Malibu Parents and Teachers Serve Notice of Intent to Sue the Santa Monica Malibu Unified School District & EPA For Toxic Substances Control Act Violations

by Barry Fagan

Students and teachers are subjected to illegally high levels of dangerous chemical contaminants in Malibu public schools, according to a notice of intent to sue filed today by Public Employees for Environmental Responsibility (PEER) on behalf of teachers and the Vititoe Law Group on behalf of Malibu Unites, led by concerned school parents. Filed the day that classes resume, the notice provides 60 days for the Santa Monica-Malibu Unified School District and U.S. Environmental Protection Agency to remove toxic materials from Malibu Middle and High Schools and Juan Cabrillo Elementary School or face a federal lawsuit.

This Notice concerns illegal levels of polychlorinated biphenyls (PCBs) found inside classrooms and campus soils. During the 2011 summer school session, the district removed from the Middle School Quad 48 truckloads of soil which, unbeknownst to parents and teachers, was contaminated with PCBs and pesticides. In the following two years, four teachers, including one who has since left the school, were diagnosed with thyroid cancer. There are at least 10 known cases of thyroid disease among teachers and at least four students struggling with autoimmune health issues. In addition, alumni students have been diagnosed with thyroid cancer.

Last fall, although no comprehensive soil testing was performed, at the parents’ insistence some of the school rooms were finally tested. These tests revealed that PCBs in 4 of 10 tested middle school classrooms exceeded the federal regulatory limit under the Toxic Substances Control Act (TSCA) of 50 parts per million (ppm) PCBs. The three teachers with thyroid cancer all taught in classrooms with illegal levels of PCB or with dust levels considered “PCB Contaminated.”

The district refused to administer any further caulk testing. This past July, Malibu Unites received laboratory results from the same lab used by the District of additional school soil and caulk samples. On July 17th, 2014, Malibu Unites and PEER reported to both the district and EPA the following results:

Window caulking from Room 19 on the Juan Cabrillo campus contained 340,000 ppm of PCB;

Interior door caulking from room 506 at Malibu High contained 370,000 ppm of PCB;

Caulking from the Malibu High physical education faculty office contained 190 ppm of PCB; and

Three dirt samples from classrooms in Malibu High’s Building E had PCBs more than 11 times EPA’s residential screening limits.

Despite these alarming new test results, the District still refuses to do more caulk testing (even turning down the offer of Malibu parent and supermodel Cindy Crawford to personally pay for the tests). In addition, EPA has concurred in the District’s plan not to test any more caulk, to re-occupy classrooms with illegal levels of PCBs as long as air and dust samples come in below EPA’s “health guidelines” after cleaning, to remove the caulk only in the four windows found to violate TSCA by the District, and only after another entire school year – totally ignoring the far more severely contaminated caulk found in independent testing.

“This notice is a demand that responsible officials follow the laws designed to protect our children,” said Jennifer deNicola, a Malibu parent and President of Malibu Unites. Malibu Unites is represented by Vititoe Law Group, a nationally recognized consumer, environmental and toxic torts firm based in Westlake Village and founded by Jim Vititoe, who played a key role in the water contamination case in Hinkley, California made famous by the Academy award winning film, Erin Brockovich. “We are frustrated that the District – and even EPA itself – both continue to disregard the law by conducting classes in rooms that are contaminated.”

“A lawsuit should not be necessary to ameliorate the illegal and unhealthy conditions in an American school,” stated PEER Senior Counsel Paula Dinerstein, whose group is advocating on behalf of teachers and staff concerned about the effect contamination on campus is having on their health. “We invite both the District and EPA to sit down with us to resolve these disturbing issues or we will see them in court.”

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Barry Fagan

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