A lawsuit over the safety of Malibu classrooms can proceed to trial following a March 28 decision by a judge.
The suit is part of the ongoing debate regarding toxic substances in Malibu schools. While the district contends classrooms are safe and have been sufficiently cleaned, a coalition of parents have argued the cleanup efforts are substandard and therefor a danger to parents, staff and students.
The issue of polychlorinated biphenyls or PCB’s emerged in 2013. The substance has been used as a common building material for decades but was later banned after being found to be unsafe. When tests showed PCBs in Malibu schools, the district implemented remediation programs that SMMUSD has consistently described as in keeping with federal standards. However, community advocates have demanded more robust and expanded cleanup efforts. Those advocates sued the district over PCB removal and the district responded with a request for “summary judgment” that would have effectively dismissed the case.
District Judge Percy Anderson ruled against the district and said the case can proceed.
“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 [Best Management Practices] 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,” said Anderson in his ruling.
In a statement, SMMUSD spokeswoman Gail Pinsker said the judge was required to view the complaint in the most favorable light when determining if it could proceed to trial.
“The district respects the court’s decision and stands ready to introduce evidence at trial to address any questions the court may have about the district’s compliance with the Environmental Protection Agency’s (EPA) policy, including the implementation of BMPs,” she said. “Not discussed in the motion were the more than 1,000 air and wipe samples that fall well below EPA’s health-based thresholds for PCBs under its national policy. The district is confident that once the full extent of its compliance with EPA’s policy and requirements, as well as the pending modernization schedule for Malibu High School and Juan Cabrillo Elementary School, are before the court, a proper decision will be reached.”
During the hearings, controversy erupted when individuals associated with the lawsuit conducted unauthorized sampling and testing of classroom material that the district contended undermined their previous safety efforts.
Judge Anderson reprimanded the plaintiffs over their behavior calling the illegal testing “an outrageous abuse of the judicial process” and said the tests could not be used as part of the case. He also required the plaintiffs, America Unites and Public Employees for Environmental Responsibility, to pay for repairs and some legal fees.
According to SMMUSD, they expect to go to trial soon.
“As a result of this decision, it is likely the action filed by America Unites for Kids and Public Employees for Environmental Responsibility that alleges a violation by the District of the federal Toxic Substances Control Act (TSCA) will proceed to trial in May 2016,” said the statement.