New York State Department of Labor investigation launched following Talk of the Sound Investigative Report on violations of Green Cleaning Law.
NEW ROCHELLE, NY -- The New York State Department of Labor Public Employee Safety and Health Bureau has issued five notices of violations, one "serious" and four "non-serious", to the City School District of New Rochelle following a four-month investigation into occupational safety hazards related to the use of banned chemical cleaning products throughout the district. Each violation includes the threat of fines, ranging from $50 to $200 a day, for failing to correct the violations by specified deadlines.
The PESH investigation was centered entirely on New Rochelle High School but banned toxic chemical cleaning products have been used in every school in the district for decades, school officials have confirmed.
PESH determined that the District failed to provide required protective gear, failed to provide training, created serious respiratory issues for workers and students, and, perhaps most ominously for future litigation, failed to maintain a log of long-term medical records for workers exposed to hazardous chemicals as required under Federal law.
The Occupational Safety and Health Act of 1970 states that employers are required to provide their employees with working conditions that are free of known dangers, what is known as the General Duty Clause of the OSH Act.
Under the OSH Act, employers are responsible for knowing when protective equipment is needed, must find and correct safety and health conditions and try to eliminate or reduce hazards first by making feasible changes in working conditions such as switching to safer chemicals, enclosing processes to trap harmful fumes, or using ventilation systems to clean the air. Employers are responsible for providing workers with information like Materials Safety Data Sheets and doing more than just relying on personal protective equipment such as goggles, masks, or gloves.
Employees who work for state and local governments are not covered by Federal OSHA, but have OSH Act protections if they work in those states that have an OSHA-approved state plan. New York is among those states.
Workers have the right to know, under the OSH Act, what hazards are present in the workplace and how to protect themselves which includes safety training and copies of Materials Safety Data Sheets for all such hazardous products.
The law has a section specifically on toxic chemicals.
Under the "Right to Know about Chemical Hazards" section, employers must keep a current list of hazardous chemicals that are in the workplace, make available to workers and their representatives Materials Safety Data Sheets that provide detailed information about chemical hazards, their effects, how to prevent exposure, and emergency treatment if an exposure occurs and inform and train workers about hazardous chemicals and substances in the workplace.
The failure to maintain medical records of employees exposed to the chemicals and to comply with the Right to Know provisions of OSHA, may expose the district to significant legal consequences should current or former employees initiate legal action against the District which would be unable to produce such medical records in court.
"The findings conflict with what Aramark told us," said Assistant Superintendent for Business & Administration Jeff White. "This just further supports why we terminated the Aramark contract."
A Long and Sordid History: Aramark in New Rochelle
A notice terminating Aramark was sent to the company, as required under the contract, in April and became effective on June 30th. Aramark employees responded by largely disappearing over the month of June during what was supposed to have been a transition period and during much of the PESH investigation period.
Aramark was first contracted to manage school facilities and the buildings and grounds staff in 1987. Talk of the Sound has documented numerous instances of waste, fraud, and abuse, directly implicating Aramark employees, involving hundreds of thousands of dollars on individual projects, totaling millions dollars over the life of the District’s relationship with Aramark.
New Rochelle Schools Superintendent Dr. Brian Osborne announced on July 5th, the hiring of Carl Thurnau, effective September 12th, to replace Rivera and build a new facilities management team of direct hires. Thurnau is currently the Director of Facilities for the New York State Education Department, responsible for 7,000 school districts across the state. In the interim, Gene Lawson formerly the Assistant Director of Buildings and Grounds at Monroe-Woodbury Central School District has been serving as acting-Director of Facilities since Rivera vanished in early June.
PESH Comes to New Rochelle
PESH issued five violations following a series of inspections and meetings with representatives of Aramark, and F.U.S.E, the union which represents pedagogical staff (teachers, psychologists, special educators, etc.) and service related professionals (custodians, maintenance mechanics, security guards, secretaries, etc.).
PESH, created in 1980, enforces safety and health standards promulgated under the United States Occupational Safety and Health Act (OSHA) and several state standards. The PESH Act created this unit to give occupational safety and health protection to all public sector employees, including school district employees.
