Imagine you are building a school. Your contractor tells you about materials that will resist wear and tear and help keep your new building insulated. These materials can be used in cement, insulation, floor tiles, paint, caulk and roofing materials. Without adding to building costs, you will have a school that is quieter, stronger, and less likely to burn down.
It is not difficult to see why many schools built between the late 19th century and the 1970s are filled with asbestos. For schools (or parts of campuses) built between 1950 and 1979, another source of concern is polychlorinated biphenyls (“PCBs”), which were widely used to enhance the performance of construction materials and fluorescent lighting fixtures.
Risks Associated With Asbestos And PCBs
In recent years, science has come to more fully understand the dangers of asbestos and PCBs. We now know that prolonged inhalation of the fibers contained in asbestos products can cause serious illnesses such as lung cancer, mesothelioma, and asbestosis. Similarly, if PCB particles are not contained, exposure can potentially cause an array of maladies, including skin irritation, malignant tumors and reproductive abnormalities.
Some kinds of asbestos and PCB exposure are more dangerous than others, and state and local laws pertaining to these hazards differ. Not all asbestos-containing materials are actively harmful. Asbestos-containing materials become harmful only when they release dust or fibers into the air when damaged or disturbed. PCBs, on the other hand, may be emitted into the air or neighboring surfaces through normal use of outdated fluorescent light fixtures, or deteriorating caulk or paint.
Given these risks, and the presence of asbestos and PCBs in many school buildings, important questions persist. If you work in, or are in charge of, school buildings that contain asbestos or PCBs, what are you required to do? If students, teachers, and staff members work or live in rooms that contain asbestos or PCBs, what steps should you take?
The Legal Landscape
The Toxic Substances Control Act includes the Asbestos Hazard Emergency Response Act (“AHERA”), or the Asbestos in Schools Program, a federal law enacted in 1976 that applies to a variety of institutions, including independent schools. AHERA, whose implementation is overseen by the Environmental Protection Agency (“EPA”), requires – among other things – that schools inspect for asbestos-containing material, prepare management plans, and take action to prevent and/or reduce asbestos hazards. Many states have adopted laws similar to AHERA in dealing with school asbestos issues.
Generally, the removal of asbestos hazard materials is not required by AHERA or other laws unless the material is severely damaged or will be disturbed by a building, demolition, or renovation project. However, all asbestos-removal projects must be designed, supervised, and conducted by accredited professionals. In addition, if removal of asbestos during renovation is warranted, or school buildings will be demolished, the school must comply with specific standards applicable to hazardous emissions. Many state-specific and municipality-specific regulations may also apply. Independent schools should consult with legal counsel and removal experts before undertaking an abatement project, as penalties for non-compliance with AHERA can be steep: up to $25,000 for each day during which the violation continues.
As for PCBs, the Toxic Substances Control Act banned their manufacture in the United States; however, continued use of building materials containing PCBs is permitted, though highly regulated at both the state and federal level. EPA’s preference is for PCBs to be phased out entirely, and the agency has particularly emphasized reducing or eliminating the use of PCB-containing fluorescent light ballasts and caulk in schools as a best practice (though not a legal requirement). As with asbestos, if PCB removal or containment projects are contemplated, schools should be mindful of regulations requiring careful management of those procedures.
At least once every school year, each school with asbestos in its building(s) must provide written notification to parents and employees regarding the availability of the school’s Asbestos Management Plan and any response actions taken or planned. Furthermore, many states require schools to notify state agencies before conducting any asbestos remediation projects – for example, Massachusetts requires entities to notify the Massachusetts Department of Environmental Protection at least ten days prior to conducting any project that involves the handling and/or removal of asbestos-containing material.
No such notification requirements pertain to PCBs in schools. Many states recommend close monitoring of building materials – especially deteriorating caulk – to determine if safe removal of PCBs is warranted. This measured approach to removal of PCBs from schools, however, has not prevented school districts across the country from filing lawsuits against manufacturers of PCBs. And in one recent instance, an activist group of parents (including some celebrity parents) filed suit against the Malibu Unified School District in California, frustrated with the school district’s EPA-endorsed approach to the presence of PCBs.
Where Do We Go From Here?
In the event asbestos and/or PCBs have been used and are still present on campus, we recommend that independent schools take these practical steps to comply with applicable law and best practices:
Dealing with older buildings can — perhaps literally — create headaches for school administrators. Understanding your responsibilities, however, can make this process less painful.
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Please contact any member of the Firm’s Education Practice Group if you need assistance in managing asbestos or PCB compliance issues.