School District Violated Federal Law, Judge Rules

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A federal judge ruled that the Santa Monica Malibu School District violated the Toxic Substances Control Act for failing to remediate Malibu schools for polychlorinated biphenyls (PCBs) — but upheld the current school district’s schedule for remediation.

The court concluded “based on common sense,” that PCBs are likely still on Malibu’s campuses and require remediation. Local advocacy group America Unites for Kids brought the lawsuit against the district.

“Without this lawsuit, Malibu students and teachers would be sitting in PCB classrooms indefinitely,” Jennifer deNicola, President of America Unites, said in a statement provided by the group.

The district is now court ordered to complete its “Windows, Paint, Floors and Doors” modernization plan by Dec. 31 2019, which would “necessarily remove and replace certain building materials that have been the subject of concern due to the potential presence of [PCBs].” 

Despite being named as violators of federal law, the district has characterized the ruling as an approval of its modernization plan. A written statement delivered by the district implied the remediation effort would have occurred without the court order.

“With the planned modernization already in the works at Malibu High School and nearly complete at Cabrillo, which is the court’s endorsed remedy, we’re very pleased to now turn back to our primary purpose of providing quality education for our students,” Board of Education President Laurie Lieberman said in the release sent out Sept. 1.

Modernization projects at MHS and Juan Cabrillo, including a new library and academic building at the high school and remodel of several classrooms, were proposed as far back as 2006 with the passage of Bond Measure BB — years before the discovery of PCBs on campus. This project was held up by an unrelated lawsuit that was resolved earlier this year.

Skeptics believe a court order was required to keep the district to its word.

“Would the district remediate PCBs by 2019 as ordered by the judge on its own? The answer, to me, is, ‘No,’” Santa Monica Malibu School Board Member Oscar de la Torre said. “We needed a judge to tell us what we should’ve done from day one.”

The school district previously rejected the principle that it was required to test for and remediate PCBs, due to the Environmental Protection Agency’s standards that dictate remediation is only necessary if air and light sample tests reveal PCBs in excess of 50 parts per million.

America Unites presented independent testing for the federal court case, which proved areas of Juan Cabrillo Elementary School and Malibu High School contained PCBs ranging from 330 ppm to 570,000 ppm.

To fight the lawsuit, the school district hired the law firm Pillsbury Winthrop Shaw Pittman. The firm was hired at a rate of $695 dollars per hour and the district eventually paid over $5 million dollars in legal fees, raising some eyebrows. 

“I think it’s a travesty that we would invest public dollars to not do the right thing,” de la Torre said.

Since PCBs have become a part of Malibu lexicon, the student population has fallen from nearly 1,900 students to 1,650, with many parents opting to enroll students in private schools. Despite the trend, the district feels it has kept the public’s trust.

“We have hundreds of families who have supported and trusted this process,” Pinsker said in an email to The Malibu Times. “We want to thank all those families who have stayed the course.”

The district has an agreement with the EPA to conduct testing for PCBs for next summer in addition to this past summer. As building materials are replaced, the schools will be tested for PCBs to ensure they have been properly remediated.

The court’s decision is the beginning of a resolution, but for some the damage is done.

“You can’t spend millions to regain public trust,” de la Torre said.