America Unites for Kids et al v. Sandra Lyon et al

Filing 306

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Percy Anderson. (See document for specifics) (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AMERICA UNITES FOR KIDS, et al.,

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Plaintiffs,

No. CV 15-2124 PA (AJWx)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

v.
SANDRA LYON, et al.,
Defendants.

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The Court, sitting without a jury, conducted a bench trial on May 17, 2016.

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Following the Court Trial, the Court ordered the parties to submit proposed Findings

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of Fact and Conclusions of Law. Pursuant to the Court’s instructions, the parties reviewed

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the other side’s proposed Findings of Fact and Conclusions of Law and marked them to

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indicate the particular factual assertions and legal conclusions they agreed with and those

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they disputed, and also filed their reasons for their objections. (Dkt. Nos. 300, 303, and

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304.) The facts that are in dispute on which the Court relies in reaching its conclusion are

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supported by the record. Unless otherwise noted, where evidence is subject to an evidentiary

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objection, and the Court has relied on that evidence, the Court has overruled the evidentiary

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objection for the reason or reasons identified by the party offering the evidence in response

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to the other side’s objection. Where the Court has refused to consider evidence subject to an

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objection, the Court will indicate the basis for sustaining the evidentiary objection. All other

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evidentiary objections to evidence that the Court has not relied on or cited in these Findings

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of Fact and Conclusions of Law are denied as moot.

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After reviewing the evidence, the parties’ objections to that evidence, and the parties’

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pre-trial and post-trial submissions, the Court makes the following Findings of Fact and

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Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). Any finding of fact

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that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any

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conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact.

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I.

Findings of Fact

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1.

Defendants Sandra Lyon and Janece Maez are the Superintendent and

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Assistant Superintendent of the Santa Monica-Malibu Unified School District (the

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“District”). Defendants Laurie Lieberman, Dr. Jose Escarce, Craig Foster, Maria

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Leon-Vasquez, Richard Tahvildaran-Jesswein, Oscar de La Torre and Ralph Mechur are

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members of the District’s Board of Education. Defendants Lyon, Maez, Lieberman,

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Escarce, Foster, Leon-Vasquez, and Tahvildaran-Jesswein will be referred to collectively as

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“Defendants.”

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2.

The District operates Juan Cabrillo Elementary School (“JCES”) and Malibu

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Middle and High School (“MHS”) (collectively the “Malibu Campus”) in Malibu,

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California.

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3.

Plaintiff America Unites for Kids (“America Unites”) is a non-profit

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organization that has as its mission to ensure environmental health excellence in schools for

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all children and those who support them. America Unites advocates for the removal of

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polychlorinated biphenyls (“PCBs”) from schools. (Dkt. No. 250 (J. DeNicola Test.) at

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1:7-14.)

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4.

America Unites’ members and officers include parents of students who attend

classes at the Malibu Campus. (Dkt. No. 250 (J. DeNicola Test.) at 1:2-22.)
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As alleged in the First Amended Complaint (“FAC”), plaintiff Public

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Employees for Environmental Responsibility (“PEER”), is a non-profit organization that

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advocates for public employees concerned with environmental issues. The only evidence in

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support of PEER’s standing submitted at trial is the Declaration of Katy Lapajne, who

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describes herself as a “supporter” of PEER and is a teacher at MHS. (Dkt. 249 (Lapajne

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Test.) at 1:2-7.) PEER’s Articles of Incorporation and Bylaws, plaintiffs’ Exhibits 44 and

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45, to which Defendants have filed an evidentiary objection, were not properly introduced or

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authenticated through any witness testimony. (Dkt. No. 300, Trial Exhibit (“Ex.”) 2, 2:3-

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17.) The Court therefore sustains Defendants’ evidentiary objections to Exhibits 44 and 45.

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6.

The following buildings at MHS were constructed in 1963: Building A (800,

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Great White Shark, Library), B/C (900, Whale Shark, Administration), D (100 & 200, Mako

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Shark), E (000, Blue Shark), F (300, Thresher Shark), G (500, Angel Shark), H

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(Cafeteria/Auditorium), I (400, Leopard Shark), and J (700, Old Gymnasium). (Ex. 548, p.

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36 (Table 1-1).)

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7.

At JCES, Building A was constructed in 1958; Building B was constructed in

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1955; Building C was constructed in 1957; Building D was constructed in 1958; Building E

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was constructed in 1965; and Building F was constructed between 1961 and 1965. (Id.)

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8.

Until the enactment of the Toxic Substances Control Act (“TSCA”), 15 U.S.C.

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§§ 2601-2695d, banned their manufacture and use in the late 1970s, PCBs were used in

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numerous applications, including as a plasticizing agent in caulking and glazing materials.

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9.

In the Fall of 2013, the District retained Mark Katchen, a founder and

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Managing Principal with the Phylmar Group, Inc., to assist in the evaluation of

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environmental concerns raised at the Malibu Campus. (Dkt. No. 226 (Daugherty Test.) at

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29; Dkt. No. 230 (Katchen Test.) at 5.)

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10.

The Phylmar Group tested ten rooms at MHS for PCBs. Four of the ten rooms

tested had caulk samples with PCB levels above the regulatory threshold of 50 ppm: (1)
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MHS Building A, Library (1,870 ppm); (2) MHS Building E Room 1 (164 ppm); (3) MHS

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Building E, Room 5 (98.7 ppm); and (4) MHS Building E, Room 8 (52.8 ppm). (Ex. 531, p.

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19 (Table 3) & p. B1.)

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11.

