# Petition for Writ of Certiorari — National Gypsum Co. v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2170%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 942 ## Text No. 88- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1988 NATIONAL GYPSUM COMPANY, Petitioner, v. 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; (c) The American Federation of State, County, 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. ii 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 .................. PR EE Cobb da eihcdebevccccéensecctases 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 iv 17 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 Eo os caccccnecésncsadetaces 3, 8 i I ccc ccc scccccccccccscesecs 10 py Io ccccdcdcescccccncaeces 10 IID 0 dnc ccctccusweteceseccecda 10 oo. uch duubevassecdavewas 7 to cc. ics obs cue en beauanedesees 7 i oo cole ieeGeked sheeeee 27 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 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). 25 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 26 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 27 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). 28 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. 29 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 v. 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), (C) amosite (cummingtonite-grunerite), (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 (C) the governing authority of any school oper- 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 (C) any other facility used for the instruction of 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. (c) Circumstances requiring response actions (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. (C) Potential 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 | 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. (C) A detailed description of measures to be 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 SS 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 (C) regulations described in section 2643(h) of 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 (c) Operation and maintenance 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 (C) complete implementation of such plan in a 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, (C) be prepared in accordance with the most 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 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 (c) Management plan review (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 (C) does not contain a response action schedule 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 (c) Accreditation by administrator-approved course (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. (c) Enforcement considerations (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 (C) the ability of the violator to pay the penalty; 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 Register the Administrator’s reasons for such denial. 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 j ; q | 4 ; ; 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. (c) Construction of provisions as not prohibiting more 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. (C) The extent to which any limitation in the 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 buildirst is made. (2) (i) The name of the State agency that is or will be responsible for administering the enforcing the requirements for which a waiver is requested, the names and job titles of responsible officials in that agency, and phone numbers where the officials can be contacted. (ii) In the event that more than one agency is or will be responsible for administering and enforc- ing the requirements for which a waiver is re- quested, a description of the functions to be per- formed by each agency, how the program will be coordinated by the lead agency to ensure consis- tency and effective administration in the asbestos inspection and management program within the State, the names and job titles of responsible offi- cials in the agencies, and phone numbers where the offices can be contacted. The lead agency will serve as the central contact point for the EPA. (3) Detailed reasons, supporting papers, and the rationale for concluding that the State’s asbestos inspection and management program provisions for A-96 AHERA Regulations which the request is made are at least as stringent as the requirements of this Subpart E. (4) A discussion of any special situations, prob- lems, and needs pertaining to the waiver request accompanied by an explanation of how the State intends to handle them. (5) A statement of the resources that the State intends to devote to the administration and enforce- ment of the provisions relating to the waiver request. ee es te. eh tees he in ee ee Pe ee (6) Copies of any specific or enabling State laws , (enacted and pending enactment) and regulations (promulgated and pending promulgation) relating to the request, including provisions for assessing crim- inal and/or civil penalties. ary Sp WP eae 7 (7) Assurance from the Governor, the Attorney General, or the legal counsel of the lead agency that the lead agency or other cooperating agencies have the legal authority necessary to carry out the re- quirements relating to the request. (c) General notice—hearing. (1) Within 30 days after receipt of a request for a waiver, EPA will determine the completeness of the request. If EPA does not request further infor- mation within the 30-day period, the request will be deemed complete. (2) Within 30 days after EPA determines that a request is complete, EPA will issue for publication in the Federal Register a notice that