After years of concern over toxic contamination in Malibu schools, the City of Malibu considered taking legal action — backed up by widespread frustration from council members.
The Santa Monica Malibu Unified School District has long affirmed that their response to toxic polychlorinated biphenyls (PCBs) in Malibu High School and Juan Cabrillo Elementary was following the Environmental Protection Agency’s guidelines.
That explanation may have worked in the past, but it met a different reaction at Malibu’s Aug. 8 city council meeting.
“What’s frustrating to me is the amount of money — and I don’t know how much it is, because I’ve heard a lot of rumors — that’s been spent on defending, not doing anything,” Council Member John Sibert said. “It just seems unconscionable that the testing wasn’t done to know what’s there.”
The discussion was prompted by a suggestion made by Jennifer deNicola during the June 13 council meeting to pursue PCB remediation as a legal “public nuisance.” DeNicola is president of America Unites for Kids and a current city council hopeful.
City staff investigated pursuing this option and put it on the Aug. 8 council meeting’s agenda, where advocates for PCB remediation, including attorney Kevin Shenkman, came to try to convince council to move on legal action.
“Ultimately, this city council is the fact finder in determining — based on that evidence and whatever evidence the school district wants to provide — whether the PCB levels are higher than 50 parts per million,” Shenkman said.
“The bottom line is, no matter how you twist and turn it, these children are not safe,” Mayor Lou La Monte said. “The only thing I’ve come out of this evening with is, we need to fight even harder to get our school district away from [Santa Monica]. That’s the most important thing we have to do. That’s really the way we’re going to solve this problem.”
According to Shenkman, the city council would be able to move forward with a public nuisance proceeding without issue. However, city staff disagreed.
According to City Attorney Christi Hogin, public nuisance cases are typically used for buildings that have hoarding issues or fire safety concerns, but using it for remediating a toxic substance against another public agency would complicate the proceedings.
“It’s not unusual for two attorneys to disagree — that’s why we have courts,” Shenkman said.
The district was represented at the meeting by Interim Director of Facility Improve Projects for SMMUSD Cary Upton, who answered many of the council’s questions.
Upton explained the district’s “Windows, Paint, Floors and Doors” modernization plan effectively remediates Malibu High School and Juan Cabrillo Elementary, but the modernization plan wouldn’t address potential PCB concerns in Point Dume Elementary or Webster Elementary for potentially another year or two.
Council Member Joan House asked why the district hadn’t tested all of Malibu’s schools for PCBs.
“Once we do the testing, if it is found that we have PCBs over 50 parts per million, then we would go in and do air testing to make sure we have exposure levels that are approved,” Upton said, “but at some point or another, that is going to create a situation that’s going to make us potentially move students much faster and potentially move them out of … out of our places here.”
“It sounded like he was doing a really bad job of repeating a company line,” Shenkman said in response.
School Board Member and Malibu resident Craig Foster also spoke to urge city action.
“If you do not authorize further legal investigation tonight, please reserve that as an option for the future and ask staff to consider other choices to continue to help bring this tragic affair to a close,” Foster said. “A final resolution to this issue may well ultimately depend on your actions.”
Hogin advised the council to take an interim step by contacting Cal Strategies and the EPA over the next few weeks. The council chose not to make a decision on pursuing the public nuisance option.