AND UNAMBIGUOUS MANDATE OF

CONGRESS AND PERMITTED THE AGENCY

INSTEAD MERELY TO DEMONSTRATE THAT

IT HAD MADE A GOOD FAITH EFFORT TO

COMPLY, A RULING WHICH IS CONTRARY

TO WELL-ESTABLISHED PRECEDENTS OF

OES T PECCET PCLT EL TTT OTT ee

II. THIS COURTS GUIDANCE IS NEEDED IN

THIS AREA OF GREAT NATIONAL IMPOR-

TANCE WITH’ FAR-REACHING — FISCAL

AND ENVIRONMENTAL CONSEQUENCES

WHERE THE LOWER COURTS DECISION IS

AT ODDS WITH THE EXPLICIT MANDATE OF

CONGRESS, PRECEDENTS OF THIS COURT,

Pip & 3. + Serer r rrr Terr rrr rrr rer

TABLE OF CONTENTS— Continued)

Page

Ill. THE WRIT SHOULD BE GRANTED BECAUSE

THE LOWER COURTS OPINION ALLOWED

THE EPA TO DISREGARD CONGRESSIONAL

DIRECTIONS TO PROVIDE SCIENTIFIC

STANDARDS FOR SCHOOLS TO RESOLVE

ASBESTOS-IN-BUILDINGS PROBLEMS....... 24

CRIPEARAUENY bs ca ccdcdancnatctoncscaneesvoisandes 29

APPENDIX

Opinion of the United States Court of Appeals for the

District of Columbia Circuit in Safe Buildings Alli-

ance v. Environmental Protection Agency, 846 F.2d

Fe es GH PS hack acecadadenatatasaesess A-l

Text of Asbestos Hazard Emergency Response Act, 15

CE. Be ie a hc ko cuddnchedudiansaess A-14

Text of EPA's Regulations Concerning Asbestos-

Containing Materials in Schools, 40 C.F.R.

DP FE BE, oc cn cccdccdevestsueieasneeee A-52

TABLE OF AUTHORITIES

CASES: Page

A.LA. Schechter Poultry Corp. v. United States, 295 U.S.

i PPP PPT reTTTT Terie rrr rrr Tere 20

Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n,

Oe Ox Gees IS vba cn cececcctecuseeeusuees 18

Chevron, U.S A., Inc. v. Natural Resources Defense Coun-

e @ gt fo TTT ree 18

Federal Maritime Comm'n v. Seatrain Lines, Inc., 411

Puls MP UEEN San be sthedeueuescucteachotentin 19

Industrial Union Department, AFL-CIO wv. American Pe-

troleum Institute, 448 U.S. 607 (1980)........... 14, 20

Safe Buildings Alliance v. Environmental Protection

Agency, 846 F.2d 79 (D.C. Cir. 1988)........... passim

Natural Resources Defense Council, Inc. v. Train, 510

Fe Gs Gk ck bk acbksocedansascect 19

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)...... 20

STATUTES:

SD Dis a 6.404864 ida danwebubs caceeeeouns 2

28 U.S.C. § 2618(aX1XA) (Supp. IV 1986).............. 3

Amendment to the Toxic Substances Control Act, Pub. L.

No. 100-368, 102 Stat. 829 (July 18, 1988).......... 2,7

Asbestos Hazard Emergency Response Act of 1986, Pub.

L. No. 99-519, 100 Stat. 2970 (Oct. 22, 1986) (adding

Title II, Sections 201-214, to the Toxic Substances

Control Act and codified at 15 U.S.C. §§ 2641-54

Bae. TV BEBE ccc ccnccccvccececcosscscdccce passim

BB U.B.C. BEBGRIIED. «cc ccccccccccccccccccsccce 6-7

WS OSG, Bs hn vec ccecccnsievescccces . 7

BE UK, BI 6 08 Scan cccesccedcbessccess 7

WS UB. Ba 86 he iwkccccacesnsicseica 8

TABLE OF AUTHORITIES— Continued)

STATUTES (Continued): Page

1S U.S.C. § SBGRENIMAD) .. 0. cc cccccccccccces 7

es cv crecoscase6esesenees sts 3

rey 10

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esa ahs du anol beeeséénnn bak ll, 27

LEGISLATIVE MATERIALS:

Hearing before the Subcommittee on Toxic Substances and

Environmental Oversight of the Committee on Envi-

ronment and Public Works, 99th Cong., 2d Sess. (Mav

15, 1986) (Testimony of John A. Moore, EPA Assistant

Administrator for Pesticides and Toxic Substances) . 5

H.R. Rep. No. 212, 99th Cong., Ist Sess. (1985)........ 5-6

H.R. Rep. No. 763, 99th Cong., 2d Sess. (1986) ........ 14

H.R. Comm. on Appropriations, Report on Department of

Housing and Urban Development-independent Agen-

cies Appropriation Bill, 1985, H.R. Rep. No. 98-803,

Se ere ei nccccecccccdesce 22

132 Cong. Rec. $1476 (daily ed. Feb. 20, 1986)......... 6

132 Cong. Rec. $15064-66 (daily ed. Oct. 3, 1986) ...... l4

132 Cong. Rec. $15069 (daily ed. Oct. 3, 1986)......... 6

vii

TABLE OF AUTHORITIES— Continued)

ADMINISTRATIVE MATERIALS: Page

Asbestos-Containing Materials in Schools, 52 Fed. Reg.

41846 (Oct. 30, 1987) (to be codified at 40 C.F.R. Part

763, Subpart E, Sections 763.80-99 and Appendices A,

Ee chidscenecccenneddac acs deadseeh passim

I oo cc cccdasscasecsbassavnads 20

I 05 06 bcc cdueud deeseadecee oes 8

ee Oe PE 6 6nivn.cdbccdesesiacede dad 8

ee en ab corncbesweceddededa 8.9

Sy er SEED occ cccseccccccacencede 8-9

SIG BED ccc cccccccccccnscceses 9

Ge iv ocdecccdcvcncscsnces 9, 10, 13

ee I vccccccdeccstuspeosues 10

40 C.F.R. $ 93.90(0b)4g) 00... cece eee eee 10

Se IE ic vccncvdcdscceccsnésacad 9, 10

ss ws pandacenbadadue as aan

40 C.F.R. § 763.90/i)............ asbievencehudews 13

EPA, Airborne Asbestos Health Assessment Update, EPA

600/8-84-003F (June 1986) ....................... 12

EPA, Airborne Asbestos Levels in Schools, EPA 560/5-83-

a a ape pen hae pr 11, 26

EPA, Asbestos-Containing Materials in School Buildings:

A Guidance Document, Parts 1 & 2, C00090 (March

BUEN cobaccckuccdddcepueds csaecreeesawentees <. 4

EPA, Asbestos Hazard Emergency Response Act Economic

Impact Analysis (April 1987) ..................... 27

EPA, Guidance for Controlling Asbestos-Containing

Materials in Buildings, EPA 560/5-85-024 (June

PS ye ae passim

TABLE OF AUTHORITIES— Continued)

ADMINISTRATIVE MATERIALS (Continued): Page

EPA, Guidance for Controlling Friable Asbestos-

Containing Materials in Buildings, EPA 560/5-83-002

isin chan unbheksesabandeniakecés 4

EPA, Preamble to Asbestos-Containing Materials in

Schools, 52 Fed. Reg. 41826 (Oct. 30, 1987)... 15, 23, 26

EPA, Study of Asbestos-Containing Materials in Public

Buildings: A Report to Congress (Feb. 1988)... .. 11, 23,

26, 27

EPA, Support Document for Final Rule on Friable

Asbestos-Containing Materials in School Buildings:

Health Effects and Magnitude of Exposure (Jan. 1982) 12

Friable Asbestos-Containing Materials in Schools: Identi-

fication and Notification, 47 Fed. Reg. 23369 (May 27,

1982) (codified at 40 C.F.R. Part 763, Subpart F,

§§ 763.100-119 and Appendix A).................. 4

Grant of Petition to Initiate Rulemaking Proceeding to

Regulate Sprayed Asbestos in Schools, 44 Fed. Reg.

tno, pala uny sesh eee nh ces 3

Occupational Exposure to Asbestos, 29 C.F.R. § 1910.

Dt Tice sdes bh vabuvehsadnbewhes saad eens 12

U.S. Surgeon General, The Health Consequences of Smok-

ing: Cancer and Chronic Lung Disease in the Work-

Mose cckacadcchiicuicecis: 12

MISCELLANEOUS:

Burdett, Interlaboratory Comparison of the U.S. Environ-

mental Protection Agency School Samples by the U.K.

Health and Safety Executive (Nov. 1985)........... 1]

Burdett, et al., Airborne Asbestos Fibre Levels in Build-

ings: A Summary of U.K. Measurements, Symposium

on Mineral Fibres in the Non-Occupational Environ-

ment, International Agency for Research on Cancer

i scraausdubaeenetsxecesensdeeeiess.s 13

TABLE OF AUTHORITIES— Continued)

MISCELLANEOUS (Continued): Page

Corn, Asbestos and Disease: An Industrial Hygienist’s

Perspective, 47(9) Am. Ind. Hyg. Assoc. J. 515 (1986) 24

Crump, Comments on Issues Related to the Percentage of

EPA Criterion Fibers That Are No Longer than 5

Microns and on the Potential Effects Upon Average

Fiber Concentrations of High Transient Levels (1987) 26

Crump & Farrar, Statistical Analysis of Airborne Asbestos

Fiber Data Collected from Schoois and Analyzed by

Transmission Electron Microscope (1987) .......... 12

Doll & Peto, Health and Safety Commission (U.K.), As-

bestos: Effects on Health of Exposure to Asbestos

CR 5 GLK AG be ee a eae 11-12

Gough, Uncle Sam Flunks Asbestos Control in Schools,

Issues in Science and Technology 81 (Spring 1988) .. 25

Hughes & Weill, Asbestos Exposure—Quantitative Assess-

ment of Risk, 133 Am. Rev. Respiratory Diseases 5

RRR a Crs, 17 ont eens SE 24

Lee, The Constant Study Revisited (1987).............. 1]

. Major, The United States Environmental Protection

Agency's Asbestos Algorithm Exposed, 3 J. Occup.

Health & Safety - Aust. & N.Z. 215 (1985)....... 24, 26

Pinchin, Asbestos in Buildings, Royal Commission on

Asbestos Studies Series, No. 8 (1982)............ 13, 26

Report of the Royal Commission on Matters of Health and

Safety Arising from the Use of Asbestos in Ontario

WR Ve re 12

Tuckfield, et al., Evaluation of Asbestos Abatement Tech-

niques, Phase 3: Removal (Sept. 1986) (EPA Contract

Deh, ID oe 2a eee Fee ee wa ks 13

Weill & Hughes, Asbestos as a Public Health Risk: Disease

and Policy, 7 Ann. Rev. Public Health 171 (1986).. 12-13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

NATIONAL GYPSUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

Petitioner National Gypsum Company respectfully prays

that a writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the District of

Columbia Circuit entered in the above-entitled proceeding on

May 10, 1988.

OPINION BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit appears at pages A-1 to A-13 of the

appendix (hereinafter referenced as “A- ”). It is reported as

Safe Buildings Alliance v. United States Environmental Protec-

tion Agency at 846 F.2d 79.

STATEMENT OF JURISDICTION

The District of Columbia Circuit filed its opinion, and the

judgment included therein, on May 10, 1988. This petition is

filed within ninety days of that date. Jurisdiction in this Court is

based on 28 U.S.C. § 1254(1).

STATUTE AND REGULATIONS INVOLVED

This petition involves the regulations concerning Asbestos-

Containing Materials in Schools, 52 Fed. Reg. 41846 (Oct. 30,

1987) (to be codified at 40 C.F.R. Part 763, Subpart E, Sections

763.80-99 and Appendices A, B, and D), set forth at pages A-52

to A-103 of the appendix, which were issued pursuant to the

Asbestos Hazard Emergency Response Act of 1986, Pub. L. No.

99-519, 100 Stat. 2970 (Oct. 22, 1986) (adding Title II, Sections

201-214, to the Toxic Substances Control Act and codified at 15

U.S.C. §§ 2641-54 (Supp. IV 1986)), set forth at pages A-14 to

A-51 of the appendix. :

STATEMENT OF THE CASE

Clearly concerned that the presence of asbestos-containing

materials! in school buildings might pose an unreasonable health

hazard, and vet persuaded that the Environmental Protection

Agency (“EPA”) had not provided adequate guidance with

which to address this question, Congress passed the Asbestos

Hazard Emergency Response Act of 1986 (“AHERA”).2 AHERA

1. Asbestos is a naturally occurring fibrous mineral with properties that

historically made it valuable for a wide variety of uses in construction

materials. Surfacing materials are asbestos products sprayed or troweled onto

ceilings, walls, or structural steel, generally for acoustical and fire-retardant

purposes. Thermal system insulation materials are primarily pipe and boiler

wrap. Other uses, known as miscellaneous asbestos-containing material,

include ceiling and floor tiles.

2. Pub. L. No. 99-519, 100 Stat. 2970 (Oct. 22, 1986) (adding Title I],

§§ 201-214, to the Toxic Substances Control Act and codified at 15 U.S.C.

§§ 2641-54 (Supp. IV 1986)) (“AHERA”) (A-14 to A-51), as amended by Pub.

L. No. 100-368, 102 Stat. 829 (July 18, 1988).

22 <<

directed the agency to issue regulations within 360 days describ-

ing so-called “response actions” that would “protect human

health and the environment” in “the least burdensome” man-

ner. 15 U.S.C. § 2643(d)(1) (A-20).

The EPA failed in its mission. Rather than doing what

Congress had commanded, it simply repeated the vague gener-

alities which had been the substance of its previous “guidance”

and left it to local school authorities, in tandem with self-

interested asbestos abatement consultants, to select a response

action which would presumably protect human health and the

environment — precisely the status quo ante which Congress

found deficient and which prompted AHERA in the first in-

stance.

Nonetheless, the Court of Appeals for the District of

Columbia Circuit denied petitions for review. As a result, the

asbestos-in-schools controversy — which touches millions of

school officials, parents, and children and has already taxed the

resources of innumerable communities throughout the nation —

is, from a regulatory perspective, no closer to a resolution

following AHERA than it was before the enactment of that law.

Moreover, the confusion and uncertainty which surround the

issue of asbestos-containing construction products are not con-

fined to schools alone but include approximately three-quarters

of a million public and commercial buildings as well. Thus, as

more fully explained below, the default of the EPA, the

unwillingness of the lower court to correct the situation, and the

great importance of the issue as a matter of public policy require

the intervention of this Court.

* * *

This dispute has its origins in the late 1970's when,

following some initial reluctance, the EPA agreed to consider

the issuance of regulations addressing asbestos in schools.4

Almost three years later, the EPA issued such a rule, but one

which carefully avoided any specific advice to the schoo¥.

3. The jurisdiction of the court of appeals was based on 15 U.S.C.

§ 2618(a)(1)(A) (Supp. IV 1986).

4. Grant of Petition to Initiate Rulemaking Proceeding to Regulate

Sprayed Asbestos in Schools, 44 Fed. Reg. 40900 (July 13, 1979).

Instead, it merely directed schools to “identify friable asbestos-

containing building materials” and to notify employees and “the

school’s parent-teacher association of the inspection results. ”5

Ironically, the EPA’s preamble conceded that “[mJany of

the friable asbestos-containing materials in schools do not re-

quire abatement or removal.” 47 Fed.-Reg. at 23360. However,

the rule articulated no standards or criteria against which the

propriety of abatement or removal could be measured. Instead,

it directed attention to the EPA’s separate “guidance docu-

ment, the so-called “Orange Book,” which was replaced in

1983 by the “Blue Book,”’ and then in 1985 by the “Purple

Book.’®

The Purple Book is a sophisticated study in ambivalence

and equivocation. It points out that the levels of asbestos in

buildings are “typically 10,000 to 100,000 times lower than

levels in asbestos industry workplaces where asbestos-related

diseases have been well documented.” Id. at 1-1. It notes

further that “[t]he presence of asbestos in a building does not

mean that the health of building occupants is necessarily en-

dangered.” Id. at S-1. Finally, it observes that “[i]f asbestos-

containing material (ACM) remains. . . in good condition and is

unlikely to be disturbed, exposure will be negligible.” Id. at 1-1.

