U.S. Sues Districts on Lax Asbestos Work

By James Crawford — January 29, 1986 5 min read

The complaints were filed Jan. 16 in federal district courts against the school boards of Franklin, N.J., and Ankeny, Iowa, and against their asbestos-removal contractors. If the charges are upheld, each defendant faces civil penalties of up to $25,000 per day of violation.

These enforcement actions were among 11 asbestos cases filed simultaneously against building owners and contractors in various parts of the country. The complaints were developed in a joint effort by the Justice Department and the Environmental Protection Agency.

Although the E.P.A. has previously fined districts that failed to properly inspect school buildings for asbestos, only once before has a school district been prosecuted under the Clean Air Act for unsafe removal procedures.

Prosecutors allege that, during school-renovation projects, the New Jersey and Iowa districts allowed contractors to remove asbestos pipe insulation without wetting it sufficiently to prevent its dispersal. Inhaling the microscopic fibers, even in small quantities, has been linked to cancer and debilitating lung disease.

Patrick Piegari, superintendent of Franklin Borough schools, criticized the federal complaint as unfair. “If the contractor cut comers, he is the one who’s liable-not the school district,” Mr. Piegari said. “We took many precautions.”

The safety measures, required under New Jersey’s stringent asbestos-control law, included having an independent industrial-hygiene consultant “on site from start to finish” to monitor air quality, ensuring that the contractor’s employees were certified by the state, and having the project approved at several stages by state inspectors, Mr. Piegari said.

The superintendent added that the asbestos-removal firm employed- Atlantic Marine & Industrial Services of Metuchen, N.J.-is “an established firm that’s used throughout the state to train asbestos workers.”

Elliott Gilberg, a lawyer in the E.P.A.'S air-enforcement division, said “the general approach” in asbestos violation cases is “to sue both the owner of a facility and the [contractor] doing the demolition or renovation.”

“There’s an inclination to sue a school district unless it has exercised the most care and consideration it could have,” he said.

In pursuing the complaint, federal prosecutors “may settle for a reduced amount,” he said, “depending on how egregious the violations were and how cooperative the school district is.”

Lack of Notice Cited

But trying to cooperate with the E.P.A. has been “extremely frustrating” for the Ankeny Community School District, said Jeffrey Krausman, legal counsel for the Iowa district’s board.

“We worked hand-in-glove with the E.P.A. in drawing up bid specifications and attempting to follow the regulations to the letter, [only to] receive a notice of violation three months after completing the job,” he said.

The Iowa Asbestos Company, which removed asbestos from the Parkview and Nevelin junior high schools, was state-certified and had “an excellent reputation,” Mr. Krausman added.

Now that the asbestos has been disposed of, he said, it is difficult to determine whether the contractor used enough water or not. “How wet is wet?” he asked.

Both district officials complained that E.P.A. inspectors failed to point out the allegedly unsafe procedures or to recommend corrective action while the projects were under way.

In Ankeny, a suburb of Des Moines, an E.P.A. compliance officer cited a violation within 50 yards of the district superintendent’s office, yet chose to mail the citation three months later, Mr. Krausman said.

Mr. Piegari said he had never been formally notified of a violation. After an inspector took an asbestos sample, the superintendent said, “I thought if there was a problem, E.P.A. would have come back the next day and shut down the job. The state would have stopped the job.”

Asked why the agency failed to notify the districts about the alleged violations until after the projects were completed, an E.P.A. spokes- . man, Dave Ryan, said, “We’re under no legal compulsion to do so before [Clean Air Act) charges are filed.”

In both cases, the asbestos was removed from the schools during summer months, when neither students nor school employees were present, the officials said. In New Jersey, after air samples showed the hazard had been contained, a certificate of occupancy was issued allowing the Franklin Elementary School to be reopened, according to Mr. Piegari.

‘Frustrating and Depressing’

“The district had no way of knowing” there was a violation, he argued. “No unauthorized personnel were allowed in the basement [where asbestos was being removed]. I couldn’t even check-it would have been a violation.”

“It’s partly comical, partly frustrating, and partly depressing,” Mr. Piegari said.

A Justice Department spokesman had no comment on the specifics of the two school cases. ''Normally, we don’t comment on complaints after they are filed,” he said.

The E.P.A.'S Mr. Gilberg said he was unfamiliar with details of the complaints, but he emphasized the seriousness of the violation alleged in both districts. “Keeping friable asbestos wet-that’s really the heart of controlling asbestos emissions,” he said.

The E.P.A. lawyer conceded that suing school districts that have worked with the agency in planning asbestos abatement could discourage future cooperative efforts.

'''To some extent, someone who gives us advance notice is more likely to be fined than someone who doesn’t,” he said.

“That’s a dilemma we can’t do much about. We still want to make sure the asbestos is controlled properly.”

The E.P.A. requires advance notice of demolition or renovation projects that disturb significant amounts of asbestos, under regulations issued in 1984. Known as the National Emission Standards for Hazardous Air Pollutants, these rules also govern safe work practices, disposal procedures, and limits on emissions into the air.

Another set of E.P.A. regulations governs the inspection of school buildings for asbestos but requires no abatement action. Underthe1bxic Substances Control Act, the agency may fine violators without first taking them to court.

By contrast, the asbestos-removal I rules are enforced under the Clean Air Act and civil prosecution is the typical means of enforcement, according to Mr. Gilberg.

The Justice Department brought 7 such charges in 1984, 18 in 1985, and 11 in the latest round. ''More cases are expected to follow,” the department said in a statement. The one prior school case involved the Sentinel (Okla.) School District, Mr. Gilberg said.

''The emission of asbestos from renovation and demolition activity is a national environmental problem,” said Assistant Attorney General F. Henry Habicht 2nd in announcing the new enforcement actions.

He said the asbestos “initiative,” is intended to “help inform the public of this problem and prompt greater voluntary compliance with the Clean Air Act.”

''I think this is being done,” said Mr. Piegari, “to alert companies that there will be inspections and fines if procedures aren’t followed. Which is a good alert. But what I don’t like is getting the district involved when we didn’t have any control or awareness of the violation.”

A version of this article appeared in the January 29, 1986 edition of Education Week