SCHOOL. #13 An Overview of Recent Federal Law on Asbestos in Schools an Introduction to AHERA

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1 DRUMMOND WOODSUM & MACMAHON 245 Comm ercial Street Post Office Box 9781 Portland, Maine (207) FAX (207) SCHOOL Summer 1989 Issue LAW ADVISORY #13 An Overview of Recent Federal Law on Asbestos in Schools an Introduction to AHERA In 1986, Congress enacted the Asbestos Hazard Emergency Response Act (AHERA). This law requires most public and nonprofit private secondary and elementary schools across the country to inspect their facilities for the presence of asbestos-containing materials ( ACMs ), and to develop and implement appropriate response actions where ACMs are found. The deadline for the inspection and the development of AHERA management plans, even in those cases where schools have made use of a one-time deadline extension, passed some months ago. The plans were to have been implemented as of July 9, This article provides an overview of the key requirements of AHERA and addresses an important liability concern for those whom administrators have appointed as their AHERA designated person to supervise compliance with this law. The Environmental Protection Agency (the EPA ) established the specific requirements of AHERA in the Asbestos-Containing Materials in Schools rule (a.k.a. the Asbestos-in-Schools rule), 40 C.F.R , and has sent a detailed series of mailings to all schools over the past several years which explain this rule. This article also discusses school liability under AHERA. Non-AHERA school liability issues, such as possible tort liability and the effect of the Maine Tort Claims Act and workers compensation law on student and employee claims against a school are not addressed in this issue of the School Law Advisory. Does AHERA apply to your school? If you are a local educational agency (an LEA ), then you must comply with AHERA. The EPA has estimated that approximately 107,000 schools in more than 40,000 school districts may be affected by the regulation. The term LEA includes three broad groups of school authorities: (1) a State public authority administratively in charge of public elementary and secondary schools in a State political subdivision; (2) the owner of any Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 1

2 private, nonprofit elementary or secondary school building; and (3) the governing authority of any school operated under the defense dependents education system. See 15 U.S.C.A and 20 U.S.C.A. 2891(12). Most relevant to readers of the School Law Advisory, the first group concerning public school authorities is more particularly defined as follows: [A] public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district or other political subdivision of a State, or such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. Such term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school. 20 U.S.C.A. 2891(12). As used in this definition, [t]he term elementary school means a day or residential school which provides elementary education as determined under State law, and [t]he term secondary school means a day or residential school which provides secondary education, as determined under State law, except that it does not include any education provided beyond grade 12. Id. at 2891(8) and (21). Accordingly, in Maine an LEA would be the governing board of a school administrative unit. For example, a board of directors would be the LEA for a school administrative district, a district school committee for a community school district, and a school committee for a municipality not included in a school administrative district or a community school district. Deadlines you should have met Initially, LEA s were require to have submitted their AHERA management plans (described infra) by October 12, Congress amended AHERA, however, to allow LEAs to request a one-time deferral to May 9, 1989, provided that certain assurances were given. By July 9, 1989 implementation of the plans was to have begun whether or not a deferral had been obtained. In addition to the above deadlines, certain other aspects of AHERA have been in effect since December 14, First, as of that date, LEAs must... use only AHERAaccredited persons to design and conduct response actions, such as removals. Second, [s]uccessful completion of response actions must be verified by air monitoring standards provided in the AHERA schools rule. And third, [t]ransport and disposal of asbestos must be in accordance with Appendix D of the rule [pertaining to transport and disposal of Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 2