Based on records obtained by Talk of the Sound, representatives of the F.U.S.E. and Aramark appear to have conspired to block and undermine the PESH investigation. Victor Cristiano, a district carpenter appointed by F.U.S.E. President Martin Daly to chair the union's Health & Safety committee, presented documents to the PESH investigator which purported to show that workers had received training on the handling of hazardous chemicals. The investigator deemed the records, letters signed by district employees attesting to having received training, to be "unreliable", that signatures obtained by Cristiano appeared to have been coerced, after the fact.
Pressed by a PESH investigator on whether he himself had received training, Cristiano claimed that as a carpenter, he did not require training because he did not work with chemicals. PESH dismissed his claim, noting that carpenters routinely deal with chemicals including wood stains, strong glues, formaldehyde in pre-treated lumber and more.
In another meeting, Arthur Rivera of Aramark proposed to F.U.S.E. members that they come up with a story they could all agree on to cover up violations of the New York State Green Cleaning Law, OSHA and the PESH Act.
A leading school safety expert in Albany expressed surprise that these violations would exist.
"Where was the union?" she wondered, noting laws to protect workers have been on the books for decades.
Many union members who spoke with Talk of the Sound said they are wondering the same thing.
F.U.S.E., the union that represents almost all full-time employees of the City School District of New Rochelle, is a unit of New York State United Teachers (NYSUT), a union known for its unyielding stance on workplace safety issues.
The first weekend after Talk of the Sound made public the rampant violations of the Green Cleaning Law, OSHA and PESH, in early April, Aramark employees secretly entered schools throughout the district to remove or dispose of the illegal chemical cleaning products.
PESH Investigation Driven By Widespread Use of Banned Toxic Chemicals
The PESH investigation began with a partial health complaint inspection of New Rochelle High School by the New York State Department of Labor Public Employee Safety and Health Bureau on March 23rd. The complaint applied to all custodial staff in every building occupied by the District; over 100 employees working in 14 locations including 11 schools, 2 workshops and office space at New Rochelle’s City Hall. Only New Rochelle High School was inspected.
The complaint filed with PESH centers on Enverros Sanimaster 4, a general-purpose sanitizer widely used to clean and sanitize school buildings in New Rochelle. The product contains high amounts of ammonium chloride, ammonium compounds, and other chlorides and has been, for many years, used in high concentrations in unventilated areas such as school bathrooms.
Even a legal use of the product such as in an industrial setting requires that the product only be used in ventilated areas which was not the case in New Rochelle. Teachers, students, and parents have complained for years about the overwhelming odor of ammonia in school bathrooms — ammonia contained in Sanimaster 4.
According to an Ecolab Material Safety Data Sheet, Enverros Sanimaster 4 has an acute toxicity and can damage the liver, the upper respiratory tract, blood, the reproductive system, and the central nervous system. In cases of direct contact or splashing, the product can cause severe eye and skin burns and, if ingested, damage the digestive tract and, if inhaled, the respiratory system. Put simply, it is highly toxic product that was banned from schools almost 20 years ago for good reason.
As first reported this past April, Talk of the Sound obtained a list of chemical cleaning products used in the City School District of New Rochelle. Enverros Sanimaster 4 is one of 43 cleaning products Aramark introduced to school buildings in New Rochelle. These products, most manufactured by Ecolab, were sold to the district by Aramark.
Just eight chemical cleaning products used in the district are on the New York State approved Green Cleaning product list: Enverros All Purpose Cleaner 2, Enverros Bowl Care Concentrate, Enverros Citric Acid, Enverros Floorstar Powerstrip Finish Remover, Enverros Floorstar Premium 25 Finish, Quik Fill 510 E General Purpose Cleaner, Quik Fill 520 E Glass Cleaner, and Quik Fill 910 E Neutral Bathroom Cleaner.
Enverros Floorstar Powerstrip Finish Remover, on the approved list, was quietly replaced with Enverros Floorstar Conquer, another banned cleaning product. Employees have not been provided a Materials Safety Data Sheet for Enverros Floorstar Conquer.
