# Opposition Brief — B&W Investment Properties v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1126

## Text

No. 94-1431

ee

Iu the Supreme Court of the United States
OCTOBER TERM, 1994

3 & W INVESTMENT PROPERTIES AND LOUIS WOLF,
PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III
Solicitor General
Lois J. SCHIFFER
Assistant Attorney General
ANNE S. ALMY
WILLIAM B. LAZARUS
Attorneys
Department of Justice
Washington, D.C. 20530
202) 514-2217

QUESTION PRESENTED

Whether pre-suit notification was required before
the United States initiated civil enforcement actions
against petitioners under the Clean Air Act, 42
U.S.C. 7413(b) (3) and (4) (1988), for violations of
the Act’s hazardous air pollutant requirements, 42
U.S.C. 7412(c), and the Act’s recordkeeping and
reporting requirements, 42 U.S.C. 7414.

TABLE OF CONTENTS

ESS ee a a EI EE a
ESTAR een

Statement

Argument ..

Conclusion

TABLE OF AUTHORITIES

Statutes and regulations:

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

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Regulations—Continued: Page

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Miscellaneous:

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In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1431
B & W INVESTMENT PROPERTIES AND LOUIS WOLF,
PETITIONERS
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.
1-12), as modified (Pet. App. 14-15), is reported at
38 F.3d 362.

JURISDICTION

The judgment of the court of appeals was entered
on October 24, 1994. A petition for rehearing was
denied on December 2, 1994 (Pet. App. 14-15). The
petition for a writ of certiorari was filed on Febru-

(1)

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2

ary 27, 1995. The jurisdiction of this Court is in-
voked under 28 U.S.C. 1254(1).

STATEMENT

1. The Clean Air Act authorizes the Adminis-
trator of the Environmental Protection Agency (Ad-
ministrator) to publish a list of hazardous air
pollutants that “cause[], or contribute[] to, air pol-
lution 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).’ The Administrator is
also required to prescribe national emission standards
for such hazardous air pollutants (NESHAP), which
must be set at a level that provides an ample margin
of safety to protect the public health. 42 U.S.C. 7412
(b)(1)(B). When it is not feasible to prescribe or
enforee emission standards, the Administrator may
promulgate work practice standards prescribing spe-
cific procedures for handling hazardous air pollu-
tants. 42 U.S.C. 7412(e) (1).

In 1971, the Administrator designated ashestos as
a hazardous air pollutant pursuant to Section 7412.
36 Fed. Reg. 5931. A major source of airborne
asbestos is demolition and renovation activities where
insulation containing asbestos is stripped or removed
from structures and pipes. The Administrator first
issued an asbestos NESHAP in 1973. 38 Fed. Reg.

'The Clean Air Act was amended in November 1990. See
Pub. L. No. 101-549, 104 Stat. 2399. The events at issue
occurred prior to that date. Therefore, the district court and
the court of appeals applied pre-amendment law, except for
a post-amendment provision that mitigated punishment. Pet.
App. 1 n.1. Unless otherwise noted, all references to the Act
in this brief are to the Act before the 1990 amendments.

3

8820. It regulates emissions of airborne asbestos by
establishing work practice standards for handling
and disposing of asbestos during asbestos stripping
and removal activities. The Environmental Protec-
tion Agency (EPA) has authorized the State of IIli-
nois to implement and enforce the asbestos NESHAP
pursuant to 42 U.S.C. 7412(d)(1), while retaining
authority to bring an action itself for any NESHAP
violation under 42 U.S.C. 7412(d)(2). The 1984
version of the asbestos NESHAP (49 Fed. Reg.
13,658) applies to the renovation activities in this
case, and is published at 40 C.F.R. Pt. 61, Subpt. M,
Sections 61.140-61.156 (1989) .°

The asbestos NESHAP requires owners and opera-
tors* of renovation projects to follow specific “work

2 The asbestos NESHAP defines “renovation” in relevant
part as “altering in any way one or more facility components”
(40 C.F.R. 61.141 (1989) ); “facility component” as “any pipe,
duct, boiler, tank, reactor, turbine, or furnace at or in a facil-
ity; or any structural member of a facility” (ibid.); and
“facility” as “any institutional, commercial, or industrial
structure, installation, or building (excluding apartment build-
ings having no more than four dwelling units)” (ibid.). The
asbestos NESHAP was revised and repromulgated in Novem-
ber 1990 (55 Fed. Reg. 48,406).

