May 5, 1988
John J. Smith
Secretary
Department of Water & Natural Resources
Foss Building
Pierre, South Dakota 57501
Official Opinion No. 88-18
Definition of School
Dear Secretary Smith:
You have requested an official opinion concerning South Dakota's definition of the word "school". Based on the following facts:
Federal law, in particular 15 U.S.C. § 2643, requires all local education agencies to identify asbestos containing materials in their "school" buildings and take appropriate action to control release of asbestos fibers. The final rule promulgating the federal act is found at 40 CFR Part 763, See 52 Fed.Reg. 41826 et seq. October 30, 1987). This rule indicates that the term "school" is defined for the purpose of the act, at 20 U.S.C. § 2854. See 52 Fed.Reg. 41847. The federal statute, in turn, indicates that the term "elementary school" is defined essentially by state law. See 20 U.S.C. § 2854(a)(7).
Based upon that factual scenario you have asked my opinion concerning whether the following institutions are "schools" for the purpose of applying the "Asbestos Hazard Emergency Response Act (AHERA):
Board of Charities & Corrections
Redfield State Hospital
Human Services Center
Youth Forestry Camp
Custer State Hospital & School
Calvin Coolidge High School (State Penitentiary)
Board of Regents
School for the Hearing Impaired
School for the Visually Impaired
Adjustment Training Centers & Community Residential Facilities
Aberdeen Adjustment Training Center
ATCO Enterprises, Inc.
Black Hills Workshop & Training Center
Brookings Area Adjustment Services
Chamberlain Adjustment Training Center
ECCO, Inc.
Huron Area Adjustment Training Center
LIVE Center, Inc.
Mitchell Area Adjustment Training Center
Northern Hills Training Center
Oahe, Inc.
Sioux Vocational School
South Central Adjustment Training Center
Southeast South Dakota Activity Center
Southern Hills Development Services
United Cerebral Palsy of S.D., Inc.
Yankton Area Adjustment Training Center
Community Habilitation Facilities
Southeastern Mental Health Center--Children's Unit
Missouri River Adolescent Development Center, Chamberlain
Educational Cooperative Service Units
Black Hills Special Services Co-op
Cornbelt Educational Cooperative
East Dakota Education Cooperative
Lake Area Special Services Co-op
Mid-Central Multi-Services Co-op
Northeast Educational Services Co-op
Northwest Area Schools Co-op
Sioux Area Education Co-op
Southeast Area Cooperative
Three-Rivers Special Services Co-op
In addition, you have asked whether children who are attending a "school" and use facilities in an institution which is not a "school" are either forbidden to use that institution or whether those facilities must meet the requirements of the AHERA regulations. By way of example you cite the Redfield Public Schools use of the Redfield State Hospital and School's swimming pool.
RESPONSE.
In the Act, "School" is defined as "any elementary or secondary school as defined in § 198 of the Elementary and Secondary Education Act of 1965 (U.S.C. 2854). 52 Fed.Reg. 210 page 41847. In addition the "school building" is defined as
(1) any structure suitable for use as a classroom, including the school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food.
(2) any gymnasium or other facility which is specifically designed for athletic or recreational activities for an academic course in physical education.
(3) any other facility used for the instruction or housing of students or for the administration of educational or research programs.
(4) any maintenance, storage, or utility facility, including any hallway, essential for the operation of any facility described in this definition of "school building" under paragraphs (1) (2) or (3).
(5) any portico or covered exterior hallway or walkway.
(6) any exterior portion of any mechanical system used to condition interior space.
As defined in 20 U.S.C.A. § 3381 the term elementary school "means a day or residential school which was provides [SIC] elementary education, as determined under State law." The same section in subsection (h) defines the term secondary school as "a day or residential school which provides secondary education, as determined under State law, except that it does not include any education provided beyond grade 12."
Additional guidance may be found in state regulations. ARSD 24:03:01:01(30) through (35) provides:
(30) "School," a public or non-public organization or entity which is approved or accredited by the State Superintendent for the purpose of instructing children of compulsory school age as provided in SDCL 13-27-1 or for children attending school as provided in SDCL 13-13-1, or both;
(31) "School, elementary," a school consisting of any combination of grades from kindergarten through eighth grade;
(32) "School, non-public," a school operated by an organization other than the school district;
(33) "School, public," a school operated by a school district;
(34) "School, secondary," a school which may consist of any combination of three or more consecutive grades, including ninth grade through twelfth grade;
(35) "School system," all of the schools and supporting services operated by a governmental agency or by any private organization;
The authority for the State Superintendent to approve or accredit schools may be found in SDCL 13-3-47. The statute provides:
It shall be the duty of the superintendent of elementary and secondary education to classify, approve, or accredit elementary, secondary, adult education, kindergarten, nursery, and summer schools, both public and non- public, under the rules as established by the state board of education.
Documents within the office of the State Superintendent, Division of Education, Department of Education & Cultural Affairs would have to be examined in the event a dispute arose concerning whether any particular institution or entity was approved or accredited by the State Superintendent. For most purposes those organizations, institutions, and entities listed in the 1987-88 Educational Directory under the headings I. (SCHOOL DISTRICTS) (K-12), III. NON-PUBLIC ELEMENTARY AND SECONDARY SCHOOLS, IV. VOCATIONAL MULTI-DISTRICTS, V. COOPERATIVE SERVICE UNITS, VI. SPECIAL EDUCATION-SCHOOLS AND RESIDENTIAL PROGRAMS, VII. SPECIAL EDUCATION-ADJUSTMENT TRAINING CENTERS, would all meet the federally imposed definition of "school".
Suffice it to say that all of the institutions you list and numerous other institutions may be found in the indicated sections. In fact, the only program you list I have been unable to find is the Missouri River Adolescent Development Center. I am however, informed by the State Superintendent's Office that this new program is seeking and must receive approval as it begins operation.
In response to your second question, all of the examples you present involve institutions, both of which are "schools" under the laws of this State. Accordingly, I believe that those facilities must meet the AHERA requirements under the definitions discussed herein.
Only two areas of instruction for children in this State appear to be missing from the encompassing definitions discussed herein.
First, there are the alternative instruction programs allowed under SDCL 13-27-3. According to the 1987-88 Education Directory approximately 1000 children receive instruction either at home or in non-approved or unaccredited programs. My reading of the federal law and state statutes is that "Schools" are those institutions or organizations approved or accredited under state law. State law does not require approval or accreditation of alternative instruction programs and thus they are not included within this definition. Simply because these children are receiving an alternative form of instruction does not mean they are immune to adverse effects of asbestos fibers. Accordingly, I am by this official opinion advising the State Superintendent of Education to transmit all materials regarding the compliance requirements for AHERA to the responsible person at each alternative instruction program. The State Superintendent should urge these individuals to voluntarily comply with these requirements. Since the compliance of the programs will be voluntary, I would urge the State Superintendent to stress the adverse health affects of exposure to asbestos in his communication with these programs.
Second, there are some 21 accredited or approved programs listed on pages 34 and 35, of the 1987-88 Educational Directory under the heading "II BUREAU OF INDIAN AFFAIRS SCHOOLS". Insofar as these programs are located within Reservations or operated by the Federal or Tribal Government the State is powerless to require compliance with State educational laws. I understand that it is the policy of the Federal Bureau of Indian Affairs to require programs it funds to meet minimum State education requirements. Since this State does not, and cannot, compel this action, I do not believe these programs meet the definition of "school" discussed herein. I would advise you to inquire of both the Environmental Protection Agency and the Bureau of Indian Affairs regarding what responsibility the State has towards these children.
If you have any additional questions please do not hesitate to ask.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
