Malibu Parents and Teachers Sue the Santa Monica-Malibu Unified School District for Violations of the Toxic Substances Control Act

AMERICA UNITES FOR KIDS, and PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,

Plaintiffs,

v.

SANDRA LYON, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT, JAN MAEZ, IN HER OFFICIAL CAPACITY AS ASSOCIATE SUPERINTENDENT AND CHIEF FINANCIAL OFFICER OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT, AND LAURIE LIEBERMAN, DR. JOSE ESCARCE, CRAIG FOSTER, MARIA LEON-VAZQUEZ, RICHARD TAHVILDARAN-JESSWEIN, OSCAR DE LA TORRE, AND RALPH MECHUR, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE TOXIC SUBSTANCES CONTROL ACT

America Unites and PEER will no longer allow the Santa Monica Malibu Unified School District to play the games of “Don’t Test, Don’t Know” (as long as they don’t test the caulk, they don’t have to remove it) or “Test, But Don’t Tell” (when they find PCBs over 50ppm and don’t tell the public).

After eighteen months and $4 million dollars spent, it is time for all games to cease.

The Malibu community has pleaded to SMMUSD to TEST the caulking, REMEDIATE in compliance with the law & PROTECT students and staff by moving into PCB-free portables, but SMMUSD made it clear on March 20, 2015 that they will continue their plan for Best Management Practices Cleaning (BMPs) as the only method of protection.

EPA confirms that BMPs are not scientifically proven to be effective nor does it comply with the law.

Congress called out only one chemical, PCBs, in the Toxic Substances Control Act, because of the undeniable evidence that PCBs are an unacceptable risk to human health.

What the Malibu community is asking for is nothing more than what Hartford, CT immediately and voluntarily did when they discovered PCBs in their school in Dec 2014. See Hartford, CT news article:

http://touch.courant.com/#section/-1/article/p2p-83034403/

Hartford, CT has spent only $40,000 to identify PCB sources. In stark contrast, the SMMUSD has spent approximately $4,000,000 NOT to identify PCB sources.

Moreover, the SMMUSD’s Superintendent Sandra Lyon sought the assistance of the California Association of School Administrators to lobby the EPA to not enforce PCB source testing and remediation in Malibu schools.

Thereafter, on August 1, 2014 Laura Preston, legislative advocate for the California Association of School Administrators, sent an email to Jared Blumenfeld, EPA Region 9 Administrator, in which she revealed that her organization had been working with Superintendent Sandra Lyon for several months on the PCB issue in Malibu schools. She expressed that her office had also met with the offices of all of our state and federal elected officials, including the California Governor’s office about this issue.

This email suggested that Blumenfeld’s actions could give the appearance of “preferential treatment “ to Malibu. Preston said that: “…any preferential treatment to the community of Malibu will give the appearance that an affluent largely white community will receive preferential treatment. This can easily become a civil rights issue for all of us.” https://lawofficesofbarryfagan.files.wordpress.com/2015/03/california-association-of-school-administrators-email-to-epa.pdf

This email, unfortunately, reveals the type of political lobbying that has taken place between Sacramento and the EPA to not actively identify and remove the illegals levels of PCBs in Malibu Schools.

The SMMUSD appears to be more interested in attempting to limit their exposure to liability from a toxic tort complaint, rather than to just simply comply with the TSCA, and protects its students and teachers from this continuing harm.

Malibu parents and teachers are not requesting “preferential treatment.” Plaintiffs’ are simply asking the district to comply with Federal law, and for students and teachers in EPA Region 9 to receive the same level of precaution and health protection currently enjoyed by students and teachers in other EPA regions.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Charles Avrith (SBN 96804)
NAGLER & ASSOCIATES
2300 S. Sepulveda Boulevard
Los Angeles, California 90064-1911
Telephone: (310) 473-1200
Facsimile: (310) 473-7144
Email: cavrith@nagler.com

Attorneys for Plaintiffs America Unites for Kids and
Public Employees for Environmental Responsibility

Paula Dinerstein (Pro Hac Vice Application Pending)
Public Employees for Environmental Responsibility
2000 P. Street NW, Ste. 240
Washington, DC 20036
Telephone: (202) 265-7337
Email: pdinerstein@peer.org

Attorneys for Public Employees for Environmental Responsibility

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA – WESTERN DIVISION

AMERICA UNITES FOR KIDS, and
PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,

Plaintiffs,

v.

SANDRA LYON, IN HER OFFICIAL
CAPACITY AS SUPERINTENDENT OF
THE SANTA MONICA MALIBU
UNIFIED SCHOOL DISTRICT, JAN
MAEZ, IN HER OFFICIAL CAPACITY
AS ASSOCIATE SUPERINTENDENT
AND CHIEF FINANCIAL OFFICER OF
THE SANTA MONICA MALIBU
UNIFIED SCHOOL DISTRICT, AND
Case No.

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF FOR
VIOLATION OF TOXIC
SUBSTANCES CONTROL
ACT

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LAURIE LIEBERMAN, DR. JOSE
ESCARCE, CRAIG FOSTER, MARIA
LEON-VAZQUEZ, RICHARD
TAHVILDARAN-JESSWEIN, OSCAR
DE LA TORRE, AND RALPH MECHUR,
IN THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE SANTA MONICA
MALIBU UNIFIED SCHOOL DISTRICT
BOARD OF EDUCATION,

Defendants.

Plaintiffs America Unites for Kids (formerly Malibu Unites) (“American
Unites”) and Public Employees for Environmental Responsibility (“PEER”), on
behalf of themselves and their members, allege as follows:

JURISDICTION, NATURE OF THE ACTION AND VENUE
1. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331
(federal question), 28 U.S.C. §2201 (declaratory judgment), and 15 U.S.C. §2619
(TSCA citizen suit provision).
2. This is a citizen suit under the Toxic Substances Control Act
(“TSCA”), 15 U.S.C. §2619, seeking to restrain ongoing violations of TSCA and its
implementing regulations by the Defendants, administrators and members of the
Board of Education of the Santa Monica Malibu Unified School District
(“SMMUSD” or “District”). The ongoing violations of TSCA stem from the
continued use at Malibu Middle and High School (“MHS”) and Juan Cabrillo
Elementary School (“JCES”) (collectively “Malibu Schools”) of polychlorinated
biphenyls (“PCBs”) in caulk and other building materials at concentrations of
greater than 50 parts per million, other than in a totally enclosed manner, as well the
continued use of materials with surfaces having PCB concentrations in excess of 10
micrograms (ug) per 100 square centimeters (cm2).
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3. Plaintiffs seek declaratory and injunctive relief requiring Defendants to
cease ongoing violations of TSCA by removing all building materials which violate
TSCA and its implementing regulations from the Malibu Schools.
4. Venue is proper under 15 U.S.C. §2619(a)(2) because this is the district
in which the alleged violations are ongoing, and in which Defendants have their
principal place of business.
5. Plaintiffs will also be filing a Motion for Preliminary Injunction,
seeking immediate removal of caulk which has already been determined by
laboratory testing to contain PCBs in excess of legal limits, and an application for
Expedited Discovery under Fed. R. Civ. P. 34(a)(2) to enter the Malibu Schools and
sample and test building materials to determine whether illegal levels of PCBs exist
in those materials.
6. Plaintiffs gave notice of the Administrator of the Environmental
Protection Agency (“EPA”) and the Defendants of the alleged violations more than
60 days prior to the filing of this Complaint, in accordance with 15 U.S.C. §2619(b)
and 40 C.F.R. 702.62 (1982).

