Tag Archives: lead paint

California settles decades-long lawsuit over lead paint, but outcome is bittersweet

Ashley Avila, 11, plays with her nephew Alexander Avila, 3, outside of their home where Alexander was lead poisoned by lead-based paint in Oakland, California, U.S. June 18, 2019. REUTERS/Kate Munsch

By Joshua Schneyer

OAKLAND, Calif. (Reuters) – When Californian counties and cities first sued paint makers in 2000, they wanted the companies to pay billions to remove dangerous old lead paint from hundreds of thousands of homes.

After a 19-year legal struggle, they have finally succeeded in getting the companies to fund a remediation program, albeit on a much smaller scale. Sherwin-Williams, Conagra Brands Inc and NL Industries have agreed to a $305 million settlement, according to a filing in Santa Clara County Superior Court in California on Wednesday.

The resolution marks a rare success for a public nuisance claim, under which counties and municipalities can sue corporations for past activities – including those conducted decades ago – they say have harmed communities.

High-profile public nuisance claims have proliferated in recent years in the United States as local governments try to use the courts to make corporations pay for societal ills like lead poisoning, the opioid addiction crisis and climate change.

Yet the glacial pace and complex twists in California’s lead paint case highlight just how difficult it can be to use the public nuisance strategy against corporations, even in a state whose courts are particularly consumer-friendly.

A trial judgment in 2014 ordered the paint companies to pay $1.15 billion, but an appeals court decision led to the amount being slashed by more than half in 2017. Once the companies had exhausted the appeals process, they threatened to sue individual property owners who received help cleaning up their properties, by claiming they had failed to properly maintain their housing.

“This landmark settlement will allow thousands of homes to be remediated, and as a result, current and future generations of California children will no longer face the threat of lead poisoning,” said James Williams, County Counsel for Santa Clara County, where the lawsuit was first filed.

“We’re pleased that we’ve been able to hold lead paint manufacturers accountable and responsible,” he said.

The defendant paint companies did not admit any wrongdoing under the settlement.

One of the companies said the agreement would limit its liability.

“Sherwin-Williams is pleased to have reached an agreement to resolve this litigation, and it will continue to vigorously and aggressively defend against any similar current or future litigation,” the company said in a written statement.

BITTERSWEET VICTORY

The number of U.S. children poisoned by lead has fallen sharply since the United States banned the toxic metal from residential paint and gasoline, during the 1970s and 80s.

But for California districts like Oakland and Los Angeles, where childhood lead poisoning still exacts a heavy toll, the outcome of the legal struggle is bittersweet.

In the decades it took the local governments to prevail, tens of thousands of more children in California have been exposed to dangerous levels of lead, state public health data shows.

In Alameda County, for example, some zip codes have lead poisoning rates higher than those found in Flint, Michigan, at the peak of that city’s water contamination crisis.

County inspectors found dangerous paint dust in the East Oakland home of 3-year-old Alexander Avila, who tested with lead levels more than five times the elevated standard of five micrograms per deciliter set by the Centers for Disease Control and Prevention (CDC).

When a reporter visited the nearly century-old home last month, Alexander was a ball of hyperactive energy. His mother Stephanie, 26, said he is able to speak few words and has trouble engaging with other kids at preschool. She fears his past lead exposure will affect him for life.

“People just don’t know what’s in their own houses, or the dangers their kids can face,” she said.

A county program helped fix lead paint hazards at the home, but public funds are scarce to repair housing before it can harm children.

In nearby Hayward, California, another predominantly working-class city in the San Francisco Bay Area, five members of the Mariscal family, including two children, were poisoned by lead paint at their old home during 2017 and 2018, county health data and inspection reports show.

Three-year-old Isaac, who tested at levels more than twice the CDC’s elevated threshold, suffered anemia – a common symptom of lead exposure – and, like Alexander, has also had speech problems.

The CDC says there is no safe level of lead in children’s blood. At least 4 million U.S. children remain at risk of exposure from chipping paint or lead dust in their housing, the agency says. Lead paint doesn’t pose an immediate danger unless it is deteriorating.

Many of the 10 counties and cities that brought the lawsuit have tens of thousands, or hundreds of thousands, of older housing units. Neutralizing lead paint hazards in a single home can cost thousands of dollars, so the settlement money may only cover the clean-up of a fraction of homes that need work.