3 asbestos waste]. EPA AHERA Deferral Process and Program Update Memorandum dated August 1, Inspection and O&M requirements AHERA requires LEAs to have all school buildings, including administrative and essential maintenance and storage facilities, inspected by accredited inspectors in order to locate all friable and nonfriable asbestos-containing building material ( ACBM ). ( Friable means that the material, when dry, may be crumbled, pulverized, or reduced to powder by hand pressure, and includes previously nonfriable material after [it] becomes damaged to the extent that when dry it may be crumbled, pulverized, or reduced to powder by hand pressure. 40 C.F.R ) In addition, reinspection is required at least every three years. Buildings leased or acquired after the initial inspection must be inspected before their use as a school building, except when emergency use is necessary, and then the inspection must take place within thirty days thereafter. (In addition to these inspections, periodic building surveillance is required every six months after a management plan is in effect. Id. at ) LEAs must maintain a detailed inspection report conforming to federal regulations. Also, the inspector must provide a written assessment of all friable ACBM in each school building, including classification of the ACBM into various categories. This assessment, along with certain regulatory criteria, serves as the basis for the LEA s response action. See id. at ,.88 and.90. LEAs are also required to develop an operations, maintenance and repair ( O&M ) program for friable ACBM. This program must provide for worker protection under appropriate federal regulations (either EPA or OSHA standards) and for building occupant protection during O&M activity. The EPA distinguishes between minor fiber release episodes, the falling or dislodging of 3 square or linear feet or less of friable ACBM, and major fiber release episodes; certain procedures are prescribed for each. Id. at In addition, all members of the maintenance and custodial staff who may work in a building in which ACBM is present are required to receive two hours of training which provides information on asbestos, its health effects, its location in the school building where the staff works, recognition of damaged ACBM and certain other information. Also, those staff members whose work will disturb ACBM must receive fourteen hours of additional training. Id. at Management plans LEAs must develop management plans for each school and submit them to the State for possible review. These plans, which must be updated and maintained regularly, govern each LEA s implementation of AHERA and the Asbestos-in-Schools rule and must be put Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 3

4 into effect in a timely fashion. They must include a variety of information relating to: a listing of school buildings and their ACBM content; building inspections, inspector s assessments, reinspection plans and O&M plans; response actions or preventive measures taken, recommended, and planned to be taken; remaining ACBM subsequent to response actions; the name of the designated person (discussed infra); the steps taken to inform workers and building occupants about various components of the AHERA program; the anticipated resources necessary to fulfill the AHERA program; and the consultants who contributed to the development of the management plan. Id. at Management plans for each school must be maintained in the central school office of each school administrative unit as well as in the administrative office of each school within the unit, and must be made available for inspection by EPA and State officials and by the public. LEAs must also annually notify parent, teacher and employee organizations of the availability of the plans. Id. AHERA also prohibits renovations and removal of building materials and O&M activity in a school before the management plan has been submitted, with certain exceptions (based on compliance with certain inspection or other requirements of AHERA and other matters). See Public Law , Section 4, Worker Protection, 102 Stat. 832, July 18, What are designated persons? Early on in the process of complying with AHERA, each LEA is required to appoint a person to ensure that all of the LEA s responsibilities under AHERA are met. This designated person must receive basic training relating to the health effects of asbestos; the detection, identification and assessment of ACM; options for controlling ACBM; asbestos management programs; and relevant State and federal asbestos regulations (including OSHA, Department of Labor and Department of Transportation regulations). 40 C.F.R The designated person fulfills a largely administrative role. In particular, he or she is responsible of ensuring that persons involved in inspections, periodic surveillance, management plan development, response actions and O&M activities act in accordance with EPA regulations; that all custodial and maintenance employees are properly trained; that workers and building occupants are annually notified of the required information; that short-term workers in a school who may come into contact with ACBM are provided with information regarding its location; that certain warning labels are posted; that management plans are available for inspection and that the required annual notifications of this availability has been provided; and that consideration is given to possible conflicts of interest between accredited personnel and whether that should influence their selection to perform various AHERA activities. Id. What is the liability exposure of a designated person? Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 4

5 Experience has shown that persons selected by their LEAs to act as designated person under AHERA have been reluctant to take on that responsibility. This is a result of the designated person s exposure to significant federal penalties for violation of the applicable federal regulations. In fact, according to federal regulations and policies, a designated person may be liable for the following statutory penalties: (a) Civil up to $25,000 per violation, each day the violation continues constituting a separate violation; and (b) Criminal up to a $25,000 fine for each day of violation or imprisonment of up to one year, or both, in addition to or in lieu of any civil penalty imposed. Id. at Actually, AHERA is the second part of the federal statute pertaining to toxic substances; the first part is the Toxic Substances Control Act ( TSCA ) which deals with toxic substances generally. Each of these two parts has its own set of enforcement and penalty provisions. For violations of AHERA, designated persons are subject to the TSCA penalties, outlined above, but not to the AHERA penalties per se. Local educational agencies, however, are primarily subject to the AHERA civil penalties (discussed infra). What is the EPA s enforcement policy? Generally, unless a violation is egregious and/or knowing or willful, a first-time violation by a designated person may only result in the issuance of what is know as a notice of noncompliance. In the even that the EPA were to consider imposing a civil penalty for a particular violation, the penalty amount could vary from as little as $200 up to the $25,000 limit, according to the nature of the violation, the extent of environmental harm that could result, and the circumstances of the violation. Also, the EPA may adjust the penalty up or down based on several other factors such as culpability, history of violations, ability to pay, etc. The EPA has adopted an Interim Enforcement and Response Policy which explains in more detail the enforcement approach that the EPA plans to take with regard to designated persons. The following is an excerpt from that interim policy. Most enforcement actions should be taken against other persons (i.e., contractors) or the LEA. However, LEA employees, such as the janitor, superintendent, and the LEA designated person, are also considered other persons, and therefore, subject to civil penalties under TSCA title I of up to $25,000 per day per violation of AHERA. Further, LEA employees are subject to criminal action for knowing or willful violations of AHERA under TSCA title I. Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 5

