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6 | September 8, 2016 | Malibu surfside news news malibusurfsidenews.com Judge makes ruling on Malibu PCB issue District has until 2019 to remove PCB from Malibu High, Juan Cabrillo Barbara Burke Freelance Reporter United States District Court Judge Percy Anderson ruled Thursday, Sept. 1, on the America Unites action against the Santa Monica-Malibu Unified School District for alleged polychlorinated biphenyls violations, finding the district violated federal law, but giving an imprimatur to the district’s EPA-approved remediation plan. The lawsuit was brought by nonprofit America Unites for Kids, which has as its mission to ensure environmental health excellence in schools, and by Kids and Public Employees for Environmental Responsibility, a nonprofit that advocates for public employees concerned with environmental issues. As an initial matter, the court determined that PEER lacked organizational “standing” — a legal term essentially meaning the right to pursue an action — to remain in the case. The court determined that PEER did not have the requisite standing because its Articles of Incorporation and Bylaws were not properly introduced or authenticated through witness testimony. The practical effect of that ruling is that only America Unites, which advocates for the removal of PCB from schools, was a viable plaintiff in the action. The years-long case has made its way through the legal system, embroiled by strong emotions on all sides. The judge’s ruling was issued after a bench trial held May 17. “I think the ruling vindicates what America Unites for Kids and many in the community of Malibu have been saying for years,” said Malibu attorney and community activist Kevin Shenkman following the ruling. Oscar de la Torre, a member of the school board, said “Today, we celebrate because the judge acknowledged what parents have said repeatedly. We must remove PCBs from public schools.” What it all means The court found that the district violated relevant federal law and must remediate and comply with all of the court’s orders by Dec. 31, 2019. Conversely, the plaintiffs shall refrain from any further testing on campus unless a court with proper jurisdiction sanctions them doing so. The court’s order ruled that each party shall bear its own costs and attorney’s fees incurred during the litigation. Jennifer DiNicola, President of America Unites for Kids and a candidate for one of the three Malibu City Council seats, reacted by saying this is the “perfect time for the district to say we heard from the judge and we’ll expedite his order,” whereas Laurie Lieberman, board member for the district, stated that the judge’s order endorses what the district has been doing and plans to do with regard to remediation of the Malibu Campus. “Hopefully,” Lieberman said, “We can now get on to doing what schools do best – educate the children, all the while complying with the court’s order.” Details of the court’s rulings The court concluded that evidence adduced at the bench trial supports the conclusion that PCBcontaining materials are in “use” at Malibu High School and Juan Cabrillo Elementary School, collectively referred to as the Malibu Campus. The court referred to the term “use” because the relevant statutory law at issue, called the Toxic Substances Control Act, which bans the manufacture of PCBs as of the late 1970s, required Plaintiff America Unites for kids to demonstrate: 1) That building materials at issue at the Malibu Campus contain PCBs, which are regulated under the TSCA; and 2) that the district is currently engaging in ongoing use of building materials that contain PCBs at or above 50 parts per million, or with surface concentrations at 10 ug/100cm2 at buildings on the Malibu Campus. The court noted that the TSCA also prohibits the use of any PCBs in any manner other than a totally enclosed manner. Malibu High School buildings A-J were constructed in 1963. At Juan Cabrillo, Building A was constructed in 1958, Building B in 1955, Building C in 1957; Building D in 1958, Building E in 1965 and Building F between 1961 and 1965. Until the enactment of the TSCA in the late ’70s, PCBs were used in numerous applications, including a plasticizing agent in caulking and glazing materials. The court’s ruling recounts that Phylmar Group, Inc. in 2013 found that four of 10 rooms tested had caulk samples with PCB levels above the regulatory threshold. Those samples were from: MHS Building A, Library (1,870 ppm); MHA Building E (164 ppm); MHS Building E, Room 5 (98.7 ppm); and 4) MHS Building E, Room 8 (52.8 ppm). In 2014, Ramboll Environ published a Comprehensive PCB-Related building Materials Inspection, Management, and Removal Plan for the district to: address investigation of potential building materials impacted by PCBs; establish a Best Management Practices program to ensure the Malibu Campus was properly cleaned to manage potential PCB exposures; and to plan for removal of potential building materials impacted by PCBs during renovations. Subsequently, the Environmental Protection Agency approved the district’s site-specific plans for various rooms at