Opposition Brief — Walsh v. United States

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No. 93-1316 APR

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In the Supreme Court of the United States

OCTOBER TERM, 1993

JAMES A. WALSH, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney General

ANNES. ALMY

ANDREW C. MERGEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether Section 307(b)(2) of the Clean Air Act, 42

U.S.C. 7607(b)(2), which precludes challenges to agency

regulations in an- enforcement action, deprives the

petitioner of due process in contravention of the Fifth

Amendment.

2. Whether in order to show a violation of the work

practice standards of the Clean Air Act, 42 U.S.C.

7412(e), the government must prove an emission of an air

pollutant to the outside air.

(I)

TABLE OF CONTENTS

ETRE IS ERD RT IEA Ec

Ea ISS ce SN tt OR A A

SATEEN Cool: SO

aT cccemrcuocovnas

REESE SRE DS RO eC

TABLE OF AUTHORITIES

Cases:

Adamo Wrecking Co. v. United States, 434 U.S. 275

REESE ESE SSSR Ae SE CO a

Amoco Production Co. v. Village of Gambell, 480 U.S.

I

Bob Jones University v. Simon, 416 U.S. 725 (1974) ......

Chrysler Corp. v. EPA, 600 F.2d 904 (D.C. Cir. 1979) ...

Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th

ESTEE ERICA ASS ER OR

Luckie v. EPA, 752 F.2d 454 (9th Cir. 1985) .........00000...

Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir.

DE ALOE IEE ASAT TS aS OT

NE RURIELIAS 6. ERE SE SS CE OES EN aoe

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .......

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ............

United States v. Ben’s Truck & Equipment, Inc., 25

Env’t Rep. Cas. (BNA) 1295 (E.D. Cal. 1986) ...............

United States v. B.F. Goodrich Co., 609 F. Supp. 1

I i sau nsdsebiidegnesnuesns

United States v. Ethyl Corp., 761 F.2d 1153 (5th Cir.),

cert. denied, 474 U.S. 1070 (1986) ..............cccccccsccccsscoees

United States v. Hugo Key & Son, Inc., 731 F. Supp.

aR dt a

United States v. Louisville Edible Oil Products, Inc., 926

F.2d 584 (6th Cir.), cert. denied, 112 U.S. 177 (1991)...

(III)

12

IV

Cases—Continued: Page

United States v. MPM Contractors, Inc:.:

31 Env’t Rep. Cas. (BNA) 1550 (D. Kan. 1990) ......... 11

767 F. Supp. 231 (D. Kan. 1990) ............cccccsccsssesereeees 11, 13

United States v. Sealtite Corp., 739 F. Supp. 464 (E.D.

DEG, TEED cevrcicicciniccanvtccsisacsaciadidenimacsidsipnseiainensiorsanene 3, 12

United States v. Tzavah Urban Renewal Corp., 696 F.

SD. Te CE Deale Be cecteenedeies eidetnctiintiintitenstectaitens 3, 13

Yakus v. United States, 321 U.S. 414 (1944) ................. a)

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause) ................... 8

Act of Nov. 15, 1990, Pub. L. No. 101-549, 104 Stat.

eC en ne eT Te ee 2

Clean Air Act of 1955, 42 U.S.C. 7401 et seq.:

§ 101(b)(1), 42 U.S.C. T401(D)(1) ......cccccccccccscoscssecseeees 2

Di, a ee IEEE bcnietdndtsventionscucctacedtineinidtericnencerete 2, 6

O TRGED, GE CG. TORRID) ccccccccccsccsssnecscosscnccsese 2

> RE, Ge Se COME ccccncencemsersecsceteossescetonenerese 2

§ 112(b)(1)(B), 42 U.S.C. 7412(b)(1)(B) 00.0... eeeeeeeeeee 2

DF Ry Ae SP MUIND tiesnncendcescctsesccnsrerssecertveserns 3

§ 112(c)(1)(A), 42 U.S.C. 7412(c)(1)(A)-(B) ............... 3

DER Ce SE Eas. CUSED cntermesecenccnsenteccceersnnceseccesens 3

§ LEDONMT), EB U.B.C. TEIBLOKD) .ncccccccvcecceecccvesesesceees 1]

S LIRLONS), GE U.S.C. TEIZLONG) ...cccccrscccececsvccccevoveses 3, ll

DR ee ee WE Sadecstadeiisnenibiiddicsscestncccnsdicntctccssne 3

Tee Se. HEED cedttbcncectnptccsereniovecninenbiniens 9, 10, 11

§ 307(b)(2), 42 U.S.C. T607(D)(2) ............:ccccccesesseeeeeees 7, 8, 10

Comprehensive Environmental Response, Compensation,

and Liability Act, 42 U.S.C. 9613 (a) ..............ccscccseserees 9

Federal Water Pollution Control Act, 33 U.S.C.

