Debate Is Intensifying Over Cleanup of Asbestos in Schools
Fueled by intensified federal enforcement activities, litigation, and public concern, controversy has mounted in the past few months regarding the scope and cost of cleaning up the nationwide asbestos problem in schools.
Since last spring, the Environmental Protection Agency has been cracking down on school districts that have failed to comply with its 1982 rule requiring them to inspect for the presence of crumbling or friable asbestos and to inform the public and school employees of potential hazards when asbestos is found. Asbestos has been proven to cause cancer and other serious illnesses when swallowed or inhaled as fibers.
Since March, when the agency imposed its first $24,000 fine on a school system in the Goffstown, N.H., area for failure to publicize the results of its asbestos inspection (see Education Week, March 21, 1984), it has fined 27 school districts for noncompliance, according to Michael Wood, acting head of the the compliance-monitoring staff. The latest fine, for $237,000, was levied Aug. 2 on the New York City school system.
Although many of the fines were issued before last month, the epa issued a directive to its regional offices on July 2 that may step up the pressure on school districts.
The directive empowered the regional bureaus, except in the case of minor violations, to deal with all cases of noncompliance by immediately issuing an "administrative civil complaint," accompanied by a fine. The offices, the directive said, were not required to send a prior notice of noncompliance before levying a fine.
According to Jo Ann Semones, the regional asbestos coordinator for Region IX in San Francisco, the new directive will "free our hands legally" to crack down on school districts that are not attempting to comply with the rule.
Meanwhile, new national surveys suggest that the school asbestos problem may be worse than previously anticipated.
An unpublished survey by the epa has found that 31,000 schools nationwide contain asbestos. As many as 15 million children and 1.4 million school employees may be exposed to the substance, according to the environmental agency.
These estimates more than double those in an October 1983 report from the U.S. Education Department, which stated that some 14,000 public and private schools contained potentially dangerous asbestos.
Alvin L. Alm, epa's deputy administrator, said the new figures are cause for concern but not alarm because schools are taking measures to remedy the problem.
Two-thirds of the schools containing asbestos, according to the official, have taken action to contain or remove the material and another 27 percent are planning to do so.
Mr. Alm also said that agency resources devoted to dealing with the asbestos problem have tripled since William Ruckelshaus took over as administrator last year.
'Just Plain Wrong'
But Bruce Hunter, legislative specialist for the American Association of School Administrators, which has also recently surveyed school compliance, said Mr. Alm is "just plain wrong" in his estimate of the seriousness of the problem.
"People at home want the stuff out of their schools," Mr. Hunter said.
The aasa's survey of 1,074 school districts found that out of approximately 3,500 school buildings, 29 percent contained asbestos; 16 percent of the school districts that had buildings with asbestos in them had taken no corrective action, according to Julia Eldridge, who conducted the survey.
Schools were given until June 23 of last year to come into compliance with the 1982 rule, which requires inspection for asbestos and notification of its presence--not removal.
But the epa estimated that as of July 27, 62 percent of all local education agencies still had not complied with the regulations, based on inspections of 1,549 school systems and 4,839 schools across the country.
The aasa estimates that 45 percent of local school districts have failed to conduct any inspections.
Thus far, only one of the fines imposed by the epa, on the Albany County School District One in Wyoming, has been settled, said the agency's Mr. Wood. The $30,000 fine was dropped, he explained, after the district showed that it had invested $269,000 in asbestos abatement.
Abatement requires either the removal or encapsulation of easily crumbled or powdered asbestos to prevent individuals from inhaling it.
All of the other districts that have thus far been fined are now contesting the action, according to Mr. Wood.
"We will try and reach a settlement," Mr. Wood said. "These are civil-administrative complaints and there's an opportunity for a negotiation prior to any type of hearing to try and settle the case."
Mr. Wood said the epa had decided to issue the new directive because the asbestos rule had been in effect since 1982 without achieving substantial compliance. He denied that it was epa's intention to use a school district as an example for others, as several school officials have alleged.
