THIS PAST MONTH HAS BROUGHT MAJOR WINS AGAINST THE DISTRICT, NEXT STEP IS A WIN IN COURT ON MAY 17TH, 2016

We are being heard–loud and clear.

Despite the school district’s multi-million dollar legal and PR campaign, the federal court has decided that our lawsuit to remove PCBs from our schools — and set a national precedent on behalf of all American kids — warrants a full trial, which will begin in Downtown LA on May 17th, 2016!

The sanctions issue has also been resolved, with the court rejecting the school district’s attempt to personally collect tens-of-thousands of dollars from parents. Now that all of these distractions are behind us, we are looking straight ahead for a final win, getting kids and teachers out of toxic classrooms.

People across Southern California and across the country are now tuning in to our cause. Check out the front page story in the New York Times, the national broadcast on CBS This Morning, and hear the scientific facts from Harvard researchers on National Public Radio station KCRW.

The school district tried its best to convince the court that it’s “best management practices” scheme made a trial unnecessary and they had no violations of PCBs, and sought to have case dismissed.

But the court determined that “[T]he District’s own testing has shown PCBs in excess of 50 ppm 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 concluded and found in our favor that: “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.”

Based on nine declarations from teachers and custodians the Judge found that, “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 May 17 trial marks a critical moment in our fight for our kids. We need parents, teachers and students to turn out on the courthouse steps and in the courtroom to show the world and the Judge that we aren’t going to stand idly by while our kids’ classrooms are contaminated with cancer-causing chemicals. Join us and stand up for our kids! RSVP here.

It’s a profound teachable moment for our students–it’s a real life civics lesson that shows speaking truth to power truly can make a difference. See you there, and remember, our suit seeks no monetary damages — only that the PCBs are promplty removed from our schools.

Thank you for all of your support.

Jennifer deNicola and the America Unites for Kids Team

PARENTS VINDICATED FROM DISTRICT’S FALSE CLAIMS OF VANDALISM:

PARENTS VINDICATED FROM DISTRICT’S FALSE CLAIMS OF VANDALISM:

For Immediate Release:

Contact America Unites for Kids: 310-436-6000

Thursday, December 17, 2015

 

PARENTS VINDICATED FROM DISTRICT’S FALSE CLAIMS:

District Attorney Determines No Crime in Sampling Toxic Caulk

The Santa Monica-Malibu Unified School District’s latest attempt to intimidate their critics and suppress evidence of widespread PCB contamination at Malibu schools failed when the Los Angeles District Attorney’s office rejected SMMUSD’s criminal complaint against parents who allegedly took small samples of building materials to test for toxic chemicals to protect their children.

A November 25, 2015 letter from L.A. County District Attorney Jackie Lacey stated the office has formally declined to file charges. A follow-up email from the D.A.’s office clarified that no evidence of vandalism had been found on the campus of either Juan Cabrillo Elementary School or Malibu High (Malibu Schools). The D.A.’s email recognized that taking samples was merely “attempting to determine how many PCBs were in the molding” and not an intent to destroy. The email also stated the extent of damage did not appear to meet the required $400 threshold for a felony charge,  directly conflicting with the district’s claims of tens of thousands of dollars in damages.

“Despite the district’s best attempt to cause harm to me and the organization, truth and justice prevailed,” said Jennifer deNicola, President of America Unites for Kids, who was named in the investigation. “The district’s actions were malicious from the start as they knew that no vandalism had occurred. For ten days before contacting the police, Lyon, Lieberman, Maez and the Pillsbury lawyers orchestrated a legal strategy to attempt to suppress new evidence of PCB contamination from the Federal Court. These 31 new tests prove the district is in clear violation of Federal law and more importantly putting kids at risk. This latest act by the district –knowingly filing a false police report to put innocent people in jail– in addition to the $7 million they have spent remind us all how far they are willing to go to continue to hide the widespread PCB contamination from parents and teachers.”

