National Ass'n of Demolition Contractors, Inc. v. Costle, s. 74-1545 and 75-2078

• Decision Date: 13 October 1977
• Docket Number: Nos. 74-1545 and 75-2078,s. 74-1545 and 75-2078
• Citation: 565 F.2d 748
• Parties: , 184 U.S.App.D.C. 173, 7 Envtl. L. Rep. 20,763 NATIONAL ASSOCIATION OF DEMOLITION CONTRACTORS, INC., Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 748

565 F.2d 748

10 ERC 1944, 184 U.S.App.D.C. 173, 7

Envtl. L. Rep. 20,763

NATIONAL ASSOCIATION OF DEMOLITION CONTRACTORS, INC., Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent.

Nos. 74-1545 and 75-2078.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 15, 1977.

Decided Oct. 13, 1977.

Stanley M. Lipnick, Chicago, Ill., with whom Burton Y. Weitzenfeld, Chicago, Ill., and John F. McCabe, Jr., Washington, D. C., were on the brief, for petitioner.

John E. Bonine, Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., for respondent. Peter R. Taft, Asst. Atty. Gen., and Patrick A. Mulloy, Atty., Dept. of Justice, Washington, D. C., were on the brief for respondent.

Before WRIGHT, ROBINSON, and MacKINNON, Circuit Judges.

Opinion for the court filed by WRIGHT, Circuit Judge.

J. SKELLY WRIGHT, Circuit Judge:

The National Association of Demolition Contractors, Inc. (NADC) seeks review of amendments promulgated in 1974 and 1975 by the Administrator of the Environmental Protection Agency (EPA) to regulations governing demolition of buildings which contain asbestos. For reasons which we detail below, we cannot agree with petitioner that the Administrator has abused his discretion or acted arbitrarily, capriciously, or contrary to law, and we therefore uphold the validity of the amendments. ¹

I

Section 112 of the Clean Air Act, 42 U.S.C. § 1857c-7 (1970), as amended, Pub.L.No. 95-95 § 110, 91 Stat. 703 (Aug. 7, 1977), requires the Administrator of EPA to designate "hazardous air pollutants" pollutants which "may cause, or contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness" and to establish standards to control such pollutants "at the level which in his judgment provides an ample margin of safety to protect the public health * * * ." Asbestos was included in the first list of hazardous air pollutants published by the Administrator in March 1971, 36 Fed. Reg. 5931 (1971), and proposed standards for asbestos emissions were published later that year, id. at 23239. After receiving comments and holding hearings throughout the country, id. at 23931, the Administrator promulgated final regulations in 1973, 38 Fed. Reg. 8820 (1973), JA 28. In the preamble to these regulations the Administrator concluded that, while "(a)sbestos is too important in our technology and economy for its essential use to be stopped," its known serious effects and the uncertainty of the "dose-response curve" required "that the major sources of man-made asbestose (sic ) emissions into the atmosphere be defined and controlled." Id. Relying primarily on a report of the National Academy of Sciences (NAS), the Administrator found that demolition of institutional, industrial, and commercial buildings or structures containing friable asbestos asbestos capable of crumbing or being reduced to a powder and emitted into the air was one of five major sources of asbestos emissions. Id. at 8821, JA 29. ² Accordingly, the regulations required that notice be provided to the Administrator prior to demolition of a building containing friable asbestos and that prescribed procedures for wetting and removal of materials containing asbestos be followed. Id. at 8829, JA 36.

In 1974 and 1975 amendments to these regulations were promulgated. The 1974 amendments reduced the notice period required prior to demolition and permitted removal of certain units without first stripping and wetting the asbestos. 39 Fed. Reg. 15398 (1974), JA 91. Petitioner promptly sought review of these amendments, but proceedings were delayed after the court was informed that EPA was in the process of further amending the regulations. The 1975 amendments, which were the product of this rulemaking, refined the "wet and remove" requirements. Friable asbestos was defined, an exemption was provided where operations involved less than a specified amount of asbestos, and provision was made for wrecking companies to remove asbestos and demolish buildings portion-by-portion. Finally, the regulations established an exemption from the wetting requirement where demolition takes place at subfreezing temperatures. 40 Fed. Reg. 48299-48300 (1975), JA 246-247. NADC again sought review, and its challenges to the 1974 and 1975 amendments were consolidated into this action. ³

