In mid-December, 2008, USA Today published a series of articles that assessed how air emissions from industrial sites have potentially impacted nearby schools. As part of this assessment, USA Today took “snapshot” air samples outside 95 schools. The readings for “toxic chemicals” at seven schools reportedly were high enough to cause serious illnesses and increase the risk of cancer. USA Today claimed that at 57 other schools, the concentrations of chemicals detected, while lower, could still lead to health risks and were at levels considered unacceptable by many states.

In addition to air sampling, USA Today worked with researchers and scientists at the University of Massachusetts-Amherst, Johns Hopkins University in Baltimore and the University of Maryland in College Park to conduct air toxicity assessments for 127,800 public and private schools. The assessment was based upon emissions data collected by the U.S. Environmental Protection Agency as part of its Toxics Release Inventory program, also known as TRI. Although there is no clear line between “dangerous” and “safe” in these rankings, USA Today noted that at least 450 schools ranked worse than Meredith Hitchens Elementary School in Cincinnati, a school that was closed in 2005 after the Ohio EPA found what it considered to be high levels of two “cancer-causing” chemicals in the air.

The articles have generated significant concern, not only from schools and local communities, but also from legislators. Citing the USA Today articles, the Chairman of the Senate Environment and Public Works Committee, Sen. Barbara Boxer (D-Calif.), pledged to “do what I have to do” to ensure that the government monitors the air for toxic chemicals outside schools across the nation. President Obama’s choice to head the Environmental Protection Agency, Lisa Jackson, promised Sen. Boxer’s Committee during confirmation hearings on January 15, 2009 that she would “send investigators and samplers out to verify the extent of the problem” and “mobilize” agency efforts within 30 days of her confirmation. Parents, Ms. Jackson said, “have a right to know their children are safe when they are in school.”

WHO MIGHT BE AFFECTED BY EPA INVESTIGATIONS?

To measure industrial pollution across the country, the EPA uses a model known as the Risk-Screening Environmental Indicators, which scores chemicals based on their potential danger. The chemicals are those that are listed in TRI reports prepared annually by industries and companies across the country. The model divides the country into thousands of squares, each measuring one kilometer by one kilometer, and estimates the potential impact of industrial air pollution for each of those areas. Any schools within the same square will have the same ranking.

If you have a business that operates near a populated area and you are required to file TRI reports for air emissions, there is a good chance your business has already been identified by USA Today as one of several “polluters” responsible for “toxics” at a given school. To find out, go to http://content.usatoday.com/news/nation/environment/smokestack/index and type in the city or county where your business is located. The website has interactive maps that identify schools and nearby businesses that reportedly have had an impact.

Each school is ranked against the other 127,800 schools for which USA Today developed toxicity information and is displayed as a percentile. Those schools that reportedly have the highest levels of air contamination are likely to be the subject of EPA driven investigations and sampling later this year, assuming that EPA Administrator Lisa Jackson makes good on her promise to do so.

WHAT MAY BE NEXT, ASIDE FROM SCHOOL TESTING?

According to USA Today, experts have concluded that even small amounts of toxic chemicals can do irreparable harm to children, who breathe more air per pound than adults do, and whose bodies process chemicals differently. Exposures “may be causing mutations in a child’s cells that begin the pathway to cancer,” says Philip Landrigan, a physician at the Mount Sinai School of Medicine in New York, who was identified by USA Today as one of the nation’s foremost experts on pediatric medicine. “Those mutations, once they take place, they’re hard-wired,” Landrigan says. “They may go on to cancer. They may go nowhere. But they certainly put the child at greater risk of cancer, and that risk is life-long.”

These types of sensational quotes, which fail to give an accurate picture of the alleged risks and exposures, not only sell newspapers and catch the attention of regulators, but also encourage plaintiffs to file class actions and mass tort cases that seek compensatory damages for nuisance, property damage and personal injury. It is also common for plaintiffs to request injunctive relief, asking nearby businesses to remediate or relocate the schools to a more suitable location. Since most of the chemicals allegedly associated with cancer are ubiquitous in the environment and are a part of background exposures - especially in urban, commercial and industrial areas - the sophisticated and sensitive sampling equipment used to test for these chemicals is almost sure to find them. In their zeal to protect their children, parents can fall victim to those who use exaggerations and scare tactics for their own interests and profit.

STRATEGIES

Attorneys within Wildman Harrold’s Toxic Tort and Environmental Practice Groups are experienced at addressing the issues raised by the USA Today articles, particularly in the context of alleged school contamination. We have found that many parents of school children are skeptical of the scare tactics used by plaintiffs’ attorneys and the press, but need to have accurate information placed before them that explains why the alleged risks are not nearly as great as others would have them believe.

A business may be able to delay or even prevent the filing of a law suit by disseminating accurate information to the community before significant regulatory or litigation pressures have been initiated. Part of this process is to explain how regulatory standards are policy-driven and are set well below levels that have been shown by science to cause any harm. We have counseled clients in developing community letters, websites, newspaper interviews and other strategies to combat the misinformation spread by others.