PARTIES AND STANDING
7. Plaintiff America Unites for Kids (formerly Malibu Unites) is a non-
profit 501(c)(3) organization incorporated in California with members and
supporters who are parents, teachers and community members at the Malibu
Schools. The mission of America Unites is to ensure environmental health
excellence in schools for all children and those that educate them. Members of
America Unites are injured by the ongoing violations of TSCA at the Malibu
Schools because they have children who attend school in classrooms with illegal
levels of PCBs, which have been found to cause cancer and have other serious
health effects, or because they have been forced to withdraw their children from the
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Malibu Schools in order to avoid exposure to illegal levels of PCBs, or because they
teach in those classrooms.
8. Plaintiff Public Employees for Environmental Responsibility (PEER) is
a non-profit 501(c)(3) educational and advocacy organization, incorporated in
Washington, D.C., which advocates for public employees concerned with
environmental issues, including the “Concerned Malibu/Cabrillo Teachers,” a group
of 30 teachers and staff at the Malibu Schools. Members of PEER, including
teachers and staff and the Malibu Schools, are injured by the ongoing violations of
TSCA at the Malibu Schools because they work in classrooms which have illegal
levels of PCBs, which have been found to cause cancer and have other serious
health effects.
9. Defendant Sandra Lyon is the Superintendent of the SMMUSD, and is
engaged in ongoing violations of TSCA by permitting and failing to act to remedy
the unauthorized use of materials containing illegal levels of PCBs in the Malibu
Schools. She is being sued in her official capacity.
10. Defendant Jan Maez is the Associate Superintendent and Chief
Financial Officer of the SMMUSD, and is engaged in ongoing violations of TSCA
by permitting and failing to act to remedy the unauthorized use of materials
containing illegal levels of PCBs in the Malibu Schools. She is being sued in her
official capacity.
11. Defendants Laurie Lieberman, Dr. Jose Escarce, Craig Foster, Maria
Leon-Vazquez, Richard Tahvildaran-Jesswein, Oscar De La Torre and Ralph
Mechur are members of the SMMUSD Board of Education, and are engaged in
ongoing violations of TSCA by permitting and failing to act to remedy the
unauthorized use of materials containing illegal levels of PCBs in the Malibu
Schools. They are being sued in their official capacities.
///
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LEGAL BACKGROUND
12. Congress enacted TSCA in 1976, 15 U.S.C. §2601 et seq., to “regulate
chemical substances and mixtures which present an unreasonable risk of injury to
health or the environment.” 15 U.S.C. §2601(b)(2).
13. PCBs are the only chemicals which Congress specifically identified for
regulation under TSCA. TSCA imposed a near-total ban on PCBs because
Congress determined that the chemical and toxicological properties of PCBs posed a
significant risk to public health and the environment. 15 U.S.C. §2605(e)(2)(A)
states:
Except as provided under subparagraph (B), effective one
year after the effective date of this Act [January 1, 1977]
no person may manufacture, process, or distribute in
commerce or use any polychlorinated biphenyl in any
manner other than in a totally enclosed manner.
14. In TSCA, in subparagraph B referenced in the preceding quotation,
Congress gave EPA the authority to promulgate rules granting exceptions to the
statute’s PCB ban, upon a finding that a particular manufacture or use of non-totally
enclosed PCBs “will not present an unreasonable risk of injury to health or the
environment.” 15 U.S.C. §2605(e)(2)(B); §2605(e)(3)(B).
15. TSCA requires that any EPA exceptions to its PCB prohibition be
promulgated in a rulemaking proceeding in accordance with the notice and comment
requirements of the Administrative Procedure Act (APA). 15 U.S.C. §2605(e)(4);
§2605(c)(2). Any exceptions to TSCA’s PCB ban are judicially reviewable under
the APA and must be supported by substantial evidence. E.g. Environmental
Defense Fund, Inc. v. EPA, 636 F.2d 1267 (D.C. Cir. 1980).
16. In the rules implementing TSCA’s PCB ban (“PCB Regulations”), the
EPA Administrator found based on the documented scientific evidence that any use
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of items containing PCBs at 50 ppm or greater did pose an unreasonable risk of
injury to health. The Administrator found:
that the manufacture, processing, and distribution in
commerce of PCBs at concentrations of 50 ppm or greater
and PCB Items with PCB concentrations of 50 ppm or
greater present an unreasonable risk of injury to health
within the United States. This finding is based upon the
well-documented human health and environmental hazard
of PCB exposure, the high probability of human and
environmental exposure to PCBs and PCB Items from
manufacturing, processing, or distribution activities; the
potential hazard of PCB exposure posed by the
transportation of PCBs or PCB Items within the United
States; and the evidence that contamination of the
environment by PCBs is spread far beyond the areas where
they are used. . . .
40 C.F.R. 761.20 (emphasis added).
17. “PCB Item” is defined in the PCB Regulations to mean “any PCB
Article, PCB Article Container, PCB Container, PCB Equipment, or anything that
deliberately or unintentionally contains or has as a part of it any PCB or PCBs.” 40
C.F.R. 761.3 (1999) (emphasis added). “PCB Items” include PCB-containing
building materials such as caulk.
18. 40 C.F.R. 761.20(a) expressly provides that, except for certain limited
situations not applicable here, “[n]o person may use any PCB, or any PCB item
regardless of concentrations, in any manner, other than in a totally enclosed manner
within the United States unless authorized under [40 C.F.R. 461.30].” None of these
exceptions apply to PCBs at concentrations greater than 50 ppm.
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19. Exclusions to the ban on the use of PCBs and PCB Items are also
found in 40 C.F.R. 761.30 (2012). See 40 C.F.R. 761.20(a). 40 C.F.R. 761.30
(2012) contains exemptions for the use of materials containing PCBs in
concentrations of 50 ppm or greater which are not totally enclosed in limited
circumstances in uses such as in transformers and natural gas pipeline systems. 40
C.F.R. 761.30 (2012). None of the exceptions permitting the use of materials
containing PCBs in concentrations of 50 ppm or greater applies to caulk or other
building materials.
20. TSCA defines “totally enclosed manner” as a manner that “will ensure
that any exposure of human beings or the environment to a [PCB] will be
insignificant as determined by the Administrator rule.” 15 U.S.C. §2605(e)(2)(C).
In the PCB Regulations, the EPA Administrator found that the exception from the
PCB ban for totally enclosed PCB Items applies only to situations where there is
zero exposure to humans or the environment. 40 C.F.R. 761.20 provides as follows:
“For purposes of determining which PCB Items are totally
enclosed, pursuant to section 6(e)(2)(C) of TSCA, since
exposure to such Items may be significant, the
Administrator further finds that a totally enclosed manner
is a manner which results in no exposure to humans or the
environment to PCBs.”
40 C.F.R. 761.20 (emphasis added). PCBs in caulk and other building materials
result in exposure to humans or the environment to PCBs. Thus, the use of PCBs in
caulk and other building materials is not a use in a totally enclosed matter under
TSCA.
21. EPA has publicly confirmed that caulk and other building materials
containing PCBs at levels at or over 50 ppm are not authorized for use under the
PCB Regulations and must be removed and disposed of in accordance with those
Regulations. EPA has consistently stated, “[t]he use of PCBs in caulk is not
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authorized under TSCA’s PCB regulations.” EPA, Facts About PCBs In Caulk,
www.epa.gov/pcbsincaulk/guide/guide-sect1.htm.
22. The PCB Regulations applicable to materials containing 50 ppm or
greater PCBs also apply to “PCB Contaminated” materials which contain PCBs at
greater than 50 ppm or have surface PCB concentrations of greater than 10 ug per
100 cm2. 40 C.F.R. 761.1(b)(3) (1999); 761.3.
23. When PCBs are found at levels which violate the PCB Regulations,
they must be removed and disposed of in accordance with the PCB disposal
regulations. 40 C.F.R. 761.61 (2009); 41 C.F.R. 761.62 (2009).
24. For PCB “Remediation Waste,” which includes soil and building