“The litigation money can only go so far, but it’s a start,” Larry Brooks, director of Alameda County’s lead poisoning prevention program, said in an interview last month.

More than 6,300 children have been exposed to elevated lead levels in his county since 2000, when the litigation began, according to county health data.

Although the United States banned lead paint sales in 1978, most old housing still contains it, and thousands of U.S. neighborhoods still have alarming poisoning rates, Reuters found in a series of articles in 2017.

NEW LEGAL PRECEDENT?

California jurisdictions are the first to have a public nuisance verdict upheld against former lead paint manufacturers. Several lawsuits in other states have failed since 2000, from Illinois to Missouri and Rhode Island.

The California case may set a new legal precedent for seeking remediation. Legal scholars say it could encourage new lawsuits against paint companies, and Californian local governments report receiving inquiries from counterparts in other areas of the country interested in bringing their own nuisance claims.

In product liability lawsuits, attorneys must prove harm to individual plaintiffs. In public nuisance cases, the plaintiffs don’t have to prove harm to specific people. Instead, they can claim that the defendants’ activities impeded broad community rights, such as the public right to enjoy property.

In California, the plaintiffs argued the companies were responsible for creating a public health threat and knew of the toxic dangers of lead paint when they marketed it, without properly warning consumers, for decades before the U.S. government banned its use in homes.

The paint companies argued that they stopped marketing lead paint products once risks became known. They contended that homeowners were responsible for preventing any poisoning hazards in their living spaces.

Santa Clara County recently filed another public nuisance case against opioid pill manufacturers, and similar cases are popping up with increasing frequency nationwide.

Many of these suits share a common goal: making big business pay to fix high-cost societal burdens that their profit-making activities may have left behind.

Corporate defense attorneys worry that more wins for local governments under the public nuisance doctrine could saddle businesses with huge and unpredictable liabilities, in some cases for decades-old actions they thought were safe at the time.

WHY SETTLE NOW?

The California local governments and the companies settled after a marathon legal battle that saw both sides suffer setbacks.

Beyond seeing the earlier $1.15 billion judgment sharply cut back by an appeals decision, the plaintiffs were concerned with court-imposed restrictions on how the money could be used.

For instance, the terms had limited the remediation program to housing built before 1951, and only indoor paint hazards could be fixed. The local governments also faced a tight, four-year window to complete the program, after which any unspent funds would be returned to the paint companies.

As recently as January, court filings from the case show, lawyers for the paint companies vowed to sue California property owners who sought to use the remediation funds. Counties were concerned the mere specter of these suits would have a chilling effect on the remediation program, which will rely on housing owners’ voluntary participation.

It was an unusually bold move, legal scholars say.

“Talking about suing property owners is an aggressive tactic,” said Bob Rabin, a tort law specialist at Stanford University.

“I can’t think of another public nuisance judgment where defendants turned around and said recipients of the damages should be disqualified because they are to blame,” he said.

With the settlement in place, these threats and court-imposed limitations on how the money can be spent will now be lifted.

Paint companies have agreed not to target property owners with lawsuits, cities and counties can take as much time as they need fixing homes, and housing built through the 1970s when lead paint was still being sold are also eligible for help, including on exterior walls.

(Reporting By Joshua Schneyer; Editing by Michael Williams and Ross Colvin)

As wildfires devour communities, toxic threats emerge

FILE PHOTO: Vanthy Bizzle hands some small religious figurines to her husband Brett Bizzle in the remains of their home after returning for the first time since the Camp Fire forced them to evacuate in Paradise, California, U.S. November 22, 2018. REUTERS/Elijah Nouvelage/File Photo

By Sharon Bernstein

PARADISE, Calif. (Reuters) – As an uncontrollable wildfire turned the California town of Paradise to ash, air pollution researcher Keith Bein knew he had to act fast: Little is known about toxic chemicals released when a whole town burns and the wind would soon blow away evidence.

He drove the roughly 100 miles to Paradise, located in the Sierra Nevada foothills, from his laboratory at the University of California, Davis, only to be refused entrance under rules that allow first responders and journalists – but not public health researchers – to cross police lines.

