A union representing some 100,000 school-maintenance workers has returned to court in an attempt to force the Environmental Protection Agency to strengthen its regulations regarding asbestos in schools.
The Service Employees International Union last week filed an amended complaint against the epa in the U.S. District Court for the District of Columbia. And in a press statement, John J. Sweeney, president of the union, said agency papers uncovered by the union show that the epa has been “covering up” asbestos dangers and hiding the fact that its asbestos-in-schools program is not working.
Union’s Request
The union first filed the lawsuit, seiu v. Ruckelshaus, in September--11 months after it filed a petition with the epa that asked the agency to strengthen its asbestos regulations.
Complaining that the agency was dragging its feet in responding to the 1983 petition, the union’s lawsuit initially asked the court to force the agency to issue asbestos rules within 30 days. Those rules would have determined when asbestos in schools is hazardous, required schools to take corrective action, and set up standards to protect workers involved in clean-up procedures.
At present, the epa requires that schools inspect for crumbling or easily powdered asbestos and report the results of that inspection to parents, teachers, and school employees. But schools are not required to clean up the substance or to protect workers engaged in abatement activities.
Sought Expanded Coverage
The lawsuit also asked the agency to extend its asbestos requirements to public and commercial buildings other than schools.
In November, the court announced that it would not force the agency to act within 30 days. It held that the agency was making some progress in its rulemaking procedures and court intervention was not justified.
epa officials, in a letter to the union later that month, said they would not change their asbestos regulations but agreed to consider a rule to protect workers. (See Education Week, Dec. 12, 1984.)
According to the seiu, the agency’s refusal to write new regulations amounts to a denial of the union’s 1983 petition. Under the Toxic Substances Control Act of 1976, a group that has its petition for rulemaking denied has the right to fresh legal proceedings to show that a health risk exists that requires the requested rules.
In the November letter to the union, John A. Moore, assistant administrator for the epa’s office of pesticides and toxic substances, wrote that there was no need for new regulations because "[t]here is strong evidence that the current epa program for handling potential asbestos hazards in schools is working.”
However, the union claims that internal epa memoranda, obtained during the court proceedings and cited in the amended lawsuit, show that Mr. Moore believed that the asbestos-in-schools program was not working at the time he made that statement.
In those memos, dating from April and May of 1984, Mr. Moore wrote to the agency’s then-assistant administrator, Alvin L. Alm, that there was “extensive noncompliance” with the agency’s asbestos regulations. He recommended that in the most serious situations the epa require schools to clean up asbestos-containing materials that present an “imminent hazard.”
Mr. Moore stated that although it would be “technically impossible” to write a general rule specifying the type of abatement that schools should undertake in each situation, it would be possible to establish criteria for identifying the worst hazards.
In a May 16 memo, Mr. Moore also recommended establishing a contractor-certification program and a pilot asbestos-information center; requiring annual re-inspection of schools for friable asbestos materials; and strengthening the agency’s existing technical-assistance program.
Viewpoint Said Changed
But Mr. Moore’s views changed between May and November, according to David W. Mayer, chief of the agency’s asbestos technical-assistance staff and asbestos-action program. Mr. Mayer said in an interview that Mr. Moore changed his opinion this past fall, based on new information from the agency’s December 1983 survey of school systems’ compliance with the asbestos regulations. Mr. Mayer said the agency did not have ''final data” from that survey at the time of the April and May memos.
According to the agency, the survey of 1,800 public-school districts and 800 private schools showed that about 67 percent of the responding schools had either begun or completed abatement activities, and that another 23 percent had plans to do so in the future.
“When those final data came out this fall, we said, ‘It looks like abatement is happening,”’ said Mr. Mayer. He said that was why the agency decided that new federal regulations are not necessary.
Survey Results
The union disagrees. According to the union, the survey “overstates’’ the amount of abatement work that has taken place, and confirms “overwhelming noncompliance with epa’s inspection rule.”
The union claims that fewer than 10 percent of the school systems surveyed complied with “all aspects” of the agency’s inspection rule, and that 66 percent did not comply with “most aspects.” For example, the6union noted that a follow-up to the agency’s original telephone survey found that 25 of 90 schools had neglected to inspect their boiler rooms, one of the places where friable asbestos is most commonly found. In addition, the union states that the survey did not examine the quality of schools’ abatement work.
“To the extent the epa figures are accurate,” the lawsuit states, ''they show that many schools have taken actions which epa knows are not only inadequate, but may likely make matters worse rather than better.”