materials contaminated with PCBs, the PCB disposal regulations include a site
characterization in which materials are sampled to identify the nature and extent of
the contamination. 40 C.F.R. 761.61(a)(3). If PCB Remediation Waste is sought to
be disposed of in any manner not specifically prescribed by the regulation, an
application to do so must be approved by EPA upon a finding that “the method will
not pose an unreasonable risk of injury to health or the environment.”
25. If PCB “Bulk Product Waste,” which includes PCB-containing caulk,
is sought to be disposed of in any manner not specifically prescribed by the
regulation, an application to do so must be approved by EPA upon a finding that
“the method will not pose an unreasonable risk of injury to health or the
environment.” 40 C.F.R. 761.62(c)(2).
26. There are no regulatory standards for PCB concentrations in indoor air.
Rather, the statutory and regulatory scheme is directed at prohibiting the
manufacture, distribution and continued use of materials containing PCBs, and
providing for their proper storage and disposal. There are no exceptions to the
statutory and regulatory prohibitions based on whether or not, or to what extent,
PCB-containing materials are causing contamination of indoor air or dust.
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27. By informal means, such as posting on its website, EPA has created
“suggested public health levels” for PCBs in indoor air in schools. These suggested
levels assume that there are not additional PCB exposures above background levels
from dust, soil or outdoor air. EPA has cautioned that the “suggested public health
levels” should be used with “an appreciation of the uncertainty surrounding the
estimates,” and that they do not take into account direct ingestion or contact with
contaminated building materials. EPA’s “PCBs in Caulk – Q & A” http://www.epa.
gov/pcbsincaulk/pdf/caulk_faq.pdf, p. 12 ¶¶ 38, 40.
28. The “suggested public health levels” of PCBs for indoor air in schools
have no regulatory basis and do not affect the statutory and regulatory scheme under
TSCA which prohibits the continued use of any building materials containing PCBs
in concentrations of 50 ppm or greater or surface concentrations of greater than 10
ug per 100 cm2.
29. Apart from having no regulatory basis, the “suggested public health
levels” for PCBs in indoor air are not appropriate for use in Malibu because, among
other reasons, they do not take into account the following: additional exposure
pathways known to exist in Malibu, such as elevated concentrations of PCBs on
building surfaces and in dust and outdoor soil; direct contact with (touching) and
possible ingestion of materials containing PCBs by children; risks to the unborn
children of pregnant teachers (the “suggested public health levels” are based on the
age of the children in the classroom); and because they are based on levels of total
PCBs and do not take into account exposure to far more toxic, dioxin-like
congeners, which have been found in the Malibu Schools.
30. TSCA makes it unlawful to fail to comply with its provisions or any
regulation promulgated under the Act. 15 U.S.C. §§ 2614; 2689. TSCA provides
for civil penalties for such violations and for knowing and willful violations, fines of
not more than $25,000 for each day of violation, or imprisonment for not more than
one year, or both. 15 U.S.C. § 2615.
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31. TSCA provides for citizen suits against any person or entity alleged to
be in violation of TSCA to restrain violations of the Act, which may be filed after at
least 60 days’ notice of the violation to the alleged violator and the Administrator of
EPA. 15 U.S.C. § 2619.
32. On January 12, 2015, Plaintiffs America Unites and PEER served a
Notice of Intent to Sue the Defendants for ongoing violations of TSCA and its
implementing regulations by the continued use at Malibu Middle and High School
and Juan Cabrillo Elementary School of PCBs in caulking materials at
concentrations of greater than 50 parts per million other than in a totally enclosed
manner, as well the continued use of “PCB-Contaminated” materials. The Notice of
Intent to Sue was sent to the Defendants and the EPA by certified mail, return
receipt requested. A copy of the Notice, without exhibits, is attached hereto as
Exhibit A. The receipts which were returned to Plaintiffs evidence that the latest
that any Defendant or the EPA received notice of Plaintiffs’ intent to sue was
January 20, 2015.
FACTUAL BACKGROUND
A. Nature and Uses of PCBs
33. Polychlorinated biphenyls (PCBs) belong to the family of man-made
organic chemicals known as chlorinated hydrocarbons. PCBs were domestically
manufactured from 1929 until their manufacture was banned by TSCA in 1976
because of their toxicity. Due to their non-flammability, chemical stability, high
boiling point, and electrical insulating properties, PCBs were used in hundreds of
industrial and commercial applications including electrical, heat transfer, and
hydraulic equipment; as plasticizers in paints, plastics, caulk, and rubber products;
and in pigments, dyes, and carbonless copy paper.
34. PCBs do not readily break down in the environment, but persist for
long periods. They volatilize from liquid and solid PCB-containing materials and
cycle between air, water and soil.
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35. Although PCBs were no longer manufactured or distributed after 1979,
due to their persistent nature, materials containing PCBs remain widespread to this
day. Materials such as caulk containing PCBs continue to have high levels of PCBs
as long as 60 years after installation, and will continue to emit PCBs into the
environment far into the future.
36. In schools built before 1980, PCBs can be found in caulk, window
glazing, florescent lighting ballasts, paint, joint sealants, ceiling tile coatings and
other building materials.
37. The PCBs used in these products are chemical mixtures made up of a
variety of individual chlorinated biphenyl components, known as congeners.
Aroclor is a trade name for common commercial mixtures of PCB congeners which
were manufactured by Monsanto in the United States, and is the type of PCB
product found in the Malibu Schools.
38. PCBs in one material, for example, caulk, volatilize into the air and are
absorbed by surrounding materials, causing wood, brick, concrete and other building
materials to become contaminated with PCBs. These secondary sources of PCBs
can also volatilize and contaminate the air, dust, and other materials in the building.
PCBs in buildings can also volatilize and be deposited into and contaminate
surrounding soil.
39. Exposure to PCBs can occur through inhalation, ingestion and dermal
contact with PCB-contaminated building materials, air, dust and soil.
40. Caulk and other building materials containing PCBs were used in
schools mainly between 1950 and 1979.
B. Health Effects of PCBs
41. According to EPA, PCBs are probable human carcinogens, and cause
adverse effects on the immune, reproductive, nervous and endocrine systems. EPA,
“Health Effects of PCBs,” available at http://www.epa.gov/wastes/hazard/tsd/pcbs/
pubs/effects.htm#Other.
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42. In 2013, the International Agency for Research on Cancer (IARC)
reassessed the carcinogenicity of PCBs. The Working Group, composed of 26
experts from 12 countries, considered more than 70 independent epidemiological
studies. The Working Group classified PCBs as “known human carcinogens” on the
basis of sufficient evidence of carcinogenicity to humans and experimental animals.
43. Exposure to PCBs can cause liver toxicity, immunotoxicity,
neurotoxicity, reproductive toxicity (including birth defects), developmental
toxicity, endocrine disruption, disrupted insulin function, and changes in thyroid and
steroid hormones.
44. PCBs are a risk factor for autism and attention deficit-hyperactivity
disorder and impaired cognitive function.
45. A high level of PCBs in humans is also a risk factor for heart disease,
hypertension and diabetes.
46. Exposure to PCBs is also a risk factor for asthma and respiratory
diseases.
47. PCBs accumulate in the human body (bioaccumulate) and remain in
the body for many years after exposure.
48. PCB congener 126 is a dioxin-like chemical which is highly stable and
resistant to biodegradation, and the most toxic of all of the PCB congeners.
According to EPA’s Regional Screening Levels, which attempt to compute PCB
concentration levels protective of human health, PCB 126 is orders of magnitude
more toxic than other PCB congeners and PCB commercial mixtures (Aroclors).
