This story has been updated. Please see editor’s note below.
December marked a tough month for parent activist Jennifer deNicola and her group, America Unites for Kids (AU), which was dealt a blow in the U.S. District Court when U.S. District Judge Percy Anderson levied sanctions against AU and another advocacy group, Public Employees for Environmental Responsibility (PEER), saying that a series of independent source tests looking for PCBs at Malibu High (MHS) and Juan Cabrillo Elementary (JCES) schools in 2015 constitute a “pattern of unauthorized, illegal and wrongful testing [that] is an outrageous abuse of the judicial process.”
Anderson, in a Motion for Sanctions dated Dec. 21, went on to say the groups showed “no remorse for their conduct and … threatened to undermine the integrity of the court’s orders.”
AU and PEER are plaintiffs in a lawsuit filed against Santa Monica-Malibu Unified School District (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 suit is designed to speed PCB testing and removal at Malibu schools.
Since filing the lawsuit in March 2015, 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.
“We are meeting the letter of the law and continue to be in compliance with EPA guidelines,” SMMUSD Spokesperson Gail Pinsker said when the SMMUSD air and wipe test results were published in September 2015.
“We are definitely disappointed in the judge’s decision and subsequent sanctions,” AU said in a statement emailed to The Malibu Times. “This has never been about money, but has simply been about protecting students and teachers from toxic PCBs. Based on all the testing that has been done to date, all stakeholders are aware that there are toxic PCBs throughout the schools more than 50ppm.”
AU and PEER strongly disagree that air and wipe samples are sufficient to ensure safety to students and staff and have been conducting their own source tests — according to Anderson, against express orders by the District Court, which twice “denied plaintiffs permission to conduct the site inspection and sampling on the expedited schedule they sought.
“There is no authority that allows a party to enter onto the property of another, damage that property and remove items from the property without permission,” Anderson wrote.
It is not clear whether the testing at MHS in October was performed by deNicola, who has not formally taken responsibility for the tests. She was largely considered the subject when the SMMUSD asked the sheriffs to look into possible vandalism as a result of source testing at MHS.
Anderson does not seem to doubt it was deNicola.
“The fact that the District Attorney chose not to prosecute deNicola does not absolve her of the consequences for her wrongful conduct,” Anderson wrote.
The sanctions against AU and PEER could prove hugely detrimental to their cause. They include the dismissal of all data gathered in independent source tests by the plaintiffs and footing the bills not only for repairs where vandalism took place, but legal fees for the defendants in the case, which could number in the tens of thousands of dollars. Building repairs, according to SMMUSD estimates reported by Anderson, could reach $120,000, though “plaintiffs dispute the damage will be that expensive to repair.”
Foster, a defendant in the case, told The Malibu Times the decision may be telling of what Anderson may decide when the case goes to trial later this year.
“The judge seems to be leaning toward the EPA’s focus on PCBs in dust and air,” Foster said. As for the mission of AU, the skyrocketing costs may be a barrier.
“It may be that the road to getting these PCBs out of schools is leading toward changing the law,” Foster added, which, in other words, means that AU may petition the legislature to change the law, putting the focus on source testing. “That concerns me, because I share America Unites’ concerns about PCB sources.”
Though it’s unclear exactly how much money is in AU’s coffers today, an emailed messaged entitled “Urgent: We Need Your Help Now,” may hold a clue.
“We are now at a critical juncture. And we must turn to our community of supporters for help,” the email, sent Dec. 30, read. “The situation is critical.” The stated goal of the message was to raise $75,000 by Jan. 11.
It is unclear whether this goal was met.
Editor’s note: A statement from America Unites was not available by the time The Malibu Times went to print. This statement has been added to the web edition.