Selected category: lead

Historic court decision on lead-based paint in California court of appeals

Tom Neltner, J.D.is Chemicals Policy Director

Yesterday, after three years of deliberations, California’s Appellate Court for the Sixth District held that three defendant companies – Sherwin-Williams Company, NL Industries, and ConAgra Grocery Products[1]— created a public nuisance in ten plaintiff jurisdictions in the state by promoting the use of lead-based paint in the interior of residences built before 1951 even though they had actual knowledge of the harm the paint would pose to children. The case now goes back to the trial court to determine the amount that defendants must pay into a fund to remediate pre-1951 homes with lead-based paint in those jurisdictions and to appoint a suitable receiver to manage the fund.

The Court of Appeals’ decision requires remediation of the lead-based paint, but not its complete removal, in the ten California jurisdictions that were plaintiffs in the case. The jurisdictions are: seven counties, Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura; two cities, Oakland and San Diego; and the city and county of San Francisco.

The case, which began in 2000, rests on public nuisance law in California. While all states prohibit public nuisances to protect the public from threats to their health and safety, the requirements vary significantly among the states and rely heavily on precedent set in prior state court decisions. In California, a public nuisance action requires proof that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right. The defendants must have actual knowledge of the public health hazard.

In 2010, the California Supreme Court overruled a previous decision by the trial court and provided key interpretations of public nuisance law that shaped yesterday’s court decision. While the paint companies are expected to appeal this decision to the California Supreme Court, the decision is likely to stand because the Appellate Court hewed closely that court’s 2010 decision.

The Appellate Court for the Sixth District was reviewing a 2014 trial court’s decision that the Sherwin-Williams Company, NL Industries, and ConAgra Grocery Products must pay $1.15 billion to remediate homes built before 1978 with lead-based paint in the plaintiff’s jurisdiction. The three judge panel of the Court of Appeals narrowed the scope of the trial court’s decision from homes built before 1978 to those built before 1951. The panel found that there was insufficient evidence that the three companies had promoted lead-based paint for interior residential use after 1950, even though they may have sold the paint after that date.

Similar cases had been brought in other states including Illinois, New Jersey and Rhode Island. In 2008, the Rhode Island Supreme Court overturned a trial court decision finding paint companies liable for the state’s public nuisance law. The California court found its case was different because it involved an extensive assessment of voluminous evidence presented at trial. The other cases were decided on pleading and did not get to the merits of the evidence.

While lead-based paint is not the only source of lead exposure to children, it is the most significant for those children living in homes with lead-based paint, especially when the paint is deteriorated. Thousands of children still live in homes with lead-based paint hazards – with poor and minority children at greatest risk. This court decision is a first step that will hold companies responsible and result in the removal of toxic lead paint in homes across California and may serve as a roadmap for other states.

[1] ConAgra was a defendant because it had owned Fuller Paint Company’s liabilities through a series of mergers.

Also posted in Health Policy, Public Health| Tagged , , , , , , , | Leave a comment

Eleven states support community lead pipe replacement with proactive policies

Tom Neltner, J.D.Chemicals Policy Director and Sam Lovell, Project Specialist

The largest source of lead in drinking water is lead service lines (LSLs) – the lead pipes connecting the water main under the street to homes and other buildings. Across the country, three dozen communities, large and small, are taking steps to protect public health and respond to concerns by replacing LSLs.

States play an essential role in helping or hindering progress by communities to replace LSLs by administering EPA drinking water rules, distributing federal funded loans, and approving rates some utilities charge customers.

We identified 11 states with proactive policies supporting community efforts to replace LSLs. These states have almost 3 million LSLs based on a 2016 estimate by the American Water Works Association: just short of half the nation’s LSLs. The 11 states are making a positive difference by:

A cross section of lead pipes. Photo Credit: Georgia Health News

  • Empowering communities with grants like Wisconsin, Virginia, Vermont, and New York have done;
  • Providing options to use rate funds like Indiana and Pennsylvania have done;
  • Requiring inventories of LSLs like Illinois, California, Washington, Indiana, and Ohio have done;
  • Setting long-term goals of fully removing all LSLs like California, Washington, and Michigan have done; and
  • Helping prospective homebuyers know whether the home has an LSL.

These policies won’t ensure that all 3 million LSLs are replaced, but it takes the states one step closer to achieving the goal that in 20 years no one will be drinking water through a lead pipe.

Read More »

Also posted in Drinking Water, States| Tagged , , , | Comments are closed

Cincinnati adopts an innovative plan to eliminate LSLs that is a model for other cities

Tom Neltner, J.D.is Chemicals Policy Director

The Cincinnati City Council enacted three ordinances in June 2017 that establish an innovative legal framework to replace the city’s 27,000 lead service lines (LSLs) over the next 15 years. The Council acted after finding that “high levels of lead in water create serious health risks to residents of the City, particularly young children, and using lead service lines between public water mains and properties increases the risk that the lead content of drinking water to the properties served will increase to a dangerous level” and that “replacing lead service lines is in the best interest of the public health, safety, morals, and general welfare.” Although the City stopped allowing new LSLs in 1927, an estimated 1 in 9 service connections still have a portion made of lead pipe.

