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More Schools Expected To File Suits To Recover Cost ofAsbestos Removal By Susan Walton At least one school district's lawsuit was among the"overwhelming"numberoflegal actionsthatled the Manville Corporation, a leading producer of asbestos, to file for bankruptcy last week. But unlike most of the suits, in which plaintiffs sought compensation for asbes tos-related medical problems, Philadel phia's suit against61 asbestos firms. School District ofPhiladelphia v. Johns-Manville Corp. et. cl., seeks to recover the nearly $7 million that the district expects to spend to remove the hazardous substance from its buildings. Bisk of Health Hazard Philadelphia is one of a handful of dis tricts that have filed suit against manufac- ! turers and processors of asbestos, which 1 school officials are now in the process of ' tearing out of all areas where the fibers, if : airborne,mightposeahealihhazardtostu- | dents and employees. i Widely used for fireproofing and sound j insulationbetween 1948 and 1978, asbestos ! has been banned since 1978 because in its "friable," or crumbling,form, the substance | has been linked to a variety ofrespiratory i diseases. According to attorneys eh'3 school offi cials concerned with the problem, lawsuits aimed at recovering the costs ofasbestos re moval may become more common as. bud- \ gets become tighter and pressure to elimi nate asbestos grows. So far, none of the cases filed has been decided, and attorneys speculate that a successful suit by a school district could have a powerful impact in en couraging others to take legal action. In addition, they say, a report is sued a year ago by the Justice De partment may gradually lead to more suits. That report. The Attor ney General's Asbestos Liability Re port to the Congress, recommended that local and state officials take le gal action to recover the costs ofas bestos abatement "I think it's an area ofgreatprom ise for school districts that are pressed for money," said Martin Dies, a Tbxas attorney with the firm ofStephenson, Thompson, and Dies in Orange,Tfex.,which is workingon numerous cases. "It seems a natural place to put the liability forthe sim ple reason that they [the manufac turers] knew that the asbestos would become friable." "In my opinion," he added, "it's a very fertile ground for product-li ability litigation." "This area is just beginning to open up," said Terry Richardson, an attorney with the firm of Blatt and Piles in Barnwell, S. C., which is also working with school districts. "We see it as a tremendous opportu nity for local school systems" to re cover costs. For school officials, the issue ofas bestos removal has become more ur gent since June, when the Environ mental Protection Agency (e.p.a.) issued its long-awaited regulations CSeeEducation Week, June2,1982). Those regulations require schools to inspect for asbestos and analyze substances suspected of containing it Ifthey find asbestos, schools must; notify parents and employees that \ the substance has been found and | advise them of ways to avoid expo-| 6ure to it. The inspections and notifi cation must be done by next June. | Recovering Removal Costs i Given the public pressure to re-! move the asbestos, which school offi cials suggest may become consider ably stronger as parents learn ofits presence, attorneys anticipate that more and more districts may turn to the courts to recover their costs. "We are extremely optimistic and think that ifa school district had to) pay taxpayers' money to remove the' asbestos because the manufacturer didn't warn them, they should be re imbursed," said Mr. Richardson. So far, according to attorneys, about six such suits have been filed! However, they say, school officials from all over the country have sought advice about litigation. Philadelphia's suit, filed in Penn-j sylvania's Common Pleas Court in July, is the latest of such actions. The district has so far spent nearly j $1 million, and expects to spend a great deal more, to control the fi bers, according to district officials. The suit names 61 manufacturers and processors as defendants, and lawyers for the schools are currently sorting out those who may be liable from those who are not, according to Arthur Raynes, a lawyer with Raynes, McCarty, Binder and Mundy, the firm hired by the district. The lawyers plan to delete Man ville from the defendants, since the bankruptcy action has frozen all suits againstthe firm, and expects to proceed with the suit against the firms that appear to be liable. They plan to use the Justice De partment's report in their argu ments, Mr. Raynes said, and also to argue that the asbestos companies maintained a "conspiracy ofsilence" about the potential hazards of the substance. No trial date has been set, and attorneys are unsure when the suit might be heard. Mr. Dies, theTfexas lawyer, has al ready filed two suits on behalf of Tbxas districts and expects to file two more in the near future. Butper haps as many as 3C districts, in Tex as and elsewhere, have expressed interest in the possibility of litiga tion, and Mr. Dies said that he may ' end up filing about a dozen suits on - behalfof school districts. , He said that the Justice Depart- | ment's report may be encouraging some officials to file, although ho pointed