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National Ass'n of Demolition Contractors v. Costle

Citation: 7 ELR 20763
No. Nos. 74-1545, 75-2078, 565 F.2d 748/10 ERC 1944/(D.C. Cir., 10/13/1977)

The court upholds the validity of amendments to regulations promulgated by the Environmental Protection Agency (EPA) under § 112 of the Clean Air Act which govern the demolition of buildings containing asbestos. The agency's refusal to perform tests at demolition sites to verify its earlier determination that building demolition is a major source of asbestos emissions was not an abuse of discretion because the accuracy of the testing methodology has not been established.Moreover, EPA's reliance on a scientific report showing the danger of single short-term exposures of urban populations to asbestos which was not in the administrative record does not require that the administrative proceedings be reopened in the absence of other studies or reports reaching contrary conclusions. The court rejects petitioner's contention that the exemption of demolition in subfreezing temperatures from the normal wetting requirements means that wetting is not necessary to protect the public health in any circumstances. The Administrator acted within the bounds of his discretion in providing a limited exception to the wetting requirement in such circumstances to protect worker safety. The petitions for review of the amended regulations are denied.

Counsel for Petitioner
Stanley M. Lipnick, Burton Y. Weitzenfeld
Arnstein, Gluck, Weitzenfeld & Minow
75th Floor Sears Tower, Chicago IL 60606
(312) 876-7100

John F. McCabe, Jr.
Wilkes & Artis
Suite 600, 1666 K St. NW, Washington DC 20006
(202) 457-7800

Counsel for Respondent
John E. Bonine, Assoc. General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2500

Patrick A. Mulloy
Department of Justice, Washington DC 20530
(202) 737-8200

Before WRIGHT, ROBINSON, and MACKINNON, Circuit Judges.