Malibu Schools Drain $8 Million From SMMUSD In Legal Fees
For details, go to:
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
Plaintiffs, two non-profit organizations, bring this citizen’s suit action to restrain clear violations, in excess of 10,000 times the allowable limits, of the Toxic Substances Control Act (“TSCA”) at the Malibu Middle and High School (“MHS”) and Juan Cabrillo Elementary School (“JCES”) (collectively, the “School”), which are part of the Santa Monica-Malibu Unified School District (the “SMMUSD”).
Expert to Community: ‘There Are No Safe Levels of PCB’
Parents battle district over toxic PCBs in Malibu public schools
For details, go to:
The attached Declarations from two Malibu High School teachers includes evidence from 33 other Malibu High School teachers that the Santa Monica Malibu Unified School District (SMMUSD) is not complying with their Best Management Practices (BMPs) and is in violation of the EPA Region 9’s guidelines.
Exhibit B to Katy Lapajne’s declaration includes evidence that thirty three (33) Malibu High school teachers have written a letter dated January 15, 2016 to the Santa Monica Malibu Unified School District declaring that the School District’s facilities manager Cary Upton admitted on January 8, 2016 that the SMMUSD’s Best Managements Practices (BMPs) for reducing concentrations of toxic PCBs and, therefore, potential exposure to PCBs has not been taking place at all. (See page 2 paragraph 17 of Teacher Number One’s Declaration)
See pdf copies of the Declarations from two Malibu High School Teachers:
See Video of Malibu High School Teacher’s Plea to the SMMUSD’s Board of Education for PCB-free Classrooms:
The attached declaration from Malibu High School Parent Matt DeNicola declares that former SMMUSD Board of Education member Ben Allen, now California State Senator Ben Allen admitted in September 2014 that the SMMUSD Board of Education chose not to test for PCBs, because they knew that they would find illegal levels of toxic PCBs and be forced to remove them under the TSCA. (See Matt DeNicola Declaration, pg. 1, paragraph 2)
See Declaration from Malibu High School Teacher Carla Bowman Smith declaring that Malibu High School’s condition is horrific, and is infested with rats, feces and urine:
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:
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:
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:
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.
Instead of remediating, the SMMUSD has spent approx. $8,000,000 on lawyers and environmental and public relations consultants to “manage in place” the illegal contamination and try to convince the community that the School is safe.
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 just some of the SMMUSD’s $8 million in expenditures to date: $5,489,836.05 plus an additional $500,000 has been approved by the school board!
Also amazingly, the United States Environmental Protection Agency. (the “EPA”) appears to be letting the Defendants get away with this brazen violation of the law. Congress expressly provided for citizen’s suits to enforce TSCA where as here, the EPA is not enforcing the law.
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)
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:
The EPA is Rolling Back PCB Safeguards and Has Significantly Raised the Toxic Exposure levels for Our Nation’s Children
See link to the comparison between the new EPA and old EPA guidance:
See attached pdf copy:
See Link to News Article Concerning the EPA’s Stealth Rollback of School PCB Safeguards:
“The central purpose of citizen’s suits is to allow citizens to abate pollution when the government cannot or will not command compliance.”
Plaintiffs will suffer irreparable injury if the preliminary injunction is not granted. PCBs bioaccumulate in humans, and every day that students and teachers are exposed to these highly-toxic substances increases their chances of contracting cancer or other serious diseases linked to PCBs.
Students and teachers should not be required to study and learn in an illegal and contaminated environment for another school year. Nor should parents have to make the difficult choice of finding another school for their children or risking their children’s health.
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 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.
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:
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.
Declaration of renowned PCB Expert Dr. David Carpenter confirming that PCBs at Malibu High School greatly exceed legal limits under the TSCA, and inhalation of PCB vapors constitutes a continuous hazard to teachers and students:
See pdf copy of Dr. David Carpenter’s Declaration:
“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.
See Expert Opinion and Peer-Reviewed Study of Dr. David Capenter Re: PCBs in Malibu Schools:
David O. Carpenter *
Exposure to and health effects of volatile PCBs
ON OCTOBER 24, 2015 AMERICA UNITES FOR KIDS RELEASED ADDITIONAL DISCOVERY CONCERNING SUPERINTENDENT SANDRA LYON
In 2013-14, Superintendent Sandra Lyon did not tell Malibu High School teachers and parents that their children were occupying classrooms that the previous teacher just reported having thyroid cancer as well as other previous teachers also having cancer.
CURRENT HEALTH ISSUES WITH STUDENTS AND TEACHERS IN MALIBU SCHOOLS
The City of Malibu Unanimously Passes a Resolution to Form an Independent Malibu Unified School District
See link to Resolution here: CC150916_Item-1
America Unites For Kids and PEER’s Notice alleged that the illegal PCB contamination was 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.
The Court should issue the requested injunction because Plaintiffs have demonstrated a clear basis for it, and because a prohibitory order maintaining the status quo would be inadequate to prevent the Santa Monica Malibu Unified School District from continuing to violate TSCA and would endanger students’ and teachers’ health.
On May 8, 2015 the Court 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 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
“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 Plaintiffs’ Motion to Compel due to Refusal to Allow Entry onto Land to Conduct PCB testing: document-71
See the attached Santa Monica-Malibu Unified School District’s ANSWER to the TSCA Complaint: document-79
See Malibu Times news article concerning a Malibu Parent’s “Call for Action”
“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:
See the Town of Princeton’s July 1, 2015, the Town of Westport’s May 7, 2014, and the Town of Lexington’s September 4, 2012 lawsuits against Monsanto:
Re: Exposure to Toxic Chemical Compounds known as Polychlorinated Biphenyls (“PCBs”) in schools:
See also the City of Spokane’s July 31, 2015 Complaint against Monsanto for decades of PCB poisoning.
2. TOWN OF WESTPORT and WESTPORT COMMUNITY SCHOOLS, VS. MONSANTO COMPANY, & SOLUTIA INC., et al
Monsanto’s Answer to the Town of Westport’s Complaint. Re: Exposure to Toxic Chemical Compounds known as Polychlorinated Biphenyls (“PCBs”) see link: document-83
3. TOWN OF LEXINGTON vs. PHARMACIA LLC, SOLUTIA INC., and MONSANTO COMPANY
See Town of Lexinton’s Complaint against Monsanto. Re: Exposure to Toxic Chemical Compounds known as Polychlorinated Biphenyls (“PCBs”) see link: document-84
4. CITY OF SPOKANE vs. MONSANTO COMPANY, SOLUTIA INC., and PHARMACIA CORPORATION
See City of Spokane’s Complaint against Monsanto for Decades of PCB Poisoning: document-90
These four lawsuits allege that Monsanto knew then that PCBs were toxic and could not be contained as they readily escaped into the environment finding their way into bays, oceans, lakes, rivers, streams, soil, and air. Although Monsanto recognized internally that PCBs were becoming “a global contaminant,” Monsanto concealed this information and increased production of these profitable compounds.
10. Monsato’s Q & A in 1979:
See pdf copy:
See link to Change.org Petition:
Email the Santa Monica Unified School District’s Board of Education:
|Oscar de la Torre
|Dr. Jose Escarce