It was the second time Bein says he was unable to gather post-wildfire research in a field so new public safety agencies have not yet developed procedures for allowing scientists into restricted areas.

Fires like the one that razed Paradise last November burn thousands of pounds of wiring, plastic pipes and building materials, leaving dangerous chemicals in the air, soil and water. Lead paint, burned asbestos and even melted refrigerators from tens of thousands of households only add to the danger, public health experts say.

Bein’s experience highlights the difficulties in assessing the impact of today’s massive disasters, whether wildfires that burn entire towns or flooding after major hurricanes, incidents scientists say are becoming more common due to climate change.

“Everything that we’re doing, it feels like this is a question nobody has asked before, and we have no answers,” said Irva Hertz-Picciotto, director of the Environmental Health Sciences Center at U.C. Davis.

Researchers are examining soil tested for the presence of chemical compounds in neighborhoods destroyed by the 2017 wildfire that swept into Santa Rosa, located in California’s Sonoma County north of the Bay Area, and comparing it to uninhabited land nearby where only trees had burned, Hertz-Picciotto said. In that still-uncompleted study, researchers found nearly 2,000 more chemical compounds in the soil than in uninhabited parkland nearby. Researchers are now working to identify the compounds.

While scientists have studied wildfires for decades — learning much about the impact on air, soil and nearby ecosystems — fires that race from the forest into large urban communities were, until recently, exceedingly rare.

 

COLLABORATIVE RESEARCH

As natural disasters increase in scope and frequency, public health researchers across the United States are developing new lines of inquiry with unusual speed.

Scientists, many of them funded by the National Institute of Environmental Health Sciences (NIEHS), are studying pregnant women exposed to polluted air and water after Hurricane Harvey hit Houston in 2017; residents of Puerto Rico forced to live in unrepaired homes where mold and fungi grew after Hurricane Maria in 2017; eggs from backyard chickens that ate California wildfire ash, among other topics.

“It’s fundamentally critical that we be able to understand these situations and the risks to populations both in the short term and in the long term,” said NIEHS senior medical adviser Aubrey Miller, who is helping to develop quick-response disaster research cutting across scientific specialties.

To do that, NIEH has sped up the time it needs to fund research, from months or years to as little as 120 days, said Gwen Collman, who directs the agency’s work with outside researchers.

At U.C. Davis, where researchers are studying eggs from backyard chickens that may have breathed smoke and pecked at ash in areas affected by wildfires, the work is complicated.

“In an urban fire you’re dealing with contaminants that don’t go away – arsenic, heavy metals, copper, lead, transformer fluid, brake fluid, fire retardant,” said veterinarian Maurice Pitesky, who is leading the study.

Any contaminants found in the eggs could stem from other factors such as the proximity of the home to a factory, a waste disposal site or a highway, he said.

In an as-yet-uncompleted study, researchers have tested eggs sent by individual owners of roughly 350 backyard properties concerned about possible contamination from wildfires and other causes, researcher Todd Kelman said. The locations of the yards were mapped to see which homeowners lived near wildfire areas, and the eggs were tested to see if they have high levels of contaminants such as lead, cadmium and other chemicals associated with human buildings and activities.

COMBING PARADISE

One recent morning, teams from the U.S. Environmental Protection Agency in white hazmat suits combed through Paradise, loading seared paint cans, partially melted pesticide containers and the remains of propane tanks onto trucks to be hauled away.

Rusty Harris Bishop, a toxics expert with the EPA who worked on the Paradise cleanup, said removal teams take away whatever contaminants they find, including melted pipes or asbestos-laden construction materials, going beyond the older definition of hazardous household waste.

But cleanup protocols after such disasters are evolving along with the public health science, he said. 

That gap in knowledge concerns researchers like Bein, who plans to train as a firefighter to get access to the burned areas in the next big blaze.

“As these types of fires become more frequent in nature, where instead of once every decade it’s once every summer . . . then we really need to know how this is going to affect health,” Bein said.

