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Safe Bldg. Alliance v. EPA

ELR Citation: 18 ELR 20857
Nos. No. 87-1669, 846 F.2d 79/(D.C. Cir., 05/10/1988)

The court upholds the Environmental Protection Agency's (EPA's) regulations under the Asbestos Hazard Emergency Response Act (AHERA) concerning asbestos materials in public school buildings. The court holds that EPA's failure to specify a single least burdensome response action for every asbestos hazard situation does not render the regulations unacceptably imprecise. AHERA's mandate is somewhat contradictory; EPA must identify a response action using the least burdensome methods to protect public health, while the Agency must at the same time account for local conditions. EPA's regulations, which list specific responses sufficient to protect public health and provide a method by which school officials may determine the least burdensome response for their circumstances, are a reasonable interpretation of the statute.

The court holds that EPA's failure to designate safe ambient levels of asbestos concentration or to require air monitoring was not arbitrary and capricious. Congress did not require EPA to rely on air monitoring or establish a quantitative measure of safe exposure. Rather, Congress recognized that experts disagree on the safe level of exposure, and required EPA to define response actions that are sufficient to protect public health. EPA's selection of response actions warrants the special deference owed to an agency's expert judgment on matters at the frontier of science. The court next holds that EPA's decision to permit removal of asbestos materials in all cases was reasonable. There is a lack of adequate evidence that properly conducted removal actions actually raise asbestos levels. The statute and legislative history indicate that Congress assumed that removal would always be an option. EPA need not have prohibited removal where asbestos concentrations are below the level that triggers an abatement action or where removal is not the least burdensome response, since Congress did not intend to discourage schools from pursuing removal. Moreover, the statute does not require schools to adopt the least burdensome method of protecting human health and the environment. Finally, the court holds that EPA did not improperly expand the definition of "school building," and did not arbitrarily and capriciously refuse to extend the statute's deadlines for the submission of management plans.

Counsel for Petitioners
William H. Lewis Jr., Edward W. Warren
Morgan, Lewis & Bockius
2000 One Logan Circle, Philadelphia PA 19103-5322
(215) 963-5000

Counsel for Respondent
Mary Elizabeth Ward
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before: EDWARDS and WILLIAMS, Circuit Judges, and OBERDORFER,[*] District Judge.