The Santa Monica Malibu Unified School District is Ordered to Stand Trial on May 17, 2016 for Failure to Protect Students & Teachers from Toxic Levels of PCBs

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

On Aug 13th, 2015, Judge Percy Anderson ordered trial to begin on May 17th, 2016.

See Judge Percy Anderson’s Civil Trial Orders:

  1. document-92
  2. document-93

See Joint Report for the Rule 26 (f) Scheduling Conference:

document-94

The law firm of Pillsbury, Winthrop, Shaw & Pitman attempted to delay the trial until Feb 2017, which if they were successful would have allowed the Santa Monica Malibu Unified School District (SMMUSD) to knowingly force children and teachers into toxic classrooms for a 4th straight year.
The SMMUSD continues to stonewall source testing. Students’ and District staff health is at risk.

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.

These rooms then tested at 570,000 ppm of PCBs! The highest level ever found in the NATION!
This public records request proves that Sandra Lyon knew and was asked by the Juan Cabrillo principal when Lyon was going to tell teachers and parents about it (which was never!) Anyone thinking Child endangerment?
Click on picture to expand:

America Unites For Kids has fielded hundreds of phone calls and emails regarding the SMMUSD’s summer PCB remediation activities. Based on multiple reports by parents, America Unites For Kids and PEER can assess that only partial PCB removal has occurred in some rooms, which means that the SMMUSD did not remediate all windows and all doors, let alone do any remediation in adjacent rooms.


Despite the fact that PCBs were found at levels up to 470,000 ppm in room 506, and 505, the district failed to test the only other room in that building which is the special education room.
Why would the district assume that this sole room in a building would not also have high levels of PCBs, knowingly leaving special education students in highly toxic classrooms? 
America Unites For Kids and PEER fully expect the SMMUSD to release a statement declaring that PCB removal was successful and all test results are safe but given that the SMMUSD did not have any oversight, nor did they provide the public a with a plan, their claims cannot be verified.

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

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:

See letter to Sandra Lyon and SMMUSD Board of Education:

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

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

In fact the SMMUSD has been accused of manipulating prior test results:

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.

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)

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

The EPA is Rolling Back PCB Safeguards and Has Significantly Raised the Toxic Exposure levels for Our Nation’s Children

https://lawofficesofbarryfagan.wordpress.com/2015/08/22/the-epa-is-rolling-back-pcb-safeguards-and-has-significantly-raised-the-toxic-exposure-levels-for-our-nations-children/

See link to the comparison between the new EPA and old EPA guidance:

http://www.peer.org/assets/docs/epa/8_20_15_Comparison_EPA_PCB_guidance.pdf

See attached pdf copy:

8_20_15_Comparison_EPA_PCB_guidance

See Link to News Article Concerning the EPA’s Stealth Rollback of School PCB Safeguards:

http://www.sonorannews.com/archives/2015/150826/news-EPA.html

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.

New test results posted by the Santa Monica-Malibu school district (SMMUSD) show nine classrooms and other facilities containing toxic polychlorinated biphenyls (PCBs) in concentrations up to 11,000 times above federal safety limits.

The new test results prepared by the district’s own consultant showed PCB levels ranging from 330 parts-per-million to 570,000 ppm, meaning that over 50% of the caulk sample was pure PCB, a cancer-causing, banned chemical. By contrast, the federal safety limit is just 50 ppm. Despite these extremely high levels of a highly toxic chemical banned by Congress, all of these rooms are still in use by students and teachers of the combined elementary, middle and high school campuses. Elementary school special needs students are occupying a classroom tested at 470,000 ppm.

The troubling nature of these ultra-high results is compounded by the manner of their release

America Unites and PEER had arranged independent testing of the caulking in these same rooms showing similar high levels. The district ignored these findings and only tested these rooms after the groups filed their Notice of Intent to Sue – and their own findings were much higher than the independent samples. Despite this verification, the district still opposes school-wide testing of the caulking;

At the school board meeting on March 19, 2015, the district’s own consultant, Douglas Daugherty of Environ, contended that independent tests could not be verified. In fact at that time, the consultant already had in his possession, test results reflecting PCB concentrations that were significantly higher.