35 of the 43 products provided by Aramark are banned by New York State for use in schools. The following products are not on the New York State approved-list: Enverros Aerosol Stainless Steel Polish, Enverros Creamy Stainless Steel Polish, Enverros Dry Mop Treatment, Enverros Fiberfresh Allclean, Enverros Fiberfresh Gum Remover, Enverros Fiberfresh Light Extraction Cleaner, Enverros Fiberfresh Quick Dri, Enverros Fiberfresh SL Soil Lifter, Enverros Fiberfresh Ultra Pro, Enverros Floorstar Baseboard Finish Remover, Enverros Floorstar Conquer, Enverros Floorstar Duoclene, Enverros Floorstar Glaze Restorer 2, Enverros Floorstar Light Duty Cleaner 4, Enverros Floorstar Superior 30 Floor Finish, Enverros Floorstar Tfr Low Odor, Enverros Foam Control, Enverros Glassbrite, Enverros Glassclene Pro, Enverros Graffiti Wipes, Enverros Grease Soil Lifter, Enverros Odorgo Room Deodorant Pro, Enverros Odorgo Room Deodorizer Citrus, Enverros Sanimaster 4, Enverros Solvoil, Enverros Wallglide Graffiti Remover, Enverros Wallglide Plus, Enverros Wallglide White Board Cleaner, ServiceMaster MetalGlo Glisten, ServiceMaster Scrub N Shine Plus, Stonemedic Mpc Marble Polishing Compound. Ultimate Solutions Janitorial Chemicals County Garden, Zinc Free Finish Remover and Zinc Free Floor Finish.
Materials Safety Data Sheets were not provided to district employees for ServiceMaster MetalGlo Glisten, ServiceMaster Scrub N Shine Plus, and Ultimate Solutions Janitorial Chemicals County Garden.
The Complaint to PESH
The PESH inspection was conducted by Senior Industrial Hygienist Sushil Mahalwal, in response to a formal complaint received from an employee representative on March 14th in accordance with New York State Labor Law Article 2 Section 27-a, “Public Employee Safety and Health Act”.
Hazards alleged in the complaint fell into two categories: Hazard Communication Program and training deficiencies and Personal Protective Equipment issues.
Since Aramark was retained in 1987, no custodial staff employees have received training on the proper storage, handling and application of Enverros Sanimaster 4, according to the complaint.
The complaint further alleged that custodial staff were never provided suitable protective equipment such as chemical-resistant impervious gloves, chemical splash goggles, or face shields to go over the googles. There are no eye wash or quick drench stations at any school facilities for the use of custodial staff while handling or applying this product. The product is routinely handled and applied in areas that do not have adequate ventilation such as bathrooms, locker rooms, some classrooms, and storage areas. The product is often stored on cleaning carts that are within the reach of children, especially during after school activities and evening programs at the schools. The product is routinely poured down drains and into sewers that, in turn, empty into Long Island Sound. Custodial staff do not typically remove clothing or shoes that are contaminated with the product. Each represents violations of New York State and Federal laws.
The initial complaint expressed concerns that students, staff and visitors regularly come in contact with this product as contaminated custodial staff walk down hallways, touch door knobs while opening doors, drink water from water fountains, use bathroom toilets and sinks, and otherwise move about the buildings.
The PESH inspector conducted an opening conference on March 23rd with Martin Daly, and Arturo Rivera, Director of Facilities, an Aramark employee. At the conference, the PESH Act, the scope of the inspection, and the nature of the complaint were explained to the participants. The complainant’s identity was not revealed.
The following materials were explained to Daly and Rivera.
- SH 909 – PESH Act
- 12 NYCRR – Parts 801, 802, 803, 804, 805, and 820
- SH 907 – Employer’s Rights and Responsibilities pamphlet
- P 906 – Employee’s Rights and Responsibilities pamphlet
- Log and Summary of Injuries and Illnesses/recordkeeping information and forms (SH 900, SH 900.1, SH 900.2)
- P 206 – Consultation Assistance pamphlet
- SH 908 – PESH poster
- SH 918 – Penalty Information for Public Employers
- NYS Right to Know / Hazard Communication information
- 12 NYCRR Part 800.6 - Workplace Violence Prevention Program rule.