49. PCBs are one of only 17 chemicals slated for elimination
internationally by the Stockholm Convention on Persistent Organic Pollutants,
ratified by 150 countries and entered into force in 2004.
C. History of PCBs at the Malibu Schools
50. In 2009 and 2010, the District conducted environmental reviews in
connection with planned improvements on the Malibu High School campus. As part
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of these reviews, ARCADIS (the District’s environmental consultant) reported to
the District that the soil in the Middle School Quad (located on the MHS campus)
was contaminated with PCBs at over 11 times the California Human Health
Screening Levels established by the California Environmental Protection Agency, as
well as with pesticides and other toxins.
51. In 2010, ARCADIS concluded that the PCBs and pesticides in the soil
posed an “unacceptable health risk” and proposed a removal action plan. “Removal
Action Workplan Malibu Middle and High School Campus Improvements Project,”
available at http://fip.smmusd.org/downloads/MalibuMHS_Removal.pdf
52. This plan was carried out during the summer of 2011, while summer
school was in session. The District removed 48 truckloads of soil (1,179 cubic yards
weighing 1,158 tons) from the Middle School Quad, which, unbeknownst to parents
and teachers at the time, was contaminated with PCBs and pesticides.
53. Neither ARCADIS nor the District attempted to determine the source
of the PCBs in the soil, or to test building materials to determine if they also
contained PCBs which may have migrated to nearby soils.
54. In the two year period following the soil removal, three teachers then
working at the MHs campus were diagnosed with thyroid cancer – a disease with an
expected annual incidence of 1.29 per 10,000 Americans. As of today, at least three
student alumni have also been diagnosed with thyroid cancer. There are also at least
14 known cases of thyroid disease among teachers, and three cases of melanoma or
pre-melanoma (a cancer which is also associated with exposure to PCBs) among
teachers and former teachers, as well as other serious health problems.
55. In October 2013, several teachers wrote to the District with concerns
that medical conditions they suffered may have been caused by the school
environment. They pointed to three diagnoses of thyroid cancer among them within
the preceding six months, several other cases of thyroid disease, and cases of
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migraines, rashes, hair loss, respiratory problems and bladder cancer. The teachers
asked for environmental testing and for access to testing that had already occurred.
56. Following the public revelation of these medical issues among teachers
and of the 2011 removal of toxic soil, in October 2013 a group of Malibu parents
hired a local environmental scientist to advocate for immediate testing of all of the
school rooms as well comprehensive soil testing. Although no comprehensive soil
testing was performed at that time, at the parents’ insistence some of the school
rooms were tested.
57. Also around that time, some of the classrooms in which teachers had
reported illnesses were vacated and those teachers and their students were sent to
other classrooms or facilities.
58. The District employed Mark Katchen, with the Phylmar Group, to
conduct testing.
59. In the initial testing in November 2013, ten rooms were tested for
PCBs in caulk and interior wall paint (“bulk samples”). These rooms were: the
Library (in the “Great White Building”); Rooms 1, 2, 5, 8 and 9 in the “Blue
Building” or Building E; Room 301 in the “Thresher Building,” or Building F; and
Rooms 103, 104 and 105 in the Mako Building. Building E is primarily a middle
school building; the Library, Building F, the Thresher Building and the Mako
Building are used for both middle school and high school classes.
60. An Environmental Task Force formed by the District including parents
and teachers selected these rooms because of their proximity to where PCBs had
been found in the soil by ARCADIS. The intent was to test the hypothesis that
building materials were the source of the PCBs in the soil. The test results appeared
to confirm this hypothesis.
61. The Phylmar Group originally calculated a Malibu-specific screening
level for cancer from PCBs in indoor air in order to reach a one in one million risk
level (i.e. there would be one excess cancer out of a million people exposed to PCBs
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at this level for the amount of time students and teachers spend in classrooms) of
20.2 nanograms (ng) per cubic meter for staff and 63.7 ng per cubic meter for
students. (The level for staff was lower because they spend more time in the
classrooms). The Task Force agreed to use 20.2 ng as an action-level threshold for
the Malibu Schools.
62. However, after receiving some test results of PCBs higher than 20.2 ng
per cubic meter of air, the District unilaterally changed the screening level to 100 ng
without any input or agreement from the Task Force. Months later, on January 27,
2014, EPA changed the threshold to use 200 ng per cubic meter as a health guideline
for indoor air at the Malibu Schools. EPA’s suggested threshold was based on a
calculation for a school in New York City with significantly different conditions
from those in Malibu.
63. All of the caulk and paint samples from these rooms contained some
level of PCBs. Four of the ten tested rooms had caulk samples with levels above the
regulatory threshold of 50 ppm. The rooms testing above the regulatory limit were
Rooms 1, 5 and 8 in Building E (“Blue Building”) and the Library.
64. Out of 30 wipe (surface) samples in the ten tested rooms, all had some
level of PCBs detected. Four wipe samples had PCBs at levels deemed “PCB
Contaminated” under the PCB Regulations, i.e. above 10 micrograms per 100
square centimeters. These samples all came from window sills in Rooms 1 and 5 in
Building E (“Blue Building”), Room 301 (Thresher Building) and the Library. All
of these rooms with the exception of Room 301 also had levels of PCBs in caulk
exceeding the regulatory limit of 50 ppm.
65. In addition, air samples from the same ten rooms were tested for
PCBs. All of the air samples showed some level of PCBs well above outdoor
background levels. The highest level in these ten rooms was close to 100 ng of
PCBs per cubic meter of air.
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66. The initial samples were tested for all 209 PCB congeners. Most wipe
and bulk samples and many air samples contained PCB 126, the most highly toxic
of the PCB congeners.
67. The three teachers with thyroid cancer all taught in classrooms with
toxic illegal levels of PCB in caulk or with wipe samples considered “PCB
Contaminated” under the PCB Regulations.
68. On November 21, 2013, Steve Armann of EPA Region 9’s PCB
program wrote to Defendant Sandra Lyon, Superintendent of the District, informing
the District that a PCB clean-up plan would be required which included “Removal
and disposal of caulk material and any other source(s) of PCBs present at the
school.”
69. The initial test results indicated that there was some source of PCBs in
all of the ten tested rooms in four different buildings in MHS, which was causing
PCBs to be found in all of the air and wipe samples at well above background
levels. Levels in caulk above regulatory thresholds were found in five out of ten
tested rooms (four with over 50 ppm in caulk and one with over 10 ug per 100 cm2
in a wipe sample). All these results indicated the likelihood of widespread
violations of TSCA throughout the Malibu Schools. However, the District has since
steadfastly refused to test any more caulk or other building materials in the Malibu
Schools to determine the scope and extent of contamination requiring remediation
under TSCA.
70. Instead, since December 2013, the District has tested only air and dust
in selected rooms throughout the Malibu Schools. It is impossible to determine
from air and dust tests whether PCBs in caulk or other materials exceed the
regulatory threshold of 50 ppm or greater than 10 ug per 100 cm2. However, the
initial tests of building materials, as well as later independent testing, indicate that
illegal PCBs are found throughout the Malibu Schools; in some cases at many times
the levels found in the initial testing.
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71. The District’s testing of air and dust revealing the presence of PCBs in
many rooms evidences that there is a source of PCBs in those rooms which could be
above TSCA limits, and in fact is highly likely to be above TSCA limits where the