8’ An “owner or operator” is defined in the general NESHAP
regulations to include “any person who owns, leases, operates,
controls, or supervises a stationary source.” 40 C.F.R. 61.02
(1989). The Act defines “stationary source” as “any building,
structure, facility, or installation which emits or may emit
any air pollutant.” 42 U.S.C. 7411(a) (3). The general provi-
sions of the NESHAP regulations further define “stationary
source” as “any building, structure, facility or installation
which emits or may emit any air pollutant which has been
designated as hazardous by the Administrator.” 40 C.F.R.
61.02 (1989).

4

practice standards” when a renovation operation in-
volves stripping or removing at least 260 linear feet
of friable asbestos materials from pipes, or at least
160 square feet of friable asbestos materials from
other facility components. 40 C.F.R. 61.145(d),
61.147, 61.152 (1989).* The standards require that
friable asbestos materials be sufficiently wet when
they are being stripped from facility components, un-
less EPA waives this requirement (40 C.F.R. 61.147
(c) (1989)), and that friable asbestos materials that
have been removed or stripped must be sufficiently
wet and remain wet until they are collected for dis-
posal. 40 C.F.R. 61.147(e) (1989).

Emitting an air pollutant in violation of a NESHAP
by a stationary source is a violation of 42 U.S.C.
7412(c). The Administrator is authorized to com-
mence a civil action seeking injunctive relief, or a
civil penalty “of not more than $25,000 per day of
violation, or both, whenever such person * * * vio-
lates * * * section 7412(c).” 42 U.S.C. 7413(b) (3).

The Administrator is authorized by 42 U.S.C. 7414
(a) to establish reporting requirements applicable to
owners and operators of emission sources subject to
various requirements promulgated under Section
7412, including the asbestos NESHAP, to enable
EPA to determine whether an owner or operator has
violated Section 7412. Accordingly, the asbestos
NESHAP requires each owner and operator of a
renovation operation to provide EPA with timely,
advance written notice of the intention to renovate
a facility. 40 C.F.R. 61.145, 61.146(b)(4) (1989).

*“Friable asbestos material” is defined as “any material
containing more than 1 percent asbestos by weight that hand
pressure can crumble, pulverize, or reduce to powder when
dry.” 40 C.F.R. 61.141 (1989).

5

When a renovation operation involves stripping or
removing at least 260 linear feet of friable asbestos
materials from pipes, or at least 160 square feet of
friable asbestos materials from other facility com-
ponents, written notice regarding the renovation
must be given as early as possible before renovation
begins. 40 C.F.R. 61.145, 61.146(b) (4), 61.146(c)
(1989). The Administrator is authorized to com-
mence a civil action seeking injunctive relief, or a
civil penalty “of not more than $25,000 per day of
violation, or both, whenever such person * * * fails
or refuses to comply with any requirement of section
7414.” 42 U.S.C. 7413 (b) (4).

The Clean Air Act also provides for the Adminis-
trator to establish national primary and secondary
ambient air quality standards. 42 U.S.C. 7409.
States are required to adopt, and to submit for EPA
approval, a state implementation plan. 42 U.S.C.
7410. An implementation plan must provide for the
implementation, maintenance, and enforcement of the
national primary and secondary air quality standards
promulgated by the Administrator. The enforcement
procedures for violations of “any requirement of an
applicable implementation plan,” 42 U.S.C. 7413(a)
(1) and (b)(2)—~e., any requirement of a state
implementation plan for national primary and secon-
dary ambient air quality standards, see 42 U.S.C.
7410(d)—differ from the procedures in Section 7413
(b)(2) for violations of Sections 7412 and 7414.
Under Section 7413(a)(1), the Administrator is re-
quired to notify a person found to be in violation of
“an applicable implementation plan,” and if the vio-
lation extends beyond the 30th day after the date of
notification, the Administrator may act to enforce
the finding either by issuing an administrative order

6

requiring compliance or by initiating a civil action
under Section 7413(b) (2).°

2. In 1989, petitioner Louis Wolf purchased ap-
proximately 5.5 acres of property in Cicero, Illinois,
that includes four buildings. Pet. App. 3. In May
1990, the undeveloped portion of the property was
leased by Wolf’s colleague Albert Berland, as an
agent for petitioner B & W Investment Properties,
Inc. (B & W), to David Moss for use as a storage
lot. Zbid. Berland entered into an agreement to sell
Moss the property, subject to removal of asbestos
from the buildings, after which Berland hired a con-
tractor to remove‘the asbestos. Jd. at 3-4.