A “Public Employee Safety and Health Bureau Inspection Reference Material” handout was distributed to Daly and Houle.
A walkaround inspection of the facility was conducted that day with Daly and Houle.
A second conference and walkaround inspection took place on April 12th with Rivera and four others, Anthony Dicks and Andre Houle, a Facilities Manager, both employed by Aramark and Michael Tozzo, Vice President of F.U.S.E. and Victor Cristiano Health & Safety Director for F.U.S.E. The group inspected offices, classrooms, and the school's swimming pool and spoke with custodial and cleaning staff at the high school. Several of the high school staff were given whistleblower protection by PESH.
The alleged hazards listed in the complaint were examined and evaluated regarding compliance with PESH standards.
Listed below are the PESH investigators observations of conditions relevant to the alleged hazards in the complaint, applicable PESH standard, if any, and determination of whether a violation exists:
Alleged hazard: Hazard Communication Program and training deficiencies
Right to know/Hazard communication training were not provided to employees who might be exposed to hazardous chemicals during their job duties. A written Hazard Communication Program was available. Safety Data Sheets were available for the chemicals used at worksite. Right to Know law was not in compliance.
29 CFR 1910.1200(e)(1)(i): A list of the hazardous chemicals known to be present, using an identity that was referenced on the appropriate material safety data sheet was not available and should be included in the written hazard communication program .
29 CFR 1910.1200(h)(1): Employees were not provided effective information and training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard that the employees had not been previously trained about was introduced into their work area:
Alleged hazard: Personal Protective Equipment issues
Conditions observed: The custodial staff of New Rochelle School District involved in various maintenance activity and may be exposed to health and safety hazards which necessitate the use of personal protective equipment (PPE) but the employer did not assess the workplace for the personal protective equipment (PPE) requirement.
29 CFR 1910.132(d)(2): The employer did not verify, through a written certification, that the required workplace hazard assessment had been performed.
Other hazard: Respiratory hazard
Conditions observed: The employer provided North 5400 Series half-face respirator to its employees for mandatory use without implementing and maintaining a written Respiratory Protection Program.
The employer did not establish and maintain a respiratory protection program which included the requirement outlined in 29 CFR 1920.134(c).
The employees may be exposed to chemical fumes during mixing chemicals in swimming pool.
29 CFR 1910.134(a)(2): The employer did not establish and maintain a Respiratory Protection Program which included the requirements outlined in 29 CFR 1910.134(c):
Recordkeeping: Annual injury and illness logs were reviewed. The Days Away, Restricted or Transferred (DART) Rate for calendar year 2015 can’t be calculated because the management did not provide completed SH 900.1 (Summary of Work-Related Injuries and Illnesses) or similar forms).
Determination: 12 NYCRR Part 801.40(a): Records required under Part 801 were not available for inspection and copying.
An exit conference was conducted on April 12th. Present during the exit conference were Arturo Rivera, Michael Tozzo and Victor Cristiano.
The following materials were distributed and explained to participants during the exit conference in addition to observations made during the walkaround portion of the inspection: SH 904 - Closing Conference Pamphlet
Alleged hazards listed in the complaint were reviewed.
A final closing conference was performed on July 18th by telephone with Gene Lawson – Interim Supervisor who replaced Arthur Rivera and Michael Tozzo.
Based on professional observations, employee interviews and employer account the complaint was sustained and the violations issued.
The details of the violations and orders to comply are as follows:
Inspection Date: March 23, 2016 to July 18, 2016
Issuance Date: July 20, 2016
Violation Type: Violations of the Public Employee Safety and Health Act of 1980
Notice: Violation Notices must be posted immediately in a prominent place at or near the location of the violations cited below.
Penalty Assessment: $50 per day per for each non-serious violations, $200 per day per for each serious violations
Citation 1 Item 1 Type of Violation: Serious
The employer did not establish and maintain a respiratory protection program which included the requirements outlined in29 CFR 1910.134(c)
The employer shall include in the program the following provisions of this section, as applicable:
- Procedures for selecting respirators for use in the workplace;
- Medical evaluations of employees required to use respirators;
- Fit testing procedures for tight-fitting respirators;
- Procedures for proper use of respirators in routine and reasonably foreseeable emergency situations;
- Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators,
- Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators;
- Training of employees in the respiratory hazards to which they arc potentially exposed during routine and emergency situations;
- Training or employees in the proper use or respirators, including putting on and removing them, any limitations on their use, and their maintenance, and;
- Procedures for regularly evaluating the effectiveness of the program.
