NATIONAL GYPSUM COMPANY, PETITIONER V. UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY

   No. 88-241

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Brief for the Respondent in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A13) is reported
at 846 F.2d 79.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 10, 1988.
The petition for a writ of certiorari was filed on August 8, 1988.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals erred in concluding that the United
States Environmental Protection Agency's school-asbestos rules were
lawful under the Asbestos Hazard Emergency Response Act of 1986, 15
U.S.C. (Supp. IV) 2641-2654.

                               STATEMENT

   On October 17, 1987, the United States Environmental Protection
Agency (EPA) issued rules pursuant to the Asbestos Hazard Emergency
Response Act of 1986 (AHERA) /1/ requiring schools -- described as
local education agencies (LEAs) under AHERA -- to establish and to
execute plans to manage asbestos-containing materials found in school
buildings.  52 Fed. Reg. 41826 (1987) (AHERA rules).  /2/ Several
former manufacturers of asbestos-containing products, including
petitioner, challenged the rules as failing to fulfill AHERA's
mandate.  The court of appeals upheld the AHERA rules (Pet. App.
A1-A13).

   1. Since 1979, the EPA has operated a technical assistance program
to assist LEAs and other building owners to identify and to control
asbestos in their buildings.  In connection with that program, the EPA
issued several documents designed to provide guidance for managing
asbestos in buildings.  The last of such guides, issued in 1985, was
entitled "Guidance for Controlling Asbestos-Containing Materials in
Buildings" and is known as the "Purple Book." The book provides a
brief introduction to the problem of asbestos but is merely advisory
and contains only general guidance.

   In response to a number of concerns about the EPA's asbestos
program, Congress enacted AHERA in 1986.  It expressly found that the
EPA's then-current rules for dealing with asbestos in schools did not
contain "standards for * * * appropriate response actions" or a
"requirement that response actions * * * be carried out in a safe and
complete manner." 15 U.S.C. 2641(a)(1).  Congress also found that
there was neither a uniform program for accrediting persons who
identify or remove asbestos nor a regulatory requirement that only
accredited persons perform those tasks.  15 U.S.C. 2641(a)(2).  In
addition, Congress determined that the EPA's Purple Book was
insufficient to ensure adequate responses.  15 U.S.C. 2641(a)(3).

   Accordingly, Congress in AHERA directed the EPA to promulgate
comprehensive rules within 360 days of the statute's enactment.  15
U.S.C. 2643(a).  The rules must (1) require schools to inspect for
asbestos;  (2) describe response actions for at least four
circumstances -- when there is actual or reasonably likely damage or
significant damage to friable asbestos;  /3/ (3) require schools to
implement those response actions;  and (4) require schools to develop
management plans detailing the inspection of, and actions to be taken
with respect to, asbestos.  15 U.S.C. 2643(b)-(e) and (i).  The EPA's
regulations "must protect human health and the environment" (15 U.S.C.
2643(a)), and they must offer such protection against both "actual
(and) potential exposures to releases of asbestos that may cause
adverse effects on human health or the environment" (132 Cong. Rec.
H8823 (daily ed. Oct. 1, 1986) (remarks of Rep. Florio) (emphasis
added);  132 Cong. Rec. S15065 (daily ed. Oct. 3, 1986) (emphasis
added) (joint explanatory statement)).

   More specifically, AHERA requires that the EPA, in describing
appropriate response actions, identify the least burdensome methods
that protect human health and the environment, taking into account
local circumstances, including occupancy, building use, and costs.  15
U.S.C. 2643(d)(1)-(5).  The statute also directs the EPA to consider
and assess various technologies in order to improve LEAs'
response-action decisionmaking processes.  15 U.S.C. 2643(c)(2).  And,
to ensure that there is oversight and participation by parents,
teachers, and school employees, the EPA's regulations must require
each LEA to develop an asbestos management plan (15 U.S.C. 2643(i))
that includes, among other things, the results of the inspection of
the school buildings and a detailed description of the measures to be
taken in response.  15 U.S.C. 2643(i)(1)(A)-(I).  That plan must be
made available for inspection by the public (15 U.S.C. 2643(i)(5) and
must be submitted to the Governor (15 U.S.C. 2643(i)(6)), who is
empowered to disapprove it if, among other things, it does not conform
to the EPA's AHERA rules (15 U.S.C. 2645(a) and (c)).