In January 2014, the Environmental Protection Agency (“EPA”) instructed the

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District to prepare a comprehensive work plan to investigate and assess PCBs at the Malibu

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Campus, which included “removal of all caulk with known concentrations above 50 ppm

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PCBs” discovered to date, as well as “mitigation or removal of any caulk that is

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deteriorating in pre-1979 structures” at the Malibu Campus. (Ex. 522 (January 27, 2014

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EPA Correspondence).)

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12.

The District hired Ramboll Environ US Corporation, previously known as

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ENVIRON International Corporation (“Ramboll Environ”), in early 2014 with a team led by

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Principal-in-Charge Doug Daugherty, to conduct environmental services at the District’s

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schools, including services related to PCBs. (Daugherty Test., Dkt. No. 226, at ¶¶ 2 & 4.)

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13.

In April of 2014, Ramboll Environ developed and published a Comprehensive

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PCB-Related Building Materials Inspection, Management, and Removal Plan

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(“Comprehensive Plan”) for the District to address investigation of potential building

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materials impacted by PCBs, establish a Best Management Practices (“BMP”) program to

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ensure the Malibu Campus was properly cleaned to manage potential PCB exposures, and

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plan for removal of potential building materials impacted by PCBs during renovations.

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(Dkt. No. 225 (MacIntosh Test.) at ¶ 58; Dkt. No. 226 (Daugherty Test.) at ¶ 32; Ex. 529.)

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14.

The Comprehensive Plan was submitted to EPA Region IX via e-mail from

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Doug Daugherty to Steve Armann on April 25, 2014. (Dkt. No. 226 (Daugherty Test.) at ¶

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59; Ex. 529.)

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15.

On June 4, 2014, EPA issued a letter responding to the Comprehensive Plan

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submittal. The EPA stated that the Comprehensive Plan required significant restructuring,

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and recommended that the District move forward with the BMPs as described in the

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Comprehensive Plan, stating that “the ‘PCB Best Management Practices’ contained in the

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[Comprehensive] Plan do not require EPA approval, and we recommend that the District
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move forward with these activities at MHS.” (Dkt. No. 226 (Daugherty Test.) at ¶ 64-65;

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Ex. 530 (June 4, 2014 EPA Correspondence).)

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16.

Ramboll Environ submitted to EPA on July 3, 2014, the Site-Specific

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PCB-Related Building Materials Management, Characterization and Remediation Plan for

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the Library and Building E Rooms 1, 5, and 8 at Malibu High School (the “Site-Specific

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Plan”). The Site-Specific Plan included the parameters for a Pilot Study for air and wipe

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sampling to evaluate the potential for human exposure to PCBs at the Malibu Campus and

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the efficacy of the BMPs undertaken by the District. (Dkt. No. 226 (Daugherty Test.) at ¶¶

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32 & 34; Ex. 531 (Site-Specific Plan).)

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The Site-Specific Plan covered the management practices associated with the

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potential for PCB-containing materials at the Malibu Campus, specifically addressing the

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removal of caulk at locations in the Library and in MHS Building E Rooms 1, 5, and 8, and

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the BMPs the District would implement until the removal of the caulk. (Dkt. No. 226

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(Daugherty Test.) at ¶ 71; Ex. 531 (Site-Specific Plan).)

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The Site-Specific Plan committed to EPA that caulk around four windows in

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Room 801 of Building A (the Library) and Rooms 1, 5, and 8 of Building E would be

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removed and provided the steps and procedures that would be used during the removal.

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(Dkt. No. 226 (Daugherty Test.) at ¶ 71; Ex. 531 (Site-Specific Plan).)

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19.

In a letter from EPA Region IX Administrator Jared Blumenfeld to Sandra

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Lyon dated August 14, 2014 (the “August 14, 2014 EPA Correspondence”), EPA explained

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its concurrence with the Site-Specific Plan’s approach for removal of certain caulk at the

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Malibu Campus by June 30, 2015, and its concurrence with the air and wipe sampling Pilot

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Study as submitted to EPA. (Dkt. No. 226 (Daugherty Test.) at ¶¶ 26, 38, 72; Ex. 541

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(August 14, 2014 EPA Correspondence).)

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20.

EPA confirmed that, based on EPA’s observation of the Summer 2014 Pilot

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Study sampling work, the air and wipe testing work performed by the District “was

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consistent with EPA’s national guidance” and that “EPA does not recommend additional

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testing of caulk unless dust or air samples persistently fail to meet EPA’s health-based
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guidelines.” (Dkt. No. 225 (MacIntosh Test.) at ¶ 58; Dkt. No. 226 (Daugherty Test.) at ¶¶

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26, 38, 72; Ex. 541 (August 14, 2014 EPA Correspondence).)

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21.

On September 26, 2014, Ramboll Environ, on the District’s behalf, submitted

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the Supplemental Removal Information for the Library, Building E - Rooms 1, 5, and 8, and

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Building G, Room 506 at Malibu High (“Removal Supplement”) to EPA Region IX. (Dkt.

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No. 226 (Daugherty Test.) at ¶ 73; Ex. 544 (Removal Supplement).)

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22.

In February 2015, Ramboll Environ tested a total of 24 caulk samples in ten

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rooms in five different buildings at the Malibu Campus. All 24 samples had PCBs over the

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50 ppm regulatory limit, with most over 100,000 ppm, and measurements up to 570,000

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ppm. In some rooms, the district sampled multiple areas, all demonstrating levels of PCBs

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above 50 ppm. The following table summarizes the result of the District’s testing.