On October 28th, 2015, district officials filed a complaint to the Lost Hills Sheriff Department that parents had committed trespassing and vandalism when allegedly taking samples of 62-year old caulking—samples the size of toothpicks–presumed and then confirmed to contain toxic PCBs in violation of Federal law. Based on documents recently filed in Federal court, the district waited to report this purported crime of vandalism for ten days and only after the district’s law firm, Pillsbury, interviewed teachers themselves, a practice that can influence a witness. The District initially reported “damages” in the amount of $1500, but then continued to press the Sherriff and steadily increased the amount to more than $100,000, raising this issue into the category of a serious felony, yet the Los Angeles District Attorney’s email stated they could not substantiate even $400.

PCBs (polychlorinated biphenyls) are a Class I carcinogen used in school building materials between 1950 and 1979 and initially found at the Malibu Schools in 2009. They were banned by Congress in 1976 because of their substantial risk to human health. Since 2004, 180 Countries have ratified the Stockholm Convention to eliminate PCBs from use. PCBs have been associated with a long list of human ailments and are especially harmful to children, including cancer, thyroid dysfunction, diabetes, autism, lower IQ and disruption of the neurological, endocrine, reproductive and immune systems. MHS and JCES together have reports of six teachers with thyroid cancer and 25 teachers with thyroid disease.

In March 2015, America Unites for Kids and PEER filed legal action against SMMUSD for violation of the Toxic Substance Control Act which requires all building materials with PCBs in excess of 50 parts per million to be removed and disposed of as hazardous waste. Last month, America Unites provided U.S. Rep. Ted Lieu (D-CA) with 31 more PCB results from Malibu schools showing violations of Federal law. Trial is set for May 17, 2016.

America Unites for Kids is a 501c(3) non-profit dedicated to protecting the health of children. The non-profit is advised by experts, university scientists and policy makers with specific expertise in PCBs. The issue of dangerous and illegal levels of PCBs in public schools has become the nonprofit’s centerpiece issue rising out of its own struggle getting PCBs removed from its local schools.

“This latest action by the school district and their corporate lawyers aims to intimidate parents on a national level and silence concerns that their own kids might be sitting in toxic classrooms. But like the story of David and Goliath, Goliath has failed,” said deNicola. “Parents who seek the truth to protect their children should never be threatened or intimidated by a school district. The reality is everyday there are millions of children and teachers unknowingly sitting in PCB-contaminated classrooms who also need to be protected. We hope to bring awareness to parents so they can actively protect their kids from these cancer-causing chemicals that Congress deemed so harmful, they completely banned them 40 years ago.”

####

See Denial Letter from Los Angeles District Attorney’s Office

http://malibuunites.com/wp-content/uploads/2015/12/DeNicola-Reject-Letter.pdf

See Details of Denial in Email from District Attorney

http://malibuunites.com/wp-content/uploads/2015/12/letter-from-DA-vandelism-for-AU-website.pdf

December 2015 Update: Number of Teachers and Students Illnesses at Malibu Schools

http://malibuunites.com/wp-content/uploads/2015/12/DECEMBER-2015-Illness-UPDATE.pdf

 

Recently Released EPA Document shows SMMUSD is Defying PCB Policy and Federal Law

According to EPA’s most recent document on PCB policy, the Santa Monica-Malibu Unified School District (SMMUSD) is not following the U.S. Environmental Protection Agency’s (EPA) guidance or law regarding PCBs at Malibu High School and Juan Cabrillo Elementary School, contrary to its August 17th, 2015 press release, where SMMUSD claims it is in compliance with the Toxic Substances Control Act (TSCA) and following EPA guidance by only testing the air and dust but refusing to test any more caulk.
However, an EPA document released on Aug 24, 2015 named “How to Test for PCBs and Characterize Suspect Materials”  confirms that a full investigation of the materials is required once a PCB problem–PCBs over the legal limit–like the one found in Malibu is identified.
“If you have identified a PCB problem, you will need to characterize it and determine the extent of PCB contamination. It is important to note that even if PCBs are not present in the air, they still may be present in building materials.”
This exact statement has been the mantra of the Malibu community for almost two years. The EPA document clearly outlines this,
“A sampling plan should be developed to characterize the caulk and other potential building materials that might either contain PCBs or be contaminated through contact with PCB-containing caulk such as wood, masonry, or brick.”
SMMUSD has refused to perform these steps, despite the long-standing community outcry for comprehensive caulk testing and PCB removal. SMMUSD’s refusal to test has been previously referred to as a “don’t test, don’t know” PCB-policy to avoid complying with the law.