same type of caulk in the same building tested above legal limits.
72. In December 2013, the District conducted cleaning and pre-and post-
cleaning air and wipe testing in 21 classrooms, including the ten tested previously.
These rooms were in the Building E (“Blue Building”), Building F (“Thresher
Building”), the Great White Building where the Library is located, the Mako
Building, and a faculty office located near the boys’ locker room for the gym, which
is used by both the Middle and High Schools. Despite the fact that the District’s
consultant left the windows open in several of the tested rooms, thus diluting the
PCBs in the samples, all of the tested rooms showed some level of PCBs in the air
significantly in excess of outdoor levels, as well as PCBs in all of the wipe samples,
both pre- and post-cleaning, indicating that there is a source of PCBs in all of these
21 rooms in five different buildings in MHS.
73. In February 2014, the District retained the firm Environ International
(Environ) as its consultant on chemical contamination issues in the Malibu Schools.
74. On April 25, 2014, Environ submitted to EPA its draft
“Comprehensive PCB-Related Building Materials Inspection, Management and
Removal Plan for the Santa Monica-Malibu Unified School District” (hereinafter
“First Environ Plan”) In that Plan, Environ, on behalf of the District, proposed to
remove caulk determined to contain PCBs in concentrations above the regulatory
standard of 50 ppm in the Library and rooms 1, 5 and 8 only in connection with the
demolition or renovation of the buildings in which those rooms are located, even
though no such demolitions or renovations were then scheduled. Environ, again on
behalf of the District, proposed to “manage in place” those PCBs and other
suspected PCB-containing materials in the interim. Management in place would
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consist of general school cleaning and repair or removal only of visibly deteriorating
caulk.
75. The First Environ Plan provided for sampling of building materials
and soils to determine the nature and extent of the presence of PCBs, but only
immediately prior to any renovation or demolition the District might conduct at an
unknown time in the future. If such sampling prior to renovation or demolition
revealed PCBs in excess of regulatory limits, then a site-specific remediation plan
would be created at that time to govern removal and appropriate disposal of PCB-
containing materials from the buildings about to be renovated or demolished. The
First Environ Plan did not provide for any testing of building materials, air, or dust
during the “manage in place” period prior to renovation or demolition.
76. On June 4, 2014, EPA rejected the First Environ Plan. EPA asked for
the submission within 30 days of two separate plans – one for Malibu High School
and one for schools District-wide. EPA demanded a schedule to actually remove
caulk containing 50 ppm or greater concentrations of PCBs, and asked for the
addition to the plan of periodic air and wipe testing pending removal.
77. On July 3, 2014, Environ submitted on behalf of the District its “Site-
Specific, PCB-Related Building Materials Management, Characterization and
Remediation Plan” for the Library and Building E rooms 1, 5 and 8” (hereinafter
“Second Environ Plan.”) Despite EPA’s demand for a schedule to actually remove
illegal PCBs, the Second Environ Plan continued the proposal in the First Environ
Plan to remove and dispose of the illegal caulk and other building materials only
when renovations or demolitions of the buildings occurred at an unknown time in
the future. The Second Environ Plan merely added a provision that removal would
occur within 15 years, if that were sooner than renovation or demolition, with the
possibility of requesting an extension of the 15-year timeframe.
78. The Second Environ Plan provided for no further testing of caulk or
other materials, except in conjunction with building renovation or demolition, or in
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conjunction with caulk removal when more than 15 years had elapsed without
renovation or demolition.
79. Prior to such future removal of caulk and other contaminated
materials, management in place would take place through cleaning (as with the First
Environ Plan), with the addition of air and wipe sampling in selected rooms over a
one year period. EPA has never approved or disapproved the Second Environ Plan.
80. On July 17, 2014 Plaintiffs PEER and America Unites (then Malibu
Unites) submitted comments on the Second Environ Plan, asserting that the Plan
was in violation of TSCA and of EPA’s specific directions for the Plan. Along with
their comments, PEER and Malibu Unites submitted results from independent
testing for PCBs from an EPA-certified laboratory. (First Set of Independent Tests).
The first room to be tested in JCES, Room 19, Building F, had 340,000 ppm PCBs
in the caulk, thousands of times higher than the highest level of 1,870 ppm
previously found in the Library and nearly seven thousand times the regulatory limit
of 50 ppm. The woodshop room in the High School Angel Building had caulk in
the door frame which tested even higher – at 370,000 ppm PCBs.
81. Ironically, Room 19 in JCES was one to which a sixth grade teacher
and her students had been moved during the previous school year to protect them
from exposures in a Middle School room which contained caulk only modestly
above the 50 ppm legal threshold. The District had touted its “protective” action
which in fact moved this teacher and students to a then-untested room with
thousands of times more PCBs.
82. The independent testing also showed that caulk in the office near the
boys’ locker room in MHS exceeded regulatory standards at 190 ppm, and dirt
samples showed PCB levels as much as 11 times higher than EPA’s regional
screening guide in MHS Rooms 1, 2 and 5 in Building E (the Blue Building).
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83. In sum, the First Set of Independent Tests found three rooms with
caulk exceeding legal limits, with two of them in the hundreds of thousands ppm
PCBs.
84. PCBs above regulatory limits had now been found in four different
buildings at all three Malibu Schools – the Elementary, Middle and High Schools.
85. Over the summer of 2014, Environ carried out its plans to clean and
test air and dust in many of the rooms at the Malibu Schools. No caulk or other
building materials (bulk samples) were tested.
86. Unlike the earlier testing by the Phylmar Group, Environ did not test
all of the PCB congeners, but only total PCBs. Also, Environ used a detection level
of approximately 70 ng per cubic meter for air tests, thus producing numerous “non-
detect” results which do not in fact indicate that there were no PCBs in the air. The
earlier testing was able to detect PCBs in outdoor air at 1.23 ng per cubic meter. Its
lowest detection in indoor air was around 3 ng per cubic meter.
87. As noted above, the earlier testing found PCBs in indoor air above
outdoor background levels in all tested rooms, indicating a source of PCBs in those
rooms. The Environ testing avoided such findings by setting the detection level
much higher. Environ’s detection level of 70 ng per cubic meter was not far below
EPA’s health guideline of 100 ng per cubic meter for children ages 3 to 6. As noted
above, EPA has cautioned that it suggested health guidelines for PCBs in air should
be used with “an appreciation of the uncertainty surrounding the estimates.”
88. While Environ claimed to “clear” for occupation all of the Malibu
School buildings based on its air and dust sampling, its findings did not determine
whether or not there were regulatory exceedances in the rooms tested. For example,
Room 19 at JCES, which had 340,000 ppm total PCBs in caulk and 122 ppm PCB
126, more than two million times above the EPA health screening guideline, was
cleared for occupancy by elementary school children. Because Environ did not test
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for individual PCB congeners, it is not known how much of the PCBs which were
detected in the air of Room 19 were PCB 126.
89. When rooms tested above EPA guidelines for PCBs in air and dust,
Environ simply re-cleaned the rooms until a reading below the EPA guidelines
could be obtained. In two rooms, the woodshop room in MHS and an office at
JCES, this did not succeed, and those rooms were closed off, though rooms all
around them, likely built with the same caulk and other building materials, remained
open regardless of whether they had been tested in any form.