At the same time, however, the Purple Book predicts that

“a small proportion of people exposed to low levels of asbestos

will develop asbestos-related diseases” and that “[s]mokers,

children and young adults are at somewhat greater risk,” id. at

1-1 — without in any way quantifying or otherwise specifving,

5. Friable Asbestos-Containing Materials in Schools: Identification and

Notification, 47 Fed. Reg. 23369 (May 27, 1982) (codified at 40 C.F.R. Part

763, Subpart F, §§ 763.100-119 and Appendix A). The rule was limited to

“friable” asbestos-containing material, defined as material “which, when dry,

may be crumpled, pulverized, or reduced to powder by hand pressure.” Id.

§ 763. 103(d).

6. EPA, Asbestos-Containing Materials in School Buildings: A Guidance

Document, Parts 1 & 2, C00090 (March 1979).

7. EPA, Guidance for Controlling Friable Asbestos-Containing Materi-

als in Buildings, EPA 560/5-83-002 (March 1983).

8. EPA, Guidance for Controlling Asbestos-Containing Materials in

Buildings, EPA 560/5-85-024 (June 1985) (“Purple Book”).

with any particularity at all, what is meant by “a small propor-

tion,” “low levels,” or a “somewhat greater risk.”

In the face of this equivocation, Chapter 4 of the Purple

Book recommends (but does not require) that school officials

assess the current condition of asbestos-containing materials (by

seeking evidence of deterioration or delamination, physical

damage, and water damage), as well as the potential for future

disturbance or damage (by observing such factors as proximity to

air plenum, degree of activity in the building, and change in

building use). Id. at 4-3. Again, without any concrete criteria or

other specificity, school officials are advised to rate the current

condition of asbestos-containing materials as “good,” “minor

damage or deterioration,” or “poor” and the potential for future

damage or disturbance as “low” or “high.” Id. at 4-7, Table 2.

Then, they are told to choose, from a smorgasbord of options,

some remedy — such as an operations and maintenance pro-

gram, removal (selective or complete), enclosure, or encapsula-

tion — once more without any even vaguely rigorous system or

other yardstick against which to measure such highly subjective

terms as “high” and “low,” “good” and “poor,” etc. Id.

The EPA was quite satisfied with the sufficiency of this

“guidance.” Indeed, it argued to Congress that federal regula-

tions should not supplant the Purple Book and that local officials

should be permitted a degree of “flexibility.” Congress, how-

ever, found that the Purple Book and its predecessors simply did

not do the job:

First, the panic surrounding asbestos in buildings has made

rational decisions over abatement action impossible in

many cases. Second, the public is confused over what kind

of asbestos applications present real health risks and in what

situations asbestos-containing materials are best left undis-

turbed. Third, the current demand for abatement work far

exceeds the supply of reliable, trained contractors.

9. Hearing before the Subcommittee on Toxic Substances and Environ-

mental Oversight of the Committee on Environment and Public Works, 99th

Cong., 2d Sess. 15 (May 15, 1986) (Testimony of John A. Moore, EPA Assistant

Administrator for Pesticides and Toxic Substances).

H.R. Rep. No. 212, 99th Cong., Ist Sess. 26 (1985) (emphasis

added). Worse yet, the EPA and other experts had warned that

the majority of contractors are “inexperienced and unqualified.”

As a result:

Many schools have had the unfortunate experience of

spending substantial sums on unnecessary and poor quality

removals, only to find asbestos exposures increased and

their problems made worse.

Id. at 26.

Senator Stafford of Vermont, who was to become the

principal Senate sponsor of AHERA, stated even more bluntly:

EPA has issued technical guidance, but no standards for

asbestos identification, hazard evaluation, and removal. As

a result, schools have been uncertain about how to proceed.

Too often, pressure from parents has forced school officials

to remove asbestos that should have been left in place.

132 Cong. Rec. $1476 (daily ed. Feb. 20, 1986) (emphasis

added). In the words of Senator Chafee:

EPA’s failure to produce proper standards and regulations

to date for asbestos in schools is beyond excuse; the schools

have not had the tools they need to address asbestos

hazards.

132 Cong. Rec. $15069 (daily ed. Oct. 3, 1986). Indeed, as

Senator Stafford concluded:

Not only has money been spent needlessly, but in some

cases, the danger has been increased by disturbing the

asbestos. The problem has been exacerbated by untrained

and unscrupulous contractors who have preyed on the fears

of school occupants and school officials.

132 Cong. Rec. $1476 (daily ed. Feb. 20, 1986).

The result was AHERA. The statute begins with the

unequivocal premise that the EPA’s guidance includes “neither

standards for the proper identification of asbestos-containing

material and appropriate response actions . . . nor a requirement

that response actions . . . be carried out in a safe and complete

manner once actions are found to be necessary.” 15 U.S.C.

§ 2641(a)(1) (A-14). As a result:

[SJome schools have not undertaken response action while

many others have undertaken expensive projects without

knowing if their action is necessary, adequate, or safe.

Thus, the danger of exposure to asbestos continues to exist

in schools, and some exposure actually may have increased

due to lack of Federal standards and improper response

action.

Id. § 2641(a)(1) (emphasis added) (A-14). To dispose of any

possible lingering doubt, Congress states:

The guidance provided by the Environmental Protection

Agency in its “Guidance for Controlling Asbestos- Contain-

ing Material in Buildings” [i.e., Purple Book] is insufficient

in detail to ensure adequate responses. Such guidance is

intended to be used only until the regulations required by

this title become effective.

Id. § 2641(a)(3) (A-14).

To accomplish its purpose, Congress gave the EPA specific

instructions for the issuance of regulations which require inspec-

tion and implementation of appropriate response actions in the

nation’s schools in a “safe and complete manner.” Id.

§ 2641(b)(1) (A-15). Within 360 days, the EPA was to issue

regulations designed to supplant the Purple Book.!® More

specifically, the EPA was explicitly mandated to do the follow-

ing:

1. Promulgate regulations which provide criteria for

assessing the extent of the hazard, if any, “at least” in those

10. AHERA also provided that, following promulgation of the regula-

tions, school officials develop and submit to their Governor management plans

for buildings containing asbestos prior to October 12, 1988, 15 U.S.C.

§ 2645(a)(A33), and begin implementation of those plans by July 9, 1989, 15

U.S.C. § 2643(i)(A-23 to A-27). Congress has recently extended the deadline

for submission of the plans to no later than May 9, 1989, although the

implementation deadline was not changed. Amendment to the Toxic Sub-

stances Control Act, Pub. L. No. 100-368, 102 Stat. 829 (July 18, 1988).

circumstances where there is “damage,” “significant dama-

ge,” “potential damage,” or “potential significant damage.”

Id. § 2643(c)(1)(A)-(D) (A-19, A-20).

2. Promulgate regulations identifying, in light of the

assessment criteria described above, “the appropriate re-

sponse action” which will “protect human health and the

environment.” Id. § 2643(c)(1), (d)(1) (emphasis added)

(Al9, A-20).

3. Promulgate regulations identifying a response action

which will advance the protection of human health and the

environment “using the least burdensome methods.” In

making this determination, “the Administrator shall take

into accent local circumstances, including occupancy and

use patterns within the school building and short- and

long-term costs.” Id. § 2643(d)(1) (A-20).

At least to this extent, and notwithstanding some internal

contradictions in the legislative process that led to AHERA, the

EPA’s mandate is clear and unequivocal. Nonetheless, the final

rules accomplish none of the legislative objectives. See Asbestos-

Containing Materials in Schools, 52 Fed. Reg. 41846 (October

30, 1987) (to be codified at 40 C.F.R. Part 763, Subpart E,

Sections 763.80-99 and Appendices A, B, and D) (A-52 to

A-103).

The final rules do little, if anything, more than the Purple

Book, and surely they are no more specific than was AHERA

itself. Thus, school officials, called “local education agencies” or

“LEA's,” are required to retain “an accredited inspector” to

conduct an inspection and classify asbestos-containing materials

in one of seven categories.1! 40 C.F.R. § 763.85(a)(3) and

~~,

ll. ‘he agency has simply taken each of the four circumstances delin-

eated by Congress — damage, significant damage, potential damage, and

potentially significant damage — and subdivided by type of friable asbestos-

containing material — miscellaneous, surfacing, and thermal system insula-

tion. See 40 C.F.R. §§ 763.83 and 763.88. When these definitions are

organized according to Congress’ categories — damage, significant damage,

potential damage, and potentially significant damage — it is clear that the EPA

has only repeated the congressional instructions.

§ 763.88(b)(1)-(7) (A-62, A-68 to A-69). The assessment “may”

(but is not required to) include factors such as location, condition

(e.g., water or physical damage), accessibility, potential for

disturbance, vibration, etc. — essentially the factors laid out in

the Purple Book. Compare 40 C.F.R. § 763.88(c)(1)-(6) (A-69)

with Purple Book Ch. 4 (discussed more fully at p. 5, supra).

Based on the foregoing, the LEA is directed itself:

[To] select . . . the appropriate response actions in this

section consistent with the assessment conducted in

§ 763.88. The response actions selected shall be sufficient

to protect human health and the environment.

40 C.F.R. § 763.90(a) (A-70). Furthermore:

In selecting the response action [in certain circumstances]

. . the local education agency [i.e., not the EPA] shall

determine which of these response actions protects human

health and the environment.

40 C.F.R. § 763.90(c)(2) (emphasis added) (A-71). Finally:

The local education agency may then select, from the

response actions which protect human health and the

environment, that action which is the least burdensome

method.

40 C.F.R. § 763.90(a) (emphasis added) (A-70).

Notwithstanding the unmistakable legislative intent, the

Agency's failure is as clear as its mandate:

1. The final rules do nothing whatsoever to establish

standards or criteria for assessing the hazard to human

health, if any, other than to repeat AHERA’s own general

description of such categories as “damage” or “potential

damage,” albeit in slightly different words, and to parrot

the same collection of considerations which are set forth in

the Purple Book and have been rejected by Congress as

patently inadequate.

2. The final rules do nothing to identify “the appropri-

ate response action’ which will “protect human health and

the environment” for any of these circumstances, leaving

the task (and the confusion and anxiety that go along with it)

to the local school agencies — precisely the evil which

AHERA was designed to avoid. See 40 C.F.R. § 763.90(b)-

(g) (A-70 to A-72). Nor has the EPA made any attempt to

determine or explain whether any response action will do

anything to protect human health and the environment,

and if so, when, how, and in what circumstances. Instead,

all that EPA has done is to regurgitate, for each potential

circumstance identified by Congress in the statute, all the

response actions which the statute directed EPA to

consider. !2

3. The final rules do not identify the response action

which will protect human health and the environment “in

the least burdensome manner,” again leaving the task, and

the anguish, to local school officials, exactly the result which

the legislation was meant to obviate. See 40 C.F.R.

§ 763.90(a).

In failing to address these issues, the EPA ignored its own

administrative record which is replete with data suggesting

answers to the underlying threshold questions. Ironically, these

12. For example. for damaged friable surfacing or miscellaneous mate-

rial. a local educational agency may repair, encapsulate. enclose, or remove. 40

C.F.R. § 763.90(cX2) (A-71). These response actions, however, are identical to

the methods contained in chapters 3 and 5 of the Purple Book, which Congress

specified as potential response actions for damaged material. Compare 15

U.S.C. § 2643(d\(2) (A-20 and A-21) with 40 C.F.R. § 763.90(c2) (A-71) and

Purple Book §§ 3.3, 4.2, ch. 5. Similarly, for significantly damaged friable

surfacing or miscellaneous material, a local authority may encapsulate, en-

close, or remove. 40 C.F.R. § 763.90/d) (A-71). These, too, are identical to the

methods contained in chapter 5 of the Purple Book, which Congress specified

as potential response actions for significantly damaged material. Compare 15

U.S.C. § 2643(d\3) (A-21) with 40 C.F.R. § 763.90(d) (A-71) and Purple Book

§ 4.2 and ch. 5. Thus, the EPA's description of response actions adds nothing

to Congress instructions, contained in 15 U.S.C. § 2643/d) (A-20 to A-21),

concerning response actions for circumstances identified by Congress. Com-

pare generally 40 C.F.R. § 763.90(b){f) (A-70 to A-72) with 15 U.S.C.

§2643/d\(2)-(5) (A-20 and A-21) and Purple Book, chapters 3 and 5.

~« — i a ee

ee ll Ae

data generate substantial doubt not only whether the rules will

accomplish anything, but whether in fact they will only make

matters worse.

As the EPA itself has acknowledged, levels of airborne

asbestos in buildings are typically 10,000 to 100,000 times lower

than the levels at which asbestos-related diseases have been

documented, see supra at p. 4, an observation with substantial

support in every study, without exception, which has ever been

conducted.'* For example, EPA's own study, pursuant to Sec-

tion 213 of AHERA, 15 U.S.C. §2653(3) (A-50), concludes

preliminarily that there is “no difference between levels found

in buildings with [asbestos-containing material] and outdoor

ambient levels”.'* Similarly, a study by scientists in Great

Britain concluded that airborne fiber levels in buildings seldom

13. In the preamble to the AHERA rules, EPA relies on a 1983 study of

airborne levels in Houston schools for potential exposures to students. 52 Fed.

Reg. at 41844, citing EPA, Airborne Asbestos Levels in Schools, EPA

560/5-83-003 (1983) (“Constant Study”). However, only six months later, in its

report to Congress on asbestos in public and commercial buildings, EPA finally

acknowledged that the Constant results were inaccurately high: EPA relied

instead on a reanalysis of the Constant data showing air levels consistent with

those described above. EPA, Study of Asbestos-C ontaining Materials in Public

Buildings: A Report to Congress 11, 8-1 (Feb. 1988), citing Lee, The Constant

Study Revisited (1987). That reanalysis was submitted to the agency by

petitioner as part of the AHERA rulemaking proceeding but was inexplicably

disregarded by the agency when it issued the AHERA rules. The agency's

sudden change of heart is particularly noteworthy because it has had in its files.

since 1985, a report which reaches the conclusion that the Constant Study had

overstated airborne asbestos fiber levels by one to two thousand times. a report

which it withheld from the public until March 1988. See Burdett, Interlabo-

ratory Comparison of the US. Environmental Protection Agency School

Samples by the U.K. Health and Safety Executive 15 (Nov. 1985).

14. EPA, Study of Asbestos-Containing Materials in Public Buildings: A

Report to Congress 12 (1988). The report proceeds to confess, in so many

words, that the EPA is reluctant to apply its AHERA rules to public and

commercial buildings, other than schools, of course, absent the acquisition of

data which suggests, for example, that there is any difference in risk between

indoor exposure and outdoor ambient exposure. Id. at 22. Although couched

in predictably bureaucratic language, this admission is astonishing.

exceed .0005 fibers per cubic centimeter (“f/cc”);"5 by contrast,

the most recent Occupational Safety and Health Administration

(“OSHA”) standard for permissible exposure in the workplace is

hundreds of times higher at .2 f/cc."*

However, the data go further. While exposure to asbestos

has been shown to cause illness under some circumstances, the

causal connection has been established through epidemiological

studies of people exposed, usually for a working lifetime, to

concentrations of asbestos orders of magnitude greater than

those generally encountered in buildings. '” By contrast, there is

no reliable scientific or medical evidence of disease from the

ultra-low exposures uniformly measured in buildings.'* While

there remains some theoretical risk of illness resulting from

exposure even to these minuscule levels, such risk is trivial

when compared to other risks which we endure in our daily

15. Doll & Peto, Health and Safety Commission (U.K.), Asbestos: Effects

on Health of Exposure to Asbestos 47-48 (1985); see also Crump & Farrar,

Statistical Analysis of Airborne Asbestos Fiber Data Collected from Schools

and Analyzed by Transmission Electron Microscope 8 (1987) (average airborne

asbestos concentrations in schools of .0002 ficc); Report of the Royal Commis-

sion on Matters of Health and Safety Arising from the Use of Asbestos in

Ontario 577 (1984) (average exposure less than .001 fcc).

16. OSHA, Occupational Exposure to Asbestos, 29 C.F.R. § 1910.1001

| 987). This senda d itself represents a dramatic reduction over the exposures

tho: aave resulted in the asbestos-related disease that is the subject of asbestos

personal injury litigation. See note 17, infra.

17. See, e.g., EPA, Airborne Asbestos Health Assessment Update, EPA

600/8-84-003F at 73 (June 1986) (occupational exposures among asbestos

insulation workers estimated to average 15 fcc), EPA, Support Document for

Final Rule on Friable Asbestos-Containing Materials in School Buildings:

Health Effects and Magnitude of Exposure 91 (Jan. 1982) (9 fcc).