EPA was not given notice of this renovation work
prior to the contractor’s initiation of the work on
August 10, 1990. Pet. App. 4. EPA investigators
went to the site on August 27 and 31, 1990, follow-
ing receipt of an anonymous tip concerning the
renovation activities at the site. The investigators
discovered at the site large quantities of unwetted
friable asbestos which was capable of becoming air-
borne near the adjacent commuter rail stop. They
also noted a general lack of security at the site in-
cluding open doors, broken windows, a hole in the
roof, and the absence of warning signs to alert in-
dividuals to the danger of asbestos exposure. Ibid.

5 The 1990 amendments to the Clean Air Act incorporated
the amended provisions governing procedures for violations
of an applicable implementation plan, previously found in
subsections (b) (1) and (b) (2), in a new subsection (b) (1).
See 42 U.S.C. 7413(b) (1) (Supp. V 1993). The 1990 Act
incorporated the amended provision governing civil enforce-
ment actions for violations of Sections 7412 and 7414, previ-
ously found in subsection (b) (3), in a new subsection (b) (2).
See 42 U.S.C. 7413(b) (2) (Supp. V 1993).

7

On August 30, 1990, EPA served Berland with an
administrative order which outlined the inspectors’
findings, required cessation of the renovation activi-
ties, and stated the steps required to bri ng the prop-
erty into compliance with the relevant laws. Pet.
App. 27-34. Wolf, as agent for B & W, subsequently
hired a contractor to perform the necessary cleanup
work, which commenced on January 21, 1991 and
was completed March 13-15, 1991. Jd. at 4.

3. On September 16, 1991, the United States initi-
ated a civil enforcement action against Louis Wolf
and B & W alleging violations of the Clean Air Act,
specifically Sections 7412 and 7414, and the asbestos
NESHAP, and seeking civil penalties against each
defendant and permanent injunctive relief. Pet. App.
16-25. The district court granted the government’s
motion for summary judgment, concluding that Wolf
and B & W were jointly and severally liable under
the Act and regulations for the violations. The court
accepted a magistrate judge’s penalty recommenda-
tion and reduced Wolf’s liability based on his ability
to pay, and assessed no fine for the violation of
Section 7414. Pet. App. 5.

4. The court of appeals affirmed. Pet. App. 1-12.
The court held that Section 7413(b) did not require
the United States to give notice before initiating its
asbestos NESHAP enforcement action because pre-
suit notification is required only in actions to enforce
state implementation plans under the Act and is not
required in actions to enforce Section 7412(c)
(NESHAP violations) or Section 7414 (notice viola-
tions). Pet. App. 5-8. The court also ruled that the
district court did not err in finding B & W liable as
an “owner or operator” of the subject property, and
did not abuse its discretion regarding the penalty im-

$<. —____— —— —————

8

posed or in rejecting defendants’ effort to admit as
evidence an internal EPA memorandum. /d. at
8-12. The court denied Wolf’s and B & W’s petition
for rehearing with suggestion for rehearing en banc,
and amended a portion of one sentence in its opinion.
Id. at 14-15.

ARGUMENT

Petitioners assert (Pet. 9-13) that the court of
appeals erred in affirming the district court’s deter-
mination that the United States was not obligated
under 42 U.S.C. 7413(b)(2) to serve Wolf and
B & W with a notice of the Section 7412(c) NESHAP
violation and the Section 7414 reporting violation in
advance of instituting this civil enforcement action for
those violations. Petitioners contend (Pet. 10) that
this case involves alleged violations of a state imple-
mentation plan, because “the Administrator had dele-
gated to the State of Illinois his authority to imple-
ment and enforce both asbestos removal [42 U.S.C.
sec. 112(d)(1) [sic]] and asbestos reporting require-
ments [42 U.S.C. see. 114(b)(1) [sic]].” Accord-
ingly, in petitioners’ view, this civil enforcement
action was unlawful because Wolf and B & W re-
ceived no pre-suit notice as required by Section
7413(b)(2) prior to initiation of a civil action for
violations of a state implementation plan, which then
may proceed only “if there is a compliance failure
30 days after the date of notice to that person.”
Pet. 10.