90. In a December 2014 Report on its sampling and cleaning efforts over
the summer of 2014, Environ reported that it had tested air and dust in 30 to 60% of
regularly occupied rooms either pre- or post-cleaning. It stated that the tested rooms
were expected to be representative of the non-sampled regularly occupied rooms
because they had the same construction history, similar potentially PCB-impacted
building materials and similar functions and usage patterns. Thus, Environ
concluded that conditions in the rooms not tested were not expected to be different
from those that were tested.
91. The same reasoning would apply to rooms where caulk was tested and
found to be above legal limits; the same results should be expected in other rooms
with the same construction history and similar PCB-impacted building materials,
e.g. caulk.
92. In many cases, the cleaning conducted by Environ for the District over
the summer of 2014 actually increased the levels of PCBs in the air. Cleaning
decreased PCB air concentrations only in a small percentage of cases. Environ
reported that 21% of air samples collected at the same location both pre- and post-
cleaning had increased levels of PCBs after cleaning, 67% remained the same, and
only 12% decreased.
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93. Environ reported that the levels of PCBs in dust samples increased
post-cleaning in 5% of the samples, decreased in 26% of the samples and 68%
stayed non-detect.
94. Thus, the “best management practices” cleaning conducted by the
District actually causes PCBs in the air to increase or stay the same most of the time,
while removing dust succeeds in reducing PCB levels in dust more often than it
raises those levels, although it is not known how temporary the improvement is, i.e.
how soon PCB-laden dust is redeposited.
95. Based on repeated testing in other schools such as those in New York
City, it has been shown that air and dust levels of PCBs are highly variable over
even short periods of time – any particular test only gives a snapshot that could
change substantially from day to day.
96. In Environ’s testing over the summer of 2014, an area of soil near the
woodshop room also exceeded regulatory standards for PCBs in soil. It was fenced
off and a soil removal action subsequently took place under the supervision of the
California Department of Toxic Substances Control. The source of PCBs in that soil
was not determined; however the nearby woodshop room had the highest level of
PCBs in caulk found in the independent tests discussed above.
97. On August 12, 2014, Plaintiff America Unites submitted to the District
a Memorandum containing “Recommendations for PCB Investigation at Malibu
Middle & High” which contained a plan for thorough testing and remediation
throughout the Malibu Schools. This plan was never acknowledged or followed.
98. Also on August 12, 2014 at a public gathering, Cindy Crawford and
her husband, who were MHS parents, offered to pay for full testing of all of the
caulk at the Malibu Schools. The District did not accept their offer.
99. When school re-opened in late August 2014, teachers were threatened
with firing if they did not re-occupy rooms in which caulk or wipe samples had
tested above regulatory limits.
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100. A first grade student whose parents did not want her to attend specialty
classes in a room in Building F of JCES which had tested with extremely high levels
of PCBs in caulk was threatened with truancy.
101. Although EPA had neither approved nor disapproved the Second
Environ Plan to leave PCBs in violation of TSCA in place for 15 years or more, on
August 14, 2014, a District official sent an email to an EPA Region 9 PCB official
stating that the District would remedy the TSCA violations identified at “four
window areas” by June 30, 2015. The District official stated that this was a
“voluntary corrective agreement.” The email also stated: “Additionally should we
find additional TSCA regulated materials, we anticipate voluntary removal of those
materials and will coordinate with the EPA regarding any necessary approvals and
timing.” However, the District did not reference or agree to remove the caulk that
had already been found to be in violation of TSCA in independent tests in additional
rooms; nor did it provide any plans to “find additional TSCA regulated materials.”
102. Also on August 14, 2014, EPA Region 9 Administrator Jared
Blumenthal wrote a letter to Sandra Lyon, Superintendent of the District. The letter
“acknowledge[d] the District’s plan to remove the caulk” from four windows by
June 30, 2015. The letter also stated that “EPA concurs with this approach,” and
that EPA did not recommend “additional testing of caulk unless dust or air samples
persistently fail to meet EPA’s health-based guidelines.” The letter did not address
the extremely high levels of PCBs, up to thousands of times the legal limit, that had
been identified in independent testing, or that many other rooms where caulk had
not been tested were likely to exceed legal limits based on the fact that rooms in the
same building, likely built with the same caulk, had exceedances.
103. In September 2014, additional independent test results from an EPA-
certified laboratory were submitted to EPA and the District. (Second Set of
Independent Tests). Four additional rooms in MHS where caulk had not been
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previously tested were found to exceed regulatory limits, with two of these in the
hundreds of thousands of ppm PCBs.
— Room 401 in the Leopard Building had 146,000 ppm PCBs.
— Room 505 in the Angel Building had 231,000 ppm PCBs.
— Room 205 in the Mako Building had 200 ppm PCBs
— Room 7 in Building E (Blue Building) had 190 ppm.
104. The Second Set of Independent Tests also included a piece of caulk
which was retrieved from a walkway on the MHS campus after it fell out of a trash
bag being hauled by a worker towards the High School parking lot to a car labeled
“air duct cleaning.” This was apparently part of a surreptitious caulk removal effort
which was not reported to the community or to EPA to ensure compliance with
protective practices and disposal regulations. This caulk also tested above the legal
limit at 58 ppm.
105. At this point, every building on the MHS campus (six buildings) and
the only building on the JCES campus where caulk had been tested had exceedances
of the regulatory limit, indicating the likelihood that many more as yet untested
rooms in all of the pre-1980 school buildings have regulatory exceedances.
106. On September 26, 2014, Environ submitted by email a letter to EPA
Region 9 PCB official Steve Armann on behalf of the District regarding
“Supplemental Removal Information for the Library, Building E – Rooms 1, 5 and
8, and Building G, Room 506 at Malibu High School” (hereinafter “Environ
Supplement”). The letter stated that it was intended to supplement and modify the
Second Environ Plan. The document clarified that the four window areas referenced
in the District’s August 14, 2014 email as having TSCA violations were four
windows in the Library, and Rooms 1, 5 and 8. It also stated the District’s intention
to implement a similar remedy for the interior doorframes in the woodshop room,
Room 506. (Room 506 was the room identified in independent testing as having
370,000 ppm PCBs in the caulk in the interior door frame, though Environ’s letter
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did not acknowledge this). The letter noted that wipe samples from the doorframe
exceeded the regulatory standard of 10 ug per hundred cm2 even after repairs and
additional cleaning.
107. The Environ Supplement stated the District’s current intention to
physically remove and replace caulk only from the four window units and one
doorframe. It did not extend even to caulk in other windows and doors in the same
rooms. However, the letter also committed to the same procedures for other
buildings in the District where 50 ppm or greater PCBs are “identified and verified
in building materials,” within one year of identification and verification. However,
the Supplement did not acknowledge or address the findings in the independent tests
of caulk exceeding legal limits.
108. In October 2014, America Unites asked the laboratory to re-run the
caulk from the two rooms with the highest PCB concentrations (JCES Room 19 and
the High School woodshop room) for all of the PCB congeners, and then
specifically for congener 126, the most toxic of all of the PCB congeners. The
samples had previously been analyzed only for total PCBs. These new tests found