18. E.g., U.S. Surgeon General, The Health Consequences of Smoking:

Cancer and Chronic Lung Disease in the Workplace 199 (1985) (“it is generally

accepted that [exposures to asbestos near ambient levels) do not substantially

alter the occurrence of lung cancer or chronic lung disease in the general

population”), EPA, Airborne Asbestos Health Assessment Update, supra note

17, at 162 (“the limited data that indicate the validity of [the linear exposure

response} relationship [for asbestos-related disease) are for exposures two or

three orders of magnitude higher than those of concern for environmental

exposures ).

lives. ‘®

Finally, as EPA's own data reveal, even properly conducted

removal projects have resulted in elevated airborne fiber levels

within buildings after they have been cleared for reoccupancy.”°

Nevertheless, the final rules provide that school officials may

choose to remove asbestos despite the absence of any regulatory

indication that removal is required or even advised. 40 C.F.R.

§ 763.90(a) (A-70).2

As the lower court correctly points out, Congress provided

the agency with a very considerable degree of latitude. Senator

Stafford invoked what he viewed as “prevailing scientific opin-

ion, . . . that there is no known safe level of asbestos exposure

and that efforts should be made to avoid even low level

exposure”; he emphasized that AHERA requires the EPA only

to identify response actions that are sufficient to protect human

19. Weill & Hughes, Asbestos as a Public Health Risk: Disease and

Policy, 7 Ann. Rev. Public Health 171, 181 (1986) (risk of eating four

tablespoons of peanut butter per day is twenty-one to four hundred times

greater than risk of attending school constructed with asbestos-containing

building products).

20. Tuckfield, et al., Evaluation of Asbestos Abatement Techniques,

Phase 3: Removal Tables 7-1 and 7-2 (Sept. 1986) (EPA Contract No.

68-02-4243) (showing elevated levels 3, 6, and 9 mos. after clearance); see also

Burdett, et al., Airborne Asbestos Fibre Levels in Buildings: A Summary of

U_K. Measurements, Symposium on Mineral Fibres in the Non-Occupational

Environment, International Agency for Research on Cancer (Sept. 1987);

Pinchin, Asbestos in Buildings, Royal Commission on Asbestos Studies Series.

No. 8 at 7.12, 7.19 (1982).

21. In the lower court's opinion, the petitioners are admonished to direct

their dissatisfaction “not at the clause permitting removals in circumstances

where school officials consider removals prudent,” but rather “at those

provisions that were designed to preclude unsafe and incomplete removals.”

846 F.2d at 84 (A-11). The irony of the opinion is that the latter “provisions”

simply do not exist. The clearance level set forth in the AHERA regulations,

40 C.F.R. § 763. 90(i) (A-72 to A-76), does not address the fact that the studies

cited in note 20, supra, show that upon reoccupancy of the building, following

clearance, asbestos exposures have fluctuated above the clearance level

standards. Moreover, while there are regulations intended to protect removal

workers and building occupants during asbestos abatement, there are simply

no regulations, other than the clearance standard, that set forth response

action procedures to protect building occupants after reoccupancy.

health, rather than to prove that a particular response action is

absolutely necessary to protect human health; and he noted that

the EPA need not establish a quantitative measure of safety as a

predicate to certain response actions. 132 Cong. Rec. $15064-66

(daily ed. Oct. 3, 1986).

In light of the uncontradicted data set forth in the imme-

diately preceding paragraphs of this petition, the bases for

Senator Stafford’s assertion that there is “no safe level of

exposure’ are not very clear. Perhaps Senator Stafford intended

only to say that there is no level of exposure at which the risk of

illness is absolutely zero. However, as this Court observed in

Industrial Union Department, AFL-CIO v. American Petroleum

Institute, 448 U.S. 607, 642 (1980), “ ‘safe’ is not the equivalent

of ‘risk-free.”” The presence of some risk does not mean that the

exposure is not “safe”; life is fraught with risk; and thus, “safe”

is simply a degree of risk which we find tolerable as a matter of

policy. —

If, by endorsing the view that there is “no safe level of

asbestos exposure,’ Senator Stafford meant to say that there is

no level of exposure at which, as a matter of public policy, the

risk of injury is acceptable, one would have expected Congress

to direct the EPA forthwith to issue regulations aimed at

eliminating asbestos exposure in its entirety. Congress did not

choose that route. Instead, recognizing the risks to abatement

workers and the potential hazards associated with asbestos

disposal,22 it directed the EPA to require a program of mainte-

nance practices and to identify when additional response actions

should be taken to “protect human health and the environ-

ment.”

In discharging this function, the EPA was blessed with a

wide degree of latitude and discretion, and it was rot directed to

act with quantitative precision. Nonetheless, it was commanded

to do something, certainly more than it had done in the Purple

Book. The “something” was to set forth with some specificity the

criteria for distinguishing when various response actions are

appropriate for the various circumstances that might be found in

22. See H.R. Rep. No. 763, 99th Cong., 2d Sess. 22 (1986).

school buildings < xd then for each of those circumstances, and at

a minimum for the four circumstances identified by Congress, to

select response actions which in some way are shown to have a

rational connection to the legislative objective of protecting

human health and the environment. What the EPA was not

permitted to do was to avoid these tasks in their entirety, i.e., do

nothing, least of all delegate these vital determinations to local

school officials.

Notwithstanding the unmistakable reason for AHERA and

the clear congressional directive to the EPA to remedy its earlier

deficiencies, the lower court read the statute “as the framework

for an evolving administrative response” to the presence of

asbestos in schools and anticipated “that EPA would refine its

initial regulatory approaches over time,” as more information

about asbestos became available. 846 F.2d at 82 (A-6 and A-7).

In other words, the lower court concluded that, even if the

regulations did not meet the clear expectations of AHERA, it

was sufficient that they took the first step forward in that

ultimate direction.

Thus, the lower court reasoned that the final rules were a

“reasonable, faithful interpretation of AHERA’s somewhat con-

tradictory commands.” 846 F.2d at 82 (A-8). The court’s view

was based on a perception that the EPA had reasonably decided

that “some compromises were necessary.’ Id. (A-8). The court

reasoned it was not unreasonable for the agency to conclude that

it might do something less than what Congress directed it to do.

That is, despite the clear legislative mandate to the contrary, the

Court accepted the EPA’s view that:

[A] rigid response action decision structure is not appropri-

ate for this rule, primarily because many asbestos hazard

situations are too circumstantial and appropriate response

actions are too “hazard specific” to fit neatly into a discrete

set of prescriptive categories.

846 F.2d at 82, quoting 52 Fed. Reg. at 41838. Disregarding the

fact that the Agency had not correlated the conditions in

buildings — i.e., whether a hazard was present or potentially

present — with the action appropriate to protect human health,

the lower court was willing to accept what EPA purported to

offer in the regulations:

[A] list of specific responses that [EPA] adjudged sufficient

to protect human health, along with a method by which

school officials should be able to determine the least

burdensome resp“ nse in the buildings they supervise.

Id. at 82 (emphasis original) (A-8).

This, however, does not satisfy the congressional mandate.

Even assuming arguendo that EPA could have complied with

the statutory mandate by providing a method to determine what

response action was least burdensome, rather than identifying

that response itself, more fundamentally it was required itself to

determine the response action or actions which protect human

health and the environment in certain identified circumstances

' and to provide the method (i.e., objective criteria) for identify-

ing those circumstances. The final rules simply do not accom-

plish these tasks, and yet the lower court refused to order the

EPA to do otherwise.

As a result, the panic, the confusion, the excess demand for

reliable contractors, the needless expenditure of money, and the

exacerbation rather than elimination of whatever danger may

exist will continue. This is a problem which has risen to a level

of very considerable national importance and ultimately em-

braces the issue not just of asbestos in schools, but the larger

question of asbestos in all public and commercial buildings; and,

for the reasons explained more fully below, this petition for a

writ of certiorari should be granted.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD CORRECT THE DECISION

OF THE LOWER COURT BECAUSE IT FAILED TO

DIRECT EPA TO OBEY THE CLEAR AND UNAMBIG-

UOUS MANDATE OF CONGRESS AND PERMITTED

THE AGENCY INSTEAD MERELY TO DEMON-

STRATE THAT IT HAD MADE A GOOD FAITH EF-

FORT TO COMPLY, A RULING WHICH IS CON-

TRARY TO WELL-ESTABLISHED PRECEDENTS OF

THIS COURT.

As the preceding Statement of the Case shows, the mandate

of AHERA is clear and unmistakable. It was passed against a

background of vagueness, lack of specificity, and unbridled

discretion in the hands of local school officials ill-equipped to

deal with complex scientific data and political pressures. Accord-

ingly, it directed the EPA to do precisely what it had previously

failed to do, i.e., fill in the blanks in three areas — assessment

criteria, response actions for protecting human health and the

environment, and the least burdensome methods to achieve that

important goal.

Yet even a casual reading of the regulations shows that the

EPA did no more than reprint the instructions set forth in

AHERA. They contain no assessment criteria at all and merely

repeat the four circumstances which Congress had already

identified, e.g., “damaged,” “significantly damaged,” etc.; they

do nothing to select “the appropriate response action” which will

protect human health and the environment; and they simply

default on the obligation to select “the least burdensome

methods.”

However, the court of appeals denied petitions for review

and simply countenanced the agency's failure. In so doing, it

refused to direct the agency to comply with a statutory mandate

which is, in pertinent part, clear and unambiguous. Instead, it

chose to bless the EPA’s “good faith” effort to take a step

forward, rather than actually reaching the goal identified by

Congress, and it declined to judge the agency's performance

according to standards previously set by this Court. If left

uncorrected, the opinion of the lower court not only has major

implications for environmental policy, and more particularly the

important public question of asbestos in buildings, but, in

addition, represents a very troubling departure from basic

principles which guide the entire field of administrative law.

On one level, it was thought to be well-established that if

the legislative intent of the statute is clear, the courts will

command the agency to act accordingly. For example, this Court

has articulated the principle as follows:

When a court reviews an agency's construction of the

statute which it administers, it is confronted with two

questions. First, always, is the question whether Congress

has directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.

Chevron, U.S A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43 (1984) (footnote omitted); accord,

Burlington Northern R.R.Co.v. Oklahoma Tax Comm’n, 107 S.

Ct. 1855, 1860 (1987) (if statutory language clearly expresses

intent of Congress, “judicial inquiry is complete”).

Neither AHERA itself nor the legislative history is barren of

ambiguity or self-contradiction. Nonetheless, it is beyond dis-

pute that Congress found the Purple Book inadequate because

of its lack of specificity and mandated the EPA to plug the holes

with specific assessment criteria and response actions which

protect human health and the environment in the least burden-

some manner. It is further beyond dispute that the EPA has

fallen far short of that target.

Nevertheless, the lower court rationalized the EPA’s failure

by suggesting that AHERA was “plainly intended” as a structure

for an “evolving administrative response” to the presence of

asbestos in schools. 846 F.2d at 82 (A-6 and A7). Under this

rationale, the court understood Congress to contemplate that

the EPA would “refine its initial regulatory approaches over

time’ as more information and scientific data became available.

Id. (A-7).

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The court’s rationale cannot withstand scrutiny. As set forth

above, AHERA was “plainly intended,” not as a structure for an

“evolving administrative response,” but as a command to set

assessment criteria, select the appropriate response actions, and

identify the least burdensome methods. The goal is thus clear.

Nevertheless, the lower court’s opinion would lead one to

; believe that the EPA could satisfy its mandate by making some

_ incremental progress toward the goal, rather than actually

achieving it. A fair reading of the statute does not permit this

conclusion. See, e.g., Federal Maritime Comm'n v. Seatrain

Lines, Inc., 411 U.S. 726, 746 (1973) (courts “are not obliged to

stand aside and rubberstamp their affirmance of administrative

decisions that they deem inconsistent with a statutory mandate

or that frustrate the congressional policy underlying a statute’).

Second, the lower court’s rationale, and especially its

cavalier reference to “an evolving administrative response,”

create a dangerous precedent which has no basis in earlier

authority, viz., the notion that although the agency may not

have satisfied the requirements of the legislative mandate, it

suffices for the agency to have demonstrated “good faith” by

taking at least the first step in that direction. This proposition is

utterly without precedential support. To be sure, the courts

have occasionally excused an agency's failure to meet a statutory

deadline or other time requirement, so long as the agency has

acted in “good faith.”25 However, petitioner knows of no case

which supports the proposition that an agency's good faith effort

will excuse a clear failure to satisfy its substantive mandate.

Indeed, such a proposition would drop the standard of perfor-

mance to which agencies have traditionally been held to a level

never before endorsed by this Court or any other tribunal, with

the exception of the court of appeals in this case. This has never

been the law; it should not be the law; and this Court should

grant the writ and reaffirm this basic proposition.

23. See, e.g., Natural Resources Defense. Council, Inc. v. Train, 510

F.2d 692, 713 (D.C. Cir. 1975) (official in question had “in good faith employed

the utmost diligence in discharging his statutory responsibilities”).

Finally, the lower court’s opinion fails to require adherence

by the agency to the standard of performance set out in this

Court’s opinion in Industrial Union Department, AFL-CIO v.

American Petroleum Institute, 448 U.S. 607 (1980). In the last

analysis, the EPA has committed the very evil here which was

condemned in that case: it has promulgated regulations which

might reduce exposure and thus might protect human health,

without any showing that they are in fact sufficient to protect the

American public from the injuries which AHERA intended to

prevent. As in Industrial Union Department, “the record lack(s]

substantial evidence of any discernible benefits.” 448 U.S. at

614. Nevertheless, the lower court declined to hold the agency

to this clearly articulated standard, thus creating a situation

which this Court should grant the writ to correct.

This Court’s decision in Industrial Union Department

suggests an additional, even more troubling problem with the

EPA’s final AHERA rules. Under section 763.80(a) (A-53),

“(llocal education agencies may contractually delegate their

duties” under the’ regulations to private contractors, while

retaining ultimate responsibility for the proper discharge of

those duties. The unavoidable implication of this delegation

provision is that AHERA may be read in such a fashion that it

requires neither the EPA nor the LEA’s to make classification

decisions and select the appropriate and least burdensome

response actions, but instead permits those duties to be dele-

gated to yet some other party. If AHERA can be read in that

manner, however, it must be understood to entail “such a

‘sweeping delegation of legislative power that it might be

unconstitutional” under the authority of A.L.A. Schechter Poul-

try Corp. v. United States, 295 U.S. 495, 539 (1935), and

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). To quote

Industrial Union Department once again, “[a] construction of

the statute that avoids this kind of open-ended grant should

certainly be favored.” 448 U.S. at 646.

The lower court opinion is thus at best troublesome and at

worst dangerous. It fails to direct compliance with an unmistak-

able legislative mandate; it permits the agency instead to escape

its duty by showing that it made a “good faith” effort; it allows

the agency to avoid the requirement that it show, based on

evidence in the record, how its regulations achieve the goals set

by Congress; and it suggests a view of AHERA which, if

accepted, would render the act unconstitutional. Such a result

goes far beyond the issue of asbestos in schools and has

implications which permeate the entire area of administrative

law. For this reason, the Court should grant the writ, reverse

the judgment of the lower court, and reaffirm basic principles

which were previously thought to be the bedrock of our

administrative law system.

Il. THIS COURT’S GUIDANCE IS NEEDED IN THIS

AREA OF GREAT NATIONAL IMPORTANCE WITH

FAR-REACHING FISCAL AND ENVIRONMENTAL

CONSEQUENCES WHERE THE LOWER COURT'S

DECISION IS AT ODDS WITH THE EXPLICIT MAN-

DATE OF CONGRESS, PRECEDENTS OF THIS

COURT, AND SCIENCE.

Apart from the questions of administrative law raised by

this petition, the final AHERA rules have ramifications of

national dimension for our educational system, the economy,

the courts, and the health and safety not only of the current

generation of school children, but all occupants of buildings with

asbestos-containing products.

In the last ten years, the issue of asbestos in buildings has

become a matter of far-reaching public importance. It has

generated massive attention from the media, the scientific

community, the general public which works and lives in build-

ings in which asbestos-containing construction products have

been installed, and the legal profession. Building owners have

filed approximately two hundred law suits, seeking relief in

connection with the abatement of asbestos-containing products;

the United States District Court for the Eastern District of

Pennsylvania has certified a representative action on behalf of a

national class of public and private, elementary and secondary

schools; and, already saddled with tens of thousands of asbestos

personal injury cases, the resources of the state and federal

judicial systems have been taxed to capacity.