Exclusive: U.S. Army forms plan to test 40,000 homes for lead following Reuters report

FILE PHOTO: Professor Alexander Van Geen, Research Professor of Geochemistry at Columbia University, tests lead samples from Fort Benning, Georgia at the Lamont-Doherty Earth Observatory in Palisades, New York, U.S. March 29, 2018. REUTERS/Mike Wood/File Photo

By Joshua Schneyer and Andrea Januta

NEW YORK (Reuters) – The U.S. Army has drafted a plan to test for toxic lead hazards in 40,000 homes on its bases, military documents show, in a sweeping response to a Reuters report that found children at risk of lead poisoning in military housing.

The inspection program, if implemented, would begin quickly and prioritize thousands of Army post homes occupied by small children, who are most vulnerable to lead exposure. Ingesting the heavy metal can stunt brain development and cause lifelong health impacts.

The lead inspections would cost up to $386 million and target pre-1978 homes to identify deteriorating lead-based paint and leaded dust, water or soil, according to the military documents.

A draft Army Execution Order says the program’s mission is to mitigate all identified lead hazards in Army post homes in the United States. In homes where dangers are detected, the Army would offer soldiers’ families “temporary or permanent relocation” to housing safe from lead hazards, it says.

The Army’s mobilization comes after Reuters published an investigation on August 16 describing lead paint poisoning hazards in privatized military base homes. It documented at least 1,050 small children who tested high for lead at base clinics in recent years. Their results often weren’t being reported to state health authorities as required, Reuters found.

Behind the numbers were injured families, including that of a decorated Army colonel, J. Cale Brown, whose son JC was poisoned by lead while living at Fort Benning, in Georgia.

The article drew a quick response from lawmakers, with eight U.S. senators demanding action to protect military families living in base housing.

The Army’s planned response is laid out in military documents, including the draft Execution Order, minutes from a private meeting attended by top Army brass, and other materials.

One priority, detailed by Under Secretary of the Army Ryan McCarthy in an August 22 meeting, is for the military’s response to counter any sense “that we … are not taking care of children of Soldiers and are not taking appropriate action quickly enough,” meeting minutes say. “The Army will remain focused on the actions to assess, inspect, and mitigate risks to Soldiers and Families,” the minutes say, citing McCarthy and Vice Chief of Staff General James C. McConville.

Army spokeswoman Colonel Kathleen Turner acknowledged plans are being formulated but said no decisions have been made. “Out of an abundance of caution, we are going above and beyond current requirements to ensure the safety of our soldiers and their families who work and live on all of our installations,” Turner said in a statement. “We are currently evaluating all options to address these concerns.”

Old lead-based paint becomes a poisoning hazard when it deteriorates, and poor maintenance of military base homes can leave legions at risk. About 30 percent of service families – including some 100,000 small children – live in U.S. military housing owned and operated by private companies in business with the military.

There are nearly 100,000 homes on U.S. Army bases, and the lead inspections are expected to focus on the approximately 40,000 built before a 1978 U.S. ban on the sale of lead paint.

The plans depart from guidance that appeared on the Army Public Health Center’s website as recently as last week, which “discouraged” lead-based paint inspections in Army homes. The website has since been updated and omits that language.

Under the plans, the documents show, the Army would:

– Inspect all pre-1978 Army family housing units nationwide, including visual lead-based paint assessments by certified personnel, swipe-testing for toxic lead paint dust, and testing of tap water. Some homes will also receive soil testing. This phase alone, described as “near-term actions,” will cost between $328 million to $386 million, the Army’s Installation Services director estimated.

– Temporarily or permanently relocate families when hazards are found. “If a Family or Soldier are concerned with potential negative impacts from lead; the U.S. Army will offer them a chance to relocate to a new residence,” the documents say. “We must do everything we can to maintain that trust.”

– Conduct town hall meetings on Army posts to address residents’ lead concerns. The Army intends to do so with “empathy,” the meeting minutes say. “Tone is key and can be just as important as the actions we take.”

The documents leave some questions unanswered. They don’t say how long it would take to inspect all 40,000 homes. Also unclear is whether the Army has funds immediately available for the program, or would need Congressional authorization to set them aside.

The Army would ensure that the private contractors who operate base housing “are meeting their obligations” to maintain base homes, the documents say and would require them to show compliance with lead safety standards through independent audits.

The documents do not discuss whether private housing contractors would bear any of the costs of the lead inspections, or how any repairs would be funded.

