Navigating School District Environmental Hazards


Hidden in plain site are three environmental hazards that should get the attention of all Texas school districts.  They are asbestos, lead paint, and underground storage tanks.  There are a variety of state and federal laws that regulate environmental hazards.(1)  The sheer number of laws and amount of action required for compliance can be overwhelming, and  too much for any one administrator to handle.  Therefore, it is essential that school administrators become familiar with a few key issues and delegate accordingly. 

1.     Enforcement.

Under federal law, the Environmental Protection Agency (EPA) is charged with enforcing and regulating environmental hazards.  The EPA has broad authority to investigate, regulate and enforce federal laws concerning environmental hazards.  The EPA may, however, turn over its authority to state programs, provided the state program(s) meets the minimum requirements under federal law. 

Texas has created a number of parallel programs to address environmental issues.  Most notably for school districts are the Texas Commission on Environmental Quality (TCEQ) and the Texas Department of State Health Services (DSHS).  In addition to enforcing state laws, these Texas agencies can also enforce federal environmental laws.  The EPA, TCEQ and the DSHS all purport to use a continuum of sanctions when regulating environmental hazards.  Minor violations may only result in an informal communication.  But, more serious violations can require districts to defend themselves in civil proceedings and/or pay hefty civil penalties.  Finally, egregious violations of environmental laws that were made knowingly and negligently could result in individual criminal prosecution.  Such conduct includes creating false logs, concealment of hazardous materials, tampering with governmental records, or submitting false information to the applicable regulatory agency.

2.     Lead Paint.

Lead paint is a toxic material, the use of which was prohibited by law in 1978.  Because of the substantial health risk, especially to children, both federal and state law have developed specific rules concerning lead paint in child care facilities.  The EPA has promulgated the Renovation, Repair and Painting (RRP) Rule regarding the abatement of lead paint.  In Texas, the DSHS enforces the Texas Environmental Lead Reduction Rules (TELRR).  

Such Rules apply to renovations to qualifying child care facilities.  “Qualifying child care facility” applies to a building constructed before 1978 which is visited by children six years old or less at least two times a week, for three hours a day, for a total of at least 60 hours per year.  The Rules target renovation activities that would disturb lead based paint.  These Rules require that all such activities be done by a properly certified renovator that will follow lead safe practices to prevent contamination.  These practices include proper containment of the work area, using proscribed methods to avoid generating excessive lead dust, thoroughly cleaning up the work site, verifying a lead-free environment upon project completion, and first and foremost, always providing proper notification to the DSHS in Austin and its applicable regional office no later than seven days before beginning any project.  Keep in mind that the DSHS can impose significant fines, up to $5,000, for serious violations of the TELRR.

3.     Underground Storage Tanks.

School district bus operations make it a likely site for contamination concerning underground storage tanks.  In fact, many problem areas recognized by the TCEQ involve school districts.  School districts, as owners and operators of underground storage tanks (USTs), must ensure that the tanks and their tank systems meet regulatory requirements.  The technical requirements are designed to: reduce the risk of releasing  hazardous materials (most common are petroleum based substances), detect leaks and spills when they do occur, and secure a prompt clean up.  

The TCEQ regulates USTs in Texas for the EPA.  The TCEQ relies on a system of self-certification, which requires, at a minimum, financial assurance from the school district to assure clean-up if a spill occurs, corrosion protection, release detection and spill prevention measures.  In addition, there may be local government regulations that affect UST requirements.  Therefore, it is always important for districts to check with cities, counties, river authorities and special districts (such as underground water districts or water control and improvement districts) to see if there are more stringent regulations that apply to the school’s USTs.

4.     Asbestos.

The EPA’s primary asbestos program affecting schools is contained in the Asbestos Hazard Emergency Response Act (AHERA).  Additional regulations are found in the Asbestos School Hazard Abatement Reauthorization Act (ASHARA).  AHERA requires school districts to: (1) designate a specific individual who is responsible for complying with the applicable rules , (2) inspect their schools for asbestos containing building materials, (3) prepare asbestos management plans to prevent or reduce asbestos hazards, and (4) conduct routine inspections every six months, and full inspections and plan updates every three years.  ASHARA requires accreditation of personnel working on asbestos activities in schools. 

In Texas, DSHS is responsible for monitoring compliance with AHERA and ASHARA for the EPA.  In addition, Texas has promulgated the Texas Asbestos Health Protection Act (TAHPA) and Texas Asbestos Health Protection Rules (TAHPR).  The purpose of TAHPR is to establish the means for control and to minimize public exposure to airborne asbestos fibers.  DSHS may take appropriate administrative or legal action for non-compliance with these Rules.  Districts must remember that they are required to notify DSHS prior to disturbing any asbestos containing building material, and have all abatement procedures done by a properly licensed individual.  Failure to follow the above rules can create stiff penalties, up to and including fines of $10,000 per day, per violation.

Avoiding hazardous materials, and stiff civil penalties, can be a daunting task.  The key to compliance begins with a thorough risk assessment.  School administrators facing environmental uncertainties should also use government resources by contacting the EPA, TCEQ or DSHS when questions arise.  Being proactive and diligent will lead to simpler and less expensive resolution of an environmental problem.  Failure to address environmental hazards that become environmental problems will only lead to stiff fines for a district.

For more information on these hazards and compliance with state and federal regulations, please contact Fred Stormer or any member of Underwood Law Firm’s Public Education Law Section

[1] These include, but are not limited to: Resource Conservation and Recovery Act (RCRA)(42 U.S.C. §6991); Renovation, Repair and Painting Rule (RRP) (40 C.F.R. § 745.80-83, et seq.); Texas Environmental Lead Reduction Rules (TELRR) (Texas Occupations Code, Chapter 1955, 19 TAC §37.332, and 25 TAC §§295.201 – .220); Texas Mold Assessment and Remediation Rules (TMARR) (19 TAC §295.301, et seq.); federal underground storage tank regulations (40 C.F.R. §§280.12 and 302.4);  Texas underground storage tank regulations (30 TAC §§213, 214 and 334, et seq.); Asbestos Hazard Emergency Response Act (AHERA)(PL 99-519, AHERA Rule 40 CFR Part 763, subpart E); Asbestos School Hazard Abatement Reauthorization Act (ASHARA) (20 U.S.C. §4014, 40 CFR Part 763; Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (42 U.S.C. §9601, et seq.); and, Texas Asbestos Health Protection Act (TAHPA)(Texas Occupations Code Chapter 1954, 19 TAC §295.67, et seq.).

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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