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Court Rejects School District’s Attempt To End Suit Over Toxic Malibu Schools

SMMUSDU.S. District Court Judge Percy Anderson on Monday rejected the Santa Monica-Malibu School District’s latest attempt to prevent a trial over its failure to protect public school students and teachers from cancer-causing chemicals known as PCBs.

Judge Anderson denied the school district’s motion for summary judgment despite its cynical strategy of restricting PCB testing to bolster its defense against a federal Citizen Suit that seeks a court order compelling the removal of hazardous PCBs from Malibu public schools. The suit seeks no monetary damages. Trial is scheduled for May 17, 2016 in Los Angeles.

The school district has taken the preposterous position that there is no evidence that PCBs exist on its campuses outside of precise areas that have already tested positive, and it has refused testing of any other areas — even of adjacent classrooms built at the same time; even of adjacent windows or doors installed at the same time. PCBs were commonly used in construction materials including window and door caulking until PCBs were completely banned by Congress.

The school district argues that rather than investigate or remove similar caulk to that which tested above legal limits, its application of so-called “Best Management Practices” (essentially wiping surfaces with wet rags) is sufficient, despite it being a violation of Federal law – a law created because Congress determined that PCBs are an unacceptable risk to human health. 

Judge Anderson wrote in his ruling: “[T]he District’s own testing has shown PCBs in excess of 50 ppm [parts-per-million] in multiple rooms in six different buildings on the Malibu Campus, 70% of the rooms tested by the District contained PCBs in excess of 50 ppm, 28 out of 32 samples taken by the district contained PCBs above 50 ppm, with most above 100,000 ppm, many of the buildings on the Malibu Campus were built prior to 1979, and caulk and other materials containing PCBs were used in schools built from the 1950s through the 1970s.”

The court also found evidence, from affidavits from custodians, that the school district was not even implementing the promised “Best Management Practices” supposedly designed to reduce levels of toxic exposure in classrooms.

Judge Anderson concluded: “In reviewing the admissible evidence, and drawing reasonable inferences from that evidence, the Court concludes that triable issues of fact exist concerning the continued ‘use’ of PCBs at the Malibu Campus despite the remediation work performed to date by the District. The Court additionally concludes that evidence suggesting that the District has failed to implement and consistently employ BMPs as contemplated by the EPA’s approvals calls into question the amount of deference the Court should give to the District’s purported compliance with the EPA’s guidelines and approvals. For all of the foregoing reasons, the Court denies Defendants’ Motion for Summary Judgment.”

The Citizen Suit, to enforce Federal law, was brought by America Unites for Kids, on behalf of parents, and Public Employees for Environmental Responsibility (PEER), representing teachers.

“We are ready to go to trial as the evidence, sworn testimony and scientific research will reveal the truth — that Malibu public school classrooms are laden with illegal levels of cancer-causing chemicals that must be removed,” said Jennifer deNicola, a Malibu High School parent who heads America Unites for Kids. “It is incomprehensible that in the past two years the district has spent $10 million to mislead parents and the court about the existence of PCBs rather than be honest and work with the parents to remove PCBs and make our public schools safe.”

“We hope this ruling convinces the district to end its scorched earth legal approach and embrace a solution which puts the health of students, teachers and staff in the forefront,” stated PEER Senior Counsel Paula Dinerstein, noting that the overwhelming percentage of the district’s own test results show illegal levels of PCBs.  “The district’s legal bills already dwarf what it would have cost to clean up all three campuses – and we haven’t even gone to trial yet.”

The Citizen’s Suit was filed after the school district refused to remove toxic PCBs at an estimated cost of $750,000 to $1.5 million. The district’s legal bills to fight removal and the Citizen’s Suit have now hit at least $3.38 million. When consultants and other PCB related costs are factored in, the tab exceeds $10 million.

Parents and teachers are concerned that PCB exposure in the Malibu schools may be behind at least 30 cases of thyroid cancer, thyroid disease and melanoma. The World Health Organization has determined that PCBs are human carcinogens because of scientific research connecting them to melanoma, breast cancer, and thyroid cancer. PCBs have been linked to a variety of other cancers and  illnesses, as well as lower IQ, behavioral problems and  developmental issues. PCBs were commonly used in construction materials until they were banned Congress in 1976. PCBs were found in Malibu Schools more than two and a half years ago when the Santa Monica-Malibu Unified School District tested window caulking after three teachers were diagnosed with thyroid cancer within months of one another.

Then, in 2015, the school district tested 24 areas at Malibu High School and Juan Cabrillo Elementary School for PCBs. All 24 tested positive. The results from one classroom tested at 570,000 parts-per-million (ppm), 11,000 times the legal limit,  which is the highest PCB level ever recorded in an American school. This dramatically exceeds the allowable U.S. Environmental Protection Agency (EPA) threshold of 50 ppm. Despite this evidence, instead of conducting more testing to determine the extent of PCB contamination at the school and removing it all, the district halted testing.

Experts have stated that upon finding results such as the district has found, the logical course of action would be to either continue testing to determine the nature and extent of the contamination, or simply assume that all like materials in the schools are contaminated. Shockingly, the district refused any additional testing or removal, following a legal strategy of  “don’t ask, don’t tell”  wherein they do not recognize the potential for toxicity outside of the specific spot tested.

Experts also say the only way to eliminate the risk to students and teachers is to remove toxic PCBs, and Federal law requires removal.

“What’s happening in Flint is happening here – kids are being poisoned because our government is ignoring and covering up the facts and simply not doing its job. They are wasting millions of tax dollars that should be spent on books and teachers, and not on lawyers to cover up PCB contamination. These are kids, our nation’s greatest asset and our future leaders, and they are putting their health, intelligence and development at risk. It’s a national tragedy that is affecting the kids in Malibu and 20 million kids across the nation. This malfeasance in government must stop and our elected officials need to stand up for America’s children now, before it’s too late,” deNicola said.

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