April 24, 2009
In December 2008, USA Today published a special report entitled “The Smokestack Effect: Toxic Air and America’s Schools.” The report purports to evaluate industrial pollution at 127,800 public and private schools across the country. For each school, USA Today also named the companies it believes to be the “Polluters Most Responsible” for the alleged toxic air at the facility. Since then, USA Today has published follow-up articles. In response to the series, state and federal regulators have vowed to take a closer look at the air surrounding the nation’s schools. Additionally, private lawsuits have been filed by parents and residents in a few communities throughout the U.S., targeting those companies identified in the report.
The Report Methodology
The methodology used by USA Today has been criticized by some. For the most part, USA Today took no actual air quality measurements at the schools listed in the report. Instead, it relied on the EPA’s Risk Screening Environmental Indicators (“RSEI”) model to predict toxic levels using emissions inventories filed under the Toxic Release Inventory reporting requirements. The RSEI model, however, was never intended to be a formal risk assessment tool. As the EPA acknowledges, the model uses simplifying assumptions to fill data gaps and reduce the complexity of calculations and, thus, it is designed to be only the first screening step in an analysis, and should always be followed by further evaluation and actual testing.
Because USA Today conducted only minimal follow-up, the report is almost wholly conjecture. Nonetheless, it has garnered the attention of legislators, communities, parents, and state and federal regulators, as well as plaintiffs attorneys.
Actions Taken in Response to the Report
In response to the USA Today report, Senator Barbara Boxer, chairperson of the Senate Environment and Public Works Committee, pledged that the government would monitor the air outside of schools across the country. Senator Boxer then reiterated that goal to Lisa Jackson, the recently appointed Administrator of the US EPA, during Jackson’s Senate confirmation hearing. Jackson has since announced that, over the next several weeks, the EPA plans to conduct air monitoring outside 62 schools in 22 states.
Some states have already begun similar programs looking into the issue. Louisiana and Pennsylvania conducted follow-up testing, and the EPA hopes to get other states involved in the effort.
Individuals and environmental groups also have joined the fray, filing lawsuits against companies identified in the report. By way of example, a class action filed in Indiana by a group of Northwestern Indiana parents charges 11 companies with contaminating the air and exposing their children to lifelong developmental and health issues.
Companies Identified As the Primary Polluters
USA Today names, as the primary polluters in each location, hundreds of companies that span a variety of industries, such as the petroleum, chemical, electronics, agriculture, and power industries. Those companies are potential targets for administrative, or private, actions as a result of the article. You can find out if your company has been identified by accessing the USA Today website at http://content.usatoday.com/news/nation/environment/smokestack/index. Further, the US EPA website at http://www.epa.gov/schoolair/schools.html identifies the 62 schools that will be the subject of their upcoming investigation.
Gibson, Dunn & Crutcher LLP is very familiar with the USA Today report and RSEI shortcomings, as well as the steps to take to respond to administrative, or private, actions related to the reports, and we will continue to follow related developments. Please contact any one of the attorneys identified below for further information or to learn more about how to prepare for administrative or private party action related to the reports.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
Peter E. Seley (202-887-3689, [email protected])
Daniel W. Nelson (202-887-3687, [email protected])
Charles H. Haake (202-887-3581, [email protected])
Elizabeth L. D. Cannon (202-887-3507, [email protected])
Alan N. Bick (949-451-4211, [email protected])
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