PCB Lawsuit Advances in Federal Court

A federal judge Monday denied the Santa Monica-Malibu Unified School District’s motion to dismiss the lawsuit brought against them by America Unites For Kids (formerly Malibu Unites) and Public Employees for Environmental Responsibility (PEER), which alleges that the District has violated the Toxic Substances Control Act in its handling of PCBs on the campuses of Malibu High School and Juan Cabrillo Elementary.

The suit, filed in March, demands the district test the caulk in all classrooms built before 1979 and remove PCBs over 50 parts per million.

Since high PCB levels at MHS came to light in October 2013, a heated debate has erupted as to the safest way to proceed with testing and cleanup.

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 judge’s decision means that the court case will proceed.

“We are happy that the district’s attempts to obstruct our path to the courthouse have been rejected,” stated PEER Senior Counsel Paula Dinerstein in a statement released by America Unites.

Though America Unites sees the judge’s decision as a good sign for the strength of their case, District spokespeople expressed confidence Tuesday the judge will uphold their method of dealing with PCBs, which is to follow the direction of the Environmental Protection Agency.

“SMMUSD would have preferred that the court dismiss the lawsuit outright; however, the ruling is a sound endorsement of the EPA policy regarding management of PCBs in building materials in schools, which has been closely followed by SMMUSD,” reads a statement released by District spokesperson Gail Pinsker. “The court has stated that it will not interfere with the EPA’s regulatory authority establishing a health-based screening program regarding the presence of PCBs in schools.”

The judge’s decision was to wait and see.

“Plaintiffs have plausibly alleged the existence of additional PCB-containing caulk at the subject schools. As the Court has already concluded, those plausible allegations justify allowing this action to continue past the pleading stage to permit Plaintiffs, at a minimum, to conduct air and surface wipe testing at additional locations to determine if additional destructive testing is warranted under the EPA’s policies,” Federal Judge Percy Anderson wrote in his decision.

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