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Room

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(ppm)
MHS
Building E, Room 3

1,600
1,800

Building E, Room 7

330
1,800

Building G, Room 505

220,000

Building I, Room 401

190,000

Building J, Room 704 (inside
office)

4,500
1,800
1,500

Building J, Room 704 (hallway)

3,800

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JCES
Building F, Room 18

290,000
270,000
230,000

Building F, Room 19

390,000
570,000
560,000

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Ramboll Environ Results

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Building F, Room 22

290,000
470,000
220,000
138,000

Building F, Room 23

350,000
440,000
280,000
180,000

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(Ex. 554, p. 9 (Table 3).)
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The testing conducted by the Phylmar Group and Ramboll Environ revealed

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PCBs in caulk above the 50 ppm threshold in each of the six buildings constructed at the

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Malibu Campus prior to 1979 that were tested. Out of 20 total rooms where the District

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tested caulk, 14 had PCBs above the 50 ppm threshold-containing. Of the 34 samples tested

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by the District, 28 had PCBs in excess of the 50 ppm threshold.

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24.

On March 20, 2015, Ramboll Environ submitted a Notification of Additional

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Locations at Malibu High School and Juan Cabrillo Elementary School to be Addressed in

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Accordance with October 2014 Approved Plan (“March 2015 Notification”) to EPA Region

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IX on the District’s behalf. (Dkt. No. 225 (MacIntosh Test.) at ¶ 59; Dkt. No. 226

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(Daugherty Test.) at ¶ 76; Ex. 554 (Notification of Additional Locations).)

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25.

The March 2015 Notification committed to EPA that, in addition to the

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removal activities described in the Site-Specific Plan and Removal Supplement, caulk would

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be removed within one year at locations within MHS Building E Rooms 3 and 7; MHS

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Building G Room 505; MHS Building I Room 401; MHS Building J (Old Gym) Rooms 704

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and 704 Hallway; and JCES Building F Rooms 18, 19, 22, and 23. (Dkt. No. 226

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(Daugherty Test.) at ¶ 77; Ex. 554 (Notification of Additional Locations).)

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26.

On March 23, 2015, Ramboll Environ notified EPA of its report of data from

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the Winter 2014/2015 break sampling event in the 2014/2015 Winter Break PCB Sampling

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Report for MHS and JCES (“March 2015 Pilot Study Report”). (Dkt. No. 226 (Daugherty

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Test.) at ¶ 50; Ex. 553 (Winter Break PCB Sampling Report).)

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During the Winter 2014/2015 school break sampling, 100% of the air samples

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and 88% of the wipe samples did not detect PCB concentrations above the laboratory’s

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method reporting limit. (Dkt. No. 226 (Daugherty Test.) at ¶ 50; Ex. 553 (Winter Break

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PCB Sampling Report).)

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28.

On March 23, 2015, Plaintiffs commenced this action by filing their Complaint

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against Defendants alleging a single claim for violation of TSCA. (Dkt. No. 1

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(“Complaint”).) Plaintiffs filed their First Amended Complaint (“First Amended

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Complaint”) for declaratory and injunctive relief under the TSCA on April 1, 2015. (Dkt.

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No. 12.)

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29.

In accordance with the Site-Specific Plan, Removal Supplement, and March

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2015 Notification, during the Summer 2015 school break, Ramboll Environ oversaw the

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completion of removal activities (the “Summer 2015 PCB Removal Activities”) at the

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locations described in the Site-Specific Plan, Removal Supplement, and March 2015

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Notification. (Dkt. No. 219 (Herrmann Test.) at ¶ 18; Dkt. No. 222 (Rohr Daniel Test.) at

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¶ 23; Dkt. No. 226 (Daugherty Test.) at ¶ 79; Dkt. No. 228 (Pacheco Test.) at ¶ 6.) The

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Summer 2015 PCB Removal Activities included the physical removal of caulk;

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decontamination of non-porous surface materials adjacent to the caulk and performance of

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post-decontamination wipe sampling; preparation and encapsulation of porous substrate that

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had previously been in contact with caulk up to one foot away from caulk/substrate contact

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and performance of post-encapsulation wipe sampling; and post-removal confirmatory air

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and wipe sampling to ensure compliance with population-applicable EPA's Exposure Levels

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for Evaluating PCBs in Indoor School Air and EPA Region IX surface wipe benchmark for

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the Malibu Campus (i.e., 1 µ g/100 cm2) in the rooms where removal work was undertaken.

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(Dkt. No. 219 (Herrmann Test.) at ¶ 18; Dkt. No. 222 (Rohr Daniel Test.) at ¶ 23; Dkt. No.

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226 (Daugherty Test.) at ¶ 79; ECF No. 228 (Pacheco Test.) at ¶¶ 10, 13.)

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30.

The caulk described in the Site-Specific Plan, Removal Supplement, and

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March 2015 Notification was physically removed by the District’s contractor, Castlerock

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Environmental, Inc., under the oversight of the Ramboll Environ team. (Dkt. No. 219
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(Herrmann Test.) at ¶¶ 16, 18; Dkt. No. 222 (Rohr Daniel Test.) at ¶¶ 21, 23; Dkt. No. 226

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(Daugherty Test.) at ¶ 81; Dkt. No. 228 (Pacheco Test.) at ¶¶ 9-16.)

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31.

Caulk was removed by: (1) sealing off the area of the room where caulk

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removal was to occur to create a containment area so that debris from the removal would not

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escape to other areas; (2) physically scraping out the caulk in the removal area; (3) properly

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disposing of the removed caulk and debris; (4) cleaning the areas from which caulk was

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removed to ensure no caulk debris remained; and (5) encapsulating any remaining porous

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substrate that had come into contact with the removed caulk pursuant to EPA approvals.

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(Dkt. No. 219 (Herrmann Test.) at ¶¶ 16, 18; Dkt. No. 222 (Rohr Daniel Test.) at ¶¶ 21, 23;

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Dkt. No. 226 (Daugherty Test.) at ¶ 81; Dkt. No. 228 (Pacheco Test.) at ¶¶ 9-14.)
32.