the presence of congener 126 at 122 ppm in Juan Cabrillo Room 19 and 57 ppm in
the woodshop – up to more than three million times more toxic than the EPA health-
based Regional Screening Level which provides for PCB 126 concentrations in the
low parts per trillion to provide an acceptable level of cancer risk.
109. In December 2014, additional test results were received by America
Unites and submitted to EPA and the District showing regulatory exceedances in
four more rooms in JCE and two more rooms in the MHS. (Third Set of
Independent Tests). These results were also resubmitted to the Defendants with the
Notice of Intent to Sue on January 12, 2015.
n MHS Room 704 had 4,700 ppm PCBs in caulk an a door frame in a
hallway
n JCES Room 22 had 74,000 ppm PCBs in interior window caulk
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n JCES Room 18 had 110,000 ppm PCBs in interior window caulk
n A JCES office had 710 ppm PCBs in interior window caulk
n JCES Room 23 had 17,000 ppm PCBs in interior window caulk
110. Neither EPA, nor the District, nor its contractor Environ ever
responded to the submission of the three sets of independent test results or created a
plan to remediate these thirteen additional rooms, six of which had extremely high
levels of PCBs in caulk — four in the hundreds of thousands of ppm, and two in the
tens of thousands ppm.
111. At the present time, there are known to be 17 rooms in six different
buildings in MHS and two different buildings in JCES with PCBs in caulk above 50
ppm.
112. On October 6, 2014, Plaintiffs PEER and Malibu Unites wrote to
Superintendent Lyon asking for clarification of the September 26, 2014 Environ
Supplement. Specifically, Plaintiffs asked “what information the District needs to
‘identify and verify’ the presence of PCBs above TSCA limits,” and whether the
District would accept and act upon the independent test results that showed at least
twelve additional rooms with caulk above TSCA limits. The letter also requested
that if those independent test results were considered deficient, the District specify
with particularity in what manner they were deficient. Finally, the letter asked if the
District would “accept and execute the [August 12, 2014] testing plan provided to
them by Malibu Unites and Cindy Crawford to test all three schools? This plan takes
one weekend to execute and 10 days to produce preliminary results. If not, please
specify with particularity as to why the district will not identify and verify all PCB
sources in the three schools.” To date, Plaintiffs have received no response to this
letter.
113. On October 31, 2014, EPA approved under 40 C.F.R. 761.61 only the
portion of the Second Environ Plan and Environ Supplement regarding the PCBs
remaining in the substrate (known as PCB Remediation Waste) after removal of
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PCB-containing caulk in the four rooms slated for caulk removal by June 2015.
EPA approved Environ’s plan to seal and encapsulate porous substrates underneath
the removed caulk and within one foot of it, and to decontaminate non-porous
substrates with a solvent, until renovation or demolition occurs. The District is
required to continue best management practices cleaning and periodic air and wipe
samples for at least a year and to take further action if exceedances of EPA’s health
guidelines occur. Full remediation and disposal of the PCB Remediation Waste in
accordance with the PCB Regulations would occur at the time of renovation or
demolition.
114. Therefore, even with respect to materials in proximity to caulk testing
in excess of regulatory limits, the District will not be identifying and removing
materials in violation of TSCA prior to renovation or demolition at an unknown
time in the future.
115. Over winter break in December 2014 and January 2015, Environ
conducted additional air and dust sampling at the Malibu Schools. Again, no caulk
or other building materials were tested.
116. As with its testing the previous summer, Environ did not test for the
individual congeners of PCBs, and used a detection level of approximately 70 ng per
cubic meter for air tests, thus producing numerous “non-detect” results which do not
in fact indicate that there were no PCBs in the air.
117. Just before the winter break, from December 16-19, 2014, the
SMMUSD sent in a “special crew” to clean and wipe down surfaces in the Malibu
Schools. This special cleaning concluded just 24 hours prior to the beginning of
Environ’s testing of air and dust for PCBs, which took place between December 20
and 29, 2014.
118. This special cleaning was intended to reduce the amount of PCBs in air
and dust in the samples about to be collected, such that those samples would not
accurately reflect the exposures that students and teachers actually experienced in
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the time period since the last testing and cleaning the previous summer of 2014, and
to make it appear that EPA’s health guidelines for air and dust samples had been
met, even if conditions prior to the special cleaning did not meet those guidelines.
119. Despite this pre-cleaning effort, two rooms had dust samples above
EPA’s threshold – the old gymnasium in MHS and Room 19 in JCES, the latter of
which independent test results had shown to have extremely high levels in the caulk.
(The old gymnasium had never had caulk tested, either by the District or
independently).
120. The District then performed additional cleaning in these two rooms. In
the case of JCES Room 19, four samples remained above EPA guidelines, and a
second re-cleaning was done, finally obtaining results below the guidelines. The air
in this room was not tested until after the second re-cleaning.
121. On January 12, 2015, Plaintiffs served the Notice of Intent to Sue in
this case. Return receipts from certified mail evidence that Defendants received this
Notice at the latest by January 20, 2015.
122. On February 27, 2015, the District sent an email message to the parents
and staff of the Malibu Schools. The message stated, among other things, that the
District had been made aware of third party sampling revealing the existence of
caulk above the 50 ppm TSCA threshold. In fact, the District had been aware of
independent testing showing extremely high illegal levels of PCBs for over seven
months, since July 2014.
123. The District’s February 27, 2015 email then claimed that it had not
been able to confirm the exact locations where these samples were taken. However,
the Plaintiffs had supplied the District with information identifying the rooms and
locations where the samples were taken, and the District had reported in September
2014 that it had sampled air and dust in some of the same rooms that were
independently tested, specifically identifying those rooms, revealing that it in fact
had no problem identifying the rooms where the independent samples were taken.
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124. The District’s February 27, 2015 email stated that the District would
proceed with “verification sampling of locations from which caulk appears to have
been removed and sampled,” and apply its removal plan to any PCBs found in
excess of the TSCA threshold. However, the District supplied no information as to
which rooms it would test or when it would do so, and did not state any intention to
test additional caulk or other building materials in pre-1980 buildings at the Malibu
Schools to determine the nature and extent of PCB contamination.
125. As of February 2015, the District had spent or committed to spend
approximately four million dollars in connection with the contamination issues at
the Malibu Schools. This money was spent for environmental consultants, lawyers,
and public relations consultants, without ever remedying the ongoing violations of
TSCA by removing any caulk or other building materials with illegal levels of
PCBs.
126. District and independent tests of a relatively small percentage of the
rooms at the Malibu Schools have demonstrated the illegal continued use of caulk
above legal limits in 17 rooms in ten different buildings, all built before 1979.
127. District testing of air and dust has also demonstrated the presence of
PCBs at well above background levels in the environments of many more rooms at
the Malibu Schools, which indicates the presence of PCBs in the caulk and other
building materials in those rooms.
128. Caulk and other building materials in the same buildings or buildings
built during the same time period with the same or similar building materials as
those where illegal levels of PCBs have been found also contain illegal levels of
PCBs.

