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Adamo Wrecking Co. v. United States

ELR Citation: 8 ELR 20171
Nos. No. 76-911, 434 U.S. 275/11 ERC 1081/(U.S., 01/10/1978) Rev'd

The Supreme Court rules, five to four, that an Environmental Protection Agency (EPA) regulation requiring the wetting of buildings containing asbestos during demolition is not an emission standard within the meaning of §112(c) of the Clean Air Act. The trial court therefore correctly dismissed an indictment under §113(c)(1)(C) charging a wrecking company that did not follow the required work practices with violating an emission standard. Justice Rehnquist, writing for the five-man majority, states that the EPA Administrator's designation of the regulation as an emission standard is not conclusive as to its character. Although §307(b)(2) of the Act limits judicial review of an emission standard to the D.C. Circuit, and then only within 30 days of its promulgation, the district court may determine in a criminal prosecution under §113(c)(1)(C) whether the regulation that the defendant is accused of violating is in fact an emission standard. An examination of the 1977 Amendments to the Act, which include a provision authorizing work practice requirements where numerical emission standards are not feasible, persuades the majority that the trial court correctly rejected EPA's view that such requirements were previously authorized as emission standards under §112(c). The court of appeals ruling, 545 F.2d 1, 7 ELR 20001, that §307(b) precluded the petitioner from questioning whether the regulation was in fact a §112(c) emission standard is reversed, and the district court's dismissal of the indictment is affirmed. Justice Powell suggests in a concurring opinion that the 30-day limitation on judicial review imposed by §307(b) may represent an unconstitutional denial of due process in the context of a later criminal prosecution.

Justice Stevens argues in dissent that the majority's decision denies EPA the authority to regulate hazardous substances such as asbestos effectively, and that the Court should defer to the Agency's construction of its own authority if the relevant statutory provisions are considered ambiguous. Moreover, the contends that the 1977 Amendments simply restate the authority already held by EPA under §112. Justice Stewart, with whom Justices Brennan and Blackmun joined, also dissents, arguing that the majority's ruling is contrary to the unambiguous provisions of §307(b)(2) and threatens to destroy the effectiveness of the unified and expedited judicial review procedure established by the Act.

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

Counsel for Respondent
Frank H. Easterbrook, Ass't Solicitor General; James W. Moorman, Ass't Attorney General; Raymond N. Zagone, Patrick A. Mulloy, John J. Zimmerman
Department of Justice, Washington DC 20530
(202) 737-8200

Gerald K. Gleason, Deputy Associate General Counsel; Ronald S. Naveen
Environmental Protection Agency, Washington DC 20460
(202) 755-2500