Impending Lawsuit Looms Over Santa Monica-Malibu School Board

Time is running out for the Santa Monica-Malibu Unified School District (SMMUSD) Board of Education and Malibu parents to come to a resolution on PCB testing at Malibu High School, as Malibu Unites and PEER have warned that a lawsuit is only weeks away.

On Aug. 19, Malibu Unites, a nonprofit group comprised of Malibu parents bent on removal of all toxic materials from Malibu schools, together with Public Employees for Environmental Responsibility (PEER), announced they intend to sue the school district and the EPA for violations of the Toxic Substances Control Act.

State law requires an announcement of future litigation followed by 60 days to allow for mediation with the idea that the suit may be found unnecessary. As of publication, it has been 35 days since the announcement.

“We will be approaching the district to try to resolve it before we go to court,” Paula Dinerstein, senior counsel with PEER, said Tuesday. 

Dinerstein outlined what the district might to do halt the suit.

“What we asked for is testing of all of the caulk in pre-1980 buildings and removal of the caulk that comes above the legal limit and putting teachers and student in portable classrooms until that can be completed,” Dinerstein said.

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According to Malibu Unites, the school district has been negligent in its testing, specifically when it comes to testing window caulk, a substance reconsidered to have the high concentrations of PCBs.

PCBs were a building material common in the mid-20th century, that are now known to be carcinogenic.

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.

As time winds down until the suit is scheduled to be filed on Oct. 18, PEER and Malibu Unites have begun pushing harder for the SMMUSD to address complaints before the filing date.

At a meeting on Thursday, the school board said it had decided to not agendize MHS issues until the lawsuit is resolved.

“In the future, the superintendent and board president will review any request to have this matter placed on the agenda, based on existing board bylaws, the education code and the fact that the district has been threatened with litigation by Malibu Unites and PEER,” board president Maria Leon-Vazquez said, reading a statement at the start of the meeting, after the board had met privately in closed session.

However, as the meeting went on, Malibu parents who came to speak during public comment became agitated that the board was not responding to their concerns at the meeting.

“Anyone else like to address the Malibu question?” one woman shouted from the audience.

“Are we invisible?” another woman shouted.

“I think the concern is what Maria said earlier about the lawsuit,” board member Ben Allen replied to the women, who then left the board room.

In a later interview, Allen clarified his remarks.

“The concern is that Malibu’s a pending lawsuit,” Allen said, “It puts us in a different place all of a sudden, which is the challenge here.”

Allen also suggested that unless there is a resolution, he anticipates that the MHS issue will not be put on the board’s agenda.

“The president and the vice president and the superintendent don’t want to agendize anything about the high school [while there is a suit being served],” Allen said, adding, “I suppose there could be a resolution before [Oct. 18].”

In the interim, PEER and Malibu Unites have published their own test results of PCB levels in caulk at the high school, in a release on Tuesday that was also sent directly to the District Attorney’s Office.

According to the release, “The Environmental Crimes Section of the District Attorney’s Office is reviewing the latest test results for violations of several California state statutes.”

“We are certainly hoping that [the district] will pay attention to these results,” Dinerstein said. “If there’s any doubt about their legitimacy of the results or anything, they should just redo the tests.”

Allen said he would be open to viewing the outside tests.

“I’ll look at whatever’s out there,” he said.

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