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Manufacturers May Be Liable For Cost of Asbestos Removal

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School systems faced with the prospect of spending thousands of dollars to remove asbestos from school buildings may be able to recover the costs by taking asbestos manufacturers and processors to court, according to a new document sent to the Congress by Attorney General William French Smith.

The Attorney General's Asbestos Liability Report to the Congress, released with no publicity by the Department of Justice on Sept. 21, recommends that: "School authorities faced with substantial expenditures in removing or containing friable asbestos should, as a matter of utmost urgency, consult with qualified counsel to determine whether they should file litigation on their own, as at least three school districts have done."

Statutes of Limitations

The report recommends "utmost urgency," it says, because in some states, statutes of limitations could prevent districts from collecting damages.

The report was mandated by the Asbestos School Hazard Detection and Control Act of 1980. The act, which was passed but never funded by Congress, would have provided grants for districts to test for the presence of asbestos and loans to assist them in contain6ing or removing it. It also directed the Attorney General to investigate whether the U.S. government could or should recover these costs from "any person determined by the Attorney General to be liable for such costs."

The report, however, asserts that the federal government should not sue; it suggests instead that "remedies can be more efficiently sought by local and state authorities, because the outcome of litigation will depend on distinct state laws and varying factual situations."

Although the report is advisory in nature, Congressional staff members suggest that it could nevertheless have considerable impact if school systems elect to follow its advice.

Since asbestos removal is an extremely expensive process--one New Jersey district spent more than $1 million to replace asbestos ceiling tiles in only three schools--it seems unlikely that manufacturers will greet the report with enthusiasm. A spokesman for the Asbestos Information Service, which represents the asbestos industry, said that his organization had been following the report closely but had not been notified of its release.

The potentially controversial nature of the report, the Congressional staff members suggest, may account for the absence of publicity as well as the speed with which the Justice Department exhausted its supply of copies available to public and press.

Widely Used Prior to WW II

Asbestos, banned for use as indoor spray-coating since 1973, and for nearly all construction purposes since 1978, was widely used as an insulator during the post-World War II school-construction boom.

For school officials, the presence of "friable,"--flaking or easily crumbled--asbestos presents a dilemma. Removal can cost thousands, sometimes millions of dollars. Failure to remove the material, however, has led to lawsuits filed by concerned parents. For example:

More than one-half of the Housn Independent School District's 231 schools contain asbestos. Officials estimate that it would cost $30 million to remove.

A group of Philadelphia parents have filed a class-action suit against the city's school district, charging that their children, who attend Cramp Elementary School, are endangered by exposure to asbestos in the ceiling panels. The parents are seeking a $10-million interest-bearing account to pay future claims, as well as $10 million in punitive damages.

In Irmo, S.C., classes were delayed, then moved to a nearby church while workers replaced ceiling tiles in Irmo High School--at a cost of between $200,000 and $400,000.

Precise figures on the number of schools containing asbestos are not available, but, according to the Attorney General's report, the number is substantial.

Not all materials that contain asbestos pose a health threat--potential danger depends on the ease with which asbestos particles can become airborne, and thus be inhaled. But numerous medical studies provide evidence that exposure to asbestos increases the risk of cancer of the lining of the lungs, an otherwise rare disease.

A Greater Risk for Children

And, the report notes, "It is believed that children face a greater risk of developing cancer than do adults exposed to asbestos."

Children are more likely to surve the latency period--the time that must elapse before evidence of the disease appears--and their more rapid metabolism increases the substance's effects. Also, an increasing number of young people smoke cigarettes. The cancer-causing effect of asbestos particles when linked with tobacco smoke is believed to be much greater than the effect of either substance alone.

School districts may be able to recover costs from the asbestos manufacturer or processor--deemed "the parties most likely liable" by the report's authors--if they can establish that the manufacturer failed to inform them of the presence of asbestos in construction materials, failed to warn them of the potential hazards, and failed to test to determine if friable asbestos could be hazardous, according to the report.

Several districts had already filed suit against asbestos companies before the report's release. The Cinnaminson Township Board of Education in Burlington County, N.J., has filed suit against National Gypsum Co. It has cost the district more than $1 million to identify, analyze, remove, and replace asbestos-containing ceilings in three schools. District officials are seeking recovery on the grounds of "breach of express and/or implied warranties of fitness and merchantability, and negligence, including negligent manufacture, failure to warn, and failure to test."

National Gypsum, in response, disputes the school-board's claims because "under normal circumstances," asbestos fibers pose noalth hazard. The case has been tentatively set for trial in November.

In Texas, the Dayton Independent School District filed suit against United States Gypsum Co. in April. School officials allege that they were advised neither that a product used to coat ceilings of Stephen F. Austin Elementary School in 1960 even contained asbestos fibers, nor that the fibers were potentially hazardous.

The Dayton officials' suit raises another issue as well. They claim that United States Gypsum was guilty of fraud--"a conspiracy of silence"--in failing to warn users of the product about potential hazards, and in failing to recall the product once hazards had been documented.

This case is still in the early stages of litigation.

District officials seek $500,000 inmpensatory damages, $1 million in punitive damages, and "treble damages" under the Deceptive Trade Practices-Consumer Protection Act.

Time, the Justice Department's report suggests, will be an important factor for districts that do consider filing suit to recover asbestos-related costs. Because asbestos has been used very little in school construction since 1973, state statutes of limitations may prevent districts from bringing suit.

Statutes of limitations vary widely from state to state, the authors note. However, under some circumstances, the report says, "a school district could persuasively contend that tort limitations should not commence to run until the district learned, or should have learned, of the danger posed by friable asbestos products."

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