THE SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT HAS FAILED TO PROTECT ITS STUDENTS AND TEACHERS FROM EXPOSURE TO CANCER CAUSING PCBs

Compare PCBs found in Malibu, CA to PCBs found in Worcester, Massachusetts

The town of Princeton has filed a lawsuit against Monsanto asking them for $700,000 in costs to remove toxic PCBs in the caulking at their elementary schools. In April 2011, high levels of the hazardous chemical were found in window caulking and glazing when the Wachusett Regional School District was preparing to replace some windows in the Thomas Prince School. The school, which serves students from kindergarten to eighth grade, was constructed in 1962. PCBs above appropriate levels in Environmental Protection Agency guidelines were also detected in other areas of the original portion of the school. No elevated levels of PCBs were found in a 1991 addition to the school.

As a result of the contamination, students in Grades 3 and 4 had to be bused to a school in Rutland during the 2011-12 school year while PCB remediation was completed. The school district incurred costs over $700,000. Additional costs are anticipated as the town continues to test and monitor for PCBs at the school.

The SMMUSD continues to stonewall source testing and ignore even the rooms directly next door to contaminated rooms, let alone the rest of the school. Malibu Parents and teachers have asked for portables and SMMUSD Superintendent Sandra Lyon has refused to do so; students and staff are occupying toxic classrooms 5 days a week, 7 hours a day.

Links to Town of Princeton News Article:

http://m.telegram.com/article/20150702/NEWS/150709696

http://www.thelandmark.com/news/2013-01-24/Princeton_News/Princeton_joins_PCB_lawsuit.html

TOWN OF PRINCETON vs. PHARMACIA LLC, SOLUTIA INC., and MONSANTO COMPANY
The lawsuit alleges that Monsanto knew of the toxicity of PCBs as early as the 1930s, but continued to manufacture, sell and promote the products. Even after the toxicity hazard of PCBs was established by experts, Monsanto continued to promote the product.

Compare PCBs found in Malibu, CA to PCBs found in Hartford, CT

December 2014, PCBs were found at Clark School in Hartford, CT when installing a fire alarm system. Contractor was required to test for PCBs. (Malibu had fire alarms installed, why didn’t the SMMUSD test for PCBs?)

Hartford Superintendent Beth Schiavino-Narvaez closed Clark school and moved kids and staff to another location because she wasn’t willing to put anyone at risk. (Malibu Parents and teachers have asked for portables and SMMUSD Superintendent Sandra Lyon has refused; students and staff are occupying toxic classrooms 5 days a week, 7 hours a day)

The Hartford, CT school district has taken only two months to identify PCB sources, and begin removal plans, while the SMMUSD has had well over 1 1/2 years to identify PCB sources, and begin their removal plan. Hartford’s removal will occur immediately so students and staff can safely return to a PCB-free school for the 2015-2016 school year. However, the SMMUSD has chosen not to do anything about identifying all PCB sources and has chosen to leave most PCBs in place.

Highest level of PCBs found in Hartford, CT was 1,940 times the federal limit  while some Malibu test results shows PCBs are 11000 times the federal limit.

2 months after PCBs were discovered Hartford, CT has a plan to remove the PCBs from the school.

1.5 years later, the SMMUSD still has no plan to remove all of the PCBs.

Hartford Superintendent spent $40,000 to identify PCB sources. SMMUSD’s Superintendent Sandra Lyon has spent $6 million on attorneys fees, and consultants that will not solve the PCB problem. Air and dust testing will continue each year until PCB sources are identified and removed.

Links to Hartford, CT News Articles:

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

http://touch.courant.com/#section/-1/article/p2p-83034403/

Summary of SMMUSD facts:

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 letter to the SMMUSD, and the City of Malibu September 2014 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 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.

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. (The three teachers with thyroid cancer all taught in classrooms with toxic illegal levels of PCB in caulk or with wipe samples considered “PCB Contaminated” under the PCB Regulations. As of today, at least three student alumni have also been diagnosed with thyroid cancer. There are also at least 14 known cases of thyroid disease among teachers, and three cases of melanoma or pre-melanoma (a cancer which is also associated with exposure to PCBs) among teachers and former teachers, as well as other serious health problems.)

See Environs most recent test results which reveal shockingly high PCB exposure:

3_25_15_New_malibu_test_results

See the many test results which reveal shockingly high PCB exposure at Malibu High School and Jaun Cabrillo Elementary School:

7_17_14 Malibu_PCB_lab_results1-1

9_23_14_Latest_Malibu_test_results

10_17_14_PCB 126 lab report J Cabrillo

10_17_14_PCB 126 lab report MHS

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/

if the classroom has no color coding, then the caulking has not been tested.

41ca7296-de71-4534-b6be-2be448d34592

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.

 

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.

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.”

The SMMUSD is spending an outrageous amount of money on lawyers and consultants.

See list of just some of the SMMUSD’s $8 million in expenditures to date:

11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015

The SMMUSD continues to stonewall source testing and they ignore even the rooms directly next door to contaminated rooms. Students’ and District staff health is at risk. If the caulking is the same color, kind and installed at the same time in the same building, then it is probable that all rooms also have PCBs over the legal limit.

Avoiding testing the caulking does not make it legal to keep in place, nor does it protect health of students and staff. In 2010, ARCADIS concluded that the PCBs and pesticides in the soil posed an “unacceptable health risk” and proposed a removal action plan. 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. http://fip.smmusd.org/downloads/MalibuMHS_Removal.pdf

In a bizarre twist, public school officials have filed a police report against a Malibu parent who allegedly took samples of window caulking from school buildings to test for toxic polychlorinated biphenyls (PCBs), according to documents released by Public Employees for Environmental Responsibility (PEER).

