03/30/78

State Enforcement of Asbestos Demolition Regulations in Light of Adams Wrecking Company V United States, 11 ERC 1081 (Jan. 10, 1978)

                          MARCH 30, 1978


SUBJECT:  State Enforcement of Asbestos Demolition
          Regulation in Light of Adamo Wrecking
          Company v. United States, 11 ERC 1081


FROM:     Director
          Division of Stationary Source Enforcement


TO:       Abraham Ferdes (3EN11)
          Air Enforcement Branch, Region III


     Your February 24, 1978, memorandum requested clarification of State
authority to enforce work practice standards to control emission from
demolition and renovation projects.  You particularly sought our comment
on an opinion submitted to the Pennsylvania DER by Pennsylvania
Assistant Attorney General Michael Alushin regarding Pennsylvania's
authority to independently enforce hazardous air pollution standards.
     It is our opinion that Mr. Alushin's determination that the
State may independently enforce its hazardous air pollutant standards
is correct.  States which adopted work practice standards under
independent authority of a State law ( as opposed to being delegated
the responsibility to enforce Federal standard as EPA's "agent" without
adoption of standards pursuant to State enabling legislation ) are not
affected by the Supreme Court's Adamo opinion.  Such a State may
continue to enforce its own work practice standards.
     States and citizens also have the authority to enforce the Federal
work practice  standards ( 40 CFR Section 61.22), under Section 304 of
the Clean Air Act, as amended, 42 U.S.C. Section 7604.  (See the
definition of emission standard in Section 304(f) which specifically
includes work practice regulations.)  However, Section 304 actions do
have some drawbacks, particularly with regard to enforcing these
standards against transient operations such as building demolitions.


                                -2-


For example, sixty-day ante litem notices must be filed with the
Administrator, State and source prior to the filing of a civil action.
In addition, only injunctive relief is available in a Section 304
action; penalties may not be collected.  Because of these drawbacks,
citizen suits under this Section of the Act are not an optimal
enforcement mechanism to assure compliance with the work practice
regulations.
     If we can be of any further assistance to you in this matter,
please contact Doug Farnsworth of my staff (FTS 755- 2570).


                                          Edward E. Reich