See Environs most recent test results which reveal that students and teachers are exposed to shockingly high PCB levels:

3_25_15_New_malibu_test_results

“What school district officials have done is monstrous – they are deliberately keeping students and teachers in highly toxic classrooms with no precautions to prevent direct contact with PCBs,” stated PEER Senior Counsel Paula Dinerstein. “These results are the smoking gun evidence, from its own gun, that the district is in flagrant violation of the Toxic Substances Control Act.”

“I am stunned that district officials and their consultants stood in front of us on Thursday evening and did not disclose these extraordinarily high test results!” said Jennifer DeNicola, President of America Unites for Kids. “This illustrates to all of us that the district is going to stop at nothing, including withholding evidence, to defend their indefensible position to leave illegal levels of PCBs in the schools which put students and teachers in harm’s way.”

The SMMUSD is also spending an outrageous amount of money.

See list of SMMUSD expenditures to date: Over $6,500,000 and still rising!

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July 15, 2015
Aug 12, 2015

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

Purchase-Orders-Approved-at-Board-Meetings2

On May 11, 2015 a Malibu Parent stated the following: ” Frankly I am concerned with how they manage money for all schools in our district. Appointing people to lead our funding who have foolishly squandered the money and do the blame game instead of problem solving is the real issue.” malibubeach posted at 6:27 am on Mon, May 11, 2015. 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.

Sources:

See JD Supra Article dated May 21, 2015:

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

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.)

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.

if the classroom has no color coding, then the caulking has not been tested. Avoiding testing the caulk does not make it legal to keep in place, nor does it protect the health of students and staff

41ca7296-de71-4534-b6be-2be448d34592

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

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:

  1.  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/

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

For details of this other pending United States District Court for the Central District of California lawsuit, go to:

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

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, 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/

      3. Superintendent Sandra Lyon’s Errors in Judgment:

“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”

April 07, 2014|By Robin Abcarian (LA Times Reporter)

http://articles.latimes.com/2014/apr/07/local/la-me-ra-santa-monica-teacher-was-right-20140407

http://patch.com/california/santamonica/fire-sandra-lyons

https://www.change.org/p/sandra-lyon-and-smmusd-school-board-an-apology-from-superintendent-sandra-lyon-to-mark-black-for-throwing-him-and-all-teachers-under-the-bus-as-well-as-for-making-a-biased-inflammatory-response-to-mark-s-heroic-classroom-actions

       4. 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/

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

IMAG0391Student 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.

5. Superintendent Sandra Lyon ordered the use of Fumitoxins and Strychnine on Saturday, Aug 22, 2015 at Malibu High School, Juan Cabrillo and Webster Elementary schools despite hundreds of letters from parents in protest.

Sandra Lyon’s reckless actions put kids and wildlife at risk. The Fumitoxin Tablet warning label says that re-occupancy cannot occur for a minimum of 72 hours, but based on the weather in Malibu, more likely 5 days. Sandra Lyon told parents that in 48 hours kids could return to the fields.

See America Unites For Kids Freedom of Information Act request dated Aug 22, 2015:

Freedom Of Info Act Dec 22-1

America Unites for Kids link to Change.org’s Petition:

Petitioning SMMUSD Board of Education and Superintendent Sandra Lyon

Stop Poisoning our Children and our Environment

https://www.change.org/p/smmusd-board-of-education-and-superintendent-sandra-lyon-stop-poisoning-our-children-and-our-environment?recruiter=92014425&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_facebook_responsive&utm_term=des-md-no_src-custom_msg&fb_ref=Default

        6. The SMMUSD’s failure to identify and remove all PCBs:

An example is provided below in the photo of the wood shop room (506) where only 2 of 11 doors and no windows were remediated. The brown paint around the door frames are epoxy coating that is encapsulating PCB remediation waste. Notice that even the windows in between have no epoxy. 

Tell EPA: Protect children! Enforce the law and remove toxic PCBs from our nation’s schools.

https://www.change.org/p/barbara-boxer-ted-lieu-dianne-feinstein-kamala-harris-tell-epa-protect-children-enforce-the-law-and-remove-toxic-pcbs-from-our-nation-s-schools#petition-letter

 
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