School Districts Take Note: Enhanced Federal Scrutiny of Asbestos in Schools

9/10/2015

For the general public, concern about asbestos may seem like a thing of the past, largely absent from the media in recent years. Yet an effort in March by Senators Edward M. Markey (MA) and Barbara Boxer (CA) to gather information on whether states are meeting the requirements of federal regulations governing asbestos in schools reveals that state compliance has been inconsistent and suggests that there may be new federal interest in this subject.

Congress enacted the Asbestos Hazard Emergency Response Act ("AHERA") in 1986 to protect students, teachers, and other employees from the potential hazards of asbestos in school buildings. Asbestos was widely used in all types of construction, including school buildings during the 1940s-1970s in a variety of materials, including asbestos insulation on pipes and boilers, spray-on thermal insulation, ceiling and floor tiles, and roofing supplies. Asbestos that is in good condition and unlikely to be damaged or disturbed does not present a significant risk to health. However, to remain safe it must be properly managed or abated (if asbestos materials become damaged, fibers can be released into the air and inhaled, potentially causing disease).

In 1986, the EPA estimated that 35,000 schools had some levels of asbestos present, putting 15 million students and 1.4 million teachers and other employees at the potential risk of exposure. Congress passed AHERA to require public school districts and non-profit schools, including charter schools and religious institutions, to inspect school buildings for asbestos and create management plans to reduce or prevent possible asbestos hazards.

AHERA was designed as a system of "in-place" asbestos management. The removal of asbestos is generally not required unless the material is damaged or disturbed. AHERA mandates that schools take several actions, including:

  1. Perform an inspection every three years to determine whether asbestos-containing materials are present.
  2. Create an asbestos management plan documenting the location of any asbestos and any efforts taken to repair and remove the material.
  3. Provide yearly notification to parents and the public as to the school's asbestos management plan and any asbestos-related actions the school has taken that year.
  4. Perform routine monitoring of any on-site asbestos-containing materials.
  5. Use trained and licensed professionals to perform inspections and provide asbestos-awareness training to custodial staff.
  6. Comply with the Asbestos National Emissions Standards for Hazardous Air Pollutants (NESHAP) if removing any asbestos from the premises.

Since 1986 the federal government has not examined to what extent AHERA has been implemented by the states. In 2010, however, a nonprofit organization, the Public Employees for Environmental Responsibility, received records through a Freedom of Information Act request on asbestos inspections in Massachusetts. These records revealed that routine audits of schools from 1998 to 2008 found asbestos violations in nine out of ten cases and a 27% compliance rate with AHERA requirements.

This and other efforts to highlight the issue spurred Senators Markey and Boxer to send a letter in March 2015 to the governors of every state, requesting information on state implementation and compliance with AHERA. A Markey spokesperson has indicated that they have received responses from every governor and that AHERA is not being complied with uniformly. Asbestos, a naturally-occurring mineral that is present in the ambient air, is not dangerous unless it is inhaled in excessive quantities. To keep asbestos that is being maintained in-place safe, administrators must recognize the potential hazard and take steps to control the release of fibers. With the wide and growing range of demands that school administrators face, it is challenging to stay on top of all the potential hazards that can be controlled, including asbestos.

To learn more about state and federal asbestos regulations, please contact David M. Governo at dgoverno@governo.com or Colin N. Holmes at cholmes@governo.com.