UNITED ST ATES DISTRICT COURT FOR THE CENTRAL DISTRICT. 16 AMERICA UNITES FOR KIDS, et al., CASE NO. 2:15-cv PA-AJW

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1 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 1 of 12 Page ID #: Charles A vrith (SBN 96804) NAGLER & ASSOCIATES S. Sepulveda Boulevard 3 Los Angeles, California Telephone: (310) cavrith@nagler.com 5 Attorneys for Plaintiffs America Unites for Kids and Public Employees for Environmental Responsibility 6 7 Paula Dinerstein (admitted Pro Hae Vice) Public Employees for Environmental Responsibility P. Street NW, Ste Washington, DC Telephone: (202) pdinerstein@peer.org 11 Attorneys for Plaintiffs Public Employees for Environmental Responsibility UNITED ST ATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 16 AMERICA UNITES FOR KIDS, et al., CASE NO. 2:15-cv PA-AJW v. Plaintiffs, SANDRA LYON, et al., Defendants. JOINT REPORT FOR THE RULE 26(f) SCHEDULING CONFERENCE Scheduling Conference Date: August 24, 2015 Time: 10:30 a.m. Judge: Hon. Percy Anderson Courtroom: 15 Complaint Filed: March 23, 2015 Discovery Cutoff Date: None Pretrial Conference Date: None Trial Date: None JOINT REPORT FOR THE RULE 26(t) SCHEDULING CONFERENCE

2 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 2 of 12 Page ID #: Pursuant to Fed. R. Civ. P. 26(f) and the Court's June 30, 2015 Order 2 Scheduling Meeting of Counsel (Dkt. 58), Plaintiffs America Unites for Kids and 3 Public Employees for Environmental Responsibility ("Plaintiffs") and Defendants 4 Sandra Lyon, in her official capacity as Superintendent of the Santa Monica Malibu 5 Unified School District (the "District"), Jan Maez, in her official capacity as the 6 District's Associate Superintendent and Chief Financial Officer, and Laurie 7 Lieberman, Dr. Jose Escarce, Craig Foster, Maria Leon-Vazquez, Richard 8 Tahvildaran-Jesswein, Oscar De La Torre, and Ralph Mechur, in their official 9 capacities as members of the District's Board Of Education (collectively, 1 O "Defendants"), through their undersigned counsel of record, respectfully submit this 11 Joint Report Synopsis Of The Principal Issues 13 Plaintiffs contend that the principal issues in this case are: ( 1) whether 14 Defendants are violating the Toxic Substances Control Act ("TSCA") and the 15 implementing regulations thereunder by using facilities at the Malibu High School 16 and Juan Cabrillo Elementary School (the "Malibu Schools") that contain illegal 17 levels of PCBs; and (2) the terms of the injunctive relief which should issue to 18 remediate illegal levels of PCBs at the Malibu schools and to enjoin the continuing 19 use of illegal levels of PCBs. 20 Defendants contend that the principal issue in the case is whether Defendants' 21 occupation and use of facilities at the Malibu Schools is in compliance with TSCA' s 22 statutes and implementing regulations Amendment Of The Pleadings 24 Plaintiffs do not intend to amend their First Amended Complaint. Defendants 25 do not intend to amend their Answer to the First Amended Complaint Issues Which May Be Determined By Motion 27 Plaintiffs believe that Defendants' liability under TSCA and Defendants' 28 affirmative defenses may be subject to determination by motion. JOINT REPORT fc)r THE RULE 26(1) SCHEDULING CONFERENCE

