# Opposition Brief — Walsh v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1081

## Text

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No. 93-1316 APR

(\t

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:
I a ae
MUTI TE siGieaasncdonsuiniadietendeusccsetonnnasineboomacéniabietenda
I
ERT ae RE Sm Le
8 EE RR Ee Te
SERENE eee co), NOIRE ie
SR se
I a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1250%3A2. Public record. Not legal advice.