The result has been an enormous expenditure of fiscal and

other social resources, exacerbated by an underlying confusion

and uncertainty which plagues the public debate on the entire

question. Much of this turmoil can be traced to the EPA, which

has consistently failed to provide balanced and complete tech-

nical information indispensable to rational decision-making with

respect to asbestos in buildings:

[T]he asbestos-in-schools program [of the EPA] . . . has not

encouraged rational or responsible risk management. Reg-

ulations require that parents be notified if “friable” asbestos

is found, but EPA technical guidance is lacking on how

school officials are to evaluate risks and select appropriate

corrective measures. The potential for panic and overreac-

tion is tremendous—leading to wasted resources and pos-

sibly higher asbestos exposures if complete removal is

undertaken in schools where modest containment measures

are appropriate. The committee urges EPA to provide more

balanced and complete technical information to encourage

more rational and less emotional responses to asbestos in

schools.

H.R. Comm. on Appropriations, Report on Department of

Housing and Urban Development-Independent Agencies Appro-

priation Bill, 1985, H.R. Rep. No. 98-803, 98th Cong., 2d Sess.

19 (1984).

The deficiencies of the EPA's “guidance” provoked a storm

of criticism in the scientific community, the media, the legal

profession, the public at large, and, above all, the government.

To address these concerns, Congress determined that the EPA

should set specific standards for assessing whether the presence

of asbestos in schools poses a hazard, identify the appropriate

response actions, and specify how to accomplish this task using

the least burdensome methods. However, the congressional

mandate has rs been achieved. Thus, the uncertainty and panic

peer ne —- <a —_

will continue; expensive, unnecessary, and perhaps counterpro-

ductive response actions will ensue; and litigation will inevitably

follow.

The fiscal consequences cannot be exaggerated. The EPA

has estimated that the AHERA regulations will affect 107,000

school buildings. 52 Fed. Reg. at 41845. The cost of compliance

is estimated to be in excess of three billion dollars. Id. Thus, the

rule will have a substantial impact on the expenditure of limited

national resources allocated to the education of our children.

However, the impact of the regulations is not merely

financial. To the extent that the regulations perpetuate the

EPA's patently inadequate earlier guidance, the concern which

prompted AHERA persists: some schools will undertake no

response actions at all, while others will indulge in expensive

projects without having the vaguest idea whether their actions

do anything to promote the protection of human health and the

environment. Whatever danger may exist is likely to continue

and, indeed, exposures may only increase as a result of insuffi-

cient federal standards and improper response actions.

Nor are the consequences limited to schools and students.

The EPA estimates that twenty percent of all public and

commercial buildings — approximately 733,000 — contain

friable asbestos-containing products.* The cost of compliance

with the AHERA regulations for those buildings has been

estimated at fifty-one billion dollars.> Thus, while the agency

has not recommended any extension of the AHERA regulations

to those buildings at this time,” the regulations will undoubt-

edly influence the behavior of building owners, whether regu-

lated or not, who can be expected to look to the EPA for the

scientific and objective expertise it was asked explicitly by

Congress to provide on this issue.

24. EPA, Study of Asbestos-Containing Materials in Public Buiidings: A

Report to Congress 8 (Feb. 1988).

25. Id. at 35.

26. Id. at 36; see also id. at 22 (EPA reluctant to extend AHERA

regualtions until there is evidence, now lacking, of a greater risk from asbestos

exposures indoors than outdoors).

buildings.

Il. THE WRIT SHOULD BE GRANTED BECAUSE THE

LOWER COURT'S OPINION ALLOWED THE EPA

TO DISREGARD CONGRESSIONAL DIRECTIONS

TO PROVIDE SCIENTIFIC STANDARDS FOR

SCHOOLS TO RESOLVE ASBESTOS-IN-BUILDINGS

PROBLEMS.

approval, suggest yet a third fundamental reason the writ should

be granted: the EPA has not provided a scientific basis for

schools to use to determine what should be done with asbestos-

containing products found in buildings.

The EPA has rightly been criticized for its failure to set

objective standards based on scientific data,” and AHERA was

passed against a background of clear legislative dissatisfaction

with the failure of the EPA to provide scientific methods to

determine when an asbestos hazard exists. To correct these

deficiencies, Congress ditected the EPA to develop objective

standards based on available scientific data for assessing health

27. See, eg. Major, The United States Environmental Protection

Agency's Asbestos Algorithm Exposed, 3 J. Occup. Health & Safety - Aust. &

N.Z. 215 (1985); Hughes & Weill, Asbestos Exposure—Quantitative Assess-

ment of Risk, 133 Am. Rev. Respiratory Diseases 5, 11 (1985); Corn, Asbestos

and Disease: An Industrial Hygienist's Perspective, 47(9) Am. Ind. Hyg. Assoc.

J. 515, 521 (1986).

hazards and selecting appropriate response actions. That Con-

gress expected a scientific approach to hazard assessment and

response action selection is illustrated by its direction to the

EPA:

[Clonsider and assess the value of various technologies

intended to improve the decisionmaking process regarding

response actions and the quality of any work that is deemed

15 U.S.C. § 2643(c)(2) (A-20).

Without doubt, Congress did not direct the EPA to use air

monitoring standards to accomplish its assigned task, but it did

expect a scientific approach to hazard assessment — that is. an

mining when and what response is appropriate for the variety of

conditions where asbestos is found in school buildings. Only

such an approach would eliminate the subjectivity of the criteria

advanced in the Purple Book for which the EPA has been

consistently criticized.

The legislative admonition to consider air monitoring is

pertectly understandable in light of the EPA's typical use of such

data in connection with pollutants other than asbestos. In fact.

the EPA “commonly publishes an ‘acceptable level’ of exposure

to a contaminant, requires periodic monitoring, and specifies

engineering methods to be applied if those limits are exceeded.”

Gough, Uncle Sam Flunks Asbestos Control In Schools, Issues

in Science and Technology 81, 84 (Spring 1988).

The EPA bareiy paid lip service to this legislative admoni-

tion:

EPA continues to discourage the use of air monitoring as

the primary technique for assessing asbestos hazards, since

that method only measures current conditions and provides

no information about potential and future levels of fiber

release... .

As factors to be used in determining whether response

actions are necessary, [air monitoring data] provide a false

sense of precision regarding the presence and severity of

asbestos hazards and the appropriateness of a given re-

sponse action.

52 Fed. Reg. at 41838.*

Having rejected air sampling techniques, however, EPA

has devised no scientifically proven method for assessing the

perceived dangers of asbestos in buildings — as Congress

pointedly commanded it to do — let alone using such methods

as a yardstick for selecting appropriate response actions. In-

stead, it simply reiterated the subjective factors, advocated by

its prior guidance, which have no basis in science and are

i of consistent application and replication.” Then,

without any further technical or scientific information, the

agency delegated its own statutorily mandated obligation to

determine appropriate response actions to the local educational

agencies and previously criticized “rip and skip” contractors

who, in the future, will be “accredited.” *

2. The concern that air monitoring measures “current” conditions only

and thus may miss higher or “peak” levels at other times is not supported by

the available data which in fact show that any such purported peaks do not add

significantly to cumulative exposures of building occupants. See Crump,

Comments on Issues Related to the Percentage of EPA Criterion Fibers that

Are No Longer than 5 Microns and on the Potential Effects Upon Average

Fiber Concentrations of High Transient Levels (1987), see also EPA, Study of

Ironically, the EPA has now bared its soul and provided the

best evidence of its own failure. The occasion is its belated

report pursuant to Section 213 of AHERA, 15 U.S.C. § 2653,

which directed the agency to submit the results of a study, on or

before October 17, 1987, designed, inter alia, to:

(Cjonsider and report on whether public and commercial

buildings should be subject to the same inspection and

response action requirements that apply to school buildings

Id. § 2653(3) (A-50).

The report® opens with the familiar EPA refrain that there

is “[nJo safe threshold . . . for asbestos,” id. at 5; and then it

(a) quickly proceeds to rely on air sampling data as a measure of

exposure, id. at 10-11, (b) asserts preliminarily that there

appears to be “no difference between levels found in buildings

with [asbestos-containing materials} and outdoor ambient le-

vels,” id. at 12, and (c) finally concludes that whether the

AHERA regulations should be applied to public and commercial

buildings is a decision which must await the assembly of further

data addressing, among other things, prevailing levels of expo-

sure in such buildings, whether removal helps or only makes

matters worse, and whether the AHERA rules have been shown

to have any utility in the schools at all, id. at 21-23. Loosely

translated, the report contains an uninhibited confession that air

monitoring data are indispensable to any rationa’ and systematic

assessment of hazard and that, absent such data, the EPA has no

idea whether its AHERA regulations do anything to protect

human health and the environment, not to mention whether in

fact they only make matters worse.

assessment. Thus, when EPA's own regional asbestos coordinators applied

assessment criteria analogous to those in the AHERA ruies to estimate what

percentage of schools in their regions fitted into each of the AHERA

categories, their estimates varied no less than ten-fold. EPA, Asbestos Hazard

Emergency Response Act Economic Impact Analysis 20, Table 6 (April, 1987).

31. EPA, Study of Asbestos-Containing Materials in Public Buildings. A

Report to Congress (Feb. 1988).

The issue of air monitoring data is merely illustrative of a

more deeply rooted and pervasive problem. Congress did not

require the EPA to employ air monitoring, but it did direct the

agency to consider it and, in so doing, Congress had the benefit

of a history of EPA reliance on scientific data and quantitative

methods. The conclusion is thus inescapable that the congres-

sional mandate to set specific standards was a command to do

what the agency had traditionally done with respect to pollutants

other than asbestos: to establish criteria with a firm basis in

available scientific data —- either through air monitoring or some

other equally systematic and scientifically legitimate methodol-

ogy.

The EPA did neither. It disregarded both the clear statu-

tory mandate and the irrefutable realities of modern science. Yet

the lower court did nothing to correct this deplorable develop-

ment, save to encourage further such administrative behavior.

Thus, the same unguided and ill-disciplined approach to asbes-

tos in buildings may now impact 733,000 buildings, at a public

and private expense running easily in the billions. Such a

situation cannot be tolerated, and therefore, this Court's inter-

vention is sorely needed.

CONCLUSION

For the foregoing reasons, National Gypsum Company

respectfully urges the Court to grant this petition for a writ of

certiorari.

Dated: August 8, 1988

Respectfully submitted,

LAWRENCE T. HOYLE, JR.

(Counsel of Record)

ARLENE FICKLER

RICHARD M. BERNSTEIN

Hoyle, Morris & Kerr

1650 Market Street

Suite 4900

Philadelphia, PA 19103

(215) 981-5710

Attorneys for Petitioner

National Gypsum Company

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A-1

OPINION OF THE

UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-1669

SAFE BUILDINGS ALLIANCE, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

NSBA,

BARNWELL SCHOOL DISTRICT No. 45,

AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS,

GAF Corp.,

ATTORNEY GENERALS OF VARIOUS STATES,

CORPORATION COUNCIL OF D.C.,

AMERICAN FEDERATION OF STATE, COU?TY AND

MUNICIPAL EMPLOYEES, et al., INTERVENORS

No. 87-1670

NATIONAL GYPSUM COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

NSBA,

BARNWELL SCHOOL DISTRICT No. 45,

AMERICAN ASSOCIATION OF SCHOOL ADMINISTR‘ .‘~°S,

INTERVENORS

A-2 Opinion of Court of Appeals

No. 87-1676

UNITED STATES GYPSUM COMPANY, PETITIONER

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 88-1015

MIRRER YESHIVA K’TANAH and

BERNARD FRYSHMAN, PHD., PETITIONERS

¥.

U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 88-1016

JOHN F. WELCH, individually and as parent and

next friend of JOHN W. WELCH, JR. and

DANIEL J. WELCH, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

NSBA,

BARNWELL SCHOOL DISTRICT No. 45,

AMERICAN ASSOC. OF SCHOOL ADMINISTRATORS,

INTERVENORS

PETITIONS FOR REVIEW OF AN ORDER OF

THE ENVIRONMENTAL PROTECTION AGENCY

Argued March 31, 1988

Decided May 10, 1988

Opinion of Court of Appeals A-3

Edward W. Warren, with whom L. Mark Wine, Tim-

othy S. Hardy, John Gibson Mullan, Lawrence T. Hoyle,

Sr., William H. Lewis, Jr. and Thomas R. Bartman were

on the joint brief, for petitioners. James W. Moorman

also entered an appearance for petitioner National Gyp-

sum Company. Robert J. Aamoth also entered an ap-

pearance for petitioner Mirrer Yeshiva K’Tanah and

Bernard Fryshman, Ph.D.

Mary Elizabeth Ward, Attorney, Department of Jus-

tice, with whom Roger J. Marzulla, Acting Assistant At-

torney General, and Alan H. Carpien, Attorney, Environ-

mental Protection Agency, were on the brief, for re-

spondent.

Daniel Guttman, with whom Scott H. Strauss for Citi-

zens Intervenors, Darci L. Rock for National School

Boards Association, et al., Donna L. Dagnall, Thomas

Mark Schmidt for State Attorneys General and August

W. Steinhilber for National School Boards Association

were on the joint brief, for intervenors Citizen Inter-

venors, et al. William A. Anderson also entered an ap-

pearance for intervenors National School Boards Asso-

ciation, et al.

Patrick M. Raher and David F. Grady were on the

brief for intervenor American Association of School

Administrators.

Michael A. Wiegard and Paul A. Zevnik were on the

brief for intervenor GAF Corporation.

Frederick D. Cooke, Jr. entered an appearance for in-

tervenor Corporation Counsel of D.C., et al.

Before: EDWARDS and WILLIAMS, Circuit Judges, and

OBERDORFER,* District Judge.

* Of the United States District Court for the District of

Columbia, sitting by designation pursuant to 28 U.S.C.

§ 292(a).

A-4 Opinion of Court of Appeals

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: Since 1979, the Environ-

mental Protection Agency (“EPA”) has provided tech-

nical assistance to elementary and secondary school offi-

cials in identifying and controlling asbestos in school

buildings. Although EPA required that school buildings

be inspected for asbestos-containing material (“ACM’’)

and that the results of those inspections be reported to

school officials and parents, it supplied only imprecise,

nonbinding advice concerning the repair or removal of

ACM. EPA also declined to say what ambient concen-

trations of asbestos posed a danger to the health of stu-

dents, teachers, administrators and maintenance workers.

As a result, some school officials did nothing, perhaps en-

dangering the health of school building occupants. Others

harkened to the self-interested advice of newly created

asbestos removal firms and ordered removal of all ACM.

Those removals were sometimes unnecessary, at times

even detrimental, since slipshod work may increase am-

bient concentrations of asbestos.

Congress enacted the Asbestos Hazard Emergency Re-

sponse Act of 1986 (“AHERA”), Pub. L. No. 99-519,

100 Stat. 2970 (codified at 15 U.S.C. §§ 2641-2654

(Supp. TV 1986)), in an attempt to right this highly

confused and potentially dangerous state of affairs. Be-

moaning “the lack of regulatory guidance” from EPA,

15 U.S.C. § 2641(a) (1), Congress commanded the agency

to issue regulations within 360 days covering school in-

spections, the accreditation of inspectors and management

planners, and the determination and implementation of

appropriate response actions. 15 U.S.C. § 2643(a).

EPA promulgated regulations prior to the statutory

deadline. The petitioners in this case, former manufac-

turers of ACM, contend that these regulations fail in

1 See 52 Fed. Reg. 41,826-98 (1987) (to be codified at 40

C.F.R. §§ 763.80-.99).

Opinion of Court of Appeals A-5

several ways to fulfill AHERA’s mandate. For reasons

stated herein, we deny their petitions for review.

I. BACKGROUND

AHERA is an admittedly hasty response to a wide-

spread and pressing problem. Given the nature of the

assignment, there was no way for EPA to achieve abso-

lute precision in regulations dealing with asbestos haz-

ards. Indeed, the statute does not even appear to contem-

plate regulatory precision. It requires EPA to “promul-

gate regulations describing a response action in a school

building under the authority of a local educational

agency, using the least burdensome methods which protect

human health and the environment.” 15 U.S.C. § 2643

(d) (1). At first blush, this crucial provision appears to

demand nothing more than a list of appropriate responses

to ACM in various circumstances. Moreover, AHERA

contains incorporating references to EPA’s existing

guidelines, which merely describe different possible re-

sponses, see 15 U.S.C. § 2643(d) (2)-(5), and only re-

quires that local educational agencies, not EPA itself,

develop asbestos management plans for buildings under

their control. See 15 U.S.C. § 2643(i) (1).