PEED ‘cccistcntnsnceccminscaccnhibbittiindbiiisaniibiemipecdubiameeee 9

Health Services Research, Health Statistics, and Heaith

Care Technology Act of 1978, Pub. L. No. 95-523, § 13,

fA IRIS RR IRN RSE EEA JAS AR A 12

Noise Control Act, § 16(a), 42 U.S.C. 4915(a) .................. 9, 10

Solid Waste Disposal Act, 42 U.S.C. 6976 00.0.0... ccccecseeeees 9

Regulations—Continued:

40 C.F.R. (1989):

SOE Si AEE eee OE See ROE AN

Subpt. A:

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8 EE RR Ee Te

SERENE eee co), NOIRE ie

SR se

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A BRE REEE RES eenre eam MeDNCR e n Am TN I

SN I la ed

Miscellaneous:

ee Pe ee I i

Currie, Judicial Review Under Federal Pollution Control

Laws, 62 Iowa L. Rev. 1221 (1971) .........ccccccccscocseeseseeeee

D. Currie, Air Pollution: Federal Law and Analysis,

EE REN EERE ee EOE, OOO TOE NT ae EDT er

Bee le BN EE CIID isondsccomisesocecodssoninecmedeeniuiaicncs

Se es Be IED stidiniciicusaciibideinteiindticaincsentideindeen:

SD ere Bs IE ITD cciceseiitsccitniiinnisimnananindiasduadianinane

47 Fed. Reg. (1982):

eS EE TRO Een tare OLR Oe ae ae Cape Dene RIE

SRE Ne Ek

Page

>

ee a

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1316

JAMES A. WALSH, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

A12065-A12075) is reported at 8 F.3d 659. The opinion

of the district court (Pet. App. B1-B30) is reported at

783 F. Supp. 546.

JURISDICTION

The judgment of the court of appeals was entered on

October 26, 1993. The petition for a writ of certiorari

was filed on January 14, 1994. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioner was found liable for two violations of

Section 112 of the Clean Air Act (CAA), 42 U.S.C.

7412 (as in effect prior to the CAA’s November 15,

1990 amendment’), and the National Emission Stan-

dards for Hazardous Air Pollutants for asbestos, 40

C.F.R. Pt. 61, Subt. M (NESHAP) (as in effect prior

to the regulation’s November 20, 1990 amendment’).

He was assessed $3,500 in civil penalties. Pet. App.

A12067-A12069.

1. Congress enacted the CAA to protect and

enhance the quality of the Nation’s air resources. 42

U.S.C. 7401(b)(1). Section 112 of the CAA authorizes

the Administrator of the Environmental Protection

Agency (EPA) to publish a list of hazardous air

pollutants that “cause[], or contribute[] to, air pollu-

tion which may reasonably be anticipated to result in

an increase in mortality or an increase in serious

irreversible, or incapacitating reversible, illness.” 42

U.S.C. 7412(a)(1) and (b).

Section 112(b)(1)(B) directs the Administrator to

prescribe what are known as National Emission

Standards for Hazardous Air Pollutants (NESHAPs),

which must be set at a level that provides an ample

margin of safety to protect the public health from

such hazardous air pollutants. 42 U.S.C. 7412(b)

(1)(B). When it is not feasible to prescribe or enforce

emission standards, the Administrator may pro-

mulgate work practice standards prescribing specific

1 See Pub. L. No. 101-549, 104 Stat. 2399.

2 Our citations to the asbestos NESHAP refer to the version

set out at 40 C.F.R. Pts. 61-80 (1989).

3

procedures for handling hazardous air pollutants. 42

U.S.C. 7412(e).

Section 112(c) of the Clean Air Act prohibits con-

struction of a new source or modification of an

existing source, such that the source will emit an air

pollutant in violation of an emission standard, and it

also prohibits the emission of any air pollutant from

any stationary source in violation of an emission

standard. 42 U.S.C. 7412(c)(1)(A)-(B). Section

112(e)(5) specifically provides that work practice

standards are to be treated as emission standards. 42

U.S.C. 7412(e)(5).