“This EPA document validates everything America Unites for Kids, on behalf of Malibu, has been asking SMMUSD to do for two years,” said Jennifer deNicola, president of the Malibu-based environmental advocacy organization America Unites for Kids.

“The district has shown it will spare no expense to avoid characterizing the extent of the PCB-contamination. While the district continues to false use the EPA for cover, everyone really needs to understand not testing is a choice made by Superintendent Lyon and she has spent a lot of public money defending that choice.”

A letter from EPA region 9 on April 17th, 2015 to America Unites for Kids says, “nothing limits the District’s ability to perform additional caulk sampling or removal.”

According to deNicola, the EPA document the district refers to in their August 17th press release is intended to provide guidance only for schools that have never tested for PCBs and do not know if there are PCBs, not for sites, like Malibu, where there is already verified PCB contamination in the caulking in violation of Federal law.

“We are way past wondering if Malibu has toxic PCBs,” deNicola said. “We know Malibu has a significant PCB problem. This document directs the district to determine how wide-spread the PCB contamination goes and remove all PCBs in violation of current law. We keep asking ourselves, why would a school district claiming to be strapped for cash, spend six times what it would cost solve the problem.”

PCBs—polychlorinated biphenyls—are a group of highly toxic chemical compounds that were used to make a wide range of construction materials and electrical components before being banned by Congress in 1976. The law states the PCBs are an unauthorized use and EPA regulations state,

“PCB Items with PCB concentrations of 50 ppm of greater present an unreasonable risk to injury to health”
PCBs have been found by EPA and international agencies to be highly toxic, persistent organic pollutants known to cause cancer and a host of other serious illnesses which include those reported at Malibu High and Juan Cabrillo by teachers and alumni.

Beginning almost two years ago, testing has shown that 18 classrooms in eight buildings at Malibu High School and adjacent Juan Cabrillo Elementary School are plagued with high levels of PCBs. In some instances, the levels were 11,000 times higher than Federal TSCA law allows and the highest levels ever identified in a public school.

It has been reported that five teachers have been diagnosed with thyroid cancer, 14 of 30 middle school teachers, almost 50%, have thyroid disease, and at least a dozen alumni between the ages of 20-28 have reported thyroid cancer, thyroid disease or melanoma. A formal health study has not been organized to be sent to Alumni, teachers or current students.

America Unites for Kids along with PEER, Public Employees for Environmental Responsibility, have filed a Citizen’s suit under TSCA requesting that SMMUSD comply with Federal law by removing all PCBs above federal limits at the Malibu Schools. In June, the plaintiffs succeeded in defeating the defendant’s motion to dismiss. This case is scheduled for trial in Los Angeles Federal Court on May 17th, 2016 and discovery is now ongoing.

Malibu Real Estate Warns Buyers of PCB Contamination in Schools

PCB contamination at Malibu schools is now part of the Malibu Association of Realtors newest disclosure requirements.The latest version of the Malibu-Topanga Disclosure Addendum, which went into effect on Sept. 2, 2015, is intended to let prospective buyers know about local issues. This disclosure reads:

Some Malibu Schools (Juan Cabrillo Elementary, Malibu Middle School, and Malibu High School) have been determined to contain Polychlorinated biphenyl (“PCB”), a known carcinogen, in caulking and other building materials. Environmental assessments are ongoing. Buyer is encouraged to investigate and determine whether he considers the use of said materials a potential health hazard prior to close of escrow.”

Given the undisputed toxic hazards of PCBs to children’s health, this addendum makes it evident that PCBs also have the potential to affect other aspects of the community, including real estate.