These removal activities were completed by June 30, 2015. (Dkt. No. 226

(Daugherty Test.) at ¶¶ 72, 74; Dkt. No. 228 (Pacheco Test.) at ¶¶ 5, 15.)
33.

Following the removal activities, pursuant to the EPA-approved Site-Specific

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Plan and Removal Supplement and as described above, any area of the affected rooms where

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porous substrate had come into contact with the removed caulking was encapsulated and any

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area of the affected rooms where non-porous substrate had come into contact with the

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removed caulking was decontaminated. (Dkt. No. 219 (Herrmann Test.) at ¶ 18; Dkt. No.

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222 (Rohr Daniel Test.) at ¶ 23; (Dkt. No. 226 (Daugherty Test.) at ¶ 83; Dkt. No. 228

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(Pacheco Test.) at ¶ 11.)

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34.

The Ramboll Environ field team also conducted confirmatory air and wipe

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sampling following the caulk removal activities to ensure that exposure levels in the rooms

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where the Summer 2015 PCB Removal Activities occurred remained below the applicable

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EPA’s Exposure Levels for Evaluating PCBs in Indoor School Air. (Dkt. No. 219

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(Herrmann Test.) at ¶ 18; Dkt. No. 222 (Rohr Daniel Test.) at ¶ 23; Dkt. No. 226 (Daugherty

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Test.) at ¶ 84; Dkt. No. 232 (Bowie Test.) at ¶ 22.)

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35.

Encapsulation and confirmatory sampling was completed in the Summer of

2015. (Dkt. No. 226 (Daugherty Test.) at ¶ 84.)

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36.

On October 5, 2015, after the Summer 2015 Pilot Study sampling event was

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concluded in the Summer of 2015, the District submitted to EPA Region IX a letter along

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with Ramboll Environ’s report entitled Conclusion of PCB Sampling Pilot Study and 2015

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PCB Removal Activities Report for Malibu High School and Juan Cabrillo Elementary

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School (“October 2015 Report”), which together certified the completion of the Summer

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2015 PCB Removal Activities and reported the results of the Summer 2015 Pilot Study

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sampling event. (Dkt. No. 225 (MacIntosh Test.) at ¶ 60; Dkt. No. 226 (Daugherty Test.) at

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¶ 51; Ex. 562 (Appendix D, October 2015 Report); Ex. 564 (October 2015 Report).)

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37.

As described in the October 2015 Report, Ramboll Environ undertook final

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post-removal confirmatory sampling in each room where removal activities were undertaken

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which indicated that PCB concentrations were below EPA Region IX’s surface wipe

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benchmark for the Malibu Campus of 1 µg/100 cm2 for dust and below

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population-applicable EPA’s Exposure Levels for PCBs in Indoor School Air, confirming

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that the Summer 2015 PCB Removal Activities were successfully completed. (Dkt. No. 226

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(Daugherty Test.) at ¶¶ 51, 84, 85; Ex. 559 (Building Materials Guidance) at p. 14.)

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38.

In addition, during the Summer 2015 Pilot Study sampling, 100% of the air

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samples and 99% of the wipe samples did not detect PCB concentrations above the

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laboratory’s method reporting limit. (Dkt. No. 226 (Daugherty Test.) at ¶ 51; Ex. 562

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(Appendix D, October 2015 Report); Ex. 564 (October 2015 Report).)

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39.

In response to the October 2015 Report, EPA issued a letter to the District on

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November 2, 2015, concluding that EPA “determined that the removal work, BMPs, and air

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and wipe sampling were performed consistent with EPA’s national guidelines to protect

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public health from PCBs in schools and the terms and conditions of the [October 31, 2014]

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Approval.” (Dkt. No. 226 (Daugherty Test.) at ¶ 86; Ex. 566 (November 2, 2015 EPA

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Correspondence).)1/

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Plaintiffs objected to the statements in the November 2, 2015 Correspondence.
Because the evidence is not being offered for the truth, the Court overrules the hearsay
objection.
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40.

EPA reiterated its prior conclusion that it “does not believe that there is a need

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for additional testing of potential PCB source materials until planned renovation or

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demolition” of the pre-1981 buildings at the Malibu Campus. (Dkt. No. 226 (Daugherty

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Test.) at ¶ 86; Ex. 566 (November 2, 2015 EPA Correspondence).)

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41.

Based on the air and wipe data to date from the Malibu Campus, EPA

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concluded that any “PCB remediation wastes remaining in place at MHS and JCES do not

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pose an unreasonable risk of injury to health or the environment” and that “conditions at

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both schools continue to meet EPA national guidelines to protect public health from PCBs in

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schools.” (Dkt. No. 226 (Daugherty Test.) at ¶ 86; Ex. 566 (November 2, 2015 EPA

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Correspondence).)2/

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42.

The District is currently undertaking modernization projects at the Malibu

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Campus utilizing funds from two Board of Education-approved bond measures that will

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result in the removal and replacement of all pre-1979 windows and doors at MHS and JCES

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and their surrounding caulk. (Dkt. No. 227 (Maez Test.) at ¶¶ 5, 12.)3/

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43.

