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SMMUSD, EPA face possible lawsuit
The Santa Monica-Malibu School District, along with the Environmental Protection Agency, could be caught in a lawsuit over PCB contamination at Malibu schools by the end of October.
The ongoing issues surrounding the polychlorinated biphenyl (PCB) contamination at Malibu schools, which began approximately a year ago, culminated in a Tuesday, Aug. 19, notice of intent to file a lawsuit against the District and EPA by two advocacy groups.
The District and EPA have 60 days from Aug. 19 to reach an agreement with the claimants — Washington, D.C.-based nonprofit group Public Employees for Environmental Responsibility and Malibu-based advocacy group Malibu Unites – or the groups will sue the District and agency.
In the notice, the claimants allege the District of “continued use” of illegal PCB-containing caulking materials at Malibu High School and Juan Cabrillo Elementary School, and the EPA to have “failed to require the prompt removal and remediation of the contaminated caulk and other building materials,” a violation of the Toxic Substances Control Act (TSCA).
“The EPA is failing to enforce law,” said Paula Dinerstein, an attorney for PEER. “What we’re saying is that the law and regulations require the removal of illegal PCB concentrations, and District has not done that and EPA is not making them do that.”
EPA spokesperson Nahal Mogharabi wrote in an Aug. 20 email that the agency has not yet reviewed the notice, “but is aware of PEER’s intent to file a lawsuit,” adding that the EPA “does not comment on any possible, pending or ongoing lawsuit.”
The EPA’s regulatory trigger for an illegal concentration of PCBs is set at 50 parts-per-million. When a material exceeds that trigger, the material is deemed illegal by the EPA and TSCA and is required to be removed.
On July 17, PEER and Malibu Unites published a report of independent PCB testing at Malibu’s schools. The report found that caulking in at least two areas – Room 19 at JCES and Room 506 at MHS – exceeded the EPA’s regulatory trigger by more than 7,000 times.
To date, the EPA has directed the District and is environmental engineering firm Environ to test and clean dust, air and soil in PCB-affected rooms, citing the agency’s “Best Management Practices.”
“EPA concurs with the approach currently being taken by the District, and does not recommend further testing of caulk unless dust or air samples persistently show a health concern in that location,” Mogharabi said. “The District’s air and dust sampling has demonstrated that the rooms accessible to staff and students are safe from PCBs exposures.”
In an Aug. 14 letter to District Superintendent Sandra Lyon, EPA Region Nine Administrator Jared Blumenfeld wrote, “the District is meeting EPA national guidelines to protect health from PCBs in schools by addressing the human exposure pathways of greatest concern, namely air, dust and soil.”
But in doing so, PEER and Malibu Unites – the latter represented by James Vititoe of Vititoe Law Group, LLC – claim the EPA “is abdicating its responsibility on a nation-wide level to enforce the requirements of TSCA and its own regulations.”
In not testing the caulk itself at MHS and JCES, Dinerstein said she believes the District and EPA are dodging what could be a statewide – if not nationwide – can of worms. She added that the District and EPA “know” that most buildings in California built before 1980 contain building materials with illegal concentrations of PCBs.
“Testing the caulk is the only way you can get an illegal violation,” she said. “Testing the air and dust gets you below the [regulatory] level, so what they’re doing is avoiding is the one thing that would require them to remediate.”