Section 113 of the Act, 42 U.S.C. 7413, authorizes

EPA to institute an action for civil penalties and

injunctive relief for violation of Section 112(c). Under

Section 113, a person is liable for up to $25,000 per day

for each violation. The courts have imposed strict

civil liability for work practice violations of the Act.

See, ¢.g., United States v. Sealtite Corp., 739 F. Supp.

464, 468 (E.D. Ark. 1990); United States v. Hugo Key

& Son, Inc., 731 F. Supp. 1135, 1137 (D.R.I. 1989);

United States v. Tzavah Urban Renewal Corp., 696

F. Supp. 1013, 1020-1021 (D.N.J. 1988) (“the statute

and regulations themselves do not indicate that

scienter is required for establishing violations of the

Act”).

2. In 1971, the Administrator designated asbestos,

which has well established harmful effects, as a

hazardous air pollutant. 36 Fed. Reg. 5931 (1971).

Exposure to asbestos can cause a debilitating lung

disease called asbestosis, a rare cancer of the chest

and abdominal lining called mesothelioma, and can-

cers of the lung, esophagus, stomach, colon and other

organs. 38 Fed. Reg. 8820 (1973); see Reserve Mining

4

Co. v. EPA, 514 F.2d 492, 508 n.26 (8th Cir. 1975) (cat-

aloguing research showing numerous cases of meso-

thelioma from asbestos exposure of people who merely

lived with workers exposed to asbestos).

Significant sources of airborne asbestos include

demolition and renovation activities in which insula-

tion containing asbestos is stripped or removed from

structures and pipes. The Administrator has issued

an asbestos NESHAP that regulates emissions of

airborne asbestos by establishing work practice

standards for handling asbestos during stripping and

removal. 40 C.F.R. 61.146, 61.147, 61.152. The

asbestos NESHAP applies to “each owner or operator

of a demolition or renovation operation” that strips or

removes at least 260 linear feet of asbestos material

from pipes or at least 160 square feet of asbestos

materials from other facility components. 40 C.F.R.

61.145. An “owner or operator” is defined to include a

person who “owns, leases, operates, controls or

supervises” a facility that may emit any hazardous

air pollutant. 40 C.F.R. 61.02.

The work practice standards at issue in this case

require each owner or operator of a renovation or

demolition operation in which there is a regulated

amount of asbestos to: (1) adequately wet friable

asbestos materials when they are being stripped from

facility components, unless EPA waives this re-

quirement, 40 C.F.R. 61.147(c); and (2) adequately wet

friable asbestos materials that have been removed or

stripped and to ensure they remain wet until they are

collected for disposal, 40 C.F.R. 61.147(e).

3. Petitioner worked for Savage Enterprises, an

asbestos abatement and paint contractor, from March

1985 through July 1988. During that period, petitioner

5

served at times as both vice-president and president of

the 10-15 person company. The company, which was

founded in 1984 and dissolved in 1988, performed more

than 500 asbestos removal and encapsulation projects

| during its existence. Pet. App. B35-B36 (Admitted

Facts).

On August 22, 1989, the United States filed a

complaint seeking both civil penalties and injunctive

relief from Savage Enterprises, James Savage, the

company owner, and petitioner for violations of the

asbestos NESHAP. The complaint alleged that seven

different asbestos removal projects performed by

Savage had violated the asbestos NESHAP. A con-

sent decree settling the case with James Savage and

Savage Enterprises was entered on September 13,

1991. No settlement could be reached with petitioner.

Pet. App. A12068.

In November 1991, a five-day bench trial was held in

which the United States presented evidence of

asbestos NESHAP violations at four asbestos re-

moval jobs that petitioner supervised.* At two of

those sites, the district court found insufficient

evidence of petitioner’s involvement to support liabil-

ity. At two other job sites, Sea-Tac Airport and the

Crab Pot Restaurant, the district court found peti-

tioner liable for violations of the asbestos NESHAP.

Pet. App. B9-B19.

Specifically, after the testimony of several wit-

nesses, the district court found petitioner liable for

conducting a dry removal of asbestos at Sea-Tac

% Although seven asbestos removal projects were originally

at issue, the district court dismissed the United States’ claims

as to one site and, at the request of the district court, the

United States limited its proof at trial to four sites.