As part of these modernization projects, and in keeping with the

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Comprehensive Plan and EPA policy and guidance, the District will properly characterize

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building materials undergoing renovation or demolition, prior to disposal of these materials,

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2/

Plaintiffs objected to the statements in the November 2, 2015 Correspondence.
Because the evidence is not being offered for the truth, the Court overrules the hearsay
objection.
3/

Plaintiffs objected to the testimony of Janece Maez concerning the District’s
renovation plans for the Malibu Campus on relevance, hearsay, and best evidence grounds.
Maez is the District’s Associate Superintendent and Chief Financial Officer. (Dkt. No. 227
(Maez Test.) at ¶ 2.) In this role, she manages the budget for any construction project
undertaken by the District, is responsible for disbursements of funding associated with bond
measures, and meets regularly concerning construction projects, including those at the
Malibu Campus. (Id. at ¶¶ 2-15.) The fact that the District is undertaking to remove and
replace all pre-1979 windows and doors at MHS and JCES is relevant to the scope and
timing of any injunctive relief the Court might grant. The Court overrules the other
evidentiary objections to Maez’s testimony as the statements are based upon her personal
knowledge.
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that are planned to occur at the Malibu Campus over the next several years. (Dkt. No. 226

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(Daugherty Test.) at ¶ 87; Ex. 529 (Comprehensive Plan) at 34.)

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44.

The Comprehensive Plan sets forth detailed procedures to be followed once a

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planned building renovation or demolition is scheduled. (Ex. 529 (Comprehensive Plan) at

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36.) Similarly, the Specific Plan (Ex. 531) and Removal Supplement (Ex. 544) inform the

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process for renovation and management of Potentially PCB-Impacted Building Materials

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that will be subject to remediation.

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45.

Measure BB is a District-wide bond measure in the amount of $268 million,

which was passed in 2006. (Dkt. No. 227 (Maez Test.) at ¶ 5.)
46.

With respect to the Malibu Campus, Measure BB bond money was set aside

for a campus improvement project to modernize MHS. (Dkt. No. 227 (Maez Test.) at ¶ 5.)
47.

Measure ES is a District-wide bond measure in the amount of $385 million,

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which was passed in 2012 to “repair, modernize, construct and acquire classrooms,” to

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ensure school earthquake and fire safety, and to upgrade technology. (Dkt. No. 227 (Maez

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Test.) at ¶ 5.)

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48.

As part of that bond measure, an allocation of approximately $77 million was

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reserved for improvements to schools located in Malibu, including MHS and JCES. (Dkt.

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No. 227 (Maez Test.) at ¶ 5.)

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49.

The Measure BB project at the Malibu Campus, which has already received its

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required approval from the Division of the State Architect (“DSA”), will result in

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modernization of a significant portion of MHS. (Dkt. No. 227 (Maez Test.) at ¶ 6.)

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50.

As part of the approved Measure BB project, Building A (Library and

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computer labs) and Buildings B and C (Administrative Offices) will be completely

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demolished and replaced with a new two-story building providing seven new general

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classrooms and three new science labs for the middle school program; two computer labs; a

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library with a high-tech classroom and multi-media center; and administrative offices and

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support spaces. (Dkt. No. 227 (Maez Test.) at ¶ 6.)

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51.

In addition, Building E will be renovated to provide two new and ten

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modernized classrooms for the middle school program, and one classroom in Building E will

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be converted into a modernized Faculty Lounge. (Dkt. No. 227 (Maez Test.) at ¶ 6.)

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52.

As part of the modernization of Building E, all windows will be replaced with

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energy-efficient windows, and all doors that have not been upgraded during the past 25 years

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will be replaced. (Dkt. No. 227 (Maez Test.) at ¶ 6.)

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53.

The window and door replacement will entail removal of the entire window

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system and/or door and surrounding caulk in an affected room, re-framing, and installation

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of a new window system and/or door with new caulk. (Dkt. No. 227 (Maez Test.) at ¶ 6.)

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54.

The classrooms in Building E will also be re-painted, and any floor coverings

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that have not been replaced in the past 25 years will be modernized. (Dkt. No. 227 (Maez

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Test.) at ¶ 6.)

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55.

The Measure BB project at MHS, which has been planned for several years

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and which is now able to move forward following the resolution of certain land use issues, is

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scheduled to begin after the 2015/2016 school year ends in June 2016 with construction of

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temporary relocatable classrooms on the Malibu Campus. (Dkt. No. 227 (Maez Test.) at

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¶ 7.)

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56.

The District has undertaken the necessary administrative processes to permit

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these classrooms for construction in the limited space available on campus to house them.

20

(Dkt. No. 227 (Maez Test.) at ¶ 7.)

21

57.

These portables will hold students and staff who will be moving from

22

Buildings A, B, C, and E when school resumes in the Fall of 2016. (Dkt. No. 227 (Maez

23

Test.) at ¶ 7.)

24

58.

Demolition and construction activities associated with the Measure BB project

25

are currently scheduled to commence this year, and to be completed by 2020. (Dkt. No. 227

26

(Maez Test.) at ¶ 7.)

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28

59.

Students will return to new Buildings A, B, and C, and modernized Building

E, upon completion of the project. (Dkt. No. 227 (Maez Test.) at ¶ 7.)
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1

60.

Because there are pre-1979 buildings on the MHS campus other than

2

Buildings A, B, C, and E that have not had windows, doors, or floors replaced in the past 25

3

years, the District has formulated a plan to take advantage of the fact that construction will

4

already be ongoing on the MHS campus to undertake modernization projects in Buildings D,

5

F (Orchestra/Band), G (Special Education/Woodshop), H (Cafetorium), I (Visual Art), and J

6

(Old Gymnasium) as part of a District-wide “Windows, Paint, Floors, and Doors” program

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that is being administered with the use of Measure ES bond money. (Dkt. No. 227 (Maez

8

Test.) at ¶ 8.)

9

61.

The Windows, Paint, Floors, and Doors program identified a number of

10

campuses District-wide that would benefit from modernization of window systems, paint,

11

floors, and doors in their classrooms. (Dkt. No. 227 (Maez Test.) at ¶ 8.)

