The Santa Monica Malibu Unified School District’s Motion To Dismiss is Denied and They Are Ordered To Answer the Plaintiffs’ Toxic Substances Control Act Violations Complaint

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

A federal judge has rejected an attempt by the Santa Monica-Malibu school district (SMMUSD) to block a lawsuit by parents and teachers seeking a toxic cleanup of Malibu public schools. Not only may the lawsuit proceed, but the plaintiffs will be allowed to start conducting even more tests on PCB-laden school facilities, testing the district has spent 21 months and over $6 million to avoid.

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. He further indicated that the groups could begin preliminary testing within facilities on the Malibu Middle and High Schools and Juan Cabrillo Elementary School campuses. Filed on March 23, 2015, the suit charges that the schools contain toxic polychlorinated biphenyls (PCBs) in concentrations thousands of times above the safety limits established in the federal Toxic Substances Control Act.

Expert to Community: ‘There Are No Safe Levels of PCB’

Dr. David Carpenter told a group of parents, teachers and community members at a town forum the toxic chemical is unsafe at any level.
For details, go to:

http://patch.com/california/malibu/expert-community-there-are-no-safe-level-pcb-0?utm_source=newsletter-daily&utm_medium=email&utm_term=schools&utm_campaign=newsletter&utm_content=article-topstories

SMMUSD Timeline:

See letter to Sandra Lyon and the SMMUSD’s Board of Directors 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.

The parents and teachers believe that further testing will demonstrate that PCB contamination is wide-spread and that the only solution both to protect kids and teachers and to comply with the law is a thorough investigation to identify and remove all PCBs found to be at illegal levels. In addition, they continue to criticize district testing practices such as leaving windows and doors open for a full day before doing air testing, as well as pre-cleaning surfaces before wipe tests as a way to manipulate results.

America Unites Accuses the SMMUSD of Secret Cleaning

Click Here to Read 

http://malibuunites.com/wp-content/uploads/2014/12/Secret-Cleaning-Before-Dec-PCB-tests.pdf

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:

http://malibuunites.com/in-the-news/local-malibu-news/smmusds-calamity-of-errors-validates-plaintiffs-pcb-lawsuit/

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.

See pdf copies of the Declarations from two Malibu High School Teachers:

DECLARATION OF MALIBU HIGH SCHOOL TEACHER NUMBER ONE

DECLARATION OF MALIBU HIGH SCHOOL TEACHER NUMBER TWO

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

See YouTube Video here:

https://youtu.be/UYn6RZA0l9k

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)

DECLARATION OF MATT DENICOLA RE CALIFORNIA STATE SENATOR BEN ALLEN

incorrect-PE-rooms-remediated

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.
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:

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

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.

The SMMUSD 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.

The TSCA suit now moves into its discovery phase of producing evidence on the actual condition of each pre-1979 building on the three-school complex.

The Court stated the following:

“The Santa Monica Malibu Unified School District have overstated the degree to which the relief Plaintiffs seek conflicts with EPA’s expertise and considered judgment. In ruling on the Motion for Preliminary Injunction, the Court stated that “nothing in the record to date suggests that an order requiring the removal of PCB-containing caulk would be contrary to or interfere with the EPA’s expertise.” Similarly, nothing alleged in the FAC, or that is the subject of judicial notice, suggests that, at a minimum, air and surface wipe sampling at the subject schools would be inconsistent with the EPA’s analysis, policies, or considered judgment.”

“The Court can balance the EPA’s expertise in such matters against Plaintiffs’ rights to pursue a TSCA claim as contemplated by the TSCA’s citizen suit provisions.”

“The Court concludes that the FAC has alleged sufficient facts to satisfy the Twombly plausibility standard that there are locations within the subject schools that have not been subject to air and surface wipe sampling that may exceed the EPA’s thresholds for PCBs and trigger the need for BMPs, thorough cleanings, and potential further testing, including of caulk, within such locations. Such air and surface wipe testing would be consistent with the EPA’s regulatory authority and the prior approvals it has issued to the District. If those tests revealed circumstances requiring additional testing or other measures consistent with the EPA’s approvals, those additional measures would also not interfere with the EPA’s expertise or primary jurisdiction”

“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 the following three pending lawsuits against Monsanto for exposure to PCBs in schools.