The Malibu school contamination issue has plagued the Malibu community since October 2013, when dangerously high levels of polychlorinated biphenyls (PCBs) were uncovered at the three Malibu public schools. Two years later, Santa Monica-Malibu Unified School District (SMMUSD) officials have spent a reported $6.5 million on legal fees and consultants rather than the estimated $600,000-$800,000 it would have cost to remove all the caulking, according to Public Employees for Environmental Responsibility (PEER) and the grassroots Malibu-based environmental watchdog organization America Unites for Kids.

America Unites President Jennifer deNicola says, “This addendum has become necessary because for two years, SMMUSD has acted irresponsibly. The PCB issue could still be quickly and completely resolved if the SMMUSD would commit to a program of testing and proper removal.”

The battle over testing and remediation has caused dozens of Malibu families to choose alternative schooling options for their children rather than risk exposure to a toxin known to cause cancer and other serious health issues. Since 2013, it has been reported that five teachers and three alumni from these Malibu Schools have been diagnosed with thyroid cancer and 14 teachers and six alumni have thyroid disease. This summer, four more teachers reported being diagnosed with thyroid issues, including potentially cancerous nodules.

“SMMUSD’s continued refusal to test the caulking in all classrooms is really an admission of guilt,” deNicola said. “District officials know that testing will reveal high levels of PCBs, requiring removal. But most importantly, PCBs are a clear and dangerous threat to human health. By deliberately avoiding this testing, the district is willfully endangering children and teachers.”

Court Lays a Smackdown on the EPA for its Pesticide Inaction

Congrats to EarthJustice, NRDC and Pesticide Action Network:

(Now the EPA Needs a PCB Smackdown!)

When a court opinion starts off with a sentence like this, you know it is going to be a good read:

“Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health.”

The 9th Circuit Court of Appeals recently issued a writ of mandamus,” a command to a court, agency or person to perform its public or statutory duty. The writ ordered the Environmental Protection Agency (EPA) to act on a 2007 petition to ban chlorpyrifos, a widely used agricultural insecticide whose dangers have been studied for many years.

This EPA needs another “smackdown” for not enforcing the law on PCBs. But, even when EPA fails, Congress added a “Citizen’s Suit” clause to TSCA, so that Citizens can enforce the law. And this is why America Unites and PEER have gone to court; to ensure the law is followed and children and teachers are protected from a banned and highly toxic chemical the EPA claims to have no safe levels. (see EIS by EPA 1978

No matter what the EPA policy is on PCBs–which is not law–or how the district perceives EPA policy on PCBs to be, SMMUSD is required to comply with Federal law. Their lawyers know the law (or should) and the district is required to follow the law. It’s as simple as that. 

The EPA does not dispute the law to which PCBs are an illegal use and must be removed. It is solely SMMUSD that claims PCBs over 50 ppm can remain in place (a blatent violation of TSCA) and they keep pointing to the EPA in their press releases as justification to break the law. Even Judge Anderson, the Federal Judge in America Unites vs. Lyon case, recognized the districts intentional misleading of the parents, “the district has conflated the identified caulk containing PCBs with concentrations in excess of 50ppm that must be removed…whether intentionally misleading or merely unintentionally confusing…

Justice is on our side. Its just a matter of time. Sadly, that time can not be returned to our children or their teachers, nor can the damage of PCB exposure on their health be reversed.

Click Here to Read EarthJustice Press Release and Judges Decision

LYON PUTTING MALIBU KIDS AT RISK, AGAIN 

ACCORDING TO THE FUMITOXIN MANUAL: PLEASE KEEP YOUR KIDS OFF THE TREATED FIELDS FOR 4-5 DAYS

On Saturday, Aug. 22nd, 2015, even after hundreds of emails and phone calls requesting not to use rodenticides on the Malibu Schools, Superintendent Sandra Lyon made the final decision to spread more poisons at Malibu High, Juan Cabrillo and Webster.The two poisons chosen by SMMUSD are strychnine and Fumitoxin. Strychnine is an example of a very dangerous and unpopular poison making a comeback. Strychnine has NO antidote and acts very quickly. Thus, it is especially dangerous.

