BELLOWS FALLS — A mandatory test for polychlorinated biphenyls (PCBs) revealed the presence of the toxic carcinogen at Bellows Falls Union High School.
The building's gym and auditorium tested highest for contamination and have limited use at this point.
The state law enacted in 2021 - the first in the nation - requires indoor air quality tests for PCBs for all schools built or renovated in the decades prior to 1980 in Vermont.
PCBs - a group of organic compounds made from carbon, hydrogen, and chlorine atoms - were banned in 1979. BFUHS was completed in 1973, and currently has approximately 310 students.
Schools all over the state have tested positive for various levels of PCBs, which prompted some 93 Vermont school districts to file a joint lawsuit against manufacturer Monsanto.
WNESU Superintendent Andy Haas had the district become party to the lawsuit in July. Burlington High School has filed a separate lawsuit against Monsanto, as has the Vermont Attorney General's Office.
The test results, how to address the toxins in the school, and Haas's joining the lawsuit without consulting his local school boards has raised a number of questions and concerns among citizens and board members.
Some of the questions began to be addressed at public meetings and meetings with experts all last week in the Windham Northeast Supervisory Union (WNESU).
PCBs' long history
According to the Vermont Department of Environmental Conservation, exposure to PCBs can affect the nervous, immune, reproductive, and endocrine systems. PCBs can be found in electronics, florescent light ballasts, paint, caulking, glue, plastics, capacitors, transformers, and even foods such as meat, dairy, and seafood.
Nearly everyone has some level of PCBs in their body, and while testing can tell how much and whether the levels constitute a danger, tests cannot reveal the source of the toxin or toxins.
The state set aside $4.5 million for testing schools statewide. The DEC hired consultants to do the testing, while the schools themselves are responsible for fixing any issues found, thus motivating the lawsuits against Monsanto.
Toxin levels are evaluated on a sliding scale, depending on the age of students using the buildings. into various categories, depending on the grade levels of the children using the building.
These School Action Levels (SAL) are broken down into preschool to kindergarten, kindergarten to sixth grade, and seventh-grade through high school. Schools with areas that exceed these thresholds will need to work with the state on temporary occupancy options while the contaminants are removed from the building.
But if the air tests exceed three times the school's SAL, the situation is upgraded to Immediate Action Level, and the space will be unusable in any form until the PCBs are remediated.
The actions required to protect the students vary depending on the level of contamination. The U.S. Environmental Protection Agency recommends the first basic step of removing all the florescent light ballasts, a common source of the chemicals.
Contaminated paint, caulk, and building materials can be removed or in some cases encapsulated, and decisions about how to proceed are being overseen by the EPA's regional PCB coordinator.
Epoxy coatings have so far been found to be most effective in encapsulating the PCB source. Cleaning by wet and damp mopping as opposed to dry sweeping, and using vacuum cleaners with HEPA air filters are also recommended.
In extreme cases of contamination, buildings may have to be torn down and replaced, adding the considerable cost of disposing of the PCB contaminated materials safely to the considerable expense of removing them.
Lots of questions, some answers
Early last week, school officials met with the Agency of Education, the Department of Health, the Department of Environmental Conservation, and BFUHS facilities and maintenance personnel.
At an Aug. 10 public meeting with the school board and officials at the Bellows Falls Middle School.
Haas spoke at the meeting, acknowledging that there is "a large cost involved in all of this."
The superintendent explained that the mitigation efforts are "100% reimbursable." Where the funding to cover those costs would come from was a major concern of the meeting.
Attorney Pietro Lynn of the Burlington law firm Lynn, Lynn, Blackman & Manitsky spoke to the meeting via Zoom. Lynn's firm is responsible for the lawsuit against Monsanto and is working with the injury law firms OnderLaw of St. Louis, Missouri and Frazer Law of Nashville, Tennessee in pursuing the litigation.
Lynn said that when the Vermont Legislature passed the law requiring school testing for PCBs, he realized this would be "incredibly expensive." He said that he knew the schools would want the toxins safely mitigated, but that neither the schools nor the state would have the money to do that.
The state is allocating $32 million toward the mitigation, but Lynn noted that the sum would be split with $16 million for Burlington - currently embroiled in PCB cleanup - and the other $16 million divided among the schools in the rest of the state.
"That's just a drop in the bucket," Lynn said.
The law firms involved in the suit have "experience suing Monsanto," Lynn said, and would pursue the case in federal court on a contingency basis. He said he "was satisfied that this was favorable and desirable for your district."
All sides acknowledge that the lawsuit is seeking a settlement that will easily reach hundreds of millions of dollars, if not over $1 billion.
Lynn said that they could lose the lawsuit and end up with nothing.
"But if we have a settlement," he said, each district would get a pro rated share based on the actual harm and expenses incurred.
"Hopefully, that would cover the damages 100%," Lynn said.
Who works for whom?
The fact that Haas had committed the supervisory union to join the lawsuit without first consulting the school boards has developed into a major issue.
BFUHS board member David Clark questioned several aspects of the lawsuit at the Thursday board meeting as well as in a commentary for The Commons ["Of course, the PCB lawsuit is a conflict," Voices, page D1].
Lynn addressed that issue, stating that the school superintendent, as essentially the "CEO of the district," had the authority to sign on to the lawsuit.
But "the board can rescind that," Lynn said, if they disagreed with the decision.
He noted that the school board would have no exposure unless it waited to withdraw from the suit at the end of litigation, after expenses had been incurred. Under those circumstances, they might be liable for 1/93rd of the expenses.
Clark has questioned Haas's authority to sign onto the lawsuit since July, and he has also expressed concern that the money involved might present a conflict of interest for the attorneys.
The lawsuit alleges that damages could run into the millions or even a billion dollars, Clark commented. "That's a pretty fat payday for the lawyers," he said, noting in his letter that the attorneys will get about 35% of any settlement.
To make his point, Clark said that "some buildings may, in fact, have to be torn down." But with regard to BFUHS, he said that he feels that that solution "way, way, way overstates the building's condition as currently known."
He said he was concerned that the potential money involved might "prejudice the board to move students totally out of the building."
Lynn acknowledged that Burlington did decide to tear its school down, and that that might also be true of other schools, depending on their respective test results. He noted that the cost of getting rid of the removed PCBs is going to be "tremendously expensive."
"We feel that is a recoverable damage for your district," Lynn said.
BFUHS board member June Streeter pursued the question of whether attorneys representing school districts feel they "would have a conflict because if you win you make a lot of money." She said that possibility might motivate them to encourage schools to sue.
Lynn said that the law firms "want what is good for your districts," and added that at this point they represent about 90% of the supervisory unions in Vermont. He said it was the attorneys' responsibility to "solve issues in favor of the district. Never what would be better for me but worse for you. That's malpractice, and I could lose my license. And I should, if I ever do that."
With the first day of school on Aug. 30 fast approaching, one other big question at the meeting was how to proceed and whether it would be safe to bring students back into the school. [On Tuesday, Aug. 22, the board voted unanimously to keep the school open and permit unlimited access to the rooms whose PCB levels fell below the state immediate action threshold. See story, A3.]
Lynn said it's reasonable to be concerned about any liability for bringing students back in to the school.
"Follow the advice of the experts," he encouraged the board, noting that it should be "very safe" to return.
This News item by Robert F. Smith was written for The Commons.