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Decision No. 13,012

Appeal of ANTHONY J. ANIBALDI and MARTIE J. ANIBALDI, on behalf of their son ANTHONY, from action of the Board of Education of the West Seneca Central School District regarding operation of a print shop.

Decision No. 13,012

(September 17, 1993)

Blair & Roach, Esqs., attorneys for petitioner, David L. Roach, Esq., of counsel

Norton, Radin, Hoover, Freedman, Esqs., attorneys for respondent, David A. Hoover, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek an order directing respondent to cease operating a print shop at its West Seneca Educational Center School ("Education Center"). The appeal must be dismissed.

Respondent's print shop is located on the first floor in the Education Center, which until June 30, 1986 had been used as a junior high school. The print shop occupies approximately 2% of the total space of the building and has been located at the Education Center since 1987. In 1989, respondent decided to house some of its kindergarten students on the ground floor of the Education Center to accommodate increased enrollment at the elementary level. Because of a further increase in enrollment, respondent elected to house first grade students on the first floor of the Education Center beginning in September 1993.

In January 1993, parents complained to the building principal that their children were experiencing various illnesses and suggested that the illnesses might be caused by fumes from the print shop. In response to those complaints, respondent's superintendent contacted an employee of the Erie I BOCES who was a health and safety risk management consultant. On or about January 15, 1993 the BOCES consultant inventoried the chemicals in the print shop and reviewed the material safety data sheets (MSDS) which are kept on file by the district. The BOCES consultant recommended that air monitoring for chemicals and testing for mold and spores be conducted.

Respondent also contacted several local and State agencies, including the Erie County Health Department, the New York State Department of Environmental Conservation (DEC), the New York State Department of Health and the Cornell University School of Industrial and Labor Relations Chemical Hazard Information Program. The Erie County Health Department's Director of Environmental Health Services inspected the premises on January 27, 1993. On February 1, 1993 an environmental engineer from DEC also inspected the premises. On February 1, 1993 respondent's superintendent closed the print shop until completion of air sampling, testing for mold and spores and receipt and review of the test results.

In advance of the testing, scheduled for February 5, 1993, it was determined that the printing process should be operated for some time to compensate for the period prior to the testing when the shop was closed. In an attempt to create a "worst case scenario", presses and clean up procedures were run for an extended period of time before and on the day of the testing. Such use was specifically employed to require an intensive use of the chemicals and materials found in the shop inventory. The doors of the shop were kept closed during the testing with the expectation that chemicals in the air would be concentrated in the print shop and more readily detectable. In addition, the superintendent had directed that at such a time when the print shop resumed its operations, the doors would remain closed. Respondent felt that testing with the doors closed would more closely represent the operating conditions when the shop reopened.

On February 5, 1993, air samples were taken from various sites within and outside of the Education Center by an independent private testing company. The BOCES consultant took additional air samples, including a test for formaldehyde, on February 12, 1993. The test results showed an absence of detectable levels of any of the chemicals used in the print shop at any other location in the building. Low levels of ethylbenzene, tetrachloroethane, toluene and 1,1,1 trichloroethane were detected only in the air samples from the print shop itself. However, no chemicals used in the print shop were detected in any area of the building used by students. The levels detected in the print shop ranged from 25 to 2,000 times lower than the Occupational Safety and Health Administration's (OSHA) work place standards for each material.

The test results were sent to the New York State Department of Health, the Erie County Department of Health and the Cornell University School of Industrial and Labor Relations Chemical Hazard Information Program. The Erie County Department of Health and the Cornell University School of Industrial and Labor Relations Chemical Hazard Information Program submitted written reports to the District. The reports did not link the operations of the print shop to any of the illnesses claimed to have been suffered by the infant petitioners.

Based on the test results, respondent reopened the print shop on March 16, 1993 with certain minor modifications recommended by the BOCES consultant and the Erie County Department of Health. Shortly thereafter, petitioners instituted an action in Supreme Court, Erie County seeking relief similar to that sought in this appeal. On April 14, 1993 respondent resumed normal operation of its print shop. On May 21, 1993, petitioners' action in Supreme Court was dismissed by Justice Norman on the basis that this is a matter that should be heard by the Commissioner of Education. Petitioners commenced this appeal within 30 days of service on petitioners of a copy of Justice Wolf's decision.

In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Albert, et al., 32 Ed Dept Rep 615; Appeal of Verity, 31 id. 485; Appeal of Singh, 30 id. 284; 8 NYCRR '275.10). Petitioners contend that children attending the Education Center have become ill from the fumes of chemicals emanating from the print shop. In support of that contention, petitioners allege that a significant number of children at the Education Center complained of nausea, headaches, dizziness, rashes, loss of appetite and muscle cramping; and that those symptoms disappeared after the print shop was closed. Petitioners also allege that medical evidence supports their contentions.

However, the record does not support petitioners' contentions. Attendance records for the Education Center show that student attendance was approximately 96%, which was not significantly higher or lower than attendance at any other elementary school in the district. Records maintained by the school nurse indicate that for each of the specific symptoms described by petitioners (nausea, headaches, etc.), there was a higher incidence per month for every symptom during the period when the print shop was closed than when it was open.

The only medical evidence offered by petitioners consists of a statement from a doctor of a child of one of the petitioners. That statement states that blood testing indicated that the child had elevated levels for formaldehyde. Petitioners argue that the child's elevated levels for formaldehyde are attributable to a spirit duplicating fluid that produces formaldehyde and is present in the print shop. The record indicates, however, that the spirit duplicating fluid kept by respondent is not used in the print shop and is stored in another building owned by respondent. Accordingly, there is no basis for concluding that children at the Education Center have been adversely affected by the operation of the print shop.

The results of the tests done in connection with the print shop show that under current operating conditions there are no chemicals used in the print shop being detected in any parts of the Education Center used by the students. In addition, an inspection by the BOCES consultant resulted in a finding that all chemicals in the print shop were properly stored. Therefore, I find no basis for granting petitioners' request that respondent be ordered to close its print shop at the Education Center.

Petitioner also contends in conclusory fashion that respondent has violated various sections of the Education Law and Regulations of the Commissioner of Education in not providing adequate ventilation in the Education Center. Respondent denies that the Education Center lacks adequate ventilation and submitted, as proof that the building is properly ventilated and in compliance with State requirements, two evaluations performed by a licensed architect in June of 1988 and March of 1992. In light of the proof submitted by respondent and the absence of contradictory evidence, petitioners' contention on this issue is rejected.

As shown above, there is no evidence before me that the operation of the print shop has resulted in medical problems for the children attending school at the Education Center or that there has been a disproportionate amount of illness associated with that building. However, as noted by the Attorney General in his March 19, 1993 report entitled "Pesticides in Schools : Reducing the Risks", children may be more sensitive than adults to toxic chemicals because of their physiology and their environment. Therefore, it is difficult to make confident judgments about what is safe versus unsafe levels of exposure to chemicals for children. Accordingly, I direct respondent to monitor student complaints regarding nausea, headaches, dizziness, rashes, loss of appetite and muscle cramping for the next two school years and file quarter-annual reports with the Bureau of Facilities Planning of the State Education Department, indicating the number and type of complaints made and how such numbers compare with complaints received during the 1992-93 school year.