MALIBU PARENTS AND TEACHERS SERVE NOTICE OF INTENT TO SUE THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT & EPA FOR TOXIC SUBSTANCES CONTROL ACT VIOLATIONS

On January 12, 2015 America Unites for Kids and Public Employees for Environmental Responsibility (PEER) filed a second 60-day notice of intent to sue the Santa Monica-Malibu Unified School District (SMMUSD). The lawsuit is called a Citizen’s Suit and is expressly authorized under the federal law known as Toxic Substance Control Act or TSCA. The suit will be seeking an injunction ordering SMMUSD officials to comply with the requirement under TSCA that all caulk with PCBs over 50 parts per million in the entire school be promptly removed from the Malibu Middle, High and Juan Cabrillo Elementary School campuses.

The person or persons responsible for the alleged violations are Sandra Lyon and Jan Maez, officials of the Santa Monica Malibu Unified School District; Ben Allen, Oscar de la Torre, Joe Escarce, Maria Leon-Vazquez, Laurie Liebermann, Ralph Mechur, Nimish Patel, Craig Foster, and Richard Tahvildaran-Jesswein, current and former members of the SMMUSD Board of Education.

See January 12, 2015 Notice of Intent To Sue:

http://malibuunites.com/wp-content/uploads/2015/01/60-day-notice-Finalpdf.pdf

See Expert Opinion of Dr. David Carpenter:

Report of Expert Carpenter, MD-1

A similar lawsuit can be seen here:

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

TOWN OF WESTPORT and WESTPORT COMMUNITY SCHOOLS, VS. MONSANTO COMPANY, SOLUTIA INC., and PHARMACIA CORPORATION,

See Complaint against Monsanto Re: Exposure to Toxic Chemical Compounds known as Polychlorinated Biphenyls (“PCBs”)

DOCS-20009344-v1-Complaint_-_Original_file_stamped

See the first Notice of Intent to Sue the Santa Monica-Malibu Unified School District:

8_19_14_Malibu_NOI

Students and teachers are subjected to illegally high levels of dangerous chemical contaminants in Malibu public schools, according to a notice of intent to sue filed today by Public Employees for Environmental Responsibility (PEER) on behalf of teachers and Nagler and Associates on behalf of America Unites, led by concerned school parents.

This Notice concerns illegal levels of polychlorinated biphenyls (PCBs) found inside classrooms and campus soils. During the 2011 summer school session, the district removed from the Middle School Quad 48 truckloads of soil which, unbeknownst to parents and teachers, was contaminated with PCBs and pesticides. In the following two years, four teachers, including one who has since left the school, were diagnosed with thyroid cancer.

There are at least 10 known cases of thyroid disease among teachers and at least four students struggling with autoimmune health issues. In addition, alumni students have been diagnosed with thyroid cancer.

DECEMBER 2015 UPDATE ON CURRENT HEALTH ISSUES WITH STUDENTS AND TEACHERS AT MALIBU SCHOOLS

6 teachers with thyroid cancer;
4 alumni (28-year-old)with thyroid cancer;
1 current student with thyroid disease, possible thyroid cancer
25 teachers with thyroid disease (including 14 of 30 Malibu Middle School teachers);
10 alumni in their 20s with thyroid disease;
1 alumni (22-year-old) with environmentally induced melanoma;
2 current teachers with environmentally induced melanoma;
1 teacher hospitalized from an environmentally-induced rash;
1 current student with an environmentally-induced rash lasting several months
innumerable cases of headaches; persistent rashes; daily migraines; infertility issues; hair loss; immune issues; respiratory issues; and diabetes.

For more than a year, significant independent sampling has taken place on the campus complex, showing extremely high and illegal levels of PCBs remain even in areas supposedly remediated by the district.

The resulting certified lab results have been filed with EPA, state officials and the L.A. County District Attorney’s Office. U.S. Representative Ted Lieu (D-CA) personally transmitted the most recent independent test results to EPA’s Gina McCarthy.

See Congressman Ted Lieu’s letter To America Unites For Kids regarding the October 2015 PCB Test Results to EPA’s Administrator Gina McCarthy:

10_29_15_Letter_from_Congressman_Lieu_to_America_Unites

See PCB test results here:

10_29_15_Malibu_lab_results

Current Malibu City Mayor, Laura Rosenthal, admitted she had knowledge of toxins found on the Malibu High School Campus and did nothing to inform the teachers or parents with children at the school. Rosenthal admitted she had knowledge of the toxins well before that information was released to the public. The admission came during a candidate’s forum held Saturday, March 1, 2014 at the Pt. Dume Mobile Home Park Clubhouse located in Malibu, California.