out that there is a natural "lag time" before the effect ofthe re port will be felt First Suit Heard A suit filed in New Jersey in the spring ofl9S0 may be the first to be heard, according to lawyers working on the case. The Cinnaminson Tbwnship Board of Education filed ! suit against Nation?.! Gypsum Co.; and U. S. Gypsum Co., seeking to re cover the more than 1 million that the district spent to remove tiiree j ceilings. Thesuit was filed in the Su- , perior Court ofNew Jersey and ;.ub- J scquently moved to the U. S. Dis trict Court in Tientoa. The case may he heard in Novem ber or December, according to Mi chael Vassalotti, a member the law ! firm hired by the school district. He . said the district's argument will hinge on basic product-liability law: ' Ifyou manufacture a product that is unsafe, you are responsible for com pensating the innocent purchaser. The district will also argue that this : responsibility extends to economic ! loss as well as injury. Other New Jersey school districts- j have considered filing suit, Mr. Vas- salottisaid.butEofarnonehasbeen j "really anxious tojump in." j Christine Weger, associate coun- : sel for theNewJersey School Boards Association, said that the associ ation has told its members tliat the Justice Department report is avail- - able and that it would work with, any boards that were interested in filing suit. But so far, she said, the association "didn't get an over whelming response." CAP CO JEN 0012453 In South Carolina, Mr. Richard son said, two districts have filed suit and several more have considered doing so. Attorneys are gathering evidence for several more cases, he said, and have consulted with many large districts in other states. Districts may be reluctant tosue for any ofseveral reasons, attorneys speculate. Some districts maybe un easy because most school lawyers are unfamiliar with product-liabil ity litigation. Mr. Richardson said that many with whom he has spok enhavenotbeenaware thattheave nue is open to them. Others maybe waitingtoseehow the cases now pending turn out. "It may be that the litigation is so ex tensive [time-consuming] that dis tricts are going to wait," Ms. Weger suggested. Others may be concerned that they may not be able to prepare theircasesbefore the statuteoflimi- I tations runs out, several attorneys I speculated. Officials in some districts, howev- j er, may simply want to get rid ofthe asbestos and forget about it."Ithink < they've gone through a nightmare I in thepastfewyearsgetting itout," 1 one legal advisor said. "Now, they don'twant to throw bad money after : good." j World of Difference' j In a number ofdistricts, school of- ' ficials have already inspected and removed asbestos from many build- j ings. e.p.a., however, has no nation- ' el statistics on how far states have progressed in their ashestos-inspec- j tion progr ams. A federal official said that significant variations exist: "You go from one state to another and there's a world ofdifference," he said. Some districts began removing asbestos several years ago afterpar ents became concerned about possi J ble health hazards. In New York City, for example, | the issue was "forcibly brought to j our attention" in 1978, when par, ents closed two Manhattan elemen tary schools where there was friable asbestos, according to a spokesman for the district. Subsequently, the district embarked on a comprehen sive asbestos-abatementproject and finished most ofthe work this sum mer. And in Los Angeles, school offi cials began inspecting for asbestos several years ago, according to Ralph Johnston, director ofmainte nance for the district In compliance with the e.p.a. regulations, the dis trict has finished inspecting about one-third of the 11,000 structures for which it is responsible. So far, inspectors in Los Angeles! have found asbestos at three sites/ and they expect to remove or "con tain" it (by sealing, walling, or oth erwise controlling it) before school opens. In the Midwest, e.p.a. regional of ficials in Chicago say they have re ceived notices from about 19,000 of 23,800 schools in the area for whose inspections the regional office is re sponsible. Of those inspected, about 12 percent have contained the sub stance. Some 750 schools in the sixstate region have carried out "abate ment" procedures. In Boston, school officials have in spected all buildings once and will inspect them again in the near fu ture to comply with the regulations, according to Paul W. Mooney, senior structural engineer for the depart ment ofplanning and engineering of the Boston public schools. Sofar, theyhavefound asbestos in about four buildings, Mr. Mooney said, and have removed, encapsulat ed, or otherwise controlled the sub stance when it was crumbling. However, he noted, the e.p.a.'s re quirement that school officials no tify parents and employees of the presence ofany asbestos--friable or not--makes it quite possible that the districtwill end up removing the intact asbestos as well. Parents and teachers, he said, are very concerned about exposure to the substance and have brought in samples that they believe to be crumbled asbestos. Sometimes they are; sometimes they're not, he said, adding that only laboratory tests can definitively identify the sub stance. \ SEPTEMBER 8,1982 EDUCATION WEEK i CAP CO JEN 0012454