announces receipt of the request, describes the information submitted under paragraph (b) of this section, and solicits written comment from interested members of the public. Comments must be submitted within 60 days. AHERA Regulations A-97 (3) If, during the comment period, EPA re- ceives a written objection to a Governor’s request and a request for a public hearing detailing specific objections to the granting of a waiver, EPA will schedule a public hearing to be held in the affected State after the close of the comment period and will announce the public hearing date in the Federal Register before the date of the hearing. Each com- ment shall include the name and address of the person submitting the comment. (d) Criteria. EPA may waive some or all of the requirements of Subpart E of this part if: (1) The State’s lead agency and other cooperat- ing agencies have the legal authority necessary to carry out the provisions of asbestos inspection and management in schools relating to the waiver re- quest. (2) The State’s program of asbestos inspection and management in schools relating to the waiver request and implementation of the program are or will be at least as stringent as the requirements of this Subpart E. (3) The State has an enforcement mechanism to allow it to implement the program described in the waiver request. (4) The lead agency and any cooperating agen- cies have or will have qualified personnel to carry out the provisions relating to the waiver request. (5) The State will devote adequate resources to the administration and enforcement of the asbestos inspection and management provisions relating to the waiver request. (6) When specified by EPA, the State gives satisfactory assurances that necessary steps, includ- ing specific actions it proposes to take and a time A-98 AHERA Regulations schedule for their accomplishment, will be taken within a reasonable time to conform with applicable criteria under paragraph (d)(2) through (4) of this section. (e) Decision. EPA will issue for publication in the Federal Register a notice announcing its decision to grant or deny, in whole or in part, a Governor’s request for a waiver from some or all of the requirements of this Subpart E within 30 days after the close of the comment period or within 30 days following a public hearing, whichever is applicable. The notice will include the Agency’s reasons and rationale for granting or denying the Governor’s request. The 30-day period may be ex- tended if mutually agreed upon by EPA and the State. (f) Modifications. When any substantial change is made in the administration or enforcement of a State program for which a waiver was granted under this section, a responsible official in the lead agency shall submit such changes to EPA. (g) Reports. The lead agency in each State that has been granted a waiver by EPA from any requirement of Subpart E of this part shall submit a report to the Regional Administrator for the Region in which the State is located at last once every 12 months to include the following information: (1) A summary of the State’s implementation and enforcement activities during the last reporting period relating to provisions waived under this sec- tion, including enforcement actions taken. (2) Any changes in the administration or en- forcement of the State program implemented during the last reporting period. (3) Other reports as may be required by EPA to carry out effective oversight of any requirement of this Subpart E that was waived under this section. i AHERA Regulations A-99 (h) Oversight. EPA may periodically evaluate the adequacy of a State’s implementation and enforcement of and resources devoted to carrying cut requirements relating to the waiver. This evaluation may include, but is not limited to, site visits to local education agencies without prior notice to the State. (i) Informal conference. (1) EPA may request that an informal confer- ence be held between appropriate State and EPA officials when EPA has reason to believe that a State has failed to: (i) Substantially comply with the terms of any provision that was waived under this section. (ii) Meet the criteria under paragraph (d) of this section, including the failure to carry out en- forcement activities or act on violations of the State program. (2) EPA will: (i) Specify to the State those aspects of the State’s program believed to be inadequate. (ii) Specify to the State the facts that underlie the belief of inadequacy. (3) If EPA finds, on the basis of information submitted by the State at the conference, that deficiencies did not exist or were corrected by the State, no further action is required. (4) Where EPA finds that deficiencies in the State program exist, a plan to correct the deficien- cies shall be negotiated between the State and EPA. The plan shall detail the deficiencies found in the State program, specify the steps “':e State has taken or will take to remedy the deficienv.=s, and establish a schedule for each remedial action to be initiated. (j) Rescission. (1) If the State fails to meet with EPA or fails to correct deficiencies raised at the informal confer- ence, EPA will deliver to the Governor of the State and a responsible official in the lead agency a written notice of its intent to rescind, in whole or in part, the waiver. ; A-100 AHERA Regulations E : (2) EPA will issue for publication in the Federal _. 