Rosenthal was an active member- representative for the City of Malibu on the BB district wide committee as well as serving on the Site Committee for Malibu schools. Rosenthal confirmed she was serving on those committees during the time toxins were discovered and admitted that she did have and then withheld knowledge of the findings, but that she thought the “Teacher’s Union would let the teachers know” and the “Administration would inform the parents” ultimately stating, she was busy gearing up for her campaign and “You can’t do everything.” Source Preserve Malibu Coalition: Posted March 3, 2014. Go to: https://www.facebook.com/video.php?v=1398348370432751

SMMUSD Timeline:

See letter to Sandra Lyon and the SMMUSD’s Board of Education dated Oct. 7, 2013 from AMPS, Malibu High PTSA, The Shark Fund, The Boys & Girls Club of Malibu, members of the Malibu High School Site Council, & Malibu Special Education Demanding that the SMMUSD take Steps to Keep Our Children and Teachers Safe:

525375b700692.pdf

In January 2014, SMMUSD staff raised concerns about PCB exposure in Malibu High School and Middle School (MHS) and Juan Cabrillo Elementary School (JCS) after three teachers reported thyroid cancer diagnoses.

See letter to Sandra Lyon from 12 teachers at Malibu High School:

http://www.peer.org/assets/docs/ca/1_13_14_teacher_letter.pdf

1_13_14_teacher_letter-2

The City of Malibu through Resolution No. 14-58 requests that the Santa Monica-Malibu Unified School District (SMMUSD) conduct further source testing for polychlorinated biphenyls (PCBs) at all Malibu school campuses and in all rooms. Every inch of caulking does not need to be tested to verify there are PCBs. It is reasonable and based on standard building practices is responsible to assume that all like caulking in the same building contains PCBs. 

See City of Malibu’s September 23, 2014 Resolution No. 14-58 below:

9_23_14_Malibu_City_Council_Resolution

Despite the October 2013, January 2014 letters and City of Malibu passing this Resolution, the SMMUSD refuses to relocate its students and teachers and administer any further testing, even turning down the offer of Malibu parent and supermodel Cindy Crawford to personally pay for the tests. The EPA, in the Oct, 31st, 2014 approval, made very clear that PCBs over 50ppm cannot be left in place. PCBs are not like lead paint and asbestos; they are not chemically the same nor are they handled by EPA the same way.

In July 2014, Malibu Unites received laboratory results from the same lab used by the District of additional school soil and caulk samples.

On July 17th, 2014, Malibu Unites and PEER reported to both the district and EPA the following results:

Window caulking from Room 19 on the Juan Cabrillo campus contained 340,000 ppm of PCB;

Interior door caulking from room 506 at Malibu High contained 370,000 ppm of PCB;

Caulking from the Malibu High physical education faculty office contained 190 ppm of PCB;

and Three dirt samples from classrooms in Malibu High’s Building E had PCBs more than 11 times EPA’s residential screening limits.

The City of Malibu through Resolution No. 14-58 requests that the Santa Monica-Malibu Unified School District (SMMUSD) conduct further source testing for polychlorinated biphenyls (PCBs) at all Malibu school campuses and in all rooms. Every inch of caulking does not need to be tested to verify there are PCBs. It is reasonable and based on standard building practices is responsible to assume that all like caulking in the same building contains PCBs.

The SMMUSD is misleading the public with false statements to try and justify their choice to keep exposing Malibu children to cancerous, toxic PCBs. 

On Tuesday, December 16th, 2014, the SMMUSD ordered a “special” cleaning of the classrooms prior to Environ testing the dust and air. They asked teachers to remove all items from all surfaces so they can send a “special” crew to remove dust from surfaces; the same surfaces that Environ will be wipe testing hours later.

This renders PCB results meaningless. The goal of wipe and air testing is to see what the students and staff have been exposed to for the past 4 months. However, if they clean it hours before testing then any evidence of PCB exposure is removed.  Click Here to see email

Special-Cleaning-12-16-2014

This was done to guarantee the results are below EPA guidelines. Sadly, these test results will be nothing more than a PR move by the district to reassure parents and waste taxpayer dollars.

Moreover, EPA guidance may have been compromised by the following actions.

The SMMUSD’s Superintendent Sandra Lyon sought the assistance of the California Association of School Administrators to lobby the EPA to not enforce PCB source testing and remediation in Malibu schools.

Thereafter, on August 1, 2014 Laura Preston, legislative advocate for the California Association of School Administrators, sent an email to Jared Blumenfeld, EPA Region 9 Administrator, in which she revealed that her organization had been working with Superintendent Sandra Lyon for several months on the PCB issue in Malibu schools. She expressed that her office had also met with the offices of all of our state and federal elected officials, including the California Governor’s office about this issue.

