Letter from PA attorney Richard Ben-Veniste to
Deputy Chancellor Klasfeld - 6/13/02
VIA FACSIMILE AND FIRST CLASS MAIL
To: David Klasfeld, Deputy Chancellor for Operations
Re: Stuyvesant High School
Dear Mr. Klasfeld:
As you know, we have been retained by the Stuyvesant High School Parents Association ("PA") to represent it in connection with its efforts to ensure that the air ducts and unit ventilators at Stuyvesant High School are professionally cleaned. We write because your office has never provided a clear indication of its plans to address the environmental safety issues at Stuyvesant High School.
After repeated requests and inexplicable delays, on June 10 we received the results of the environmental sampling tests performed by the New York City Board of Education's ("BOE's") contractor, ATC Associates, Inc. ("ATC"), on the ducts and unit ventilators at Stuyvesant High School on April 27, 2002. These results demonstrate that the ducts and unit ventilators pose a serious health risk to the students, faculty and staff of Stuyvesant High School and must be cleaned promptly.
Despite earlier assurances from the BOE to the parents of the Stuyvesant student body that the Stuyvesant building was "completely clean, including all aspects of its heating and ventilation systems," it was revealed that not only were the ducts and ventilators not cleaned, but not until April 27, 2002 were they even tested for the presence of environmental contaminants.
Now that we have received the ATC report, we are particularly concerned about the results of the tests for lead. According to ATC's report, the average lead concentration of the dust wipe samples collected from the unit ventilators was 1,174.89 micrograms per square foot. According to the PA's environmental expert, this result is dramatically higher than the acceptable levels for lead agreed to by the BOE in performing dust wipe samples on the floors in Stuyvesant High School, which are based on the EPA lead abatement standards specified in 40 CFR § 745.227(e)(8)(viii). Specifically, these results are 29.4 times higher than the acceptable level of lead on floors agreed to by the BOE. The highest sample reading, 1,902.7 micrograms per square foot, is 47.6 times higher than the acceptable level for floors. Even the lowest sample reading, 500.6 micrograms per square foot, is more than 12 times the acceptable level for floors. With respect to the ducts, the average sample reading, 89.16 micrograms per square foot, is more than twice the acceptable level of lead for floors agreed to by the BOE. As you know, the BOE has agreed, through its sampling protocol for Stuyvesant High School, to perform a professional cleanup any time ATC's tests for lead exceed the acceptable levels in the protocols.
There can be no question that these results demonstrate that the ducts and unit ventilators pose a health threat to the Stuyvesant High School community, a situation that will continue until they are cleaned. According to the National Safety Council, "[e]xposure to excessive levels of lead can cause brain damage; affect a child's growth; damage kidneys; impair hearing; cause vomiting, headaches, and appetite loss; and cause learning and behavioral problems. In adults, lead can increase blood pressure and can cause digestive problems, kidney damage, nerve disorders, sleep problems, muscle and joint pain, and mood changes." National Safety Council, Fact Sheet Library: Lead Poisoning (Feb. 1, 2002).
We have been advised by Representative Jerrold Nadler's office that the Federal Emergency Management Agency ("FEMA") has agreed to cover the costs of cleaning the ducts and unit ventilators at Stuyvesant High School pursuant to its Public Assistance Program. According to Rep. Nadler's office, FEMA has also agreed to cover the costs of upgrading the ventilation systems to install high-efficiency protective filtration and the costs of performing other necessary repairs pursuant to its Hazard Mitigation Program. Therefore, the necessary cleanings and upgrades can be performed by the BOE without impacting its budget.
We are further advised by Representative Nadler's office that when Tor Cowan and Michelle Goldstein of your office were informed that FEMA would cover these costs in a June 3, 2002 conference call attended by representatives from FEMA, the Office of Representative Jerrold Nadler, the Office of Representative Carolyn Maloney, the Office of Representative John Sweeney, the Office of Senator Hillary Rodham Clinton, the Office of Senator Charles Schumer, the New York City Office of Emergency Management, and the New York City Office of Management and Budget, they agreed that the BOE would promptly clean the ducts and unit ventilators at Stuyvesant High School and upgrade Stuyvesant's ventilation system. However, we are further advised that just a few days later, on June 7, 2002, you telephoned Lisette Morton of Representative Nadler's staff and informed her that the BOE would not be performing further remediation at Stuyvesant High School, despite the fact that the costs of such cleanup would be covered by FEMA.
We are puzzled by this abrupt reversal and we cannot understand why you would refuse to perform further remediation if in fact the costs of the cleanup will be funded by FEMA. According to Ms. Morton, you stated to her that all of the environmental tests performed at Stuyvesant High School were below "acceptable levels." This suggests that you were not aware of the ATC test results at the time you spoke to Ms. Morton.
Even without FEMA's offer to cover the costs of any cleanup, we cannot understand your refusal to clean the ducts and unit ventilators. The test results for lead are extremely high and well beyond the acceptable levels agreed to previously by the BOE. Although this firm has been authorized by the PA to initiate litigation to compel the BOE to clean the ducts and ventilators, we have deferred taking such action in the belief that the BOE's belated decision to conduct sample testing signaled a possible change in the Board's theretofore intransigent position. Now that these sample test results are in, we trust that you will recognize the compelling need to perform this necessary cleaning. As responsible government officials charged with assuring the safety of the school buildings in New York City, your duties in this regard are clear.
In light of the foregoing, we ask that you inform us of what action the BOE plans to take regarding cleaning the unit ventilators, cleaning the ducts, and upgrading the ventilation system. There is no question that the parents of the students at Stuyvesant High School are entitled to this information, and are entitled to it promptly. Accordingly, we ask that you provide the requested information by close of business on June 17, 2002.
Thank you for your consideration of these matters.
Very truly yours,
Richard Ben-Veniste
cc: Hon. Hillary Rodham Clinton
Hon. Jerrold Nadler
Marilena Christodoulou, President, Stuyvesant High School Parents' Assoc
Dale Bernstein, Co-President-Elect, Stuyvesant High School Parents' Association
H. A. Bader, H. A. Bader Consultants, Inc., Environmental Consulting Engineers
Craig Levine, Director -- Special Projects, Office of the Chancellor
Amy Rutkin, Chief of Staff, Office of Representative Jerrold Nadler
Lisette Morton, Legislative Aide, Office of Representative Jerrold Nadler
Jonathan Shiffman, Esq., Mayer, Brown, Rowe & Maw
Sheldon Stachel,
Chair, Environmental Health & Safety Committee
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