CAUSE OF ACTION
129. Plaintiffs re-allege and incorporates all of the preceding paragraphs.
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130. By continuing an unauthorized use and failing to remove and properly
dispose of building materials with PCBs at or above 50 ppm or with surface
concentrations above 10 ug per 100 cm2 at the Malibu Schools, the Defendants have
violated TSCA, 15 U.S.C. 2605(e)(2) and 15 USC §2614(1); and its implementing
regulation at 40 CFR §761.20(a).
131. Plaintiffs are authorized to bring this action to restrain a violation of
TSCA, and the Court is authorized to provide declaratory and injunctive relief by 15
U.S.C. § 2619.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:
A. Declare that Defendants have violated TSCA by continuing the
unauthorized use of and failing to remove building materials containing 50 ppm or
more PCBs or which have surface concentrations of PCBs above 10 ug per 100 cm2
from the Malibu Schools;
B. Issue preliminary and permanent injunctive relief requiring Defendants
to (i) cease all use of caulk and other materials at the Malibu Schools containing
PCBs at concentrations of 50 ppm or greater or having surface concentrations of
PCBs above 10 ug per 100 cm2; (ii) comprehensively test all caulk and other
building materials in the Malibu Schools for PCBs at concentrations over 50 ppm or
surface concentrations of PCBs above 10 ug per 100 cm2; (iii) promptly remove all
building materials containing 50 ppm or more PCBs or which have surface
concentrations of PCBs above 10 ug per 100 cm2 from the Malibu Schools; and (iv)
dispose of such materials in accordance with the TSCA Regulations;
C. Award Plaintiffs costs, expert witness fees, testing costs, and attorneys’
fees in accordance with 15 U.S.C. §2619(e); and
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D. An award of any other relief the Court deems appropriate.

Dated: March ____, 2015 NAGLER & ASSOCIATES

By: _________________________
Charles Avrith
Attorneys for Plaintiffs America Unites for
Kids and Public Employees for
Environmental Responsibility

Dated: March ____, 2015

By: _________________________
Paula Dinerstein
Attorneys for Plaintiff Public Employees for
Environmental Responsibility

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