In most cases, Army post homes are now majority-owned by private real estate companies. Under their 50-year agreements with the Army, corporate landlords operating military housing agreed to control lead, asbestos, mold, and other toxic risks present in some homes, particularly historic ones.

FAMILIES, SENATORS PRESS FOR ANSWERS

The Army plans come as base commanders and housing contractors face a wave of complaints about potential home lead hazards, and a rush of military families seeking lead tests for their children.

Last week, the hospital at Fort Benning, where Reuters reported that at least 31 small children had tested high for lead exposure in recent years, began offering “walk-in” lead testing. Some concerned families are already being relocated; in other homes, maintenance workers are using painter’s tape to mark peeling paint spots that residents found contained lead by using store-bought testing kits.

Lead poisoning is preventable, and its prevalence in the United States has declined sharply in recent decades. Still, a 2016 Reuters investigation documented thousands of remaining exposure hotspots, mostly in civilian neighborhoods.

Last week, eight senators, including Republican Johnny Isakson of Georgia and Democrat Claire McCaskill of Missouri, pushed amendments to legislation to examine and address the military’s handling of lead exposure risks.

In coming weeks, Army officials plan to meet with lawmakers to address their concerns, the military documents show.

(Edited by Ronnie Greene and Michael Williams)

Special Report: Reuters’ testing triggers lead cleanup at Fort Knox base

FILE PHOTO: Col. John Cale Brown and Darlena Brown pose for a portrait with their sons J.C. and Rider at their home in 2017. Picture taken 2017. REUTERS/Aaron P. Bernstein

By Joshua Schneyer

FORT KNOX, Kentucky (Reuters) – Fort Knox is famed for its ultra-secure bullion depository that holds $100 billion in U.S. gold reserves. But some families at the Kentucky Army base have concerns about another heavy metal: lead.

When Reuters offered lead testing to military families at several bases, the highest result came from a peeling paint sample one Knox family collected from their covered back porch. It contained 50 percent lead, or 100 times the federal hazard level.

In April, a reporter visited the home, where Karla Hughes lives with her husband, an Army captain, and 4-year-old daughter, who doesn’t have elevated lead levels. In a grassy area where children play nearby, paint chipping from an abandoned electric switch house contained 16 percent lead.

Lead samples line up ready for testing at the Lamont-Doherty Earth Observatory in Palisades, New York, U.S. March 29, 2018. Picture taken March 29, 2018. To match Special Report USA-MILITARY/HOUSING. REUTERS/Mike Wood

Lead samples line up ready for testing at the Lamont-Doherty Earth Observatory in Palisades, New York, U.S. March 29, 2018. Picture taken March 29, 2018. To match Special Report USA-MILITARY/HOUSING. REUTERS/Mike Wood

Several historic homes on the Hughes’ street had old paint peeling from exterior trim, porch or window areas.

Knox Hills, the landlord for more than 2,300 homes on base, removed exterior lead paint from many older homes in recent years but left others untouched.

When Hughes complained about paint conditions in April, the company sent a maintenance worker, who repainted a porch beam but conducted no testing.

Later, Hughes pointed out the copious black paint peeling from a porch handrail to a housing supervisor from Knox Hills. “That’s not lead paint,” she said he assured her. Knox Hills declined to comment on the episode.

A reporter was a block away and later watched as Hughes collected paint falling from the handrail. Lab testing showed its lead content was 28 times a federal threshold that would require abatement.

In response, Knox Hills announced a neighborhood-wide lead paint abatement project focused on porch banisters, several home exteriors and the old switch-house. Residents said the project involves around 40 homes; it included “complete removal of paint and repainting” of the porch handrails.

Without Reuters’ testing data, Hughes said, “this danger may have been left undiscovered and ignored.”

“Knox Hills is taking the proper steps,” said Army spokeswoman Colonel Kathleen Turner. No child living on base has tested high for lead in years, she said.

Knox Hills is a partnership between the Army and private contractors including Lendlease, a property developer headquartered in Sydney, Australia, that operates military housing at several U.S. bases.

“Our response to these concerns, as in all resident issues, are our highest priority,” said Lendlease spokeswoman Meryl Exley.

(Editing by Ronnie Greene)