A lawsuit alleging that Malibu's school district has not done enough to remove PCBs from its campuses was heard in a Los Angeles federal court Tuesday. The parties are now awaiting a ruling from the judge that could have far-reaching implications for how school districts nationwide must deal with the toxic chemical compound.
Malibu-based America Unites for Kids and the Public Employees for Environmental Responsibility filed the lawsuit, which claims the Santa Monica-Malibu Unified School District is violating federal law by failing to remove caulk and other building materials that contain illegal levels of PCBs from Malibu's three public schools.
"We think it's a real shame that we had to go to court to get federal law enforced and the school cleaned up for the safety of students and teachers," says plaintiffs attorney Paul Dinerstein.
District officials argue that Malibu's classrooms are safe and that they have removed contaminated caulk discovered in spot tests. As for the rest of the caulk that the parents and teachers want removed from the campus, the district says further testing and removal of it isn't necessary. Instead, the district has opted to follow U.S. Environmental Protection Agency guidelines. Those guidelines say schools can "minimize potential exposure to PCBs" by cleaning surfaces with wet rags and by vacuuming floors.
"SMMUSD remains confident that it has acted in the best interests of the students and staff, and in accordance with the law and directions of the lead agency, EPA," the school district said in a statement.
After attorneys for both sides file post-trial briefs due in June, U.S. District Court Judge Percy Anderson is is expected to rule on the merits of the widely watched case this summer.
Legal experts say if Anderson finds that the EPA guidelines conflict with federal law, school districts nationwide may be required to immediately remove any building materials containing levels of PCBs above the legal standard of 50 parts per million.
"The big issue is whether EPA's guidance is illegal in that it conflicts with the TSCA [Toxic Substance Control Act] regulations," says Kevin Madonna, an environmental lawyer who has litigated PCB cases. "Federal agencies can certainly issue guidance interpreting federal rules but they can’t pass guidance that essentially overrides those rules. They don’t have that statutory authority.”
Tests of caulk at Malibu's combination elementary, middle and high school campus turned up PCB concentrations that were in some instances thousands of times above 50 ppm.
The World Health Organization classifies PCBs as a known human carcinogen while the EPA says they are a "probable" carcinogen that cause a host of serious illnesses.
Studies also link PCBs to lower IQ among children and to learning disabilities.
PCBs, or polychlorinated biphenyls, were widely used in building materials and electronics until Congress banned them in the the late 1970s. Yet many older buildings, schools included, contain high levels of the compound in window caulking and other construction materials.
This story was update to clarify that the SMMUSD has removed some contaminated caulk from classrooms in Malibu.