   2. The AHERA rules promulgated by the EPA prescribe detailed
procedures for the inspection of schools.  They require that
inspectors be accredited (40 C.F.R. 763.85) /4/ and that each
inspector classify any damaged or potentially damaged asbestos
according to prescribed categories (40 C.F.R. 763.88(a)(1)) and
provide the LEA with a written assessment (40 C.F.R. 763.88(b)).
Under the rules, an accredited management plan developer must then
recommend in writing appropriate response actions in accordance with
the AHERA rules.  That recommendation must be placed in the LEA's
mandatory management plan (40 C.F.R. 763.93) and submitted to the
Governor and made available to the public -- in particular, to
parents, teachers, and other school employees (40 C.F.R. 763.93(a) and
(g)(1)(4)).

   In accord with prevailing scientific opinion, the EPA decided not
to prescribe air monitoring as the primary tool for determining the
appropriate response action for asbestos.  The agency explained that
numerical values in air tests would "provide a false sense of
precision regarding the presence and severity of asbestos hazards" --
specifically, the threat posed by episodic releases of asbestos fiber.
 52 Fed. Reg. 41838 (1987).  It concluded, instead, that visual
inspection of the condition of asbestos-containing materials in
particular locations, when conducted by a trained expert, would be a
better method for evaluating potential as well as actual fiber
releases.  Id. at 15831, 41838.

   In addition to rejecting air monitoring as the primary assessment
tool, the EPA refined the definitions of the categories of asbestos
problems identified by Congress (actual or potential damage or
significant damage).  40 C.F.R. 763.83;  see 52 Fed. Reg. 15823
(1987).  For example, the agency's definitions for damaged asbestos
focus on physical characteristics such as loss of structural
integrity, sagging, water damage, gouges, and the like.  The EPA also
defined the various response actions identified by Congress in AHERA.
The definitions require that enclosure, encapsulation, and repair of
asbestos, if undertaken by LEAs, must prevent the release of asbestos
fibers.  40 C.F.R. 763.83;  see 52 Fed. Reg. 41830, 41832, 41836
(1987).

   Recognizing that its descriptions of appropriate response actions
must be flexible enough to accommodate the variations in the condition
and location of asbestos in schools across the nation, the EPA decided
to allow LEAs discretion to define their responses within a range of
appropriate alternatives.  The appropriate response thus would depend
on such factors as the location and condition of the
asbestos-containing material, the technological feasibility of various
response actions, and economic considerations.  See 52 Reg. 15829
(1987);  id. at 41832.  The EPA also described an approach by which
the LEAs can select the least burdensome option form the range of
response actions that are sufficient to protect human health and
environment.  40 C.F.R. 763.90;  52 Fed. Reg. 15829, 41832 (1987).
Under that approach, if asbestos is in some degree damaged, some
action is generally required.  The overriding concept, however, is to
return the damaged material to an undamaged state or to prevent damage
from occurring, so as to prevent fiber release.

   3. Various asbestos manufacturers challenged the AHERA rules on
several grounds.  They argued, among other things, (1) that the EPA
had failed to identify appropriate response actions that were
sufficient to protect health and the environment and were the least
burdensome and that the EPA had erred in leaving those determinations
to the LEAs with the help of accredited contractors;  (2) that the EPA
had erred in failing to determine what level of exposure to asbestos
was "safe";  (3) that the EPA had failed to provide an objective means
for distinguishing safe from unsafe schools and should have adopted
air monitoring as the objective means for doing so;  and (4) that the
EPA had improperly permitted LEAs to remove asbestos in schools even
though removals increase rather than decrease airborne asbestos
levels.  The court of appeals rejected all of those arguments (Pet.
App. A1-A13).