A member of the GCWW Repair Services Team replaces an LSL. Photo credit: GCWW

Cincinnati’s program is based on Madison, Wisconsin’s successful effort, which began in 2000 and was completed in 2011. Cincinnati is roughly three times larger than Madison in terms of population, service connections, and LSLs.

Under the program, residential property owners within Greater Cincinnati Water Works’ (GCWW) service area can receive between 40 and 50% off of the cost of replacing the portion of the LSL on their property up to $1,500 if they agree to have GCWW arrange for the replacement. Owners within the limits of the City of Cincinnati may choose to have the remaining cost assessed semiannually on their property tax bill and repaid over 5 or 10 years. Property assessments must be approved by the political entity where the property resides. As of today the assessment option is only available for the residential properties in the City. However, GCWW is reaching out to the other jurisdictions it serves to discuss expanding the assessment program to those jurisdictions as well.

GCWW will also be replacing the portion of the LSL on public property so that the entire service line is replaced. The City is committed to fund its share of the work from GCWW’s Capital Budget.

Read More »

Also posted in Drinking Water, States| Tagged , , , | Comments are closed

Article reveals serious shortcomings in Georgia’s oversight of lead in drinking water

Tom Neltner, J.D.is Chemicals Policy Director

Safe drinking water largely depends on the integrity of the public water system and the vigilance of the state regulatory agency. The U.S. Environmental Protection Agency (EPA) sets the standards, conducts the research, and oversees the state regulatory agencies. As we saw in Flint, Michigan, these protections break down when the state regulatory agency fails to identify and address potential compliance issues. Criminal charges have been filed against both state and local officials.

The Flint tragedy prompted EPA to send letters in February 2016 to governors and state agencies reminding of them of their responsibilities under the Safe Drinking Water Act and asking for a meeting with each state to discuss concerns and a written response to key compliance challenges under the Lead and Copper Rule (LCR). EPA posted the state responses online.

The tap sampling required under the LCR is critical since it triggers treatment of the water for small and medium systems and public education and lead service line replacement for all systems if treatment is insufficient. Given this central role, the LCR requires water systems to take water samples from the taps of properties most likely to have lead. For small and medium systems, single family homes with lead service lines are a top priority.

The sampling requirement is challenging since it depends on the cooperation of the resident to let the water stagnate in the lines for at least six hours and then take a first draw sample before anyone uses the water. Residents may need an incentive to cooperate, especially over many years.

A disturbing, three-part investigative report by WebMD and Georgia Health News provided insight into potential shortcomings by utilities that are likely to underestimate the levels. It also highlights Georgia’s apparent failure to identify the problems. The investigators checked on changes in the sampling sites over the years and looked up the sampling locations to determine if they fit the criteria laid out in EPA’s rule. It is an impressive deep dive into LCR compliance sampling issues.

Read More »

Also posted in Drinking Water, EPA, States| Tagged , , , , , , , | Comments are closed

New EPA model enables comparison of various sources of childhood exposure to lead

Tom Neltner, J.D.is Chemicals Policy Director and Dr. Ananya Roy is Health Scientist

This week, Environmental Health Perspectives published an important article by scientists at the Environmental Protection Agency (EPA) that sheds important light on the various sources of children’s lead exposure. Led by Valerie Zaltarian, the article shares an innovative multimedia model to quantify and compare relative contributions of lead from air, soil/dust, water and food to children’s blood lead level. The model couples existing SHEDS and IEUBK models to predict blood lead levels using information on concentrations of lead in different sources, intake and gut absorption. The predicted blood lead levels compared well with observed levels in the National Health and Nutrition Evaluation Survey population. Given the variety of independent sources of lead exposure, the model provides a critical tool that public health professionals can use to set priorities and evaluate the impact of various potential standards for all children and not just those with the greatest exposure.

This peer-reviewed article builds on a draft report EPA released in January 2017 evaluating different approaches to setting a health-based benchmark for lead in drinking water. The report has provided a wealth of insight into a complicated topic. Earlier this year, we used it to show that formula-fed infants get most of their lead exposure from water and toddlers from food, while the main source of lead for the highest exposed children is soil and dust. In our February blog, we provided our assessment of a health-based benchmark for lead in drinking water and explained how public health professionals could use it to evaluate homes. The information was also critical to identifying lead in food as an overlooked, but meaningful, source of children’s exposure to lead.

The new article reaffirms the analysis in the January 2017 EPA report and highlights that evaluating source contribution to blood lead in isolation versus aggregating across all sources can lead to very different answers and priorities. A health-based benchmark for lead in drinking water could vary from 0 to 46 ppb depending on age and whether all other sources of lead are considered. For example, a health-based benchmark for infants (birth to six months old) would be 4 ppb or 13 ppb depending on whether or not you consider all sources of exposure.