Other aspects of the statute, however, suggest that

more specific advice is required. The legislative “find-

ings” in AHERA openly criticize EPA for offering in-

adequate guidance. See 15 U.S.C. § 2641(a). Moreover,

AHERA states explicitly that, “[i]n determining the least

burdensome methods, the Administrator shall take into

account local circumstances, including occupancy and use

patterns within the school building and short- and long-

term costs.” 15 U.S.C. § 2643(d)(1). How EPA is to

make such determinations and how specific they are to

be, given that AHERA covers over 30,000 schools across

the country in divergent circumstances, Congress ne-

glected to say.

A-6 Opinion of Court of Appeals

Complicating EPA’s job further is the uncertainty con-

cerning the dangers of exposure to low leveis of asbestos.

Senator Stafford, one of AHERA’s chief sponsors, noted

that “(t]he American Cancer Society, reflecting prevail-

ing scientific opinion, testified that there is no known

safe level of asbestos exposure and that efforts should be

made to avoid even low-level exposure.” 132 CoNG. REC.

at $15,064 (daily ed. Oct. 3, 1986). He went on to em-

phasize that AHERA only requires EPA to identify re-

sponse actions that are sufficient to protect human health;

it need not prove that a particular response action is

absolutely necessary to protect human health. Jd. at

$15,066. “Doubt,” he said, “should be resolved in favor

of affording greater protection.” Jd. Senator Stafford

further emphasized that EPA need not establish a quan-

titative measure of safety before it permitted or required

certain response actions. See id. at $15,066; Joint Ex-

planatory Statement, id. at S15,065.?

Given Congress’ awareness of the dearth of precise

information about the hazards of exposure to asbestos,

the tight timetable it imposed on EPA, its requirement

that EPA conduct further studies to ascertain “whether

there is a need to establish standards for, and regulate

asbestos exposure in, public and commercial buildings,”

15 U.S.C. § 2653; see 15 U.S.C. § 2641(b) (3), and its

short-term focus on the sufficiency rather than the neces-

sity of certain response actions to protect human health,

Opinion of Court of Appeals A-7

evolving administrative response to the perils posed by

ACM in schools. Congress impelled EPA to act quickly

to address existing hazards. In doing so, it accorded

EPA considerable leeway in determining adequate meth-

ods of dealing with extant problems. Congress expected

EPA to improve on the guidelines it had hitherto offered

to school officials, but it did not—because it could not—

say exactly how fast or how far EPA should go in render-

ing its counsel more precise. Congress contemplated,

however, that EPA would refine its initial regulatory

approaches over time, as more information about the

dangers of asbestos became available, as the relative

merits of different abatement techniques became known,

and as the costs of various responses became clearer. See

Joint Explanatory Statement, 132 Conc. Rec. at $15,065.

It is against the backcloth of this legislative design that

we must assess the petitioners’ objections to EPA’s at-

tempt to embody AHERA’s aims in detailed regulations.

Il. ANALYSIS

A. EPA's Alleged Failure to Define The Least Burden-

some Response Action

The petitioners fault EPA for failing to specify a

single least burdensome response action in the various

situations described in 15 U.S.C. § 2643/d) (2)-(5). In

addition, they contend that EPA abdicated its responsi-

bility by leaving it to school officials to ascertain the least

burdensome abatement methods in the unique circum-

stances of their schools, following their receipt of reports

from accredited inspectors and management planners.

We reject these contentions. Indeed, it is highly ironic

that industry representatives assail] EPA for supplying

inadequate guidance to school officials when their counsel

have assured us that those officials are now thoroughly

satisfied with the regulatory guidance provided by EPA.

Confronted by the Sisyphean task of reconciling Congress’

A-8 Opinion of Court of Appeals

general demand that it describe “a response action . . .

using the least burdensome methods which protect human

health and the environment,” 15 U.S.C. § 2643/d) (1),

with Congress’ injunction to “take into account local cir-

cumstances, including occupancy and use patterns within

the school building and short- and long-term costs” in

over 30,000 cases, id.. EPA reasonably concluded that

some compromises were necessary. In the preamble to its

final rule, EPA stated that “a rigid response action

decision structure is not appropriate for this rule, pri-

marily because many asbestos hazard situations are too

circumstantial and appropriate response actions are too

‘hazard specific’ to fit neatly into a discrete set of pre-

scriptive categories.” 52 Fed. Reg. at 41,838 (1987).

Instead, EPA offered a list of specific responses that it

adjudged sufficient to protect human health, along with

a method by which school officials should be able to deter-

mine the least burdensome response in the buildings they

supervise.

We find that EPA’s regulations effect a reasonable,

faithful interpretation of AHERA’s somewhat contra-

dictory commands.’ As the petitioners concede, “Cong-

gress understood that EPA could not visit thousands of

schools and write a specific plan for managing [ACM]

in each one.” Joint Brief for Petitioners at 22. What

EPA could—and did—do was require that schools be

searched for ACM by inspectors accredited in conformity

with EPA regulations; that officials of schools contain-

ing ACM obtain a report detailing abatement options and

recommendations by a management planner (also ac-

* The rigid “time limits set by Congress indicate that a

reviewing court should accord the [EPA] ‘an extra dollop

of deference.” Puerto Rico Maritime Shipping Auth. v.

Federal Maritime Comm'n, 678 F.2d 327, 336 (D.C. Cir.)

(quoting Houston Lighting & Power Co. v. United States,

606 F.2d 1131, 1145 (D.C. Cir. 1978), cert. denied, 444 U.S.

1073 (1980)), cert. denied, 459 U.S. 906 (1982). We have

done so in reviewing this case.

Opinion of Court of Appeals A-9

credited in accordance with EPA regulations) ; that those

officials, in formulating a management plan, choose from

among the set of response actions found by EPA to be

sufficient to protect human health and the enviromnent;

and that their plan be approved by the state governor,

thereby assuring further oversight. This seems to us a

careful, intelligent attempt to meet Congress’ confusing

demands. In light of the deference due EPA in these

circumstances, we cannot but reject the petitoners’ ob-

jection.

B. EPA's Failure to Establish Safe Levels of Asbestos

Exposure

The petitioners argue that, even if EPA need only

define response actions sufficient to protect human health

and the environment in a variety of situations, it cannot

do so without first determining what levels of asbestos

exposure are safe. Yet, EPA has not pronounced any

ambient concentrations safe or unsafe. Hence, they con-

tend, EPA’s regulations lack a rational basis, and must

be set aside as arbitrary and capricious.

This argument is meritless. Congress explicitly recog-

nized that experts presently disagree over what levels

of exposure are safe. See 132 Conc. Rec. at S15,064-66.

Nevertheless, it stated that EPA’s existing guidelines

should serve as minimum standards in devising appro-

priate response actions. Congress nowhere said that EPA

need rely exclusively or even mainly on air monitoring

techniques in selecting response actions, or that it need

establish a quantitative measure that it deems safe. In-

deed, the legislative history affirmatively suggests an

intent not to impose such requirements. See id.; see also

132 Conc. Rec. at H8823 (daily ed. Oct. 1, 1986) (re

marks of Representative Florio). Congress left these

matters for EPA to decide, and commissioned further

studies of the hazards of asbestos exposure. Congress

A-10 Opinion of Court of Appeals

envisioned growing precision in EPA’s regulations over

time, as more information becomes available, but it did

not intend that EPA do nothing until scientific experts

agreed on a quantitative measure of safety. Indeed, the

petitioners’ insistence that EPA construct a quantitative

model before it do anything else offends common sense

as well as congressional intent, for the potential hazards

posed by presently undamaged ACM obviously could not

be quantified or measured by air monitoring techniques.

See 52 Fed. Reg. at 41,888 (1987) (defending EPA’s

recommendation of visual inspection as the primary

monitoring technique).

It should also be borne in mind that EPA’s regulations

were framed against the backdrop of past proceedings

tc *stablish safe levels of asbestos. See 52 Fed. Reg. at

41,844. This is not a case where an agency, confronted

by conflicting evidence, merely threw up its hands and

declined to act. Rather, EPA conducted hearings in an

attempt to determine the dangers associated with differ-

ent concentrations of asbestos. Because Congress required

it to define response actions that are sufficient to protect

human health (erring on the side of caution), not to

find the absolute minimum responses necessary to ac-

complish that end, EPA considered it unnecessary to

resolve prevailing disagreements among scientific experts.

Instead, it selected response actions that Congress and

most experts deemed sufficient to protect those who study

or work in school buildings. In view of the special defer-

ence owed to an agency’s expert judgment on matters

at the frontiers of science, see, ¢.g., Baltimore Gas &

Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983); Public

Citizen Health Research Group v. Tyson, 796 F.2d 1479,

1504-05 (D.C. Cir. 1986), we can hardly brand EPA’s

failure to establish a safe level of exposure or to require

the use of air monitoring arbitrary and capricious.

eV ES ele Lincs

Opinion of Court of Appeals A-1]1

C. EPA’s Decision to Permit Removal of ACM in All

Cases

Section 763.90(a) of EPA’s regulations reads in part:

“Nothing in this section shall be construed to prohibit

removal of [ACM] from a school building at any time,

should removal be the preferred response action of the

local education agency.”

The petitioners advance two objections to this provision.

They argue, first, that EPA possesses no evidence show-

ing that the removal of ACM is ever beneficial. The avail-

able evidence, they say, reveals that even properly con-

ducted removals raise asbestos levels, and that EPA

should therefore have forbidden removals. Joint Brief for

Petitioners at 40-43. Second, they argue that, even if

their first point is unsound, EPA should not have per-

mitted removals when current asbestos levels are below

the “clearance level” that must be attained whenever

an abatement action is performed, id. at 43-44, or when

they are not the least burdensome method of curing a

school’s asbestos problem. Brief of Intervenor GAF Corp.

at 21 n.15.

EPA considered and reasonably rejected the first of .

these arguments. See 52 Fed. Reg. at 41,844. It noted

that studies showing increases in asbestos levels following

removal were based on a small sample of cases, in at

least some of which abatement actions were not done

properly. EPA’s regulations covering removal were in- -

tended to prevent this occurrence in the future. To the

extent that the petitioners have a quarrel with EPA’s

regulations, their dissatisfaction should be directed at

those provisions that were designed to preclude unsafe and

incomplete removals, not at the clause permitting re-

movals in circumstances where school officials consider

removals prudent. The petitioners, however, have not

challenged those provisions.

The conclusion that EPA acted properly in not banning

removals appears inescapable in light of the fact that

A-12 Opinion of Court of Appeals

Congress apparently assumed that removal would always

be an option. For example, Congress set as a2 minimum

the response actions described in EPA’s existing guide-

lines and those response actions include removal in al-

most every case. See 15 U.S.C. § 2643(d) (2)-(5). Sena-

tors Stafford and Moynihan also mentioned removal as an

option for local educational agencies. See 132 CONG.

Rec. at §15,066, $15,068. The petitioners’ broadside

attack on the permissibility of removal, based in part

on studies involving removal techniques that are not

now authorized and despite contrary indications in the

legislative history, is unavailing.

The petitioners’ second argument is patently mistaken.

It may be the case that in some instances well-performed

removal is merely innocuous rather than beneficial. But

that fact, although a sound reason for school officials not

to waste money on needless removals, is not an adequate

reason for EPA to proscribe removals in some or all

cases. The legislative history renders it abundantly clear

that EPA, as Senator Baucus said, “should not discourage

a school from going ahead and eliminating their long-

term asbestos problem if school officials should decide

that is the best course of action.” 1382 CoNG. REC. at

S15,067; see id. at S15,066 (remarks of Senator Staf-

ford).* Moreover, Congress stated clearly that AHERA

does not constrain school officials to use the least bur-

densome method found by EPA to be sufficient to protect

human health and the environment. EPA’s regulation

* In response to the argument that EPA’s regulations might

be read as biased in favor of removal as an appropriate re-

sponse, Government counsel assured this court in oral argu-

ment that the regulations were intended to be—as on their

face they are—neutral with respect to the advisability of re-

moving ACM in some or all situations. It is on the under-

standing that the regulations are neutral on this point that we

uphold them.

Opinion of Court of Appeals A-13

permitting removal in all cases is thus fully in accord

with congressional intent.®

III. CONCLUSION

EPA’s regulations defining least burdensome response

actions, establishing a method by which management

plans are to be formulated and implemented, arid per-

mitting removal of ACM if school officials so desire rep-

resent a reasonable interpretation of AHERA’s less than

pellucid demands. Accordingly, we deny the petitions

for review.

So ordered.

5 The petitioners raise two minor objections to EPA’s regu-

lations, both of which we reject.

First, intervenor GAF Corporation contends that EPA has

illicitly expanded AHERA’s definition of “school building”

by adding to it “[a]ny portico or covered exterior hallway

or walkway” and “[a]ny exterior portion of a mechanical

system used to condition interior space.” Compare 15 U.S.C.

§ 2642(13) with 40 C.F.R. § 763.83. We find sufficient EPA’s

explanation that “these exterior areas, by virtue of the ac-

cessibility of the ACM found there, warrant inclusion under

the rule.” 52 Fed. Reg. at 41,829. EPA’s additions only make

explicit what is implicit in AHERA’s definition of “school

building” and help to effectuate Congress’ aims.

Second, the American Association of School Administra-

tors (“AASA”) argues that EPA, in following AHERA’s own

timetable, set unreasonably short deadlines for the submission

of management plans, that it could have and should have

extended those deadlines, and that its failure to do so consti-

tutes arbitrary and capricious agency action. This argument

is baseless. Not only does AHERA impose mandatory dead-

lines, which EPA accurately transcribed in its regulations, but

AASA never adduced anything approaching persuasive evi-

dence that schools could not comply with those deadlines. See

Comments of AASA (Aug. 25, 1987), reprinted in J.A. 974.

Hence, we see no reason to overturn EPA’s decision not to

amend its regulations.

A-14

TEXT OF ASBESTOS HAZARD EMERGENCY

RESPONSE ACT, 15 U.S.C. § 2641, et seg.

§2641. Congressional findings and declaration of purpose

(a) Findings

The Congress finds the following:

(1) The Environmental Protection Agency’s rule on

local educational agency inspection for, and notification

of, the presence of friable asbestos-containing material

in school buildings includes neither standards for the

proper identification of asbestos-containing material and

appropriate response actions with respect to friable

asbestos-containing material, nor a requirement that

response actions with respect to friable asbestos-

containing material be carried out in a safe and complete

manner once actions are found to be necessary. As a

result of the lack of regulatory guidance from the

Environmental Protection Agency, some schools have

not undertaken response action while many others have

undertaken expensive projects without knowing if their

action is necessary, adequate, or safe. Thus, the danger

of exposure to asbestos continues to exist in schools, and

some exposure actually may have increased due to the

lack of Federal standards and improper response action.

(2) There is no uniform program for accrediting

persons involved in asbestos identification and abate-

ment, nor are local educational agencies required to use

accredited contractors for asbestos work.

(3) The guidance provided by the Environmental

Protection Agency in its “Guidance for Controlling

Asbestos-Containing Material in Buildings” is insuffi-

cient in detail to ensure adequate responses. Such

guidance is intended to be used only until the regula-

tions required by this title become effective.

(4) Because there are no Federal standards whatso-

ever regulating daily exposure to asbestos in other public

and commercial buildings, persons in addition to those

AHERA Statute A-15

comprising the Nation’s school population may be ex-

posed daily to asbestos.

(b) Purpose

The purpose of this subchapter is —

(1) to provide for the establishment of Federal

regulations which require inspection for asbestos-

containing material and implementation of appropriate

response actions with respect to asbestos-containing

material in the Nation’s schools in a safe and complete

manner;

(2) to mandate safe and complete periodic reinspec-

tion of school buildings following response actions,

where appropriate; and

(3) to require the Administrator to conduct a study

to find out the extent of the.danger to human health

posed by asbestos in public and commercial buildings

and the means to respond to any such danger.

(Pub.L. 94-469, Title II, § 201, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2970.)

§ 2642. Definitions

For purposes of this subchapter —

(1) Accredited asbestos contractor

The term “accredited asbestos contractor” means a

person accredited pursuant to the provisions of section

2646 of this title.

(2) Administrator

The term “Administrator” means the Administrator

of the Environmental Protection Agency.

' (3) Asbestos

The term “asbestos” means asbestiform varieties of

(A) chrysotile (serpentine),

(B) crocidolite (riebeckite),

(D) anthophyllite,

A-16 AHERA Stutute

(E) tremolite, or

(F) actinolite.

(4) Asbestos-containing material

The term “asbestos-containing material” means any

material which contains more than 1 percent asbestos

by weight.

(5) EPA guidance document

The term “Guidance for Controlling Asbestos-Con-

taining Material in Buildings” means the Environmental

Protection Agency document with such title as in effect

on March 31, 1986.

