Preamble to Asbestos NESHAP Offers Guidance

Specifically, the preamble to the 1990 revisions of the Asbestos NESHAP provided two examples of demolition or renovation projects involving multiple buildings that the Agency intended to be treated as a single facility.

Notably, the courts view a regulatory preamble as an authoritative Agency interpretation of the regulation: "‘[w]hile language in the preamble of a regulation is not controlling over the language of the regulation itself * * * the preamble to a regulation is evidence of an agency’s contemporaneous understanding of its proposed rules,’ and therefore provides guidance in evaluating whether the agency’s interpretation of its regulation is consistent with the structure and language of the rule."

Therefore, we look to the examples set forth in the 1990 Preamble as providing instruction regarding what may appropriately be considered within the scope of the term "facility" and as providing fair notice to Friedman & Schmitt of EPA’s interpretation.