3 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 3 of 12 Page ID #: Defendants also believe that TSCA liability may be subject to determination 2 by motion Discovery 4 Plaintiffs intend to serve a set of document requests and interrogatories. 5 Plaintiffs may also notice certain depositions including: ( 1) certain individual 6 defendants; (2) PMK of SMMUSD; (3) PMK of Environ (the District's 7 environmental consultant); and (4) the PMK of EPA; and (5) Jerry Block, a former 8 principal at the Malibu Schools. 9 In addition to the foregoing, Plaintiffs will likely serve a request under Fed. 10 R. Civ. P. 34(a) for access to the Malibu Schools to conduct sampling for their own 11 testing and so that their consultants can observe conditions at the Schools to aid 12 them in rendering their opinions. 13 Defendants intend to serve a set of document requests, as well as requests for 14 admission and interrogatories. Defendants may also notice certain depositions 15 including: (I) individual deponents; (2) the PMK of Public Employees for 16 Environmental Responsibility; and (3) the PMK of America Unites for Kids Law And Motion 18 Plaintiffs intend to make a motion for reconsideration of that portion of the 19 Court's June 15, 2015 Order stating that discovery should be limited initially to air 20 and surface wipe sampling, and that the testing of caulk "or other more invasive 21 discovery" should be allowed only if the initial air and wipe sampling reveals PCBs 22 in excess of EPA' s "health-based screening levels." 23 Plaintiffs may also seek summary judgment or partial summary judgment 24 with respect to certain of Defendants' affirmative defenses or other issues. 25 Defendants may seek summary judgment premised upon compliance with 26 TSCA regulations and policy at the Malibu Schools Settlement The parties have not had any settlement discussions to date. 2 JOINT REPORT FOR THE RULE 26(1) SCHEDULING CONFERENCE

4 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 4 of 12 Page ID #: The parties are aware that, except in extraordinary circumstances, the Court 2 will not refer the parties to the Magistrate Judge assigned to this action to conduct 3 the settlement conference. However, given the nature of the dispute and the parties 4 to the case, both sides believe that this is an extraordinary situation and respectfully 5 request that the Court refer the parties to the Magistrate Judge assigned to this action 6 or other judicial officer to conduct the settlement conference Other Parties 8 Plaintiffs do not anticipate adding any other parties unless the administrators 9 at the District responsible for this issue change or the composition of the District's 1 O Board of Education changes. 11 Defendants do not anticipate bringing in any other parties Trial 13 The trial will be to the Court. 14 The parties estimate that the trial will take 5 days Case Schedule 16 The parties have a major disagreement over scheduling. Exhibit A hereto are 17 Plaintiffs' and Defendants' respective proposals for the various case deadlines. 18 A. Plaintiffs' Position 19 Plaintiffs' position is that trial should take place as soon as possible given that 20 the presence of illegal levels of PCBs at the Schools poses a serious health risk to 21 the health and safety of students and staff. Plaintiffs respectfully request that the 22 trial begin at the latest by May 2, 2016, so that if Plaintiffs prevail, the District will 23 have sufficient time to plan for and remediate the Schools over the 2016 summer 24 break and before the beginning of the school year. There is no valid reason 25 why students and staff should be forced to occupy PCB-contaminated premises for 26 yet another year. 27 Defendants contend that the fact discovery cutoff and trial date should be 28 delayed until April 11, 2016 and February 27, 2017, respectively, because the first 3 JOINT REPORT FOR Tl-I E RULE 26(f) SCHEDULING CONFERENCE

5 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 5 of 12 Page ID #: full school break lasting long enough to comfortably complete any sampling 2 activities is not scheduled until the Thanksgiving (2015) holiday. Putting aside that 3 this does not explain why an April 15, 2016 discovery cutoff or a February 27, trial date is needed, there is no reason to wait until Thanksgiving to conduct 5 sampling. Defendants themselves concede that sampling may be conducted over a 6 weekend when school is not in session. 7 8 B. Defendants' Position Defendants have presented a proposed case schedule that is intended to 9 account for the current removal activities, additional sampling consistent with EPA 1 O policy on PCBs in schools, and collaboration with EPA to undertake additional 11 work at the Malibu Schools as necessary to comply with all EPA directives, EPA 12 policy and regulations regarding the implementation of TSCA's provisions, and the 13 self-implementing requirements of TSCA. Defendants' position is that this 14 proposed schedule will allow for resolution of any factual issues related to sampling 15 and abatement prior to trial, such that the resolution of the case at large will turn on 16 the question of law with respect to interpretation of TSCA and EPA's policies 17 implementing TSCA. 18 More specifically, Defendants' position is that given the nature of 19 environmental investigations undertaken on the Malibu Schools to date, it is not 20 atypical to need more than a weekend or two to undertake sampling. Particularly if 21 Plaintiffs plan to continue to request access to the Malibu Schools to undertake their 22 own sampling, undertaking this sampling during a planned school break is the best 23 way to ensure the safety and activities of students and staff at the schools are not 24 disrupted by sampling activities. As a result, Defendants' proposed schedule takes 25 into account the planned school schedule; following the return of students and 26 teachers to the Malibu Schools during the week of August 10, 2015, the first full 27 school break lasting long enough to comfortably complete any potentially necessary 28 sampling activities is not scheduled until the Thanksgiving holiday. Contrary to 4 JOINT REPORT FOR THE RULE 26(t) SCHEDULING CONFERENCE