(6) Friable asbestos-containing material

The term “friable asbestos-containing material”

means any asbestos-containing material applied on ceil-

ings, walls, structural members, piping, duct work, or

any other part of a building which when dry may be

crumbled, pulverized, or reduced to powder by hand

pressure. The term includes non-friable asbestos-

containing material after such previously non-friable

material becomes damaged to the extent that when dry

it may be crumbled, pulverized, or reduced to powder by

hand pressure. —

(7) Local educational agency

The term “local educational agency” means —

(A) any local educational agency as defined in

section 198 of the Elementary and Secondary Edu-

cation Act of 1965 (20 U.S.C. 3381),

(B) the owner of any private, nonprofit elemen-

tary or secondary school building, and

ated under the defense dependents’ education sys-

tem provided for under the Defense Dependents’

Education Act of 1978 (20 U.S.C. 921 et seq.).

(8) Most current guidance document

The term “most current guidance document” means

the Environmental Protection Agency’s “Guidance for

AHERA Statute A-17

Controlling Asbestos-Containing Material in Buildings”

as modified by the Environmental Protection Agency

after March 31, 1986.

(9) Non-profit elementary or secondary school

The term “non-profit elementary or secondary

school” means any elementary or secondary school (as

defined in section 2854 of Title 20) owned and operated

by one or more nonprofit corporations or associations no

part of the net earnings of which inures, or may lawfully

inure, to the benefit of any private shareholder or

individual.

(10) Public and commercial building

The term “public and commercial building” means

any building which is not a school building, except that

the term does not include any residential apartment

building of fewer then 10 units.

(11) Response action

The term “response action” means methods that

protect human health and the environment from

asbestos-containing material. Such methods include

methods describedin chapters 3 and 5 of the Environ-

mental Protection Agency’s “Guidance for Controlling

Asbestos-Containing Materials in Buildings.”

(12) School

The term “school” means any elementary or second-

ary school as defined in section 2854 of Title 20.

(13) School building

The term “school building” means —

(A) any structure suitable for use as a class-

room, including a school facility such as a labora-

tory, library, school eating facility, or facility used for

the preparation of food,

(B) any gymnasium or other facility which is

especially designed for athletic or recreational activ-

ities for an academic course in physical education,

A-18 AHERA Statute

students or for the administration of educational or

research programs, and

(D) any maintenance, storage, or utility facility,

including any hallway, essential to the operation of

any facility described in subparagraphs (A), (B), or

(C).

(14) State

The term “State” means a State, the District of

Columbia, The Commonwealth of Puerto Rico, Guam,

American Samoa, the Northern Marianas, the Trust

Territory of the Pacific Islands, and the Virgin Islands.

(Pub.L. 94-469, Title II, § 202, as added Pub.L. 99-519

§ 2, Oct. 22, 1986, 100 Stat. 2971.)

§ 2643. Environmental Protection Agency regulations

(a) In general

Within 360 days after October 22, 1986, the Admin-

istrator shall promulgate regulations as described in

subsections (b) through (i) of this section. With respect

to regulations described in subsections (b), (c), (d), (e),

(f), (g), and (i) of this section, the Administrator shall

issue an advanced notice of proposed rulemaking within

60 days after October 22, 1986, and shall propose

regulations .1t1in 180 days after such date. Any regu-

lation promulgated under this section must protect

human health and the environment.

(b) Inspection

The Administrator shall promulgate regulations

which prescribe procedures, including the use of per-

sonnel accredited under section 2646(b) or (c) of this

title and laboratories accredited under section 2646(d) of

this title, for determining whether asbestos-containing

material is present in a school building under the

authority of a local educational agency. The regulations

AHERA Statute A-19

shall provide for the exclusion of any school building, or

portion or a school building, if (1) an inspection of such

school building (or portion) was completed before the

effective date of the regulations, and (2) the inspection

meets the procedures and other requirements of the

regulations under this subchapter or of the “Guidance

for Controlling Asbestos-Containing Materials in Buil-

dings” (unless the Administrator determines that an

inspection in accordance with the guidance document is

inadequate). The regulations shall require inspection of

any school building (or portion of a school building) that

is not excluded by the preceding sentence.

(1) The Administrator shall promulgate regulations

which define the appropriate response action in a school

building under the authority of a local educational

agency in at least the following circumstances:

(A) Damage

Circumstances in which friable asbestos-

containing material or its covering is damaged,

deteriorated, or delaminated.

(B) Significant damage

Circumstances in which friable asbestos-

containing material or its covering is significantly

damaged, deteriorated, or delaminated.

Circumstances in which —

(i) friable asbestos-containing material is in

an area regularly used by building occupants,

including maintenance personnel, in the course

of their normal activities, and

A-20 AHERA Statute

(ii) there is a reasonable likelihood that the

material or its covering will become damaged,

deteriorated, or delaminated.

(D) Potential significant damage

Circumstances in which —

(i) friable asbestos-containing material is in

an area regularly used by building occupants,

including maintenance personnel, in the course

of their normal activities, and

(ii) there is a reasonable likelihood that the .

material or its covering will become significantly

damaged, deteriorated, or delaminated.

(2) In promulgating such regulations, the Adminis-

trator shall consider and assess the value of various

technologies intended to improve the decisionmaking

process regarding response actions and the quality of

any work that is deemed necessary, including air mon-

itoring and chemical encapsulants.

(d) Response actions

(1) In general

The Administrator shall promulgate regulations de-

scribing a response action in a school building under the

authority of a local educational agency, using the least

burdensome methods which protect human health and

the environment. In determining the least burdensome

methods, the Administrator shall take into account local

circumstances, including occupancy and use patterns

within the school building and short- and long-term

costs.

(2) Response action for damaged asbestos

In the case of a response action for the circum-

stances described in subsection (c)(1)(A) of this section,

methods for responding shall include methods identified

AHERA Statute A-2]

in chapters 3 and 5 of the “Guidance for Controlling

Asbestos-Containing Material in Buildings.”

(3) Response action for significantly damaged

asbestos

In the case of a response action for the circum-

stances described in subsection (c) 1)(B) of this section,

methods for responding shall include methods identified

in chapter 5 of the “Guidance for Controlling Asbestos-

Containing Material in Buildings.”

(4) Response action for potentially damaged as-

bestos é'

In the case of a response action for the circum-

stances described in subsection (c\(1)(C), of this sec-

tion, methods for responding shall include methods

identified in chapters 3 and 5 of the “Guidance for

Controlling Asbestos-Containing Material in Buildings,”

unless preventive measures will eliminate the reason-

able likelihood that the asbestos-containing material will

become damaged, deteriorated, or delaminated.

(5) Response action for potentially significantly

damaged asbestos

In the case of a response action for the circum-

stances described in subsection (c)( 1 )(D) of this section,

methods for responding shall include methods identified

in chapter 5 of the “Guidance for Controlling Asbestos-

Containing Material in Buildings,” unless preventive

measures will eliminate the reasonable likelihood that

the asbestos-containing material will become signifi-

cantly damaged, deteriorated, or delaminated.

(6) Preventive measures defined

For purposes of this section, the term “preventive

measures” means actions which eliminate the reason-

able likelihood of asbestos-containing material becoming

damaged, deteriorated, or delaminated, or significantly

damaged, deteriorated, or delaminated (as the case may

be) or which protect human health and the environ-

ment.

A-22 AHERA Statute

(e) Implementation

The Administrator shall promulgate regulations re-

quiring the implementation of response actions in school

buildings under the authority of a local educational

agency and, where appropriate, for the determination of

when a response action is completed. Such regulations

shall include standards for the education and protection

of both workers and building occupants for the following

phases of activity:

(1) Inspection.

(2) Response Action.

(3) Post-response action, including any periodic

reinspection of asbestos-containing material and

long-term surveillance activity.

(f) Operations and maintenance

The Administrator shall promulgate regulations to

require implementation of an operations and mainte-

nance and repair program as described in chapter 3 of

the “Guidance for Controlling Asbestos-Containing Ma-

terials in Buildings” for all friable asbestos-containing

material in a school building under the authority of a

local educational agency.

(g) Periodic surveillance

The Administrator shall promulgate regulations to

require the following:

(1) An identification of the location of friable

and non-friable asbestos in a school building under

the authority of a local educational agency.

(2) Provisions for surveillance and periodic rein-

spection of such friable and non-friable asbestos.

AHERA Statute A-23

(3) Provisions for education of school employ-

ees, including school service and maintenance per-

sonnel, about the location of and safety procedures

with respect to such friable and non-friable asbestos.

(h) Transportation and disposal

The Administrator shall promulgate regulations

which prescribe standards for transportation and dis-

posal of asbestos-containing waste material to protect

human health and the environment. Such regulations

shall include such provisions related to the manner in

which transportation vehicles are loaded and unloaded

as will assure the physical integrity of containers of

asbestos-containing waste material.

(i) Management plans

(1) In general

The administrator shall promulgate regulations

which require each local educational agency to develop

an asbestos management plan for school buildings un-

der its authority, to begin implementation of such plan

within 990 days after October 22, 1986, and to complete

implementation of such plan in a timely fashion. The

regulations shall require that each plan include the

following elements, wherever relevant to thc school

building:

(A) An inspection statement describing inspec-

tion and response action activities carried out before

October 22, 1986.

(B) A description of the results of the inspection

conducted pursuant to regulations under subsection

(b) of this section, including a description of the

specific areas inspected.

taken to respond to any friable asbestos-containing

material pursuant to the regulations promulgated

A-24 AHERA Statute

under subsections (c), (d), and (e) of this section,

including the location or locations at which a re-

sponse action will be taken, the method or methods

of response action to be used, and a schedule for

beginning and completing response actions.

(D) A detailed description of any asbestos-

containing material which remains in the school

building once response actions are undertaken pur-

suant to the regulations promulgated under subsec-

tions (c), (d), and (e) of this section.

(E) A plan for periodic reinspection and long-

term surveillance activities developed pursuant to

regulations promulgated under subsection (g) of

this section, and a plan for operations and mainte-

nance activities developed pursuant to regulations

promulgated under subsection (f) of this section.

(F) With respect to the person or persons who

inspected for asbestos-containing material and who

will design or carry out response actions with re-

spect to the friable asbestos-containing material, one

of the following statements:

(i) If the State has adopted a contractor

accreditation plan under section 2646(b) of this

title, a statement that the person (or persons) is

accredited under such plan.

(ii) A statement that the local educational

agency used (or will use) persons who have

been accredited by another State which has

adopted a contractor accreditation plan under

section 2646(b) of this ‘title or is accredited

pursuant to an Administrator-approved course

under section 2646(c) of this title.

(G) A list of the laboratories that analyzed any

bulk samples of asbestos-containing material found

in the school building or air samples taken to detect

AHERA Statute A-25

asbestos in the school building and a statement that

each laboratory has been accredited pursuant to the

accreditation program under section 2646(d) of this

title.

(H) With respect to each consultant who con-

tributed to the management plan, the name of the

consultant and one of the following statements:

(i) If the State has adopted a contractor

accreditation plan under section 2646(b) of this

title, a statement that the consultant is accred-

ited under such plan.

(ii) A statement that the contractor is ac-

credited by another State which has adopted a

contractor accreditation plan under section

2646(b) of this title or is accredited pursuant to

an Administrator-approved course under section

2646(c) of this title.

(I) An evaluation of resources needed to suc-

cessfully complete response actions and carry out

reinspection, surveillance, and operation and main-

tenance activities.

(2) Statement by contractor

A local educational agency may require each man-

agement plan to contain a statement signed by an

accredited asbestos contractor that such contractor has

prepared or assisted in the preparation of such plan, or

has reviewed such plan, and that such plan is in

compliance with the applicable regulations and stan-

dards promulgated or adopted pursuant to this section

and other applicable provisions of law. Such a statement

may not be signed by a contractor who, in addition to

preparing or assisting in preparing the management

plan, also implements (or will implement) the manage-

ment plan.

A-26 AHERA Statute

(3) Warning labels

(A) The regulations shall require that each local

educational agency which has inspected for and

discovered any asbestos-containing material with

respect to a school building shall attach a warning

label to any asbestos-containing material still in

routine maintenance areas (such as boiler rooms) of

the school building, including —

(i) friable asbestos-containing material

which was responded to by a means other than

removal, and

(ii) asbestos-containing material for which

no response action was carried out.

(B) The warning label shall read, in print which

is readily visible because of large size or bright color,

as follows: “CAUTION: ASBESTOS. HAZARD-

OUS. DO NOT DISTURB WITHOUT PROPER

TRAINING AND EQUIPMENT.”

(4) Submission of plan in stages , -

A local educational agency may submit a manage-

ment plan in stages, with each submission of the agency

covering only a portion of the school buildings under the

agency’s authority, if the agency determines that such

action would expedite the identification and abatement

of hazardous asbestos-containing material in the school

buildings under the authority of the agency.

(5) Public Availability

A copy of the management plan developed under the

regulations shall be available in the administrative of-

fices of the local educational agency for inspection by

the public, including teachers, other school personnel,

and parents. The local educational agency shall notify

parent, teacher, and employee organizations of the avail-

ability of such plan.

AHERA Statute A-27

(6) Submission to State Governor

Each plan developed under this subsection shall be

submitted to the State Governor under section 2645 of

this title.

(j) Changes in regulations

Changes may be made in the regulations promul-

gated under this section only by rule in accordance with

section 553 of Title 5. Any such change must protect

human health and the environment.

(k) Change in Guidance Document

Any change made in the “Guidance for Controlling

Asbestos-Containing Material in Buildings” shall be

made only by rule in accordance with section 553 of

Title 5, unless a regulation described in this section

dealing with the same subject matter is in effect. Any

such change must protect human health and the envi-

ronment.

(1) Treatment of Department of Defense schools

(1) Secretary to act in lieu of Governor

In the administration of this subchapter, any func-

tion, duty, or other responsibility imposed on a Governor

of a State shall be carried out by the Secretary of Defense

with respect to any school operated under the defense

dependents’ education system provided for under the

Defense Dependents’ Education Act of 1978 (20 U.S.C.

921 et seq.).

(2) Regulations

The Secretary of Defense, in cooperation with the

Administrator, shall, to the extent feasible and consis-

tent with the national security, take such action as may

be necessary to provide for the identification, inspection,

and management (including abatement) of asbestos in

any building used by the Department of Defense as an

overseas school for dependents of members of the

A-28 AHERA Statute

Armed Forces. Such identification, inspection, and man-

agement (including abatement) shall, subject to the

preceding sentence, be carried out in a manner compa-

rable to the manner in which a local educational agency

is required to carry out such activities with respect to a

school building under this subchapter.

(m) Waiver

The Administrator, upon request by a Governor and

after notice and comment and opportunity for a public

hearing in the affected State, may waive some or all of

the requirements of this section and section 2644 of this

title with respect to such State if it has established and is

implementing a program of asbestos inspection and

management that contains requirements that are at

least as stringent as the requirements of this section and

section 2644 of this title.

(Pub.L. 94-469, Title II, § 203, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2972).

§ 2644. Requirements upon failure of EPA to promulgate

regulations

(a) In general

(1) Failure to promulgate

If the Administrator fails to promulgate within the

prescribed period —

(A) regulations described in section 2643(b) of

this title (relating to inspection);

(B) regulations described in section 2643(c),

(d), (e), (fF), (g), and (i) of this title (relating to

responding to asbestos); or

this title (relating to transportation and disposal);

AHERA Statute A-29

each local educational agency shall carry out the re-

quirements described in this section in subsection (b) of

this section; subsections (c), (d), and (e) of this section;

or subsection (f) of this section; respectively, in accor-

dance with the Environmental Protection Agency’s most

current guidance document.

(2) Stay by court

If the Administrator has promulgated regulations

described in paragraph (1)(A), (B), or (C) within the

prescribed period, but the effective date of such regula-

tions has been stayed by a court for a period of more than

30 days, a local educational agency shall carry out the

pertinent requirements described in this subsection in

accordance with the Environmental Protection Agency’s

most current guidance document.

(3) Effective period

The requirements of this section shall be in effect

until such time as the Administrator promulgates the

pertinent regulations or until the stay is lifted (as the

case may be).

(b) Inspection

(1) Except as provided in paragraph (2), the local

educationai agency, within 540 days after October 22,

1986, shall conduct an inspection for asbestos-

containing material, using personnel accredited under

section 2646(b) or (c) of this title and laboratories

accredited under section 2646(d) of this title, in each

school building under its authority.