12
13
14

62.

All pre-1979 windows in Buildings D, F, G, H, I, and J will be replaced with

new, energy-efficient windows. (Dkt. No. 227 (Maez Test.) at ¶ 8.)
63.

As with the modernization of Building E, the window replacement will entail

15

removal of the entire window system and surrounding caulk, re-framing, and installation of a

16

new window system with new caulk. (Dkt. No. 227 (Maez Test.) at ¶ 8.)

17

64.

In addition, walls will be re-painted, floor coverings that have not been

18

replaced in the past 25 years will be modernized, and doors that have not been replaced in

19

the past 25 years will be replaced. (Dkt. No. 227 (Maez Test.) at ¶ 8.)

20

65.

As with windows, door replacement will entail removal of the entire door and

21

frame, re-framing, and installation of a new door with new caulk. (Dkt. No. 227 (Maez

22

Test.) at ¶ 8.)

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24
25

66.

The modernization of Buildings D, F, G, H, I, and J is scheduled to begin

during 2017, and to be completed by 2020. (Dkt. No. 227 (Maez Test.) at ¶ 9.)
67.

In addition to the activities that are planned at MHS, modernization activities

26

will be taking place at JCES during 2016 as part of the Windows, Paint, Floors, and Doors

27

program. (Dkt. No. 227 (Maez Test.) at ¶ 10.)

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1
2
3

68.

JCES is one of the first campuses to be modernized under the Windows, Paint,

Floors, and Doors program. (Dkt. No. 227 (Maez Test.) at ¶ 10.)
69.

Starting once the Summer 2016 school break commences in June of 2016, all

4

pre-1979 window systems at the JCES campus will be replaced with new, energy-efficient

5

windows. (Dkt. No. 227 (Maez Test.) at ¶ 11.)

6

70.

This primarily affects the window systems in Building F at that school, as most

7

doors and windows throughout the remainder of the JCES campus were modernized in the

8

1990s. (Dkt. No. 227 (Maez Test.) at ¶ 11.)

9

71.

In addition to the window replacement in Building F, all windows and doors

10

that have not been replaced within the past 25 years will be replaced, all floor coverings that

11

have not been replaced within the past 25 years will be modernized, and classrooms will

12

receive a fresh coat of paint. (Dkt. No. 227 (Maez Test.) at ¶ 11.)

13

72.

As with the modernization projects at MHS, the window and door replacement

14

will entail removal of the entire window system and/or door and frame and surrounding

15

caulk in any impacted room, re-framing, and installation of a new window system and/or

16

door with new caulk. (Dkt. No. 227 (Maez Test.) at ¶ 11.)

17

73.

These activities are expected to be fully completed by January of 2017, and the

18

window replacement activities are expected to be completed by the time school resumes at

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JCES for the Fall 2016 semester. (Dkt. No. 227 (Maez Test.) at ¶ 11.)

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74.

The Measure BB and ES projects at MHS and the Measure ES-funded

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Windows, Paint, Floors, and Doors project at JCES, scheduled to be completed by 2020, will

22

address all pre-1979 windows and doors and surrounding caulking at the Malibu Campus.

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(Dkt. No. 227 (Maez Test.) at ¶ 12.)

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25
26

75.

The District is already engaging in the necessary administrative processes to

ensure that these projects move forward on schedule. (Dkt. No. 227 (Maez Test.) at ¶ 13.)
76.

The District hired an architect to begin designing the Windows, Paint, Floors,

27

and Doors project at JCES, including replacement of the windows in Building F, in October

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of 2015. (Dkt. No. 227 (Maez Test.) at ¶ 13.)
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77.

Architectural plans were submitted to DSA on March 18, 2016, a window

2

contractor, JEC, Inc., was hired in March of 2016, and bids for the general contractor were

3

opened on April 12, 2016 and will be awarded on May 5, 2016. (Dkt. No. 227 (Maez Test.)

4

at ¶ 13.)

5
6

78.

The work is, as discussed above, slated to begin during the Summer 2016

school break. (Dkt. No. 227 (Maez Test.) at ¶ 13.)

7

79.

With respect to the projects planned for MHS, the District already has an

8

existing DSA approval for the Measure BB project to replace Buildings A, B, and C and to

9

modernize Building E. The District plans to hire a contractor by the end of the 2016

10

calendar year to do this work. (Dkt. No. 227 (Maez Test.) at ¶ 13.)

11

80.

With respect to the Windows, Paint, Floors, and Doors projects to be

12

undertaken at MHS, the District plans to select an architect within the next two months.

13

(Dkt. No. 227 (Maez Test.) at ¶ 13.)

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15

II.

Conclusions of Law

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17

A.

Jurisdiction and Venue

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1.

This Court has jurisdiction over Defendants and America Unites in this action

19

pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (declaratory judgment),

20

and 15 U.S.C. § 2619 (TSCA citizen suit provision). Dkt. No. 218-1 at p. 2:20-22.

21

2.

