The Santa Monica Malibu Unified School District Would Rather Charge Parents with Vandalism than to Remediate its PCB Contaminated 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

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.

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.

For more than a year, significant independent sampling has taken place on the campus complex, showing extremely high and illegal levels of PCBs remain even in areas supposedly remediated by the district.

The resulting certified lab results have been filed with EPA, state officials and the L.A. County District Attorney’s Office. U.S. Representative Ted Lieu (D-CA) personally transmitted the most recent independent test results to EPA’s Gina McCarthy.

See Congressman Ted Lieu’s letter To America Unites For Kids regarding the October 2015 PCB Test Results to EPA’s Administrator Gina McCarthy:

10_29_15_Letter_from_Congressman_Lieu_to_America_Unites

See PCB test results here:

10_29_15_Malibu_lab_results

In March 2015, PEER and a parents group filed a federal lawsuit under the Toxic Substances Control Act against the SMMUSD Superintendent Sandra Lyon and Board for failing to remove illegal PCB-contaminated materials. The district and its retained counsel are fiercely resisting any further caulk testing at the schools.

District officials recently informed teachers and parents that it had filed a criminal vandalism complaint against a parent for taking caulk samples.

At the same time, the Santa Monica Malibu Unified School District also did the following:

Threatened to seek prosecution of anyone who aids or even encourages the testing “no matter how seemingly insignificant that person’s role may be”;

Intimated obstruction of justice charges for refusal to cooperate with the investigation; and

Blocked teachers who wanted to move out of the most contaminated classrooms with proposed disciplinary action, even as two more cases of thyroid-related illness have been reported just in the past two days, including a former Malibu High teacher diagnosed with thyroid cancer who worked in classrooms with verified PCBs.

“It is utterly inappropriate to threaten parents for trying to make sure their children’s school is safe or teachers for protecting their own health,” stated PEER Senior Counsel Paula Dinerstein, noting the irony that the district’s latest heavy-handed measures came amidst a school anti-bullying campaign.

“The real criminal activity is maintaining a sick school and blocking a comprehensive cleanup.”

Two elected members of the SMMUSD have condemned the criminal complaint, as have several staff members, including the school librarian who decried the “administration’s hounding of staff members for statements and the threat of prosecution.” (See attached email from School Librarian Suzanne Moscoso)

See School Librarian’s email here:

11_4_15_Librarian response

The cost of fully remediating all three schools has been estimated below $1.5 million. But since PCB contamination on campus was first revealed to parents and teachers in October 2013, the district has spent close to $7 million on legal fees and environmental consultants in an effort to limit its liability and reassure parents that the campus – despite mounting evidence to the contrary – is “safe.”

“This perverse district has spent far more fighting a cleanup that what the cleanup would cost,” observed Dinerstein.

“What is occurring in Malibu is the epitome of educational malpractice.”

Santa Monica Malibu Unified School District’s 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:

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.

Instead of remediating, the SMMUSD has spent approx. $6,500,000 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 SMMUSD expenditures to date: $5,489,836.05 plus an additional $500,000 has been approved by the school board!

11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015
Purchase-Orders-Approved-at-Board-Meetings2

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

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:

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

 

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

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

http://patch.com/california/malibu/school-district-seeks-charges-against-malibu-mom-who-tested-classroom-materials-carcinogens

District Attorney Will not Pursue Charges for Alleged MHS Vandalism

Allegations are dead in the water for school district.

For details, go to:

http://www.malibutimes.com/news/article_b0f6aaea-9325-11e5-8f3e-ef8159f51eb2.html

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.

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:

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/

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