   First, the court held (Pet. App. A7-A9) that the EPA had acted
properly under the statute in not specifying a single least burdensome
response action in the statutorily specified situations but instead
"offer(ing) a list of specific responses that it adjudged sufficient
to protect human health, along with a method by which school officials
should be able to determine the least burdensome response" (id. at A8)
(emphasis in original).  The court noted that Congress had imposed on
the EPA the burden of reconciling several competing demands --
notably, that the EPA generally describe response actions using the
least burdensome methods, and that, in doing so for the more than
30,000 schools covered by the statute, it take account of local
conditions (id. at A7-A8).  Because the EPA could not visit every
school, the EPA could reasonably settle on a solution that worked a
compromise -- providing for inspections of local conditions by
accredited inspectors, preparation of detailed reports setting forth
options and recommendations, selection of a response action from among
those found sufficient by the EPA, and oversight by state Governors.
That compromise solution, the court concluded (id. at A8), effected a
"reasonable, faithful interpretation of AHERA's somewhat contradictory
commands." /5/

   The court of appeals also found meritless the contention that the
EPA erred in acting before determining what quantitative measure of
asbestos exposure was safe and in not mandating use of air monitoring
to determine when that level is exceeded (Pet. App. A9-A10).  The
court observed (ibid.) that Congress had recognized that experts
currently disagree over what levels of exposure are safe, that the EPA
had not abandoned its duty but had considered evidence on the
question, and that Congress had "stated that EPA's existing guidelines
should serve as minimum standards in devising appropriate response
actions" (id. at A9).  The legislative history, the court noted (ibid.
(citing 132 Cong. Rec. S15064-S15066 (daily ed. Oct. 3, 1986) (joint
explanatory statement);  id. at H8823 (daily ed. Oct. 1, 1986)
(remarks of Rep. Florio)), "affirmatively suggests" that the EPA need
not rely on air monitoring or establish a quantitative measure of
minimum safety.  Rather, Congress contemplated growing precision in
the EPA's regulations as more information becomes available (Pet. App.
A9-A10).  The court added (id. at A10 (emphasis in original)):
"Indeed, the petitioners' insistence that EPA construct a quantitative
model before it do anything else offends common sense as well as
congressional intent, for the potential hazards posed by presently
undamaged (asbestos-containing material) obviously could not be
quantified or measured by air monitoring techniques." Especially in
light of the congressional directive that the EPA err on the side of
caution, the court concluded (ibid.), the EPA's decision not to
require air monitoring or to designate certain exposure levels as safe
was not arbitrary or capricious.

   The court of appeals further ruled (Pet. App. A11-A13) that the EPA
reasonably rejected the manufacturers' contentions that removal of
asbestos should be prohibited or limited.  The court observed (id. at
A11 (emphasis in original)) that the EPA reasonably rejected the
manufacturer's evidence that removal caused increased levels of
asbestos in the air, because that evidence was "based on a small
sample of cases, in at least some of which abatement actions were not
done properly," and the "EPA's regulations covering removal were
intended to prevent this occurrence in the future." The court added
(id. at A11-A12) that "Congress apparently assumed that removal would
always be an option." Finally, the court rejected as "patently
mistaken" the argument that removal should be prohibited simply
because it is "merely innocuous rather than beneficial" (id. at A12).
The court noted that the EPA's regulations were entirely neutral with
respect to removal and were fully in accord with congressional intent,
because the legislative history made clear that the EPA "'should not
discourage a school from going ahead and eliminating (its) long-term
asbestos problem if school officials should decide that is the best
course of action.'" Ibid. (quoting 132 Cong. Rec. S15067 (daily ed.
Oct. 3, 1986) (remarks of Sen. Baucus) and citing id. at S15066
(remarks of Sen. Stafford)).