This email suggested that Blumenfeld’s actions could give the appearance of “preferential treatment “ to Malibu. Preston said that: “…any preferential treatment to the community of Malibu will give the appearance that an affluent largely white community will receive preferential treatment. This can easily become a civil rights issue for all of us.” (see email below)

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/california-association-of-school-administrators-email-to-epa.pdf\

“This notice of intent is a demand that responsible officials follow the laws designed to protect our children,” said Jennifer DeNicola, a Malibu parent and President of America Unites. America Unites is represented by Nagler and Associates, an AV Preeminent rated law firm.

“We are frustrated that the District – and even EPA itself – both continue to disregard the law by conducting classes in rooms that are contaminated.”

“There is no safe level of PCBs. All they do is cause harm. They increase the risk of a great number of diseases, and the one that’s of most significance in a school is that they’re known to reduce cognitive function — learning and memory. And that’s the last thing you want in a school.” David O. Carpenter, M.D., director of the Institute for Health and the Environment at the University at Albany.

“PCBs are dangerous chemicals … even low concentrations of PCBs in air constitute an important route of exposure and disease, especially if the exposure is prolonged,” Dr. David Carpenter, director of the Institute for Health and the Environment at the University at Albany-SUNY.

PCBs Affect a Whole Building, Not Just a Single Window

If PCB-laden caulking over 50ppm has been found in one classroom, then it is probable that PCB-laden caulk is in all classrooms in that building. It would be absurd to propose removal of only the tested window (which is what the district has proposed) when adjacent windows used the same caulking that contain high levels of PCBs.

12029766_766201816822513_7554779534588348547_o

The SMMUSD has spent approx. $6.5 million dollars on lawyers and environmental expenditures rather than $100 per caulk test. Superintendent Sandra Lyon told the board at the December 11, 2014 board meeting that the District has approval to spend $600+ per hour and the use of Pillsbury Law Firm as legal counsel, and now the SMMUSD Board has given her carte blanche permission to spend unlimited amounts of money to protect their decisions.

Dec 22, 2014: Public Records Request Received of Environmental Expenditures: Environ, Pillsbury and Mark Katchen.

Click to Review invoices from: Environ, Pillsbury Law Firm and Mark Katchen.

http://malibuunites.com/wp-content/uploads/2015/01/PO-Approved-By-Board-pdf.pdf

http://malibuunites.com/wp-content/uploads/2014/12/Santa-Monica-Malibu-USD-Document-Production-Part-1-of-3.pdf http://malibuunites.com/wp-content/uploads/2014/12/Santa-Monica-Malibu-USD-Document-Production-Part-2-of-3.pdf http://malibuunites.com/wp-content/uploads/2014/12/Santa-Monica-Malibu-USD-Document-Production-Part-3-of-3.pdf

 See list of SMMUSD expenditures to date: $5,489,836.05 and rising!

11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

Just what is the Santa Monica Malibu Unified School District spending so much money to hide from the public?

Testing approximately 150 classrooms and offices throughout the 3 campuses (including bathrooms and storage rooms) would only cost $60,000. Then everyone would know where the sources of PCBs are and be in a position to discuss the best way to remediate, remove or rebuild. Until this source testing is done, the Malibu community cannot ever be assured that their children are not being unnecessarily exposed to toxic PCBs.

Testing the caulking could trigger further TSCA violations and that is the reason the district is avoiding caulk testing.

Accordng to Thirty Three Teachers at Malibu High School, the Santa Monica Malibu Unified School District is Violating their Own Best Management Practices (BMPs) in Reducing Exposure to Toxic PCBs

Thirty three (33) Malibu High school teachers have written a letter to the Santa Monica Malibu Unified School District declaring that the School District’s Best Managements Practices (BMPs) for reducing concentrations of toxic PCBs and, therefore, potential exposure to PCBs have failed miserably, and in fact are not even taking place at all.

http://www.jdsupra.com/legalnews/accordng-to-thirty-three-teachers-at-mal-27834/

Malibu High School Teacher’s Plea to the SMMUSD’s Board of Education for PCB-free Classrooms

See YouTube Video here:

https://youtu.be/hBoSDLhoedQ

See SMMUSD’s announcement concerning Best Management Practices (BMPs):

8_5_15_Santa_Monica_announcement

See America Unites for Kids & PEER’s:

Motion to test the caulk containing PCBs at Malibu High School and Jaun Cabrillo Elementary Schools:

document-96

Declaration of Jennifer Denicola with supporting emails from the US EPA Region 9:

document-97

A lawsuit should not be necessary to ameliorate the illegal and unhealthy conditions in an American school,” stated PEER Senior Counsel Paula Dinerstein, whose group is advocating on behalf of teachers and staff concerned about the effect contamination on campus is having on their health. “We invite both the District and EPA to sit down with us to resolve these disturbing issues or we will see them in court.”