6 Generally, EPA will issue [a notice of noncompliance] to an LEA employee that has violated the less serious requirements of the AHERA statute or its regulations for the first-time. EPA will only assess administrative civil penalties against LEA employees that are responsible for an egregious and/or knowing or willful violation, or have violated AHERA or its regulations a second-time. EPA may also pursue criminal action against LEA employees responsible for an egregious and/or knowing or willful violation. EPA Interim Final Enforcement and Response Policy for the Asbestos Hazard Emergency Response Act, January 31, (This interim policy presumably is subject to revision before the final policy is adopted.) In sum, although a designated person is technically subject to significant penalties, as a practical matter the EPA appears to be aware of the problems posed by this exposure and, under its present enforcement policy, does not intend to impose extreme sanctions against otherwise innocent designated persons for minor infractions. An alternative to appointing a member of a school s staff as designated person would be to retain an outside consultant to serve in that capacity. Because the EPA takes the position that a designated person can be shared by a group of LEAs, the cost of doing so may be reduced by cost-sharing with other schools. See the EPA s 100 Commonly Asked Questions About the New AHERA Asbestos-In-Schools Rule, May, Although the LEA would remain responsible for complying with AHERA, employing an outside consultant as designated person would avoid the problem posed by school employees who are reluctant to accept appointment to that position. What is the school s liability exposure? Under AHERA, if an LEA fails to conduct proper inspections, knowingly submits false inspection information to the State, fails to develop the required management plans, carries out prohibited activity before submitting management plans, or knowingly submits false information to the State relating to the one-time deferral requests, then it is liable for civil penalties of up to $5,000 for each day that the violation continues. ( [A] violation means failure to comply with respect to a single school building. 40 C.F.R ) As noted supra, LEAs are not subject to the TSCA civil penalties. See 15 U.S.C.A Civil penalties collected for violations under AHERA are to be used by the LEA to bring it into compliance with AHERA. (Any remaining portion of the civil penalties is contributed to the federal Asbestos Trust Fund.) Id. However, the EPA has indicated that while penalty funds may be used for activity such as asbestos abatement, the EPA may oppose their use to pay costs such as those of developing management plans and training personnel. Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 6

7 Factors that the EPA will consider in determining the amount of a civil penalty against an LEA include: (A) (B) (C) the significance of the violation; the culpability of the violator, including any history of previous violations; The ability of the violator to pay the penalty; and (D) The ability of the violator to continue to provide educational services to the community. Id. at 2647(c). Although AHERA makes clear that LEAs are not subject to TSCA civil penalties, it neither subjects nor excepts LEAs from TSCA criminal sanctions (applicable to designated persons). However, the EPA has taken the position that such criminal sanctions may be imposed against LEAs for knowing or willful violations in appropriate cases. Whether the EPA s position can withstand legal challenge remains to be seen. AHERA also provides that the EPA or the State can seek injunctive relief against an LEA in certain emergency situations where an imminent and substantial endangerment to human health or the environment is present. In such cases, reimbursement for the costs of the emergency action may be sought from the LEA involved. See id. at Non-AHERA based sources of school liability are beyond the scope of this article. Conclusion Clearly, AHERA is an important statute from the human health standpoint. If an LEA is not in compliance with the applicable regulations, immediate attention is called for in light of the potential danger to the health of students and school employees. This potential health hazard will continue until the presence of friable ACBM is determined and appropriate response actions implemented. In Maine, a high percentage of LEAs are in compliance with the deadlines for submission of management plans. Generally, LEAs not in compliance, however, are likely to receive a notice of noncompliance from the EPA. Unless LEAs that have received such notices demonstrate compliance within a set time period (usually sixty days), an administrative complaint from the EPA seeking monetary penalties will probably follow. To date, the EPA has issued several such complaints and may issue significantly more over the next six month period. # Copyright Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 7