Sent on May 13th, 2015
Dear SMMUSD Board Members:
Last week Pillsbury filed a motion to dismiss AU’s lawsuit requiring compliance with TSCA and the removal of PCBs over 50ppm. There will be a public hearing on June 8th, 2015 at 1:30pm in Los Angeles. This hearing is open to the public and all involved; the plaintiffs, defendants, parents, teachers, students, and community should attend. Based on the comments from the Judge found below and the clarity of the law, we feel confident that this motion to dismiss will be denied.
All the documents that have been filed by Pillsbury in your name can be found at the link below. We hope that you are actively participating in the decisions made in your defense.
The Judge has asked that the plaintiffs and defendants work out a discovery schedule without involving the Judge or Magistrate. Despite the Judges direction, Pillsbury has filed opposition to all discovery requests. Now this matter will have to go before the Judge even though he clearly asked that Pillsbury agree on a schedule.
Environ has mislead the board and parents falsely claiming that the EPA has approved the district’s plan to leave PCB caulk in place and there is no unreasonable risk.
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 your staff.
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…”
Each Board Member can make a decision to direct your staff to cooperate. So there is no conflict in the results, AU and the district can together share the cost and hire an East coast expert with a successful track record to test the schools at a reasonable price ($125,000). The cost to test the sources is 1/10th of the cost Environ charged the District last summer to test the air and dust ($1.1 million). Because air and dust testing is planned again for this summer you should be aware that dust testing should cost $65 per test at any EPA-certified lab, not $1500 per test which is what Environ charged.
Once the district knows the nature and extent of PCB contamination, responsible plans to remove, encapsulate, or isolate the PCBs can be made. This plan of action is the same process successfully used on the East coast for over 10 years. The EPA’s has reported for similar situations like ours, the average cost of testing and remediation is $2 million. It is fiscally irresponsible to spend/approve $6 million with no remediation to solve a $2 million dollar problem. (Approval of $500,000 to Environ was approved at the last meeting, the total is now $6 million)
We are committed to finding an amicable solution for all parties that is both in the best interest of the students and staff and the district. In the public interest of the stakeholders you represent, we hope that each of you will work diligently to settle this matter.
America Unites for Kids