(2) The local educational agency may exclude from -

the inspection requirement in paragraph (1) any school

building, or portion of a school building, if (A) an

inspection of such school building (or portion) was

completed before the date on which this section goes

into effect, and (B) the inspection meets the inspection

requirements of this section.

A-30 AHERA Statute

The local educational agency shall, within 720 days

after October 22, 1986 develop and begin implementa-

tion of an operation and maintenance plan with respect

to friable asbestos-containing material in a school build-

ing under its authority. Such plan shall provide for the

education of a school service and maintenance person-

nel about safety procedures with respect to asbestos-

containing material, including friable asbestos-

containing material.

(d) Management Plan

(1) In general

The local educational agency shall —

(A) develop a management plan for responding

to asbestos-containing material in each school build-

ing under its authority and submit such plan to the

Governor under section 2645 of this title within 810

days after October 22, 1986, and

(B) begin implementation of such plan within

990 days after October 22, 1986, and

timely fashion.

(2) Plan requirements

The management plan shall —

(A) include the elements listed in section

2643(i)(1) of this title, including an inspection state-

ment as described in paragraph (3) of this section,

(B) provide for the attachment of warning labels

as described in section 2643(i)(3) of this title,

current guidance document,

AHERA Statute A-31

(D) meet the standard described in paragraph

(4) for actions described in that paragraph, and

(E) be submitted to the State Governor under

section 2645 of this title.

(3) Inspection statement

The local educational agency shall complete an

inspection statement, covering activities carried out be-

fore October 22, 1986, which meets the following re-

quirements:

(A) The statement shall include the following

information: |

(i) The dates of inspection.

(ii) The name, address, and qualifications of

each inspector.

(iii) A description of the specific areas in-

spected.

(iv) A list of the laboratories that analyzed

any bulk samples of asbestos-containing mate-

rial or air samples of asbestos found in any

school building and a statement describing the

qualifications of each laboratory.

(v) The results of the inspection.

(B) The statement shall state whether any ac-

tions were taken with respect to any asbestos-

containing material found to be present, including a

specific reference to whether any actions were taken

in the boiler room of the building. If any such action

was taken, the following items of information shall

be included in the statement:

(i) The location or locations at which the

action was taken. ;

(ii) A description of the method of action.

A-32 AHERA Statute

(iii) The qualifications of the persons who

conducted the action.

(4) Standard

The ambient interior concentration of asbestos after

the completion of actions described in the most current

guidance document, other than the type of action de-

scribed in sections 2643(f) of this title and subsection (c)

of this section, shall not exceed the ambient exterior

concentration, discounting any contribution for any lo-

cal stationary source. Either a scanning electron micro-

scope or a transmission electron microscope shall be

used to determine the ambient interior concentration. In

the absence of reliable measurements, the ambient

exterior concentration shall be deemed to be —

(A) less than 0.003 fibers per cubic centimeter if

a scanning electron microscope is used, and

(B) less than 0.005 fibers per cubic centimeter if

a transmission electron microscope is used.

(5) Public availability

A copy of the management plan shall be available in

the administrative offices of the local educational agency

for inspection by the public, including teachers, other

school personnel, and parents. The local educational

agency shall notify parent, teacher, and employee orga-

nizations of the availability of such plan.

(e) Building occupant protection

The local educational agency shall provide for the

protection of building occupants during each phase of

activity described in this section.

(f) Transportation and disposal

The local educational agency shall provide for the

transportation and disposal of asbestos in accordance

with the most recent version of the Environmental

AHERA Statute A-33

Protection Agency’s “Asbestos Waste Management Gui-

dance” (or any successor to such document).

(Pub.L. 94-469, Title II, § 204, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2977.)

§ 2645. Submission of management plan to State Gover-

nor

(a) Time for submission

Within 720 days after Oct. 22, 1986 (or within 310

days if there are no regulations under section 2643(i) of

this title) a local educational agency shall submit a

management plan developed pursuant to regulations

promulgated under section 2643(i) of this title (or under

section 2644(d) of this title if there are no regulations) to

the Governor of the State in which the local educational

agency is located.

(b) Duties of Governor

Within 360 days after Oct. 22, 1986, the Governor of

each State —

(1) shall notify local educational agencies in the

State of where to submit their management plans

under this section, and

(2) may establish administrative procedures for

reviewing management plans submitted under this

section.

If the Governor establishes procedures under para-

graph (2), the Governor shall designate to carry out the

reviews those State officials who are responsible for

implementing environmental protection or other public

health programs, or with authority over asbestos pro-

grams, in the State.

A-34 AHERA Statute

(1) Grounds for disapproval of plan

The Governor may disapprove a management plan

within 90 days after the date of receipt of the plan if the

plan —

(A) does not conform with the regulations un-

der section 2643(i) of this title (or with section

2644(d) of this title if there are no regulations),

(B) does not assure that contractors who are

accredited pursuant to this subchapter will be used

to carry out the plan, or

which is reasonable and timely, taking into account

circumstances relevant to the speed at which the

friable asbestos-containing material in the school

buildings under the local education agency’s author-

ity should be responded to, including human expo-

sure to the asbestos while the friable asbestos-

containing material remains in the school building,

and the ability of the local educational agency to

continue to provide educational services to the com-

munity.

(2) Revision of plan

If the State Governor disapproves a plan, the State

Governor shall explain in writing to the local educational

agency the reasons why the plan was disapproved and

the changes that need to be made in the pian. Within 30

days after the date on which notice is received of

disapproval of its plan, the local educational agency shall

revise the plan to conform with the State Governor's

suggested changes. The Governor may extend the 30-

day period for not more than 90 days.

(Pub.L. 94-469, Title [1, § 205, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2979.)

AHERA Statute A-35

§ 2646. Contractor and laboratory accreditation

(a) Necessity for accreditation

A person may not —

(1) inspect for asbestos-containing material in a

school building under the authority of a local edu-

cational agency,

(2) prepare a management plan for such a

school, or

(3) design or conduct response actions, other

than the type of action described in sections 2643(f)

and 2644(c) of this title, with respect to friable

asbestos-containing material in such a school,

unless such person is accredited by a State under

subsection (b) of this section or is accredited pursuant to

an Administrator-approved course under subsection (c)

of this section.

(b) Accreditation by State

(1) Model plan

(A) Persons to be accredited

Within 180 days after October 22, 1986, the

Administrator, in consultation with affected organi-

zations, shall develop a model contractor accredita-

tion plan for States to give accreditation to persons

in the following categories:

(i) Persons who inspect for asbestos-

containing material in school buildings under

the authority of a local educational agency.

(ii) Persons who prepare management

plans for such schools.

(iii) Persons who design or carry out re-

sponse actions, other than the type of action

A-36 AHERA Statute

described in sections 2643(f) and 2644(c) of this

title, with respect to friable asbestos-containing

material in such schools.

(B) Plan requirements

The plan shall include a requirement that any

person in a category listed in paragraph (1) achieve

a passing grade on an examination and participate

in continuing education to stay informed about

current asbestos inspection and response action

technology. The examination shall demonstrate the

knowledge of the person in areas that the Adminis-

trator prescribes as necessary and appropriate in

each of the categories. Such examinations may

include requirements for knowledge in the following

areas:

(i) Recognition of asbestos-containing ma-

terial and its physical characteristics.

(ii) Health hazards of asbestos and the re-

lationship between asbestos exposure and dis-

ease.

(iii) Assessing the risk of asbestos exposure

through a knowledge of percentage weight of

asbestos-containing material, friability, age, de-

terioration, location and accessibility of materi-

als, and advantages and disadvantages of dry

and wet response action methods.

(iv) Respirators and their use, care, selec-

tion, degree of protection afforded, fitting, test-

ing, and maintenance and cleaning procedures.

(v) Appropriate work practices and control

methods, including the use of high efficiency

particle absolute vacuums, the use of amended

water, and p.inciples of negative air pressure

equipment us: and procedures.

AHERA Statute A-37

(vi) Preparing a work area for response

action work, including isolating work areas to

prevent bystander or public exposure to asbes-

tos, decontamination procedures, and proce-

dures for dismantling work areas after comple-

tion of work.

(vii) Establishing emergency procedures to

respond to sudden releases.

(viii) Air monitoring requirements and pro-

cedures.

(ix) Medical surveillance program require-

ments.

(x) Proper asbestos waste transportation

and disposal procedures.

(xi) Housekeeping and personal hygiene

practices, including the necessity of showers,

and procedures to prevent asbestos exposure to

an employee's family.

(2) State adoption of plan

Each state shall adopt a contractor accreditation

plan at least as stringent as the model plan developed by

the Administrator under paragraph (1), within 180 days

after the commencement of the first regular session of

the legislature of such State which is convened follow-

ing the date on which the Administrator completes

development of the model plan. In the case of a school

operated under the defense dependents’ education sys-

tem provided for under the Defense Dependents’ Edu-

cation Act of 1978 (20 U.S.C. 921 et seq.),the Secretary

of Defense shall adopt a contractor accreditation plan at

least as stringent as that model.

A-38 AHERA Statute

(1) Course approval

| Within 180 days after October 22, 1986, the Admin-

istrator shall ensure that any Environmental Protection

Agency-approved asbestos training course is consistent

with the model plan (including testing requirements)

developed under subsection (b) of this section. A con-

tractor may be accredited by taking and passing such a

course.

(2) Treatment of persons with previous EPA as-

bestos training

A person who —

(A) completed an Environmental Protection

Agency-approved asbestos training course before

October 22, 1986, and

(B) passed (or passes) an asbestos test either

before or after October 22, 1986,

may be accredited under paragraph (1) if the Adminis-

trator determines that the course and test are equivalent

to the requirements of the model plan developed under

subsection (b) of this section. If the Administrator so

determines, the person shall be considered accredited

for the purposes of this subchapter until a date that is

one year after the date on which the State in which such

person is employed establishes an accreditation program

pursuant to subsection (b) of this section.

(3) List of courses

The Administrator, in consultation with affected

- organizations, shall publish (and revise as necessary) —

(A) a list of asbestos courses and tests in effect

before October 22, 1986, which qualify for equiva-

lency treatment under paragraph (2), and

(B) a list of asbestos courses and tests which

the Administrator determines under paragraph (1)

AHERA Statute A-39

are consistent with the model plan and which will

qualify a contractor for accreditation under such

paragraph.

(d) Laboratory accreditation

(1) The administrator shall provide for the develop-

ment of an accreditation program for laboratories by the

National Bureau of Standards in accordance with para-

graph (2). The administrator shall transfer such funds

as are necessary to the National Bureau of Standards to

carry out such program.

(2) The National Bureau of Standards, upon re-

quest by the Administrator, shall, in consultation with

affected organizations —

(A) within 360 days after October 22, 1986,

develop an accreditation program for laboratories

which conduct qualitative and semi-quantatative

analyses of bulk samples of asbestos-containing

material. and

(B) within 720 days after October 22, 1986,

develop an accreditation program for laboratories

which conduct analyses of air samples of asbestos

from school buildings under the authority of a local

educational agency.

(3) A laboratory which plans to carry out any such

analysis shall comply with the requirements of the

accreditation program.

(e) Financial assistance contingent on use of accredited

persons

(1) A school which is an applicant for financial

assistance under section 505 of the Asbestos School

Hazard Abatement Act of 1984 [20 U.S.C.A. § 4011] is

not eligible for such assistance unless the school, in

carrying out the requirements of this subchapter —

A-40 AHERA Statute

(A) uses a person (or persons) — -

(i) who is accredited by a State which has

adopted an accreditation plan based on the

model plan developed under subsection (b) of

this section, or

(ii) who is accredited pursuant to an

Administrator-approved course under subsec-

tion (c) of this section, and

(B) uses a laboratory (or laboratories) which is

accredited under the program developed under sub-

section (d) of this section.

(2) This subsection shail apply to any financial

assistance provided under the Asbestos School Hazard

Abatement Act of 1984 for activities performed after the

following dates:

(A) In the case of activities performed by per-

sons, after the date which is one year after October

22, 1986.

(B) In the case of activities performed by labo-

ratories, after the date which is 180 days after the

date on which a laboratory accreditation program is

completed under subsection (d) of this section.

(Pub.L. 94-469, Title II, § 206, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2980. )

§ 2647. Enforcement

(a) Penalties

Any local educational agency —

(1) which fails to conduct an inspection pursuant to

regulations under section 2643(b) of this title or under

section 2644(b) of this title,

(2) which knowingly submits false information to

the Governor regarding any inspection pursuant to reg-

ulations under section 2643(i) of this title or knowingly

Pere oe

AHERA Statute A-41

includes false information in any inspection statement

under section 2644(d)(3) of this title, or

(3) which fails to develop a management plan pur-

suant to regulations under section 2643(i) of this title or

under section 2644(d) of this title,

is liable for a civil penalty of not more than $5,000 for

| each day during which the violation continues. Any civil

: penalty under this subsection shall be assessed and

collected in the same manner, and subject to the same

i provisions, as in the case of civil penalties assessed and

collected under section 2615 of this title. For purposes of

this subsection, a “violation” means a failure to comply

with respect to a single school building. The court shall

order that any civil penalty collected under this subsec-

tion be used by the local educational agency for purposes

of complying with this subchapter. Any portion of a civil

penalty remaining unspent after compliance by a local

educational agency is completed shall be deposited into

the Asbestos Trust Fund established by section 5 of the

Asbestos Hazard Emergency Response Act of 1986.

ents or

(b) Relationship to Subchapter I

A local educational agency is not liable for any civil

penalty under subchapter I of this subchapter for failing

or refusing to comply with any rule promulgated or order

1 issued under this subchapter.

(1) In determining the amount of a civil penalty to

be assessed under subsection (a) of this section against

a local educational agency, the Administrator shall con-

sider —

(A) the significance of the violation;

(B) the culpability of the violator, including any

history of previous violations under this chapter;

;

el tees

A-42 AHERA Statute

and

(D) the ability of the violator to continue to

provide educational services to the community.

(2) Any action ordered by a court in fashioning

relief under section 2619 of this title shall be consistent

with regulations promulgated under section 2643 of this

title (or with the requirements of section 2644 of this

title if there are no regulations).

(d) Citizen complaints

Any person may file a complaint with the Adminis-

trator or with the Governor of the State in which the

school building is located with respect to asbestos-

containing material in a school building. If the Admin-

istrator or Governor receives a complaint under this

subsection containing allegations which provide a rea-

sonable basis to believe that a violation of this chapter

has occurred, the Administrator or Governor shall inves-

tigate and respond (including taking enforcement action

where appropriate) to the complaint within a reasonable

period of time. :

(e) Citizen petitions

(1) Any person may petition the Administrator to

initiate a proceeding for the issuance, amendment, or

repeal or a regulation or order under this subchapter.

(2) Such petition shall be filed in the principal

office of the Administrator and shall set forth the facts

which it is claimed establish that it is necessary to issue,

amend, or repeal a regulation or order under this sub-

chapter.

(3) The Administrator may hold a public hearing or

may conduct such investigation or proceeding as the

Administrator deems appropriate in order to determine

whether or not such petition should be granted.

et Ne ee Oe ltl

AHERA Statute A-43

(4) Within 90 days after filing of a petition de-

scribed in paragraph (1), the Administrator shall either

grant or deny the petition. If the Administrator grants

such petition, the Administrator shall promptly com-

mence an appropriate proceeding in accordance with

this subchapter. If the Administrator denies such peti-

tion, the Administrator shall publish in the Federal

The granting or denial of a petition under this subsec-

tion shall not affect any deadline or other requirement of

this subchapter.

(f) Citizens civil actions with respect to EPA regulations

(1) Any person may commence a civil action »ith-

out prior notice against the Administrator to compe! the

Administrator to meet the deadlines in section 2645 of

this title for issuing advanced notices of proposed rule-

making, proposing regulations, and promulgating regu-

lations. Any such action shall be brought in the district

court of the United States for the District of Columbia.

(2) In any action brought under paragraph (1) in

which the court finds the Administrator to be in violation

of any deadline in section 2643 of this title, the court

shall set forth a schedule for promulgating the regula-

tions required by section 2643 of this title and shall order

the Administrator to comply with such schedule. The

court may extend any deadline (which has not already

occurred) in section 2644(b), 2644(c), or 2644(d) of this

title for a period of not more than 6 months, if the

court-ordered schedule will result in final promulgation

of the pertinent regulations within the extended period.

Such deadline extensions may not be granted by the

court beginning 720 days after October 22, 1986.

(3) Section 2619 of this title shall apply to civil

actions described in this subsection, except to the extent

inconsistent with this subsection.