The EPA has placed Fumitoxin in its highest toxicity category, “Category 1 Danger.”  “Danger” means that the pesticide product is highly toxic if eaten, absorbed through the skin, or inhaled. The compound converts to a deadly phosphine gas when it comes in contact with moisture. The application manual for Fumitoxins clearly states that there should be no entrance to treated areas for a minimum of 3 days but based on the climate in Malibu, the recommendation is 4-5 days. Yet, Lyon told AYSO families and parents that come Monday, Aug 24th, 48 hours after applying Fumitoxin, that it was safe. This is clearly incorrect and once again she is putting children in harms way. For their safety, please keep your kids off the fields at these schools.

From a Webster Parent stated based on the table in the Fumitoxin manual: “Tonight it will be 63 degrees, so a 96 hour/4 day minimum is required. A week from tomorrow is the second safest play.  Number 1 safest play is to attend a school that doesn’t use poisons.”

February 12, 2014, the Department of Pesticide Regulation cited SMMUSD for improper notification and use of pesticides. But Lyon’s actions this week show she did’t learn much despite her response in the Santa Monica Daily Press in 2014, “We will look for responsible ways to balance the range of requests from toxin-free to pest-free, including insects and rodents,” she said. “Our goal will be to find a healthy balance.” Clearly, she didn’t mean what she said.

Another parent stated in an email, “It sucks to have to say you can’t trust the SMMUSD, but transparency and common sense, especially when it comes to Malibu, have been non-existant.”

Poison Free Malibu Organization wrote to Lyon last week, “We have suggested viable and safe Integrated Pest Management (“IPM”) recommendations and experts to execute these recommendations. The strategy is based on Clean Up, Seal Up, and Trap Up. By using these techniques consistently, rodents can be controlled without poisons.”

A CA Licensed Pest control owner/operator added, “I will attest that I have toured the Campus and in my determination as an Agricultural Specialist, that IPM protocols were not implemented at MHS…I offered to begin implementing at no cost to the district, and my offer was ignored.”

In a letter from America Unites (AU) urged Lyon to not use rodenticides and instead use the one of the two free IPM options provided to the district by generous experts. AU wrote, “Carefully consider the health and safety of the school children and the environment in which they live when making your decisions and please respect the wishes of the city and its occupants to not use rodenticides, as your actions on the school property have implications throughout Malibu as well as the ESHAs abutting the school property.”
John Sibert, Mayor of Malibu wrote, “Sandy, Let me add my voice to a number of other Malibuites regarding the proposed use of fumigants and poisons on the  fields at MHS.  As you well know, the City Council unanimously supported a statement against the use of rodenticides and other poisons for pest control in the City…The City has also ended their use on our City-owned property…To have the School District ignore these efforts and plan an extensive fumigation and poison program on the MHS fields, particularly during the school year when they are in use, is extremely disturbing.  I hope you would hold off on this and consider other alternatives.”
After application of rodenticides, residents witnessed at MHS, a beautiful hawk sitting at the edge of a gophers hole monitoring the situation and stated, “Let us rely on this natural methods of gopher control.”
Another MHS parent wrote to Lyon, “I have to say, I was shocked that you moved forward with this unnecessary and toxic approach to dealing with a few gopher holes…. You had so many other options presented and available to you and so many community requests over this past week and even well prior to that asking you take a non-toxic and different approach.  Truthfully, it feels as though you run this school district like a dictatorship, not a democracy.  This is very disappointing and very wrong.”A Webster parent wrote, “There are quite a few of us that will not be sending our kids tomorrow to Webster, as the cafeteria is less than 100 feet from the fields. From the information that has been shared with us in regard to these chemicals and Webster emailing all the parents NOT to meet on the blacktop tomorrow morning, means there is concern. It’s irresponsible to have done what they done.”
Another MHS/JC parent stated, “The School Board must put a stop to poisoning and endangering students and wildlife on and adjacent to the campus until all IPM strategies are completely exhausted.”