                               ARGUMENT

   The decision below is correct.  It does not conflict with any
decision of this Court or of any other court of appeals.  Accordingly,
further review by this Court is not warranted.

   Petitioner's primary contention (Pet. 17-21) is that the court of
appeals failed to hold the EPA to the mandate of AHERA and instead
permitted the agency to escape its duty because it had made a "good
faith" effort.  That contention is wholly without merit.  Nowhere in
the court of appeals' opinion do the words "good faith" appear, and
nowhere in the opinion is there any suggestion that a mere good faith
effort to comply with a statutory mandate can validate a regulatory
action that is in fact contrary to statutory commands.  What the court
of appeals concluded was that AHERA contains "somewhat contradictory
commands" and that the EPA's AHERA rules are a"reasonable, faithful
interpretation" of those commands in light of current scientific
knowledge (Pet. App. A8).  Accordingly, the court of appeals did not,
as petitioner suggests, depart from ordinary principles of judicial
review of agency rulemaking.

   Petitioner is also incorrect in its more focused challenges (Pet.
17-18, 20-21, 24-28) to the court of appeals' ruling.  In fact, the
court correctly found the EPA's rules valid.  /6/ As the court of
appeals explained (Pet. App. A8-A9), Congress directed the EPA, within
360 days, to describe appropriate response actions for various
situations presenting actual or potential asbestos problems and to do
so in a way that ensures that account would be taken of the local
conditions at more than 30,000 schools throughout the nation.  The
statute further recognizes that it is the schools, not the EPA, that
are to develop the necessary asbestos management plans.  In those
circumstances, it was entirely appropriate, as the court of appeals
ruled (id. at A9), for the EPA to establish a range of appropriate
response actions together with a sound method by which local
officials, with oversight and accredited expert guidance, would select
the proper actions for particular problems.  /7/

   Similarly, given the persistent scientific disagreements about what
level of exposure to asbestos (if any) is safe and the clear
congressional directive to address potential as well as actual
exposure, the EPA acted reasonably, as the court of appeals concluded
(Pet. App. A8-A10), in choosing to rely on expert visual inspection
rather than air monitoring and in declining to declare that certain
levels of exposure are safe.  In particular, the EPA's action fully
complied with the statutory mandate to "consider and assess" (15
U.S.C. 2643(c)(2)) air monitoring;  and the EPA reasonably concluded,
based on the risk of exposure during peak episodes of fiber release,
that visual inspection is preferable to air monitoring, which could
give school officials a false sense of security.  Certainly,
petitioner's suggestion that the EPA should have done nothing until it
could resolve the scientific uncertainty and construct a quantitative
model "offends common sense as well as congressional intent" (Pet.
App. A10).  /8/

   Petitioner contends (Pet. 21-24) that this Court should grant the
petition because the ruling below is in an "area of great national
importance with far-reaching fiscal and environmental consequences"
(id. at 21).  But the alleged consequences of petitioner's challenge
are not sufficient to render further review of the court of appeals'
decision appropriate, there being no intercircuit conflict and no
substantial legal question presented.  Moreover, although the problem
of asbestos in school buildings is important, petitioner overstates
the impact of its particular challenges.

   Petitioner does not challenge the requirements that schools conduct
inspections and develop operations and management plans for asbestos
that they find.  It is those requirements that produce most of the
costs associated with the AHERA rules.  Similarly, it is at best
speculative to suggest that petitioner's challenge would have a
significant effect on the costs associated with the many lawsuits that
various building owners have brought against asbestos manufacturers
seeking reimbursement for abatement.  And, of course, the rules do not
apply at all to nonschool buildings.  Hence, even if petitioner were
correct in its challenges and the alleged deficiencies in the AHERA
rules were eliminated, allowing the court of appeals' decision to
stand would not have the far-reaching consequences that petitioner
states.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   ROGER J. MARZULLA

      Assistant Attorney General

   MARY ELIZABETH WARD

      Attorney

   OCTOBER 1988

   /1/ Pub. L. No. 99-519, 100 Stat. 2970.  Section 2 of AHERA, 100
Stat. 2970-2988, added Title II to the Toxic Substances Control Act
(TSCA), 15 U.S.C. (Supp. IV) 2641-2654, which is reproduced in the
appendix to the petition for a writ of certiorari (at A14-A51).
Hereafter, we cite AHERA to the United States Code section but omit
express reference to "Supp. IV."