6

without following the procedures prescribed for

obtaining a waiver of the wetting requirement, 40

C.F.R. 61.147(c), and the court found petitioner liable

for failing to ensure that friable asbestos material at

that site remained wet until collected for disposal, 40

C.F.R. 61.147(e). Pet. App. B9-B13. At the Crab Pot

restaurant site, petitioner similarly failed to ensure

that friable asbestos at the site remained wet until

collected for disposal. Jd. at B15-B18.

Petitioner asserted throughout the trial that the

United States could not demonstrate a violation of the

CAA by merely showing a violation of a work practice

rule. Rather, petitioner contended that the United

States must show that a pollutant was emitted to the

outside air. The district court rejected that con-

tention. The court cboserved that work practice

standards are imposed in those cases where it is not

feasible to prescribe or enforce an emission standard

for control of a particular hazardous pollutant. The

court therefore held that a violation of a work

practice standard constitutes a violation of the Act.

Pet. App. B20, B24-B26. In the alternative, the

district court held that the United States had shown

by a preponderance of the evidence that petitioner

caused asbestos materials to be emitted to the outside

air during removal or after removal in violation of 42

U.S.C. Section 7412. Jd. at B20.

The district court assessed $3,500 in civil penalties

against petitioner and enjoined him from performing

further asbestos-removal projects for a two-year

period without first notifying EPA. Pet. App. B28-

B29, B31-B33 (Injunction).

4. Petitioner raised numerous challenges on ap-

peal, including the argument that there can be no

7

violation of the CAA without proof of an emission of

an air pollutant to the atmosphere. Appellant’s C.A.

Br. 23-28. The United States responded to that

argument on the merits. Gov’t C.A. Br. 14-22. The

United States also noted that petitioner was

effectively challenging the validity of the asbestos

NESHAP and that Section 307(b)(2) of the Clean Air

Act, 42 U.S.C. 7607(b)(2), expressly prohibits such

challenges in an enforcement proceeding. Gov’t C.A.

Br. 15-17.4

Petitioner replied that he was not challenging the

validity of the regulations and that even if he was, the

court should permit his challenge because he was not

in the asbestos abatement business at the time the

regulations were issued and therefore lacked stand-

ing to challenge the regulations at that time.

Appellant’s C.A. Reply Br. 2-3. Petitioner suggested

in his reply brief that “serious constitutional due

process concerns arise if Section [307(b)(2)] in fact

operates to bar [petitioner] from raising the legal

issues that he now asks this Court to review.”

Appellant’s C.A. Reply Br. 4. Petitioner, however, did

not raise the constitutionality of Section 307(b)(2) as

one of the 12 issues he presented for review,

Appellant’s C.A. Br. 1-4, nor did he brief that issue,

Appellant’s C.A. Reply Br. 4.

4 Section 307(b)(2) states:

Action of the Administrator with respect to which review

could have been obtained under paragraph (1) [42 U.S.C.

7607(b)(1)] shall not be subject to judicial review in civil or

criminal proceedings for enforcement.

42 U.S.C. 7607(b)(2).

8

The court of appeals affirmed the district court’s

judgment and rejected petitioner’s various argu-

ments. Pet. App. A12065-A12075. Among its conclu-

sions, the court held that petitioner’s challenge to the

Asbestos NESHAPS regulations was prohibited by

Section 307(b)(2) of the CAA. The court’s opinion

contains no discussion of whether Section 307(b)(2)

violates the Due Process Clause.

ARGUMENT

Petitioner asserts (Pet. 28-45) that Section

307(b)(2) of the CAA, which prohibits challenges to

CAA regulations in an enforcement proceeding,

violates the Due Process Clause. Petitioner further

contends (Pet. 45-50) that EPA’s interpretation of the

CAA and the Asbestos NESHAPs regulations is er-

roneous. Petitioner’s contentions are not supported

by a single court decision and do not warrant review

by this Court.

1. Petitioner devotes most of his argument (Pet.

27-45) to an issue that he did not raise in the court of

appeals and that the court of appeals did not decide:

whether Section 307(b)(2) of the CAA violates the Due

Process Clause.°

Section 307(b)(2) provides that judicial review of the

standards set by EPA must be sought only in the

United States Court of Appeals for the District of

Columbia within 60 days of the notice of promulgation

of the standards. 42 U.S.C. 7607(b)(2). Congress

5 Petitioner implicitly concedes that he failed to raise the

issue in the court of appeals: He relies on his answer to the

United States’ complaint for the proposition that the due

process issue has been preserved for this Court’s review. See

Pet. 15-16.

