Los Angeles District Attorney’s Environmental Crimes Section is Called Upon to Review California State Laws Concerning Child Endangerment & Failure to Disclose Dangerous Conditions Re: New PCB Findings in Malibu Schools

UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division – Los Angeles)
CIVIL DOCKET FOR CASE #: 2:15-cv-02124-PA-AJW

America Unites for Kids et al v. Sandra Lyon et al
Assigned to: Judge Percy Anderson
Referred to: Magistrate Judge Andrew J. Wistrich
Cause: 28:2201 Declaratory Judgment
Date Filed: 03/23/2015
Jury Demand: None
Nature of Suit: 893 Environmental Matters
Jurisdiction: Federal Question

3_25_15_New_malibu_test_results

10_17_14_PCB 126 lab report J Cabrillo

10_17_14_PCB 126 lab report MHS

7_17_14 Malibu_PCB_lab_results1-1

9_23_14_Latest_Malibu_test_results

8_19_14_Malibu_NOI

New independent lab testing and re-testing by Environ shows even more classrooms in Malibu public schools with toxic contamination thousands of times greater than permitted under federal law, according to test results released by Environ, America Unites for Kids, and Public Employees for Environmental Responsibility (PEER). These EPA-certified laboratory results have been turned over to the Los Angeles District Attorney’s Office for review under state laws outlawing child endangerment and failure to disclose dangerous conditions.

For months, the Malibu Middle and High Schools and Juan Cabrillo Elementary School have been roiled by discovery of illegal levels of contaminants, including extremely high concentrations of polychlorinated biphenyls (PCBs) found in window and door caulk, ventilator dust and soil. The Santa Monica-Malibu Unified School District claims that all buildings are safe to occupy and yet some rooms have been closed off; meanwhile tests continue to come in showing that classrooms currently occupied by students and teachers have PCBs that exceed safe limits set by federal law.

In July and September 2014, and again in December 2014 samples taken from several Malibu school facilities showed illegal PCB levels dramatically higher than previously reported – as much as 11000 times higher than legal limits and the highest known results for a classroom in the U.S.

“These EPA lab-certified tests results are alarming and require immediate action as children are sitting in classrooms every day that vastly exceed the legal health standard,” added Kurt Fehling, a health scientist. “Concentrations that high in the caulk leave no doubt that significant exposure may be occurring.” The Mayor of Malibu, Skylar Peak, also warned the Santa Monica-Malibu School Board “Your school board’s data as well as other independent data, done at credible testing facilities indicates that at least nine buildings [at Malibu High School] exceed the legal allowable standard for PCBs. It’s unsafe.”

Cindy Crawford and numerous other parents have decided to remove their children from Malibu High and home school their children. At the same time, the District is threatening truancy proceedings against children whose parents have requested that their child not attend classes in contaminated classrooms which have high levels of PCBs. Teachers resisting assignment to classrooms with PCBs above federal law have also been threatened with termination.

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

“For the District and EPA to say certain rooms are unsafe but others constructed at the same time from the same materials are just fine makes absolutely no sense,” stated PEER Senior Council Paula Dinerstein who in March 2015 filed a Citizen’s against the District for violations of the Toxic Substances Control Act on behalf of both Malibu teachers and parents. “Air and dust testing have no legal basis and offer no assurance that students and teachers will not be directly exposed to hazardous material. The law requires that these contaminants be removed.”

“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.

Harvard School of Public Health Uses the Santa Monica Malibu Unified School District as a Case Study for What NOT To Do When You Find PCBs in Schools

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/10/28/harvard-school-of-public-healths-uses-the-santa-monica-malibu-unified-school-district-as-a-case-study-of-what-not-to-do-when-you-find-pcbs-in-schools/

Santa Monica Malibu Unified School District 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:

See October 7, 2013 letter below:

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 Resolution 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.

On Tuesday, December 16th, 2014, the district 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.

In fact, 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.

See California Association of School Administrators email to the EPA.

This email was obtained through a freedom of information act request.

Link to email:

California Association of School Administrators Email to EPA

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.”