   /2/ Exposure to asbestos presents well-documented and potentially
serious risks to public health, including asbestosis, pleural and
peritoneal mesothelioma, and cancers of the lung and other organs.
The asbestos in place in school buildings could release dangerous
fibers if not dealt with properly, and even ordinary maintenance and
cleaning can cause dangerous concentrations of fiber.  See 47 Fed.
Reg. 23363 (1982);  see also 45 Fed. Reg. 61969 (1980).  Although the
EPA banned use of asbestos in 1973 (40 C.F.R. 61.148;  38 Fed. Reg.
8826 (1973)), a large amount of asbestos used before 1973 remains in
buildings, including schools, throughout the country.

   Citations to the AHERA rules are hereafter to the provisions of 40
C.F.R. at which they are to be codified.  See Pet. App. A53-A103.

   /3/ The statute requires the EPA to define the appropriate response
action in at least four circumstances -- when there is either (a)
damage or (b) significant damage to friable asbestos-containing
material, and when such asbestos is in areas regularly and normally
used by building occupants and either (c) damage or (d) significant
damage is reasonably likely.  15 U.S.C. 2643(c).  Asbestos-containing
material is "friable" if, when dry, it may be "crumbled, pulverized,
or reduced to powder by hand pressure" (15 U.S.C. 2642(6)).

   /4/ AHERA provides that no one may inspect a school, develop a
management plan, or design or conduct response actions without being
properly accredited.  15 U.S.C. 2646(a)(1)-(3).  Accreditation must be
accomplished either by the EPA or by a state that has a plan at least
as stringent as the EPA Model Accreditation Plan (15 U.S.C. 2646(a)),
which requires initial accreditation and annual refresher courses.
The Model Plan is codified at Appendix C to Subpart E of 40 C.F.R. Pt.
763.

   /5/ The court also observed (Pet. App. A7):  "it is highly ironic
that industry representatives assail EPA for supplying inadequate
guidance to school officials when their counsel have assured us that
those officials are now thoroughly satisfied with the regulatory
guidance provided by EPA."

   /6/ Petitioner does not dispute that the regulations must be upheld
unless they are "arbitrary, capricous, an abuse of discretion or
otherwise not in accordance with law" (5 U.S.C. 706(2)(A)).  See 15
U.S.C. 2618(c)(1)(B).

   /7/ Contrary to petitioner's suggestion (Pet. 18), the
congressional declaration that the Purple Book provided inadequate
guidance is no ground for finding the EPA rules invalid.  The EPA
rules furnish more guidance than the Purple Book, including a
step-by-step procedure for LEAs to select the least burdensome
response action.  And the level of detail in the guidance furnished by
the EPA rules is, as noted, reasonable in light of the commands of
AHERA.

   /8/ Contrary to petitioner's contention (Pet. 20), the court of
appeals' decision does not conflict with this Court's decision in
Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607
(1980).  That case did not involve AHERA but 29 U.S.C. 652(8).  The
Court's construction in that case, without a majority opinion, of a
different statute with different language and different legislative
history is of little relevance to the proper construction of AHERA in
this case.

   There is also no merit in petitioner's suggestion (Pet. 20) that
the EPA's authorization for schools to delegate their duties to expert
contractors (40 C.F.R. 763.80(a)) creates a constitutional delegation
problem.  The regulation cited by petitioner itself makes clear that
schools retain ultimate responsibility for asbestos response actions.
In any event, insofar as delegation principles are relevant, AHERA
itself clearly provides sufficient standards to guide agency action.