Updated: PCB Lawsuit Filed Monday Against School District

America Unites For Kids (formerly Malibu Unites) and Public Employees for Environmental Responsibility (PEER) on Monday filed a lawsuit against the Santa Monica-Malibu Unified School District (SMMUSD) regarding their handling of PCBs at Malibu High School and claiming the governing body is in violation of TSCA, the Toxic Substances Control Act.

There was some speculation as to whether the groups would go through with the case, which they first threatened in August 2014, but in January, America Unites President Jennifer deNicola expressed confidence that if demands weren’t met, the SMMUSD would be served.

“We intend to file a lawsuit if the district does not test the caulking in all classrooms in buildings built before 1979 and remove all PCBs over 50 parts per million, in compliance with federal law, because students and staff have a right to be in a safe environment,” deNicola said in January.

According to district spokesperson Gail Pinsker, the SMMUSD has also been preparing for the suit.

“Anytime anyone files a 60-day notice intending to sue SMMUSD, we take it seriously … and we make sure that the district is prepared for any lawsuit filed,” Pinsker said in an email to The Malibu Times.

Since high PCB levels at Malibu High School came to light in October of 2013, a heated debate has erupted as to the safest way to proceed with testing and cleanup.

PCBs, or polychlorinated biphenyls, were a common building material in the mid-20th century, but were later discovered to be hazardous substances and were broadly banned.

The issue was addressed for the first time as a study session discussion item on the School Board agenda on this past Thursday, March 19, at which time the environmental consulting company Environ presented findings and options for remediation to the SMMUSD board. 

At the meeting, deNicola stated that since notice was given for the suit, she has not heard from any district employees or board members in regard to the impending lawsuit.

The suit is a request for injunctive relief, meaning PEER and America Unites are requesting the court force the SMMUSD into action.

“We already know that there are such high levels of PCBs in certain buildings, you need to remove children and teachers from those rooms,” deNicola said.

The attorney representing America Unites is Charles Avrith from Nagler & Associates.

Avrith said that although out-of-court settlement has not been discussed, the district would be motivated to settle.

“I don’t know why [the SMMUSD] would want to take it to trial,” Avrith said, adding that his clients are willing to settle, assuming their demands are met.

 “We’re not trying to make money off this; we’re just trying to get the school cleaned up,” he added.

The attorneys representing the SMMUSD, from the law firm Pillsbury Winthrop Shaw Pittman, directed questions to Pinsker.

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