(Pub.L. 94-469, Title II, § 207, as added Pub.L. 99-519,

A-44 AHERA Statute

§ 2, Oct. 22, 1986, 100 Stat. 2983.)

§ 2648. Emergency authority

(a) Emergency action

(1) Authority of Administrator or Governor of

State

Whenever —

(A) the presence of airborne asbestos or the

condition of friable asbestos-containing material in a

school building governed by a local educational

agency poses an imminent and substantial endan-

germent to human health or the environment, and

(B) the local educational agency is not taking

sufficient action (as determined by the Administra-

tor or the Governor) to respond to the airborne

asbestos or friable asbestos-containing material,

the Administrator or the Governor of a State is autho-

rized to act to protect human health or the environment.

(2) Limitation on action of Governor

The Governor of a State shall notify the Administra-

tor within a reasonable period of time before the Gover-

nor plans to take an emergency action under this

subsection. After such notification, if the Administrator

takes an emergency action with respect to the same

hazard, the Governor may not carry out (or continue to

carry out, if the action has been started) the emergency

action.

(3) Notification of action

The following notification shall be provided before

an emergency action is taken under this subsection:

(A) In the case of a Governor taking the action,

the Governor shall notify the local educational

agency concerned.

(B) In the case of the Administrator taking the

action, the Administrator shall notify both the local

Ws wie ll Gen Bile sedi Se

;

AHERA Statute A-45

educational agency concerned and the Governor of

the State in which such agency is located.

(4) Cost recovery

The Administrator or the Governor of a State may

seek reimbursement for all costs of an emergency action

taken under this subsection in the United States District

Court for the District of Columbia or for the district in

which the emergency action occurred. In any action

seeking reimbursement from a local educational agency,

the action shall be brought in the United States District

Court for the district in which the local educational

agency is located.

(b) Injunctive relief

Upon receipt of evidence that the presence of air-

borne asbestos or the condition of friable asbestos-

containing material in a school building governed by a

local educational agency poses an imminent and sub-

stantial endangerment to human health or the environ-

ment —

(1) the Administrator may request the Attorney

General to bring suit, or

(2) the Governor of a State may bring suit,

to secure such relief as may be necessary to respond to

the hazard. The district court of the United States in the

district in which the response will be carried out shall

have jurisdiction to grant such relief, including injunc-

tive relief.

(Pub.L. 94-469, Title II, § 208, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2985.)

A-46 AHERA Statute

§ 2649. Preemption

(a) Construction of provisions as not preempting other

laws

Nothing in this subchapter shall be construed, in-

terpreted, or applied to preempt, displace, or supplant

any other State or Federal law, whether statutory or

common.

(b) Award of costs and damage awards

Nothing in this subchapter or any standard, regula-

tion, or requirement promulgated pursuant to this sub-

chapter shall be construed or interpreted to preclude any

court from awarding costs and damages associated with

the abatement, including the removal, of asbestos-

containing material, or a portion of such costs, at any

time prior to the actual date on which such material is

removed.

stringent State requirements

Nothing in this subchapter shall be construed or

interpreted as preempting a State from establishing any

additional liability or more stringent requirements with

respect to asbestos in school buildings within such

State.

(d) Creation of-cause of action

Nothing in this subchapter creates a cause of action

or in any other way increases or diminishes the liability

of any person under any other law.

(e) Effect of provisions in civil action for damages

It is not the intent of Congress that this subchapter

or rules, regulations, or orders issued pursuant to this

subchapter be interpreted as influencing, in either the

AHERA Statute A-47

plaintiff’s or defendant’s favor, the disposition of any

civil action for damages relating to asbestos. This sub-

section does not affect the authority of any court to make

a determination in any adjudicatory proceeding under

applicable State law with respect to the admission into

evidence or any other use of this subchapter or rules,

regulations, or orders issued pursuant to this sub-

_ chapter.

(Pub.L. 94-469, Title II, § 209, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2986.)

§ 2650. Liability Insurance for asbestos contractors and

local educational agencies

(a) Study of availability

(1) Contents of study

The Administrator shall conduct a study on the

availability of liability insurance and other forms of

assurance against financial loss which are available to

local educational agencies and asbestos contractors with

respect to actions required under this subchapter. Such

study shall examine the following:

(A) The extent to which liability insurance and

other forms of assurance against financial loss are

available to local educational agencies and asbestos

contractors.

(B) The extent to which the cost of insurance

or other forms of assurance against financial loss

has increased and the extent to which coverage has

become less complete.

availability of insurance or other forms of assurance

_against financial loss is the result of factors other

than standards of liability in applicable law.

(D) The extent to which the existence of the

regulations required by subsections (c) and (d) of

A-48 AHERA Statute

section 2643 of this title and the accreditation of

contractors under section 2646 of this title has

affected the availability or cost of insurance or other

forms of assurance against financial loss.

(E) The extent to which any limitation on the

availability of insurance or other forms of assurance

against financial loss is inhibiting inspections for

asbestos-containing material or the development or

implementation of management plans under this

subchapter.

(F) Identification of any other impediments to

the timely completion of inspections or the develop-

ment and implementation of management plans

under this subchapter.

(2) Interim Report

Not later than April 1, 1988, the Administrator shall

submit to the Congress an interim report on the progress

of the study required by this subsection, along with

preliminary findings based on information collected to

that date.

(3) Final Report

Not later than October 1, 1990, the Administrator

shall submit to the Congress a final report on the study

required by this subsection, including final findings

based on the information collected.

(b) State action

On the basis of the interim report or the final report

of the study required by subsection (a) of this section, a

State may enact or amend State law to establish or

modify a standard of liability for local educational agen-

cies or asbestos contractors with respect to actions

required under this subchapter.

(Pub.L. 94-469, Title II, § 210, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2986.)

oe a ee ae a le «

AHERA Statute A-49

§ 2651. Discrimination by State or local educational

agency

(a) Information relating to potential violations

No State or local educational agency may discrimi-

nate against a person in any way, including firing a

person who is an employee, because the person provided

information relating to a potential violation of this sub-

chapter to any other person, including a State or the

Federal Government.

(b) Review of discriminatory action

Any public or private employee or representative of

employees who believes he or she has been fired or

otherwise discriminated against in violation of subsec-

tion (a) of this section may within 90 days after the

alleged violation occurs apply to the Secretary of Labor

for a review of the firing or alleged discrimination. The

review shall be conducted in accordance with section

660(c) of Title 29.

(Pub.L. 94-469, Title II, § 211, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2987.)

§ 2652. Asbestos Ombudsman

(a) Appointment

The Administrator shall appoint an Asbestos Om-

budsman, who shall carry out the duties described in

subsection (b) of this section.

(b) Duties

The duties of the Asbestos Ombudsman are —

(1) to receive complaints, grievances, and re-

quests for information submitted by any person with

respect to any aspect of this subchapter,

A-50 AHERA Statute

(2) to render assistance with respect to the

complaints, grievances, and requests received, and

(3) to make such recommendations to the Ad-

ministrator as the Ombudsman considers appropri-

ate.

(Pub.L. 94-469, Title II, § 212, as added Pub.L. 99-519.

§ 2, Oct. 22, 1986, 100 Stat. 2987. )

§ 2653. Study of asbestos-centaining material in public

buildings “¢

Within 360 days after October 22, 1986, the Admin-

istrator shall conduct and submit to the Congress the

results of a study which shall —

(1) assess the extent to which asbestos-

containing materials are present in public and com-

mercial buildings;

(2) assess the condition of asbestos-containing

material in commercial buildings and the likelihood

that persons occupying such buildings, including

service and maintenance personnel, are, or may be,

exposed to asbestos fibers;

(3) consider and report on whether public and

commercial buildings should be subject to the same

inspection and response action requirements that

apply to school buildir<s;

(4) assess whether existing Federal regulations

adequately protect the general public, particularly

abatement personnel, from exposure to asbestos

during renovation and demolition of such buildings;

and

(5) include recommendations that explicitly ad-

dress whether there is a need to establish standards

for, and regulate asbestos exposure in, public and

commercial buildings.

AHERA Statute A-51

(Pub.L. 94-469, Title II, § 213, as added Pub.L. 99-519,

/ § 2, Oct. 22, 1986, 100 Stat. 2987.)

§ 2654 Transitional rules

Any regulation of the Environmental Protection

Agency under subchapter | of this chapter which is

inconsistent with this subchapter shall not be in effect

after October 22, 1986. Any advance notice of proposed

rulemaking, any proposed rule, and any regulation of the

Environmental Protection Agency in effect before Octo-

ber 22, 1986 which is consistent with the regulations

~~required under section 2643 of this title shall remain in

effect and may be used to meet the requirements of

section 2643 of this title, except that any such regulation

shall be enforced under this chapter.

Pub.L. 94-469, Title II, § 214, as added Pub.L. 99-519,

§ 2, Oct. 22, 1986, 100 Stat. 2988.)

A-52

TEXT OF EPA’S REGULATIONS CONCERNING

ASBESTOS-CONTAINING MATERIALS IN

Sec.

763.80

763.83

763.84

763.85

763.86

763.87

763.88

763.90

763.91

763.92

763.93

763.94

763.95

763.97

763.98

763.99

SCHOOLS, 40 C.F.R. § 763.80, et seq.

Scope and purpose.

Definitions.

General local education agency responsibilities.

Inspection and reinspection.

Sampling.

Analysis.

Assessment.

Response actions.

Operations and maintenance.

Training and periodic surveillance.

Management plans.

Recordkeeping.

Warning labels.

Compliance and enforcement.

Waiver; delegation to State.

Exclusions.

Appendix A to Subpart E — Interim

Transmission Electron Microscopy Analytical Meth-

ods — Mandatory and Nonmandatory — and Mandatory

Section to Determine Completion of Response Actions

Appendix B to Subpart E — Work Practices and

Engineering Controls for Small-Scale, Short-Duration

Operations Maintenance and Repair (O&M) Activities

involving ACM

= x ” *

AHERA Regulations A-53

Appendix D to Subpart E — Transport and Disposal of

Asbestos Waste

§ 763.80 Scope and purpose.

(a) This rule requires local education agencies to

identify friable and nonfriable asbestos-containing ma-

terial (ACM) in public and private elementary and

secondary schools by visually inspecting school build-

ings for such materials, sampling such materials if they

are not assumed to be ACM, and having samples ana-

lyzed by appropriate techniques referred to in this rule.

The rule requires local education agencies to submit

management plans to the Governor of their State by

October 12, 1988, begin to implement the plans by July

9, 1989, and complete implementation of the plans in a

timely fashion. In addition, local education agencies are

required to use persons who have been accredited to

conduct inspections, reinspection, develop management

plans, or perform response actions. The rule also in-

cludes recordkeeping requirements. Local education

agencies may contractually delegate their duties under

this rule, but they remain responsible for the proper

performance of those duties. Local education agencies

are encouraged to consult with EPA Regional Asbestos

Coordinators, or if applicable, a State’s lead agency

designated by the State Governor, for assistance in

complying with this rule.

(b) Local education agencies must provide for the

transportation and disposal of asbestos in accordance

with EPA’s “Asbestos Waste Management Guidance.”

For convenience, applicable sections of this guidance

are reprinted as Appendix D of this subpart. There are

regulations in place, however, that affect transportation

and disposal of asbestos waste generated by this rule.

The transportation of asbestos waste is covered by the

Department of Transportation [49 CFR Part 173, Sub-

part J] and disposal is covered by the National Emissions

A-54 AHERA Regulations

Standards for Hazardous Air Pollutants (NESHAP) (40

CFR Part 61, Subpart M).

§ 763.83 Definitions.

For purposes of this subpart:

“Act” means the Toxic Substances Control Act

(TSCA), 15 U.S.C. 2601, et seq.

“Accessible” when referring to ACM means that the

mate ial is subject to disturbance by school building

occupants or custodial or maintenance personnel in the

course of their normal activities.

“Accredited” or “accreditation” when referring to a

person or laboratory means that such person or labora-

tory is accredited in accordance with section 206 of Title

II of the Act.

“Air erosion” means the passage of air over friable

ACBM which may result in the release of asbestos fibers.

“Asbestos” means the asbestiform varieties of: Chry-

sotile (serpentine); crocidolite (riebeckite); amosite

(cummingtonitegrunerite); anthophyllite; tremolite;

and actinolite.

“Asbestos-containing material” (ACM) when refer-

ring to school buildings means any material or product

which contains more than 1 percent asbestos.

“Asbestos-containing building material” (ACBM)

means surfacing ACM, thermal system insulation ACM,

or miscellaneous ACM that is found in or on interior

structural members or other parts of a school building.

“Asbestos debris” means pieces of ACBM that can

be identified by color, texture, or composition, or means

dust, if the dust is determined by an accredited inspector

to be ACM.

“Damaged friable miscellaneous ACM” means fria-

ble miscellaneous ACM which has deteriorated or sus-

tained physical injury such that the internal structure

(cohesion) of the material is inadequate or, if applicable,

AHERA Regulations A-55

which has delaminated such that its bond to the sub-

strate (adhesion) is inadequate or which for any other

reason lacks fiber cohesion or adhesion qualities. Such

damage or deterioration may be illustrated by the sepa-

ration of ACM into layers; separation of ACM from the

substrate; flaking, blistering, or crumbling of the ACM

surface; water damage; significant or repeated water

stains, scrapes, gouges, mars or other signs of physical

injury on the ACM. Asbestos debris originating from the

ACBM in question may also indicate damage.

“Damaged friable surfacing ACM” means friable

surfacing ACM which has deteriorated or sustained

physical injury such that the internal structure (cohe-

sion) of the material is inadequate or which has delami-

nated such that its bond to the substrate (adhesion) is

inadequate, or which, for any other reason, lacks fiber

cohesion or adhesion qualities. Such damage or deteri-

oration may be illustrated by the separation of ACM into

layers; separation of ACM from the substrate; flaking,

blistering, or crumbling of the ACM surface; water

damage; significant or repeated water stains, scrapes,

gouges, mars or other signs of physical injury on the

ACM. Asbestos debris originating from the ACBM in

question may also indicate damage.

“Damaged or significantly damaged thermal system

insulation ACM” means thermal system insulation ACM

on pipes, boilers, tanks, ducts, and other thermal system

insulation equipment where the insulation has lost its

structural integrity, or its covering, in whole or in part, is

crushed, water-stained, gouged, punctured, missing, or

not intact such that it is not able to contain fibers.

Damage may be further illustrated by occasional punc-

tures. gouges or other signs of physical injury to ACM;

occasional water damage on the protective coverings-

/jackets; or exposed ACM ends or joints. Asbestos debris

originating from the ACBM in question may also indi-

cate damage.

A-56 AHERA Regulations

“Encapsulation” means the treatment of ACBM

with a material that surrounds or embeds asbestos fibers

in an adhesive matrix to prevent the release of fibers, as

the encapsulant creates a membrane over the surface

(bridging encapsulant) or penetrates the material and

binds its components together (penetrating encapsu-

lant).

“Enclosure” means an airtight, impermeable, per-

manent barrier around ACBM to prevent the release of

asbestos fibers into the air.

“Fiber release episode” means any uncontrolled or

unintentional disturbance of ACBM resulting in visible

emission.

“Friable” when referring to material in a school

building means that the material, when dry, may be

crumbled, pulverized, or reduced to powder by hand

pressure, and includes previously nonfriable material

after such previously nonfriable material becomes dam-

aged to the extent that when dry it may be crumbled,

pulverized, or reduced to powder by hand pressure.

“Functional space” means a room, group of rooms,

or homogeneous area (including crawl spaces or the

space between a dropped ceiling and the floor or roof

deck above), such as classroom(s), a cafeteria, gymna-

sium, hallway(s), designated by a person accredited to

prepare management plans, design abatement projects,

or conduct response actions.

“High-efficiency particulate air” (HEPA) refers to a

filtering system capable of trapping and retaining at

least 99.97 percent of all monodispersed particles 0.3

mm in diameter or larger.

“Homogeneous area” means an area of surfacing

material, thermal system insulation material, or miscel-

laneous material that is uniform in color and texture.

“Local education agency” means:

AHERA Regulations A-57

(1) Any local educational agency as defined in

section 198 of the Elementary and Secondary Edu-

cation Act of 1965 (20 U.S.C. 3381).

(2) The owner of any nonpublic, nonprofit ele-

mentary, or secondary school building.

(3) The governing authority of any school op-

erated under the defense dependents’ education

system provided for under the Defense Dependents’

Education Act of 1978 (20 U.S.C. 921, et seq.).

“Miscellaneous ACM” means miscellaneous mate-

rial that is ACM in a school building.

“Miscellaneo

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