On May 8, 2015 the Court in America Unites & Peer v. Sandra Lyon et al. stated the following:

Judge: “Defendant’s citations to EPA’s approvals, which were issued…deal with “remediation waste,” not the caulk itself. Whether intentionally misleading or merely unintentionally confusing, by conflating the PCB-contaminating caulk with the “remediation waste”, Defendants have overstated the degree to which the relief Plaintiffs seek conflicts with EPA’s expertise and considered judgment. As a result, the Court is not convinced that Plaintiffs are unlikely to prevail.” 

The EPA is also clear that the district has NO obstacle stopping them from further testing and removing the caulking. The only thing standing in the way of source testing to identify the nature and extent of PCB contamination at MHS and JC is the decision made by the SMMUSD. 

EPA R9: “Nothing in the approval limits the District’s ability to perform additional caulk sampling or removal.” 

The Judge: “Nothing suggests that an order [from the Court] requiring the removal of PCB-containing caulk would be contrary to or interfere with the EPA’s expertise.”

TSCA law is perfectly clear, PCBs over 50ppm are unauthorized for use and must be removed. The districts own testing has demonstrated that PCBs in caulking are widespread and at high levels.

Judge: “Plaintiffs have established a likelihood of success… The court therefore concludes that Plaintiffs have established that they are likely to prevail on their claims that Defendants must remove the PCB-containing caulk…”

See Plaintiff’s Memorandum in Opposition to the SMMUSD’s Motion to Dismiss: document-65

Examples of other School District where PCBs were above the legal limits, and as a result were removed by those school districts and not left in place.

Lexington, CT: approx. 37,000 ppm (built a new school rather than remove)

P.S.199 Manhattan, NY: wall panel corridor 217,000 ppm (was removed)

Brooklyn, NY corridor display case: 440,000 ppm (removed)

Hartford School District, CT has discovered PCBs in their schools, has removed children and closed the school until they find a remedy.

http://www.wfsb.com/story/27901372/parents-expected-to-learn-more-about-toxic-compounds-in-hartford-school

John Ferbas MS., Hyg., PH.D. stated the following:

“It seems that some are allowing themselves to get lost in the weeds of what is permissible tolerable limit (PEL) to PCBs may or may not be, or who has the authority to test for PCBs. IF the PEL concept had any legitimacy, (the gov’t) would still allow for new construction to use PCB-laced caulking so long as it remained below a threshold: but (they) do not because it is wrong (illegal) to do so. So the fact that MHS and JC contain caulking with PCB levels orders of magnitude above even the most conservative PEL estimates is egregious.” -Ferbas

Children cannot be exposed to PCBs, lower IQ, Memory Loss, Autism, Auto-Immune, Thyroid, Hypertension, Cancer… Congress passed a law protecting American’s from PCB exposure…50 ppm and it must be removed!

Read John Ferbas MS., Hyg., PH.D. July 2014 letter to the EPA and SMMUSD.

Ferbas-health-letter

This Malibu High School and Malibu Middle School along with Jaun Cabrillo’s campus map highlighting testing results of toxins and presence of illness (thyroid cancer, thyroid disease and nodules) paints a pretty convincing picture of the harm already caused.

Rooms so far tested over 50ppm Malibu High School: 1, 3, 5, 7, 8, 205, 401, 505, 506, 704, Old Gym Office, library

Juan Cabrillo Elementary School: Office, 18, 19, 22, 23

PCBs affect the whole building, not just a single window. If PCB-laden caulking over 50ppm has been found in one classroom, then it is probable that PCB-laden caulk is in all classrooms in that building. It would be absurd to propose removal of only the tested window (which is what the SMMUSD has proposed) when adjacent windows used the same caulking that contain high levels of PCBs.

Buildings that have already shown caulking exceeding 50ppm: Malibu High School: A, B, C, D, G, I, F, Old Gym;

and Jaun Cabrillo buildings: A C, F.

Up to now, there has been no source testing done in: Malibu High School building: H; and Jaun Cabrillo building: B, D, E. 41ca7296-de71-4534-b6be-2be448d34592

See JD Supra Article dated May 21, 2015:

http://www.jdsupra.com/legalnews/the-smmusd-has-spent-six-million-dollars-79259/

Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students and teachers.

For details, go to:

ITS TIME TO FIRE SUPERINTENDENT SANDRA LYON

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

 

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