Schools have long needed to address issues arising from the presence of hazardous substances, including asbestos, dust and chemicals, in their facilities. These concerns are largely driven by public health. Exposure to asbestos in an older building or chemicals used by school personnel to maintain landscaping or clean classrooms can directly impact the health of students and faculty. In recent years, potential litigation, in the form of so-called toxic tort lawsuits, have added to the list of issues school districts must confront.
Concerns regarding legal liability arising from the presence of hazardous substances have increased in recent years. Many school facilities are aging and contain materials which may have been approved for use decades ago, but which are now outdated and potentially hazardous. In some instances, personal injury claims arising from exposure to these materials have been made. The more such lawsuits are publicized, the greater the likelihood a given school district, its Board and its administration will need to address not just public health concerns, but prospective litigation. In the last six months, two verdicts in King County Superior Court have been returned in cases originally filed under the caption Bard v. Monsanto Company, No 18-2-00001-7-SEA. Both trials involved claims that exposure to polychlorinated biphenyls (PCBs) in a school facility caused plaintiffs to suffer personal injuries. In total, $247 million was awarded to 11 plaintiffs. Although the judgments were solely against Monsanto, the lone domestic manufacturer of PCBs, these verdicts should concern every Washington school district with older buildings.
Whether the alleged hazard is PCBs, asbestos, mold or some other hazard, these situations all have commonalities. These include the potential for widespread exposure to a hazardous substance, possible personal injuries and the need to address the concerns of students, parents and faculty, as well as ensuring compliance with applicable State and federal regulations. While every school district and situation is unique, we can offer the following general guidance to school districts faced with potential onsite contaminants:
- Get help. Even the largest school district is unlikely to have the expertise inhouse to properly direct or conduct the testing, assessment and clean-up of chemicals and other hazardous substances at its facilities.
- Get the right help. Don’t simply rely on a clean-up contractor. To start, a Certified Industrial Hygienist, experts in public health or environmental and occupational medicine can offer advice and guidance on the extent to which a given situation presents a public health issue, whether testing, remediation and abatement are required, as well as the need to provide notice to the community and other government agencies. These same experts, along with qualified environmental consultants, can develop an appropriate testing and clean-up protocol.
- Get the right help at the right time. Properly addressing an issue with contaminants up front keeps small problems from growing. Incompetent contractors, mishandling of removal by inhouse personnel or conducting the wrong tests often cause as many issues as the initial contamination.
- The right help will help in many ways. Absent the retention of proper consultants, a district engaged in a self-directed clean-up is likely to be held solely responsible for any problems that occur. Spread the risk. It’s also generally considered to be a conflict of interest for a contractor to determine its own scope of work or to find that clearance has been achieved in regard to its own work. A qualified CIH and/or environmental consultant should make those determinations.
- Consider legal help. An attorney who practices in the field of toxic torts and environmental law can offer guidance on retention of experts, preservation of evidence, regulatory compliance and assist school districts identify situations which are likely to result in legal action.
- Understand the impact of external factors. We live in a social media world in which hyper-partisanship permeates all aspects of life. Allegations that a school facility are contaminated can be emotional. All concerns expressed by the school community should be addressed politely and professionally. District personnel may view complaints as personal attacks – and some community members may make such attacks. Its never helpful to respond in kind.
Retaining consultants, paying for testing and abatement are never cheap. But the cost is small compared to the amounts awarded in recent verdicts. A proper response to possible hazardous substances in a school facility ultimately preserves resources, monetary and otherwise.
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Patrick S. Schoenburg is a partner in the law firm of Wood, Smith, Henning & Berman, LLP. WSHB has thirty offices nationwide, including Kirkland, Washington. Patrick has almost 30 years of experience litigating toxic tort cases and advising major corporations and public entities on handling the investigation and removal of contaminants from their facilities.