Read More »

Also posted in Drinking Water, Emerging Science, EPA, Food, Health Policy, Uncategorized| Tagged , , , , , , , , | Comments are closed

New Pew/RWJF report rigorously evaluates options and recommends 10 policies

Tom Neltner, J.D.Chemicals Policy Director

For the past 2 years, the issue of lead – in paint, water, dust, soil, food, toys, and kids’ blood – has been extensively covered in the news. The crises in Flint and East Chicago have laid bare the vulnerability of communities across the U.S. The evidence is now clear that there is no safe level of lead in children’s blood. What used to be tolerable is no longer acceptable. Evidence from studies of children show clearly that levels of lead in blood affect brain development at levels below those once considered acceptable and should not be tolerated. We must be vigilant to prevent young children’s exposure to lead.

We have already made substantial progress as a nation. From 1999 to 2014, mean blood lead levels in young children dropped 56% and the levels over 5 micrograms of lead per deciliter of blood dropped 86%. This change was due to smart policies, effective regulations, funding, and vigilance from federal, state and local agencies as well as private and non-profit organizations. Despite this headway, lead exposure continues to be a significant problem, preventing our communities from thriving and holding back the future generations from achieving their full potential.

Last year, several organizations developed comprehensive plans1 to eliminate lead exposure. Each added value to the discussion. Today, a new report from the Health Impact Project, a collaboration of The Pew Charitable Trusts and Robert Wood Johnson Foundation (RWJF), provides a rigorous analysis of the costs of lead and the impact of various policy solutions to help protect children from the harms of lead exposure. My colleague, Ananya Roy, and I served as advisors on the project.

Read More »

Also posted in Drinking Water| Tagged , | Comments are closed
  • About this blog

    Science, health, and business experts at Environmental Defense Fund comment on chemical and nanotechnology issues of the day.
    Our work: Chemicals

  • Get new posts by email

    We'll deliver new blog posts to your inbox.

    Subscribe via RSS

  • Filter posts by tags

    • 6th Court of Appeals (1)
    • building code (1)
    • building code official (1)
    • California (3)
    • CDC (9)
    • CHPAC (1)
    • Cincinnati (2)
    • citizens petition (2)
    • Cleveland (1)
    • Clinton (1)
    • Compliance (1)
    • ConAgra (1)
    • Congress (1)
    • Congressman Israel (1)
    • disclosure (3)
    • Drinking Water (14)
    • drinking wtaer (1)
    • Durbin (1)
    • dust (1)
    • dust/soil (1)
    • EPA (15)
    • FDA (20)
    • Flint (1)
    • Food (3)
    • Funding (1)
    • Georgia (1)
    • Georgia Health News (1)
    • health-based benchmark (3)
    • home buyers (1)
    • home sales (1)
    • Household action level (3)
    • HUD (3)
    • ICC (1)
    • IEUBK (1)
    • Indiana (1)
    • Infrastructure (1)
    • International Code Council (1)
    • LCR (2)
    • lead (34)
    • Lead 1950 (1)
    • lead and copper rule (4)
    • lead dust hazard (2)
    • Lead Dust Standards (1)
    • Lead Exposure (6)
    • lead hazard (2)
    • Lead in Drinking Water (6)
    • lead poisoning preventon (1)
    • Lead Service Line (4)
    • Lead Service Lines (4)
    • lead-based paint (6)
    • Lead-safe (1)
    • lead-safe renovations firms (1)
    • lead-safe renovator (1)
    • Legislation (1)
    • LSHR (1)
    • LSL (1)
    • LSL Replacement Collaborative (1)
    • Mapping (1)
    • model (2)
    • NAAQS (1)
    • NCHH (1)
    • NDWA (1)
    • NDWAC (2)
    • NHANES (2)
    • NL Industries (1)
    • Obama (1)
    • Ohio (1)
    • paint (2)
    • Pennsylvania (1)
    • pipes (1)
    • Private Property (1)
    • Pruitt (1)
    • Public Nuisance (1)
    • Public Water Supplier (1)
    • PWS Water Board (1)
    • Quigley (1)
    • real estate (1)
    • Redfin (1)
    • renovation (1)
    • rental (1)
    • renters (1)
    • residential code (1)
    • right-to-know (1)
    • risk assessment (73)
    • Risk Communication (1)
    • RRP (1)
    • SB 1398 (1)
    • Science Advisory Board (1)
    • SHEDS (1)
    • Sherwin Williams (1)
    • Sierra Club (1)
    • soil (1)
    • soil lead hazard (1)
    • State Senator Levya (1)
    • toolkit (1)
    • Transparency (2)
    • TSCA Title IV (1)
    • U.S. states (18)
    • User Service Line (1)
    • Utility Commission (1)
    • Washington Post (1)
    • WebMD (1)
    • Wisconsin (1)
    • Zillow (1)