## Facts

- Asbestec Construction Services, Inc. was an asbestos-abatement contractor performing asbestos removal at a Purolator Courier Corp. facility in Rahway, New Jersey.
- EPA regulations under Clean Air Act § 112 required friable asbestos to be adequately wetted and kept wet until collected for disposal in properly sealed bags.
- After a Purolator agent ordered Asbestec’s employees off the job over wetting concerns, EPA investigated and reported asbestos debris on the floor and asbestos in bags that appeared unsealed or dry.
- EPA issued pre-enforcement compliance orders to Purolator and Asbestec finding violations of 42 U.S.C. § 7412, requiring identification of past asbestos-related renovations or demolitions since April 5, 1984, and directing future compliance with asbestos standards.
- The orders warned that failure to comply could lead to future court action and offered an informal conference; Asbestec requested and received a conference.
- Asbestec nonetheless petitioned the Second Circuit for direct review, asserting the order was unlawful and issued without a prior hearing.

## Issues

1. Whether the EPA compliance order was a “final action” reviewable in the court of appeals under Clean Air Act § 307(b)(1).
2. Whether issuance of the compliance order without a prior evidentiary hearing violated due process.

## Decision

- The court dismissed the petition for lack of jurisdiction because the compliance order was not a reviewable “final action.”
- The court held the order did not impose immediate legal consequences or alter Asbestec’s legal duties; it directed compliance with existing law and only threatened possible future enforcement.
- The court rejected the due process claim, concluding no pre-order evidentiary hearing was required because the order imposed no present sanctions and did not deprive Asbestec of a recognized property or liberty interest.
- The court emphasized that Asbestec could obtain judicial review if EPA later brought an enforcement action in district court.

## Legal Principles

- Appellate jurisdiction under Clean Air Act § 307(b)(1) extends only to EPA “final actions.”
- An agency action is generally nonfinal where it is an intermediate enforcement step that neither fixes legal rights or obligations nor produces immediate legal consequences.
- Pre-enforcement compliance orders that merely restate existing statutory and regulatory duties and warn of possible future enforcement are not immediately reviewable in the courts of appeals.
- Due process does not require a pre-enforcement evidentiary hearing when an agency order imposes no immediate санкtions and later enforcement proceedings provide an opportunity to contest alleged violations; reputational harm alone is insufficient absent a tangible change in legal status.

## Conclusion

The Second Circuit treated the EPA asbestos compliance order as a nonfinal, pre-enforcement measure that could not be directly reviewed in the court of appeals and held that issuing such an order without a prior evidentiary hearing did not violate due process because it imposed no immediate legal penalties and could be challenged if enforcement litigation later occurred.


Asbestec Constr. Servs., Inc. v. U.S. Env’t Prot. Agency, 849 F.2d 765 (2d Cir. 1988)