Both sides are claiming victory following a judge’s ruling in the lawsuit over the Santa Monica-Malibu school district’s handling of chemical testing and cleanup in Malibu.
The school district must remove all polychlorinated biphenyls from the two Malibu sites in question by the end of 2019, according to the decision handed down by U.S. District Court Judge Percy Anderson of the Central District of California.
The outcome arrives about a year and a half after SMMUSD was sued by Malibu activists and public health advocates who have been seeking the removal of PCBs, which were discovered in the caulking at Malibu High and Juan Cabrillo Elementary schools nearly three years ago.
The district claims the ruling validates its modernization plans, which include the replacement of windows and doors in buildings constructed before 1979. The plaintiffs, meanwhile, argue that the ruling proves the widespread existence of potentially harmful chemicals at the school sites.
The ruling states that PCBs would likely be found in buildings that have not been thoroughly examined.
“Although Defendants have removed and replaced the caulk from the specific areas and rooms identified in their testing as exceeding the 50 [parts per million] threshold, and some other areas may have had doors and windows repaired or replaced after 1979,” the court document reads, “there is no evidence that all of the caulk in the buildings at the Malibu Campus constructed prior to 1979 has been tested or removed. ...
“The Court concludes, based on common sense, that ... it is more likely than not that caulk containing PCBs in excess of 50 ppm remain in ‘use’ at the Malibu Campus in areas that have not been tested or repaired.”
SMMUSD, which has spent millions of dollars on consultants and legal fees since PCBs were found in Malibu, has long maintained that it has complied with remediation guidelines set by the federal Environmental Protection Agency. The district is currently upgrading facilities in Malibu with funds from voter-approved bond measures.
“We respect the court’s determination in this case,” Board of Education president Laurie Lieberman said in a district press release. “With the planned modernization already in the works at Malibu High School and nearly complete at Cabrillo, which is the court’s endorsed remedy, we’re very pleased to now turn back to our primary purpose of providing quality education for our students.”
Jennifer deNicola, the leader of Malibu-based America Unites for Kids, which is a plaintiff in the lawsuit alongside Public Employees for Environmental Responsibility, said the ruling will hold the district accountable on a legal level.
“They can’t just do whatever they want,” said deNicola, a Malibu parent. “I don’t know how they’re calling this a win. It’s a win for every student and every teacher and every family who goes to that school. It’s a guarantee that they will have PCB-free classrooms.”
In March 2015, America Unites and PEER filed a lawsuit against then-Supt. Sandra Lyon, chief financial officer Jan Maez and all seven school board members over the district’s handling of chemical testing and cleanup in Malibu. About two months later, a request by SMMUSD officials to dismiss the suit was denied.
By October, the district was seeking criminal vandalism charges against deNicola after she collected independent caulk samples and provided the district with additional PCB testing results. The alleged crimes were reported to the county sheriff’s department, but the county District Attorney’s Office declined to file criminal charges.
SMMUSD then pursued court-ordered sanctions that were imposed on the plaintiffs in December. The activists were not allowed to use the samples they obtained as evidence in the lawsuit, and they were instructed to pay for repairs related to damage from the unauthorized testing.
In March, the court paved the way for a trial when it denied the district’s motion for summary judgment, citing evidence suggesting that the district has failed to implement best management practices for removing chemicals.
