Lead Lawsuit – An unexpected twist that changes everything, or a sacrificial lamb?

To All:

 

The article is below, I assume many of you are already aware of this – I found out late yesterday.  I have not seen what Leadnet is saying about this yet. . .  And ,I have not seen the detail of the settlement.

 

This may be the first of the settlements – and as I see it, it triggers the following issues that need to be considered (not a complete list):

           

  • This will trigger a lot of inspections and subsequent lead abatement projects – and perhaps a significant boost in the number of people attempting to become CDPH Certified in CA to conduct this work (Inspector/Assessors, Contractor Supervisor and Project Monitors).  When this was thought a possibility in the recent past, it generated a lot of interest from contractors outside of CA wanting to get CA certified – this demand may return now that the work is imminent.

 

  • Unless something has changed – I believe CDPH Lead Related Construction is supposed to be the agency that controls the money issued for projects generated by this suit.  CDPH LRC has been woefully underfunded over the past several years – could this be the thing that allows them the funding to staff up?  If so, this could be a really good thing.  If not, this could overwhelm them . . .
  • Currently, a maximum of 100 people per quarter can take the required test in order to be certified.  The demand for this testing could go through the roof,  I am wondering, is CDPH is ready for this?  One of the bills on the floor in the CA legislature now, would allow Health  Departments to  offer lead certification.  I am not sure if this certification process would be acceptable to CDPH . . .
  • All of this work will be being conducted because lead exists, the intent will be to address lead – therefore, unless I am missing something, all of this work will have to be conducted by CDPH Certified crews – NOT BY RRP Certified Firms and Crews.  Fed-EPA also says that if you are doing work because you are addressing lead, it is abatement not RRP.
  • I know Alameda County and City of San Diego have (had?) plans in place for programs to implement once this money comes available – I am wondering if other counties do as well.
  • Fed-EPA is in the process if reducing their hazard levels for paint, dust, soil and water – will that effect the work required by this settlement?
  • This settlement appears to avoid the implications of the Healthy Homes and Schools Act proposition in CA.  And  NL Industries has agreed to drop support of that proposition – but are we under the gun to settle with the other two defendants before that proposition goes out to vote?  If these settlements are reached, but the proposition passes anyway – what happens?  Also – were similar propositions put on ballots in other States, to prevent similar lawsuits from being effective elsewhere?
  • How does this affect the five or six bills currently running through the CA legislature that were designed to negate the effects of the Healthy Homes and Schools Act?
  • And the big question – what about the rest of CA and the Nation – how does this affect future litigation?

There is a lot more to discuss, I know – but it is early and I have only had one pot of coffee so far.

 

Here is a copy of one to the articles (there are several):

 

CALIFORNIA —Ten California cities and counties have announced a $60 million settlement with one of three paint companies on the hook for cleaning up lead paint hazards in older houses.

The agreement announced Wednesday resolves part of an 18-year-old lawsuit filed against the three companies by Santa Clara County in Superior Court in 2000.

Other counties and cities that later joined the lawsuit and are participating in the settlement are the counties of Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura and the cities of San Francisco, 
Oakland and San Diego.

The settlement was reached with NL Industries Inc., formerly known as National Lead Co.

The other two companies still in the case are Sherwin-Williams Co. and ConAgra Grocery Products Co., which took over the former Fuller paint company.

The agreement applies to abatement of interior paint in houses built in the 10 cities and counties before 1951.
In 2014, Santa Clara County Superior Court Judge James Kleinberg ruled that the three companies created a public nuisance by promoting the use of lead-based paint while knowing that lead dust was harmful to children.

Kleinberg originally ordered the paint firms to pay $1.15 billion to abate lead hazards in an estimated 3.5 million homes built before 1980 in the 10 jurisdictions. But last year, a state Court of Appeal panel narrowed the verdict to houses built before 1951.

The appeals court upheld Kleinberg’s finding of public nuisance, but said the mandate should apply only to the older houses because there was no evidence the companies advertised the use of lead-based paint, as opposed to paint in general, after 1951.

The case against the other two companies remains pending in Santa Clara County Superior Court for a determination of how much funding is needed to address lead paint hazards in pre-1951 houses in the 10 jurisdictions.

The Santa Clara County counsel’s office has estimated the remaining amount needed for the pre-1951 houses at $670 million.

Exposure to lead in deteriorated paint dust and chips can cause brain damage, learning disabilities, lowered IQ scores, slowed growth and kidney damage in children. The U.S. Centers for Disease Control concluded in 
2012, “no safe blood lead level in children has been identified.”

Lead-based paint was banned in the United States in 1978. (note added from Mike Sharp inserted here – LBP was banned from residential properties and public buildings  – its use  was not completely banned.  It is still in use a some applications in the US and the State of CA)

As part of the settlement, NL Industries also agreed to withdraw support from a proposed November ballot initiative that would declare that lead paint in homes is not a public nuisance and that paint companies are not liable.

The initiative would authorize $3.9 billion in taxpayer-paid state bonds to finance the remediation of lead paint and other environmental hazards in homes and schools throughout the state.

The other two paint companies remaining in the case are supporting the measure, according to the cities’ and counties’ announcement.

The settlement must be found by the Superior Court to have been made in good faith before it becomes final. 
Santa Clara County Counsel James Williams said, “For nearly two decades, we have been fighting to protect vulnerable young children from the very serious harms caused by lead paint.

“We are pleased that NL has decided to resolve this matter and that millions of dollars can now go to address the harms to children resulting from toxic lead paint in homes,” Williams said in a statement.

San Francisco City Attorney Dennis Herrera called lead paint “a public health crisis” and stated, “This agreement ensures that significant resources go to address that crisis and protect children from this toxic 
environmental hazard.”

NL Industries lawyer Andre Pauka said that in reaching the settlement, the company does not agree to the allegations in the case. “Although NL does not agree with the ruling in the courts, and by settling does not admit to any of the claims in the case, NL would prefer that its limited financial resources be used to fund public health programs rather than be spent on continued litigation,” the attorney said in a statement.

“Subject to the court’s approval, NL will be able to put this litigation behind it and provide funds for the jurisdictions to address lead paint in the manner they believe is most effective to protect health,” Pauka 
said.

Santa Clara County released an additional statement Thursday concerning the remainder of the case.

“We understand that representatives of the Sherwin Williams Co., another defendant in the litigation, are now claiming that this settlement somehow reduces Sherwin Williams’s liability to less than $60 million based 
on Sherwin Williams’s relative share of the lead paint market in California. This is false.

“The defendants’ liability for public nuisance is unrelated to their relative market share,” the county said.

“This settlement does not reduce the liability of ConAgra or Sherwin Williams, which both remain responsible for the remaining balance of any judgment-which the (plaintiffs) calculate at $670 million.

“The settlement amount with NL is not a reflection of the company’s share of total liability, but rather its ability to pay. Rather than seeking a higher amount that could drive NL into lengthy bankruptcy proceedings and result in pennies on the dollar for remediation, this settlement provides timely, unrestricted funding to clean up the hazards of lead paint and address the harms to children and other vulnerable populations resulting from toxic lead paint in homes,” according to the statement.

— Bay City News; Image via Shutterstock