Malibu High School, and its approach for removal of certain caulk at the Malibu Campus and the EPA concurred with the air and wipe sampling pilot study that the district and its consultants had submitted to the EPA. The court’s ruling in this regard is very comprehensive and notes that the testing conducted by Phylmar Group and Ramboll Environ revealed PCBs in caulk above the 50 ppm threshold in each of the six buildings constructed at the Malibu Campus prior to 1979. Out of 20 total rooms where the district tested caulk, 14 had PCBs above the 50 ppm threshold. The EPA concluded that it “does not believe that there is a need for additional testing of potential PCB source materials until planned renovation or demolition of the pre-1981 buildings at the Malibu Campus.” The modernization projects The court noted that renovations are underway and the district will be using portables to hold students and staff who will be moving from buildings A, B, C, and E this school year. Because there are pre- 1979 buildings on the Malibu High School Campus other than buildings A, B, C, and E that have not had windows, doors, or floors replaced in the past 25 years, the district has formulated a plan, now sanctioned by the court, to undertake modernization projects in those buildings. All pre-1979 windows will be replaced with new energy-efficient windows and doors that have not been replaced in the past 25 years will be replaced. The modernization of those affected buildings (D, F, G, H, I and J), is scheduled to begin during 2017. At Juan Cabrillo, Building F window systems will be modernized. These activities are expected to be completed by January of 2017, and as with the modernization projects at the high school, the window and door replacement at the elementary school will entail removal of the entire window system and/ or door and frame and surrounding caulk in any impacted room. Using what the court characterized as a common sense approach to the problems before it, the court determined that “in light of the failure of America Unites to provide any contrary evidence concerning an appropriate construction schedule,” and “the court’s strong desire to preserve the public’s funds,” the court determined that it would not require the district to perform costly caulk-removal operations on windows and doors that are already slated for replacement. The court concluded that the district cannot use any office, classroom, or other structure at the Malibu Campus constructed prior to 1979 in which students, teachers, administrators, or staff are regularly present after Dec. 31, 2019, unless the window and door systems and surrounding caulk have been replaced. The court noted that the EPA has said that as a result of air and wipe sampling for PCBs previously undertaken at the Malibu Campus, and the ongoing and future implementations of renovations and improvements, the EPA does not believe that there is a need for additional testing of potential PCB source materials until planned renovation or demolition.
malibusurfsidenews.com news Malibu surfside news | September 8, 2016 | 7 SMMUSD Board of Education Malibu High gets new principal Board also discusses AC in classrooms Eric Billingsley Freelance Reporter The Santa Monica-Malibu Unified School District Board of Education unanimously approved the hiring of Cheli Nye as the new principal of Malibu High School during a Thursday, Sept. 1 meeting in Santa Monica. “I’m honored and excited to be here in the school district and start the year as soon as possible,” Nye said during the meeting. Nye has worked in public education for 16 years, most recently serving as assistant principal at Foothill High School in the Tustin Unified School District. She also served as assistant principal at North High School in the Torrance Unified School District. She holds a bachelor’s degree in mathematics from Michigan State University, a master’s degree in educational administration from California State University, Dominguez Hills, and a doctorate in educational leadership from the University of Southern California, according to a press release from when she joined Foothill High School in 2014. The appointment will hopefully put an end to the high turnover rate for principals in recent years at MHS. Brandon Gallagher resigned from the position in June after only a year on the job. Before him, David Jackson served as interim principal after Jerry Block resigned in 2014 after two years. The last long-term principal for MHS was Mark Kelly, currently the district’s interim deputy superintendent-human resources, who was MHS’s leader from 2004-2012. Keeping schools cool The board also discussed the use of Measure ES funds to make sure SM- MUSD classrooms have adequate air conditioning. “The board is moving forward with a plan to consider using ES funds for air conditioning across the district,” said Gail Pinsker, SMMUSD community and public relations officer, in an interview with Malibu Surfside News. “The direction of the board is that we’re interested in sustainability and energy efficiency, but also understand that our classrooms are warm from time to time and we need to plan for air