"In any compliance program," he said, "fines are an effective means to ensure compliance. Unless the regulated community knows that the epa or any government agency is serious about enforcing a rule, you don't get full compliance. ... This is a normal enforcement activity."
But the confusion surrounding the asbestos rule has prevented many school districts from complying with the regulation, according to Mr. Hunter, who termed some of the current fines "unfair."
"The whole rule-making process has been so messed up," he said, "that we think it's a little unfair for epa officials to be acting the way they are. They issued three different sets of rules. They never put any money into it.
"It's not that school people aren't concerned," he continued. "It's just that there have never been any standards. Nobody knows what percentage of asbestos is even unsafe. They need to make the rules clear. They need to have them broadly distributed. Then it's fairer if they act, ... but they're acting without even putting a dime in for inspection, encapsulation, or removal."
Changes in Rule
The epa, under pressure from education groups and the Service Employees International Union, which represents 100,000 maintenance workers in the public schools, is considering changes in the asbestos rule. They could include requiring schools to remove asbestos from their premises and providing for re-inspection of schools that have been found in violation of the 1982 rule, according to Richard Gross, chief of the existing-chemical-control branch within the epa.
The seiu, however, feels that the agency is not moving fast enough to issue the "long overdue abatement rules." In a letter to epa-Administrator William D. Ruckelshaus last week, John J. Sweeney, international president of the union, requested that the epa provide the union and the public with a timetable for issuance of the rules, which, Mr. Sweeney wrote, the agency had committed itself to more than five years ago.
The agency has conducted four public meetings across the country to determine whether new regulations are needed, Mr. Gross stated.
The agency has adopted "an extremely strong enforcement policy on the asbestos rule," stated Susan Vogt, special assistant to Mr. Alm. Ms. Vogt said that the epa had taken "very aggressive action and we're going to continue to do that."
The fines imposed to date have been effective in getting school districts to comply with the rule, Mr. Wood said. He added, however, that noncompliance remains high across the country. Violations range from school districts that fail to do any inspecting or sampling for asbestos to those that fail to post a proper notice once asbestos is found.
The high cost of encapsulating or removing asbestos from a school building is one of the major problems for school districts, according to Mr. Hunter.
The aasa survey found that the average school district spent $42,426 to remove asbestos from one building and $9,139 to encapsulate asbestos within the building. On average, districts spent $120,909 on removal and $21,072 on encapsulation. At present, no federal funds are available to assist schools in removing or encapsulating asbestos-containing materials.
Earlier this year, the Education Department estimated that school officials would have to spend an average of $100,000 to remove asbestos from one building. The department said it would cost approximately $1.4 billion to remove asbestos from all public and private schools nationwide.
According to the department's report, removal of asbestos-containing material is "the only final and satisfying solution to the problem."
No school district in the aasa's survey received federal financial assistance to help with asbestos removal or containment, and only 6.26 percent received state aid.
Only four states--Alabama, Alaska, Delaware, and Florida--provided 40 percent or more of the responding school districts with any funds to help in asbestos inspections and control.
A far smaller number of responding school districts in six additional states--California, Connecticut, Indiana, Kansas, Maryland, and New York--reported that they had received some state assistance, according to Ms. Eldridge.
New Federal Dollars
A supplemental appropriations bill awaiting the President's signature would provide $50 million next year for an asbestos-control program to be operated by the epa The program would provide school districts with grants and low\interest loans to assist with asbestos abatement as part of the Asbestos School Hazards Abatement Act of 1984.
If the funds are approved, Mr. Gross suggested, the epa will have to develop criteria for asbestos removal.
A 1979 law had authorized the Education Department to provide money for asbestos detection and its removal or encapsulation, but department officials had never requested any funds and the Congress had not appropriated any. Responsibility for the abatement program was transferred to the epa under H.R. 1310, the mathematics and science improvement bill which was signed into law by President Reagan this month.
The abatement appropriation, however, will not begin to equal the amount that school districts are spending on asbestos removal, according to Mr. Hunter.
