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Firms Win Asbestos-Removal Lawsuit; Detroit Schools Face $475,300 in Fines

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A federal jury in South Carolina has ruled that two former asbestos manufacturers cannot be held liable for the cost of removing the potentially hazardous material from public schools in Spartanburg, S.C.

The Aug. 16 verdict was the second of its kind absolving the National Gypsum and U.S. Gypsum Companies of financial liability for the cost of ridding schools of friable, or easily crumbling, asbestos, which can cause lung cancer and other respiratory diseases if inhaled. Last March, a federal jury in Tennessee found that the two companies were not responsible for the cost of removing asbestos-containing building materials from schools in Anderson County, Tenn.

In a related development, the U.S. Environmental Protection Agency this month proposed levying fines totaling $475,300 against the Detroit Public Schools and the Archdiocese of Detroit for allegedly fail-ing to comply with federal asbestos-inspection regulations.

The proposed $445,300 fine against the public-school district would be the largest assessed by the agency since its announcement in March 1984 of a "get-tough" policy to deal with violators of the rules. (See Education Week, March 21, 1984.) Spokesmen for the public- and Catholic-school agencies in Detroit said they would appeal the epa's findings to one of the agency's administrative law judges.

The South Carolina lawsuit is one of dozens that have been filed in recent years as school districts around the nation have attempted to force asbestos manufacturers to pay for the removal of ceiling tiles and other building materials containing the mineral. The districts' claim that the companies are responsible for removal costs because they knew the materials posed potential health hazards but marketed them nevertheless.

Harold Patterson, superintendent of the Spartanburg County school district, said last week that he expects the county school board to vote to appeal the federal jury's ruling to the U.S. Court of Appeals for the Fourth Circuit.

"We're very disappointed with the verdict," said Mr. Patterson, whose district spent more than $250,000 for the removal and encapsulation of asbestos in five buildings between 1982 and 1983. The school district's lawsuit sought total reimbursement for the removal costs.

Mr. Patterson said that although district personnel have not spoken with the jury members, local newspapers reported that they based their ruling at least in part on the belief that the suspect building materials should never have been removed because they did not pose a substantial health threat.

"If the asbestos companies think that one or two victories like this will turn things around in their favor, they're sadly mistaken," said Edward J. Westbrook, a lawyer representing the Spartanburg schools. "Let me remind you that the companies won the first few personal-injury cases [regarding workers' asbestos-related health problems]. But the plaintiffs kept coming and coming and began to convince juries that the manufacturers should have known about the health problems and that they should be held responsible."

Mr. Westbrook said one of the bases of the district's appeal will be that the judge incorrectly instructed the jury that they could not find the manufacturers liable for breach of warranty unless they knew or should have known of the hazards associated with asbestos. He added that the district also will contend that the judge improperly disallowed evidence indicating that the manufacturers had knowledge of the mineral's hazards.

Richard Brown, a Philadelphia lawyer who represented the two asbestos firms in the lawsuit, was unavailable for comment on the verdict.

According to the epa, fines were proposed for Detroit public and Catholic schools on Aug. 16 because they failed to conduct proper inspections for asbestos, to maintain adequate records, and to notify employees and parents if such inspections revealed the presence of friable asbestos.

Federal regulations adopted in 1982 under the Toxic Substances Control Act required school officials to conduct such activities by June 1983, but internal epa reports have indicated widespread noncompliance with the law.

John Codwell, the Detroit Public Schools' assistant superintendent for the office of school housing, said that "many of the epa's allegations were untrue." He added that the district would appeal the federal agency's ruling by Sept. 4.

"We think that the fine was a little excessive," Mr. Codwell said in an interview last week. "About $380,000 of the fine was related to recordkeeping. They conducted inspections of 16 schools, found some violations, then multiplied the number of violations by our total number of schools to come up with that figure.

"Maybe we didn't keep school logs as religiously as we could have," he continued. "But we're in the business of correcting asbestos problems, not recordkeeping."

According to Mr. Codwell, the district employs nine tradesmen full-time to work solely on asbestos-related problems. "I'd say that over the past three to four years we've spent more than $500,000 on asbestos abatement, not including the cost of inspections," he said.

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