9

enacted Section 307(b) to foster finality by providing a

single forum for determining whether rules are

properly promulgated. See Adamo Wrecking Co. v.

United States, 434 U.S. 275, 284-285 (1978). As

petitioner notes (Pet. 30 n.28), similar provisions are

found in several environmental statutes.®

Petitioner contends that those provisions are all

unconstitutional because they do not comport with

the requirements of due process. Petitioner can point

to no judicial decision supporting that argument. To

the contrary, this Court held in Yakus v. United

States, 321 U.S. 414, 433-437 (1944), that Congress

could require that the validity of a regulatory action

be challenged in a particular court at a particular

time or not at all. Similarly in Adamo Wrecking,

this Court held that while a district court may

determine whether the regulation that the defendant

is alleged to have violated is an emission standard, the

court may not “engage in judicial review in a manner

that is precluded by § 307(b)(2) of the Act.” 434 U.S.

at 285. Both of those cases involved criminal prosecu-

tions.’

This Court has recognized that Congress pos-

sesses great latitude in determining the jurisdiction

of the courts and deciding where and when issues

® See 33 U.S.C. 1369(b)(2) (Federal Water Pollution Coniroi

Act); 42 U.S.C. 4915(a) (Noise Control Act); 42 U.S.C. 9613(a)

(Comprehensive Environmental Response, Compensation, and

Liability Act); 42 U.S.C. 6976 (Solid Waste Disposal Act).

7 One Member of the Court in Adamo Wrecking stated that

if the constitutionality of Section 307(b) of the CAA had been

raised “it would have merited serious consideration,” 434 U.S.

at 289 (Powell, J. concurring). But in this case, as in Adamo

Wrecking, the issue was not raised below.

10

shall be adjudicated. See, e.g., Bob Jones University

v. Simon, 416 U.S. 725, 746-748 (1974); South Car-

olina v. Katzenbach, 383 U.S. 301, 331-332 (1966). The

lower courts have respected that principle and have

routinely held that Section 307(b)(2) and similar pro-

visions foreclose parties from challenging the validity

of regulations except through the mechanisms that

Congress has provided. See, e.g., United States v.

Ethyl Corp., 761 F.2d 1158, 1155 (5th Cir. 1985)

(Section 307(b) deprived district court of subject

matter jurisdiction to a challenge of regulations),

cert. denied, 474 U.S. 1070 (1986); Luckie v. EPA, 752

F.2d 454, 456-457 (9th Cir. 1985) (Section 307(b) bars

review of challenge to an emission standard); United

States v. B.F. Goodrich Co., 609 F. Supp. 1, 5 (W.D.

Ky. 1984) (Section 307(b)(2) precludes review of vague-

ness challenge to regulation); Chrysler Corp. v.

EPA, 600 F.2d 904, 914 (D.C. Cir. 1979) (Section 16(a)

of the Noise Pollution Control Act deprived court of

jurisdiction over challenge to regulations); Lloyd A.

Fry Roofing Co. v. EPA, 554 F.2d 885, 892 (8th Cir.

1977) (describing a challenge to Section 307(b)(2) as

“without merit”).

No court has sustained a due process objection to

Section 307(b)(2), and the extra-judicial sources that

petitioner cites (Pet. 41-50) fall far short of demon-

strating a constitutional issue warranting this

Court’s review.’ Even if the issue had generated a

8 Petitioner relies on the Administrative Conference’s 1982

recommendations and on a law review article by Professor

Currie. Pet. 41-50. Neither of those authorities, however,

asserts that review preclusicn provisions like Section 307(b) are

necessarily unconstitutional. See 47 Fed. Reg. 58,208, 58,210

1]

conflict among the courts of appeals, this case would

be an inappropriate vehicle in which to resolve the

matter. As we have noted, the issue was not

adequately raised nor decided in the court of appeals.

Cf. Union Electric Co. v. EPA, 427 U.S. 246, 269 n.19

(1976) (noting that this Court declined to review a due

process challenge to Section 307(b) where that

challenge was neither presented to nor considered by

the court of appeals).

2. Petitioner contends that EPA’s interpretation

of its regulations and the CAA is in error.

Specifically, petitioner asserts that a violation of the

CAA cannot be found unless there is an emission of an

air pollutant to the outside air. No court has ever

accepted that argument, and the assertion is without

merit.’

Section 112(e)(1) of the CAA grants EPA power to

develop work standards for air pollutants. 42 U.S.C.