"It's a lot of money for a school district to have to spend on their physical plants all of a sudden," added Ms. Eldridge. She noted that 80 percent of the school districts responding to the aasa survey had failed to budget money ahead of time to deal with asbestos problems and that the majority relied on local funds.
Lawsuits against manufacturers, architects, and contractors who pro-duced and used asbestos building materials offer a potential source of financial relief for school districts that have incurred substantial asbestos-containment costs, some educators say.
In a case now pending in the U.S. District Court for the Eastern District of Pennsylvania, In Re: Asbestos School Litigation, Judge James McGirr Kelly is trying to decide on the number of manufacturers and school districts that will fall under his decision.
Class Action Possible
The case was initiated in 1983 when several school districts in Pennsylvania and South Carolina decided to sue asbestos manufacturers for the cost of cleaning up asbestos in their buildings. That initial plaintiff group could be expanded if the judge rules in favor of a "mandatory class action."
Under such a suit, any elementary and secondary school district in the country interested in bringing a lawsuit against a manufacturer would have to do so as part of the Pennsylvania case. Similarly, the defendant group potentially could include all of the major asbestos manufacturers, depending upon the judge's decision.
Several large manufacturers--including United States Gypsum, W.R. Grace, and the National Gypsum Company--as well as a number of small school districts that could not afford such suits on their own, support some form of class action. The National School Boards Association, and some larger school districts, like the Los Angeles Unified School District, object to a class that would not provide school districts with the option of pursuing separate lawsuits on their own.
The judge is expected to decide on the size of the class sometime after Labor Day, according to one of the lawyers in the case.
Several big-city school districts are currently investing substantial funds to control their asbestos problems. The Los Angeles Unified School District spent $565,000 during the 1982-83 school year to inspect for asbestos and has spent $4 million on asbestos containment and removal since 1981-82, according to Jack Waldron, district safety programs supervisor.
The Philadelphia school district, which was fined by the epa last March for violating notice requirements under the 1982 rule (the citation has since been dropped), now plans to spend an estimated $17.7 million on asbestos cleanup in 44 schools.
In those buildings, asbestos has been used as acoustical or insulating material, according to Frederick B. Wookey Jr., deputy superintendent for administrative services. The district also intends to do work in approximately 200 schools where asbestos has been used as pipe or boiler insulation, he said.
The District of Columbia school district, which was fined $24,000 by the epa last April for failing to maintain the necessary records regarding inspections for asbestos, has already spent $208,000 on asbestos cleanup, according to Janis Cromer, a district spokesman .
Since April, the district has found asbestos in 162 of 189 school and administration buildings, including 27 areas to which students have regular access.
George S. Bispham, executive director of the American Federation of State, County, and Municipal Employees, Council 20, which represents about 3,000 workers in the D.C. schools, has advised union members not to enter any areas of the public-school buildings that contain asbestos until the problem is cleaned up.
District officials estimate that it will cost at least $3 million this coming year to contain, but not eliminate, the problem. That cost is more than 40 percent of the money allocated for maintenance in the school district's budget for 1984-85.
It could cost up to $50 million to remove asbestos from all of the buildings, Superintendent of Schools Floretta D. McKenzie has estimated.
"The epa citing has caused some problems for us, because it appears that we were singled out without making the point that this is a problem that all school systems face," said Ms. Cromer. "There is a lingering impression that D.C. is the only school system facing the situation. ... I believe that we're being highlighted to show the extent of the problem."
The asbestos problem may also extend far beyond the schools. Another unpublished national survey conducted by the epa found that as many as 700,000 buildings, including federal and commercial buildings and apartment houses, may contain asbestos that has the potential for crumbling, agency officials confirmed last week.
"In many cases, this particular type of asbestos is safe as long as it's not disturbed," said Ms. Vogt. "It doesn't pose a risk. The main thing that we want to get across to people in schools as well as in other buildings is that you'd better know it's there."
"In many cases, the best solution is to isolate the asbestos from locations where people normally go," she said. "The minor number of buildings in which asbestos causes significant problems are those in which the asbestos is airborne."