Petitioners’ contentions are not supported by any
appellate decision and are contradicted by the terms
of the Act. The Act provides that the pre-suit noti-
fication requirements apply only to claims of vio-
lations of “any requirement of an applicable imple-
mentation plan.” 42 U.S.C. 7413(a)(1) and (b)(2).

9

Petitioners err by assuming (Pet. 10) that the term
“applicable implementation plan” includes the author-
ity delegated to the State of Illinois under Section
7412(d) to enforce Section 7412 NESHAP violations,
and under Section 7414(b) to carry out the report-
ing requirements of Section 7414.

Contrary to petitioners’ assumption, the Act’s defi-
nition of the term “applicable implementation plan”
does not include state procedures developed and sub-
mitted to the Administrator under Section 7412
(d)(1) “for implementing and enforcing emission
standards for hazardous air pollutants for stationary
sources located in such State,” or state procedures
developed and submitted to the Administrator under
Section 7414(b) (1) “for carrying out” Section 7414’s
requirements in the State. Rather, Section 7410(d)
expressly limits the use of the term “applicable im-
plementation plan” to a state implementation plan
for national primary and secondary ambient air
quality standards approved or promulgated under
Section 7410:

For purposes of this chapter, an applicable
implementation plan is the implementation plan,
or most recent revision thereof, which has been
approved under subsection (a) of this section or
promulgated under subsection (c) of this section
and which implements the requirements of this
section.

42 U.S.C. 7410(d).

Accordingly, the notification requirements in Sec-
tion 7413(a)(1) and (b)(2) have no application
here. This case involves enforcement of Sections
7412(¢c) and 7414, and does not involve enforcement
of “an applicable implementation plan,” as Congress

10

defined that term “[f]or purposes of” the Clean Air
Act. As explained above, Section 7413(b) (38) pro-
vides for the initiation of a civil enforcement action
for violations of Section 7412(c), and Section 7413
(b) (4) provides for the initiation of a civil enforce-
ment action for violations of Section 7414. Neither
subsection (b)(3) nor (b)(4) contains any pre-suit
notification requirement.

In these circumstances, the court of appeals cor-
rectly held that “the Act imposes no duty on the EPA
to provide notice of violations of section [7412] be-
fore commencing an action for injunction or civil
penalties.” Pet. App. 6. As the court explained,

[T]he EPA did not rely on the enforcement pro-
vision of section 118(b)(2) [7418(b)(2)]. In
fact the EPA could not, because section 113(b)
(2) which concerns violations of state implemen-
tation plans for ambient air quality standards,
by its terms does not apply to regulation of
hazardous air pollutants. There are no ambient
air quality standards for hazardous air pollut-
ants such as asbestos. 42 U.S.C. § 7412 (“ ‘haz-
ardous air pollutant’ means an air pollutant to
which no ambient air quality standard is appli-
cable’”’).

Ibid.

Nor, finally, are petitioners correct in suggesting
(Pet. 10) that the Administrator had no authority to
initiate enforcement actions for violations of Section
7412(c) or Section 7414, because he had delegated to
the State authority to enforce the Section 7412 as-
bestos NESHAP and authority to carry out Section
7414. Subsection (d)(1) of Section 7412 provides
for delegation of the Adiministrator’s enforcement
authority to a State that meets the provision’s condi-

:
i
;
:
;

1]

tions for such delegation, but subsection (d)(2) ex-
pressly reserves concurrent enforcement authority in
the Administrator:

Nothing in this subsection shall prohibit the
Administrator from enforcing any applicable
emission standard under this section.

42 U.S.C. 7412(d) (2). Similarly, subsection (b) (1)
of Section 7414 permits delegation of the Adminis-
trator’s authority to “carry out” Section 7414 to a
State that meets the provision’s conditions for such
delegation, but subsection (b) ( 2) expressly reserves
concurrent authority in the Administrator to carry
out this authority in the State:

Nothing in this subsection shall prohibit the
Administrator from carrying out this section in
a State.

42 U.S.C. 7414(b) (2).

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

Drew S. Days, III
Solicitor General

Lois J. SCHIFFER
Assistant Attorney General

ANNE S. ALMY
WILLIAM B. LAZARUS
Attorneys

MAY 1995

w ou.s. GOVERNMENT PRINTING OFFICE: 1995 3867147 20067

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1325%3A2. Public record. Not legal advice.