SMMUSD’s expenditures and approvals to date include:
More than $3.2 million on environmental consultants, primarily to monitor rather than remove toxins;
$775,000 on the environmental defense law firm Pillsbury Winthrop Shaw Pittman, without any litigation pending; and
Tens of thousands of dollars on lodging and travel expenses including a luxury beach “villa” summer rental for $9,000 per month, as well as thousands more on hotels, meals, and travel billed by the environmental engineering firm Environ, even though Environ was hired in part because it is locally based.

The SMMUSD is now threatening to cut Art and other programs but is willing to spend $775,000 on attorneys (Pillsbury), and $3,225,000 on Consultants (Environ) who have been tasked with creating legal obstacles NOT to identify the sources of PCBs. See list of SMMUSD expenditures to date: $5,489,836.05 and rising!

11200986_700561446719884_1823505260638714771_o

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 America Unites for Kids October 29, 2015 letter to Santa Monica Malibu Unified School District’s Superintendent Sandra Lyon concerning new PCB test results showing widespread PCB contamination at Malibu High School:
See New PCB Test Results from Malibu High School:

The Environmental Crimes Section of the District Attorney’s Office is reviewing the latest test results for violations of several California state statutes, including Maintaining a Public Nuisance, in violation of California Penal Code Section 372; Child Endangerment in violation of Penal Code Section 273a; and Failing to Disclose a Serious Concealed Danger in violation of Penal Code Section 387.

41ca7296-de71-4534-b6be-2be448d34592

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

  • 6 teachers with thyroid cancer;
  • 3 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);
  • 9 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.

There is a statistically significant “relationship” between spending your days at Malibu High School and Thyroid Cancer

For details, go to: https://lawofficesofbarryfagan.wordpress.com/2015/06/24/there-is-a-statistically-significant-relationship-between-spending-your-days-at-mhs-and-thyroid-cancer/

The Santa Monica Malibu Unified School District appears to be more interested in attempting to limit their exposure to liability from a toxic tort complaint, rather than to just simply comply with the TSCA, and protect its students and teachers from this continuing harm.

See January 12, 2015 Notice of Intent to Sue:

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

See America Unites for Kids & PEER’s Citizens Lawsuit against the Santa Monica-Malibu Unified School District:

See First Amended Complaint: document-52

See Motion for Preliminary Injunction: document-54

See Reply to Motion for Preliminary Injunction: document-58

See Exhibits in Support of Reply To Motion for Preliminary Injunction: document-59

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

See Plaintiffs’ Motion to Compel due to the SMMUSD’s Refusal to Allow Entry onto Land to Conduct PCB testing: document-71

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

document-96

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

document-97

See America Unites For Kids & PEER’s Reply in Support of Motion:

document-101

https://lawofficesofbarryfagan.files.wordpress.com/2015/09/document-101.pdf

See attached Malibu Times news article concerning a Malibu Parent’s “Call for Action”

http://www.malibutimes.com/opinion/article_b72d0206-e939-11e4-9843-db91a10fb632.html

“It would seem to me that the only way to get this corrupt district to act properly, in addition to the lawsuit, is to boycott the school. If the parents at the schools would keep their children home and put a picket line in front of the schools, the media would attend and the attention would show the world what is going on.

The parents must show that they will not put up with the district ignoring the danger that its policy is putting children in.”

See JD Supra Article dated May 21, 2015:

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

See news articles concerning the SMMUSD Pressing Vandalism and Trespassing Charges Against the Parent who Proved that the Malibu Schools are Contaminated with Toxic Cancer Causing PCBs:

http://westsidetoday.com/2015/11/05/santa-monica-malibu-unified-school-district-want-sheriffs-to-investigate-parent-activists/#comment-123815

http://www.wnd.com/2015/11/mom-who-tested-classroom-for-carcinogens-to-be-charged/

http://fusion.net/story/227803/malibu-schools-pcb-thyroid-cancer/

http://laist.com/2015/11/05/malibu_pcb_case.php

“You can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.”

It’s 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/

Email the Santa Monica Unified School District’s Board of Education: brd@smmusd.org

Advertisements