ATTORNEY GENERAL SUSAN LOVING HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OPINION CONCERNING THE LIABILITY OF A SCHOOL DISTRICT WHICH SELLS A PUBLIC SCHOOL BUILDING WHICH IS KNOWN BY THE DISTRICT TO CONTAIN ASBESTOS PURSUANT TO THE ASBESTOS HAZARD EMERGENCY RESPONSE ACT (AHERA)15 U.S.C.A. 2641 ET. SEQ. AND ANY OTHER APPLICABLE STATE AND FEDERAL LAWS OR REGULATIONS.
IT IS WELL ESTABLISHED THAT INHALING ASBESTOS MAY CAUSE A POTENTIALLY FATAL PNEUMOCONIOSIS. ASBESTOS HAS BEEN WIDELY USED IN THE PRODUCTION OF INSULATION CAUSING THE OCCUPANTS OF BUILDINGS THAT HAVE DETERIORATING ASBESTOS CEILINGS AND FIREPROOFINGS TO BE AT RISK FOR CONTRACTING SOME FORM OF ASBESTOSIS. ASBESTOS IN SCHOOL BUILDINGS HAS BEEN AN AREA OF PARTICULAR PUBLIC CONCERN FOR SEVERAL YEARS. COMMENT, ASBESTOS ABATEMENT: THE ALLOCATION OF LIABILITY, 40 S.C.L. REV. 1043 (1989).
IN 1983 THE ENVIRONMENTAL PROTECTION AGENCY (EPA) PUBLISHED THE ASBESTOS-IN-SCHOOLS RULE WHICH REQUIRED SCHOOLS TO IDENTIFY FRIABLE ASBESTOS, TEST THE AIR, AND NOTIFY EMPLOYEES AND PARENT-TEACHER GROUPS OF THEIR FINDINGS. (FRIABLE ASBESTOS IS GENERALLY DEFINED AS ASBESTOS WHICH WHEN DRY CAN BE REDUCED TO POWDER BY HAND PRESSURE). HOWEVER, EPA FAILED TO SUPPLY ANY PRECISE DATA OR ADVICE CONCERNING THE REPAIR OR REMOVAL OF ASBESTOS OR TO INDICATE WHAT CONCENTRATIONS OF ASBESTOS POSED A DANGER TO TEACHERS AND STUDENTS. AS A RESULT, MANY SCHOOL ADMINISTRATORS FAILED TO COMPLY WITH THE RULE AND OTHERS SOUGHT TO ABATE THEIR ASBESTOS PROBLEM BY HIRING INEXPERIENCED AND UNTRAINED ASBESTOS REMOVAL FIRMS. UNQUALIFIED FIRMS OFTEN WERE UNABLE TO CURE THE ASBESTOS PROBLEM AND, IN SOME CASES, ACTUALLY MAY HAVE INCREASED THE DANGER TO THE OCCUPANTS. COMMENT, SUPRA, AT 1047.
THEREFORE, IN 1986, CONGRESS PASSED AHERA WITH THE FOLLOWING STATED PURPOSES:
1. TO PROVIDE FOR THE ESTABLISHMENT OF FEDERAL REGULATIONS WHICH REQUIRE INSPECTION FOR ASBESTOS-CONTAINING MATERIAL AND IMPLEMENTATION OF APPROPRIATE RESPONSE ACTIONS IN THE NATION'S SCHOOLS IN A SAFE AND COMPLETE MANNER;
2. TO MANDATE SAFE AND COMPLETE PERIODIC REINSPECTION OF SCHOOL BUILDINGS FOLLOWING RESPONSE ACTIONS, WHERE APPROPRIATE; AND
3. TO REQUIRE EPA TO CONDUCT A STUDY TO FIND OUT THE EXTENT OF THE DANGER TO HUMAN HEALTH POSED BY ASBESTOS IN PUBLIC AND COMMERCIAL BUILDINGS AND THE MEANS TO RESPOND TO ANY SUCH DANGER.
IN-RESPONSE TO THE DIRECTIVE OF AHERA, EPA PROMULGATED THE ASBESTOS-CONTAINING MATERIALS IN SCHOOLS RULE IN 1987. (40 CFR 763.80 ET. SEQ.). THIS RULE REQUIRES LOCAL EDUCATION AGENCIES TO IDENTIFY FRIABLE AND NON-FRIABLE ASBESTOS CONTAINING MATERIAL IN PUBLIC AND PRIVATE ELEMENTARY AND SECONDARY SCHOOLS BY VISUALLY INSPECTING SCHOOL BUILDINGS FOR SUCH MATERIALS, SAMPLING THE MATERIALS AND HAVING SAMPLES ANALYZED BY APPROPRIATE TECHNIQUES REFERRED TO IN THE RULE. THE RULE REQUIRES LOCAL EDUCATION AGENCIES TO SUBMIT MANAGEMENT PLANS TO THE GOVERNOR OF THEIR STATE BY 1988, TO BEGIN TO IMPLEMENT THE PLANS BY 1989 AND TO COMPLETE IMPLEMENTATION OF THE PLANS IN A TIMELY FASHION. IN ADDITION, LOCAL EDUCATION AGENCIES ARE REQUIRED TO USE PERSONS WHO HAVE BEEN ACCREDITED TO CONDUCT INSPECTIONS, REINSPECTIONS, DEVELOP MANAGEMENT PLANS OR PERFORM RESPONSE ACTIONS. THE RULE ALSO INCLUDES RECORDKEEPING REQUIREMENTS.
RESPONSE ACTIONS ARE GOVERNED BY