EPA Says It Will Not Meet Union's Request For Asbestos Rules
After more than a year of debate, the Environmental Protection Agency has informed the Service Employees International Union that it will not meet the union's request for regulations establishing when asbestos in schools is hazardous and when corrective action is required.
In a Nov. 30 letter to John J. Sweeney, the seiu president, John A. Moore, the epa's assistant administrator for pesticides and toxic substances, stated: "There is strong evidence that the current epa program for handling potential asbestos hazards in schools is working."
Mr. Moore added that "the development of all the regulations requested by seiu would direct epa resources away from activities that are having a direct and real impact and thus delay progress in dealing with asbestos hazards."
"After months and months of promises and delays, we now learn about the post-election reality at the epa," Mr. Sweeney responded in a written statement. "That reality is that the Reagan Administration does not consider the protection of school children, parents, teachers and school workers a federal responsibility--even though the problem of asbestos contamination is widespread and beyond the capabilities of most school systems."
Call for Standards
In a petition to the agency filed in November 1983, the union asked the epa to establish standards for asbestos-abatement activities, including protections for workers involved in clean-ups; standards for determining when asbestos in schools is hazardous; requirements for corrective action in schools in which hazardous asbestos is present; and requirements for inspection and abatement of asbestos in other public and commercial buildings.
At issue is whether asbestos inspection and abatement should be mandatory and covered by federal regulations, or voluntary and covered by agency guidelines, as is now the case.
Education officials, under increasing pressure to participate in the costly removal of asbestos from their schools, have complained that the identification and clean-up process is fraught with confusion and uncertainty. In a series of public hearings the epa sponsored this year, the agency heard repeated requests that it provide more direction and expertise. (For a special report on the school-asbestos problem, see Education Week, Sept. 25 and Oct. 3, 1984.)
Schools are currently required to inspect for dangerous asbestos-containing materials but not to remove or isolate them. The union says the current program is not working, while the agency maintains that it is.
In September, the union, which represents some 100,000 school-maintenance workers, filed suit against the epa in the U.S. District Court for the District of Columbia in an attempt to force the agency to act on its petition within 30 days and issue stronger asbestos regulations.
Last month, District Judge John Garrett Penn denied the union's request that the court force the agency to act within a 30-day time period. According to Scott H. Strauss, a lawyer for the union, the judge determined that it was not a case of "virtual agency inaction" and refused to inject himself into the rulemaking process.
That case is still expected to go to trial in 1985. According to the union, the success or failure of the epa program will be the "centerpoint" of that lawsuit.
In his letter to the union, Mr. Moore reiterated the agency's position that abatement decisions are best made at the local level "with epa guidance and assistance." According to Mr. Moore, an agency survey of 1,800 public-school districts and 800 private schools found that as of January 1984, 90 percent of schools had completed, started, or planned to start abatement projects.
"In short," he wrote, "schools were and are actively engaged in abatement activities without the driving force of a mandatory federal requirement."
Mr. Sweeney noted that epa's survey of school's asbestos-cleanup activities did not assess the quality of schools' abatement work. He charged that "the record before epa indicates that abatement activities have been misguided in the absence of adequate standards." Only 26 percent of the schools surveyed have "really addressed the problem," according to the union leader.
Mr. Moore agreed that there is merit in the union's request that the agency establish requirements to protect abatement workers. The letter stated that the epa intends either to propose a rule in June 1985 to establish such requirements for public employees who are not covered by the Occupational Safety and Health Administration's regulations or to "explain the reasons that have made rulemaking inappropriate."
The letter also stated that if a "more expedited proceeding" was needed, the agency might consider making the rule immediately effective if, and when, it is issued.
According to William K. Borwegen, coordinator of the union's occupational safety and health program, however, the epa's plans to address worker protection are merely an attempt to stall on the problem again.
The letter also said the epa is investigating "whether it is feasible" to issue a rule requiring people involved in asbestos abatement to follow certain procedures and work practices to limit the exposure of building occupants to asbestos.
If the agency determined that such a rule were feasible, rulemaking activities would proceed on the same schedule as the worker-protection rule, according to the letter.
The letter also said the agency plans to augment its technical assistance to schools and school districts in a number of ways. These include:
Providing guidance for service and maintenance personnel who may have to deal with asbestos in buildings.
Initiating a public-information campaign to alert maintenance workers about appropriate work practices to limit their exposure to asbestos during normal maintenance in buildings.
Establishing three information centers on a pilot basis in fiscal 1985 to provide information about the identification and abatement of asbestos hazards and to educate and train people in asbestos-identification and abatement techniques.
Establishing, also in fiscal 1985, a state certification program for abatement contractors that will include model state legislation as well as pilot contractor-certification programs in several states.
Agency Pledged Guidance
Mr. Moore also stated in the letter to the union that under the Asbestos School Hazard Abatement Act, passed by Congress this year, the agency will issue a policy statement containing "comprehensive guidance'' to be used when evaluating asbestos hazards. The agency, the letter said, will also review all abatement plans by school districts before awarding funds under the act. The act is designed to provide limited grants to schools involved in asbestos-abatement activities.
In the past, however, the union has expressed concern that any regulations or guidance developed under this act would not be binding on all schools, but would apply only to those that seek money under the act.
Mr. Moore asserted in the letter that the agency would continue its compliance-monitoring inspections and assessments of "monetary penalties against schools when parents are not notified about friable asbestos in the schools."
Mr. Moore also announced in the letter the creation of an "Asbestos Action Program" within the agency to coordinate all asbestos-related activities. The program staff will report directly to Mr. Moore. Susan Vogt, who previously was special assistant to Alvin L. Alm, deputy administrator of the agency, has been named to head the new program.
Changes in Leadership
Meanwhile, it remains unclear whether the agency's school-asbestos program will be affected in any way by the recent unexpected changes in epa leadership. William D. Ruckelshaus this month announced that he will step down from his position as director of the epa in January; he said his resignation was not prompted by policy disagreements with the White House. Mr. Alm has announced that he also will resign at that time.
President Reagan has nominated Lee M. Thomas, epa's assistant administrator in charge of hazardous waste, for the top position. Mr. Thomas, who was Mr. Ruckelshaus's choice to succeed him, said he plans to continue Mr. Ruckelshaus's policies and agenda.
No replacement has yet been chosen for Mr. Alm, according to Ms. Vogt and David Ryan, a spokesman for the agency.