Email to School Board Members: You Must Direct Your Own Defense

This email was sent to the seven Board Members on May 13th, 2015

Dear SMMUSD Board Members:

Last week Pillsbury filed a motion to dismiss and the judge rejected for improper filing and gave a deadline of May 11th, 2015 to refile, which they did. There will be a public hearing on June 8th, 2015 at 1:30pm in Los Angeles (please see court schedule below). 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 in red and the clarity of the law, we feel confident that this motion to dismiss will be denied.

If you have not had a chance to read all the documents that have been filed by Pillsbury in your name, you can find them at the link below. Each of you has the right to your own defense that you individually direct. We hope that you are actively participating in the decisions made in your defense.

http://malibuunites.com/america-unites-takes-to-the-federal-court-to-protect-children-and-teachers-from-toxic-schools/

In the Judge’s decision on discovery, he Judge has asked that the plaintiffs and defendants work out a discovery schedule without involving the Judge or Magistrate. Despite the Judges direction, Pillsbury, on each of your behalves, 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.

Lastly, here is a letter from the EPA that clarifies many of the inaccuracies given to you by Environ and your staff. The one and only approval that SMMUSD has received is for the substrate after the PCB caulking is removed and not for caulking. The Judge understands this, see the Judge’s decision on the Merits of America Unites’ motion for preliminary injunction, he has clearly stated based on the materials presented to him that the caulking is not included in the EPA approval.

Judge: “The EPA has neither approved or disapproved the District’s plans to remove the PCB-contaminated caulk. 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.”

The law is perfectly clear that PCBs over 50ppm are an unauthorized use and must be removed. The district’s own testing has demonstrated that PCBs are widespread in the caulking throughout the many buildings at extremely high levels. See what the judge says:

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 of you individually can make a decision to direct your staff to cooperate. In the past, Parents offered to pay for testing. AU and the district can together share the cost and hire an East coast expert with a great track record to test the school at a reasonable price ($125,000). The cost to test the sources is 1/10th of the cost Environ charged the District just last summer to test the air and dust ($1.1 million). These air and dust tests need to be done again this summer. Testing the dust should cost $65 per test at any EPA-certified lab in the US, not $1500 per test which is what Environ charged you last summer.

Once the district knows the nature and extent of PCB contamination, you can make a responsible plan to remove, encapsulate, or isolate the PCBs from the students and staff and make a plan for remodel/remediation. Testing to identify the nature and extent and then taking action to remove, encapsulate or isolate PCBs is the same process used on the East coast for over 10 years.  Based on EPA’s data, the average cost of testing and remediation is $2 million for situations similar to MHS/JC. It is fiscally irresponsible and makes no sense to spend/approve $6 million with no remediation to solve a $2 million dollar problem. (yes, after you approved the last $500,000 to Environ, your total is now $6 million)

We can find 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 you will each work diligently to help find common ground and settle this matter.

Warm Regards,

Jennifer deNicola on behalf of America Unites for Kids

Transaction Details
Case Reference: American Unites v. Santa Monica (Malibu USD)
Jurisdiction: U.S. District Court – Central District of California (Judge Staton)
Event: Date of hearing on motion.
Date: 6/8/2015 1:30:00 PM GMT-7:00 (Pacific Daylight Time)
Date List
Date/Time Description With Notes Authority
5/18/2015 American Unites v. Santa Monica (Malibu USD). Hearing on 06/08/15 at 1:30 P.M. in Dept. 15 USDC re.: Defendant’s Motion to Dismiss.
Last court day to file and serve either opposition to motion or statement of non-opposition.
Local Rule 7-9
5/22/2015 American Unites v. Santa Monica (Malibu USD). Hearing on 06/08/15 at 1:30 P.M. in Dept. 15 USDC re.: Defendant’s Motion to Dismiss.
Last court day to file and serve reply to opposition to motion.
Local Rule 7-10
6/1/2015 American Unites v. Santa Monica (Malibu USD). Hearing on 06/08/15 at 1:30 P.M. in Dept. 15 USDC re.: Defendant’s Motion to Dismiss.
***Note: Counsel should avoid submitting requests for continuance of motion hearing after today.
Judge’s Initial Standing Order, 4.
6/1/2015 American Unites v. Santa Monica (Malibu USD). Hearing on 06/08/15 at 1:30 P.M. in Dept. 15 USDC re.: Defendant’s Motion to Dismiss.
Last court day for moving party to file and serve withdrawal of motion.
Local Rule 7-16
6/8/2015 1:30:00 PM GMT-7:00 (Pacific Daylight Time) American Unites v. Santa Monica (Malibu USD). Hearing on 06/08/15 at 1:30 P.M. in Dept. 15 USDC re.: Defendant’s Motion to Dismiss.
Date of hearing on motion.
Local Rule 6-1, 7-8, 78-1
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