Santa Monica-Malibu Unified School District (SMMUSD) is also actively looking for teachers and other community members who may be involved, even as two elected board members have condemned the effort. (see attached emails from Board members Craig Foster and Oscar de la Torre)

See School Board Member emails here:

11_4_15_SMMUSD_board_members_protest

For two years Malibu Middle and High School and Juan Cabrillo Elementary School have been in an uproar as more than 30 Malibu teachers and alumni have come forward with serious health issues known to be related to PCB exposure.

In the following two years, three teachers then working at the MHs campus were diagnosed with thyroid cancer – a disease with an expected annual incidence of 1.29 per 10,000 Americans. The three teachers with thyroid cancer all taught in classrooms with toxic illegal levels of PCB in caulk or with wipe samples considered “PCB Contaminated” under the PCB Regulations.

DISTRICT ERROR CAUSES TEACHER WITH THYROID CANCER TO REMAIN IN TOXIC CLASSROOM

Defendant’s Calamity of Errors Validates Plaintiff’s PCB Lawsuit

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/09/25/the-santa-monica-malibu-unified-school-districts-error-causes-teacher-with-thyroid-cancer-to-remain-in-toxic-classroom/

See map:

incorrect-PE-rooms-remediated

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

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 Congressman Ted Lieu’s letter to Jennifer DeNicola regarding Malibu High School’s latest PCB Test Results being sent to EPA’s Administrator Gina McCarthy:

10_29_15_Letter_from_Congressman_Lieu_to_America_Unites

See New PCB Test Results from Malibu High School:

America Unites for Kids Seeks Retraction from the Santa Monica Malibu Classroom Teachers Association for Misleading, Libelous and Inaccurate Statements Concerning PCB Contamination in Malibu Schools

See America Unites for Kids November 23, 2015 letter to SMMCTA:

Letter to SMMCTA Sarah Braff

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

“The fact that Malibu High School and Jaun Carillo Elementary School contain caulking with PCB levels orders of magnitude above even the most conservative PEL estimates is egregious.” -Ferbas

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

Ferbas-health-letter

Hartford, CT School District has demonstrated how effective and fiscally responsible a school district can be when discovering PCBs in schools. Investigation and removal can be completed in a short period of time with little impact on the students and staff.

Contrary to the Santa Monica Malibu Unified School District’s claim, the EPA has not approved the District’s plan regarding removal of caulk from the 10 PI Rooms.

The City of Malibu Unanimously Passes a Resolution to Form an Independent Malibu Unified School District

See link to Resolution here: CC150916_Item-1

All of which has caused America Unites for Kids and PEER to file a citizen’s suit against the SMMUSD.

See link to America Unites for Kids and PEER’s First Amended Complaint against the SMMUSD:

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/document-52.pdf

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

The Santa Monica Malibu Unified School District’s cynical decision to conduct only limited testing of the caulk has made it impossible for Plaintiffs to detail all the locations throughout the School where PCB contamination can be found.

However, it is a virtual certainty that the contamination is widespread throughout Malibu High School and Jaun Cabrillo Elementary School.

America Unites For Kids and PEER’s citizen’s suit alleges that the illegal PCB contamination is throughout these two Schools.

There is no provision in Section 761.20(a) for EPA to review or approve a plan to remove manufactured material (such as PCB contaminated caulk) containing PCB at over 50 ppm.

The use of any such PCB contaminated caulk is per se illegal. By contrast, removal of PCB remediation waste (such as PCB migrating from the caulk to the substrate) is subject to EPA review and approval under 40 C.F.R. § 761.61(c)4, which is what has occurred here.

The fact that EPA Region 9 is not enforcing the law is exactly what TSCA’s citizen suit provision was meant to address: situations where the government “cannot or will not command compliance” with the law. Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 62 (1987).

Finally, contrary to what the Santa Monica Malibu Unified District has repeatedly told the Court, the EPA did not find that allowing caulk containing illegal levels of PCBs over 11,000 times the legal level to remain in place was safe.

On May 8, 2015 the Court in America Unites for Kids & PEER vs. 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…”

Despite this Court Order, the SMMUSD filed a Motion to Dismiss and has opposed Plaintiff’s request to access the property and test the PCB laden caulk.

Just what is the Santa Monica-Malibu Unified School District spending so much money on hiding from the public?

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 Refusal to Allow Entry onto Land to Conduct PCB testing: document-71

The June 15, 2015 order by U.S. District Court Judge Percy Anderson rejected the SMMUSD motion to dismiss the suit, which he also found “had established a likelihood of success” on the merits.

“For all of the foregoing reasons, the Court denies Defendants’ Motion to Dismiss. Defendants shall Answer the FAC no later than June 29, 2015.”

IT IS SO ORDERED.

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

See attached Order of the Court dated June 15, 2015: document-75

See the attached Santa Monica-Malibu Unified School District’s ANSWER to the TSCA Complaint: document-79

See JD Supra Articles:

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

http://www.jdsupra.com/legalnews/there-is-a-statistically-significant-re-43492/

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

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

Other SMMUSD litigation and errors in judgment:

There are many other troubling issues with the Santa Monica Malibu Unified School District

Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services

For details of this other pending Federal lawsuit go to:

Student v Wendy Wax Gellis & Santa Monica Malibu Unified School District:

This lawsuit alleges that the SMMUSD and Wendy Wax Gellis are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police.

Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services.

See link to News Article here: http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

The lawsuit alleges that an example of retaliatory action by the SMMUSD and Wendy Wax Gellis taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).

The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.

For details of this pending Federal lawsuit go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

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