PEER has not established it has organizational standing sufficient to maintain

22

this lawsuit against Defendants, as set forth in Hunt v. Washington Apple Adver. Comm’n,

23

432 U.S. 333, 343, 97 S. Ct. 2434, 2441 (1977) (“[A]n association has standing to bring suit

24

on behalf of its members when: (a) its members would otherwise have standing to sue in

25

their own right; (b) the interests it seeks to protect are germane to the organization’s

26

purpose; and (c) neither the claim asserted nor the relief requested requires the participation

27

of individual members in the lawsuit.”). The party invoking federal jurisdiction bears the

28

burden of establishing these elements. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
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1

231, 110 S. Ct. 596, 608, 107 L. Ed. 2d 603 (1990). Since they are not mere pleading

2

requirements but rather an indispensable part of the plaintiff’s case, each element must be

3

supported in the same way as any other matter on which the plaintiff bears the burden of

4

proof, i.e., with the manner and degree of evidence required at the successive stages of the

5

litigation. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-889, 110 S. Ct. 3177, 3186-

6

89, 111 L. Ed. 2d 695 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,

7

114-15 & n.31, 99 S. Ct. 1601, 1615-16, 60 L. Ed. 2d 66 (1979). The Declaration of Katie

8

Lapajne, who identifies herself as a “supporter” of PEER, but not a member, does not

9

establish the necessary facts to support’s PEER’s associational standing to pursue the claims

10

it has asserted in this action. Nor has PEER submitted any other admissible evidence

11

concerning its members or if any such members would have the right to bring this action in

12

their own right. Because PEER has not met its burden to establish its standing to pursue its

13

claim in this action, the Court lacks subject matter jurisdiction over PEER’s claim and

14

dismisses PEER’s claim without prejudice. Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100,

15

1106 (9th Cir. 2006) (explaining that lack of standing is a jurisdictional issue requiring

16

dismissal without prejudice).

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3.

Venue is proper in this district under 15 U.S.C. § 2619(a)(2) because this is the

18

district in which the alleged violations are ongoing, and in which Defendants have their

19

principal place of business. (Dkt. No. 218-1 at p. 2:22-25.)

20

B.

Toxic Substances Control Act

21

4.

PCBs are regulated pursuant to the TSCA and its implementing regulations at

22

40 C.F.R. § 761.

23

5.

24
25

The EPA was authorized by the United States Congress to implement TSCA at

15 U.S.C. § 2601(c).
6.

EPA was authorized by Congress to promulgate rules as follows: “Within six

26

months after January 1, 1977, the Administrator shall promulgate rules to-(A) prescribe

27

methods for the disposal of PCBs, and (B) require PCBs to be marked with clear and

28

adequate warnings, and instructions with respect to their processing, distribution in
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commerce, use, or disposal or with respect to any combination of such activities.” 15 U.S.C.

2

§ 2605(e)(1).

3

7.

EPA promulgated regulations regarding PCBs pursuant to TSCA. See 40 CFR

5

C.

Elements of TSCA Claim

6

8.

To establish a violation of the TSCA pursuant to the citizen suit provision at

4

7

§ 761.

15 U.S.C. § 2619, America Unites must show:

8

a.

9

The material or substance at issue constitutes a chemical, substance, or
mixture that is regulated under TSCA; and

10

b.

Defendants’ handling of the material or substance constitutes an

11

ongoing violation of a TSCA statutory provision or a regulation

12

promulgated pursuant to such a provision.

13
14

(Dkt. No. 218-1 at p. 4:11-17.)
9.

With respect to the PCBs alleged to be in issue in this matter, to establish a

15

violation of the citizen suit provision of the TSCA pursuant to the implementing regulations

16

at 40 C.F.R. § 761, America Unites must show:

17

a.

18

Building materials at the Malibu Campus contain PCBs, which are
regulated under TSCA; and

19

b.

Defendants are currently engaging in an ongoing use of building

20

materials containing PCBs at or above 50 ppm or with surface

21

concentrations above 10 µg/100 cm2 at buildings on the Malibu

22

Campus in violation of 15 U.S.C. § 2605(e)(2) and 15 U.S.C. § 2614(l)

23

and its implementing regulation at 40 C.F.R. § 761.20.

24
25

(Dkt. No. 218-1 at p. 4:18-28.)
10.

Among other things, the TSCA prohibits the use of any PCBs in any manner

26

other than in a totally enclosed manner. 15 U.S.C. § 2605(e)(2)(A); see also 40 C.F.R.

27

§ 761.20(a) (“No persons may use any PCB, or any PCB item regardless of concentration, in

28

any manner other than in a totally enclosed manner . . . .”).
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12.

Because America Unites and PEER provided notice to Defendants more than

2

60 days prior to the filing of this suit, and neither EPA nor the Attorney General has brought

3

any enforcement action regarding PCBs at the Malibu Campus, this action is not precluded

4

by 15 U.S.C. § 2619(b)(1)(A) and (B).

5
6
7

13.

Under the TSCA’s “citizen suit” provision, a plaintiff may commence a civil

action “to restain” a violation of the TSCA. 15 U.S.C. § 2619(a)(1).
D.

A Preponderance of the Evidence Supports the Conclusion that Despite

8

Defendants’ Past Remediation Efforts, Building Materials Containing

9

PCBs In Excess of 50 ppm Continue to Exist at the Malibu Campus

10

14.

11

Partial Findings.

12

15.

In a separate order, the Court has denied Defendants’ Motion for Judgment on

The results of the testing conducted by the Phylmar Group and Ramboll

13

Environ showed multiple areas in multiple buildings on the Malibu Campus with caulk

14

containing PCBs in excess of the 50 ppm threshold.

15

16.

Although Defendants have removed and replaced the caulk from the specific

16

areas and rooms identified in their testing as exceeding the 50 ppm threshold, and some

17

other areas may have had doors and windows repaired or replaced after 1979, there is no

18

evidence that all of the caulk in the buildings at the Malibu Campus constructed prior to

19

1979 has been tested or removed.

20

17.

The Court concludes, based on common sense, that it is highly likely that the

21

same products were used to construct each of the buildings on the Malibu Campus. As a

22

result, for the buildings completed at the Malibu Campus prior to 1979, and at which certain

23

locations have been tested and found to contain caulk with PCBs in excess of 50 ppm, it is

24

more likely than not that caulk containing PCBs in excess of 50 ppm remain in “use” at the

25

Malibu Campus in areas that have not been tested or repaired.

