Court Denies SMMUSD Motion for Summary Judgment

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On Monday, March 28, United States District Court for the Central District of California Judge Percy Anderson declined to grant the Santa Monica-Malibu Unified School District’s (SMMUSD) motion for summary judgment in a lawsuit filed by America Unites for Kids (AU) and Public Employees for Environmental Responsibility (PEER).

A summary judgment is a court order ruling that no factual issues remain to be tried, and that a cause of action in a complaint can then be decided without a trial.

“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 campuses, despite the remediation work performed to date by the district,” Anderson wrote in the ruling.

AU (formerly Malibu Unites) and PEER are plaintiffs in a lawsuit filed in March 2015 against SMMUSD Superintendent Sandra Lyon, together with district CFO Jan Maez and School Board Members Laurie Lieberman, Jose Escarce, Craig Foster, Maria Leon-Vazquez, Richard Tahvildaran-Jesswein, Oscar de la Torre and Ralph Mechur.

“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 policy,” the district wrote in an emailed statement sent out on Tuesday morning.

The suit alleges that the district has violated the Toxic Substances Control Act in its handling of PCBs on the campuses of Malibu High School (MHS) and Juan Cabrillo Elementary School (JCES). It is designed to speed PCB testing and removal at Malibu schools.

Since filing the lawsuit, AU and PEER have presented the results of several independent tests that showed PCB levels at Malibu schools at several times the legal standard held by the Environmental Protection Agency (EPA). Many of these tests went on during the summer of 2015, a time when remediation for PCBs was taking place in areas of MHS and JCES. At the same time, SMMUSD was conducting air and wipe samples at the campuses.

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 discovery of PCBs in Malibu schools came to light in October 2013 and since then, a debate has sprung up between those who believe in “source testing,” and those who believe in “air and wipe testing.”

Most interpretations of EPA guidelines state that if there is no “measurable concentration” of PCBs in dust or air, areas are safe to be occupied; however, if source tests prove concentrations above the legal limit, they must be remediated.

“Based on the many motions the district has filed in attempt to make this case go away, it’s clear that the last thing the district wants to do is answer questions under oath and have its malfeasance aired in open court,” Jennifer deNicola, founder and president of AU, told The Malibu Times in an email. “The closer we get to trial, the more confident we are — we know we are right on the law and right on the science. It is time the district puts the best interests of the kids and teachers first and face the facts — the Malibu schools have high levels of PCBs and they must be removed.”

“The district is confident that once the full extent of its compliance with EPA’s policy and requirements, as well as the pending modernization for Malibu High School and Juan Cabrillo Elementary School, are before the court, a proper decision will be reached,” the district wrote.

Representatives from the district could not be reached for further comment when The Malibu Times went to print.

The trial is scheduled for May 17, 2016.