1. Town of Princeton’s July 1, 2015 Complaint;

2. Town of Westport’s May 7, 2014 Complaint;

3. Town of Lexington’s September 4, 2012 Complaint lawsuits against Monsanto:

Re: Exposure to Toxic Chemical Compounds known as Polychlorinated Biphenyls (“PCBs”) in schools:

4. See also the City of Spokane’s lawsuit against Monsanto for decades of PCB poisoning:

1. 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.

2. TOWN OF WESTPORT and WESTPORT COMMUNITY SCHOOLS, VS. MONSANTO COMPANY, & SOLUTIA INC., et al

https://lawofficesofbarryfagan.files.wordpress.com/2014/08/docs-20009344-v1-complaint_-_original_file_stamped.pdf

http://www.jdsupra.com/legalnews/complaint-against-monsanto-re-exposure-78358

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

http://www.jdsupra.com/legalnews/monsantos-answer-to-the-town-of-wesport-84120/

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

http://www.jdsupra.com/legalnews/the-town-of-lexingtons-complaint-agains-87554/

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

http://www.jdsupra.com/legalnews/the-city-of-spokane-has-sued-monsanto-fo-39589/

These lawsuits also 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.

Monsanto facts:

The below listed links shows 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.
1. Monsanto’s internal records from the Anniston court case:
2. Monsanto tells their employees they cannot each lunch in aroclor process department because vapors could contaminate food, get on hands and ingest. Monsanto has no way to counter claims based on the current literature claiming PCBs are toxic if ingested or inhaled. 
3. The US Navy told Monsanto in 1957 that they would not use their products with aroclors in their subs because they were too toxic. The Navy did a study on rabbits and they developed “definite liver damage”. This was at .2 ppm for 24 hours a day for 50 days:
4. Monsanto’s response to the US Navy:
5. Two men inhale PCBs from a broken pipe and develop symptoms of hepatitis:
6. PCBs as plasticizers are dangerous to touch. Monsanto says they have done inhalation studies and if sufficient material were inhaled liver problems would occur:
7. Monsanto memo tells sales people to persuade customers to keep 1254:
8. Monsanto knew that the continued use of 1254 is hazardous:
9. Monsanto’s defense strategy:

10. Monsato’s Q & A in 1979:

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

Student v Wendy Wax Gellis & SMMUSD:

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 family alleges that an example of retaliatory action taken by Wendy Wax Gellis and the SMMUSD 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 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/

Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

For details of this pending litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

Student vs. Santa Monica Malibu Unified School District (SMMUSD) et al

LOS ANGELES SUPERIOR COURT COMPLAINT

SPECIAL INTERROGATORY NO. 13:

LIST THE FULL NAME AND JOB TITLE OF THOSE INDIVIDUALS AT SMMUSD (AND/OR MALIBU HIGH SCHOOL) RESPONSIBLE AMENDING/REVERSING CANCELING AND OR OTHERWISE MODIFYING THE DISCIPLINARY SUSPENSION OF DEFENDANT SEBASTIAN SARTORIUS ISSUED IN OR AROUND NOVEMBER 2012.

RESPONSE TO SPECIAL INTERROGATORY NO. 13:

SANDRA LYON, SUPERINTENDENT OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT.

THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT WILL FIGHT PARENTS AND STUDENTS IN COURT EVEN WHEN THEY KNOW THAT THEY ARE WRONG

https://lawofficesofbarryfagan.wordpress.com/2015/10/16/the-santa-monica-malibu-unified-school-district-will-fight-parents-and-students-in-court-even-when-they-know-that-they-are-wrong/

The SMMUSD 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.

The Santa Monica-Malibu Unified School District has thereby put the health of their students and teachers at risk.

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

IT’S TIME TO FIRE THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT’S 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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