A community member wrote, “I’m not sure why a jump backwards and going back to a poisoning routine is being implemented, but it’s completely an unethical stroke on the community.”

A MHS parents wrote to Lyon, “After the ongoing PCB fiasco and your very incomplete, piecemeal and expensive approach to it,  and now this, I have to wonder where is the oversight over your decisions and actions?  Who are you accountable to if not your constituents?  Why do you never take the approach of taking the utmost and highest precaution in protecting children, teachers and staff and now it seems you could care less about wildlife in our community as well.”
 
There were so many letters from Malibu City Council Members, prominent pesticide organizations, community members, parents, students, board members but Lyon ignored them all. Good question, MHS parent, Who does Lyon report to? 

Click Here for the Fumitoxin manual: (tablets were used not pellets)

SMMUSD Board: Take an active role in your defense and stop letting Lyon make all the decisions

SMMUSD Board: Take an active role in your defense and stop letting Lyon make all the decisions

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.

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

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.

Warm Regards,

America Unites for Kids

4-17-15 EPA one approval

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

Conceptual Approach to Fixing the Problem & Removing PCBs

Conceptual Approach to Fixing the Problem & Removing PCBs

From: Ross Hartman

Subject: Conceptual Approach & Budgetary Pricing

Date: January 15, 2015 at 3:01:41 PM PST

To: America Unites

Hello,

I have taken many liberties as I have do not know how many windows or linear feet of caulking requires removal.  Below is an outline of a conceptual approach and budgetary costs.

Conceptual Approach:

·        Measure total linear footage of caulking within school buildings

·        Collect necessary samples and analyze for PCBs

·        Investigate potential secondary and sink sources

·        Conduct the removal of source PCBs “assumed caulking” under a Bulk Product Removal

·        Conduct cleaning of rooms in accordance with previously performed techniques that proved successful.

·        Conduct air testing to determine effectiveness and evaluate if more sources need removal or substrate requires management

Budgetary Pricing based on assumptions of quantities:

·        Measure total linear footage of caulking within school buildings, collect necessary samples and analyze for PCBs, Investigate potential secondary and sink sources

§  $125,000

·        Conduct the removal of source PCBs “assumed caulking” under a Bulk Product Removal – assumes ~20,000 linear feet of caulking

§  Between $15-$30 per linear foot – $300,000 – $600,000

·        Conduct cleaning of rooms in accordance with previously performed techniques that proved successful.

§  Assumes 30 days at $5,000 per day – $150,000 (crews can be doubled up to reduce time)

·        Conduct air testing to determine effectiveness and evaluate if more sources need removal or substrate requires management

§  $50,000

·        Reinstallation of Caulking –

§  ~$10 per linear foot – $200,000

It is conceivable the source removal can occur for a range around $900,000 to $1,125,000.  This is purely an estimate with site unseen and should not be interpreted as a cost of services.  I would be happy to visit the site in the event there is interest to perform this work.

I have provided a list of projects I managed that implemented similar approaches:

  • MIT Westgate
  • Harvard Peabody Terrance
  • UMass Lederle
  • UMass Southwest Concourse
  • Lexington Estabrook School
  • Westport Middle
  • New Bedford High
  • Southeast Regional Vocational School
  • Town of Princeton – Thomas Prince School
  • City of Worcester
  • North Reading High
  • Essex North Shore Agricultural & Technical High School
  • Private Developer – 535,000 SF building removal of PCBs (full removal of PCBs in substrate to 1ppm)

Regards,

Ross Hartman

JM Environmental, Corp.

A WBE/DBE  Certified Company

www.jmenvironmental.com

District Performs a Secret Cleaning Before PCB Dust and Air Testing, Rendering Any Test Results Meaningless

District Performs a Secret Cleaning Before PCB Dust and Air Testing, Rendering Any Test Results Meaningless

(A response to the District’s Press Release dated Dec 19th, 2014)

December, 26th, 2014

The PCB Christmas Break testing is a PR move by the district intended to reassure parents by first manipulating the cleanliness of the classrooms and then reporting that they are below EPA guidelines.