3 Register a notice that announces the rescission of ; the waiver, describes those aspects of the State’s program determined to be inadequate, and specifies the facts that underlie the findings of inadequacy. § 763.99 Exclusions. (a) A local education agency shall not be required to perform an inspection under § 763.85(a) in any sam- pling area as defined in 40 CFR 763.103 or homoge- neous area of a school building where: (1) an accredited inspector has determined that, based on sampling records, friable ACBM was identified in that homogeneous or sampling area during an inspection conducted before December 14, 1987. The inspector shall sign and date a state- ment to that effect with his or her State of accredi- tation and if applicable, accreditation number and, within 30 days after such determination, submit a copy of the statement to the person designated under § 763.84 for inclusion in the management plan. However, an accredited inspector shall assess the friable ACBM under § 763.88. TTS SORTS MM sory (2) An accredited inspector has determined that, based on sampling records, nonfriable ACBM was identified in that homogeneous or sampling area during an inspection conducted before Decem- ber 14, 1987. The inspector shall sign and date a statement to that effect with his or her State of AHERA Regulations A-101 accreditation and if applicable, accreditation num- ber and, within 30 days after such determination, submit a copy of the statement to the person desig- nated under § 763.84 for inclusion in the manage- ment plan. However, an accredited inspector shall identify whether material that was nonfriable has become friable since that previous inspection and shall assess the newly-friabie ACBM under § 763.88. (3) Based on sampling records and inspection records, an accredited inspector has determined that no ACBM is present in the homogeneous or sam- pling area and the records show that the area was sampled, before December 14, 1987 in substantial compliance with § 763.85(a), which for purposes of this section means in a random manner and with a sufficient number of samples to reasonably ensure that the area is not ACBM. (i) The accredited inspector shall sign and date a statement, with his or her State of accredita- tion and if applicable, accreditation number that the homogeneous or sampling area determined not to be ACBM was sampled in substantial compliance with § 763.85(a). (ii) Within 30 days after the inspector’s de- termination, the local education agency shall submit a copy of the inspector’s statement to the EPA Regional Office and shall include the statement in the management plan for that school. (4) The lead agency responsible for asbestos inspection in a State that has been granted a waiver from § 763.85(a) has determined that, based on sampling records and inspection records, no ACBM is present in the homogeneous or sampling area and the records show that the area was sampled before December 14, 1987, in substantial compliance with A-102 AHERA Regulations § 763.85(a). Such determination shall be included in the management plan for that school. (5) An accredited inspector has determined that, based on records of an inspection conducted before December 14, 1987, suspected ACBM iden- tified in that homogeneous or sampling area is assumed to be ACM. The inspector shall sign and date a statement to that effect, with his or her State of accreditation and if applicable, accreditation number and, within 30 days of such determination, submit a copy of the statement to the person desig- nated under § 763.84 for inclusion in the manage- ment plan. However, an accredited inspector shall identify whether material that was nonfriable sus- pected ACBM assumed to be ACM has become friable since the previous inspection and shall assess the newly friable material and previously identified friable suspected ACBM assumed to be ACM under § 763.88. (6) Based on inspection records and contractor and clearance records, an accredited inspector has determined that no ACBM is present in the homo- geneous or sampling area where asbestos removal operations have been conducted before December 14, 1987, and shall sign and date a statement to that effect and include his or her State of accreditation and, if applicable, accreditation number. The local education agency shall submit a copy of the state- ment to the EPA Regional Office and shall include the statement in the management plan for that school. (7) An architect or project engineer responsible for the construction of a new school building built after October 12, 1988, or an accredited inspector signs a statement that no ACBM was specified as a building material in any construction document for AHERA Regulations A-103 the building, or, to the best of his or her knowledge, no ACBM was used as a building material in the building. The local education agency shall submit a copy of the signed statement of the architect, project engineer, or accredited inspector to the EPA Re- gional Office and shall include the statement in the management plan for that school. (b) The exclusion, under paragraph (a)(1) through (4) of this section, from conducting the inspection under 763.85(a) shall apply only to homogeneous or sampling areas of a school building that were inspected and sampled before October 17, 1987. The local education agency shall conduct an inspection under § 763.85(a) of all areas inspected before October 17, 1987, that were not sampled or were not assumed to be ACM. (c) If ACBM is subsequently found in a homoge- neous or sampling area of a local education agency that had been identified as receiving an exclusion by an accredited inspector under paragraphs (a)(3), (4), (5) of this section, or an architect, project engineer or accred- ited inspector under paragraph (a)(7) of this section, the local education agency shall have 180 days following the date of identification of ACBM to comply with this Subpart E. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2170%3A1. Public record. Not legal advice.