7412(e)(1). Work standards are appropriate when “it

is not feasible to prescribe or enforce an emission

standard for control of a hazardous air pollutant or

pollutants.” 42 U.S.C. 7412(e)(1). Section 112(e)(5)

expressly provides that a work practice standard is to

be “treated as an emission standard” for purposes of

the Act. 42 U.S.C. 7412(e)(5). Congress enacted

Section 112(e)(5) following this Court’s decision in

(1982); Currie, Judicial Review Under Federal Pollution Con-

trol Laws, 62 Iowa L. Rev. 1221, 1259 (1977).

® Petitioner relies (Pet. 22, 48-49) on the initial decision in

United States v. MPM Contractors, Inc., 31 Env’t Rep. Cas.

(BNA) 1550 (D. Kan. 1990), to support his interpretation of the

CAA. That decision, however, was vacated on the govern-

ment’s motion for reconsideration. 767 F. Supp. 231 (D. Kan.

1990).

12

Adamo Wrecking to remove any ambiguity concern-

ing enforceability of work practice standards. See

Pub. L. No. 95-623, § 13, 92 Stat. 3457."

The courts have uniformly held that a violation of a

work practice standard constitutes a violation of the

Act. The Sixth Circuit has stated, in the context of a

criminal Clean Air Act violation, that the government

needs “to prove either that defendants emitted

asbestos into the atmosphere or that they violated the

work practice standards.” United States v. Louis-

ville Edible Oil Products, Inc., 926 F.2d 584, 588 (6th

Cir.) (emphasis added), cert. denied, 112 U.S. 177

(1991); see also Sealtite Corp., 739 F. Supp. at 468

(failure to follow asbestos NESHAP automatically

results in liability).”'

10 Congress’s motivation is summarized by the statement of

Rep. Rogers:

(T]he proposed legislation includes technical amendments

intended to remove ambiguity about the status and en-

forceability of nonnumerical emission control requirements

under title I of the Clean Air Act. These ambiguities were

called to the Congress [sic] attention by the * * * decision in

Adamo Wrecking Company * * *.

These technical amendments make clear that both nu-

merical and non-numerical emission control requirements

promulgated under Section 111 or 112 of the act are

enforceable by [EPA]. * * * Thus, civil or criminal

enforcement action under section 113 would be authorized

for violations of non-numerical emission control require-

ments under section * * * 112 of the act{.]

124 Cong. Rec. 31,228 (1978). For a discussion of the history of

Section 112(e), see D. Currie, Air Pollution: Federal Law and

Analysis § 3.27 (1983).

1l The courts have also rejected arguments that the gov-

ernment must show visible emissions of asbestos in order to

13

Furthermore, petitioner’s arguments ignore the

purpose of the work practice standards. The work

practice standards are necessary in part because

measurement of asbestos emissions is technologically

and economically impractical. 43 Fed. Reg. 26,372

(1978). Petitioner’s argument that EPA must prove

emissions into the ambient air in every enforcement

action is contradicted by EPA’s express finding of the

impracticality of such measurements. Indeed, an

express purpose of the CAA is “to assure that

regulatory action can effectively prevent harm before

it occurs.” Sierra Club v. Gorsuch, 551 F. Supp. 785,

787 (N.D. Cal. 1982). That goal would be thwarted if

the United States may enforce a prophylactic work

practice requirement only in those cases in which the

government can prove an actual emission. See

Tzavah Urban Renewal Corp., 696 F. Supp. at 1021-

1022, quoting Amoco Production Co. v. Village of

Gambell, 480 U.S. 531 (1987)."

prove a violation of the work practice standards. United

States v. Ben’s Truck & Equipment, Inc., 25 Env’t Rep. Cas.

(BNA) 1295, 1299 (E.D. Cal. 1986) (rejecting contention that

the government must prove visible emissions of asbestos

occurred in order to prove a violation of 40 C.F.R. 61.147(d));

United States v. MPM Contractors, Inc., 767 F. Supp. 231, 233

(D. Kan. 1990) (expressly rejecting assertion that dust emis-

sions are a prerequisite to a finding that friable asbestos

materials were inadequately wetted).

2 Moreover, the district court in this case expressly found

that the United States had shown by a preponderance of the

evidence that petitioner had caused asbestos materials to be

emitted to the outside air. Pet. App. B20.

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Drew S. Days, Ill

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney General

ANNE 8S. ALMY

ANDREW C. MERGEN

Attorneys

APRIL 1994