On Tuesday, December 16th, 2014, the district 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.

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.

Last summer, Environ proposed a pilot study to evaluate the effectiveness of PCB Best Management Practices cleaning. If the district is interested in knowing what students and staff are being exposed to through-out the year, why not investigate and perform unannounced, random wipe and air tests, rather than secretly clean all the dust before testing?

 

EPA States Caulk Tested by Independent Parties Must Be Removed

Steve Armann, EPA manager Region 9 states the district must remove all PCBs greater than 50 ppm in compliance with TSCA and “this includes caulk tested by independent parties.” (Click Here to Read)

The Oct 31st approval by the EPA was very clear: “EPA’s included approval address (ONLY) the PCBs remaining in the substrate (known as PCB remediation waste) after PCB-containing caulk is removed at both schools.” Meaning PCB sources must be removed and the sources that have contaminated other material (called PCB remediation waste) can be left in place until renovation occurs and levels in air and dust remain below guidelines.  (Click Here to Read)

 

Rooms so far tested over 50ppm

MHS: 1, 3, 5, 7, 8, 205, 401, 505, 506, 704, Old Gym Office, library

JC: office, 18, 19, 22, 23

 

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.

Buildings that have already shown caulking exceeding 50ppm:

MHS A, B, C, D, G, I, F, Old Gym and JC buildings A C, F.

Up to now, there has been no source testing done in:

MHS building H, or JC: B, D, E.

 

BMP Cleaning is to Reduce Exposure: It is NOT Remediation

PCB over 50ppm must be removed. BMP and hand washing frequently is not a long-term solution to PCBs. It has been over one year and the district should have done a full evaluation of the extent of PCBs caulking. This is a $65 test per window/door. The air and dust testing is much, much more expensive.

The district stated that their results from June 2014 sampling program indicate that a frequency of one annual BMP cleaning is more than sufficient to reduce PCBs levels in dust and air. (The EPA has not validated this statement.) This statement made by the district poses two questions:

  1. If this is true, then why would the district be doing a secret “special” cleaning hours before dust and air tests?
  2. How can the district make this determination when they have only performed one yearly cleaning (summer 2014) and have no data validating how long the cleaning lasts?

 

EPA and TSCA are very clear, PCBs must be removed, not managed in place.

The district states that tests have consistently reported PCB levels that were non-detectable or below EPA health standards. This is just not accurate. Environ set their detection limit to 75ng, so when Environ says PCBS are non-detect, it does not mean there are no PCBs, just that they are under 75ng, still a significant amount.

 

Environ did not follow EPA Recommendation When Air Testing was Over Limit

The EPA states in their Aug 14th, 2014 letter to Sandra Lyon, that air testing is to be used to determine if there are PCBs present and then source testing is recommended to identify and remove PCBs in compliance with TSCA. Instead when tests came back over EPA guidelines, Environ re-cleaned classrooms multiple times (up to 3 additional times) until air tests were low and then deemed these rooms safe for occupancy. If 4 tests are taken and 3 don’t pass, wouldn’t that be an indication that there is a PCB source problem in that room that needs to be addressed?

 

The District is Spending an Outrageous Amount of Money to Distract Us

Everyone knows there are PCBs over 50ppm in the caulking. The levels have come back at some of the highest in the nation and the EPA has ordered the removal of PCBs including those from independent tests. The district is spending an outrageous amount of money to distract the public rather than face this head on, test and remove PCBs in compliance with Federal law. In the end, they will have to comply; the law is the law.

So the 2 million dollar question is, why spend over 2 million dollars with Environ doing “distraction” testing and Pillsbury Law firm rather than spend it to remove PCBs from our children’s schools? Especially when the costs to remove PCB-laced caulking is estimated to be approximately $500,000.

*******

America Unites for Kids (Malibu Unites) are a 501c(3) non-profit working to ensure all children and those that educate them are not exposed to hazardous toxins that can harm their health. Thank you for your continued support to protect all children in all schools and strive for Environmental Health Excellence.