26
27

18.

As a result of this conclusion, the Court rejects Defendants’ argument that the

TSCA claim brought by America Unites is moot.

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1

E.

Appropriate Injunctive Remedy

2

19.

In its May 8, 2015 Minute Order denying plaintiffs’ Motion for Preliminary

3

Injunction, issued just six weeks after this action was filed, the Court highlighted some of

4

the issues that would necessarily guide any injunctive relief the Court might eventually

5

order:

6

While the public certainly has a strong interest in providing safe

7

school environments, there is also a strong public interest in

8

avoiding the confusion and difficulties that would be caused by

9

closing areas of MHS and JCES on shortened notice in the midst

10

of the school year. The public also has a strong interest in

11

having remediation work performed in a well-planned, careful,

12

and cost-effective manner. The mandatory injunction Plaintiffs

13

seek would have the Court interfere in a complex construction

14

and environmental remediation process with very limited

15

information concerning the associated costs and challenges. The

16

public’s interest in an orderly clean-up weighs against the

17

granting of a mandatory preliminary injunction.

18

(Dkt. No. 47.) Despite this guidance, America Unites failed at trial to present any

19

admissible evidence concerning the costs or amount of time it might take to remove any

20

remaining PCB-containing caulk at the Malibu Campus, or how those removal activities

21

might interfere with the educational mission of MHS and JCES and the scheduling of

22

classes.

23

20.

Defendants have provided evidence of their plan to replace some of the pre-

24

1979 buildings at the Malibu Campus and replace the windows and doors and associated

25

caulk of the remaining pre-1979 buildings. According to Defendants, that process will be

26

completed “by 2020.” (Dkt. No. 227 (Maez Test.) at ¶ 12.)

27
28

21.

In light of the failure of America Unites to provide any contrary evidence

concerning an appropriate construction schedule, the District’s continued use of BMPs while
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1

potential PCB-containing materials continue to be “used” at the Malibu Campus, and the

2

Court’s strong desire to preserve the public’s funds, the Court will not require the District to

3

perform costly caulk-removal operations on windows and doors that are already slated for

4

replacement.

5

22.

The Court therefore concludes that the appropriate remedy is to enjoin the

6

District and Defendants from using any office, classroom, or other structure at the Malibu

7

Campus constructed prior to 1979 in which students, teachers, administrators, or staff are

8

regularly present after December 31, 2019, unless the window and door systems and

9

surrounding caulk have been replaced.4/

10

23.

Defendants contend that the primary jurisdiction doctrine bars the claim

11

asserted by America Unites. The primary jurisdiction doctrine “is applicable whenever the

12

enforcement of a claim subject to a specific regulatory scheme requires resolution of issues

13

that are ‘within the special competence of an administrative body.’” Farley Transp. Co. v.

14

Santa Fe Trail Transp. Co., 778 F.2d 1365, 1370 (9th Cir. 1985) (quoting United States v.

15

W. Pac. R.R., 352 U.S. 59, 64, 77 S. Ct. 161, 165, 1 L. Ed. 2d 126 (1956)). When the

16

primary jurisdiction doctrine applies, “the judicial process should be suspended and the

17

issues referred to the appropriate administrative body for its views.” Id. “No fixed

18

formula . . . exists for applying the doctrine, and each case must be examined on its own

19

facts to determine if ‘the reasons for the existence of the doctrine are present and whether

20

the purposes it serves will be aided by its application in the particular litigation.’” Id.

21

(quoting W. Pac. R.R., 352 U.S. at 64, 77 S. Ct. at 165).

22

24.

The EPA has said that as a result of the air and wipe sampling for PCBs

23

undertaken at the Malibu Campus, “and the ongoing and future implementation of BMPs

24

and monitoring at MHS and JCES . . . EPA does not believe that there is a need for

25

additional testing of potential PCB source materials until planned renovation or demolition.”

26
4/

27
28

Defendants shall make every effort to complete the contemplated construction project
by December 31, 2019. However, should construction or other delays slow completion of
the construction project and provide good cause, Defendants may, through noticed motion,
seek an extension of this deadline.
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1

(Dkt. No. 226 (Daugherty Test.) at ¶ 86; Ex. 566 (November 2, 2015 EPA

2

Correspondence).) Because the District has represented to the Court that it is currently

3

engaged in, and will complete, the type of renovation or demolition that would, as

4

contemplated by the EPA, trigger removal and testing obligations, the injunctive relief

5

contemplated by Court is consistent with the EPA’s guidance and expertise. The Court

6

therefore rejects Defendants’ assertion of the EPA’s primary jurisdiction as a defense to the

7

claim for injunctive relief pursued by America Unites.

8
9

Conclusion

10
11

For all of the foregoing reasons, the Court concludes that the preponderance of the

12

evidence supports the conclusion that PCB-containing materials are in “use” at the Malibu

13

Campus. Because the District’s current plan to replace and renovate the pre-1979 buildings

14

on the Malibu Campus is a reasonable and appropriate remedy for the TSCA violation, the

15

Court will enter a permanent injunction that is consistent with the District’s construction

16

plan. PEER is dismissed for lack of standing. The Court will issue a Judgment and

17

Permanent Injunction consistent with these Findings of Fact and Conclusions of Law and the

18

Court’s December 21, 2015 Minute Order concerning sanctions. (Dkt. No. 76.)

19

DATED: September 1, 2016

20
21

___________________________________
Percy Anderson
UNITED STATES DISTRICT JUDGE

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