conditioning across the district,” Pinsker added. “Comfort of students and staff is imperative to creating a good learning environment.” In 2012, voters in Santa Monica and Malibu passed Measure ES, a $385 million bond that’s being used to upgrade technology throughout the district, increase safety and security through fire alarm upgrades and gate access improvements, and modernize and build new facilities at multiple campuses. Of the $385 million in Measure ES funds, $77 million is allocated for upgrades to facilities in Malibu. Construction and renovation at area schools are also funded by Measure BB dollars, such as plans to replace the library, administration building and building E at MHS. SMMUSD hired a consultant to meet with staff, visit area schools and analyze all of the air conditioning Round it up A brief recap of other action from the Sept. 1 meeting of the SMMUSD School Board: • Jan Maez, chief financial officer for SMMUSD, provided the board with unaudited actuals for 2015- 2016. This is a district-prepared year-end financial statement that reports on activities in all district funds, identifying unspent funds or reserves. • There was mention of Measure GS and GSH, which will be on the November ballot. If passed, the measure would impose a half-cent sales tax increase. Half of the estimated $16 million the measure would raise per year will go to SMMUSD. The board previously had a resolution to support the ballot measure. • The board approved extending the period of negotiations for the Malibu Unification Negotiations Committee until Wednesday, Nov. 2. The committee consists of six members, three representing Santa Monica and three representing Malibu. The group is tasked with negotiating how to split SMMUSD into two districts in a way that makes both financially whole. needs in Santa Monica and Malibu. The study looked at things like occupancy and type of use, and recommended an air conditioning remedy for every space. “Overall we anticipate the total combined project cost (for addressing air conditioning needs districtwide) to be somewhere in the neighborhood of $33 million,” said bond program manager Steve Massetti, adding they are wanting Measure ES funds to pay for the whole project. Massetti and Carey Upton, interim director of facility improvement projects, led a study session at the board meeting about Measure ES preliminary budget allocations. During the session, members of the board reiterated the need for addressing the air conditioning issues. Board Vice President Ralph Mechur commented that many of the new building projects from Measure BB funds — referring to the library, administration building and building E at MHS — are being designed with more passive standards in terms of air conditioning. “We can’t have our newest buildings in the district be the ones without AC,” said Board Member Craig Foster. Mechur asked Massetti and Upton if they’re looking into installing backup air conditioning systems in those buildings. “What will happen is we’ll ask our architects to go back, look at the design of the library and administration building and consider adding air conditioning to the plan prior to construction,” said Massetti in an interview with Malibu Surfside News. The board gave SM- MUSD staff guidance to further investigate using Measure ES dollars for addressing the air conditioning issue, and come up with a plan, according to Pinsker. Chili From Page 4 from Sam Morrow Band and a row of nearby chili booths. Hoyt Family Vineyards owner Carol Hoyt poured her gold-medal winning Chardonnay — the wine she said put the vineyard on the map — as well as a Cabernet and Pinot Grigio. The booth also offered Dylema (named after Hoyt’s children, Dylan, 13, and Emma, 16), a cab-based blend with “a little bit of kitchen sink” which Hoyt said was made specifically to pair with chili. Hoyt recalled the wine booth of years’ past, which paled in comparison to this year’s setup. “It’s the place to be,” said Hoyt, who joked that while most people move to Malibu for the beaches, she thinks she and her husband, Steven, moved for the Chili Cook-Off. The event’s pull is so strong that some former Malibuites also made the trek back for Malibu’s token community event. Jaclyn Mostafa, a former Malibu resident, and her three children — Bella, 6, Zoe, 11, and Maddie, 13 — were some of the first ones in the gates, allowing them to zip onto rides without having to wait in line. “Now we’re just in L.A., but we made the special trip just to get here for Friday night,” said Mostafa, who said her family has been attending for five years now. Maddie, the eldest of the trio, said her favorite part was riding the Zipper — a new addition to this year’s carnival — but she also took joy in the simple pleasures of ice cream and the chance to spend time with her sisters. Indeed, there was a little bit of something for everyone — whether material or emotional, but the latter seemed to prevail. Simply, yet profoundly, Malibu resident and Chili Cook-Off co-coordinator Kim Bonewitz summed it all up in a mere six words: “This is how community comes together.”
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