II

NADC first challenges the Administrator's refusal to perform newly developed tests at demolition sites which might establish that demolition is not a "major source" of asbestos emissions and therefore should not be regulated under the Administrator's policy of controlling only "major sources" of emissions. At the time the original regulations were proposed and promulgated, no means were available to measure the actual amounts of asbestos emitted from unenclosed sources, including demolition sites. Since that time, under the auspices of EPA, testing technology has improved, and the Administrator has made use of newly developed tests to measure asbestos emissions in other types of unenclosed projects such as waste disposal sites. See Background Information on National Emission Standards for Hazardous Air Pollutants Proposed Amendments to Standards for Asbestos and Mercury, Pub. No. EPA-45 0/2-74-009a (1974), at 52-72, JA 184-204 (hereinafter Background Information ). But while EPA staff members conceded in late 1973, after the promulgation of the original amendments, that it would be feasible to perform these tests on demolition sites, see JA 98, the Administrator has refused petitioner's request that he do so. Rather, the preamble to the 1975 amendments states: "The Agency previously made the determination that building demolition is a major source of asbestos emissions, and no new information has been submitted to demonstrate that it is not a major source." 40 Fed. Reg. 48295 (1975), JA 242.

We have no occasion to consider whether petitioner's argument would be a meritorious one if the tests in question were established to be an accurate or at least a relatively accurate means of measuring asbestos emissions. For the fact is that their accuracy has in no way been established. Indeed, it is the inaccuracy of these tests, coupled with the dangers involved from emissions during the actual testing, which is the Administrator's justification for their not having been performed at demolition sites. According to one expert witness cited by the Administrator in the preamble to the 1975 regulation, "It is reasonable to assume an error in the count of fibers in both water and air of at least nine times on the high side to one-ninth on the low side." Testimony of Dr. Arnold Brown, quoted at 40 Fed. Reg. 48296 (1975), JA 243. Moreover, evidence from tests which have been performed supports the Administrator's conclusion as to their utility: in one test readings from two different monitors at a single site taken at the same time showed asbestos concentrations of 2 and 12,700 ng/m 3 respectively. See Background Information, supra, at 67, JA 199. Because of the undisputed inaccuracy of this testing methodology, we cannot find the Administrator's refusal to perform these tests at demolition sites, with a view toward ending regulation on the basis of the results, to be arbitrary, capricious, or an abuse of his discretion.

III

Petitioner also challenges the Administrator's reliance on a scientific report which was not in the administrative record as a basis for continuing regulation of demolition projects. In the preamble to the 1975 amendments quoted earlier, the Administrator, after noting that "no new information" had been submitted to establish that demolition was not a major source of asbestos emissions, went on to state:

Demolition and renovation operations generate short-term exposure of urban populations to asbestos. Since promulgation of the demolition regulations on April 6, 1973, new biological evidence supporting the significance of single short-term exposures has been obtained. One-day inhalation exposures in animal experiments have produced an increase in the incidence of mesothelioma. (Wagner, J. C., Berry, G., and Timbrell, V., "The Effects of the Inhalation of Asbestos in Rats", Br. J. Cancer 29, pp. 252-269, 1974). * * *

40 Fed. Reg. 48295, JA 242.

We have repeatedly emphasized that informal rulemaking conducted according to the Administrative Procedure Act mandates "an exchange of views, information, and criticism between interested persons and the agency." Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. ---, ---, 567 F.2d 9, 35 (decided March 25, 1977) (per curiam ) (emphasis in original), cert. denied, --- U.S. ----, 46 U.S.L. Week 3190 (Oct. 3, 1977); see Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 326-327, 486 F.2d 375, 393-394 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). As a result, we have sought to "tread cautiously" in weighing agency requests to supplement a record after promulgation of a challenged rule, bearing in mind that "information on such events reaches a reviewing court untested by any procedures, such as an administrative hearing, designed to assure its accuracy and completeness." Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722, 729 n.10 (1974). In this case, however, petitioner has not contended that it is aware of other studies or reports which reach conclusions at odds with those reached in the study relied upon by the Administrator. Absent such information, we can see little purpose to be served in requiring the Administrator to reopen the proceedings at this time. But should petitioner discover new information, we think the Agency has the responsibility, in the first instance, to reconsider and resolve such questions. ⁴

IV

Finally, petitioner challenges the Administrator's limitation of the exemption from wetting asbestos to demolition which takes place at subfreezing temperature....