The SMMUSD Board of Education has approved the final settlement amount with America Unites for Kids ending a six-year legal battle with Malibu activists concerning the removal of toxic Polychlorinated Biphenyls (PCBs) from Malibu High School (MHS) and Juan Cabrillo Elementary School (JCES).
President of the Board of Education, Jon Kean said in the July 15 Board meeting that “the parties have reached a settlement in the amount of $950,000,” for recoverable attorney fees and costs and is to be issued to the Plaintiff, American Unites for Kids.
The settlement is a win for Malibu activists who originally discovered the PCBs in 2013 when activist and future plaintiff, Jennifer deNicola took samples of window caulking from structures built pre-1979. The caulking was tested, and PCBS — a highly toxic industrial compound known to cause cancer with prolonged exposure — were found to be over 50 ppm (Parts Per Million) which is considered toxic by the Environmental Protections Agency.
A lawsuit was filed in 2015 by the activists and America Unites for Kids, an advocacy group seeking to ensure “a healthy school environment for all children, in all schools and the teachers who educate them, according to their website. The organization was seeking remediation for the levels of PCBs found in various school buildings at MHS and JCES.
After a bench trial in 2016, the district court’s judgment favored America Unites and set an injunction on the district, imposing a December 2019 deadline for the removal of the PCBs from window and door caulking in buildings constructed pre-1979. The deadline was modified in 2018, due to the passage of Measure M — a school facilities bond allocating $195 million for Malibu Schools specifically. The Facilities Bond will cover the costs of the demolition and remodel of MHS, with the plan to build state-of-the-art school, unveiled at the April 29 Board meeting.
At trial, U.S. District Court Judge Percy Anderson found that America Unites’ request for attorney fees and costs were “punitive rather than compensatory,” according to the Ninth Circuit Opinion report, thus needing criminal procedural safeguards not provided by the district court. The sanctions were overturned by U.S Circuit Court Judge Diarmuid F. O’Scannlain, based on the implication of the plaintiffs First Amendment Rights, thus awarding America Unites with attorney compensation.
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