6 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 6 of 12 Page ID #: Plaintiffs' position, Defendants do not agree that the type and nature of sampling 2 that has been discussed and/or requested to date could be realistically completed in 3 only one weekend, and breaking sampling events up over multiple weekends risks 4 disruption to both students and staff at the Malibu Schools. Given that data return 5 and QA/QC procedures can take between thirty (30) and sixty (60) days following a 6 sampling event, Defendants do not feel that a fact discovery cut-off date of 7 December 15, 2015 is realistic for either one of the Paiiies. 8 With respect to expert designation and reports, Defendants' position is that it 9 will be difficult for either party to ascertain and designate necessary experts until 1 O investigations and fact discovery have been concluded. Given the complex 11 scientific and technical issues associated with this case, Defendants believe the 12 compressed expe1i schedule proposed by Plaintiffs would not be sufficient for the 13 Parties to select appropriate experts such that they are best prepared for trial. 14 Finally, with respect to supplemental disclosures pursuant to Fed. R. Civ. P (a)(l) and (e)(l), while Defendants do not dispute that under the Federal Rules of 16 Civil Procedure, parties have the right to supplement their disclosures up until thirty 17 (30) days prior to trial. However, in a case such as this one, where supplemental 18 disclosures so late in the schedule are unlikely to be necessary, it is Defendants' 19 position that it would be appropriate to set a disclosure deadline earlier to give 20 experts the benefit of any information that would be disclosed Case Management Issues 22 Plaintiffs are not currently proposing any severance, bifurcation or other 23 ordering of proof. However, Plaintiffs believe that if comprehensive caulk testing is 24 performed at the Schools as part of discovery or otherwise, that will likely dispose 25 of most, if not all, of the case. Plaintiffs reasonably expect, based on the results of 26 the caulk testing to date, that such testing will confirm the presence of illegal levels 27 of PCBs over 50 ppm throughout the School since the same building materials were 28 used throughout the same buildings where PCBs have already been identified. The 5 JOINT REPORT FOR THE RULE 26(!) SCHEDULING CONFERENCE

7 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 7 of 12 Page ID #: District has committed to remediate any areas containing PCBs over 50 ppm. Thus, 2 if the events described above take place, the only issue left for the Court to decide 3 may be the timing of the remediation (assuming, of course, the parties are not able 4 to reach agreement on that issue). 5 Defendants similarly are not currently proposing any severance, bifurcation, 6 or other ordering of proof. 7 As discussed in relation to the case schedule, Defendants have presented a 8 proposed case schedule that is intended to account for the current removal activities, 9 additional sampling consistent with EPA policy on PCBs in schools, and IO collaboration with EPA to undertake additional work at the Malibu Schools as 11 necessary to comply with all EPA directives, EPA policy and regulations. As noted 12 above, Defendants' position is that this proposed schedule will allow for resolution 13 of any factual issues related to the Defendant-led investigation, such that the 14 resolution of the case at large will turn on the question of law with respect to 15 interpretation oftsca and EPA's policies implementing TSCA Dated: August 10, 2015 Dated: August 10, 2015 Ill Respectfully submitted, NAGLER & ASSOCIATES By: Isl Charles Avrith Charles Avrith Attorneys for Plaintiffs America Unites for Kids and Public Employees for Environmental Responsibility PAULA DINERSTEIN By: Isl Paula Dinerstein Attorneys for Plaintiff Public Employees for Environmental Responsibility 6 JOINT REPORT FOR Tl-IE RULE 26(1) SCHEDULING CONFERENCE

