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Decision No. 13,154

Application to reopen the appeal of THOMAS R. WONG from action of the Board of Education of the Syosset Central School District relating to the temporary closing of a school.

Decision No. 13,154

(April 8, 1994)

Rains & Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen Appeal of Wong, 32 Ed Dept Rep 651, in which I refused to annul respondent's decision to temporarily close its South Grove Elementary School and Annex. This application must also denied.

In the original appeal, petitioner argued that respondent's decision to temporarily close its South Grove Elementary School during a "capping operation" of a hazardous waste site located near that school was arbitrary and capricious. Specifically, petitioner contended that such action was unwarranted because the danger to children and adults during the capping operation was believed to be within an acceptable range of risks established by the U.S. Environmental Protection Agency (EPA). The appeal was denied because petitioner failed to establish his contentions.

I now deny petitioner's application for reopening because he has not demonstrated sufficient grounds to warrant such relief. Under "276.8 of the Commissioner's regulations, applications to reopen are addressed solely to the discretion of the Commissioner. Such applications will not be granted in the absence of a showing that a decision was rendered under a misapprehension of the facts or that there is new and material evidence which was not available at the time of the original decision.

In this application, petitioner presents no new facts, but reargues the issues presented in the original appeal and presents new arguments involving those issues. It is well established that an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Maloney, 33 Ed Dept Rep 391; Application of Impellizzeri, 32 id. 295; Application of Burke, 28 id. 205).

Petitioner also submits what he characterizes as hew evidence, including a letter written to petitioner by the Nassau County Department of Health dated April 16, 1992, a draft health assessment written by the New York State Department of Health dated March 1993, a magazine article written in July 1991 and a fact sheet prepared by the New York State Department of Environmental Conservation dated August 9, 1991. Petitioner had the burden to present all the valuable evidence and arguments necessary to support his contentions at the time of the original appeal (Application of Thibodeau, 30 Ed Dept Rep 206; Application of Goldstein, 29 id. 329; Application of England, 28 id. 527). The facts upon which a reopening will be granted are not merely facts which are "new" to the petitioner, but must instead be facts which were previously unavailable at the time of the previous proceedings (Appeal of Polizzi, 15 Ed Dept Rep 38). The evidence petitioner now submits was either in his possession or available to the public prior to the issuance of the decision in the original appeal. Moreover, to support his position, petitioner quotes only sections of those documents. My reading of the complete documents indicates that petitioner has cited those sections out of context. Accordingly, petitioner is not entitled to the relief requested.