Commentary

A Legal Perspective on Asbestos in the Schools

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The problem of what can and should be done about asbestos in school buildings will be with school administrators for some time to come. Protective legislation exists, both nationally and locally. But while legal remedies are being pursued, two crucial questions remain: Who will pay for cleaning up the asbestos, and how can we do this quickly to protect the health of the nation's children?

The medical danger from exposure to asbestos for schoolchildren, teachers, and service personnel is well established. School-age children are particularly vulnerable. The lengthy latency period of asbestos-related diseases, combined with such factors as children's higher rate of metabolism and greater levels of activity, as well as their more rapid production of cells, results in a far greater risk for them than for adults of developing cancer from exposure to asbestos fibers.

According to the most recent Environmental Protection Agency estimates, today 15 million children and 1.4 million school employees in 31,000 schools may be exposed to asbestos fibers. The scope of the problem has been apparent for some time, and various legislative remedies have resulted.

The federal Asbestos School Hazard Detection and Control Act, recognizing that "the presence in school buildings of friable or easily damaged asbestos creates an unwarranted hazard to the health of schoolchildren and school employees who are exposed to such materials," is designed to assist states and local educational agencies in ascertaining the extent of the danger. Because school districts would face substantial costs in inspecting, encapsulating, and removing asbestos, under the Asbestos Hazard Control Program, the U.S. Education Department was to administer a low-interest loan program to finance 50 percent of the cost for asbestos detection and control. But the executive branch has failed to request money for the program in any of the federal budget requests since passage of the act in 1980, and until last month, when lawmakers approved a $50-million supplemental appropriation for the effort, the Congress had also failed to approve funds to support the loan program.

Among other consequences, this failure undercut the presumption of voluntary compliance that the EPA anticipated. The EPA expected that once a school was inspected and the dangers reported to parent-teacher associations, parents would demand corrective action to protect their children and the remedial steps would be taken. That expectation, however, assumed the availability of funds for school districts to pay for the inspection and removal of the hazardous materials.

Without federal funding, however, generally only the affluent school districts can afford to spend the $100,000 that the EPA estimates it would cost to inspect and clean up an average school building. In fact, last January, an internal EPA report found that clean-up action was taken in most cases only in the "wealthy" school districts. Of all of the schools inspected in which asbestos has been found, less than 20 percent had prepared plans to deal with the problem. Lacking the necessary funds, other school districts face a number of options: casting about for new funding sources, using funds appropriated for other expenses, ignoring the problem, or closing the doors of suspect buildings altogether. None of these alternatives has proven effective.

School districts failing or lagging in asbestos removal encourage private lawsuits. It is only a matter of time before individuals attempt to bring private actions against recalcitrant school districts and allege that exposure to asbestos fibers while at school caused or contributed to their illness. Indeed, in New York State, a gap in statutory protection exists that may result in future suits against school districts. The state's School Asbestos Act does not cover people occupying a school building, only students attending public school in that building. Districts can and do lease school buildings for community programs. These buildings may simply be unoccupied because of demographic change. In any event, they may not have been adequately monitored for asbestos problems. If the tenants develop problems later, they may try to bring suit against the school district as landlord.

In general, plaintiffs seeking damages arising from exposure to hazardous materials such as asbestos must begin their lawsuit within a certain time of their exposure. Since illnesses resulting from exposure to asbestos invariably develop over a prolonged period of time, many individuals now would be precluded from suing. The current situation, however, is likely to change. State legislatures are acting to address the obvious inequities associated with the statute-of-limitations obstacle and each state's statute must be considered.

At present, any remedy based upon litigation must consider the statute-of-limitations defense. In addition, the problem of establishing cause is traditionally a considerable problem in hazardous-waste litigation.

School boards that choose to bring suit against asbestos manufacturers also need to be creative in designing their litigation strategy. Courts are likely to be sympathetic to complaints brought by school boards, but boards nonetheless need to find a variety of legal grounds on which to base their suit. For example, in County of Johnson, Tennessee v. United States Gypsum Company, the school district brought a civil action to recover the costs of both cleaning up asbestos in a 17-year-old school building and transporting students to safer facilities. In 1983, the school district sued the asbestos manufacturer for negligence (lack of care in selecting and installing the asbestos products), fraud (misrepresenting the safety of the material), strict product liability (a manufacturer is liable for damage caused by his product, regardless of how carefully he tested it beforehand), breach of warranty (breaking the expressed and implied promise that a product is safe for its intended purpose), and nuisance. When the company asked the federal district court to dismiss the suit, the court did dismiss the claims based upon breach of warranty and nuisance. But it sustained the negligence, strict-product-liability, and fraud claims, thus allowing the suit to proceed. If the school district had based its suit on only one of the claims, the suit might well have ended before it was decided on its merits.

School districts considering legal action have to be very careful, too, that their own house is in order. If districts have not followed federal regulations on inspecting, sampling, analyzing, and removing or enclosing suspected asbestos materials, the asbestos company could use the district's negligence as part of the defense. The district's case would suffer as a result.

Another type of lawsuit to recover costs of asbestos detection and clean-up is the federal class action. One such suit has been filed in the U.S. District Court for the Eastern District of Pennsylvania on behalf of all elementary and secondary educational facilities against known asbestos manufacturers. This avenue is extremely time-consuming and probably will not result in a comprehensive solution to the problem of how beleaguered school districts will afford the necessary corrective actions.

Litigation, with its costs, uncertainty, and lengthy pre-trial preparation, thus may not provide the full-scale remedy to a national problem that requires immediate attention and a large infusion of funds. The creation of a "Superfund," modeled on the fund the Congress created in 1980 to compensate victims of exposure to hazardous wastes and comprised principally of revenues from taxes on major asbestos manufacturers in the country, may be one such global solution. For example, in 1981, the Congress debated but did not enact a bill that would have established a fund to compensate current, but not future, asbestos victims. The fund was to be composed of contributions from asbestos manufacturers as well as federal appropriations. That kind of legislation, however, while it would certainly aid existing asbestos victims, would not address the potential generations of victims to come, namely the children now in or entering the public-school system.

What is needed are immediate and substantial appropriations from the federal government. The Congress's $50-million appropriation notwithstanding, much larger sums are needed. The latest EPA estimate on the cost of removing asbestos-laden materials from the nation's schools is a range of from $l.5 billion to $3 billion. That suggests that whatever funds are available should be disbursed sooner than the current legislation's timetable contemplates. The increased pace of compliance that the EPA is now seeking from school districts, with fines levied against districts of every size, should serve as an eloquent reminder to the other branches of the federal government of the need for such relief, if the complaints of harassed school administrators and angry parents of schoolchildren do not. Applying pressure on the schools makes good sense only if there is money available from some source or sources to pay for the necessary detection and cleanup.

Vol. 04, Issue 02, Page 28

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