8 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 8 of 12 Page ID #:1851 l Dated: August 10, PILLSBURYWINTHROP SHAW PITTMANLLP By: /s/ Mark E. Elliott Mark E. Elliott Attorneys for Defendants Sandra Lyon, Jan Maez, Laurie Lieberman, Dr. Jose Escarce, Craig Foster, Maria Leon-Vazquez, Richard Tahvildaran-Jesswein, Oscar De La Torre, and Ralph Mechur 8 9.IO JOINT REPORT FOR THE RULE 26(f) SCHEDULING CONFERENCE

9 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 9 of 12 Page ID #:1852 EXHIBIT A Exh. A Page 08

10 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 10 of 12 Page ID #:1853 PROPOSED SCHEDULE America Unites/or Kids, et al. v. Sandra Lyon, et al. U.S.D.C. Case No. 2:15-cv PA-AJW Event Plaintiffs' Proposed Date Defendants' Proposed Date Fact discovery will commence NI A - The Court has September 8, 2015 no earlier than this date. ordered that the parties may commence discovery in this action prior to the Rule 26(f) Scheduling Conference (Dkt. 36, at p. 3) Fact discovery cut-off. December 15, 2015 April 11, 2016 Experts shall be designated on January 11, 2016 May 16, matters for which the parties have the burden of proof by this date. The parties shall exchange January 11, 2016 May 16, initial expert reports no later than this date. The parties shall designate February 8, 2016 July 5, 2016 rebuttal experts by this date. The parties shall exchange February 8, July 5, 2016 rebuttal expert reports no later than this date. Expert discovery shall be February 22, 2016 August 1, 2016 completed no later than this date. Motions challenging expert February 29, 2016 September 5, 2016 qualifications and/or the admissibility of expert testimony shall be served and filed no later than this date. 1 Exh. A Page 09

11 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 11 of 12 Page ID #:1854 Event Plaintiffs' Proposed Date Defendants' Proposed Date Dispositive motions shall be February 29, 2016 October 3, 2016 served and filed no later than this date. Last day for hearing of March 28, 2016 October 31, 2016 motions. Exhibit and witness lists shall April 11, November 7, 2016 be filed and served, and exhibits made available for inspection, by this date. The parties shall also serve, but not file at this time, a list of witnesses whose testimony may be made by deposition, along with a purged transcript of deposition testimony. All expert and fact witness April 11, 2016 November 14, 2016 declarations shall be served and filed concurrently by this date. A joint Pretrial Order shall be April 11, 2016 January 30, 2017 filed on or before this date. Trial briefs and proposed April 11, 2016 January 30, 2017 Findings of Fact and Conclusions of Law shall be served and filed on or before this date. Supplemental disclosures April 11, 2016 September 28, 2015 pursuant to Fed. R. Civ. P. 26( a )(1) and ( e )(1) shall occur on or before this date. 2 Exh. A Page 10

12 Case 2:15-cv PA-AJW Document 59 Filed 08/10/15 Page 12 of 12 Page ID #:1855 Event Plaintiffs' Proposed Date Defendants' Proposed Date Any objection to a witness, April 18, December 12, 2016 use of a deposition or an exhibit proposed by an opponent shall be filed and served by this date. Any stipulations as to facts April 18,2016 December 19, and/or law should be filed of record no later than this date. Final pre-trial conference. April 18, 2016 February 13, 2017 All evidentiary objections to April 22, 2016 January 9, declarations shall be served and filed by this date. All demonstrative exhibits should be exchanged no later than this date. Any response to objections to April 29, 2016 January 23, 2017 declarations shall be served and filed no later than this date. Trial shall commence. May 2, 2016 February 27, 2017 Exh. A Page 11