The employees may be exposed to chemical fumes during mixing chemicals in swimming pool. The employer has provided North 5400 Series half-face respirator to its employees for mandatory use without implementing and maintaining a written Respiratory Protection Program.
Date Which Violation Must: Be Abated: October 19, 2016
Citation 2 Item 1 Type of Violation: Non Serious
29 CFR 1910.132(d)(2): The employer did not verify, through a written certification that the required workplace hazard assessment had been performed.
The custodial staff of New Rochelle School District involved in various maintenance activity and may he exposed to health and safety hazards which necessitate the use of personal protective equipment (PPE). The employee provided some PPE such as half face respirator with face shield & cartridges, gloves (not chemical resistant). No safety boots, chemical resistant gloves, safety glasses etc. were provided, and PPE provided was not readily available. The employee must document that they performed the workplace hazard assessment as required.
Date by Which Violation Must Be Abated: September 06, 2016
Citation 2 Item 2 Type of Violation: Non Serious
29 CFT 1910(h)(1): Employees were not provide effective information and training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard that the employees had not been previously trained about was introduced into their work area:
Chemicals such as Enverros Sanimaster 4 - Sanitizer (contained dimethyl ammonium chloride and 11-alkyl dimethyl benzyl ammonium chloride) and Enverros Glassclene Pro - Glass cleaner (contains ammonia, 1-methyl-2-propanol) were used at worksite. The employer did not provide Hazard Communication training to employees who may use hazardous chemicals during their job duties.
Date by Which Violation Must Be Abated: September 27, 2016
Citation 2 Item 3 Type of Violation: Non Serious
29 CFT 1910.1200(c)(1)(6): A list of the hazardous chemicals known to be present, using an identity that was referenced on the appropriate material safety data sheet was not available and should be included in the written hazard communication program.
Chemicals such as Enverros Sanimaster 4 - Sanitizer (contained dimethyl ammonium chloride and 11-alkyl dimethyl benzyl ammonium chloride) and Enverros Glassclene Pro - Glass cleaner (contains ammonia, 1-methyl-2-propanol) were used at worksite. A list of the hazardous chemicals known to be present, using an identity that was referenced on the appropriate material safety data sheet was not available.
The employees arc exposed to hazardous chemicals at the worksite during their job duties.
Date by Which Violation Must Be Abated: September 06, 2016
Citation 2 Item 4 Type of Violation: Non Serious
12 NYCRR Part801.40(a): Records required under Part 801 were not available for inspection and copying: Copies of records were not provided within four (4) business hours, regardless of where records arc maintained.
The Summary of Work-Related Injuries and Illnesses (SH-900.1 or similar form) for the year 2015 was not available for inspection and copying.
Date by Which Violation Must Be Abated: August 22, 2016
Assistant Superintendent for Business & Administration Jeff White has committed to removing all banned chemical from the school district by year's end and bringing the school district into all applicable laws.
"We are fully committed to meet all PESH deadlines for corrective actions," said White. "We've gone fully green in our cleaning program, we are addressing the swimming pool now and getting required certifications updated."
"That said, none of these things should have happened and I'm very upset about it," continued White, adding "We paid Aramark three-quarter of a million dollars a year for this?"
The investigation by PESH, a division of the New York State Department of Labor, was launched as a result of an investigate report by Talk of the Sound published last April and a whistleblower complained filed with PESH.
- New York State Launches Investigation into Aramark's Use of Banned Toxic Chemicals in New Rochelle Schools
- Is Barnard School Making Employees Sick?
- New Rochelle School District Fined, Issued Violations Following New York State Investigation into Asbestos Exposure Incident at Davis School, Contractor Cited for Forged License
- EcoLab Material Safety Data Sheets
- PESH Investigation Report
- PESH Notices of Violations and Orders to Comply