ELR Citation: ELR 20190
No(s). 83-1907 (9th Cir. Jan 25, 1985)

The court holds that appellants' challenges to the Environmental Protection Agency's (EPA's) alleged violation of nondiscretionary duties to protect them from asbestos wastes on their homesites are moot. Initially, the court rules that the no-visible-emission standard for asbestos set by EPA under §112 of the Clean Air Act is an emission limitation, which may be challenged only in the District of Columbia Court of Appeals. The district court correctly refused to address appellants' challenge to that standard. Next the court holds that appellants' claims that EPA violated nondiscretionary duties under the Clean Air Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act are moot. The court also rejects as moot appellants' claims of a right of review based on savings clauses in the Clean Air Act and RCRA and on the Administrative Procedure Act. EPA's actions to require cleanup of an abandoned asbestos mill near appellants' homes and its program to purchase those homes and relocate appellants provide as much or more relief than they sought in their suit. The court finds that there is little chance that the EPA shortcomings alleged in the suit will be repeated, thus defeating appellants' "capable of repetition yet avoiding review" argument. The court also rules that EPA met its burden of proving mootness under the voluntary cessation doctrine by showing that the allegedly wrongful inaction will not recur and that the harmful effects have been eradicated.

[The district court's opinions appear at 13 ELR 20400, 20406, and 20408.]

Counsel for Appellants
Joe P. Sparks, E. Dennis Silver, Kevin T. Hahn
Sparks & Silver
7503 1st St., Scottsdale AZ 85251
(602) 949-1339

Counsel for Appellee
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

Before MERRILL, KENNEDY, and ANDERSON, Circuit Judges.